Submitted: March 6, 2019
Below: Superior Court of the State of Delaware Cr. ID. No.
VAUGHN, SEITZ, and TRAYNOR, Justices.
Collins J. Seitz, Jr. Justice.
16th day of April, 2019, having considered the briefs and the
record below, and following oral argument, it appears to the
After a seven-day trial, a Superior Court jury convicted Jose
Moreta of murder and related charges for his role in the
shooting death of Christian Serrano and the wounding of Jerry
DeLeon following a confrontation in the City of Wilmington.
On appeal, Moreta argues the Superior Court erred by (a)
admitting into evidence a Facebook post by his accomplice,
Joshua Gonzalez, two days after the shooting, and (b) not
intervening to correct the prosecutor in response to his
allegedly improper statements during summation. After a
careful review of the record, we find the trial court acted
within its discretion and affirm Moreta's convictions.
March 17, 2016, Moreta and Gonzalez chased Hector Guzman
through the streets of Wilmington. Apparently, there was
"bad blood" between Moreta and Guzman. Christian
Serrano and Jerry DeLeon-who were friends of Guzman-heard
about the chase, and confronted Moreta and Gonzalez. Moreta
told Gonzalez to "hit" DeLeon, which testimony
suggested meant "shoot him." But DeLeon
punched Moreta before Gonzalez acted. Moreta and Serrano then
walked away. While they walked up the street, shots were
fired in their direction. DeLeon was shot in the arm and
Serrano was fatally shot in the head. Moreta and Gonzalez
fled the scene.
Wilmington Police Officer heard the shots, spotted Moreta,
and gave chase. Within minutes the police apprehended Moreta
inside a house after he told the residents not to tell the
police he was hiding under the bed. In the house the police
also found Moreta's black hooded sweatshirt, which he was
seen wearing when confronting DeLeon and Serrano. Gonzalez
fled in an opposite direction and evaded arrest that
Although it was not clear from testimony whether Moreta or
Gonzalez fired a gun, Moreta's right palm tested positive
for gunshot residue. The police also discovered a firearm in
a backyard on the street where Moreta and Gonzalez fled. The
gun matched one of the firearms used in the shooting. Various
surveillance cameras captured the events leading up to the
gunfire, although none recorded the actual shooting.
I am going to allow the other evidence in with respect to the
text messages and the Facebook posts. There's a
conspiracy and accomplice liability, so the information
regarding the MOET squad. . . . But we'll have to make an
instruction at the time that it's being offered not for
the truth of the matter asserted but is being used for other
purposes in the case. . . . I actually read one of the cases
where this was discussed. I guess it's the
Williams case. The judge gave a limiting
instruction almost identical, Williams v. State, and
the judge created an instruction saying it's not being
offered for the truth of the matter asserted. In Williams
v. State I think the judge actually found the conspiracy
lasting - I'm not sure it's as relevant as it is in
this case, actually. In that case, there was a question of
whether the conspiracy was still ongoing. Mr. Gonzalez at
this point has absconded from the scene, and this is just two
days later and it's still part of the whole situation
that's going on in the case. So, the gun's missing at
this point, still. And the State has the conspiracy and the
accomplice liability, and that's where the relevance of
this information comes from. And I do find that the relevance
is not substantially outweighed by the probative value. . . .
But I think it's different with the MOET squad or MOET
Boys. There is conspiracy and accomplice liability.
There's going to be testimony about - I can't
remember the name, but Mr. Moreta is more the leader and
there's an indication it's going to be related to his
name. So I think, in that instance, that there's
relevance and it's not substantially outweighed by the
prejudicial effect. There isn't a gang charge in this
case, but there is an accomplice liability and a conspiracy,
and showing a connection between the two shows that they got
together to come up with a course of action.
trial judge instructed the jury it could only consider the
post for the limited purpose of accomplice liability and
conspiracy. The Superior Court sustained defense objections
to a video and picture that were deemed too prejudicial and
ordered some text submissions to be partially
appeal, Moreta argues that the Superior Court erred in
post into evidence because it was hearsay and did not fit
within the exception to hearsay for statements made by a
co-conspirator in furtherance of a conspiracy. According to
Moreta, Gonzalez posted the text well after the crime was
completed, ending the conspiracy. The State responds that the
text is not hearsay and thus no exception is required for
admission into evidence because the text was not used to
prove the truth of the matter asserted. Instead, the State
used the text to establish the connection between Moreta and
Gonzalez. We review for abuse of discretion.
of court statements are hearsay if they are "offer[ed].
. . to prove the truth of the matter asserted in the
statement." We agree with the trial judge that the
post was not offered by the State to prove the truth of the
matter asserted in the post-do not mess with the M.O.E.T.
group in the future or you could end up dead. Instead, the
State used Gonzalez's Facebook post and an Instagram post
by Moreta to respond to Moreta's claim that he was not
associated with Gonzalez at the time of the
shooting. The two posts used the same hashtags and
referred to M.O.E.T.Thus, the Facebook post assisted the
State in proving accomplice liability and a conspiracy. To
mitigate prejudice to Moreta-where the jury might imply that
Moreta and Gonzalez had shot someone recently-the court gave
a limiting instruction telling jurors to confine their use of
the post to accomplice liability and
conspiracy. Thus, the Superior Court did not err ...