            IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICAH O. CUFFEE,                           §
                                           §
       Defendant Below,                    §   No. 613, 2013
       Appellant,                          §
                                           §
       v.                                  §   Court Below: Superior Court
                                           §   of the State of Delaware,
STATE OF DELAWARE,                         §   in and for Kent County
                                           §   Cr. ID No. 1209013919
       Plaintiff Below,                    §
       Appellee.                           §

                            Submitted: August 8, 2014
                             Decided: October 14, 2014

Before HOLLAND, RIDGELY, and VALIHURA Justices.

                                        ORDER

       This 14th day of October 2014, upon consideration of the briefs of the parties

and the record in this case, it appears to the Court that:

       (1)    The defendant-appellant, Micah O. Cuffee, appeals from his

convictions for Attempted Theft, Conspiracy in the Second Degree, and Criminal

Mischief after a Superior Court jury trial. On appeal,1 Cuffee claims: (i) the

Superior Court erred in allowing the State to amend the indictment before trial and

during trial; (ii) the Superior Court erred in admitting a picture of Cuffee the night

of his arrest; (iii) the prosecutor made improper statements during his opening and

1
 Cuffee was represented by counsel at trial, but waived his right to counsel on appeal and was
permitted to represent himself.
closing arguments; (iv) the State committed discovery and Brady2 violations by

failing to produce a recording of police radio communications; and (v) Cuffee was

deprived of his right to self-representation.3 We find no merit to these claims and

affirm the judgment of the Superior Court.

         (2)    On the night of September 19, 2012, a resident of a development

located near Walker Road in Dover heard a vehicle, a screeching, metallic noise

like something was being dragged, and voices outside the back of her townhouse.

Office buildings, which were closed for the day, were located behind the caller’s

townhouse. The resident called 911 to report the noises at approximately 10:30

p.m. Corporal Gregory Hopkins and other members of the Dover police responded

to the 911 call.

         (3)    Initially, Hopkins and the other police officers checked businesses and

communities along Walker Road for the source of the reported noises. Hopkins

checked 1155 Walker Road and did not see anything there. Hopkins then went to
2
    Brady v. Maryland, 373 U.S. 83 (1963).
3
  In the fact section of his opening brief, Cuffee complains that a juror, who was identified by the
prosecutor on the second day of trial as somebody he had spoken to at the gym ten to fifteen
years earlier, remained on the on the jury over his objections. At the request of Cuffee’s counsel,
the juror was asked in chambers if he recognized either the prosecutor or defense counsel and he
stated that he only recognized the attorneys from the trial. Cuffee’s counsel did not request
removal or any other action with respect to the juror. Cuffee did not present the merits of an
argument concerning this juror in his opening brief (or his reply brief) and has therefore waived a
claim regarding the juror. Supr. Ct. R. 14(b)(vi)(A)(3) (providing that appellant must state
merits of argument in opening brief or argument will be waived); Monroe v. State, 2010 WL
5050863, at *2 (Del. Dec. 8, 2010) (declining to address claim referenced in summary of
argument but not raised in argument section of brief).

                                                 2
the 911 caller’s townhouse and spoke to her about what she had heard in order to

pinpoint the location of the noises. Based on that conversation, Hopkins drove

back to 1155 Walker Road, which was located behind the townhouse.

      (4)   Hopkins walked around the building located at 1155 Walker Road and

saw four, disconnected air conditioning units behind the building and near a shed.

The air conditioners had been cut from the building located at 1155 Walker Road.

Hopkins reported his findings and it was decided that he would stay in the area to

conduct surveillance in case someone returned to pick up the disconnected air

conditioners. Other officers set up a perimeter near Walker Road.

      (5)   Shortly after Hopkins concealed himself under some trees to monitor

the area where the air conditioners were located, he observed a maroon minivan,

with no headlights on, driving in from Walker Road. After driving into the parking

lot that was closest to the disconnected air conditioners, the minivan began backing

up over a bed of rocks near the air conditioners and became stuck.

      (6)   Hopkins watched the minivan occupants attempt to remove the

minivan from the rocks.      They were unsuccessful and called somebody for

assistance. Although Hopkins could see the occupants of the minivan walk around

it, he could not see them at all times. Hopkins observed a white pick-up truck

drive in from Walker Road and tow the minivan off of the rocks. Cuffee’s cousin,

Walter Cuffee, testified that Cuffee called him the night of September 19, 2012 for


                                         3
assistance. Walter Cuffee drove his white pick-up truck to Walker Road, where he

testified that he picked up Cuffee and Mark McDonald, and then helped Cuffee

and McDonald tow the minivan from the rocks. After Hopkins watched the white

pick-up truck and maroon minivan leave the parking lot, he saw that the

disconnected air conditioners were no longer where he had previously seen them.

Hopkins radioed police units on Walker Road to report that the air conditioners had

been taken and that both the white pick-up truck and maroon minivan should be

stopped. Hopkins then walked around the area and saw that the air conditioners

had been moved to the other side of the shed.

      (7)   Police stopped the white pick-up truck and maroon minivan. Cuffee

was driving the minivan and McDonald was the passenger.           Both men were

arrested. In a search of the minivan, the police found a pair of bolt cutters,

Channellock pliers, a flashlight, and two pairs of work gloves. All of the seats,

except for the driver seat and front passenger seat, had been removed from the

minivan. Cuffee’s daughter testified that she owned the minivan and that the

equipment in the minivan belonged to her husband.

      (8)   The jury found Cuffee guilty of Attempted Theft, Conspiracy in the

Second Degree, and Criminal Mischief. Cuffee was declared a habitual offender

under 11 Del. C. § 4214(a) and sentenced to eight years of Level V incarceration

for Attempted Theft, two years of Level V incarceration, suspended for one year of


                                        4
Level III probation, for Conspiracy in the Second Degree, and a fine of $250 for

Criminal Mischief. This appeal followed.

          (9)    Cuffee first argues that the Superior Court erred in granting the State’s

motions to amend the indictment before and during the trial. This Court reviews

the Superior Court’s decision on a motion to amend an indictment for abuse of

discretion.4 The Superior Court “may permit an indictment . . . to be amended at

any time before verdict or finding if no additional or different offense is charged

and if substantial rights of the defendant are not prejudiced.”5 Amendment is not

permitted if it changes an essential element of the charged offense or prevents the

defendant “from pursuing his initial defense strategy.”6 In the absence of prejudice

to the defendant, amendment is permitted for mistakes in form such as correcting

an incorrect statutory designation or the name of a robbery victim.7


4
 Norwood v. State, 2003 WL 29969, at *3 (Del. Jan. 2, 2003) (citing Coffield v. State, 794 A.2d
588, 590-91 (Del. 2002)).
5
    Super. Ct. Crim. R. 7(e).
6
 Mitchell v. State, 2014 WL 1202953, at *3 (Del. Mar. 21, 2014) (quoting O’Neil v. State, 691
A.2d 50, 55 (Del. 1997)).
7
  Coffield, 794 A.2d at 593-94 (affirming amendment of indictment to change name of robbery
victim where name was not essential element of crime ); Johnson v. State, 1999 WL 1098173, at
*3 (Del. Nov. 2, 1999) (finding no plain error in Superior Court permitting amendment of
indictment to correct statutory section); Robinson v. State, 600 A.2d 356, 359 (Del. 1991)
(holding Superior Court did not err as matter of law by allowing amendment of indictment to
correct statutory citation and add mens rea element); Claire v. State, 294 A.2d 836, 838 (Del.
1972) (finding trial judge did not abuse discretion in allowing amendment of information to
correct obvious statutory citation error).

                                              5
         (10) Count I of the indictment originally stated:

         ATTEMPTED THEFT, a felony, in violation of Title 11, Section 531
         of the Delaware Code of 1974 as amended.

         MICAH O. CUFFEE on or about the 19th day of September, 2012, in
         the County of Kent, State of Delaware, did attempt to take property
         belonging to Catholic Charities, valued at more than $1,000.00, which
         acts, under the circumstances as he believed them to be, constituted a
         substantial step in a course of conduct planned to culminate in the
         commission of theft, in violation of 11 Del. C. § 843.8

Before trial, the Superior Court granted the State’s motion, over Cuffee’s

objections, to amend Counts I (Attempted Theft) and Count III (Criminal

Mischief) of the indictment to change the name of the theft victim from Catholic

Charities (the name outside the building at 1155 Walker Road) to Frank Everett

(the actual owner of the building and air conditioning units). On the second day of

trial, the Superior Court granted, over Cuffee’s objections, the State’s motion to

amend the indictment to change the dollar amount from $1,000 to $1,500 and the

statutory citation from Section 843 to Section 841. The Superior Court concluded

that the amendments simply corrected pure errors, the change in dollar figure

helped the defendant because it required the State to prove a higher amount, and

Cuffee had been on notice of the charges against him from the beginning of the

case.



8
    Superior Court Docket, D.I. 6.


                                           6
         (11) The Superior Court did not err in permitting amendment of the

indictment. The original indictment put Cuffee on notice that he faced a felony

charge for Attempted Theft. Cuffee’s primary defense was that the State’s case

was circumstantial and that nobody had observed him cut the air conditioners from

the building or move the air conditioners. The change in the name of the victim

did not change the offense or prejudice Cuffee.

         (12) As far as the correction of the statutory citation, the original

indictment pled the elements of Attempted Theft under 11 Del. C. § 841, not the

elements of Attempted Theft by pretense under 11 Del. C. § 843. Under Section

841, a person commits theft when they take the property of another with the intent

to deprive the owner of their property.9 By contrast, a person commits theft by

pretense under Section 843 when they obtain “property of another person by

intentionally creating or reinforcing a false impression as to a present or past fact,

or by preventing the other person from acquiring information which would

adversely affect the other person's judgment of a transaction.”10 Notwithstanding

the incorrect statutory citation, the plain terms of the Attempted Theft count in the

original indictment put Cuffee on notice of the offense that he had to defend

himself against.

9
    11 Del. C. § 841.
10
     11 Del. C. § 843.

                                          7
      (13) Finally, the change in the dollar amount from $1,000 to $1,500 did not

change the offense or prejudice Cuffee. Cuffee claims for the first time on appeal

that he was prepared to defend himself against a misdemeanor charge rather than a

felony (theft of property worth more than $1,500), but the indictment charged him

with “ATTEMPTED THEFT, a felony” and Cuffee indicated at a pretrial hearing

that he understood, as a habitual offender, he was likely to face an enhanced

sentence and significant prison time if he was found guilty. Cuffee also suggests

he was prejudiced because the amendment occurred after the prosecutor referred to

the $1,000 figure in his opening statement and Frank Everett testified regarding the

valued of the air conditioners.

      (14) The record does not support this contention.            In their closing

statements, both the prosecutor and defense counsel stated that the relevant value

was $1,500 or more.      The jury instructions also contained the $1,500 figure.

Everett testified that he had never purchased similar air conditioners for less than

$1,000 each, so the total value of the four air conditioners easily exceeded both the

$1,000 and $1,500 figures. Under these circumstances, Cuffee was not prejudiced

by the amendment of the dollar amount in the indictment. A curative instruction

regarding the dollar amount, which was not requested in the Superior Court, was

also not necessary in light of the parties’ references to the $1,500 figure in their




                                         8
closing statements, the use of the $1,500 figure in the jury instructions, and

Everett’s testimony.

         (15) Cuffee next argues that the Superior Court erred in admitting a

photograph taken of him on the night of his arrest because identification was not an

issue and the prejudicial effect of the photograph outweighed any probative value.

This Court reviews evidentiary rulings of the Superior Court for an abuse of

discretion.11 “An abuse of discretion occurs when ‘a court has . . . exceeded the

bounds of reason in view of the circumstances, [or] . . . so ignored recognized rules

of law or practice so as to produce injustice.’”12            Because use of police

photographs risks suggesting to the jury that the defendant has a prior criminal

record, admission of such photographs requires that: (i) the prosecution show a

demonstrable need for introduction of the photographs; (ii) the photographs, if

shown to the jury, must not imply that the defendant has a prior criminal record;

and (iii) the introduction of the photographs must not draw attention to the source

or implications of the photographs.13




11
     Manna v. State, 945 A.2d 1149, 1153 (Del. 2008).
12
  Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994) (quoting Firestone Tire & Rubber Co. v.
Adams, 541 A.2d 567, 570 (Del. 1988)).
13
     Brookins v. State, 354 A.2d 422, 423 (Del. 1976).


                                                 9
          (16) The State introduced the photograph into evidence to corroborate

Hopkins’ testimony that he believed Cuffee was wearing dark clothing the night of

September 19, 2012. Wearing dark clothing could be consistent with someone

trying to steal air conditioners at night without attracting attention.        The

photograph did not imply that Cuffee had a prior criminal record because it was

taken in connection with Cuffee’s arrest for the crimes on trial. Nor was any

curative instruction necessary, as Cuffee contends for the first time on appeal,

because the photograph did not create any implication that Cuffee had a prior

criminal history. The photograph was relevant and not prejudicial to Cuffee.

Accordingly, the Superior Court did not err in admitting the photograph.

          (17) Cuffee next argues that the prosecutor made improper statements in

his opening and closing arguments regarding Cuffee’s presence at 1155 Walker

Road at 10:30 p.m. on September 19, 2012 and to the harvesting of air

conditioners. Because Cuffee did not raise these objections at trial, we review his

prosecutorial misconduct claims for plain error.14 This Court applies a three-step

analysis when reviewing alleged prosecutorial misconduct under a plain error

standard of review.15           First, we determine if there was any prosecutorial



14
     Supr. Ct. R. 8.
15
     Baker v. State, 906 A.2d 139, 150 (Del. 2006).


                                                 10
misconduct.16 If we find no prosecutorial misconduct, then our analysis ends.17 If

we do find prosecutorial misconduct, then we determine whether the misconduct

clearly and plainly undermined confidence in the trial process.18 If we find that the

misconduct did not clearly and plainly undermine the trial process, then we

determine whether the misconduct included repetitive errors that cast doubt on the

integrity of the judicial process.19

           (18) In his closing argument, the prosecutor stated it “was fair to say that

through both sets of witnesses, Micah Cuffee, the defendant seated over here, on

September 19, 2012, at around 10:30 p.m., was in the parking lot at 1155 Walker

Road.”20 The prosecutor also referred to 10:30 p.m. being a suspicious time of

night because business were closed, Hopkins observing the maroon minivan pull

into 1155 Walker Road at 10:30 p.m. with the headlights turned off, the wisdom of

using a minivan rather than a truck without a cap to transport stolen air

conditioners at 10:30 p.m. in order to avoid raising suspicions, and to stealing air

conditioners at 10:30 p.m. Cuffee claims there was no evidence or testimony to

16
     Id.
17
     Mitchell, 2014 WL 1202953, at *6.
18
     Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
19
     Hunter v. State, 815 A.2d 730, 733 (Del. 2002).
20
     Appendix to Opening Brief at A60.


                                                 11
support the prosecutor’s argument that he was in the parking lot of Walker Road

around 10:30 p.m. on September 19, 2012. We disagree.

         (19) “A prosecutor is allowed and expected to explain all the legitimate

inferences of the defendant’s guilt that follow from the evidence.”21 A prosecutor

cannot misrepresent trial evidence.22 The record reflects that the 911 call reporting

dragging noises and voices near Walker Road was made at 10:33 p.m. on

September 19, 2012, Hopkins subsequently went to 1155 Walker Road, then spoke

with the 911 caller, and then returned to 1155 Walker Road where he found the

disconnected air conditioners and stayed in the area to see if the people who

disconnected the air conditioners came back.

         (20) Shortly after Hopkins hid to watch the area, he observed a maroon

minivan, with its lights turned off, become stuck on rocks near the disconnected air

conditioners. Approximately fifteen minutes later, Cuffee’s cousin arrived to tow

the minivan off the rocks. Shortly after the minivan left 1155 Walker Road, it was

pulled over by the police and Cuffee was arrested. Bolt cutters, Channellocks, two

pairs of gloves, and a flashlight were found in the minivan, which did not contain

any seats other than the driver’s seat and the front passenger seat. Given this

record, the prosecutor’s argument that Cuffee was at 1155 Walker Road around

21
     Boatson v. State, 457 A.2d 738, 742 (Del. 1983).
22
     Morris v. State, 795 A.2d 653, 659 (Del. 2002).


                                                 12
10:30 p.m. on September 19, 2012 attempting to steal air conditioners was based

on legitimate and logical inferences of the evidence presented at trial and not

improper.

      (21) Cuffee is correct that the record reflects Hopkins would have observed

the maroon minivan turn into Walker Road sometime after 10:30 p.m. and not

10:30 p.m. as the prosecutor stated in his closing argument, but this mistake does

not constitute misconduct that clearly and plainly undermines confidence in the

trial process or is emblematic of repetitive errors that cast doubt on the integrity of

the judicial process. It is plain from the trial testimony that Hopkins observed the

minivan at 1155 Walker Road after the 911 call.

      (22) The prosecutor expressly acknowledged in his closing argument that

this was a circumstantial case and that there was no eyewitness to Cuffee cutting or

moving the air conditioners. Notwithstanding the lack of eyewitness testimony,

the prosecutor argued that the evidence at trial supported a verdict that Cuffee was

attempting to steal air conditioners from 1155 Walker Road the night of September

19, 2012.    The record reflects no plain error in the prosecutor’s references to

Cuffee being in the parking lot of 1155 Walker Road around 10:30 p.m. on

September 19, 2012.




                                          13
         (23) With respect to the comments regarding harvesting, the prosecutor

stated in his opening argument that after the disconnected air conditioners were

spotted at 1155 Walker Road:

         [T]he police made a quick decision to say, all right, well, it looks like
         somebody’s harvesting air conditioners. It’s fall, it’s harvest time, so
         that must be what they are doing that night. So they decide to kind of
         secrete themselves around the area, go and conduct some
         surveillance.23

In his closing argument, the prosecutor described the bolt cutters, Channellocks,

flashlight, and two pairs of work gloves found in the maroon minivan “as kind of

an amateur air conditioning harvest kit.”24

         (24) Cuffee contends that there was no evidence or testimony supporting

the prosecutor’s argument that Cuffee was harvesting air conditioners on

September 19, 2012. Again, we disagree. Given the evidence presented at trial,

the prosecutor’s argument that Cuffee was harvesting air conditioners on

September 19, 2012 was a legitimate and logical inference from the evidence

presented at trial. Thus, the prosecutor did not commit misconduct in referring to

the harvesting of air conditioners in his opening and closing arguments.

         (25) Cuffee next argues that the State’s failure to produce recordings of

police officers’ radio communications the night of September 19, 2012 was a

23
     Appendix to Opening Brief at A57.
24
     Id. at A62-63.


                                            14
violation of its discovery obligations and a Brady violation.            During his

examination of Hopkins, Cuffee’s counsel asked him about the recording of the

police officers’ radio communications on September 19, 2012 and whether such

recordings had been provided to the State or defense counsel. Hopkins testified

that he did not know if the recordings were provided to the State or the defense.

      (26)   After Cuffee’s counsel asked about production of the recordings

again, the prosecutor requested a sidebar conference with the trial judge. The

prosecutor objected to questions suggesting that the State had done something

wrong with the recordings. He stated that he had a copy of the recordings, but that

he did not believe Cuffee had requested the recordings in his discovery requests.

      (27) Cuffee’s counsel indicated that he was not stating that the State had

done anything wrong, but that he wondered why the recordings were not provided

to him and that he did not see a reference to the recordings in the State’s discovery

responses. Cuffee’s counsel did not ask to listen to the recordings or make any

other requests with respect to the recordings. The trial judge stated that if defense

counsel had not requested the recordings, it was inappropriate for defense counsel

to ask questions implying a cover-up. Cuffee’s counsel then stated that he would

not ask any more questions about the recordings.

      (28) The prosecutor initially requested a curative instruction, but

subsequently withdrew the request. On appeal, we granted the State’s motion to


                                         15
expand the record, over Cuffee’s objections, to include a CD of the recordings.

Cuffee was given the opportunity to listen to the recordings and he discusses the

contents of those recordings in his reply brief.

         (29) Cuffee acknowledges that his counsel did not request a continuance to

listen to the recordings, but nonetheless argues that the Superior Court should have

granted a continuance sua sponte so Cuffee’s counsel could review the recordings.

In the event of a discovery violation, we consider: (i) the centrality of the error to

the case; (ii) the closeness of the case; and (iii) the steps taken to mitigate the

results of the error.25 A conviction will be reversed on the basis of a discovery

violation only if the defendant’s substantial rights are “prejudicially affected.”26

Assuming without deciding that Cuffee’s discovery requests encompassed the

recordings of the police radio communications, the failure to produce the

recordings was not central to the case and Cuffee’s substantial rights were not

prejudicially affected. The recordings of the police officers’ radio communications

are consistent with the testimony of the police witnesses at trial.27

25
     Valentin v. State, 74 A.3d 645, 649 (Del. 2013).
26
     Id. (quoting Oliver v. State, 60 A.3d 1093, 1096-97 (Del. 2013).
27
   In his reply brief, Cuffee focuses on alleged inconsistencies between the recordings and the
testimony of police witnesses at a suppression hearing, rather than the police witnesses’ trial
testimony. The police officers’ testimony was substantially similar in both proceedings, but
some of the testimony that Cuffee attacks in his reply brief (such as Hopkins’ testimony that he
found the air conditioners at “approximately 10:30 at night”) did not occur at trial. Answering
Brief Appendix at B84.

                                                 16
         (30) The recordings reflect that the police responded to the 911 call, there

were additional communications with the 911 caller when the police could not

initially identify the source of the noises that the 911 caller heard, Hopkins

subsequently discovered the disconnected air conditioners at 1155 Walker Road

and stayed in the area to see if anybody attempted to recover the air conditioners,

Hopkins observed the maroon minivan become stuck on rocks near the air

conditioners and receive assistance from a white truck, and Hopkins initially

reported the air conditioners had been taken when the minivan and truck left 1155

Walker Road, but then subsequently reported that the air conditioners had been

moved.

         (31) The consistency between the recordings and the police officers’

testimony at trial is not helpful to Cuffee’s case. Cuffee argues that there are

timing inconsistencies between the recordings and the police officers’ testimony,

but both the recordings and trial testimony are consistent with the police

investigating noises near Walker Road after 10 p.m. on September 19, 2012. The

lack of siren noises in the recordings is not relevant here or helpful to Cuffee,

because unlike the defendant in Valentin v. State,28 Cuffee was not arrested for

fleeing the police and did not defend himself on the grounds that he was unaware

the police were following him because he did not hear any sirens.

28
     74 A.3d at 651-52.

                                          17
         (32) As far as the police officers’ observation of a truck with a tarp on

Route 8 while Hopkins was watching the maroon minivan become stuck on rocks

near the disconnected air conditioners or the possible sighting of a vehicle with an

air conditioner while Cuffee was being arrested (and while the air conditioners at

issue were still at 1155 Walker Road), this information essentially amounts to the

existence of other vehicles that could transport or were transporting air

conditioners. Unlike the maroon minivan driven by Cuffee, these vehicles were

not observed near the disconnected air conditioners at 1155 Walker Road after a

nearby resident heard voices and dragging noises. The existence of these other

vehicles adds little to Cuffee’s defense. Accordingly, we conclude that Cuffee is

not entitled to reversal of his conviction on the basis of a discovery violation.

         (33) Cuffee’s claims of a Brady violation are also without merit. A Brady

violation occurs when there is: (i) evidence that is favorable to the accused because

it is either exculpatory or impeaching; (ii) the State suppresses that evidence; and

(iii) the suppression prejudices the defendant.29       Brady prejudice requires “a

reasonable probability that, had the evidence been disclosed to the defense, the




29
     State v. Wright, 67 A.3d 319, 324 (Del. 2013).


                                                 18
result of the proceeding would have been different.”30 “A ‘reasonable probability’

is a ‘probability sufficient to undermine confidence in the outcome.’”31

           (34) As previously discussed, the dispatch recordings are not exculpatory

or impeaching of the police witnesses’ testimony. The recordings are consistent

with the police officers’ testimony at trial. Even if there is information in the

recordings that is marginally favorable to Cuffee’s defense (such as the existence

of other vehicles that could transport or were transporting air conditioners), Cuffee

has not shown that the suppression of this information undermines confidence in

the outcome of the trial.

           (35) Finally, Cuffee argues that the Superior Court deprived him of his

constitutional right to represent himself.             We review the alleged denial of a

defendant’s constitutional right to self-representation de novo.32 Cuffee filed his

first motion to represent himself on February 1, 2013 and then withdrew that

motion at a hearing on February 4, 2013. Cuffee filed his second motion to

represent himself on May 15, 2013. At a May 20, 2013 hearing, Cuffee informed




30
     Id.
31
     Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985).
32
  Brathwaite v. State, 2006 WL 1911132, at *1 (Del. July 10, 2006) (citing Stigars v. State, 674
A.2d 477, 479 (Del. 1996)).

                                                 19
the Superior Court he had discussed his case with his counsel and he was satisfied

with some of his counsel’s actions. Cuffee stated that he did not want:

         to just keep filing motions, however, I was satisfied with some of
         what Mr. Stiller said today, but at the same time I don’t want to
         disqualify myself from filing a motion should I have to and say the
         Court comes back at a later date and says, well, two times, now I’m
         just not going to accept it. I want to—if I could, I would just like to
         delay the hearing until we come to some type of meeting of the
         mind.33

The Superior Court informed Cuffee that it would not take any action with respect

to his motion that day because it appeared that Cuffee was uncertain as to whether

he wished to proceed with his motion to represent himself and Cuffee confirmed

that was the case. Cuffee also confirmed that it would be acceptable for him to

have more time to consider whether he wished to represent himself. After this

hearing, Cuffee did not renew his motion to represent himself or give the Superior

Court any indication that he wished to proceed pro se until the jury returned a

guilty verdict.

         (36) “A defendant may waive the right to self-representation after asserting

it.”34 A defendant’s failure to reassert a request to proceed pro se can establish




33
     Appendix to Appellant’s Opening Brief at A23.
34
  Brathwaite v. State, 2006 WL 1911132, at *2 (citing Buhl v. Cooksey, 233 F.3d 783, 800 (3d
Cir. 2000)).

                                               20
waiver, if reassertion of the request would not be futile.35 Cuffee indicated at the

May 20, 2013 hearing that he was not certain that he wished to proceed pro se.

The record reflects that Cuffee was well-aware of his right to represent himself and

more than capable of asserting that right. There is no indication that a renewal of

his motion to represent himself would have been futile.

           (37) It was not until after the jury returned a guilty verdict that Cuffee

mentioned his prior motion to proceed pro se to the Superior Court. Under these

circumstances, “the only plausible explanation for [Cuffee’s] conduct is that he

waived his to proceed pro se in favor of exercising his constitutional right to

counsel.”36 Given Cuffee’s failure to reassert his right to represent himself, it was

not necessary for the Superior Court to hold another hearing to determine whether

Cuffee had knowingly and intelligently waived his right to counsel.

           NOW, THEREFORE, IT IS ORDERED that the judgment of convictions in

the Superior Court is AFFIRMED.

                                         BY THE COURT:


                                         /s/ Randy J. Holland
                                         Justice



35
     Id.
36
     Id.


                                           21
