IN THE SUPERI()R COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. )
)
JERMAINE LASTER, ) Cr. A. No. 1307014887
Defendant. §
)
)

Date Decided: April 16, 2018
On Defendant Jermaine Laster’s Motion for
Postconviction Relief. DENIED.
QLDLB
On August 6th, 2013 Defendant Was arrested in connection with a shooting
that took place on July l7th, 2013 that resulted in a 5-year-old girl sustaining a
gunshot Wound to her left leg. Defendant retained private counsel in March 2014
and the case proceeded to a jury trial in June 2014. During jury deliberations a note
Was submitted to the Court asking for clarification regarding intent in relation to the
charge of assault in the first degree. The State, defense counsel, and the Court
conferred regarding the note and after clarification agreed to the following
instruction to the jury: “the reckless state of mind is at issue, not intent.” On July

lst, 2014 the jury found Defendant guilty of Assault First Degree, three counts of

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Possession of a Firearm during the commission of a Felony, and two counts of
Reckless Endangering in the First Degree. The Court then found Defendant guilty
of Possession of a Weapon by a Person Prohibited and Possession of Ammunition
by a Person Prohibited. Defendant was sentenced to 22 years of level V
incarceration, followed by 2 years and 6 months of probation.
Parties’ Contentions

Defendant filed his initial motion for postconviction relief on December 29,
2015. In his initial motion Defendant argued, inter alia, violation of spousal
communication privilege, prosecutorial misconduct, and judicial misconduct
Defendant was appointed counsel and an amended complaint was filed on August
28, 2017. The amended motion argues that Defendant’s trial counsel was
ineffective Defendant puts forth three bases for his ineffective counsel argument;
that counsel failed to retain a private investigator to locate and develop potential
witnesses for trial, that counsel failed to challenge the State’s forensic firearms
expert, and that counsel failed to object to the Court’s final instructions to the jury
in response to jury’s note #l. The State concedes that this motion for postconviction
relief is not procedurally barred, but that Defendant’s ineffective assistance of

counsel claims fail as a matter of law.

Discussion

The court must address Defendant’s motion in regard to Rule 61 (i) procedural
bars to relief before assessing the merits of his motion.l The State has conceded and
the Court agrees that Defendant’s motion is not time barred or repetitive. Rule
6l(i)(3) bars relief if the motion includes claims not asserted in the proceedings
leading to the final judgment2 This bar is also not applicable as Defendant claims
ineffective assistance of counsel, which could not have been raised in any direct
appeal.3 Finally, Rule 6l(i)(4) bars relief if the motion is based on a formally

adjudicated ground.4 This bar is also not applicable to Defendant’s Motion.

Delaware adopted the two-prong test proffered in Strickland v. Washington to
evaluate ineffective assistance of counsel claims.5 To succeed on an ineffective
assistance of counsel claim, a petitioner must demonstrate that “counsel’s

representation fell below an objective standard of reasonableness, and that there is a

 

1 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

2 Super. Ct. Crim. R. 6l(i)(3).

3 See State v. Berry, 2016 WL 5624893, at *4 (Del. Super. Ct. June 29, 2016); see
also Walson v. State, 2013 WL 5745708, at *2 (Del. Oct. 2l, 2013).

4 Super. Ct. Crim. R. 6l(i)(4).

5 See Strickland v. Washington, 466 U.S. 668 (1984); see also Albury v. State, 551
A.2d 53 (Del. 1988).

reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”6

To avoid the “distorting effects of hindsight,” counsel’s actions are afforded a
strong presumption of reasonableness7 The “benchmark for judging any claim of
ineffectiveness [is to] be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.”8 The Court’s objective in evaluating counsel’s conduct is
to “reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from the counsel 'S perspective at the time.”9

If defendant can demonstrate that counsel’s conduct failed to meet an
objective standard of reasonableness the second prong of the Stricklana’ analysis
requires the Court to determine what, if any, effect counsel’s ineffectiveness had on

the outcome of Defendant’s trial.“) “[The Court] will not set aside the judgment in

 

6 Flamer v. State, 585 A.2d 736, 753 (Del. 1990); see also Stricklana’ v. Washington,

466 U.S. 668 (1984).
7 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (citing Stricklana’ v. Washl`ngton at

689).

8 State v. Wrz'ght, 2015 WL 648818, (Del. Super. Ct. Feb. 12, 2015)(citations
omitted).

9 Neal, 80 A.3d 935 at 942. (citing Stricklana' v. Washington, at 689) (emphasis
supplied).

10 Ia'.

a criminal proceeding if the error had no effect on the outcome.”ll Defendant must
show that but for counsel’s ineffectiveness a more favorable result is not just

conceivable, but rather the likelihood of a favorable outcome is substantial_.12

Defendant’s first claim of ineffective assistance of counsel is based on the fact
that counsel failed to retain a private investigator to develop potential witnesses for
trial. The decision to hire an outside investigator to develop facts in the case is a
strategic decision. Strickland provides that “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments support

the limitations on investigation.”13

lt was reasonable for counsel to make the strategic decision not to hire an
outside investigator. Trial counsel, in his affidavit filed in response to Defendant’s
claims, affirmed that the decision not to seek an outside investigator was made after
conferring with Defendant and his family. Viewing this conduct from the

perspective of defense counsel at the time the Court finds that the decision was made

 

" Ia'. (citing Strickland v. Washington, at 692).
12 Id.
13 Strickland v. Washington, 466 U.S. 668, 690-91(1984).

strategically and after determining that it was not the best course of action to hire an

investigator, and that the decision not to do so was reasonable

Furthermore, if it were unreasonable not to hire an investigator Defendant has
failed to offer any evidence that a more favorable outcome was substantially likely.
While it is conceivable that an investigator may have found other witnesses or that
they might have been able to find more impeachment evidence against the State’s
witnesses, Defendant cannot point to any specifics that help his case. The record
reflects that trial counsel on cross examination effectively elicited testimony from
witnesses regarding drug use on the day in question and prior inconsistent statements
made to police. Defendant has also failed to identify other potential witnesses or

what testimony they might provide in pursuit of a different outcome.

Defendant’s second claim that counsel failed to challenge the State’s forensic
firearms expert or hire a forensic firearms expert for the defense fails for the same
reasons. The decision not to hire an expert was made after consultation with
Defendant and his family and considering trial strategy. The analysis and outcome
is the same as the decision not to hire a private investigator. The Court finds that the
decision was made strategically and after determining that it was not the best course

of action to hire an investigator, and that the decision not to do so was reasonable

Defendant’s second claim fails the second prong of the Strz'cklaml test for the
same reason as his first. Defendant has failed to offer any evidence that a more
favorable outcome was substantially likely. Defendant cannot point to any specifics
that help his case. Defendant has offered conclusory statements as to how a defense
expert would have testified without supporting that conclusion. Additionally,
Defendant claims that a defensive expert would have been able to elicit testimony
that the bullets found at the scene could not be conclusively linked to the casings
turned over to the police the day after the shooting. A review of the record shows
that this was the exact testimony from the State’s expert on direct and cross
examination Offering a second expert to testify that a link between the bullets and
casings could not be established would be cumulative and unnecessary Without any
specific evidence the Defendant has failed to show that the likelihood of a different

outcome was substantial but for the ineffectiveness of his trial counsel

Moving to Defendant’s final claim of ineffective assistance of counsel in that
counsel failed to object to the Court’s final instructions to the jury in response to
jury’s note #1 the Court finds that trial counsel’s representation was reasonable and

that Defendant was not prejudiced as a result of counsel’s actions.

The record reflects that while conferring about the note defense counsel
specifically requested that the original jury instruction be read back to the jury,

preserving for the record that any deviation from the original jury instruction was

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objectionable Counsel Was active in formulating the Court’s response to the jury’s
question as was the State. Defense counsel’s participation in the interpretation and
formulation of a response to the jury’s note is exemplary of reasonable assistance of
counsel. Counsel diligently represented his client by seeking an advantageous
outcome even after the case had been submitted to the jury. Defense counsel’s

actions were reasonable

Counsel’s representation in relation to the jury note in question did not
prejudice Defendant. The Court’s response to the jury’s question was a correct
statement of the law at issue in the case. That the jury would have returned a
different verdict with a different response to their note is Speculative. Defendant
fails to offer any proof that but for the ineffectiveness of his trial counsel the jury

would have returned a different verdict.

Defendant cannot show that Trial Counsel’s representation fell below an
objective standard of reasonableness Defendant has also failed to demonstrate that
any prejudice stemming from his counsel’s representation can overcome the
overwhelming evidence of his guilt. The Defendant’s Motion for Postconviction
Relief pursuant to Rule 61 is hereby DENIED without further proceedings

IT IS SO ORDERED.

%/%

The Honorable Calvié/L. Scott, Jr.

