Submitted: May 9, 2018
Below: Superior Court of the State of Delaware File No.
STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
COLLINS J. SEITZ, JR. JUSTICE.
23rd day of May, 2018, having considered the
briefs and the record below, it appears to the Court that:
Kevin Rasin appeals the Superior Court's denial of his
motion for postconviction relief for ineffective assistance
of counsel. Rasin claims his counsel was ineffective for not
objecting to what Rasin claims was the State's improper
vouching for witnesses in its closing arguments. After
careful review, we find the Superior Court did not abuse its
discretion by denying the motion for postconviction relief.
Rasin and several other individuals were members of a
Wilmington gang known as the TrapStars. After escalating
violence with another gang, the police identified Rasin as
the gunman who shot and killed a rival gang member on May 3,
2010. On September 17, 2010, the police arrested Rasin and
indicted him on two counts of first degree murder, three
counts of possession of a firearm during the commission of a
felony, three counts of possession of a firearm by a person
prohibited, gang participation, three counts of second degree
conspiracy, and two counts of attempted murder.
trial began on February 13, 2012, with Rasin and a
codefendant being tried jointly. Six members or associates of
the TrapStars pled guilty to related charges and testified
for the State against Rasin. In their closing arguments, the
co-defendants' counsel questioned the credibility of
these witnesses. In response, the State rebutted the defense
arguments, explaining "in this case, the State would
sub[mit] for each and every cooperating co-defendant who
appeared before you there is ample corroboration of their
statement." Rasin's counsel did not object to the
prosecutor's statements. The jury found Rasin guilty of
first degree murder, possession of a firearm during the
commission of a felony, two counts of second degree
conspiracy, two counts of possession of a firearm by a person
prohibited, gang participation, and attempted murder. This
Court affirmed his conviction on September 25,
October 18, 2014, Rasin filed a pro se motion for
postconviction relief. Rasin claimed that his counsel was
ineffective for not requesting a mistrial due to the
potential bias of a juror whose brother had been murdered;
and for failing to object to the State vouching for witnesses
in its closing arguments. The Superior Court denied Rasin's
motion on November 17, 2017. First, it found that the record
showed that counsel had acted reasonably in its response to
the potential juror bias, and even if it had not, Rasin
failed to show that he suffered prejudice. Second, it found
that the State's statements did not amount to improper
witness vouching, because they were made "for the
purpose of responding to Defendant's counsel's
attacks on the credibility of the State's witnesses"
and were not just statements of the State's personal
beliefs and opinions. Rasin appeals the Superior Court's
decision as to the witness vouching issue.
This Court reviews the denial of a Rule 61 motion for an
abuse of discretion. The Court must first "consider the
procedural requirements of Rule 61 before addressing any
substantive issues." A motion for postconviction
relief is barred by Rule 61(i)(1) if filed more than one year
after final conviction; by Rule 61(i)(2) if not asserted in a
prior postconviction motion; by Rule 61(i)(3) if procedurally
defaulted; and by Rule 61(i)(4) if formerly
adjudicated. A claim not formerly raised or
adjudicated may be reconsidered "in the interest of
justice." In addition, Rule 61(i)(5) provides an
exception to the first three procedural bars if the movant
shows "a colorable claim that there was a miscarriage of
justice because of a constitutional violation that undermined
the fundamental legality, reliability, integrity or fairness
of the proceedings leading to the judgment of
conviction."Rasin's motion does not trigger any
of the procedural bars, and thus is not barred by Rule 61.
prevail on a claim of ineffective assistance of counsel, the
defendant must show that counsel's actions fell below an
objective standard of reasonableness based on prevailing
professional norms, and that he suffered prejudice because of
it. To establish prejudice, "[t]he
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been
appeal, Rasin argues the Superior Court abused its discretion
by not finding his counsel ineffective for failing to object
to the State vouching for its witnesses. The Superior
Court found that the statements alleged to be vouching were
simply proper responses to the defendants' attacks on the
State's witnesses' credibility. Rasin contends that
the State's comments were impermissible because they
"were in no way invited by defense counsel in its
closing." According to Rasin, "the Prosecutor
in rebuttal went beyond neutralization and vouched for State
witnesses." In response, the State argues that its
comments were based on evidence presented at trial and were
in direct rebuttal to the defense's statements attacking
the witnesses' credibility.
State may not vouch, positively or negatively, as to the
credibility of another witness and his
truthfulness. "Improper vouching occurs when the
prosecutor implies some personal superior knowledge, beyond
that logically inferred from the evidence at trial, that the
witness testified truthfully." Witness vouching includes
statements that "directly or indirectly provide an
opinion on the veracity of a particular
witness." Witness vouching is "a special
concern because jurors may easily interpret vouching by the
prosecutor as an official endorsement of the witness, "
given their position of authority and implied superior
knowledge, "and in doing so, overlook important aspects
of the witness' credibility." The
prosecutor has the responsibility to "ensure that guilt
is decided only on the basis of sufficient evidence, "
without the undue influence of "improper suggestions,
insinuations, and assertions of personal knowledge."
State does have "flexibility in closing arguments that
allows attorneys to move beyond the bounds of merely
regurgitating evidence and allows attorneys to explain all
legitimate inferences of innocence or guilt that flow from
the evidence presented at trial." The
State's remarks "must ultimately be judged on
whether they and other comments, in the whole context of the
case, prejudiced defendants' right to a fair
trial." Here, the prosecutor's remarks, when
read in context, were based on inferences that were drawn
from the evidence at trial and showed the witnesses'
motivations to testify truthfully. The remarks were not based
on the prosecutors personal beliefs or opinions.
Rasin argues that "[d]efense [c]ounsel at no time during
his closing argument accuse any of the State witnesses . . .
as being less than truthful in their
testimony." He explains that "by constantly
implying the witnesses were not lying" the prosecutor
was "imputing her personal belief." This
argument, however, is contradicted by the record. Defense
. "[H]ow trustworthy is somebody
that's been smoking PCP going to be . . .
. "Is [Fayson] a practiced
. "How do you know Kevin Fayson is not
[a] perjurer . . . and everything he told you was a
. "[Ortiz] tells you that Fayson,
essentially, is a bald-faced liar. He makes things
. "Fellows that are trying to help
themselves with the police . . . have an
. "The State describes alleged
confessions, sort of braggadocios, made up by Kevin Rasin
after the shooting. How credible are those
. "How come two years later [Whye is]
coming up with a different description?"
. "[L]ook at these witnesses and decide
are they accurate, are they dependable, are they reliable, or
are they trustworthy?"
. "I want you to consider your
impression and your judgment of these people when you
. "[D]o you think Robert Valentine is
so tied to the truth that he's not going to change his
testimony in return for that sweet deal?"
. "[W]ith that motive to tell a
different story, can you believe him? Can you rely on his
testimony? On cross-examination he said, 'ninety-five
percent of what I said is true. . . .' Well, where's
rebuttal, the State responded:
. "[F]or each and every cooperating
co-defendant who appeared before you there is ample
corroboration of their statement."
. "Why point to the one guy who could
point back at you? Because that guy's the one who  shot