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State v. Aizupitis

Superior Court of Delaware

February 19, 2019

STATE OF DELAWARE
v.
VARIS AIZUPITIS, Defendant.

          Date Submitted: November 21, 2018

         Upon Consideration of Defendant's Motion for Postconviction Relief DENIED.

          James V. Apostolico, Esq., and Andrew J. Vella, Esq., Department of Justice, Wilmington, Delaware. Attorney for the State.

          Varis Aizupitis, Pro se.

          Eric M. Davis, Judge.

         INTRODUCTION

         This is 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.

         On July 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.

         On 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.

         BACKGROUND

         Mr. Aizupitis was arrested on July 4, 1995, for the murder of Elizabeth Henderson.[1] 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."[2] 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.

         On July 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 Felony.

         From 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.[3] 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.

         The 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) not guilty.

         After 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.[4] 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.

         Mr. 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.[5] The Supreme Court issued its mandate on August 11, 1997.

         On 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.

         On 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.

         Subsequently, 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 "Guardian").

         On 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.

         At this 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.

         On 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.

         On 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.

         The 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."

         The 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.

         On 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.

         On 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.[6]

          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. Raskin.

         The 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. Aizupitis' wishes.

         The 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.

         On 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 Original Motion.

         After 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.

         THE MOTION

         Mr. 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 the jury.

         The 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.

         LEGAL STANDARD

         Before 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.[7]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.[8]

         The 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.[9] Absent such relief, Rule 61 (i)(5) provides additional reprieve from the procedural bars described in Rule 61 (i)(1-3).[10]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."[11]

         The 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 61(i)(3).

         DISCUSSION

         A. Mr. Aizupitis' Constitutional Rights to a Speedy and Public Trial and to Due Process Have Not Been Violated.

         Mr. 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 ...


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