Torres v. State

• Decision Date: 24 August 2009
• Docket Number: No. 12, 2009.,12, 2009.
• Parties: Angel TORRES, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.
• Court: United States State Supreme Court of Delaware

979 A.2d 1087

Angel TORRES, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.

No. 12, 2009.

Supreme Court of Delaware.

Submitted: July 29, 2009.

Decided: August 24, 2009.

Court Below: Superior Court of the State of Delaware in and for New Castle County. ID No. 0611014952.

Upon appeal from the Superior Court. AFFIRMED.

Michael W. Modica, Esquire, (argued) Wilmington, Delaware for appellant.

James T. Wakley, Esquire and Danielle J. Brennan, Esquire (argued), Department of Justice, Wilmington, Delaware for appellee.

Before STEELE, Chief Justice, BERGER, and RIDGELY, Justices.

RIDGELY, Justice.

Defendant-Appellant Angel Torres appeals from his Superior Court conviction for two counts of trafficking cocaine over 100 grams and two counts of delivery of cocaine. Torres makes six arguments on appeal. First, he contends that the prosecutor improperly threatened a witness who provided favorable testimony for Torres, by stating to the witness during redirect examination: "one lie gets you another ten years in prison." Second, Torres argues the prosecutor vouched for the credibility of that same witness by emphasizing the consequences of a lie under his plea agreement. Third, Torres contends the trial court erred by denying his motion for judgment of acquittal because the State failed to introduce sufficient evidence to find that the "substance" in question was cocaine and that it weighed over 100 grams. Fourth, he contends that the trial court abused its discretion under Delaware Rules of Evidence 403 and 404(b) by allowing the State to admit evidence of a separate drug transaction. Fifth, Torres contends that the trial court committed plain error by admitting his prior history of illegal cocaine transactions, because it violated the court's prior orders and directions excluding such evidence. Finally, he argues the cumulative effect of all the errors deprived him of a fair trial. We find no merit to his arguments and affirm.

I. Facts and Procedural History

Torres was charged with multiple drug related offenses stemming from drug transactions with Raul Morales. The case against Torres centered on three transactions in which Torres allegedly supplied cocaine for Morales, a cocaine dealer who was under surveillance by the Delaware State Police (the "DSP"). In October 2006, the DSP set up a wiretap on Morales's phone and placed a Global Positioning System ("GPS") tracking device in his truck. During their surveillance of Morales, the DSP intercepted phone conversations between Morales and Torres, which led them to conduct surveillance on Torres as well. At trial, the State's primary evidence consisted of recorded conversations between Morales, Torres, and Mark Grillo (a prospective buyer), suggesting proposed drug transactions.

On October 21, 2006 the DSP intercepted a phone call between Torres and Morales at approximately 1:00 p.m. During that call, Torres asked Morales: "Is your driveway cleaned?" Morales responded that his truck was parked in the driveway. When Torres asked for it to be moved, Morales suggested that he would come to him, because someone was working on his house. The DSP then followed Morales to Torres's home, which was now also under surveillance, and observed Morales walk into the home, stay awhile, and then leave.

Two hours later Morales called Torres and stated "I measured those things and they were all off." Torres, sounding concerned, replied "oh hell no." Morales confirmed his prior statement and said "on each thing, with the thing, it was 404." Torres, apparently growing more concerned, instructed Morales on how to weigh the substance: "Listen to me. Listen to me. Each one, they're doubled right? You gotta take them out of one and throw them—just one without plastic is 126 even...."¹ Morales then informed Torres he was playing a prank on him, and that the weight of the substance was not an issue. At trial, Morales testified that he received 500 grams of cocaine from Torres on October 21; however, police never recovered the cocaine from the delivery.

On October 25, 2006, Grillo called Morales to see if he could "set something up maybe for like tomorrow or Friday." Grillo placed an order for eighteen ounces (approximately half a kilogram) with Morales. Morales accepted the order and agreed to make the delivery two days later. Morales then called Torres to order a half-kilogram of cocaine to be ready by October 27. On October 27, Torres called Morales to inform him the cocaine would be separated in plastic bags and ready for delivery by 2:00 p.m., but at about 2:00 p.m., Torres called Morales to inform him the full order would not be delivered. Morales agreed to make up the difference from his own supply and Torres delivered the cocaine to Morales around 5:30 p.m. At trial, Morales testified that he received "a little less than 500 grams" of cocaine from Torres on October 27. On November 4, the DSP executed a search warrant at Grillo's home and seized 434.12 grams of cocaine.

On November 1, 2006, Michael Willhide called Morales requesting to purchase a kilogram of cocaine. After ending his conversation with Willhide, Morales called Torres requesting an "entierro," which Morales explained meant "a whole key" or a kilogram of cocaine. Morales then picked up the requested cocaine in Philadelphia and delivered it to Willhide in Newark. The DSP later searched Willhide's home and discovered more than a kilogram of cocaine.

Torres was arrested and indicted for two counts each of trafficking cocaine in excess of 100 grams and delivery of cocaine, stemming from the October 21 and 27 drug transactions. Torres was not charged in connection with the November 1 transaction; however, the State provided notice that it intended to present the November 1 transaction as evidence of uncharged misconduct pursuant to D.R.E. 404(b) to show a "common scheme or plan." Torres objected and the trial judge ruled that the uncharged transaction was "relevant to the motive and plan" and that it was not unfairly prejudicial.

The State's primary witness at trial was Morales, who had entered into a plea agreement with the State in which he would receive sentencing consideration in exchange for providing substantial assistance in identifying his co-conspirators and testifying truthfully at their trial. Morales testified that he got his cocaine supply from Torres and, after hearing several recordings of phone calls, testified that he made pickups from Torres on October 21 and October 27. However, on cross-examination, Morales testified that he did not recall any drug transactions with Torres on October 21 or on October 27, and explained that he would have to hear the phone calls from those dates. Upon inquiry by defense counsel, Morales also admitted that, under his plea agreement with the State, he faced spending the rest of his life in jail if he failed to tell the truth.

On redirect, the prosecutor embarked on the following line of questioning:

Q: Mr. Morales, let's—to borrow the parlance, let's cut through everything now. One lie gets you another decade.—

* * *

Q: One lie gets you another ten years in prison, is that your understanding?

A: Yes.

Q: That's what's at risk with your testimony here today.

A: Right.

Q: You don't know if that's going to be pulled, but one lie could pull it and everything is done.

A: Right.

Immediately following this exchange, the prosecutor played a recording of two phone calls between Torres and Morales. Morales subsequently identified one recording as pertaining to the delivery of 500 grams of cocaine from Torres on October 21, and the other as pertaining to the delivery of "a little less than 500 grams" of cocaine from Torres on October 27. Then, in response to the prosecutor's question, Morales admitted that on October 21 and October 27 he received half a kilo of cocaine in Delaware.

During summation, the prosecutor again addressed the plea agreement Morales made with the State:

Raul Morales pled guilty. He came in here to testify, having pled guilty, and he agreed to testify with a larger prison sentence looming over his head if he were not truthful. [The trial judge] just told you that you are the sole judges of the credibility of the witnesses and that you can give credit to those portions of the testimony that you believe and you can disregard those portions of the testimony you find not to be credible.

The State would suggest to you that Raul Morales came in here trying to walk a tightrope, a tightrope of his own making on which his faith and that of his buddy Angel Torres rested. He had to testify truthfully, but he did not want to throw his lifelong friend off of his tightrope, so he tried not to remember. He tried to wiggle, he tried to mumble, but when he was asked by [defense counsel] "Cut to the chase, did you make drug transactions with Angel Torres on October 21st and October 27th," your recollections will be what is important, but the State would suggest Raul Morales' answer was "I'd have to listen to the phone calls." And he's right, the phone calls tell it.

In Torres's summation, defense counsel also highlighted Morales' plea agreement to show that Morales was biased:

Raul Morales, under oath, and with his, basically looking at life in prison, testifies I can't remember that that happened that day. And the phone calls themselves show that there was so many different things going on probably in so many different places, that he's probably absolutely right.

Now, it wasn't until on cross [the prosecutor] reminded Mr. Morales that, something to the effect of, [s]o you have ten years hanging in the balance here, so did Angel Torres give you drugs on that day? And the answer, of course, was yes. But again, the State avoided asking really what this is about, when and— well, not when on that case, but where, where did it happen, because they didn't want to hear the answer.

On rebuttal, the prosecutor again addressed the plea agreement: You...