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Laster v. State

Supreme Court of Delaware

February 8, 2019

JERMAINE LASTER, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: December 12, 2018

          Court Below: Superior Court of the State of Delaware I.D. No. 1307014887 (N)

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

          James T. Vaughn, Jr. Justice

         On this 8th day of February 2019, upon consideration of the parties' briefs and the record on appeal, it appears that:

         (1) Appellant, Jermaine Laster, appeals from a Superior Court order denying his motion for postconviction relief. He asserts three claims of ineffective assistance of counsel. His first contention relates to a jury note. He contends that his trial counsel was ineffective because he failed to ask the trial court to respond to the note by instructing the jury to follow the jury instructions as originally given. Second, he contends that his trial counsel was ineffective because he failed to retain an investigator to aid in impeaching the State's witnesses and to develop other potential defense witnesses. Third, he contends that his trial counsel was ineffective because he failed to retain a firearms expert to mitigate the testimony of the State's firearms expert and to otherwise aid in his defense.

         (2) On August 6, 2013, Laster was arrested in connection with a shooting that took place on July 17, 2013. The shooting resulted in a five-year-old girl sustaining a gunshot wound to her left leg. Laster was indicted for Assault in the First Degree and related offenses. He retained private counsel, and the case proceeded to trial in June 2014.

         (3) At trial, the State's case consisted primarily of eyewitness testimony. There was no direct physical evidence linking Laster to the shooting. According to the testimony of six eyewitnesses (one of whom was Laster's wife), the following occurred on the day of the shooting. On the evening of July 17, 2013, Laster argued with Jeff Williams, resulting in Williams punching Laster in the face and knocking him to the ground. Laster then went into his nearby residence to get his gun. His wife heard him say, "That [guy] snuck me. I'm getting my gun."[1] When he came back out, he chased after Williams up the street and began shooting towards him, firing several shots. One of these several shots hit the victim, who was in front of her nearby residence. In jail, Laster admitted to Shannon Nisky (one of the eyewitnesses and a friend of Laster's) that he shot the victim.

         (4) Three of the eyewitnesses, Carlos Hernandez, Nisky, and Williams, had credibility issues that were brought out during their examinations. They all admitted they were addicted to and had used heroin the day of the shooting. Hernandez and Nisky admitted they were convicted felons, and Williams admitted he had been convicted of criminal impersonation within the last ten years. It was shown that all three had made prior inconsistent statements to the police. None of these prior inconsistent statements, however, called into doubt the fact that Laster chased Williams up the street while firing several shots. And none suggested that someone other than Laster fired any shots, let alone the shot that hit the victim. All of them admitted to making deals with the State in exchange for cooperating in this case.

         (5) In addition to eyewitness testimony, the State called Carl Rone, a firearms expert, to testify about two bullets recovered at the scene and two cartridge cases that Laster's wife gave to the police the day after the shooting. Rone testified that because no firearm was recovered, he conducted a side-by-side comparison of the bullets, which he labeled Item 1 (a bullet jacket) and Item 2 (a fully intact bullet). From this comparison he concluded that Item 1 and Item 2 had been fired from the same weapon-a .44 caliber revolver marketed by Ruger, Sauer and Sohn's, Interarms, or Hawes. Rone also compared the two cartridge cases. He concluded that these cases were fired from the same firearm. Because Rone did not have a firearm to make the required comparisons, however, he explained that he could not determine whether the bullets were fired from the same firearm as the cartridge cases. Rone also noted that the cases could have been fired from any gun chambered in .44 magnum, including a revolver or a semiautomatic firearm, but because the cases did not have any extractor or ejector marks, Rone believed they were fired from a revolver.

         (6) Laster did not present any evidence in his defense.

         (7) During its deliberations, the jury submitted a note to the trial court asking for clarification regarding the intent element in the charge of Assault in the First Degree. The note began by repeating an element of Assault in the First Degree set forth in the original instructions: "The defendant recklessly engaged in conduct that created a substantial risk of death to [the victim]."[2] This statement was then followed by a question: "Is this specific intent to [the victim] alone or any unjustifiable risk that death to another could result?"[3] The court asked the jury to define what it meant by "specific intent."[4] The jury then added the following questions to its note: "Does 'substantial risk of death' need to be directed at [the victim] specifically to be charged with Assault in the First Degree? In other words[, ] does intent of risk need to be directed at [the victim] specifically?"[5] The State, Laster's trial counsel, and the court conferred regarding the jury note and agreed to the following response: "The reckless state of mind is an issue, not intent."[6]

         (8) The jury then found Laster guilty of Assault in the 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. Following the jury trial, the trial judge found Laster guilty of Possession of a Deadly Weapon by a Person Prohibited and Possession of Ammunition by a Person Prohibited.

         (9) Laster filed his initial motion for postconviction relief pro se, alleging violation of spousal communication privilege, prosecutorial misconduct, and judicial misconduct. Counsel was appointed, and an amended motion was filed in which Laster asserted the ineffective-assistance claims at issue in this appeal.

         (10) Laster's trial counsel filed an affidavit responding to the postconviction relief claims. As to the claims regarding the need for a private investigator and a firearms expert, Laster's trial counsel explained that the decision not to seek an outside investigator or a firearms expert was made after conferring with Laster and his family and considering trial strategy. As to the claim regarding the jury note, Laster's trial counsel explained that his failure to object to the court's answer to the jury note was not prejudicial to Laster.

         (11) We review the Superior Court's denial of a Rule 61 motion for postconviction relief for abuse of discretion.[7] We review ...


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