Submitted: August 17, 2017
Defendant's Motion for Postconviction Relief. DENIED.
T. Knoll, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Anthony A. Figliola, Jr., Esquire, Greto Law, Wilmington,
Delaware, Attorney for Defendant.
RICHARD R. COOCH, R.J.
14th day of November, 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
March 13, 2012 a jury found Kevin Rasin
("Defendant") guilty of Gang Participation, Murder
First Degree, Attempted Murder Frist Degree, two counts of
Conspiracy Second Degree, two counts of Possession of a
Firearm by a Person Prohibited, and Possession of a Firearm
During the Commission of a Felony. The Supreme Court of
Delaware affirmed Defendant's conviction on direct appeal
on September 25, 2013.
Defendant filed a pro se Motion for Postconviction
Relief on September 18, 2014. This Court ordered that counsel
be appointed to represent Defendant. Defendant's appointed
counsel filed an amended motion for postconviction relief on
October 31, 2016.
Defendant, through appointed counsel, raises
claims of ineffective assistance of counsel in his Amended
Motion for Postconviction Relief:
2. Counsel was ineffective for not requesting either a
mistrial or an inquiry of the [j]ury [p]anel as to
[p]rejudice based upon Juror 11['s] failure to disclose
the [m]urder of her son.
3. Counsel was ineffective for failing to object to [the]
State'[s] vouching in closing argument. 
Defendant's trial counsel's brief affidavit
responding to the two allegations of ineffective assistance
of counsel reads in toto:
I was defendant Rasin's trial counsel. I have received a
copy of Rasin's amended motion for postconviction relief,
asserting my ineffectiveness.
Rasin claims, first, that I failed to object to
co-conspirators' statements and/or "introduction of
plea agreements not subject to cross-examination." I do
not recall Rasin's trial with enough specificity to
appreciate the exact plea agreements to which Rasin refers.
Nevertheless, I agree with the principle that defense counsel
has an obligation to object to the introduction of
co-conspirator plea agreements when said agreements are not
accompanied by relevant testimony from said co-conspirators.
A failure to do so strikes me as ineffective.
I also cannot recall the particular disclosure made by juror
11, but agree that follow-up should have been conducted with
anyone to whom juror 11 spoke. I cannot explain my failure to
request the same.
I leave it to the Court's judgment whether improper
prosecutorial vouching occurred, but I agree with the point
that if I failed to object to the State's vouching for
the key witness in its case, that was ineffective.
I have no recollection of the issue of Mill's
unavailability and cannot comment on same.
61 is the remedy for defendants "in custody under a
sentence of this court seeking to set aside the judgment of
conviction . . . ." This Court "must first consider
the procedural requirements of Rule 61 before addressing any
substantive issues." The procedural
"bars" of Rule 61 are: timeliness, repetitiveness,
procedural default, and former adjudication. A motion is
untimely if it is filed more than one year after the
conviction is finalized or defendant asserts a new
constitutional right that is retroactively applied more than
one year after it is first recognized.
motion is repetitive if it is a "second or subsequent
motion." The procedural default bar applies where
grounds for relief are not raised "in the proceedings
leading to the judgment of conviction, " unless
defendant can show "cause for relief" and
"prejudice from [the] violation." Grounds for
relief that have been formerly adjudicated in the case
including "proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or
in a federal habeas corpus hearing" are
barred. "If any of these bars apply, the
movant must show entitlement to relief under Rule
61(i)(5)". The contentions in a Rule 61 motion must
be considered on a "claim-by-claim"
Before it may address the merits of Defendant's Fourth
Motion for Postconviction Relief, this Court must analyze the
procedural bars of Superior Court Criminal Rule
61(i). If one or more of the procedural bars
applies, then this Court will not proceed to consider the
merits of Defendant's postconviction claim.
Defendant's motion does not fall into any of the four
procedural bar categories of Rule 61(i). As such, it is not
procedurally barred. This Court will therefore proceed to
consider the merits of Defendant's Motion for
successful ineffective assistance of counsel requires that a
defendant demonstrate "that counsel's representation
fell below an objective standard of
reasonableness" and "that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." "A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.""Because of the difficulties
inherent in making the evaluation [of the trial
attorney's performance], a court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered
sound trial strategy.'"
Defendant's two ineffective assistance of counsel claims
fail as they do not meet the Strickland standard.
First, Defendant argues that there was error at trial because
"the remaining jury [members were] not
questioned" following Juror No. 11 telling another
juror that her brother had been murdered 27 year prior.
Defendant's argument reads in toto:
On February 14, 2012, Juror 11 came forward and acknowledged
that she had failed to notify the [C]ourt during [j]ury
selection that her brother was killed. The juror candidly
expressed that she could be fair and impartial[.] Counsel did
not request her removal. Counsel however was ineffective for
not following up on her acknowledgment that she had given the
information to a fellow juror. The court did not follow up
this issue. Counsel should have requested that the entire
panel be questioned regarding, whether they had been told of
Juror 11's situation and whether it would affect their
ability to remain impartial.
The issue is not that the defense failed to ask for the
removal of Juror 11[.] [T]he error is that the remaining jury
panel was not questioned. Juror 11 admitted talking to
another juror[.] [T]he Court never questioned that juror
regarding his or her ability to be fair and impartial. Also
the record was never established whether the juror who
received the information from Juror 11 ever communicated the
information to other jurors. Counsel for Rasin should have
requested and the Trial Court should have conducted further
voir dire with the entire jury panel to satisfy
whether Rasin had an impartial jury. Without full questioning
of the entire [j]ury panel[, ] it was impossible to determine
whether Rasin had an impartial jury.
While Defendant's challenge is under the guise of
ineffective assistance of counsel for failure to request a
mistrial or further inquiry into the potential juror bias, he
also contends that "the Trial Court should have
conducted further voir dire with the entire jury
panel to satisfy whether [Defendant] had an impartial
jury." Neither argument has merit.
Court, the State, and counsel for co-defendants met with
Juror No. 11. The record reads in toto:
JUROR ENTERS CONFERENCE ROOM
THE COURT: Good morning, Juror Number 11.
THE JUROR: Good morning, everyone.
THE COURT: I asked the bailiff to have you come in because I
gather you said something to him yesterday about something
your brother [apparent omission by the court reporter].
THE JUROR: Well, I have - I had two brothers, and coming in
there yesterday all the lights it like makes me get confused
and stuff, and I didn't tell you that I had a brother
killed before, shot and killed. So I wanted to let you all
know that because I forgot to tell you yesterday.
THE COURT: When was that?
THE JUROR: About 27 years ago.
THE COURT: Briefly, what were the circumstances?
THE JUROR: He was at a bouncer at a club and the person had
to be told to leave and they came back in.
THE COURT: Was this in ...