Submitted: December 12, 2018
Below: Superior Court of the State of Delaware I.D. No.
VALIHURA, VAUGHN, and SEITZ, Justices.
T. Vaughn, Jr. Justice
8th day of February 2019, upon consideration of
the parties' briefs and the record on appeal, it appears
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.
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.
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." 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.
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.
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.
Laster did not present any evidence in his defense.
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]." 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?" The court asked the jury to define what it
meant by "specific intent." 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?" 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."
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
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.
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.
review the Superior Court's denial of a Rule 61 motion
for postconviction relief for abuse of
discretion. We review ...