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State v. Rasin

Superior Court of Delaware

November 14, 2017

KEVIN RASIN, Defendant

          Submitted: August 17, 2017

         On Defendant's Motion for Postconviction Relief. DENIED.

          Maria 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.

         This 14th day of November, 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         1. On 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.[1] The Supreme Court of Delaware affirmed Defendant's conviction on direct appeal on September 25, 2013.[2]

         2. Defendant filed a pro se Motion for Postconviction Relief on September 18, 2014.[3] This Court ordered that counsel be appointed to represent Defendant.[4] Defendant's appointed counsel filed an amended motion for postconviction relief on October 31, 2016.[5]

         3. Defendant, through appointed counsel, raises two[6] 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. [7]

         4. 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.[8]

         5. Rule 61 is the remedy for defendants "in custody under a sentence of this court seeking to set aside the judgment of conviction . . . ."[9] This Court "must first consider the procedural requirements of Rule 61 before addressing any substantive issues."[10] The procedural "bars" of Rule 61 are: timeliness, repetitiveness, procedural default, and former adjudication.[11] 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.[12]

         6. A motion is repetitive if it is a "second or subsequent motion."[13] 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."[14] 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.[15] "If any of these bars apply, the movant must show entitlement to relief under Rule 61(i)(5)".[16] The contentions in a Rule 61 motion must be considered on a "claim-by-claim" basis.[17]

         7. 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).[18] If one or more of the procedural bars applies, then this Court will not proceed to consider the merits of Defendant's postconviction claim.[19]

         8. 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 Postconviction Relief.

         9. A successful ineffective assistance of counsel requires that a defendant demonstrate "that counsel's representation fell below an objective standard of reasonableness[]"[20] and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[21] "A reasonable probability is a probability sufficient to undermine confidence in the outcome."[22]"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.'"[23]

         10. Defendant's two ineffective assistance of counsel claims fail as they do not meet the Strickland standard.

         Juror Issue

         11. 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.[24]
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.[25]
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."[26] Neither argument has merit.

         12. The Court, the State, and counsel for co-defendants met with Juror No. 11. The record reads in toto:

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 ...

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