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Lara v. State

Supreme Court of Delaware

July 30, 2019

GABINO LARA, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: June 5, 2019

          Court Below: Superior Court of the State of Delaware ID. No. 1804014265 (S)

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.



         On this 30th day of July 2019, upon consideration of the parties' briefs and the record on appeal, it appears that:

         (1) The appellant, Gabino Lara, appeals from a Superior Court jury verdict finding him guilty of Assault in the Third Degree. He raises one claim on appeal. He contends that the State's rebuttal argument violated his due process right to a fair trial under the Fifth and Sixth Amendments to the U.S. Constitution. Specifically, he contends that the State's rebuttal argument contained an improper comment that infringed on (1) his right to remain silent prior to giving his testimony at trial and

         (2) his right to counsel. The Superior Court erred, he argues, in not granting his motion for a mistrial. We find no merit to his contention and affirm.

         (2) On the morning of April 22, 2018, Francisco Hernandez-Cruz and his wife were walking home when four or more men, including Lara, passed them in a slowly moving vehicle and allegedly shouted insults about Hernandez-Cruz's wife. According to Hernandez-Cruz's testimony at trial, two different people in the vehicle yelled vulgar and offensive things about his wife. Lara, in his trial testimony, disputed this, saying neither he nor anyone else in the car said anything vulgar or offensive. Hernandez-Cruz then approached the vehicle. At trial, a dispute existed as to exactly what happened at that point: Hernandez-Cruz testified that Lara, using a particular Spanish dialect, told him he was "going to beat the crap out of [him], "[1]while Lara testified that he held out his hand to greet Hernandez-Cruz. It was undisputed that Hernandez-Cruz hit Lara in the face and the vehicle then sped away.

         (3) Thirty minutes to an hour later, Hernandez-Cruz was in his living room when he saw the same vehicle pull up to his house with the same men. As with the first incident, exactly how it played out from this point was disputed at trial. Hernandez-Cruz testified that, as a friend of his left the house, Lara entered the house and started fighting Hernandez-Cruz in the living room. He further testified that Lara quickly pulled a knife from behind his back and tried to stab him and that he was cut on the arm as he tried to defend himself. He explained that during the fight, Lara fell to the ground and he hit Lara while Lara was on the ground. Hernandez-Cruz's wife then came into the room, separated them, pushed Lara out of the house, and called the police.

         (4) Lara, on the other hand, testified that he returned to Hernandez-Cruz's house after the first incident to ask Hernandez-Cruz why he hit him earlier, because they had previously been friendly and Lara had not said anything offensive. Lara testified that after he knocked on the door, Hernandez-Cruz's friend, who was also a friend of Lara's, "opened the door."[2] According to Lara, he "stopped in the door" and "asked if [Hernandez-Cruz] was there."[3] Although the friend said Hernandez-Cruz was not there, Hernandez-Cruz came into the room within a few seconds. Lara explained that he asked Hernandez-Cruz why he hit him and that Hernandez-Cruz said "I did it and I'm going to f[] you up again. And I said, no, I'm asking you why did you hit me. And that's when he came toward me and started beating me and I just tried to defend myself."[4] According to Lara, he ended up on the floor while Hernandez-Cruz continued to beat and kick him. Lara then took out a knife that was in his waistband "[b]ecause [Hernandez-Cruz] had [him] on the floor and he was hitting [him] and [Lara] couldn't get [Hernandez-Cruz] off of [himself]."[5]

         (5) Later that day, Lara was arrested and charged with Assault in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony, Home Invasion, Aggravated Menacing, and Disorderly Conduct.

         (6) At trial, Lara's counsel gave an opening statement in which he said, among other things, that the evidence would show that Hernandez-Cruz's friend "let[] [Lara] in" the house and "[t]here [was] no forced entry."[6] During Lara's cross-examination, in response to questions as to whether the fight occurred inside or outside of the house, Lara testified that Hernandez-Cruz "pulled [him] into the house."[7] In his closing and rebuttal arguments, the prosecutor commented on the perceived inconsistency between defense counsel's statement that Lara had been "let in" the house and Lara's testimony that he had been "pulled into" the house. For example, in his rebuttal argument, the prosecutor said, "[defense counsel], when he got up in his opening in the preview, no anticipation that the defendant was going to testify that he got pulled in. First time heard that on the stand."[8] Lara objected to this statement in the State's rebuttal argument and moved for a mistrial on the ground that it was an "intrusion into the attorney-client relationship and attorney-client privilege" and it violated his "Fifth Amendment and Delaware constitutional right to be free from self-incrimination privilege." [9] The trial judge overruled the objection and denied the mistrial. Ruling from the bench, the trial judge explained:

[Defense counsel], I told you in the beginning when this came up earlier that you were going to be held, just like the prosecution is held to whatever it makes in its opening statements.
This is a very important fact here. The defendant gets up there and says, well, I never left the doorway. He understands how important this is. That wasn't addressed in your opening statement. I told you before, you say what you say ...

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