Submitted: November 21, 2018
Consideration of Defendant's Motion for Postconviction
V. Apostolico, Esq., and Andrew J. Vella, Esq., Department of
Justice, Wilmington, Delaware. Attorney for the State.
Aizupitis, Pro se.
M. Davis, Judge.
a criminal case after conviction. The history regarding the
post-conviction relief sought here is unusual and lengthy.
Counsel for Defendant Varis R. Aizupitis first filed a motion
for postconviction relief (the "Original Motion")
under Superior Court Criminal Rule 61 ("Rule 61")
on February 16, 1999. As is set forth below, the Court did
not act on that first motion. After a number of hearings, the
Court set a deadline for Mr. Aizupitis to file an amended
motion for postconviction relief under Rule 61. Mr. Aizupitis
filed his Rule 61 Motion on June 27, 2016 (the
"Motion"). The Motion amends and supersedes the
Original Motion. The Court will be considering and deciding
only the issues raised in the Motion.
31, 2018, the State filed its State's Response to
Defendant's Motion for Postconviction Relief (the
"Response"). Mr. Aizupitis filed his Motion
Replying to the State Rule 61 Answer (the "Reply")
on or about August 27, 2018. In addition to the Motion, the
Response and the Reply, the Court considered affidavits
submitted by Mr. Aizupitis' original trial counsel
("Trial Counsel") on June 28, 2018, and April 8,
1999, and the entire record of this criminal action.
November 21, 2018, the Court held a hearing (the
"Hearing") on the Motion. At the Hearing, the Court
heard argument from Mr. Aizupitis and the State. At the
conclusion of the Hearing, the Court took the Motion under
advisement. For the reasons set forth below, the Court will
DENY the relief sought in the Motion.
Aizupitis was arrested on July 4, 1995, for the murder of
Elizabeth Henderson. Mr. Aizupitis shot Ms. Henderson once in
the right arm and once in the head with a .357 caliber
handgun. After shooting Ms. Henderson, Mr. Aizupitis
immediately dialed 911 and implicated himself in her death,
stating "[h]ere I am. I am the one who shot
her." Ms. Henderson had been Mr. Aizupitis'
landlord for approximately one year. Mr. Aizupitis and Ms.
Henderson both resided at 1802 Wawaset Street in Wilmington.
According to the record in this criminal action, for as long
as Mr. Aizupitis had resided at 1802 Wawaset Street, he and
Ms. Henderson had had an on-going dispute over approximately
$300, which Mr. Aizupitis believed was due to him for certain
repair/renovation work performed at the residence.
10, 1995, a New Castle County Grand Jury returned an
indictment charging Mr. Aizupitis Murder in the First Degree
and with Possession of a Firearm during the Commission of a
the record, Trial Counsel relied upon the affirmative defense
of not guilty by reason of insanity and on the mitigating
circumstance of extreme emotional distress. The record
provides that no one disputed the fact that Mr. Aizupitis is
a paranoid schizophrenic. Prior to trial, the parties and the
Court were actively engaged in motions practice and pre-trial
conferences regarding, among other things, expert witnesses,
jury selection, discovery, jury instructions and
alike. The trial began on February 8, 1996. The
trial was a battle of experts with three psychiatrists
testifying for the defense and one psychiatrist and one
neuroradiologist testifying for the State.
jury was given the case on February 22, 1996. As to the
charge of Murder in the first degree, the jury considered
five possible verdicts: (1) guilty as charged; (2) guilty but
mentally ill of Murder in the First Degree; (3) guilty of
Manslaughter; (4) not guilty by reason of insanity; and (5)
not guilty. As to the weapons charge, the jury considered
four possible verdicts: (1) guilty as charged; (2) guilty but
mentally ill of Possession of a Firearm during the Commission
of a Felony; (3) not guilty by reason of insanity; and (4)
deliberating, the jury returned verdicts of guilty but
mentally ill of Murder in the First Degree and guilty but
mentally ill of the weapons offense. The verdicts were
entered, a pre-sentence investigation was ordered, bail was
revoked and sentencing was scheduled for May 3, 1996. Mr.
Aizupitis then moved for a new trial. The Court denied the
motion for a new trial on April 18, 1996. The Court
sentenced Mr. Aizupitis on May 3, 1996. Under the sentencing
order, Mr. Aizupitis was committed into the custody of the
Department of Corrections ("DOC") and, thereafter,
was confined at the Delaware State Hospital (the
"Hospital"). The sentencing order also provided
that Mr. Aizupitis was to remain at the Hospital until
discharge from treatment and, upon discharge, remanded back
to DOC to serve a life sentence.
Aizupitis took a direct appeal of his conviction on June 5,
1996. During the appeal process, Trial Counsel withdrew and
the Court appointed new counsel to represent Mr. Aizupitis.
The Supreme Court affirmed the judgments of the Court on July
22, 1997. The Supreme Court issued its mandate on
August 11, 1997.
August 14, 1997, the State filed a motion to transfer Mr.
Aizupitis from the Hospital to a DOC facility. The Court then
appointed another attorney ("Rule 61 Counsel") to
represent Mr. Aizupitis. The State withdrew its motion.
Subsequently, the Court denied another request to transfer on
September 23, 1998.
February 16, 1999, Rule 61 Counsel filed the Original Motion.
The State responded on March 17, 1999. On March 17, 1999 and
April 8, 1999, Trial Counsel filed affidavits in response to
the Original Motion. On September 27, 1999, Rule 61 Counsel
submitted a letter to the Court, stating that he had reason
to believe Mr. Aizupitis was not "currently"
competent to attend any hearing on the Original Motion. The
Court ordered Mr. Aizupitis to undergo a psychiatric
evaluation. After the completion of the evaluation, the Court
continued any hearing on the Original Motion.
Mr. Aizupitis began contacting the Court for various reasons,
including to inform the Court that he wanted to disclaim any
representation by his Rule 61 Counsel. Upon request of Rule
61 Counsel, the Court appointed an attorney to act as Mr.
Aizupitis' guardian ad litem (the
February 27, 2001, the Court noted that the State continued
to provide reports that Mr. Aizupitis should be moved from
the Hospital to DOC and that Mr. Aizupitis'
representatives opposed any transfer. The Court intended to
hold a joint competency/placement hearing and, at that
hearing, also decide how to proceed with the Original Motion.
On March 31, 2001, the Guardian informed the Court that Mr.
Aizupitis was not willing to proceed on the Original Motion
until his Rule 61 Counsel was dismissed.
time, the original trial judge retired and the case was
reassigned. The Court held a status conference. On September
21, 2001, the Court ordered that Mr. Aizupitis undergo a
psychiatric evaluation by the staff of the Hospital for the
purpose of determining whether Mr. Aizupitis was competent to
proceed with the Original Motion.
February 26, 2002, the Court issued a letter order regarding
the Original Motion. The Court stayed further proceedings in
the criminal action until there was a change in Mr.
Aizupitis' mental condition. The Court further provided
that until there is a change in Mr. Aizupitis' status,
the Court would not take further action.
January 21, 2003, the State sought a competency hearing and a
transfer of Mr. Aizupitis from the Hospital to DOC. On
January 27, 2003, the Guardian submitted a letter to the
Court, requesting that Mr. Aizupitis not be transferred until
issues relating to Mr. Aizupitis' mental condition were
resolved. On January 29, 2003, Rule 61 Counsel also wrote the
Court regarding any transfer of Mr. Aizupitis from the
Hospital to DOC. The Court authorized funds for Mr. Aizupitis
to be evaluated by Dr. Raskin. Mr. Aizupitis refused to be
evaluated by Dr. Raskin.
Court held a competency hearing on September 29, 2003. The
Court took the matter under advisement. On November 25, 2003,
the Court concluded it cannot go forward on the Original
Motion without the independent evaluation by Dr. Raskin. The
Court held that, so long as Mr. Aizupitis refuses to be
examined by Dr. Raskin, the Court will hold a decision on the
Original Motion "in abeyance." The Court further
held that "if and when [Mr. Aizupitis] permits a
thorough mental health examination by Dr. Raskin, the Court
will conduct a supplemental hearing prior to rendering a
decision [on the Original Motion], it is so Ordered."
Rule 61 Counsel moved to withdraw representation due to a
conflict of interest on May 24, 2005. On June 10, 2005, the
Court appointed new counsel ("Second Rule 61
Counsel") to represent Mr. Aizupitis in connection with
the Original Motion.
February 15, 2006, Mr. Aizupitis wrote the Court. Mr.
Aizupitis requested a status update on his case. The Court
responded, reminding Mr. Aizupitis that the case was stayed
until he agreed to be examined by Dr. Raskin.
March 13, 2007, Mr. Aizupitis filed a petition for a writ of
habeas corpus (the "Petition") with the Court. The
Court denied the Petition on March 15, 2007. Mr. Aizupitis
appealed to the Supreme Court. The Supreme Court affirmed the
Court's decision to deny the Petition. In its decision,
the Supreme Court made it clear it understood the procedural
status of the Original Motion, writing:
The record reflects that, in 1996, a Superior Court jury
found Aizupitis guilty but mentally ill of first degree
murder and possession of a firearm during the commission of a
felony. This Court affirmed his convictions on direct appeal.
Since that time, Aizupitis has been confined at the Delaware
Psychiatric Center, consistent with 11 Del. C.
§ 408. In February 1999, Aizupitis filed a motion
for postconviction relief. Based on a psychiatric evaluation
performed in October 1999, the Superior Court determined that
Aizupitis was not competent to proceed in the postconviction
proceedings. In September 2001, the Superior Court ordered a
subsequent competency evaluation. The trial court stayed
disposition of the matter, however, until Aizupitis agreed to
be examined by an additional psychiatrist. In March
2007, Aizupitis filed a petition for a writ of habeas corpus
seeking review of the Superior Court's determination that
he was not competent. The Superior Court denied the writ, and
this appeal followed.
Subsequent to the denial of the Petition, the State regularly
filed psychological/psychiatric reports with the Court. Mr.
Aizupitis, however, continued to refuse to be examined by Dr.
case was subsequently reassigned on or about December 21,
2012. On June 18, 2014, the Court scheduled a status
conference with the State, the Guardian and Second Rule 61
Counsel. At the status conference, the Court noted that it
will not order the transfer of Mr. Aizupitis from the
Hospital to DOC until the State makes a formal request under
11 Del. C. § 408 and a hearing is held. The
Guardian took the position that (i) Mr. Aizupitis remained
not competent to assist counsel with the Original Motion and
(ii) the Guardian's position was probably contrary to Mr.
State filed a motion, under 11 Del. C. § 408,
to transfer Mr. Aizupitis from the Hospital to DOC, C.A. No.
N14M-10-277 EMD (the "Transfer Action"), on
November 21, 2014. Because the Transfer Action involved civil
law issues and not just criminal law issues, the Court
appointed additional counsel to represent Mr. Aizupitis in
the Transfer Action. Eventually, the Court entered a
stipulated order that transferred Mr. Aizupitis from the
Hospital to DOC.
April 16, 2015, Second Rule 61 Counsel filed a motion to
determine competency of Mr. Aizupitis to proceed with
postconviction relief. The Court granted the motion on June
2, 2015, declaring Mr. Aizupitis competent to pursue the
additional procedural practice, the Court eventually allowed
Second Rule 61 Counsel to withdraw. The Court also permitted
Mr. Aizupitis to proceed pro se on the Original
Motion. Subsequently, Mr. Aizupitis filed the Motion.
Aizupitis makes five categories of contentions for relief in
the Motion. Mr. Aizupitis first contends his constitutional
rights to a speedy and public trial and to due process have
been violated due to the length of time it has taken to
resolve the Motion (including the Original Motion). Mr.
Aizupitis' next three contentions all relate to claims of
ineffective assistance of counsel - incompetency at trial,
failure of a duty to consult and right to testify. Finally,
Mr. Aizupitis seeks relief under Rule 61 due to prosecutorial
misconduct, arguing that the State's use of the word
"rage" during closing arguments constituted legally
objectionable tactics calculated to arouse the prejudices of
State opposes the Motion. The State first argues that the
prosecutorial misconduct claim is procedurally barred. The
State next contends that Mr. Aizupitis has not demonstrated
that Trial Counsel representation fell below an objective
standard of reasonableness and there exists a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. Finally, the State argues that any delay in
resolution of the Motion is directly related to Mr.
Aizupitis' own conduct and, therefore, his rights to due
process have not been violated.
addressing the merits of a Rule 61 motion for postconviction
relief, the Court must first determine whether Mr. Aizupitis
has satisfied the procedural requirements of Rule
61.As of February 16, 1999, Rule 61(i)
established four procedural bars to postconviction relief:
(1) a motion for postconviction relief may not be filed more
than one year after the judgment of conviction is final; (2)
any ground for relief not asserted in a prior postconviction
proceeding is barred; (3) any ground for relief not asserted
in the proceedings leading to the judgment of conviction is
barred; and (4) any ground for relief previously adjudicated
in any proceeding is barred.
procedural bars contained in Rule 61(i)(1-4) may be rescinded
only if there is a means by which to do so in the applicable
subsection of Rule 61. Absent such relief, Rule 61 (i)(5)
provides additional reprieve from the procedural bars
described in Rule 61 (i)(1-3).Under Rule 61 (i)(5),
"[t]he bars to relief in paragraphs (1), (2), and (3) of
this subdivision shall not apply to a claim that the court
lacked jurisdiction or to 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."
Court finds that the Mr. Aizupitis contentions regarding
ineffective representation by Trial Counsel are not
procedurally barred under Rule 61(i)(1-4). As discussed
below, the Court does find the Motion's contention
regarding prosecutorial to be procedurally barred under Rule
Mr. Aizupitis' Constitutional Rights to a Speedy and
Public Trial and to Due Process Have Not Been
Aizupitis contends his constitutional rights to a speedy and
public trial and to due process under the Sixth Amendment of
the U.S. Constitution (defined by Mr. Aizupitis as the
"Speedy Trial Clause") have been violated due to
the length of time it has taken to resolve the Motion
(including the Original Motion). Mr. Aizupitis, however,
relies on a line of cases that ...