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State v. Laster

Superior Court of Delaware

April 16, 2018

STATE OF DELAWARE,
v.
JERMAINE LASTER, Defendant.

         On Defendant Jermaine Laster's Motion for Postconviction Relief. DENIED.

          ORDER

          THE HONORABLE CALVIN L. SCOTT, JR.

         On August 6th, 2013 Defendant was arrested in connection with a shooting that took place on July 17th, 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 1st, 2014 the jury found Defendant guilty of Assault First Degree, three counts of 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 #1. 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 6l(i) procedural bars to relief before assessing the merits of his motion.[1] 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 judgment.[2] 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 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 reasonableness.[7] 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 Strickland analysis requires the Court to determine what, if any, effect counsel's ineffectiveness had on the outcome of Defendant's trial.[10] "[The Court] will not set aside the judgment in a criminal proceeding if the error had no effect on the outcome."[11] 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]

         It 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 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 ...


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