IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY ABBATIELLO, §
§
Defendant BeloW, § No. 386, 2016
Appellant, §
§ Court BeloW_Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID. No. 1505015619 (N)
§
Plaintiff BeloW, §
Appellee. §

Submitted: August 23, 2017
Decided: August 29, 2017

Before VAUGHN, SEITZ, and TRAYNOR, Justices.
0 R D E R

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 right to compulsory process for obtaining
witnesses under the Sixth Amendment.

(11) The purported threat was made shortly after the prosecutor had
disclosed to Abbatiello’s lawyer that she intended to call Abbatiello’s podmate, who,
she believed, would recount the substance of his conversation with Abbatiello,
including his admission to the robbery and, notwithstanding the admission, his
intention to call alibi witnesses During a sidebar conference, the prosecutor alerted
the trial judge to the State’s intention to call the podmate and that “from [defense
counsel’s] point of view . . . it opens up his alibi Witnesses to perjury charges, which
he now has to address with them.”l The prosecutor also told the court that the State
was willing to extend a revised plea offer and that she understood that defense
counsel wanted an opportunity to review the revised offer With Abbatiello and to

discuss the anticipated testimony from the podmate with the defense alibi Witnesses.

 

1 App. to Opening Brief at A35-36.

Defense counsel agreed with the prosecutor’s description of the state of play.

(12) The next day, defense counsel described his conversation with the
witnesses as follows:

I did share With the witnesses that the State advised me that if they were

to testify as alibi witnesses, depending upon the outcome of the trial,

that they Would be, possibly, risking a perjury charge, because l believe

it’s the State’s position that they are not being candid With their

testimony.2

(13) Because Abbatiello did not object to this alleged prosecutorial
misconduct at trial, we review it for plain error.3 “In a plain error review of
prosecutorial misconduct, we first review the record de novo to determine whether
misconduct occurred. If we determine that no misconduct occurred, our analysis
ends.”4 lf we find misconduct, then “[u]nder the plain error standard of review, the
error complained of must be so clearly prejudicial to substantial rights as to
jeopardize the fairness and integrity of the trial process.”5 Plain error review is
“limited to material defects Which are apparent on the face of the record, which are

basic, serious, and fundamental in their character, and which clearly deprive an

accused of a substantial right, or which clearly show manifest injustice.”6

 

2lar atAzs.
3 Supr. Ct. R. 8; Goa’dard v. State, 382 A.2d 238, 242 (Del. 1977).
4 Torres v. State, 979 A.Zd 1087, 1094 (Del. 2009) (footnotes omitted).
: Waz'nwrl'ght v. State, 504 A.2d 1096, 1100 (Del. 1986).
Id.

5

(14) In Torres v. State,7 we applied the test announced by the Sixth Circuit
Court of Appeals in Unz`ted States v. Pierce,8 to a claim similar to that raised by
Abbatiello here. Under the Pz'erce test, a prosecutor’s statements “must amount to a
substantial interference with a witness’s free and unhampered determination to
testify before a due process violation will be found.”9 Here, the prosecutor’s
comments did not amount to “substantial interference” nor do they support an
inference that they Were intended “to coerce [Abbatiello’s witnesses] into silence.”10
Rather, the State was merely notifying the trial court and defense counsel that it had
its own Witness whose testimony would contradict Abbatiello’s alibi witnesses If
those alibi witnesses Were to testify, they could perjure themselves and expose
themselves to potential prosecution. “Where the prosecutor merely provides the
witness with a truthful warning there is no constitutional violation.”ll The State’s
comment was a permissible warning. We therefore find no merit to Abbatiello’s
claim that the prosecutor’s comments deprived him of due process.

(15) Next, Abbatiello argues that the prosecutor’s improper comments
during closing argument violated his right to a fair trial. Abbatiello did not object to

these comments and therefore they, like the prosecutor’s comments previously

 

7 979 A.2d at 1095.

8 62 F.3d 818, 832 (6th Cir. 1995).

9 Torres, 979 A.2d at 1095.

10 See Pierce, 62 F.3d at 832 (quoting Um`ted States v. sz`th, 997 F.2d 674, 680 (10th Cir. 1993)).
11 Um'tea’ States v. Gardner, 288 F.3d 878, 881 (7th Cir. 2001) (internal quotation marks omitted).

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discussed, are reviewed under the plain-error standard.

(16) First, Abbatiello argues that the prosecutor improperly interjected her
personal opinion into her closing argument when she argued that “the surveillance
video shows it Was the defendant.”12 As we stated in Kirkley v. State:

This Court has consistently reaffirmed that the prosecutor is allowed to

argue all legitimate inferences of the defendant’s guilt that follow from

the evidence. The inferences, however, must flow from the evidence

presented Conceptually, improper vouching occurs when the

prosecutor implies personal superior knowledge, beyond What is
logically inferred from the evidence at trial.13

(17) Here, the prosecutor merely argued what could be inferred from the
surveillance video and Weston’s description of the robber_that the individual in the
surveillance Was the man Weston identified as the robber. The prosecutor’s
statement did not imply superior knowledge She argued an inference that could be
logically inferred from the evidence presented at trial.14 Therefore, we find that this
comment was not improper.

(18) Second, Abbatiello argues that the prosecutor improperly vouched for

the credibility of Abbatiello’s podmate when she stated in closing argument that “he

[the podmate] told the truth about what the defendant told him.”15 This last

 

12 App. to Answering Br. at B144.

13 41 A.3d 372, 377 (Del. 2012) (intemal citations omitted).

14 See Dam'els v. State, 859 A.2d 1008, 1012 (Del. 2004) (“[B]oth sides [are] free to argue the
inferences Which could be drawn by the jury from the evidence.”).

15 App. to Answering Br. at B148.

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comment, Abbatiello argues, was improper because it “directly implicated the
credibility of a witness who provided critical evidence in the prosecution [sic]
case.”16 Abbatiello argues that this comment deprived him of a fair trial because his
podmate’s credibility was a central component to the State’s case.

(19) The State concedes that its “presentation regarding [Abbatiello’s
podmate] was admittedly inartful.”17 We agree. lt is difficult to distinguish the
statement that the podmate “told the truth about what [Abbatiello] told him” from
the prosecutor’ s statements in Whittle v. State,18 in which we held that a prosecutor’s
repetitive description of witnesses’ testimony as “righ ” constituted improper
vouching for the credibility of those witnesses

(20) But Whittle involved repetitive vouching; indeed, the Court found that
“a broader, overarching theme of improper vouching . . . permeated the prosecutor’s
entire closing argument.”19 This is not the case here. Abbatiello has complained of
only one isolated comment that was arguably a logical and proper inference drawn
from the evidence.

(21) Even conceding arguendo that the isolated comment was improper, We

do not find plain error under Wainwright. Improper vouching is more likely to be

 

16 Opening Br. at 18.

17 Answering Br. at 36.

18 77 A.3d 239 (Del. 2013).
19 Ia'. at 247.

plain error where Witness credibility is central in a “close case” and where the error
is so egregious that the trial judge should have intervened sua sponte20 The mere
facts that Abbatiello took the stand, denied guilt, and put on alibi witnesses do not,
in and of themselves, make this a close case. There was sufficient evidence,
independent of the podmate’s account of Abbatiello’s jailhouse admissions, to link
Abbatiello to the robbery: eyewitness testimony from Weston and others at the motel
corroborated the surveillance video; Weston selected Abbatiello from the police
lineup; phone records demonstrated that Abbatiello had contacted Bryant the day of
the robbery, and vehicle records supported the conclusion that Bryant’s l\/Iercedes
was the getaway vehicle; when the police arrived at his residence to conduct a search,
Abbatiello fled_conduct typically associated with a consciousness of guilt; and
clothing seized from Abbatiello’s residence was consistent with Weston’s
description of the robber and the surveillance video. The podmate’s testimony was
merely corroborative of this evidence. As such, the prosecutor’s comment that the
podmate “told the truth about what the defendant told him” was not “so clearly

prejudicial to substantial rights” to constitute reversible error, nor was it a repetitive

 

20 Clayton v. State, 765 A.2d 940, 944 (Del. 2001). See also Baker, 906 A.2d 139, 151 (Del. 2006).
Baker abandoned the notion that plain error exists only where “defense counsel’s failure to object
is so inexcusable, that a trial judge, in the interest of fundamental fairness has no reasonable
alternative other than to intervene sua sponte and declare a mistrial or issue a curative instruction.”
The Court noted that this “sua sponte intervention standard” is essentially an unnecessary gloss on
the Waz'nwright standard

9

error that cast doubt on the integrity of the judicial process21
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.
BY TI-[E COURT:

/s/ Garv F. Travnor
Justice

 

21 See Baker, 906 A.2d at 150 (In our review of prosecutorial-misconduct claims, “if We conclude
that the misconduct would not warrant reversal under the Waz'nwrz'ght [plain-error] standard, we
proceed to apply Hunter as the third analytical step and consider whether the prosecutor’s
statements are repetitive errors that require reversal because they cast doubt on the integrity of the
judicial process.”) (citing Hunter v. State, 815 A.2d 730 (Del. 2002)).

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