Submitted: August 21, 2019
Below: Superior Court of the State of Delaware Cr. ID. No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
T. VAUGHN, JR. JUSTICE.
14th day of October 2019, upon consideration of
the briefs of the parties and the record of the case, it
appellant, Ivan Galindez, appeals from a Superior Court jury
verdict finding him guilty of Robbery in the First Degree,
Assault in the First Degree, two counts of Possession of a
Deadly Weapon During the Commission of a Felony, and Criminal
Mischief. He makes two claims on appeal. First, he contends
that the Superior Court abused its discretion by declining to
give an eyewitness identification instruction in the form he
requested. Second, he contends that the prosecutor improperly
vouched for an eyewitness's credibility in his closing
argument. We reject Galindez's contentions and affirm.
December 12, 2017, at approximately 9:00 p.m., Jorge Luis
Franco Martinez was returning to his parked vehicle when a
man approached him and asked for money. When Franco Martinez
said he did not have any money, the man hit him in the face
and head with a metal object (possibly brass knuckles)
multiple times, eventually knocking him to the ground. He
managed to get up and run back to his car. But after he
entered his car, the man punched out the car's window and
demanded money while putting a pointed object to his neck.
Franco Martinez then turned over his money and the man fled.
Franco Martinez and his wife saw the man who robbed him the
next day in the same area. The man was dressed the same way,
and he laughed at Franco Martinez when he saw him. Franco
Martinez (or his wife) used a cellphone to take a picture of
the man. They later provided the photograph to the police.
Soon thereafter, based on the photo, the police arrested
Galindez. He was charged by indictment with the
After the police arrested Galindez, Franco Martinez was
presented with a six-pack photo array with one of the photos
being of Galindez. He immediately marked Galindez'
photograph. This photo array was introduced at trial.
Sometime later, Franco Martinez was arrested in an unrelated
matter and saw Galindez in prison. Galindez laughed at him
and said, "It is you. You see how small the world
is." Galindez also told him not to testify.
trial Franco Martinez testified to the foregoing, explained
that he saw Galindez's face clearly the night of the
attack, and identified Galindez in court as his assailant.
eyewitness to the attack, Ricardo Canongo, also testified at
trial. He testified that the man pictured in the photograph
taken by Martinez (or his wife) the day after the attack
(which had been admitted into evidence) was the man who
assaulted and robbed Franco Martinez. He also gave his account of
the attack, which was substantially consistent with Franco
his rebuttal argument, the prosecutor sought to rebut an
argument made by Galindez's attorney in his closing that
Canongo was not credible because he did not initially give
his account of the incident to the police:
Now, Mr. Canongo told you that he was across the street and
he saw this play out. . . . He also said, I didn't tell
the police I saw the attack because I was afraid. I have kids
and a wife. It's not crazy to think that a man who lives
in an area which does have high crime and a man who witnessed
an assault, a man who witnessed a robbery doesn't want to
come forward and testify but was subpoenaed by our office and
was asked ...