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Atiello v. State

Supreme Court of Delaware

August 29, 2017

ANTHONY ABB ATIELLO, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: August 23, 2017

         Court Below-Superior Court of the State of Delaware Cr.ID. No. 1505015619 (N)

          Before VAUGHN, SEITZ, and TRAYNOR, Justices.

          ORDER

          GARY F. TRAYNOR JUSTICE.

         This 29th day of August, 2017, upon consideration of the briefs of the parties, it appears to the Court that:

         (1) A Superior Court jury found the appellant, Anthony Abbatiello, guilty of Attempted Assault in the First Degree, Home Invasion, Robbery in the First Degree, four counts of Possession of a Firearm During the Commission of a Felony, Reckless Endangering in the First Degree, Possession of Firearms and Ammunition by a Person Prohibited, and several traffic offenses. Following a pre-sentence investigation, the Superior Court sentenced Abbatiello cumulatively to fifty-three years of Level 5 incarceration, suspended after approximately forty-six years and six months, for decreasing levels of probation. This is Abbatiello's direct appeal.

         (2) Abbatiello seeks reversal of his convictions on two grounds, neither of which he raised in the Superior Court. First, he argues that, during his trial, the State threatened-and thereby interfered with his right to call-potential alibi witnesses. Second, he complains that the prosecutor improperly interjected her personal opinion and vouched for the credibility of a witness in her closing argument. We find no merit in these arguments and therefore affirm Abbatiello's convictions.

         (3) At trial, the State presented evidence that, on May 9, 2015, an intruder rushed into a motel room occupied by Carla Weston, pulled a gun, and demanded money. Weston complied and, after also taking Weston's purse and cellphones, the intruder fled. Weston then ran out of the room, yelling to a nearby crowd that she had been robbed.

         (4) As Weston and others pursued the robber, he turned back and fired at least three shots in their direction. He then got into a black Mercedes sport utility vehicle and left the scene. Weston reported that the vehicle had a Delaware license plate number of P/C 19805. Weston also provided a description of the robber and his clothing that was consistent with a motel surveillance video, which captured the robber fleeing Weston's room with the purse and gun and the ensuing chase in the parking lot.

         (5) Delaware State Police investigators determined that a Delaware license plate number of P/C 198056-nearly identical to the number provided by Weston- had been issued to a 2011 black Mercedes sport utility vehicle. The investigators later determined that a man named Bernard Bryant had been given a speeding ticket while driving that vehicle about one-and-a-half hours after Weston was robbed. Phone records showed that there was attempted contact between cellphones linked to Abbatiello and Bryant on the night before and the morning of the robbery.

         (6) Based on Weston's physical description of the robber and the surveillance video, police created a photographic lineup, which included Abbatiello. Police showed the lineup to Weston who then identified Abbatiello as the man who robbed her.

         (7) Several days after the robbery, police went to Abbatiello's residence to conduct a search. As the police arrived, Abbatiello fled the residence and drove off in a vehicle. Back at Abbatiello's residence, police collected articles of clothing that were consistent with the clothing worn by the man who robbed Weston.

         (8) In addition to the evidence described above implicating Abbatiello in the crime, Abbatiello's podmate in prison testified that Abbatiello admitted to him that he had robbed a woman at the motel. The podmate said that Abbatiello also confessed to having a gun and firing it three times at a pursuing male but that he planned to call alibi witnesses.

         (9) Abbatiello did in fact call two alibi witnesses, both of whom placed Abbatiello in Philadelphia at the time of the robbery. Abbatiello also testified that he was in Philadelphia on the day in question.

         (10) Abbatiello first argues that the State interfered with his right to present additional alibi witnesses by threatening a perjury prosecution if they testified. This prosecutorial misconduct, Abbatiello argues, violated his due-process rights under the Fourteenth Amendment and his ...


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