               IN THE SUPREME COURT OF THE STATE OF DELAWARE


JAMES E. COOKE,                                    §
                                                   §
          Defendant-Below,                         §       Case Nos: 519, 2012 & 526, 2012
          Appellant,                               §                     Consolidated
                                                   §
          v.                                       §       Court Below: Superior Court
                                                   §       of the State of Delaware, in
STATE OF DELAWARE,                                 §       and for New Castle County
                                                   §       Cr. ID No. 0506005981
          Plaintiff-Below,                         §
          Appellee.                                §
                                                   §

                                     Submitted: May 7, 2014
                                     Decided: July 24, 2014


Before STRINE, Chief Justice, HOLLAND, BERGER, and RIDGELY, Justices,
and JACOBS, Justice (Retired),∗ constituting the Court en Banc.


Upon appeal from the Superior Court. AFFIRMED.


Anthony A. Figliola, Jr., Esquire, Figliola & Facciolo, Wilmington, Delaware;
Peter W. Veith, Esquire, Wilmington, Delaware, Attorneys for Appellant.


Maria T. Knoll, Esquire, Andrew J. Vella, Esquire, Department of Justice,
Wilmington, Delaware, Attorneys for Appellee.


STRINE, Chief Justice:



∗
    Sitting by designation under Del. Const. art. IV, § 38 and 29 Del. C. § 5610(a)(2).
                                   I. INTRODUCTION

       James E. Cooke was convicted of, among other things, raping and murdering

Lindsey Bonistall, a 20-year-old University of Delaware student. Cooke now seeks to

have the judgment of convictions and the death sentence that were entered against him in

the Superior Court vacated and to receive a new trial, or at least a new penalty hearing.

Cooke has raised ten claims of error on appeal that defy brief summary. But what is

common to all of Cooke’s arguments is that none of them provides a basis for reversing

the judgment of convictions and the death sentence that were entered against him. The

Superior Court took painstaking efforts in the face of Cooke’s continuous provocations

and contemptuous behavior to respect his legitimate constitutional rights and to ensure

that he received a fair trial and sentencing.

       What is also common to many of Cooke’s arguments is that they are grounded in

the contention that he should be relieved of punishment because of his own inexcusable

and incorrigible conduct. For example, Cooke’s contumacious and disorderly behavior

resulted in him forfeiting his right to continue to represent himself at trial. A criminal

defendant may forfeit his constitutional rights by disruptive and unacceptable conduct.

The Constitution protects citizens from having our government deprive them of their

constitutional rights, but it does not protect a citizen where his own obstreperous conduct

impairs his interests.




                                                1
                                    II. BACKGROUND1

       On April 30, 2005, Lindsay Bonistall was a 20-year-old student at the University

of Delaware. That night, Bonistall went to her friend Nicole Gengaro’s dorm room and

watched Saturday Night Live with Gengaro, Katie Johnson, and Isabel Whiteneck (née

Rivero).2 When the show ended at 1:00 a.m. on May 1, 2005, Bonistall left, telling her

friends that she might stop at a convenience store along the way home to pick up some

food because she was hungry.3 After Bonistall came home, someone broke into the

apartment that Bonistall shared with her roommate, Christine Bush.4 Bush was out of

town that weekend. The intruder attacked Bonistall in her bedroom, tied her hands with

an iron cord, and shoved a t-shirt into her mouth as a gag.5 The intruder beat Bonistall,

striking her above her eye and on her chin, and raped her.6 The intruder then knelt on

Bonistall’s chest and strangled her to death,7 using another t-shirt that had been tied and

knotted around her neck like a ligature.8

       The intruder scrawled messages on the walls and countertops of the apartment.9

The intruder wrote “KKK” at multiple locations around the apartment. In the kitchen

area, the intruder wrote, “WHITE Power.” On a wall in the living room, the intruder


1
  These facts are drawn from the Superior Court’s sentencing decision, this Court’s decision in
Cooke’s previous appeal, Cooke v. State, 977 A.2d 803 (2009), and the record below.
2
  Sentencing Decision, Exhibit B to Cooke’s Opening Br. (Sept. 17, 2012) at 21-23.
3
  Sentencing Decision, Exhibit B to Cooke’s Opening Br. (Sept. 17, 2012) at 21-23.
4
  App. to the State’s Answering Br. at B215-216.
5
  App. to the State’s Answering Br. at B154, B168-170, B208.
6
  App. to the State’s Answering Br. at B164-166.
7
  App. to the State’s Answering Br. at B172-173.
8
  App. to Cooke’s Opening Br. at A204, App. to the State’s Answering Br. at B168-170.
9
  App. to the State’s Answering Br. at B279.
                                               2
wrote, “We Want Are [sic] weed back” and “Give us Are [sic] drugs back.” The intruder

also wrote, “More Bodies Are going to be turn in [sic] up Dead.”10

       To eliminate evidence of the crime, the intruder doused Bonistall’s body in

bleach.11 The intruder then dragged her body to the bathtub, put it in, covered it with

flammable items, and set it on fire.12 The fire burned until it set off the hallway smoke

alarm and other residents began to evacuate the apartment building. The fire department

was called at 2:49 a.m. and the Newark volunteer fire department responded.13 After

putting out the fire, the firefighters discovered Bonistall’s burned body in the bathtub,

still bound and gagged.14 The Fire Marshal determined that the fire had been

intentionally set, and testified that the fire would have had to burn for at least an hour

before it was put out to cause the damage it did.15 An autopsy determined that the cause

of Bonistall’s death was strangulation, and that Bonistall was dead before the fire was

started.16 In other words, the fire would have been set at around 1:45 a.m. at the latest,

meaning that Bonistall was killed less than an hour after she left her friends at around

1:00 a.m.

10
   App. to Cooke’s Opening Br. at A173-174; App. to the State’s Answering Br. at B205-207.
11
   App. to the State’s Answering Br. at B160, B210-211.
12
   App. to Cooke’s Opening Br. at A539; App. to the State’s Answering Br. at B171.
13
   App. to Cooke’s Opening Br. at A538; App. to the State’s Answering Br. at B280.
14
   App. to Cooke’s Opening Br. at A188-190; App. to the State’s Answering Br. at B155-162.
15
   App. to Cooke’s Opening Br. at A539; Trial Transcript (Mar. 29, 2012), docket 476 (Q. “[C]an
you please tell the jury approximately, in your opinion, approximately how long it took that fire
to burn before the smoke reached the hallway to set off the hallway alarm? A. I would say
probably over an hour . . . maybe even longer . . . .”). Cooke’s counsel confirmed the time
estimate during cross-examination. Trial Transcript (Mar. 29, 2012), docket 476 (“Q. And you
believe . . . the fire may have been burning or smouldering for at least an hour? A. It would
almost have to be at least that long . . .”).
16
   App. to Cooke’s Opening Br. at A204.
                                                  3
       Following the murder, an anonymous person who was attempting to disguise his

voice made at least three calls to the Newark Police Department’s 911 call center. In the

first call on May 2, 2005, the caller said that Bonistall’s murder was related to two break-

ins that had occurred at nearby apartments during the week before Bonistall’s murder.17

The phone call led the Newark Police to investigate connections between Bonistall’s

murder and the break-ins at the nearby apartments.

       The first break-in occurred four days before Bonistall was murdered. Around 1:00

a.m. on April 26, 2005, Cheryl Harmon returned to her apartment. Harmon discovered

that someone had written “I WHAT [sic] My drug Money,” “DON’T Mess With My

Men,” and “we’ll be back” on the walls of her apartment with red fingernail polish.18

Harmon noticed that she was missing several DVDs and two personalized rings.19 The

point of entry was a living-room window with a pried-off lock.20

       The second break-in occurred three days later, on April 29, 2005 — the evening

before Bonistall was murdered. Amalia Cuadra woke up in the middle of the night

because someone was shining a flashlight in her face. Cuadra called out to see if it was

her roommate, and the intruder responded, “Shut the fuck up or I’ll kill you” and “I know

you have money. Give me your fucking money.”21 Cuadra gave the intruder $45 in cash,




17
   App. to the State’s Answering Br. at B256-257.
18
   App. to Cooke’s Opening Br. at A527-528.
19
   App. to the State’s Answering Br. at B229.
20
   App. to the State’s Answering Br. at B230-231.
21
   App. to Cooke’s Opening Br. at A297-298.
                                               4
but the intruder said, “Give me your fucking credit cards or I’ll kill you.”22 Cuadra gave

him an American Express card and a VISA card. The intruder then demanded, “Take off

your fucking clothes or I’ll kill you.”23 Cuadra screamed for her roommate and dialed

911 on her cell phone. The intruder fled, taking Cuadra’s backpack, which had her name

on it and contained an iPod and some diet pills in a tin container.24

       The anonymous caller made two additional calls to the 911 call center on May 7,

2005. In those calls, the anonymous caller gave detailed information about the three

crimes, including information that had not been released to the public.25 The calls

convinced the Newark Police that the crimes were linked and had been committed by the

same person. Evidence also emerged that focused the investigation on James E. Cooke.

       Cooke lived with Rochelle Campbell, his girlfriend and the mother of three of his

children. Campbell was pregnant with a fourth child by Cooke at the time.26 Harmon,

Cuadra, and Bonistall’s apartments were all within a quarter mile of Cooke’s residence

and could be seen from his back door.27 Campbell saw Cooke with the backpack from

the Cuadra robbery in the early morning hours of April 30, 2005.28 Cooke told Campbell

that he got the backpack from some college kids who had gotten into a car accident and




22
   App. to the State’s Answering Br. at B236-239.
23
   App. to the State’s Answering Br. at B240-43.
24
   App. to Cooke’s Opening Br. at A530-535; App. to the State’s Answering Br. at B245-248.
25
   App. to Cooke’s Opening Br. at A542-546; App. to the State’s Answering Br. at B257, B264.
26
   Cooke has a total of fourteen children by ten different women. Sentencing Decision, Exhibit B
to Cooke’s Opening Brief (Sept. 17, 2012) at 29, n.22.
27
   App. to the State’s Answering Br. at B282-283.
28
   App. to the State’s Answering Br. at B265-66.
                                                  5
had left it outside their house.29 Cooke showed Campbell the credit cards and told

Campbell that he was going to try to use them. Cooke tried to use Cuadra’s VISA card at

a nearby ATM, but it did not work because Cuadra had already cancelled the card.30

Cooke then returned home without the backpack or the credit cards.31

       But Cuadra’s credit card company noticed that someone tried to use her stolen

credit cards. The Newark Police retrieved the ATM surveillance video of the person who

tried to use the card.32 Cuadra had described the intruder as a light-skinned black male

with bumps or freckles on his face and puffy cheeks.33 That general description matched

Cooke. Cuadra also said the intruder was wearing a gray hoodie, a hat, knitted gloves,

and light blue pants.34 When Cuadra was shown the surveillance video from the ATM,

she was fairly sure that it was the intruder,35 but when the Newark Police showed Cuadra

a photo array including Cooke, Cuadra did not pick out Cooke’s photo.36

       The Newark Police used the ATM surveillance video from the Cuadra robbery to

create a wanted poster for Bonistall’s murderer, which was displayed around Newark,

including at the Payless shoe store where Cooke worked part-time.37 Campbell, Cooke’s

coworkers from the Payless shoe store, and a woman who recognized Cooke from seeing


29
   App. to the State’s Answering Br. at B267.
30
   App. to Cooke’s Opening Br. at A536; App. to the State’s Answering Br. at B249-251, B267,
B270.
31
   App. to the State’s Answering Br. at B267.
32
   App. to Cooke’s Opening Br. at A536-37.
33
   App. to Cooke’s Opening Br. at A300.
34
   App. to Cooke’s Opening Br. at A300.
35
   App. to Cooke’s Opening Br. at A303.
36
   App. to Cooke’s Opening Br. at A305.
37
   App. to the State’s Answering Br. at B252.
                                              6
him playing basketball in nearby Dickey Park, all identified Cooke as the man in the

posters. They based their identification in part on the distinctive way the man in the

poster stood on his toes and the type of gloves he was wearing. Both the distinctive foot

position and the gloves were characteristics these witnesses associated with Cooke.38

The gloves contained small grips on the inside of the hand in a dotted pattern.39 The

same dotted grip pattern from the gloves was found on the balcony railing outside

Bonistall’s apartment, on a CD cover in her living room, and on her bed sheets.40

Campbell also later testified that she was 100 percent certain that the voice on all of the

911 calls was Cooke.41

       Cooke quit his job without notice after the murder, left Newark, and went to

Atlantic City.42 Cooke then committed four more violent crimes, including three home

invasions.43 In one, Cooke entered the apartment through a second floor window, and

when the victim woke up she saw Cooke sitting on her bed. Cooke started to choke the

victim before taking several of her credit cards and a necklace. As Cooke was leaving, he

tugged at the victim’s underwear, but then did not go further. The victims from those

four crimes identified Cooke as the perpetrator, and Cooke admitted to committing those

four crimes.


38
   App. to Cooke’s Opening Br. at A540-541
39
   App. to the State’s Answering Br. at B262.
40
   App. to the State’s Answering Br. at B209, B212-213.
41
   App. to Cooke’s Opening Br. at A325-327.
42
   App. to the State’s Answering Br. at B269.
43
   App. to the State’s Answering Br. at B269, B297-304; Sentencing Decision, Exhibit B to
Cooke’s Opening Brief (Sept. 17, 2012) at 38-41.
                                               7
       Cooke was arrested on June 7, 2005 in connection with the murder of Bonistall.

Cooke was then charged with Murder First Degree (2 counts – the second count being

felony murder); Rape First Degree; Burglary First Degree; Arson First Degree; Reckless

Endangering First Degree; Burglary Second Degree (2 counts); Robbery Second Degree;

and Misdemeanor Theft (2 counts). After Cooke was arrested, he was interrogated by

Detective Andrew Rubin of the Newark Police Department for four to six hours. Cooke

told Detective Rubin that he did not know Bonistall.44 But when Cooke was arrested at

his sister’s house, a hoodie was discovered at the house that had Bonistall’s hair on it.45

Investigators analyzed the handwriting of the messages left on the walls in Bonistall’s

and Harmon’s apartments and determined that Cooke could have written both.46

Investigators analyzed the scrapings recovered from Bonistall’s fingernails and

determined that they matched Cooke’s DNA, as did the sample of semen taken from

Bonistall’s vagina.47 After the evidence showed that Cooke had contact with Bonistall,

Cooke did a one-eighty. Cooke then said that he not only knew Bonistall, but also

claimed that they had smoked marijuana together and had consensual sex on the evening

of Friday, April 29, 2005, more than 24 hours before Bonistall’s death and the same night

Cooke broke into Cuadra’s apartment and stole her backpack and credit cards. But

Cooke said that he did not kill Bonistall.48


44
   App. to Cooke’s Opening Br. at A365.
45
   App. to the State’s Answering Br. at B275.
46
   App. to Cooke’s Opening Br. at A285.
47
   App. to Cooke’s Opening Br. at A204-206; App. to the State’s Answering Br. at B284.
48
   App. to Cooke’s Opening Br. at A369-71.
                                              8
       Cooke’s first trial began on February 2, 2007. Although Cooke insisted that he

was innocent and wished to plead not guilty, Cooke’s first set of counsel pursued a

defense of guilty but mentally ill. The jury found Cooke guilty of all charges on March

8, 2007, and did not accept the contention that Cooke was mentally ill when he

committed the crimes. The jury unanimously recommended death at the penalty phase.

The Superior Court sentenced Cooke to death on June 6, 2007.49 Cooke was then

assigned a second set of counsel, who filed an appeal arguing that the guilty but mentally

ill plea that was entered over Cooke’s objections by Cooke’s first set of counsel violated

Cooke’s constitutional right to direct his own defense and plead not guilty.50 This Court

agreed, and we reversed and remanded the case to the Superior Court for a new trial on

August 17, 2009.51 The new trial was scheduled to begin in February 2011.52

       The success of Cooke’s second set of counsel in obtaining a reversal of his

convictions and death sentence did not satisfy him. Cooke filed multiple actions under

42 U.S.C. § 1983 against his second set of counsel and a host of others in December



49
   State v. Cooke, 2007 WL 2129018 (Del. Super. June 6, 2007).
50
   See, e.g., Gonzalez v. United States, 553 U.S. 242, 247 (2008) (right to plead not guilty is a
fundamental right that a criminal defendant must waive personally and that an attorney alone
cannot waive); Florida v. Nixon, 543 U.S. 175, 187 (2004) (“[C]ertain decisions regarding the
exercise or waiver of basic trial rights are of such moment that they cannot be made for the
defendant by a surrogate. A defendant . . . has the ultimate authority to determine whether to
plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”) (internal
quotations omitted).
51
   Cooke v. State, 977 A.2d 803 (Del. 2009) (defense counsel’s pursuit of a verdict of guilty but
mentally ill despite Cooke’s repeated protestations that he was innocent and not mentally ill
infringed Cooke’s right to plead not guilty, negated Cooke’s right to testify in his own defense,
deprived Cooke of the right to an impartial jury, and denied Cooke the assistance of counsel).
52
   App. to Cooke’s Opening Br. at A41.
                                                   9
2010, alleging violations of his constitutional rights.53 As a result, the Superior Court

granted Cooke’s second set of counsel’s motion to withdraw, and the trial was

rescheduled. Then, due to a Supreme Court Rule change, the case was reassigned to a

new Superior Court judge on February 24, 2011.54

       Cooke’s third set of counsel was appointed on March 7, 2011. Cooke, however,

became discontented with his third set of counsel too. Therefore, on November 10, 2011,

Cooke requested to represent himself. A hearing on that application was held on

November 30, 2011. At the hearing, the Superior Court conducted a colloquy with

Cooke to ensure that his choice to represent himself was knowing and voluntary. The

Superior Court made it clear that if it granted Cooke’s request to represent himself, it

would not grant a continuance to allow Cooke more time to prepare, because Cooke was

already familiar with the evidence against him.55 After assuring itself that Cooke

understood the choice he was making, the Superior Court granted Cooke’s request to

represent himself. The Superior Court also appointed standby counsel to help Cooke

prepare his defense, and directed standby counsel to prepare for trial in case Cooke was

no longer able to represent himself or forfeited his right to do so.




53
   See, e.g., Cooke v. Goldstein, 2011 WL 2119347 (D. Del. May 26, 2011); Cooke v. Herlihy,
2011 WL 2119351 (D. Del. May 26, 2011); Cooke v. Wood, 2011 WL 1542825 (D. Del. Apr. 21,
2011). Nearly all of Cooke’s claims were dismissed as frivolous.
54
   Supreme Court Rule 82(b) was amended on January 6, 2011 to provide that “[i]n a Class A
felony tried without a jury or a capital first degree murder case that is reversed and remanded by
the Supreme Court to the Superior Court for a new trial or penalty hearing, the President Judge
shall assign a different judge to preside over the case.”
55
   App. to Cooke’s Opening Br. at A107-108, A115-116.
                                                   10
       Cooke represented himself during the selection of the jury, and then Cooke’s

second trial began on March 7, 2012. But Cooke would not follow the Superior Court’s

orders and was repeatedly disruptive and disrespectful. Thus, on March 9, 2012, the third

day of the State’s case-in-chief, the Superior Court determined that Cooke had forfeited

his right to represent himself. After a continuance to give standby counsel more time to

prepare, standby counsel took over Cooke’s defense and completed the trial. The jury

found Cooke guilty of all charges except one charge of misdemeanor theft. At the

penalty phase, the jury recommended a sentence of death by a vote of 11-1 as to felony

murder and by a vote of 10-2 as to intentional murder. The Superior Court sentenced

Cooke to death on September 17, 2012.

                                     III. ANALYSIS

       Cooke has raised ten different claims of error on appeal, which are not organized

in his briefs in any thematic way. For the sake of coherence, we analyze Cooke’s claims

by grouping those raising common themes together. We begin by analyzing Cooke’s

claims that involve, in various forms, a contention that he was denied the ability to

effectively defend himself at trial. We next address Cooke’s contentions that the

Superior Court’s rulings regarding the admissibility of certain evidence were erroneous.

We then address Cooke’s contention that various issues relating to the jury’s composition

compromised his right to an impartial jury. We conclude by addressing Cooke’s

contention that his death sentence fails the proportionality review required by 11 Del. C.

§ 4209(g).

                                             11
          A. Cooke’s Contentions That He Was Denied His Constitutional
                      Right To Counsel Are Without Merit

       Cooke claims that his constitutional right to counsel was violated in several ways.

First, Cooke argues that he was not afforded a fair opportunity to consult with his

attorneys and to spend time with the record in his case during his incarceration by the

Department of Correction before his second trial. Second, Cooke argues that after his

motion to represent himself was granted on November 30, 2011, he was denied the ability

to represent himself effectively because the Superior Court did not also grant his request

for a continuance, giving him only three months between that ruling and the start of his

second trial on March 7, 2012 to prepare his defense. Third, Cooke makes two mutually

inconsistent arguments in support of his contention that his constitutional right to

representation was denied. In his opening brief, Cooke argues that the Superior Court

erred by concluding on the third day of trial that Cooke had forfeited the right to

represent himself by engaging in repeated misconduct, and would be represented by

standby counsel for the remainder of his trial. In his Reply Brief, Cooke changes

position, abandoning his argument that the Superior Court erred by relieving him of the

right to represent himself, and arguing instead that the Superior Court erred by failing to

do so sooner. In other words, because his own conduct was so egregious, Cooke now

contends that the Superior Court should have relieved him of his right to self-

representation earlier, and given his standby counsel more time to play the leading role

on his behalf. Finally, Cooke argues that his death sentence should be vacated because,

in the face of his ambiguous and shifting positions, his standby counsel presented
                                             12
mitigation evidence to convince the jury to recommend and the Superior Court to give

Cooke a life, rather than death sentence at the penalty phase. Although Cooke sought to

escape a death sentence, he at times opposed the presentation of mitigation evidence on

his behalf. Because standby counsel presented mitigating evidence, Cooke argues that

his constitutional right to control his case was violated and that his death sentence should

be lifted. We now address these related arguments.

             1. The State of Delaware Did Not Violate Cooke’s Right To Counsel
                          During The Pre-Trial Preparatory Process

          Cooke argues that the State of Delaware, in particular the Delaware Department of

Correction, interfered with his access to counsel by limiting the time, place, and date of

visitation with counsel. Cooke claims that this lack of access caused him to lose trust in

his third set of counsel, which is why he decided to represent himself. This Court

reviews the alleged violation of a constitutional right de novo.56 A criminal defendant

has a right to the effective assistance of counsel. Denying a criminal defendant access to

counsel “is a denial of due process of law, under both the federal and Delaware

Constitution[s].”57 But the record demonstrates that the State did not impede Cooke’s

access to counsel or the preparation of his defense. Instead, the record shows that the

State made substantial efforts to facilitate Cooke’s ability to prepare for trial, and that any

lack of access was attributable to Cooke’s own misconduct. To explain why that is so,

we detail the key facts regarding this claim.


56
     Bentley v. State, 930 A.2d 866, 871 (Del. 2007); Jones v. State, 940 A.2d 1 (Del. 2007).
57
     Bailey v. State, 521 A.2d 1069, 1083 (Del. 1987).
                                                  13
         To begin with, it is critical that all of Cooke’s denial of representation claims be

placed in proper context. Cooke had a key advantage in terms of his ability to prepare for

his trial in March 2012, because that was to be his second trial. During the first trial in

2007, Cooke saw the State’s case against him and amassed large files on his case.

Furthermore, given Cooke’s situation, he had plenty of time available to ponder his case.

Of course, Cooke’s decision to fire two sets of counsel was his own and made it

necessary for yet another set of counsel to get up to speed. But, that was Cooke’s own

decision, and successor counsel also had the advantage of the files, prior briefs, and

judicial decisions in the matter. This context is critical to understanding the weakness of

Cooke’s argument regarding his ability to confer with his third set of counsel in advance

of his second trial. That feebleness begins to emerge from the early stages of preparation

for the second trial.

         On March 17, 2010, Cooke’s counsel requested that Cooke be moved from the

James T. Vaughn Correctional Institution (the “Vaughn Correctional Center”) in Smyrna

to the Howard R. Young Correctional Institution (“Gander Hill”) in Wilmington.58 The

Superior Court granted this request on May 7, 2010, because “it is necessary to place Mr.

Cooke in a position where counsel is more readily able to get to him without the

restrictions imposed on counsel visits to the Vaughn Correctional Center.”59 Thus, the

Superior Court facilitated Cooke’s access to counsel. After his transfer, Cooke was

placed in the disciplinary unit at Gander Hill; where he had regular access to the key files

58
     App. to Cooke’s Opening Br. at A41.
59
     App. to Cooke’s Opening Br. at A43.
                                               14
regarding his case.60 On May 21, 2010, Cooke asked to talk to the warden about moving

into general population, but the warden was not available because it was Saturday.

Cooke began kicking the door of his cell and screaming.61 Officers tried to subdue him,

but Cooke continued kicking the door of his cell and screaming. Disciplinary charges

were brought against Cooke as a result of the incident.62

       Cooke continued to misbehave. As noted, to facilitate Cooke’s ability to prepare

for trial, Cooke was allowed to keep a substantial amount of legal files at hand. But, in

September 2010, Cooke and other inmates were seen weight-lifting 40-50 pounds of

Cooke’s legal mail that had been wrapped in sheets. That was a violation of prison rules

and the mail was confiscated.63 In another incident in December 2010, Cooke remained

in bed masturbating rather than standing at the front of his cell as required for a head

count. Cooke was found guilty of sexual misconduct by the prison disciplinary system.64

Cooke claimed that the officer filed a false report and called the hearing officer a racist.65

Because of these problems at Gander Hill, Cooke himself requested to be transferred

back to the Vaughn Correctional Center. Cooke’s own request was granted.

       But Cooke’s behavior did not improve. In August 2011, Cooke was found guilty

of another instance of sexual misconduct when he stood on his toilet and masturbated so



60
   App. to the State’s Answering Br. at B291.
61
   App. to the State’s Answering Br. at B292.
62
   App. to the State’s Answering Br. at B293.
63
   App. to the State’s Answering Br. at B287-90.
64
   App. to the State’s Answering Br. at B293a, B293b.
65
   App. to the State’s Answering Br. at B294.
                                               15
he could be seen by a female officer.66 Due to his disciplinary problems, and for his own

protection, Cooke was placed in the Segregated Housing Unit (the “SHU”) and not the

general population at the Vaughn Correctional Center.67 Because the SHU houses

inmates who pose special dangers because of their conduct and other factors, access to

the SHU is understandably more restrictive in order to protect prison staff, other

prisoners, visitors, and the public at large.68 Consistent with that reality, there are

corresponding difficulties for attorneys who are representing prisoners housed in the

SHU, as compared to prisoners in the general population.69 On October 20, 2011,

Cooke’s third set of counsel filed a motion to compel the State to relocate Cooke back to

Wilmington, where the trial was being held, to increase their access to him. Despite the

fact that Cooke’s own behavior earned his assignment to SHU, the Superior Court

granted the motion to transfer Cooke back to Gander Hill on November 10, 2011 to

facilitate his access to counsel. Notably, Cooke told the Superior Court that he did not

want to be transferred.70 The Superior Court explained that: “[M]y first concern is are

you afforded effective assistance of counsel and I’ve taken the steps to answer a

complaint by two experienced counsel that they had difficulties.”71 In response to the


66
   App. to the State’s Answering Br. at B305-307.
67
   App. to the State’s Answering Br. at B8.
68
   Turner v. Safely, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests” such as institutional security considerations); see also State v. Red Dog, 1993 WL
144866 (Del. Super. Mar. 2, 1993) (applying the standard set in Turner).
69
   See App. to the State’s Answering Br. at B8 (describing the difficulties for an attorney who is
advising a client housed in the SHU because of the increased security measures).
70
   App. to Cooke’s Opening Br. at A78.
71
   App. to Cooke’s Opening Br. at A79.
                                                     16
Superior Court’s efforts to assure that his attorneys could prepare the best defense

possible for him, Cooke fired his attorneys and insulted the Superior Court.72

       Despite Cooke’s opposition, he was transferred back to Gander Hill on December

5, 2011, ten weeks before jury selection.73 The Superior Court spoke with the warden

and visited Gander Hill to view Cooke’s living arrangements and the law library.74 The

Superior Court also issued an order regarding Cooke’s conditions of confinement.75

Cooke was granted access to the law library and the technology needed to review video

evidence. The rule limiting the amount of materials that could be kept in Cooke’s cell

was also waived, despite his prior misuse of legal materials. Cooke was housed alone in

a cell that would normally hold three people, so that he would have sufficient space to

review the record.76 Cooke acknowledges that the Superior Court took “appropriate”

ameliorative action — by having Cooke transferred to Gander Hill over his objections

and by ordering special conditions for his confinement — but Cooke claims that the

Superior Court did not take that ameliorative action until “far too long after the damage

was administered.”77

       This record makes clear that the State of Delaware did not in any manner impair

Cook’s ability to have adequate access to his counsel or to files necessary for trial
72
    A80 (“[COOKE]: I’m just going to fire them . . . . They fired, period. These attorneys is fired.
. . . They fired, because I don’t want them. . . . Judge Toliver is not going to rule me. You rule
them, you don’t rule me. Ha, ha, that’s it. THE COURT: Okay -- [COOKE]: I find you to be a
slave master and an Uncle Tom at the same time.”).
73
    App. to Cooke’s Opening Br. at A53.
74
    App. to Cooke’s Opening Br. at A109, A120-121.
75
    App. to Cooke’s Opening Br. at A52-54.
76
    App. to Cooke’s Opening Br. at A120-21.
77
    Cooke’s Opening Brief at 52.
                                                   17
preparation.78 “Situations involving interference with the assistance of counsel are

subject to the general rule that the remedy should be tailored to the injury suffered and

should not unnecessarily infringe society’s competing interest in the administration of

criminal justice.”79 Here, the record shows that in order to secure Cooke’s constitutional

rights, the Superior Court, and the Department of Correction at the Superior Court’s

direction, granted Cooke indulgences that exceeded what he was entitled to in view of his

own repeated misconduct. To the extent that Cooke’s time with counsel or files was

diminished, his own behavior was the cause.80 And, despite Cooke’s behavior, the

amount of time he was given with counsel and his files was more than sufficient to enable

him to present an effective defense.81 Thus, Cooke’s claim has no merit.




78
   See Turner v. Safely, 482 U.S. 78, 89 (1987).
79
   Bailey v. State, 521 A.2d 1069, 1084 (Del. 1987).
80
   See Bell v. Wolfish, 441 U.S. 520, 540 (1979) (“[I]n addition to ensuring the detainees’
presence at trial, the effective management of the detention facility once the individual is
confined is a valid objective that may justify imposition of conditions and restrictions of pretrial
detention and dispel any inference that such restrictions are intended as punishment.”); Pell v.
Procunier, 417 U.S. 817, 827 (1974) (“[Institutional security] considerations are peculiarly
within the province and professional expertise of corrections officials, and, in the absence of
substantial evidence in the record to indicate that the officials have exaggerated their response to
these considerations, courts should ordinarily defer to their expert judgment in such matters.”).
81
   Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964) (“There are no mechanical tests for deciding
when a denial of a continuance is so arbitrary as to violate due process. The answer must be
found in the circumstances present in every case, particularly in the reasons presented to the trial
judge at the time the request is denied.”); see also Jones v. Walker, 540 F.3d 1277, 1283 (11th
Cir. 2008) (affirming life sentence where trial court denied continuance after defendant in
murder case fired counsel and elected to proceed pro se on August 8 and trial began on August
20, and trial had already been rescheduled twice due to the defendant’s conflicts with appointed
counsel).
                                                  18
                2. The Superior Court’s Denial Of Cooke’s Request For A
                      Continuance Was Not An Abuse Of Discretion

       Cooke next argues that the Superior Court should have granted his repeated

requests for a continuance after he fired his third set of counsel and began to represent

himself pro se. Cooke’s argument focuses on the fact that he only had three months from

the date the Superior Court granted his request to represent himself until the trial began,

and Cooke claims that approximately 90 days was not enough time to review all the

evidence and prepare a defense in a capital murder trial. We review the Superior Court’s

denial of a request for a continuance for abuse of discretion.82 Requests for a continuance

“are left to the discretion of a trial judge whose ruling will not be disturbed on appeal

unless that ruling is clearly unreasonable or capricious.”83

       Again, Cooke’s argument ignores important context and the several advantages

that he had going into his second trial. The hearing on Cooke’s request to represent

himself was held on November 30, 2011, and Cooke was aware that jury selection for his

trial was scheduled to begin on February 20, 2012. By that time, Cooke essentially had

been in continuous case preparation mode since his arrest in 2005. Cooke saw the State’s

case and all of the evidence against him at his first trial in 2007. Cooke knew that he

would receive a second trial when this Court reversed his convictions on August 17,

2009, and the Superior Court issued an order on March 10, 2010 that scheduled the

82
   Weber v. State, 971 A.2d 135, 157 (Del. 2009); Riley v. State, 496 A.2d 997, 1018 (Del. 1985);
see also United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008); Jackson v. United
States, 330 F.2d 445, 446 (5th Cir. 1964).
83
   Bailey v. State, 521 A.2d 1069, 1088 (Del. 1987); Hicks v. State, 434 A.2d 377, 381 (Del.
1981).
                                                19
second trial for February 22, 2011. That trial was postponed because Cooke filed a

lawsuit only two months before the trial against the attorneys who had won his appeal

and overturned his conviction, thereby forcing them to withdraw from the case.

Thereafter, Cooke worked with his third set of counsel from when they were appointed

on March 8, 2011 until he fired them on November 10, 2011. As previously discussed,

the Superior Court made special efforts to guarantee that Cooke could have access to all

materials and his third set of counsel while he was preparing for the next trial. Cooke’s

decision to fire the third set of counsel was his own, of course, and may have been

unwise. But, Cooke had as a result received advice and input from three sets of

experienced defense counsel during the lengthy period since his arrest.

       Thus, on November 30, 2011, when engaging in a colloquy with Cooke about his

request to represent himself, the Superior Court made clear that it would not grant a

continuance to allow Cooke more time to prepare if the request was granted, and Cooke

indicated that he understood.84 Before the Superior Court ruled on Cooke’s request,

Cooke’s third set of counsel suggested that if Cooke were going to represent himself,

then the Superior Court should continue the case for one year to allow him to prepare.85

The Superior Court responded that “whether or not [Cooke] can be prepared is one of the




84
   App. to Cooke’s Opening Br. at A90-91 (“THE COURT: Do you also understand there will be
no continuance of the trial date if you represent yourself? THE DEFENDANT: Yeah, I
understand.”).
85
   App. to Cooke’s Opening Br. at A106.
                                                 20
pitfalls of self-representation.”86 The Superior Court also pointed out that Cooke had

already had an opportunity to see all the evidence against him during the first trial.87

Nonetheless, as soon as the Superior Court granted his request to represent himself, the

first thing Cooke did was to ask for a continuance, which the Superior Court denied.88

The Superior Court explained to Cooke that merely not being ready to proceed is not a

basis for a continuance.89

       Then, on January 27, 2012, before the trial started, Cooke again requested a

continuance, arguing that he did not have sufficient time to review all of the materials and

prepare his defense.90 The Superior Court denied Cooke’s request, noting that he had

been advised about the challenges of representing himself.91 Despite these rulings,

Cooke continued to make requests for a continuance.92 The Superior Court denied those

requests.93 On March 7, 2012, the first day of trial, Cooke requested both a mistrial and

that the Superior Court judge recuse himself. The Superior Court denied those requests

and added:

86
   App. to Cooke’s Opening Br. at A107; see also A115 (“Now, if he doesn’t wish to use you,
that’s one of the pitfalls of representing yourself.”).
87
   App. to Cooke’s Opening Br. at A107-108 (“There’s been one trial and he’s had counsel go
over the records and knows what has to be duplicated. . . . But I have no intention, quite
honestly, of continuing the trial of this matter. This offense took place in 2005. It’s six years
past. This has been known for a while.”); A115-116 (“It’s been tried once. The evidence is --
whatever exists, exists. And I am more than willing to facilitate whatever you need to have
copied or transferred.”).
88
   App. to Cooke’s Opening Br. at A110-119.
89
   App. to Cooke’s Opening Br. at A117-118.
90
   App. to Cooke’s Opening Br. at A120.
91
   App. to Cooke’s Opening Br. at A120-126; App. to the State’s Answering Br. at B20-21.
92
   See, e.g., App. to Cooke’s Opening Br. at A56 (motion for continuance on Feb. 1, 2012).
93
   See, e.g., App. to the State’s Answering Br. at B30-32 (order denying motion for continuance
on Feb.10, 2012).
                                                  21
       I will not continue the trial. I told you that at the start, when you assumed
       responsibility for your own defense, you would have to meet the same
       deadlines that I imposed upon counsel. I know of no conspiracy. I have no
       bias against you, one way or the other. I have decided each issue in
       accordance with my understanding of the law and arguments of counsel,
       stand-by, State’s counsel, your own argument.94

       Cooke had four-and-a-half years after his first trial to prepare for his second trial,

after having already seen the evidence presented during that first trial. Cooke also

knowingly and voluntarily accepted the difficulties of representing himself in his

colloquy with the Superior Court, after being informed of the risks inherent in going

forward without counsel, including that the Superior Court would not grant him a

continuance. When Cooke then decided on November 30, 2011 to fire yet another set of

counsel and represent himself, he was thus fairly told by the Superior Court that there

would be no continuances.95 The trial had already been postponed once because of an

issue with Cooke’s representation.96 As it was, Cooke had another three months to


94
   App. to Cooke’s Opening Br. at A155-156.
95
   See Smith v. Lockhart, 923 F.2d 1314, 1321 (8th Cir. 1991) (“Trial judges must be wary of
defendants who employ complaints about counsel as dilatory tactics or for some other invidious
motive.”); Bass v. Estelle, 646 F.2d 1154, 1159 (5th Cir. 1983) (“The freedom to have counsel of
one’s own choosing may not be used for purposes of delay.”); U. S. ex rel. Davis v. McMann,
386 F.2d 611, 618 (2d Cir. 1967) (“[A] defendant may not through a deliberate process of
discharging retained or assigned counsel whenever his case is called for trial subvert sound
judicial administration by such delaying tactics.”).
96
   See Stevenson v. State, 709 A.2d 619, 631 (Del. 1998) (quoting U.S. ex rel. Carey v. Rundle,
409 F.2d 1210, 1214 (3d Cir. 1969) (“The calendar control of modern criminal court dockets . . .
is a sophisticated operation constantly buffeted by conflicting forces. The accused’s rights—
such as those relating to a speedy trial, to an adequate opportunity to prepare the defense, and to
confront witnesses—are constantly in potential or real conflict with the prosecution’s legitimate
demands for some stability in the scheduling of cases. The availability of prosecution witnesses
is often critically dependent on the predictability of the trial list. That delays and postponements
only increase the reluctance of witnesses to appear in court, especially in criminal matters, is a
phenomenon which scarcely needs elucidation.”); Carletti v. State, 2008 WL 5077746, *5-6
                                                  22
prepare for his second trial, a period during which the Superior Court made certain that

Cooke was afforded special privileges — such as a cell to himself to work with his files

and special law library access. The Superior Court’s refusal to grant a continuance was

amply justified by the evidence of record, and there is no plausible basis for Cooke’s

contention that he was denied an adequate opportunity to prepare for trial.97

         3. Cooke Had A Constitutional Right To Represent Himself, But Cooke
               Forfeited That Right Through His Contumacious Behavior

       As discussed, Cooke elected to exercise his constitutional right to represent

himself at his second trial. But on the third day of the State’s case-in-chief, the Superior

Court terminated Cooke’s self-representation and ordered standby counsel to take over

Cooke’s defense because Cooke had repeatedly defied the Superior Court’s instructions

to cease his disruptive and inappropriate behavior. Cooke argued in his Opening Brief

that the Superior Court deprived him of his constitutional right to represent himself when

it terminated his self-representation, because — although Cooke acknowledged that he

had been disruptive — “the disruption was caused by the State’s interference with his

right to prepare, the [Superior] Court’s denial of his continuance request[] to properly

prepare[,] and the appointment of unwanted stand-by counsel.”98

       Then, in his Reply Brief, Cooke’s argument changed. Cooke now concedes that

the Superior Court acted within its discretion when it revoked his right to represent


(Del. Dec. 3, 2008) (finding that the Court’s interest in the need for calendar control, as well as
the efficient and effective administration of criminal justice, weighed against a continuance).
97
   Secrest v. State, 679 A.2d 58, 64 (Del. 1996) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-90
(1964)); Bailey v. State, 521 A.2d 1069, 1088 (Del. 1987).
98
   Cooke’s Opening Brief at 54.
                                                 23
himself.99 But, Cooke argues, the Superior Court unreasonably delayed by not revoking

his right to represent himself fast enough, and that the Superior Court should have

substituted standby counsel earlier in the proceedings to minimize the prejudice to him

that was caused by his own misbehavior. In other words, Cooke’s “right of self

representation should have been terminated long before it ultimately was” because

“Cooke’s behavior early in the stages of his self representation would have amply

justified the right being revoked at that time.”100 Cooke also claimed in his Reply Brief

that he did not receive effective assistance of counsel, because during the jury selection

and the first three days of the State’s case-in-chief, Cooke’s disruptive behavior had

already caused so much harm to his own case that his standby counsel was unable to

represent him adequately.

       This Court reviews the alleged violation of a constitutional right de novo.101 The

United States and Delaware Constitutions guarantee a defendant the right to represent

himself in a criminal proceeding.102 This Court has described the right to represent

oneself as “fundamental.”103 But, as we have also explained, that right is “not


99
   Cooke’s Reply Brief at 12. The Reply Brief also said that, “[t]he record before this Court is
replete with examples of Cooke’s inappropriate behavior prior to opening statements that would
justify revocation of his self representation rights. . . . The record also reflects several instances
of Cooke directing disrespectful, derogatory remarks toward the trial judge when rulings were
not in his favor. Similar remarks were directed toward the State.” Cooke’s Reply Brief at 13
(internal citations omitted).
100
    Cooke’s Reply Brief at 15.
101
    Williams v. State, 56 A.3d 1053 (Del. 2012); Stigars v. State, 674 A.2d 477, 479 (Del. 1996);
Grace v. State, 658 A.2d 1011, 1015 (Del. 1995).
102
    U.S. Const. Amend. VI; Del. Const. Art. I, § 7; Faretta v. California, 422 U.S. 806, 812-19
(1975); Hooks v. State, 416 A.2d 189, 197 (Del. 1980).
103
    Stigars v. State, 674 A.2d 477, 479 (Del. 1996).
                                                  24
absolute.”104 The Superior Court “may terminate self-representation by a defendant who

deliberately engages in serious and obstructive misconduct.”105 In fact, even the defense

recognized the Superior Court’s “right to terminate pro se representation if a defendant

refuses to follow court rules or makes it impossible for the proceedings to continue.”106

       The record shows that Cooke demanded to represent himself, and the Superior

Court scrupulously respected his right to do so. On November 30, 2011, the Superior

Court held a hearing on Cooke’s request to represent himself.107 Cooke’s counsel said

that they had explained to Cooke that they did not believe it was in his best interest to

represent himself. Despite that advice, Cooke said that he wished to represent himself.108

In granting Cooke’s request, the Superior Court followed the requirements that this Court

has articulated to govern requests of this kind. “[B]efore accepting or rejecting a

defendant’s motion to proceed pro se, the trial judge must determine (1) ‘if the defendant

has made a knowing and intelligent waiver of right to counsel’ and (2) ‘inform the




104
    Zuppo v. State, 807 A.2d 545, 547 (Del. 2002); see also Martinez v. Court of Appeal of
California, Fourth Appellate Dist., 528 U.S. 152, 162 (2000) (“A trial judge may also terminate
self-representation or appoint ‘standby counsel’—even over the defendant’s objection—if
necessary. . . . [T]he government’s interest in ensuring the integrity and efficiency of the trial at
times outweighs the defendant’s interest in acting as his own lawyer.”); Clark v. Perez, 510 F.3d
382, 395 (2d Cir. 2008) (“As it stands, the right to self-representation is not without limits. The
right is not a license to abuse the dignity of the courtroom.”) (internal quotation omitted).
105
    Payne v. State, 367 A.2d 1010, 1017 (Del. 1976) (quoting United States v. Faretta, 422 U.S.
806, 834 (1975)).
106
    Cooke’s Opening Brief at 53 (citing U.S. v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998)).
107
    App. to Cooke’s Opening Br. at A85.
108
    App. to Cooke’s Opening Br. at A86.
                                                   25
defendant of the risks inherent in going forward without the assistance of legal

counsel.’”109

       To make the required finding, the Superior Court conducted a lengthy colloquy

with Cooke regarding self-representation.110 The Superior Court informed Cooke that he

would have to conduct his defense in accordance with the Rules of Evidence and

Criminal Procedure, even if he was unfamiliar with those Rules.111 The Superior Court

explained that it would be difficult for Cooke to do that, and that Cooke’s defense might

be hampered by his lack of legal training.112 Cooke said that he understood. The

colloquy between Cooke and the Superior Court continued:

       THE COURT: Do you understand that the right of self-representation is not a
       license to be disruptive and interrupt trial proceedings and that your behavior
       and conduct during trial will be held to the same level as that of an attorney?
       THE DEFENDANT: Yes, I understand.
       THE COURT: You must also follow the Court’s directions and orders. Do
       you understand that and agree?
       THE DEFENDANT: Yes, I understand.
       THE COURT: Do you also agree?
       THE DEFENDANT: Yes, I understand and agree.
       THE COURT: Do you understand that the right of self-representation entails
       a degree of civility and courtesy that must be shown towards the Court and
       opposing counsel during trial proceedings and that any unsolicited disruptive
       remarks made or actions taken during the course of the trial will constitute a
       forfeiture of your right of self-representation?
       THE DEFENDANT: Yes, sir, I understand.
       THE COURT: Do you understand that the Court does not have to advise you
       of this again and that no further warning need be provided to you? Any
       disruptive remarks made or actions taken during the course of the trial

109
    Williams v. State, 56 A.3d 1053, 1055 (Del. 2012) (quoting Zuppo v. State, 807 A.2d 545, 547
(Del. 2002)); Stigars v, State, 674 A.2d 477, 479 (1996).
110
    App. to Cooke’s Opening Br. at A86-102; App. to the State’s Answering Br. at B9-18.
111
    App. to Cooke’s Opening Br. at A92.
112
    App. to Cooke’s Opening Br. at A92-93.
                                                26
        proceedings could constitute a forfeiture of your right to self-representation?
        Do you understand that this will serve as your last warning, Mr. Cooke?
        THE DEFENDANT: Yes, I understand.113

        After the colloquy, the Superior Court granted Cooke’s request to represent

himself.114 But the Superior Court also appointed standby counsel to help Cooke prepare

his defense and instructed them to be prepared to take over the case if future events

necessitated. To ensure that the pro se defendant’s constitutional rights are secured as

much as possible given his choice to act as his own attorney, many courts, including our

own, routinely appoint standby counsel to advise the pro se defendant if he chooses to

listen.115

        Cooke’s effort to act as his own advocate did not proceed smoothly. On March 7,

2012, Cooke made improper comments during his opening statement about his first trial

and the Superior Court had to send out the jury.116 The Superior Court gave Cooke

additional instructions, then brought the jury back in and allowed Cooke to finish his

opening statement.117 Cooke also had difficulty cross-examining one of the State’s

witnesses, but he did accept guidance from the Superior Court and completed his



113
    App. to Cooke’s Opening Br. at A95-96.
114
    See Hartman v. State, 918 A.2d 1138, 1140 (Del. 2007) (“[O]nce a defendant has invoked the
right to self-representation that decision must be honored”).
115
    McKaskle v. Wiggins, 465 U.S. 168, 184 (1984) (trial judge did not violate defendant’s right
to self-representation by appointing standby counsel over defendant’s objection); Clark v. Perez,
510 F.3d 382, 395 (2d Cir. 2008) (“[A] judge may qualify it by appointing stand-by counsel,
with or without the defendant’s consent, to aid the accused if and when the accused requests
help, and to be available to represent the accused in the event that termination of the defendant’s
self-representation is necessary.”) (internal quotation omitted).
116
    App. to Cooke’s Opening Br. at A157.
117
    App. to Cooke’s Opening Br. at A157-160.
                                                 27
questioning of the witness.118 Later, Cooke became frustrated when the Superior Court

informed him that he could not cross-examine one of the State’s witnesses as an expert

without first qualifying that witness as an expert.119 After Cooke began to argue with the

Superior Court, the Superior Court released the jury for the day and said:

          THE COURT: I will give you a second admonition, I have instructed you to
          stop doing certain things, you continued, you will add things which are, at
          best untrue, concerning whatever it is you said or heard, or whatever you
          said, it has got to stop. If it does not stop, you will, in the first instance,
          waive any right to continue to represent yourself, given the egregious nature
          that been exhibited thus far, you are going a little bit further, you will,
          perhaps, forfeit that right, which is a second problem.
          …
          I have given you as much leeway as I can. I have told you how to get past
          certain objectionable questions, certain run-on sentences, certain use of
          certain language that no one but you understand, and that’s all I can do. If
          you don’t stop continuing to go past what I have told you to do, then you are
          going to forfeit that right, as well as waive the right to represent yourself, and
          that would be unfortunate, given the fact that you made that request. If you
          don’t stop, it is going to happen.
          …
          Now, if you want to represent yourself, you have to follow the rules of
          evidence, and rules of Superior Court. When you don’t do that, that creates a
          problem. Then you want to add argument beyond that. I told you to stop
          that. So if you continue, then I will revoke your right to represent yourself,
          and I am telling [counsel] and [counsel], if this continues, then they will
          become counsel for the defendant . . . . I have gone as far as I can go. There
          is no rancor here. You have made some intelligent, raised some intelligent
          issues and questions, but then again, you go further and beyond what the
          Court has said you can do, consistently said you could do. You called into
          question the integrity and credibility of the Court, counsel, and anyone who
          has been involved in this, who has done something you don’t like. . . . You
          have to behave and obey the rules of the court.
          …
          I told you where the boundaries are. If you go beyond that, continue to go
          beyond that, then I will determine that you can no longer represent yourself.

118
      App. to Cooke’s Opening Br. at A161-165.
119
      App. to the State’s Answering Br. at B147.
                                                   28
       You will have forfeited the right. If you go further, you will waive the right
       to be present, or forfeit the right to be present. I will make the appropriate
       findings if and when you continue. Please stop, it is unnecessary, and I think
       we reached a point where you have to do some serious thinking about how
       you wish to proceed, if you wish to proceed under what circumstances.120

       On March 8, 2012, Cooke informed the Superior Court that he wished to continue

to represent himself and resumed his cross examination of the State’s second witness.

Cooke’s questioning exceeded the scope of the direct, and the State objected.121 The

Superior Court explained that if Cooke had other questions for the witness, then he could

call the witness back during his presentation of his case. But Cooke continued to exceed

the scope of the direct examination, and the Superior Court sent the jury out.122 At this

point, Cooke told the Superior Court that it was going to hell, and Cooke said that he

knew the Superior Court meant to harm him.123 Cooke also said, “I believe you need to

recuse yourself because you’re evil, you got so much hatred in you. It’s sad.”124 The

Superior Court terminated the cross examination of the witness, but decided that it would

not revoke Cooke’s right to represent himself until there was an opportunity to give the

matter more thought, because “what we’re trying to do here is to make sure that you get

as fair a trial as possible under the circumstances, even if you disagree.”125 The Superior

Court warned Cooke, “[i]f your conduct persists in refusing to follow the dictates of the



120
    App. to the State’s Answering Br. at B147-148.
121
    App. to Cooke’s Opening Br. at A177-179.
122
    App. to Cooke’s Opening Br. at A192-194.
123
    App. to Cooke’s Opening Br. at A197.
124
    App. to Cooke’s Opening Br. at A198-199.
125
    App. to Cooke’s Opening Br. at A199.
                                               29
Court, then I will have to act accordingly.”126 The Superior Court took a short recess to

allow Cooke to calm down, and the day continued without another incident.

       On March 9, 2012, Cooke immediately began to argue with the Superior Court.127

Later that day, Cooke attempted to cross examine the State’s third witness.128 Cooke

continued to make factual arguments and various statements instead of asking the witness

questions.129 The Superior Court sent the jury out, and warned Cooke that:

       THE COURT: The Court . . . has determined that we need to stop these
       proceedings at this point. Mr. Cooke, I am going so because it appears that
       you do not wish to abide by the rules and guidelines of this Court. Now, I’m
       not in a position to argue[] with you, I would like to have you continue to
       represent yourself, but if you wish not to do so, based upon the guidelines
       and the instructions given, then I’m going to have no choice but to
       determine that you forfeited that right. Now, again, and for the last time, I
       ask you: Do you wish to follow the instructions and guidelines of the Court?
       MR. COOKE: I have always been, Your Honor. I’m just telling the truth.
       And I believe you hate the truth.130

       When Cooke continued to argue with the Superior Court, the Court said, “It does

not appear to me that you wish to follow those rules and guidelines. Now, that leaves us

with what to do next. . . . If you forfeit this right then, it’s gone for the balance of the

trial. Do you understand that?”131 Cooke responded, “I understand, Your Honor, you




126
    App. to Cooke’s Opening Br. at A199-200.
127
    App. to Cooke’s Opening Br. at A207-212.
128
    App. to Cooke’s Opening Br. at A214.
129
    App. to Cooke’s Opening Br. at A214-215.
130
    App. to Cooke’s Opening Br. at A217-217a.
131
    App. to Cooke’s Opening Br. at A220.
                                             30
forcing me. I understand you threatening me. You threatening me not to get a fair

trial.”132 The exchange continued:

       MR. COOKE: Every time I cross-examine every witness and you see that I
       do the good job, you hear me, either the State jumps up and says objection,
       argumentative, and you step in, you coach along with them, and I’m shut
       down every time. I’m going to cross-examine the witness, that’s all I can do.
       THE COURT: You going to do it your way, I assume?
       MR. COOKE: My way is not the Court way. I didn’t come here as parties.
       I’m not part of the party. I’m not part of this party. I’m not a Republican,
       I’m not a Democrat.
       THE COURT: What does that have to do with it?
       MR. COOKE: That’s mainly what sits up there, don’t it?
       THE COURT: I’m sorry, sir, I don’t understand that.
       MR. COOKE: Figure it out.133

       The Superior Court asked standby counsel whether they would be able to proceed

for the rest of the day, but Cooke objected, saying, “they are not working for me. I fired

them. . . . They are not going to represent me. I fired them. I’m going to represent

myself.”134 The Superior Court took a half hour recess, and then it asked for the views of

the State, standby counsel, and Cooke. Cooke again argued:

       I still deserve to represent myself. It’s nothing I done wrong. But if you
       chose to overlook that, then I have no choice. But anything they do is still
       against my will. I fired them. . . . I do believe I deserve to[] still finish out
       my representation. And if I do wrong then snatch it. If I do one more
       thing, then take it from me, but at least allow me to proceed.135

Despite Cooke’s objections, the Superior Court determined that Cooke had forfeited his

right to represent himself, and instructed standby counsel to take over, saying:


132
    App. to Cooke’s Opening Br. at A220.
133
    App. to Cooke’s Opening Br. at A220-221.
134
    App. to Cooke’s Opening Br. at A222-223.
135
    App. to Cooke’s Opening Br. at A242-243.
                                               31
       And I told you before, rudeness and lack of civility would not be tolerated
       nor would the failure to comply with the rules and dictates of this Court, be
       tolerated. . . . I do not wish to do this, but I also believe that unless I do it
       and reinstate some orderly processes, then this case will get out-of-hand. . . .
       I find that in the first instance that you forfeited your right to proceed. . . . I
       have no -- any other way to get around it. You have been warned
       repeatedly. You have been disrespectful to the Court and counsel.136

After a six-day continuance to give standby counsel additional time to prepare, standby

counsel assumed control of Cooke’s defense.

       Because there is ample evidence in the record of Cooke’s disorderly conduct, the

Superior Court’s determination that Cooke had forfeited his right to represent himself

through his inappropriate behavior did not violate Cooke’s constitutional rights.137

Cooke refused to follow the Superior Court’s orders regarding cross-examining the

State’s witnesses and did not behave in a civil and courteous manner.138 After each

instance of Cooke’s misconduct, the Superior Court sent the jury out and patiently tried

to explain the legal basis for its decisions, while warning Cooke that he risked forfeiting

his right to represent himself because the Court would not tolerate disrespectful behavior.

       Furthermore, Cooke’s new arguments in his Reply Brief — that the Superior

Court waited too long to revoke Cooke’s right to represent himself and that Cooke could

not receive effective assistance of counsel because of the damage he had already done —

136
    App. to Cooke’s Opening Br. at A244-248.
137
    United States v. Faretta, 422 U.S. 806, 834 (1975) (“[T]he trial judge may terminate self-
representation by a defendant who deliberately engages in serious and obstructionist
misconduct.”); see also Bultron v. State, 897 A.2d 758, 765 (Del. 2006) (“If a defendant’s
behavior is sufficiently egregious, it will constitute forfeiture.”).
138
    Payne v. State, 367 A.2d 1010, 1017 (Del. 1976) (“Standards required of members of the Bar
must be adhered to by defendants undertaking their own defense, and gross deviations from these
standards constitute a waiver of the right of self representation.”).
                                                  32
are not fairly raised, because they were not made in Cooke’s Opening Brief and so the

State has had no opportunity to respond to them.139 But even if this Court were to

consider these new arguments, the record is clear that the Superior Court did not violate

Cooke’s constitutional rights. The Superior Court did not, as Cooke suggests,

“unreasonably delay[]” in revoking Cooke’s right to represent himself;140 rather, the

Superior Court demonstrated tremendous patience and restraint in the face of extremely

challenging circumstances, and tried to respect Cooke’s right to represent himself for as

long as it could. The Superior Court also repeatedly confirmed that Cooke wanted to

continue representing himself, and Cooke insisted that he did.

       As the United States Supreme Court has explained, “trial judges confronted with

disruptive, contumacious, stubbornly defiant defendants must be given sufficient

discretion to meet the circumstances of each case.”141 Here, Cooke’s conviction and

sentence had already been overturned once for not respecting Cooke’s constitutional

rights regarding his wish to plead not guilty, and the Superior Court was understandably

chary of a similar outcome in Cooke’s second trial by failing to respect Cooke’s desire to

represent himself. Thus, the Superior Court repeatedly confirmed that Cooke wanted to

continue representing himself, took extra time to explain its legal rulings, gave Cooke

additional instructions, and sent the jury out to minimize any potential prejudice to him.


139
    Supreme Court Rule 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the
body of the opening brief shall be deemed waived and will not be considered by the Court on
appeal.”).
140
    Cooke’s Reply Brief at 16.
141
    Illinois v. Allen, 397 U.S. 337 (1970).
                                              33
But, at the same time, the Superior Court noted that Cooke seemed to be playing a “cat

and mouse game” in which he was intentionally trying to disrupt the trial to further delay

the proceedings against him.142 The Superior Court’s apt description applies equally to

Cooke’s arguments to this Court, which involve both the notion that the Superior Court

erroneously took away Cooke’s right to represent himself and the opposite notion that the

Superior Court erred by failing to take away that right earlier. This approach is

Kafkaesque — but with the twist that it is the citizen who is seeking to ensnare the

government in a capricious web of unfair illogic.143 Cooke’s attempt to benefit from his

own outrageous and capricious behavior is both inequitable and without basis in the

Constitutions of our nation and our state, particularly where the Superior Court so

conscientiously respected his rights. To the extent that Cooke did not optimally represent

himself or standby Counsel was compromised in doing so, Cooke’s own voluntary

decisions were the cause, not any conduct of the State of Delaware.144 Indeed, despite

Cooke’s repeated misbehavior, the record reflects that the State of Delaware took




142
    App. to Cooke’s Opening Br. at A244-248 (“And interestingly enough, Mr. Cooke, you have
kind of played -- and this is my view of it, but I do so find -- kind of a cat and mouse game
where you would go, well, I’ll do what you want, yeah, and then something else will happen and
then you’ll do something else. . . . And what it appears to me, for purposes of delay or
disruption, you will say yes one minute, then go back and do something else and the next time a
witness comes through.”).
143
    Cf. FRANZ KAFKA, THE TRIAL (1925).
144
    United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990) (“The right to make a knowing
and intelligent waiver of the right to counsel does not grant the defendant license to play a ‘cat
and mouse’ game with the court, or by ruse or stratagem fraudulently seek to have the trial judge
placed in a position where, in moving along the business of the court, the judge appears to be
arbitrarily depriving the defendant of counsel.”) (internal quotations omitted).
                                                  34
expensive, patient, and time-consuming measures to secure Cooke’s right to effective

representation.

            4. The Superior Court’s Order That Standby Counsel Should Present
            Mitigating Evidence Did Not Violate Cooke’s Rights Because Cooke’s
            Waiver Of That Right Was Ambiguous And Any Error Was Harmless

          Also odd is Cooke’s final argument relating to his representation. Cooke argues

that his death sentence should be vacated because his attorneys introduced mitigation

evidence in an attempt to convince the jury and judge that Cooke should receive a life,

not a death sentence. Cooke claims that he unequivocally expressed a desire not to

present a mitigation case and not to oppose the State’s arguments in favor of a death

sentence. As relief for his counsel’s supposed disregard of his desire that his counsel not

try their best to preserve his life, Cooke now seeks to have his death sentence lifted.

          On appeal, Cooke claims that he waived his right to present mitigating evidence,

and that the Superior Court’s order directing his standby counsel to present a mitigation

case over his objections therefore violated his constitutional right to control his case.

Cooke uses as the foundation of his argument the straightforward and logical proposition

that in a death penalty case, a defendant has a constitutional right to present mitigating

evidence to convince the sentencing authority not to give a death sentence. Lockett v.

Ohio and many other cases so hold.145 As this Court has also noted, the right to present

mitigating evidence may be waived.146 Several federal Courts of Appeal have held that



145
      Lockett v. Ohio, 438 U.S. 586 (1978); Shelton v. State, 744 A.2d 465, 495 (Del. 2000).
146
      Taylor v. State, 32 A.3d 374, 389 (Del. 2011).
                                                  35
the right to present mitigating evidence may be waived by a defendant,147 and this Court

found those decisions to be “authoritative and persuasive.”148 But the State argues that

Cooke did not waive his right clearly and unambiguously.149 This Court reviews the

alleged violation of a constitutional right de novo.150

       To begin with, we are not convinced that a pro se criminal defendant who pleads

not guilty and is facing a possible death sentence has suffered any cognizable

constitutional violation where counsel presents mitigating evidence over his objection.

At the very least, we doubt that such an argument can be made by a defendant who is not

asking the appellate court to remedy that supposed violation by ordering its logical

remedial corollary: that he be subjected to execution as an (admittedly morbid and

unusual) form of relief. Where a defendant instead argues that his death sentence should

be vacated, the basis for holding that his constitutional rights were violated because

mitigating evidence was introduced on his behalf to help him avoid a death sentence

seems non-existent and illogical. In this case, the only plausible effect of the mitigation

evidence Cooke’s counsel submitted was to make it less — not more — likely that Cooke

received a death sentence. Because by his appeal Cooke seeks vacation of the death


147
    Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (“[T]he Constitution does not prohibit a
competent capital defendant from waiving the presentation of mitigation evidence.”); Singleton
v. Lockhart, 962 F.2d 1315, 1322-23 (8th Cir. 1992) (“If a defendant may be found competent to
waive the right of appellate review of a death sentence, we see no reason why a defendant may
not also be found competent to waive the right to present mitigating evidence that might forestall
the imposition of such a sentence in the first instance.”).
148
    Taylor v. State, 32 A.3d 374, 389 (Del. 2011).
149
    State’s Answering Brief at 92.
150
    Flonnory v. State, 893 A.2d 507, 515 (Del. 2006); Hall v. State, 788 A.2d 118, 123 (Del.
2001).
                                                  36
sentence, Cooke essentially admits that by presenting mitigation evidence in an attempt

to convince the jury and Superior Court he should not receive the death penalty, standby

counsel sought to comply with Cooke’s most fundamental wish, namely, to receive the

more merciful sentence.

       We therefore are unable to fathom the notion of the supposed violation, and even

less able to divine how any failure to follow Cooke’s ambiguous wishes could have

resulted in harm to be remedied. Where a defendant’s right to present mitigation

evidence is denied, and the defendant receives a death sentence, the harm is obvious.151

Where, by contrast, the defendant’s counsel do their utmost to submit mitigating evidence

to obtain a life sentence for a defendant who has pled not guilty, there is no logic to

remedying counsel’s good faith effort to protect the defendant by vacating his death

sentence.

       Even if this Court were ever to hold that a defendant in a capital case had a

constitutional right to demand that no mitigation evidence be presented on his own

behalf, that would first require an unequivocal and unvarying waiver of the defendant’s

right to present mitigation evidence. A waiver of such a life-determinative right cannot

shake or move, or — to draw on the Superior Court’s impression of Cooke’s behavior —


151
    Williams v. Taylor, 529 U.S. 362, 393 (2000) (Reversing and remanding a case because “[the
defendant] had a right—indeed, a constitutionally protected right—to provide the jury with the
mitigating evidence that his trial counsel either failed to discover or failed to offer.”); Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (“To meet constitutional requirements, a death penalty statute
must not preclude consideration of relevant mitigating factors.”); Eddings v. Oklahoma, 455 U.S.
104, 113-14 (1982) (“[T]he state courts must consider all relevant mitigating evidence and weigh
it against the evidence of the aggravating circumstances.”).
                                                  37
be part of a game of cat and mouse. Where a defendant has forfeited his right to represent

himself, he has no constitutional right to direct his counsel how to perform every aspect

of their duties.152 A great deal of professional discretion remains for counsel, and if the

client’s fundamental goal is to avoid a death sentence, counsel is required to pursue that

end with professional zeal and skill.153

       Here, Cooke did not unequivocally and unvaryingly waive his right to present

mitigation evidence. Admittedly, the record reflects that Cooke repeatedly stated that he

did not wish to present any mitigation evidence at a penalty hearing if he was

convicted.154 Cooke refused to meet with the mitigation specialist, refused to be tested by

any psychologists or psychiatrists, and initially instructed his family not to help with the



152
    New York v. Hill, 528 U.S. 110, 115 (2000) (“[D]ecisions by counsel are generally given
effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements
to conclude regarding the admission of evidence.”) (citing Jones v. Barnes, 463 U.S. 745, 751
(1983); Henry v. Mississippi, 379 U.S. 443, 451 (1965); and United States v. McGill, 11 F.3d
223, 226-227 (1st Cir. 1993); Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (“The adversary
process could not function effectively if every tactical decision required client approval.”); see
also Am. Bar Ass’n, Criminal Justice Section Standards on Defense Function, Control and
Direction of the Case § 5.2(b), available at www.americanbar.org/publications/
criminal_justice_section_archive/crimjust_standards_dfunc_blk.html (“Strategic and tactical
decisions should be made by defense counsel after consultation with the client where feasible
and appropriate. Such decisions include what witnesses to call, whether and how to conduct
cross-examination, what jurors to accept or strike, what trial motions should be made, and what
evidence should be introduced.”).
153
    Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases § 10.11, Commentary (rev. ed. 2003) (emphasis added), reprinted in 31
Hofstra L.Rev. 913, 1024 (2003), available at www.americanbar.org/content/dam/aba/
migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf (“Counsel
at every stage of the case should take advantage of all appropriate opportunities to argue why
death is not suitable punishment for their particular client.”); Am. Bar Ass’n, Model Code of
Professional Responsibility, Canon 7-1 (2008) (“The duty of a lawyer, both to his client and the
legal system, is to represent his client zealously within the bounds of the law.”).
154
    See, e.g., App. to Cooke’s Opening Br. at A255, A394-395, A520, A524.
                                                  38
preparation of a mitigation case.155 Standby counsel stated multiple times that Cooke told

them that he did not want them to present mitigation evidence.156 At one point, Cooke

requested the death penalty.157 But, when the Superior Court pointedly asked Cooke if he

was admitting that he had committed Bonistall’s rape and murder, Cooke responded, “I

didn’t commit anything. I am an innocent man. Just give me the death penalty, plain and

simple, Your Honor.”158 Cooke’s answers implied that he did not want to present

mitigation evidence because he thought the proceedings thus far had been unfair, and he

did not think that he could get a fair penalty phase either.159 That falls short of

manifesting an unequivocal desire to receive a death sentence.



155
    App. to Cooke’s Opening Br. at A398-399, A411.
156
    App. to Cooke’s Opening Br. at A522.
157
    App. to Cooke’s Opening Br. at A397 (“THE DEFENDANT: I am waiving that mitigation. I
told you I waived it. It is not going to be a fair hearing regards how I look at it. THE COURT:
You don’t wish to participate and present any witnesses or evidence? THE DEFENDANT: I
waive it, because it is not going to mean anything to me. THE COURT: I understand you don’t
wish to participate . . . THE DEFENDANT: I am not going to participate. As a matter of fact, I
want the death penalty, Your Honor. Just give me death. That’s what I deserve. That’s what
you want to give me.”).
158
    App. to Cooke’s Opening Br. at A397.
159
    See, e.g., App. to Cooke’s Opening Br. at A394 (“THE COURT: Will you cooperate with
[mitigation] witnesses? MR. COOKE: No. THE COURT: Sorry? MR. COOKE: No, sir. I am
not cooperating. I don’t. I didn’t do this crime, State know I didn’t do this crime. Those
attorneys know I didn’t do this crime. They have full documents, everything. You denied to
hear everything I had to bring in front out of. Why should I corroborate? THE COURT: You
mean cooperate? MR. COOKE: Why should I corroborate now to please the State?”); A396
(“THE COURT: Let me ask you a question, Mr. Cooke, because I need to understand. Basically
your position is I don’t see any use and any utility in having a penalty phase because the case has
been stacked against me from the start. THE DEFENDANT: Yes. THE COURT: Let me finish,
because I want to make sure I understand this. And this has been an unfair prosecution and I
didn’t do it. I maintain my innocence. And this jury only convicted me, because I’m innocent,
because this was a corrupted function based upon activities, myself, [the original Superior Court
judge], the prosecutors, and defense attorneys did. Correct? THE DEFENDANT: Yes. Because
I pointed these issues out. THE COURT: I just want to make sure that’s what you’re saying.”).
                                                   39
       Therefore, the Superior Court engaged in a lengthy colloquy with Cooke regarding

the presentation of mitigation evidence, and Cooke objected to the presentation of

mitigation evidence even though he was informed that it might have negative

consequences for his sentence.160 But the Superior Court ordered counsel to present

mitigation evidence because Cooke’s objections to the presentation of mitigation

evidence appeared to be a result of Cooke’s belief that the trial was unfair, rather than a

deliberate, merit-based decision to refrain from presenting mitigation evidence.161 The

Superior Court said:

       [T]he defendant has maintained, and I think said it clearly in my estimation,
       that he did not get a fair trial. He said the same thing consistently. And
       that as a result of not having had a fair trial he sees no point in presenting
       the mitigation case, which is far different from . . . recognizing that the
       State can meet its burden and admitting -- and/or admitting, conceding that
       the imposition of the death penalty is warranted based upon the facts and
       circumstances of the case.162

Thus, as Cooke acknowledged, “[t]he [Superior Court] held Cooke’s desire not to present

a mitigation case was born out of frustration for his perceived belief that he did not get a

fair trial. Additionally, the [Superior Court] held that his main desire was not to

participate in the mitigation case, not that he did not want to present a case.”163 In other

words, the Superior Court was not confronted by a genuine acknowledgment by Cooke of




160
    App. to Cooke’s Opening Br. at A416.
161
    App. to Cooke’s Opening Br. at A394 (noting that “this is further continued implementation
of [Cooke’s] choice of strategy or decision to plead not guilty.”).
162
    App. to Cooke’s Opening Br. at A398.
163
    Cooke’s Opening Brief at 86.
                                                40
actual guilt and a corollary wish to die, rather than spend his life in prison, as

punishment.

       Consistent with the Superior Court’s conclusion that Cooke had not unequivocally

and unvaryingly decided to waive his right to present mitigating evidence during the

penalty phase of his case, on April 26, 2012, standby counsel informed the Superior

Court that Cooke had agreed to have two of his sons testify and that Cooke was “okay

with the majority of the evidence” that standby counsel planned to present during

mitigation.164 Standby counsel also represented that Cooke was “amenable at this point

to letting us get into Joyce Johnson’s [Cooke’s social worker] testimony on Tuesday . . .

as well as the DYFS records and Ms. Connors [the mitigation expert].”165 Two of

Cooke’s children testified that day, and prior testimony by two of his other children was

read into the record.166 On May 1, 2012, Johnson testified to instances of physical abuse

perpetrated on Cooke when he was growing up.167 That same day, Connors testified to

instances of physical abuse as well as Cooke’s family, educational, and medical history

up to age 18.168 Then, Cooke again changed his mind and objected to the testimony from

Connors, but stated that he wished to testify and also to use his opportunity for




164
    App. to Cooke’s Opening Br. at A418-419.
165
    App. to Cooke’s Opening Br. at A419.
166
    App. to the State’s Answering Br. at B308-14.
167
    App. to the State’s Answering Br. at B321-329.
168
    App. to the State’s Answering Br. at B330-345.
                                               41
allocution.169 On May 2, 2012, Cooke testified and said that the mitigation evidence was

presented against his wishes.170

        Because Cooke supported the presentation of mitigation evidence on his behalf

during a key period of the penalty proceedings, he effectively nullified his prior

opposition to the presentation of mitigating evidence.171 That Cooke then shifted again

and objected to parts of the mitigating evidence after the fact simply illustrates his lack of

consistency and clarity. The erratic nature of Cooke’s statements regarding the

mitigation evidence demonstrates that the Superior Court did not err in concluding that

Cooke had not unequivocally and unvaryingly waived his right to have mitigation

evidence presented on his behalf.172 By contrast, at all times, Cooke maintained his

innocence, claimed he was being treated unfairly, and sought to be found not guilty. And

at this stage, Cooke is asking this Court to lift his death sentence, a fundamental

expression of his desire to obtain a more favorable sentence. Indeed, had counsel elected

not to present mitigation evidence, we have little doubt that Cooke would now be raising


169
    App. to the State’s Answering Br. at B346.
170
    App. to the State’s Answering Br. at B347.
171
    Cf. Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (“Once asserted, however, the right to
self-representation may be waived through conduct indicating that one is vacillating on the issue
or has abandoned one’s request altogether.”); Williams v. Bartlett, 44 F.3d 95, 100-01 (2d Cir.
1994) (“The purpose of requiring that a criminal defendant make an ‘unequivocal’ request to
waive counsel is twofold. First, unless the request is unambiguous and unequivocal, a convicted
defendant could have a colorable Sixth Amendment appeal regardless of how the trial judge
rules: if his request is denied, he will assert the denial of his right to self-representation; if it is
granted, he will assert the denial of his right to counsel. Second, the requirement of an
unambiguous and unequivocal request inhibits any ‘deliberate plot to manipulate the court by
alternatively requesting, then waiving counsel.’) (internal citations omitted).
172
    See Kostyshyn v. State, 2004 WL 220321, *2 (Del. Jan. 30, 2004) (finding a series of
disruptive, dilatory outbursts was not a “genuine, unequivocal request to proceed pro se”).
                                                    42
a claim under Strickland v. Washington173 for ineffective assistance of counsel, and

would support that claim by pointing to the same changes of heart that we highlight here.

       Although it was not error for the Superior Court to direct standby counsel to

present mitigation evidence, we reiterate that any arguable error in having mitigation

evidence presented over Cooke’s objections was harmless beyond a reasonable doubt.174

Cooke’s standby counsel and the Superior Court were at a peril because of Cooke’s

shifting position on whether and which types of mitigation evidence to present. When

faced with ambiguous directions from a defendant who claimed to be innocent, the

Superior Court properly leaned in favor of preserving the defendant’s constitutional right

to present mitigation evidence to help him avoid a death sentence.175 Faced with a

defendant who had forfeited his right to represent himself though his behavior and who

was unclear about his wishes, the prudent course was for counsel to do their utmost to

obtain the most favorable sentence possible for their client. The only possible effect of

admitting the mitigation evidence over Cooke’s objection was to make it less likely that

the aggravating factors would outweigh the mitigating circumstances, and thus less likely

Cooke would receive the death penalty. Therefore, Cooke suffered no prejudice from

any alleged error.




173
    466 U.S. 668 (1984).
174
    See Van Arsdall v. State, 524 A.2d 3, 10-11 (Del. 1987) (citing Chapman v. California, 386
U.S. 18, 23-24 (1967).
175
    Cf. Stigars v. State, 674 A.2d 477, 479 (Del. 1996) (“When faced with an ambiguous request
for self-representation, a trial court should lean in favor of the right to counsel.”).
                                                   43
      B. Cooke’s Contentions That The Superior Court’s Rulings Regarding The
        Admissibility Of Certain Evidence Were Erroneous Are Without Merit

                1. The Superior Court Properly Excluded Certain Evidence
                         About Bonistall’s Prior Sexual Conduct

        At trial, Cooke sought to introduce evidence regarding Bonistall’s prior sexual

history. That evidence did not involve any prior sexual relationship with Cooke himself.

Out of respect for Bonistall and the purposes served by Delaware’s Rape Shield

Statute,176 we do not detail the evidence Cooke proffered. Suffice it to say that even if

that evidence were true, nothing in the evidence would distinguish Bonistall from tens of

millions of other American college students in recent history. The reasons Cooke gave

for seeking to introduce this mundane evidence had a clear purpose: Cooke was

attempting to show that because Bonistall had consensual sexual relations with other

people in the past, that she had consented to sex with Cooke on the night before she was

murdered.177

        But the Superior Court excluded the evidence that Cooke sought to introduce

regarding Bonistall’s sexual history, finding among other things that the evidence was

inadmissible under Delaware’s Rape Shield Statute, and apparently also that it failed the

basic test of relevance under Delaware Rule of Evidence 401.178 Cooke challenges the

176
    11 Del. C. § 3508 and § 3509.
177
    Cooke’s Opening Brief at 65 (“The defense argued that the sex between Bonistall and
defendant was consensual.”); see also App. to Cooke’s Opening Br. at A263-264, A370-371.
178
    App. to Cooke’s Opening Br. at A265 (“I would deny it under 3508, but I don’t even need to
reach 3508, at least as to the prior sexual conduct, because it’s simply not relevant. Then, if I go
to 3508, what is proffered in the affidavit, isn’t relevant again, nor is it in any way assisting. . . .
[I]t’s not relevant, and therefore, it’s not admissible, with or without 3508, but in the alternative,
with 3508.”).
                                                   44
Superior Court’s decision to exclude this evidence, on the ground that the Rape Shield

Statute does not apply where the alleged victim of the rape is dead and therefore cannot

testify at trial.179 The Superior Court’s rulings about whether to admit certain evidence

are reviewed for abuse of discretion.180 For the following reasons, we reject Cooke’s

arguments and conclude that the Superior Court did not abuse its discretion by excluding

the evidence.

       As noted, Cooke’s reason for introducing this evidence was to buttress his

contention that he did not rape and then kill Bonistall, but instead had consensual sex

with her on Friday, April 29, 2005, over 24 hours before her murder. Cooke therefore

sought to introduce evidence for a purpose that was impermissible as a matter of statute.

In a case involving the prosecution of any degree of rape, 11 Del. C. § 3509 provides that

evidence of a victim’s sexual reputation or specific instances of the victim’s prior sexual

conduct with a person other than the defendant “is not admissible by the defendant in

order to prove consent by the complaining witness.”181

       Cooke does not contend that our State’s Rape Shield Statute, which is similar to

that which exists in many American states, is unconstitutional.182 Rather, Cooke argues

that the Rape Shield Statute does not apply because Bonistall was murdered, and a dead
179
    Cooke’s Opening Brief at 65; Cooke’s Reply Brief at 18.
180
    Richardson v. State, 43 A.3d 906, 911 (Del. 2012) (citing Harris v. State, 991 A.2d 1135,
1138 (Del. 2010).
181
    11 Del. C. § 3509(a).
182
    Cooke’s Reply Brief at 18 (“Cooke never challenged the statute itself . . .”). “In cases
involving the validity of rape shield statutes, the courts have been confronted with a number of
different constitutional issues, but, almost without exception, have upheld the particular statute
involved.” Joel E. Smith, Constitutionality of “rape shield” statute restricting use of evidence of
victim’s sexual experiences, 1 A.L.R.4th 283 (1980).
                                                  45
victim cannot be a “complaining witness” under the Statute. That off-putting argument

uses as its premise one of the fundamental purposes of a Rape Shield Statute, which is to

ensure that victims of rape are not discouraged from coming forward by facing a threat

that intimate details of their prior sexual history will be exposed to the community in a

public trial.183 Cooke claims that because a dead victim cannot testify, there is no reason

to apply the statute to exclude the evidence in that circumstance. In other words, Cooke

argues that so long as the person alleged to have been a victim of rape has been killed, the

defendant accused of the rape may use evidence of the victim’s prior sexual conduct or

reputation to prove that the deceased consented to having sex with him.

       Cooke’s argument lacks merit. First and most important, Cooke ignores the

statutory definition of a “complaining witness,” which is clear on its face. A

“complaining witness” is defined as “the alleged victim of any degree of rape . . .” and its




183
   Jenkins v. State, 2012 WL 3637236, at *2-3 (Del. Aug. 23, 2012) (quoting Scott v. State, 642
A.2d 767, 771 (Del. 1994)) (the purpose of Delaware’s Rape Shield Law is “to allow defenses
based on the complainant’s credibility while protecting [the complainant] from unnecessary
humiliation and embarrassment” thus “ensur[ing] the cooperation of victims of sexual
offenses”); see also Vance v. State, 384 S.W.3d 515, 519 (Ark. 2011) (“The purpose of the rape-
shield statute is to shield victims of rape or sexual abuse from the humiliation of having their
sexual conduct, unrelated to the charges pending, paraded before the jury and the public when
such conduct is irrelevant to the defendant’s guilt.”); State v. Alberts, 722 N.W.2d 402, 409
(Iowa 2006) (“[T]he purpose of the rape-shield law . . . is to protect the victim’s privacy,
encourage the reporting and prosecution of sex offenses, and prevent the parties from delving
into distractive, irrelevant matters.”); State v. Garron, 827 A.2d 243, 254 (N.J. 2003) (“The
overarching purpose of the Rape Shield Statute is to protect the privacy interests of the victim
while ensuring a fair determination of the issues bearing on the guilt or innocence of the
defendant.”); State v. Lynch, 854 A.2d 1022, 1035 (R.I. 2004) (“The rape shield statute was
enacted to encourage victims to report crimes without fear of inviting unnecessary probing into
the victim’s sexual history.”) (internal quotation marks omitted).
                                                   46
applicability is not limited to living victims.184 The statutory language is itself dispositive

and defeats Cooke’s argument.185 But, even if the statutory language were ambiguous,

we would not embrace Cooke’s reading of the Rape Shield Statute. There is no reason to

believe that the General Assembly’s concern that alleged rape victims should not be

subjected to general character assassination extends only to living victims and not to

those who also paid the ultimate price of losing their life. As a policy matter, Cooke’s

argument would create a perverse incentive, whereby a rapist who killed his victim would

be advantaged over one who let his victim live. For these reasons, arguments like

Cooke’s have been largely rejected by other state courts, which have found that their

Rape Shield Statutes apply regardless of whether the alleged victim of the rape is alive or

dead.186 We agree with those well-reasoned decisions. Cooke’s own counsel repeatedly


184
    11 Del. C. § 3508(b); see also 11 Del. C. § 3509(e) (defining “complaining witness” as “the
alleged victim of the crime charged, the prosecution of which is subject to this section”).
185
    Kelty v. State Farm Mutual Auto Ins. Co., 73 A.3d 926, 929 (Del. 2013) (“When interpreting
a statute, we attempt to determine and give effect to the General Assembly’s intent. We give
unambiguous statutory language its plain meaning unless the result is so absurd that it cannot be
reasonably attributed to the legislature.”).
186
    See, e.g., Hobson v. State, 675 N.E.2d 1090, 1093 (Ind. 1996) (“[A] victim’s death does not
abrogate the public policy advanced by the Rape Shield Statute, inter alia, encouraging victims
to report rape.”); Jenkins v. State, 627 N.E.2d 789, 795 (Ind. 1993) (“If the statute is not applied
to victims who ultimately are murdered, then perpetrators of sex crimes will be encouraged to
kill their victims, thus enabling them to defend the charges through exploitation of evidence of
the victim’s prior sexual activity.”); Holland v. State, 587 So. 2d 848, 863 (Miss. 1991) (“[The
defendant] contends that [the rape shield law] has nothing to do with relevancy because it was
‘designed [solely] to protect the privacy of a [living ] victim’—not a dead victim . . . . Common
sense dictates that [the defendant’s] contention is meritless.”); State v. Clowney, 690 A.2d 612,
619 (N.J. Super. Ct. App. Div. 1997) (“We find nothing in the language of the statute, or its
underlying purposes, to suggest a deceased victim’s prior sexual conduct is less protected than a
living victim’s. Beyond that, we find it irrational and illogical to suggest that the rape shield law
should be made inapplicable when the victim is killed after a rape. The statutory goals of
protecting the privacy of the victim and seeking to avoid character assassination are no less
                                                  47
acknowledged that the purpose of the evidence was to demonstrate the Bonistall had

consented to sex with Cooke. The Superior Court’s exclusion of the evidence was

therefore proper under § 3509, as it was being offered for the improper purpose of

proving consent.187

       On a related point, the Superior Court’s ruling may also fairly be read as grounded

in, not only § 3509 itself, but also a more general determination that the evidence Cooke

sought to admit was not relevant.188 We say that not only because the Superior Court’s

ruling is somewhat ambiguous on the point, but also because § 3509 is fundamentally a

legislative determination of relevance.189 The basic test of relevance is whether the


consequential when the rape victim is killed. A deceased rape victim’s life is entitled to the same
privacy as a surviving victim’s.”); State v. Craig, 853 N.E.2d 621, 636 (Ohio 2006) (“No part of
the rape shield law suggests that a deceased victim’s sexual history is less protected than that of a
living victim. . . . [T]he state interests underlying the rape shield law are not eliminated when the
victim has died.”); State v. Turner, 2001 WL 605153 (Tenn. Crim. App. June 5, 2001) (The fact
that the victim died does not affect the application of [Tennessee’s rape shield law].”); Hoke v.
Com., 377 S.E.2d 595, 599 (Va. 1989) (applying Virginia’s Rape Shield Law to preclude the
admission of evidence about the past sexual history of a victim who was murdered after a rape).
187
    See, e.g., Ketchum v. State, 1989 WL 136970, at *2-3 (Del. Oct. 17, 1989) (holding that
evidence about the victim’s prior sexual conduct, including affidavits from three men stating that
the victim would have sex while intoxicated and wake up disoriented and unaware of the events
of the previous night, was inadmissible under § 3509 if proffered to show consent.”).
188
    App. to Cooke’s Opening Br. at A264.
189
    See, e.g., Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A
Proposal for the Second Decade, 70 MINN. L. REV. 763, 798 (1986) (“More compelling . . . was
the claim by rape-shield proponents that the changing moral climate in this country simply
invalidated the underpinnings of the common-law doctrine, rendering unchastity evidence
irrelevant for its stated purposes.”); Tanya Bagne Marcketti, Rape Shield Laws: Do They Shield
the Children?, 78 IOWA L. REV. 751, 754 (1993) (“Rape shield statutes evolved from society’s
recognition that a rape victim’s prior sexual history is irrelevant to issues of consent . . . .”).
Other commentators have considered statutes like § 3509 to constitute a legislative determination
that this evidence, if possibly of marginal relevance, is barred under a balancing test akin to
exclusion under Rule of Evidence 403. See, e.g., Clifford S. Fishman, Consent, Credibility, and
the Constitution: Evidence Relating to A Sex Offense Complainant’s Past Sexual Behavior, 44
CATH. U. L. REV. 709, 722 (1995) (“Such legislation represents a legislative judgment that
                                                    48
proffered evidence has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.”190 At its most mundane level, § 3509 recognizes that

sex is a common part of human life.191 That a person consented to sex with someone

other than the defendant on a prior occasion is a human act so ordinary that it cannot be

regarded as making it more likely than not that she consented to having sex on a

particular occasion with the defendant now accused of her rape.

       In an attempt to avoid exclusion by § 3509, Cooke submitted a motion and

affidavit requesting to admit the evidence of Bonistall’s sexual history under § 3508.

Evidence of a complaining witness’s prior sexual history may be admitted “to attack the

credibility of the complaining witness,” but “only when the statutory procedure in

[§ 3508] is followed and the court determines that the evidence proposed to be offered by

the defendant regarding the sexual conduct of the alleged victim is relevant.”192 Cooke’s

affidavit contained no rational articulation of how the proffered evidence compromised


evidence of a complainant’s prior sexual conduct is only marginally relevant and that, barring
unusual circumstances, it tends to confuse the issues, unduly harass witnesses, and may also be
unfairly prejudicial to the prosecution.”) (internal quotation omitted).
190
    Delaware Rule of Evidence 401.
191
    See The Kinsey Institute, Frequently Asked Sexuality Questions, www.iub.edu/~kinsey/
resources/FAQ.html (last updated July 21, 2012) (90% of men and 86% of women surveyed
reported having had sex in the last year); Delaware Rule of Evidence 201(b) (judicial notice may
be taken of a fact “not subject to reasonable dispute”).
192
    Wright v. State, 513 A.2d 1310, 1314-15 (Del. 1986). 11 Del. C. § 3508 requires a defendant
to “make a written motion to the court and prosecutor stating that the defense has an offer of
proof concerning the relevancy of evidence of the sexual conduct of the complaining witness
which the defendant proposes to present, and the relevancy of such evidence in attacking the
credibility of the complaining witness” and accompany it with “an affidavit in which the offer of
proof shall be stated.”
                                                  49
Bonistall’s credibility, or why her credibility was even at issue. The Superior Court did

not abuse its discretion in excluding the evidence under § 3508.

           2. The Superior Court Did Not Abuse Its Discretion By Allowing
              Lay Opinion Testimony From A Police Officer That It Was
                          Cooke’s Voice On The 911 Calls

       Following the murder, an anonymous person made three calls to the police 911

call center. In the first call on May 2, 2005, the caller said that the Harmon, Cuadra, and

Bonistall crimes were all related.193 In two additional calls on May 7, 2005, the caller

gave detailed information about the three crimes, including information that had not been

previously released to the public.194 The calls convinced the police that the crimes were

linked and had been committed by the same person. Recordings of these 911 calls were

admitted into evidence.

       After listening to the tapes, Cooke’s girlfriend, Rochelle Campbell, testified that

she was 100 percent certain that the voice on all of the 911 calls was Cooke.195 But the

State also wanted Detective Rubin to present lay opinion testimony that he recognized the

voice on the calls as Cooke’s voice. Detective Rubin had interviewed Cooke, face to

face, for four to six hours after he was arrested, and throughout the investigation and

during the extensive proceedings before the second trial, Detective Rubin had heard

Cooke speak in person for tens of hours, and thus was familiar with Cooke’s voice.196



193
    App. to the State’s Answering Br. at B256-57.
194
    App. to Cooke’s Opening Br. at A542-46; App. to the State’s Answering Br. at B257, B264.
195
    App. to Cooke’s Opening Br. at A325-27.
196
    App. to Cooke’s Opening Br. at A337.
                                               50
Cooke’s counsel objected to Detective Rubin’s lay opinion testimony about the identity

of the voice on the 911 calls, but the Superior Court decided to allow it.

       The Superior Court’s rulings about whether to admit certain evidence are reviewed

for abuse of discretion.197 Delaware Rule of Evidence 701 permits lay witness testimony

in the form of opinions that are: “(a) rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue and (c) not based on scientific, technical or other specialized knowledge

within the scope of rule 702.”198 Thus, Rule 701 “permits a lay witness to testify about

his own impressions when they are based on personal observation.”199 But the ultimate

question of the identity of the voice remains one for the jury to decide,200 and lay opinion

testimony will not be helpful to the jury “when the jury can readily draw the necessary

inferences and conclusions without the aid of the opinion.”201

       Cooke argues that Detective Rubin was no better suited than the jury to make the

judgment at issue. The jury had listened to the recordings of the calls, watched a

videotaped portion of Cooke’s post-arrest interview, and heard Cooke speak in court.

The State contends that Detective Rubin was much more familiar with Cooke’s voice



197
    Richardson v. State, 43 A.3d 906, 911 (Del. 2012) (citing Harris v. State, 991 A.2d 1135,
1138 (Del. 2010).
198
    Delaware Rule of Evidence 701. Additionally Delaware Rule of Evidence 901(b)(5) permits
the “[i]dentification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.”
199
    Washington v. State, 945 A.2d 1168 (Del. 2008).
200
    Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982).
201
    United States v. Sanabria, 645 F.3d 505, 515 (1st Cir. 2011).
                                                 51
than the jury, and that his testimony was therefore helpful.202 Because there was a basis

in the record for the Superior Court to find that Detective Rubin was more familiar with

Cooke’s voice than the jury because of, among other things, his extensive face-to-face

interview with Cooke, and thus, that his testimony would be helpful, the Superior Court

did not abuse its discretion in admitting the testimony.203

       In any event, the admission of Rubin’s lay opinion testimony was harmless.204 As

explained, the jury was required to and was instructed to make its own determination

about this factual question, and there is no rational basis to believe that the jury did not do

that here, or that the jury was somehow unduly influenced by Detective Rubin’s brief

testimony on this point. Furthermore, an error in admitting evidence may be deemed to

be “harmless” when “the evidence exclusive of the improperly admitted evidence is

sufficient to sustain a conviction.”205 Putting aside the jury’s own ability to listen to the

calls and decide that it was Cooke’s own voice on them, the jury also had other lay

opinion evidence besides that provided by Detective Rubin. Campbell — Cooke’s

girlfriend and mother of four of his children — also testified that she was 100 percent

sure that the voice on the 911 calls was Cooke’s. Because Campbell’s testimony

provided a sufficient basis for the jury to conclude that Cooke had made the 911 calls

202
    App. to Cooke’s Opening Br. at A321.
203
    See, e.g., United States v. Cruz-Rea, 626 F.3d 929, 935 (7th Cir. 2010); United States v.
Gholikhan, 370 F. App’x 987, 991 (11th Cir. 2010); United States v. Zepeda-Lopez, 478 F.3d
1213, 1221 (10th Cir. 2007).
204
    Van Arsdall v. State, 524 A.2d 3, 10 (Del. 1987) (“[T]his Court has consistently refused to
reverse convictions for errors found to be harmless.”).
205
    Nelson v. State, 628 A.2d 69, 77 (Del. 1993) (quoting Johnson v. State, 587 A.2d 444, 451
(Del. 1991)).
                                                 52
even without Detective Rubin’s lay opinion testimony any error by the Superior Court in

admitting the evidence was harmless.

              C. Cooke’s Right To An Impartial Jury Was Not Compromised

             1. The Superior Court’s Refusal To Declare A Mistrial Because Of
                  Inappropriate Comments By A Potential Juror Who Was
                      Not Selected Was Not An Abuse Of Discretion

          Cooke also argues that his right to an impartial jury was compromised because the

Superior Court did not declare a mistrial when evidence came to light that a potential

juror had made racist statements to other potential jurors at lunchtime during the jury

selection process. The issue surfaced when another potential juror, Joan Reeder, told her

neighbor about hearing the inappropriate remarks. The neighbor was employed as a

bookkeeper at a law firm, and the neighbor told an attorney at the law firm what Reeder

had said, and the attorney reported it to the Superior Court on February 29, 2012.206

          The Superior Court investigated to determine whether juror misconduct had

occurred. Reeder had been excused from jury service on February 21, 2012, the second

day of jury selection, and the potential juror who made the comments was excused that

day as well. The Superior Court brought the attorney and the neighbor in to testify about

what they had been told.207 The Superior Court also brought Reeder back to testify about

what she had heard and try to determine the identity of the potential juror who had made

the comments. Reeder stated:



206
      App. to the State’s Answering Br. at B83-84.
207
      App. to the State’s Answering Br. at B93-94.
                                                 53
       MS. REEDER: Yes. We were in the cafeteria and he spouted off and
       everybody at the table got up and left and went and sat at other chairs. And
       he was just -- that’s all, to me, he was doing was spouting off.
       THE COURT: When you say he was spouting off, what did he say?
       MS. REEDER: He was saying how prejudiced he was and I’m going to tell
       that judge that since the guy is black and he did it anyway -- and that’s all I
       meant was spouting off. And I thought to myself . . . how dumb are you?208

Reeder added:

       MS. REEDER: And he sat and boasted about how he was prejudice[d].
       And he has a daughter and, you know, it was just unnecessary remarks.
       THE COURT: He didn’t say anything about the merits of the case, just that
       he thought that the defendant did it?
       MS. REEDER: He was going to say he did it anyway.
       THE COURT: Just to get out from -- just to --
       MS. REEDER: Yeah.209

Reeder identified the potential juror as William Wilson. At Cooke’s request, Wilson was

brought in to answer questions regarding his comments.210 Wilson said that he could not

remember exactly what he said but admitted it was possible that he had said something.211

Cooke moved for a mistrial, and the Superior Court denied the motion.212 The Superior

Court said that when the jury was empaneled, it would “make sure that no one has had

any conversations and ask[] them if they have had any conversations with anyone or there

have been any expressions of a predetermination of guilt of the defendant or any

indication of ethnic or [racial] bias or prejudice against this defendant.”213



208
    App. to Cooke’s Opening Br. at A131.
209
    App. to Cooke’s Opening Br. at A134.
210
    App. to Cooke’s Opening Br. at A137-38.
211
    App. to Cooke’s Opening Br. at A143.
212
    App. to Cooke’s Opening Br. at A135; A152.
213
    App. to Cooke’s Opening Br. at A152.
                                             54
       This Court reviews the Superior Court’s denial of a request for a mistrial based on

alleged juror misconduct for abuse of discretion.214 This Court also reviews the Superior

Court’s “decision on the ‘mode and depth of investigative hearings into allegations of

juror misconduct’ and on the remedy for such misconduct for abuse of discretion.”215 “In

the juror misconduct context, however, a defendant is entitled to a new trial ‘only if the

error complained of resulted in actual prejudice or so infringed upon defendant’s

fundamental right to a fair trial as to raise a presumption of prejudice.’”216 “A trial judge

should grant a mistrial only where there is ‘manifest necessity’ or the ‘ends of public

justice would be otherwise defeated.’”217

       Cooke argues that Wilson’s inappropriate statements “may have influenced

potential jurors” and tainted the entire process.218 But, a claim of juror misconduct must

focus on the jurors who were actually seated, not those who were excused.219 Both

Reeder and Wilson were excused, so the misconduct was not committed by a seated


214
    Durham v. State, 867 A.2d 176, 177 (Del. 2005) (citing Barriocanal v. Gibbs, 697 A.2d 1169,
1171 (Del. 1997)).
215
    Caldwell v. State, 780 A.2d 1037, 1058 (Del. 2001) (quoting Massey v. State, 541 A.2d 1254,
1257 (Del. 1998); see also Lovett v. State, 516 A.2d 455, 475 (Del. 1986) (“The Trial Judge has
very broad discretion in deciding whether a case must be retried or the jurors summoned and
investigated due to alleged exposure to prejudicial information or improper outside influence.”).
216
    Durham v. State, 867 A.2d 176, 179 (Del. 2005) (quoting Hughes v. State, 490 A.2d 1034,
1043 (Del. 1985)); see also Capano v. State, 781 A.2d 556, 645 (Del. 2001) (quoting Massey v.
State, 541 A.2d 1254, 1255 (Del. 1988) (“To impeach a jury verdict because of juror misconduct,
‘a defendant must establish actual prejudice unless defendant can show that the circumstances
surrounding the misconduct were so egregious and inherently prejudicial as to support a
presumption of prejudice to defendant.’”)).
217
    Steckel v. State, 711 A.2d 5, 11 (Del. 1998) (quoting Fanning v. Superior Court, 320 A.2d
343, 345 (Del. 1974).
218
    Cooke’s Opening Brief at 47.
219
    Ross v. Oklahoma, 487 U.S. 81, 86 (1988).
                                                 55
juror. Furthermore, there is no evidence of record that any of the seated jurors were

improperly influenced by Wilson’s comments, which were of a generically offensive

racist kind and did not involve statements suggesting that Wilson possessed case-specific

evidence about Cooke’s culpability. Perhaps for that reason, Cooke has not even alleged

that he suffered any actual prejudice as a result of the comments. Thus, the Superior

Court did not abuse its discretion in denying Cooke’s motion for a mistrial.

        2. The Superior Court Did Not Abuse Its Discretion When It Dismissed
                        Juror #10 For Inappropriate Conduct

       Cooke next contends that the Superior Court abused its discretion by removing a

juror, Juror #10, for repeated misbehavior. Cooke claims that the Superior Court’s real

reason for removing Juror #10 was because of her views about the evidence presented,

and that in excusing Juror #10, the Superior Court “stripped [Cooke] of a juror of his

choosing.”220 This Court reviews the Superior Court’s decision to excuse a juror for

abuse of discretion.221

       The record does not support Cooke’s argument. On March 26, 2012, Juror #10

arrived late, and her tardiness delayed the start of the trial. Juror #10 had been late

several times before.222 When Juror #10 arrived, the Superior Court reprimanded her and

instructed her to be on time in the future.223 Later that morning, the State pointed out that

Juror #10 “doesn’t seem to be totally engaged in the process and at times is literally

220
    Cooke’s Opening Brief at 49.
221
    Capano v. State, 781 A.2d 556, 644 (Del. 2001); Johnson v. State, 311 A.2d 873, 874 (Del.
1973); see also United States v. Bertoli, 40 F.3d 1384, 1392 (3d Cir. 1994).
222
    App. to the State’s Answering Br. at B258.
223
    App. to Cooke’s Opening Br. at A319.
                                                 56
looking away and seems agitated.”224 That afternoon, the State said that they had noticed

that Juror #10 was “muttering under her breath” during sidebars and “rocking back and

forth.”225 Cooke’s counsel said that “[t]he only thing I’ve noticed, Your Honor, is I don’t

think she’s buying the State’s case and that’s why the State wants to get rid of her.”226

The Superior Court took no action at that time because it did not think it had a basis to,

but would “continue to watch it.”227

        On March 29, 2012, the jurors went on a site visit to see the apartments in

Newark, Delaware that had been burglarized. During the visit, Juror #10 yelled and

cursed at one of the bailiffs because she thought he was treating her unfairly when he

would not let her smoke.228 The State raised other concerns about Juror #10, including

that she would not follow the bailiff’s instructions to stay with the group during the site

visit, and that she had attempted to ask the investigating officer a substantive question,

which was against the Superior Court’s explicit instructions.229 The State then asked for




224
    App. to Cooke’s Opening Br. at A320.
225
    App. to Cooke’s Opening Br. at A328; App. to the State’s Answering Br. at B272.
226
    App. to Cooke’s Opening Br. at A328.
227
    App. to Cooke’s Opening Br. at A328.
228
    App. to Cooke’s Opening Br. at A339-340 (“She got all mad. Fuck, you know, all kind of
curse words, stomping her feet, waving her hands, totally upset. . . . Then once we got off the
elevator on the eighth floor, she was “F” this and “F” that. This is bullshit, waiving her hands in
the air. . . . She started yelling at me, saying this was bullshit. . . . And . . . she apparently called
me a fucking idiot.”); A341 (“She started stomping her feet, waving her hands, saying this is
bullshit and, you know, I want to fucking smoke. This is -- just ranting and raving basically
about not being able to smoke all the way. . . . But as she was going in, I believe she was like,
well, I’ll just be late for everything then. She’s been consistently late pretty much every day.”).
229
    App. to Cooke’s Opening Br. at A340.
                                                    57
Juror #10 to be removed. After hearing testimony from the bailiff and Juror #10 about

the incident, the Superior Court excused Juror #10.230

       Because there is ample evidence in the record to support its conclusion that Juror

#10 should be excused due to her inappropriate conduct and not because of her views of

the evidence, the Superior Court did not abuse its discretion by dismissing her.

Furthermore, when the Superior Court questioned each of the remaining jurors to

determine whether Juror #10’s behavior or her excusal would affect their ability to give

fair and impartial consideration to the issues in the case, the remaining jurors indicated

that they would be able to proceed unaffected.231

3. The Superior Court’s Refusal To Declare A Mistrial For Inaccurate Answers Given
          By Juror #3 During Voir Dire Was Not An Abuse Of Discretion

       Cooke’s final argument relating to the composition of the jury is that the Superior

Court erred by failing to excuse a juror who gave inaccurate information in response to

voir dire questions. Cooke says that had that juror given accurate answers, he would

have attempted to strike her, and that the juror’s failure to answer accurately thus

deprived him of a fair jury. To address this claim fairly, the factual background must first

be recited in some detail.




230
    App. to Cooke’s Opening Br. at A346 (“[S]he has been late, consistently late. And that in and
of itself doesn’t bother me. But I just see a disruptive influence. And her behavior and conduct
is such that I wouldn’t take it from an attorney and I wouldn’t take it from a party and I’m not
going to take it from her. I, therefore, reluctantly and over your objection and Mr. Cooke’s
objection . . . I’m going to excuse her.”).
231
    App. to Cooke’s Opening Br. at A346-53.
                                                  58
       During the jury selection process, the Superior Court asked ten preliminary

questions to the jury array. Then individual voir dire questioning began. When Luz

Rodriguez (who eventually became “Juror #3”) presented on February 21, 2012, she was

asked, “Have you, a relative, or close friend ever been a witness of, or a victim of a

violent crime?”232 Juror #3 responded that two of her nephews had been killed ten years

ago in Philadelphia. Further questioning revealed that the perpetrators had been

convicted and sentenced to life in prison. Juror #3 was also asked, “Have you, a relative,

or close friend ever been charged with, or convicted of a criminal offense?”233 Juror #3

said no. Juror #3 was also asked, “Are you, a relative, or close friend presently under

investigation or prosecution by any law enforcement agency for any criminal offense?”234

Juror #3 said no. Juror #3 said that on a scale from one to ten, she was a seven in favor of

the death penalty.235 Juror #3 also disclosed that she had been a juror twice before, in a

robbery trial and an attempted murder trial, and both juries had given guilty verdicts.236

Neither Cooke nor the State challenged Juror #3 for cause or used a peremptory challenge

to strike her, and she was seated as a member of the jury.

       After the jury returned guilty verdicts against Cooke on all but one misdemeanor

theft charge, the penalty hearing began on April 18, 2012. During the penalty hearing, on

April 25, 2012, Juror #3 received a notice in the mail that she had been summoned as a


232
    App. to Cooke’s Opening Br. at A129.
233
    App. to Cooke’s Opening Br. at A129.
234
    App. to Cooke’s Opening Br. at A129.
235
    App. to Cooke’s Opening Br. at A128.
236
    App. to Cooke’s Opening Br. at A129.
                                             59
witness in a Family Court hearing that was scheduled for May 7, 2012. The next day, on

April 26, 2012, Juror #3 told the bailiff about the summons.237 The bailiff brought the

issue to the attention of the Superior Court.

       The Superior Court questioned Juror #3, and she explained that on December 18,

2011, she witnessed an altercation between her husband, Jose Acevedo (the “Husband”),

and her twenty-year old daughter, Valerie Cotto (the “Daughter”), who lived with them.

The Husband made a negative comment to the Daughter, the exchange escalated to name-

calling, and then the Daughter threatened the Husband with a kitchen knife.238 The

grandchildren were present, so Juror #3 took them upstairs. A few minutes later, Juror #3

heard the Husband calling her name. When Juror #3 returned to the kitchen, she saw the

Daughter on the floor and the Husband holding the Daughter by the neck. Juror #3 told

the Husband to let the Daughter go, and when he did, the Daughter called the police. The

Husband told Juror #3 that after she left, the Daughter hit him twice with a frying pan.239

The Husband said that he had grabbed the Daughter only to prevent her from hitting him

again. Juror #3 believed him and felt that he had only held the Daughter by the neck in

order to stop her from assaulting him.

       Nonetheless, the police arrested the Husband, and he spent the night in jail, but

Juror #3 posted his bail the next day.240 The Husband was initially charged with

strangulation, menacing, and three counts of endangering the welfare of a child. Those

237
    App. to Cooke’s Opening Br. at A420.
238
    App. to Cooke’s Opening Br. at A424.
239
    App. to Cooke’s Opening Br. at A425.
240
    App. to Cooke’s Opening Br. at A425.
                                                60
charges were reduced to two misdemeanors for offensive touching and menacing. But

the Daughter repeatedly informed Juror #3 that she had dropped all charges

voluntarily.241

       On April 11, 2012, the day the jurors were to be sequestered, the Husband carried

Juror #3’s luggage to the courthouse and told her that he had to go to a hearing that

day.242 Juror #3 went with him to the hearing because the Husband does not speak much

English, and she discovered that the charges had not been dropped. Juror #3 called the

Daughter to ask what was going on, and the Daughter said that she “told them [she]

didn’t want to press charges against him.”243 Juror #3 told the Superior Court that she did

not inform it about the situation at that time because, after talking to the Daughter, she

thought that the charges would be dropped. Juror #3 did not know that the charges had

not been dropped until she received the witness summons in the mail.

       The Superior Court asked Juror #3 whether the incident created any problems with

her participation in the case, and whether it would cause her to treat the State differently

than the Defense. Juror #3 answered “no” to both questions.244 After discussion with

counsel, the Superior Court concluded that it did not have enough information to make a

determination about whether the incident had impaired or would impair Juror #3’s ability

to be impartial. The Superior Court called Juror #3 back for a hearing on April 27, 2012.

Juror #3 provided additional information about the incident and answered questions from

241
    App. to Cooke’s Opening Br. at A425-426.
242
    App. to Cooke’s Opening Br. at A426.
243
    App. to Cooke’s Opening Br. at A427.
244
    App. to Cooke’s Opening Br. at A421.
                                               61
the Superior Court. The Superior Court asked Juror #3 multiple times whether the

incident affected her vote in the case or negatively affected her ability to be fair and

impartial, and Juror #3 answered, “Not at all.”245

       The Superior Court asked Juror #3 why she did not say during voir dire that she

had been a witness to a violent crime. Juror #3 responded that the question did not cause

her to think about the incident with the Daughter, “[b]ecause based on what I saw I never

felt that he tried to kill her. The way that I saw it, he [was] just trying to stop her from

hitting him with a frying pan.”246 The Superior Court asked Juror #3 why she did not say

during voir dire that a relative had been charged with a criminal offense. Juror #3 said

that “because my daughter had told me that she withdraw the charges against him, my

answer was no” and that she considered the charges by her daughter to be “a false

claim.”247 The Superior Court asked Juror #3 why she did not say during voir dire that a

relative was under investigation. Juror #3 said that “because [the Daughter] had already

told me that she withdr[e]w the charges, then I thought there was no investigation going

on.”248 The Superior Court asked whether Juror #3 thought that hitting the Husband was

a violent act. Juror #3 said, “No. I mean, it’s violence, but I wasn’t thinking about that

incident when I answered that question” because “[i]t was a family thing.”249




245
    App. to Cooke’s Opening Br. at A428-29.
246
    App. to Cooke’s Opening Br. at A427.
247
    App. to Cooke’s Opening Br. at A431.
248
    App. to Cooke’s Opening Br. at A431.
249
    App. to Cooke’s Opening Br. at A431.
                                              62
       The Husband’s case was prosecuted by the Family Division of the Delaware

Department of Justice, and the prosecutor represented to the Superior Court that the

Family Court unit was entirely separate from the unit tasked with prosecuting felony

trials in the Superior Court.250 Juror #3 did not know the prosecutor or defense attorney

involved in the Husband’s case and had not met them.251

       Cooke’s counsel then moved for a mistrial,252 which the Superior Court denied

after hearing arguments.253 The Superior Court remarked that “I don’t have someone

who’s being disingenuous”254 and then concluded:

       I did find her -- she was inaccurate [i]n her answers, but she was honest. I do
       not believe she meant to deceive. I think, in her mind, she explained why she
       answered what she answered. The [Defense] has a view of whether she
       would have been struck or not have been struck, but at this point I do not find
       the error, A, to be intentional and, B, to be of such a dimension that it would
       result in a fundamental injustice to the defendant.255

The Superior Court then had to determine whether to remove Juror #3 and replace her

with an alternate for the sentencing hearing. The State argued that Juror #3 should be

removed because it was concerned that she would be biased against the State.256 But the

defense argued that Juror #3 should remain on the panel, stating that “if you find that she

was fair enough to render a verdict of guilty, she’s fair enough to sit on the penalty




250
    App. to Cooke’s Opening Br. at A432.
251
    App. to Cooke’s Opening Br. at A427.
252
    App. to Cooke’s Opening Br. at A433.
253
    App. to Cooke’s Opening Br. at A440.
254
    App. to Cooke’s Opening Br. at A434.
255
    App. to Cooke’s Opening Br. at A440.
256
    App. to Cooke’s Opening Br. at A440-41.
                                              63
phase.”257 The State noted that the next alternate juror said that on a scale from one to

ten, he was a ten in favor of the death penalty, whereas Juror #3 was only a seven.258 The

Superior Court determined that Juror #3 would stay on the panel and would not be

excused. On May 21, 2012, the defense filed a motion for a new trial, based on the

grounds of juror bias and misconduct, specifically the issue with Juror #3’s inaccurate

answers to the voir dire questions.259 On July 24, 2012, the Superior Court issued a

38-page decision denying the motion for a new trial.260

       Cooke now claims that if Juror #3 had answered the voir dire questions accurately,

then he would have challenged her for cause or exercised a peremptory challenge.261

Cooke also claims that the Superior Court’s failure to remove Juror #3 or to declare a

mistrial deprived him of trial by an impartial jury, and that he should be entitled to a new

trial as a result. This Court reviews the Superior Court’s refusal to grant a motion for a

new trial for abuse of discretion.262

       The Constitutions of our nation and our state guarantee a criminal defendant the

right to have his case heard by an impartial jury.263 The right to challenge a potential

juror during voir dire is an important safeguard of the right to trial by an impartial jury,


257
    App. to Cooke’s Opening Br. at A441-42.
258
    App. to Cooke’s Opening Br. at A442.
259
    App. to Cooke’s Opening Br. at A467.
260
    App. to Cooke’s Opening Br. at A478; see also State v. Cooke, 2012 WL 3060956 (Del.
Super. July 24, 2012).
261
    Cooke’s Opening Brief at 42.
262
    Taylor v. State, 685 A.2d 349, 350 (Del. 1996); Massey v. State, 541 A.2d 1254, 1257 (Del.
1988).
263
    U.S. Const. Amend. VI; Del. Const. Art. I, § 7; Flonnery v. State, 778 A.2d 1044, 1052 (Del.
2001).
                                                64
and that right can be compromised when a juror fails to disclose material information.264

The purpose of voir dire is to provide the Superior Court and the parties with “sufficient

information to decide whether prospective jurors can render an impartial verdict based on

the evidence developed at trial and in accordance with the applicable law.”265 This Court

has held that “if only one juror is improperly influenced, a defendant in a criminal case is

denied his Sixth Amendment right to an impartial jury.”266

       In addressing what consequences should follow when jurors have failed to answer

material questions during voir dire accurately, the law distinguishes between situations

where a juror’s failure to answer accurately was deliberate, rather than inadvertent.

Where a juror deliberately fails to answer honestly a material question during voir dire,

that dishonesty is considered to be, in itself, sufficient evidence of bias to require that the

defendant be afforded a new trial.267 By contrast, to determine whether a new trial must

be held in cases involving inadvertent non-disclosure by a juror, this Court has adopted

the standard set by the United States Supreme Court in McDonough Power Equipment

Inc. v. Greenwood.268 McDonough held that to obtain a new trial, a defendant must

demonstrate both that “a juror failed to answer honestly a material question on voir dire,”

and that “a correct response would have provided a valid basis for a challenge for



264
    Jackson v. State, 374 A.2d 1, 2 (Del. 1977).
265
    Hughes v. State, 490 A.2d 1041 (Del. 1985) (citing Parson v. State, 275 A.2d 777, 780 (Del.
1971)).
266
    Hall v. State, 12 A.3d 1123 (Del. 2010).
267
    Schwan v. State, 65 A.3d 582, 591 (Del. 2013); Jackson v. State, 374 A.2d 1, 2 (Del. 1977).
268
    464 U.S. 548 (1984); Banther v. State, 783 A.2d 1287, 1290-91 (Del. 2001).
                                                 65
cause.”269 This Court has held that “[d]uring jury selection in a capital murder case, the

answer to a question about violent crime is material.”270 Thus, Cooke has established that

the relevant questions posed to Juror #3 were material.

       The Superior Court’s assessment of a juror’s honesty during voir dire is entitled to

“special deference.”271 This deference is “based upon the judge’s ability to assess the

veracity and credibility of the potential juror.”272 Here, the Superior Court concluded that

Juror #3’s answers to the voir dire questions were inadvertently inaccurate, rather than

purposefully untrue.273 The Superior Court also found that Juror #3’s explanations were

“candid and credible,”274 and that Juror #3’s voir dire answers were an “honest statement

or belief made in good faith.”275

       The record adequately supports the Superior Court’s conclusion that Juror #3’s

incomplete answers to the voir dire questions resulted from an honest mistake. Juror #3

plausibly explained why the Superior Court’s question about witnessing a violent crime


269
    Schwan v. State, 65 A.3d 582, 591 (Del. 2013); Banther v. State, 783 A.2d 1287, 1290–91
(Del. 2001).
270
    Banther v. State, 783 A.2d 1287, 1291 (Del. 2001), see also Sampson v. United States, 724
F.3d 150, 165 (1st Cir. 2013) (“[A] voir dire question is material if a response to it ‘has a natural
tendency to influence, or is capable of influencing,’ the judge’s impartiality determination.”).
271
    Patton v. Yount, 467 U.S. 1025, 1038 (1984); DeShields v. State, 534 A.2d 630, 636 (Del.
1987) (“Determinations of juror impartiality are the responsibility of the trial judge who has the
opportunity to question the juror, observe his or her demeanor, and evaluate the ability of the
juror to render a fair verdict.”).
272
    Schwan v. State, 65 A.3d 582, 589 (Del. 2013); Hughes v. State, 490 A.2d 1034, 43 (Del.
1985) (“[I]t is the judge who is best situated to determine competency to serve impartially.”).
273
    App. to Cooke’s Opening Br. at A507 (“There is no indication that Juror No. 3 was
intentionally deceptive at any point in her responses to the voir dire, in bringing the matter to the
attention of the Court or in testifying before Court about her involvement in the . . . matter.”).
274
    App. to Cooke’s Opening Br. at A508.
275
    App. to Cooke’s Opening Br. at A438.
                                                  66
did not cause her to think about the ambiguous event between the Husband and the

Daughter. Juror #3 testified that she viewed her Husband as defending himself against

the Daughter’s attacks with a knife and a frying pan. Juror #3 also explained that she did

not think that the Husband was charged with, or was under investigation for, a crime

because she believed that the Daughter had dropped the charges. Although Cooke argued

that the Superior Court erred by accepting Juror #3’s explanation, the Superior Court’s

decision to do so was within its discretion and resulted from a very thorough factual

inquiry. Supporting its finding was the fact that Juror #3 herself surfaced the issue,

belying the notion that Juror #3 had somehow purposely hid the issue so as to further

some desire on her part to serve as a juror in Cooke’s trial.

       Because the Superior Court had a sufficient basis to conclude that Juror #3’s

answers were not intentionally false, we need not reach the second prong of McDonough

— the question of whether the record also supports the Superior Court’s conclusion that

Cooke would not have had a basis to strike Juror #3 for cause even if she had more

accurately answered the voir dire questions. Put simply, Juror #3’s honest but mistaken

answers to the voir dire questions do not amount to a violation of Cooke’s constitutional

rights that would entitle him to a new trial.276 As the United States Supreme Court


276
   See Smallwood v. State, 2002 WL 31883015 (Del. Dec. 26, 2002); see also United States v.
Hodge, 321 F.3d 429, 441 (3d Cir. 2003) (“Generally, we will not invalidate a jury’s verdict
because of a juror’s mistaken, though honest, response at voir dire.”); United States v. Ortiz, 942
F.2d 903, 909 (5th Cir. 1991) (“Moreover—and much more important—[the juror]’s post-verdict
dialogue with the district court suggests that he answered the voir dire query honestly yet
inaccurately, something McDonough Power Equipment Co. expressly permits.”); Arreola v.
Choudry, 533 F.3d 601, 608 (7th Cir. 2008) (quoting McDonough).
                                                  67
explained in McDonough, “[t]o invalidate the result of a [multi]-week trial because of a

juror’s mistaken, though honest response to a question, is to insist on something closer to

perfection than our judicial system can be expected to give.”277

      D. Imposition Of The Death Penalty Does Not Fail A Proportionality Review

        This Court is statutorily mandated to conduct a specific form of judicial review

following the imposition of a death sentence. Under 11 Del. C. § 4209(g), this Court

must review a sentence of death to determine whether: (1) the evidence supports, beyond

a reasonable doubt, the jury’s finding of at least one statutory aggravating circumstance;

(2) the sentence was arbitrarily or capriciously imposed or recommended; and (3) the

sentence is disproportionate to the penalty imposed in similar cases.278

        Cooke argues that his death sentence in this case fails a proportionality review,

because it is “disproportionate to the penalty recommended in similar cases.”279 Cooke

also claims that “the trial process and the penalty phase were so flawed as to deny him

Due Process so that a proportionality review for this case would be impossible.”280

Cooke claims that the conviction and sentence are “manifestly unjust and [] so lacking in

reliability that it renders such analysis useless.”281 As explained above, Cooke’s

complaints about the trial process and the penalty phase do not have merit, and thus they

do not render the required proportionality review impossible or useless.


277
    McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984).
278
    Sykes v. State, 953 A.2d 261, 273 (Del. 2008), Pennell v. State, 604 A.2d 1368 (Del. 1992).
279
    Cooke’s Opening Brief at 95 (citing 11 Del. C. § 4209(g)(2)(a)).
280
    Cooke’s Opening Brief at 97.
281
    Cooke’s Opening Brief at 98.
                                                68
       We also conclude that Cooke’s alternative argument that the sentence entered

against him does not survive the statutory review process lacks merit.

       First, the evidence in the record supports the jury’s finding that there was no

reasonable doubt that a statutory aggravating factor existed because Bonistall’s murder

was committed while Cooke was engaged in the commission of, or attempt to commit,

one of the enumerated felonies in 11 Del. C. § 4209(e)(1)(j). The jury convicted Cooke

of first degree rape and first degree burglary. Because Cooke was properly convicted of

those crimes by the jury on sufficient evidence, the statutory aggravating circumstance

was established as a matter of law.282

       Next, the Superior Court did not arbitrarily or capriciously impose the death

penalty. A trial court’s decision is arbitrary and capricious only if the decision is not “the

product of a deliberate, rational and logical deductive process.”283 Here, the Superior

Court set out its rationale for the sentencing decision in a detailed 70-page written

opinion.284 The Superior Court identified several nonstatutory factors alleged by the

State, including the gruesome circumstances of Bonistall’s murder, the other home

invasions and violent crimes that Cooke committed in Newark and in Atlantic City

around the same time as Bonistall’s murder, and Cooke’s 25-year criminal history. In

reaching its decision, the Superior Court also carefully considered the mitigating

evidence presented by Cooke’s standby counsel, including the abandonment and abuse in

282
    Dawson v. State, 627 A.2d 57, 66 (Del. 1994).
283
    Manley v. State, 918 A.2d 321, 329 (Del. 2007) ((quoting Red Dog v. State, 616 A.2d 298,
310 (Del. 1992)).
284
    See Sentencing Decision, Exhibit B to Cooke’s Opening Brief (Sept. 17, 2012).
                                               69
his childhood, Cooke’s affection for his family, and the impact his execution would have

on his children. Then, after reviewing these factors, the Superior Court made a reasoned

determination that the mitigating factors were outweighed by the aggravating factors.

Because the Superior Court’s decision was the result of rational thinking that cannot be

described as arbitrary and capricious, we are bound to defer to it.285

       Finally, Cooke’s sentence is not disproportionate to the penalty imposed in similar

cases. To determine if a death sentence is disproportionate, the Court reviews the

universe of cases,286 which is comprised of those First Degree Murder cases that have

included a penalty hearing and in which a sentence of either life or death has become

final,287 without or following a review by this Court.288 A definitive comparison of cases

is “almost impossible.”289 “The fact that there is only one statutory aggravating factor in

this case does not make imposition of the death penalty disproportionate.”290

       The task of conducting a proportionality review under § 4209(g) has a necessarily

uncomfortable quality, because determining whether a crime that ended in someone’s

death is more or less condemnable involves a decisionmaking process that can never be

wholly objective or untroubling. But this is not a close case. Burglarizing an occupied




285
    Red Dog v. State, 616 A.2d 298, 309 (Del. 1992).
286
    See Appendix A.
287
    Capano v. State, 781 A.2d 556, 677-78 (Del. 2001).
288
    Sykes v. State, 953 A.2d 261, 273 (Del. 2008).
289
    Clark v. State, 672 A.2d 1004, 1010 (Del. 1996).
290
    Capano v. State, 781 A.2d 556, 677-78 (Del. 2001).
                                                70
home in the early morning hours is more than sufficiently terrorizing to the victim.291

Binding,292 brutally beating, raping, and strangling the innocent and defenseless victim,293

and then dousing her dead body in bleach and burning it in an attempt to destroy evidence

of the crime is — by any minimal standard of human decency — horrific and depraved

conduct, which renders the perpetrator eligible for a sentence of death under clear

precedent interpreting the Constitutions of our state and our nation.294 Therefore, the

Superior Court was justified in finding that “[t]he evidence presented at trial leads to the

inescapable conclusion that the murder of Lindsey Bonistall was committed in an

unusually cruel and depraved fashion.”295 Accordingly, this case easily fits the pattern of

cases where the death penalty has been upheld as proportionate.

                                    IV. CONCLUSION

       For all of these reasons, the judgment of the Superior Court is AFFIRMED.



291
    See, e.g., Swan v. State, 820 A.2d 342, 360 (Del. 2003) (“[T]he home [is] one place where a
person should feel secure from the elements that may place their family at risk.”).
292
    See, e.g., Dawson v. State, 637 A.2d 57, 68 (Del. 1994) (noting that “Dawson’s murder
victim, like those of Red Dog and Pennell, was rendered helpless by binding before her death”
when concluding that Dawson’s death sentence was proportionate).
293
    See, e.g., Steckel v. State, 711 A.2d 5, 14 (Del. 1998) (affirming death sentence where
defendant attacked, strangled, and raped his helpless victim).
294
    See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 437-38 (2008) (distinguishing between
intentional first-degree murder and other serious violent crimes, and determining that although
the death penalty is constitutional for murder, “the death penalty should not be expanded to
instances where the victim’s life was not taken”) Tison v. Arizona, 481 U.S. 137, 158 (1987)
(death penalty is constitutional in a felony murder case where the defendant was a major
participant in the felony committed and the defendant acted with reckless indifference to human
life); Dawson v. State, 637 A.2d 57, 67-68 (Del. 1994) (death penalty was constitutional where
the defendant “was found guilty of committing an unprovoked, cold-blooded murder of a person
who lacked the ability to defend herself”).
295
    Sentencing Decision, Exhibit B to Cooke’s Opening Brief (Sept. 17, 2012) at 48.
                                                  71
APPENDIX A*

Name:                         Robert Ashley
Criminal ID:                  9605003410
County:                       New Castle
Sentence:                     Life imprisonment (following retrial and second penalty
                              hearing)
Decision on appeal:           2006 WL 797894 (Del. Mar. 27, 2006)

Name:                         Meri-Ya C. Baker
Criminal ID:                  90011925DI
County:                       New Castle
Sentence:                     Life imprisonment
Decision on appeal:           1993 WL 557951 (Del. Dec. 30, 1993)

Name:                         Jermaine Barnett
Criminal ID:                  9506017682
County:                       New Castle
Sentence:                     Life imprisonment (following second penalty hearing)
Decision on appeal:           749 A.2d 1230 (Del. 2000) (remanding for new
                              sentencing)

Name:                         Hector S. Barrow
Criminal ID:                  9506017661
County:                       New Castle
Sentence:                     Life imprisonment (following second penalty hearing)
Decision on appeal:           749 A.2d 1230 (Del. 2000) (remanding for new
                              sentencing)

Name:                         Tyreek D. Brown
Criminal ID:                  9705011492
County:                       New Castle
Sentence:                     Life imprisonment
Decision on appeal:           1999 WL 485174 (Del. Mar. 1, 1999)


*
 The universe of cases prior to 1991 is set forth in appendices to prior opinions by this
Court, and those appendices are incorporated herein by reference. See, e.g., Lawrie v.
State, Del. Supr., 643 A.2d 1336, 1352-56 (1994).



                                           A-1
Name:                 Justin L. Burrell
Criminal ID:          9805012046
County:               Kent
Sentence:             Life imprisonment
Decision on appeal:   766 A.2d 19 (Del. 2000)

Name:                 Luis G. Cabrera
Criminal ID:          9703012700
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   747 A.2d 543 (Del. 2000)

Name:                 Luis G. Cabrera
Criminal ID:          9904019326
County:               New Castle
Sentence:             Death
Decision on appeal:   840 A.2d 1256 (Del. 2004)

Name:                 James B. Clark, Jr.
Criminal ID:          9406003237
County:               New Castle
Sentence:             Death (judge only)
Decision on appeal:   672 A.2d 1004 (Del. 1996)

Name:                 Charles M. Cohen
Criminal ID:          90001577DI
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   No direct appeal taken

Name:                 Donald Cole
Criminal ID:          0309013358
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   922 A.2d 364 (Del. 2007)




                                A-2
Name:                 James T. Crowe, Jr.
Criminal ID:          9508008979
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   1998 WL 736389 (Del. Oct. 8, 1998)

Name:                 David F. Dawson
Criminal ID:          88K00413DI
County:               New Castle (venue changed)
Sentence:             Death
Decision on appeal:   637 A.2d 57 (Del. 1994)

Name:                 Byron S. Dickerson
Criminal ID:          90011926DI
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   1993 WL 541913 (Del. Dec. 21, 1993)

Name:                 Cornelius E. Ferguson
Criminal ID:          91009926DI
County:               New Castle
Sentence:             Death
Decision on appeal:   642 A.2d 772 (Del. 1994)

Name:                 Donald Flagg
Criminal ID:          9804019233
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   No direct appeal taken

Name:                 Freddy Flonnory
Criminal ID:          9707012190
County:               New Castle
Sentence:             Life imprisonment (following second penalty hearing)
Decision on appeal:   893 A.2d 507 (Del. 2006)




                                A-3
Name:                 Sadiki J. Garden
Criminal ID:          9912015068
County:               New Castle
Sentence:             Life imprisonment ordered on appeal
Decision on appeal:   844 A.2d 311 (Del. 2004)

Name:                 Robert J. Garvey
Criminal ID:          0107010230
County:               New Castle
Sentence:             Life imprisonment
Appeal:               873 A.2d 291 (Del. 2005)

Name:                 Robert A. Gattis
Criminal ID:          90004576DI
County:               New Castle
Sentence:             Death (death sentence commuted in 2012)
Decision on appeal:   637 A.2d 808 (Del. 1994)

Name:                 Arthur Govan
Criminal ID:          92010166DI
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   1995 WL 48359 (Del. Jan. 30, 1995)

Name:                 Tyrone N. Guy
Criminal ID:          0107017041
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   913 A.2d 558 (Del. 2006)

Name:                 Jason Anthony Hainey
Criminal ID:          0306015699
County:               New Castle
Sentence:             Life imprisonment
Appeal:               878 A.2d 430 (Del. 2005)




                                A-4
Name:                 Ronald T. Hankins
Criminal ID:          0603026103A
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   976 A.2d 839 (Del. 2009)

Name:                 Akbar Hassan-El
Criminal ID:          010701704
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   911 A.2d 385 (Del. 2006)

Name:                 Robert W. Jackson, III
Criminal ID:          92003717
County:               New Castle
Sentence:             Death
Decision on appeal:   684 A.2d 745 (Del. 1996)

Name:                 Larry Johnson
Criminal ID:          0309013375
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   878 A.2d 422 (Del. 2005)

Name:                 Shannon Johnson
Criminal ID:          0609017045
County:               New Castle
Sentence:             Death
Decision on appeal:   983 A.2d 904 (Del. 2009)

Name:                 David Jones
Criminal ID:          9807016504
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   798 A.2d 1013 (Del. 2002)




                                A-5
Name:                 Michael Jones
Criminal ID:          9911016309
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   940 A.2d 1 (Del. 2007).

Name:                 Michael Keyser
Criminal ID:          0310021647
County:               Kent
Sentence:             Life imprisonment
Decision on appeal:   893 A.2d 956 (Del. 2006)

Name:                 David J. Lawrie
Criminal ID:          92K03617DI
County:               Kent
Sentence:             Death
Decision on appeal:   643 A.2d 1336 (Del. 1994)

Name:                 Thomas M. Magner
Criminal ID:          9509007746
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   1998 WL 666726 (Del. July 29, 1998)

Name:                 Michael R. Manley
Criminal ID:          9511007022
County:               New Castle
Sentence:             Death
Decision on appeal:   918 A.2d 321 (Del. 2007)

Name:                 Frank W. Moore, Jr.
Criminal ID:          92S03679DI
County:               Sussex
Sentence:             Life imprisonment
Decision on appeal:   1994 WL 202289 (Del. May 9, 1994)




                                A-6
Name:                 Adam Norcross
Criminal ID:          0002006278A
County:               Kent
Sentence:             Death
Decision on appeal:   816 A.2d 757 (Del. 2003)

Name:                 Juan Ortiz
Criminal ID:          0107004046A
County:               Kent
Sentence:             Death
Decision on appeal:   869 A.2d 285 (Del. 2005)

Name:                 Darrel Page
Criminal ID:          9911016961
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   934 A.2d 891 (Del. 2007)

Name:                 James W. Perez
Criminal ID:          93001659
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   No. 207, 1993, Moore, J. (Del. Feb. 3, 1994)

Name:                 Gary W. Ploof
Criminal ID:          0111003002
County:               Kent
Sentence:             Death
Decision on appeal:   75 A.3d 840 (Del. 2013)

Name:                 Derrick Powell
Criminal ID:          0909000858
County:               Sussex
Sentence:             Death
Decision on appeal:   49 A.3d 1090 (Del. 2012)




                                A-7
Name:                 James Allen Red Dog
Criminal ID:          91001754DI
County:               New Castle
Sentence:             Death (judge only)
Decision on appeal:   616 A.2d 298 (Del. 1992)

Name:                 Luis Reyes
Criminal ID:          9904019329
County:               New Castle
Sentence:             Death
Decision on appeal:   819 A.2d 305 (Del. 2003)

Name:                 James W. Riley
Criminal ID:          0004014504
County:               Kent
Sentence:             Life imprisonment (following retrial)
Decision on appeal:   2004 WL 2085525 (Del. Oct. 20, 2004)

Name:                 Jose Rodriguez
Criminal ID:          93001668DI
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   1994 WL 679731 (Del. Nov. 29, 1994)

Name:                 Richard Roth, Jr.
Criminal ID:          9901000330
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   788 A.2d 101 (Del. 2001)

Name:                 Reginald N. Sanders
Criminal ID:          91010161DI
County:               New Castle (venue changed)
Sentence:             Life imprisonment (following 1992 resentencing)
Decision on appeal:   585 A.2d 117 (Del. 1990) (remanding for new
                      sentencing)




                                A-8
Name:                 Nelson W. Shelton
Criminal ID:          92000788DI
County:               New Castle
Sentence:             Death
Decision on appeal:   652 A.2d 1 (Del. 1995)

Name:                 Donald J. Simmons
Criminal ID:          92000305DI
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   No direct appeal taken

Name:                 Chauncey Starling
Criminal ID:          0104015882
County:               New Castle
Sentence:             Death (on two counts)
Decision on appeal:   903 A.2d 758 (Del. 2006)

Name:                 Brian David Steckel
Criminal ID:          9409002147
County:               New Castle
Sentence:             Death
Decision on appeal:   711 A.2d 5 (Del. 1998)

Name:                 David D. Stevenson
Criminal ID:          9511006992
County:               New Castle
Sentence:             Death
Decision on appeal:   918 A.2d 321 (Del. 2007)

Name:                 Willie G. Sullivan
Criminal ID:          92K00055
County:               Kent
Sentence:             Death
Decision on appeal:   636 A.2d 931 (Del. 1994)




                                A-9
Name:                 Ralph Swan
Criminal ID:          0002004767A
County:               Kent
Sentence:             Death
Decision on appeal:   820 A.2d 342 (Del. 2003)

Name:                 Ambrose L. Sykes
Criminal ID:          04011008300
County:               Kent
Sentence:             Death
Decision on appeal:   953 A.2d 261 (Del. 2008)

Name:                 Antonio L. Taylor
Criminal ID:          9404018838
County:               Kent
Sentence:             Life imprisonment
Decision on appeal:   685 A.2d 349 (Del. 1996)

Name:                 Emmett Taylor, III
Criminal ID:          0708020057
County:               Sussex
Sentence:             Death
Decision on appeal:   28 A.3d 399 (Del. 2011)

Name:                 Milton Taylor
Criminal ID:          0003016874
County:               New Castle
Sentence:             Death
Decision on appeal:   822 A.2d 1052 (Del. 2003)

Name:                 Desmond Torrence
Criminal ID:          0205014445
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   2005 WL 2923501 (Del. Nov. 2, 2005)




                               A-10
Name:                 Charles H. Trowbridge
Criminal ID:          91K03044DI
County:               Kent
Sentence:             Life imprisonment
Decision on appeal:   1996 WL 145788 (Del. Mar. 4, 1996)

Name:                 James W. Virdin
Criminal ID:          9809015552
County:               Kent
Sentence:             Life imprisonment
Decision on appeal:   780 A.2d 1024 (Del. 2001)

Name:                 John E. Watson
Criminal ID:          91008490DI
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   No direct appeal taken

Name:                 Dwayne Weeks
Criminal ID:          92010167
County:               New Castle
Sentence:             Death
Decision on appeal:   653 A.2d 266 (Del. 1995)

Name:                 Joseph Williams
Criminal ID:          9809018249
County:               New Castle
Sentence:             Life imprisonment
Decision on appeal:   2003 WL 1740469 (Del. Apr. 1, 2003)

Name:                 Roy R. Williamson
Criminal ID:          93S02210DI
County:               Sussex
Sentence:             Life imprisonment
Decision on appeal:   669 A.2d 95 (Del. 1995)




                                A-11
Name:                 Craig A. Zebroski
Criminal ID:          9604017809
County:               New Castle
Sentence:             Death
Decision on appeal:   715 A.2d 75 (Del. 1998)




                               A-12
