Submitted: June 5, 2019
Below: Superior Court of the State of Delaware ID. No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
T. VAUGHN, JR. JUSTICE.
30th day of July 2019, upon consideration of the
parties' briefs and the record on appeal, it appears
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
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.
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], "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
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.
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." According to
Lara, he "stopped in the door" and "asked if
[Hernandez-Cruz] was there." 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." 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]."
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.
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." 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." 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." 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."  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
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 ...