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.
II. BACKGROUND 1
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 Whi-teneck (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
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 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 Boni-stall’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.
Following the murder, an anonymous person who was attempting to disguise his
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 Cua-dra 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, 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
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 hood-ie, 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 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
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 Misdemean- or 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 Bo-nistall. 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
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
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
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.
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.
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).
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 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 Preparatorg 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
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 ease. Furthermore, given Cooke’s situation, he had plenty of time available to ponder his ease. 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 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
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 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 Superi- or 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 Superior Court’s efforts to assure that his attorneys could prepare the best defense possible for him, Cooke fired his attorneys and insulted the Superi- or 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
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 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.
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 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
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 Superi- or 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 Superi- or 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:
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
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 Superi- or 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 himself.
99
But, Cooke argues, the Superi- or 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
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 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 BO, 2011, the Superi- or 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 defendant of the risks inherent in going forward without the assistance of legal counsel.’ ” 109
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 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
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.
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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.
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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.
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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. 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. Pleasestop, 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 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
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:
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
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 — 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. But, at the same time, the Superior Court
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
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 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
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 — 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 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
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
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 Superi- or 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 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
Although it was not error for the Superi- or 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.
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 Bo-nistall’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 Boni-stall 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
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 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
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 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
On a related point, the Superi- or 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 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
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 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
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 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 even without Detective Rubin’s lay opinion testimony any error by the Superior Court in admitting the evidence was harmless.
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 Superi- or 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:
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
This Court reviews the Superi- or 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 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 Superi- or 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
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 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 bailiffs 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 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
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.
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 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 Hus
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 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 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
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 biásed 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 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 inaccu
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, 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
nondisclosure 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 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
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 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
Mc-Donough
— 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
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 (8) 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.
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 Boni-stall’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)(l)(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
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 eases 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 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
IV. CONCLUSION
For all of these reasons, the judgment of the Superior Court is AFFIRMED.
APPENDIX A
APPENDIX A **
Name: Robert Ashley
Criminal ID: 9605003410
County: New Castle
Sentence: Life imprisonment (following retrial and second penalty hearing)
Decision on appeal:
Name: Meri-Ya C. Baker
Criminal ID: 90011925DI
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Jermaine Barnett
Criminal ID: 9506017682
County: New Castle
Sentence: Life imprisonment (following second penalty hearing)
Decision on appeal:
Name: Hector S. Barrow
Criminal ID: 9506017661
County: New Castle
Sentence: Life imprisonment (following second penalty hearing)
Decision on appeal:
Name: Tyreek D. Brown
Criminal ID: 9705011492
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Justin L. Burrell
Criminal ID: 9805012046
County: Kent
Sentence: Life imprisonment
Decision on appeal:
Name: Luis G. Cabrera
Criminal ID: 9703012700
County: New Castle
Decision on appeal:
Name: Luis G. Cabrera
Criminal ID: 9904019326
County: New Castle
Sentence: Death
Decision on appeal:
Name: James B. Clark, Jr.
Criminal ID: 9406003237
County: New Castle Sentence: Death (judge only)
Decision on appeal:
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:
Name: James T. Crowe, Jr.
Criminal ID: 9508008979
County: New Castle Sentence: Life imprisonment
Decision on appeal:
Name: David F. Dawson
Criminal ID: 88K00413DI
County: New Castle (venue changed)
Sentence: Death
Decision on appeal:
Name: Byron S. Dickerson
Criminal ID: 90011926DI
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Cornelius E. Ferguson
Criminal ID: 91009926DI
County: New Castle
Sentence: Death
Decision on appeal:
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:
Name: Sadiki J. Garden
Criminal ID: 9912015068
County: New Castle
Sentence: Life imprisonment ordered on appeal
Decision on appeal:
Name: Robert J. Garvey
Criminal ID: 0107010230
County: New Castle
Appeal:
Name: Robert A. Gattis
Criminal ID: 90004576DI
County: New Castle
Sentence: Death (death sentence commuted in 2012)
Decision on appeal:
Name: Arthur Govan
Criminal ID: 92010166DI
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Tyrone N. Guy
Criminal ID: 0107017041
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Jason Anthony Hainey
Criminal ID: 0306015699
County: New Castle
Sentence: Life imprisonment
Appeal:
Name: Ronald T. Hankins
Criminal ID: 0603026103A
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Akbar Hassan-El
Criminal ID: 010701704
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Robert W. Jackson, III
Criminal ID: 92003717
County: New Castle
Sentence: Death
Decision on appeal:
Name: Larry Johnson
Criminal ID: 0309013375
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Shannon Johnson
Criminal ID: 0609017045
County: New Castle
Sentence: Death
Decision on appeal:
Name: David Jones
Criminal ID: 9807016504
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Michael Jones
Criminal ID: 9911016309
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Michael Keyser
Criminal ID: 0310021647
County: Kent
Sentence: Life imprisonment
Decision on appeal:
Criminal ID: 92K03617DI
County: Kent
Sentence: Death
Decision on appeal:
Name: Thomas M. Magner
Criminal ID: 9509007746
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Michael R. Manley
Criminal ID: 9511007022
County: New Castle
Sentence: Death
Decision on appeal:
Name: Frank W. Moore, Jr.
Criminal ID: 92S03679DI
County: Sussex
Sentence: Life imprisonment
Decision on appeal:
Name: Adam Norcross
Criminal ID: 0002006278A
County: Kent
Sentence: Death
Decision on appeal:
Name: Juan Ortiz
Criminal ID: 0107004046A
County: Kent
Sentence: Death
Decision on appeal:
Name: Darrel Page
Criminal ID: 9911016961
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
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:
Name: Derrick Powell
Criminal ID: 0909000858
County: Sussex
Sentence: Death
Decision on appeal:
Name: James Allen Red Dog,
Criminal ID: 91001754DI
County: New Castle
Sentence: Death (judge only)
Decision on appeal:
Name: Luis Reyes
Criminal ID: 9904019329
County: New Castle
Sentence: Death
Decision on appeal:
Name: James W. Riley
Criminal ID: 0004014504
Sentence: Life imprisonment (following retrial)
Decision on appeal:
Name: Jose Rodriguez
Criminal ID: 93001668DI
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Richard Roth, Jr.
Criminal ID: 9901000330
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Reginald N. Sanders
Criminal ID: 91010161DI
County: New Castle (venue changed)
Sentence: Life imprisonment (following 1992 resentencing)
Decision on appeal:
Name: Nelson W. Shelton
Criminal ID: 92000788DI
County: New Castle
Sentence: Death
Decision on appeal:
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:
Name: Brian David Steckel
Criminal ID: 9409002147
County: New Castle
Sentence: Death
Decision on appeal:
Name: David D. Stevenson
Criminal ID: 9511006992
County: New Castle
Sentence: Death
Decision on appeal:
Name: Willie G. Sullivan
Criminal ID: 92K00055
County: Kent
Sentence: Death
Decision on appeal:
Name: Ralph Swan
Criminal ID: 0002004767A
County: Kent
Sentence: Death
Decision on appeal:
Name: Ambrose L. Sykes
Criminal ID: 04011008300
County: Kent
Sentence: Death
Decision on appeal:
Name: Antonio L. Taylor
Criminal ID: 9404018838
County: Kent
Decision on appeal:
Name: Emmett Taylor, III
Criminal ID: 0708020057
County: Sussex
Sentence: Death
Decision on appeal:
Name: Milton Taylor
Criminal ID: 0003016874
County: New Castle
Sentence: Death
Decision on appeal:
Name: Desmond Torrence
Criminal ID: 0205014445
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Charles H. Trowbridge
Criminal ID: 91K03044DI
County: Kent
Sentence: Life imprisonment
Decision on appeal:
Name: James W. Virdin
Criminal ID: 9809015552
County: Kent
Sentence: Life imprisonment
Decision on appeal:
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:
Name: Joseph Williams
Criminal ID: 9809018249
County: New Castle
Sentence: Life imprisonment
Decision on appeal:
Name: Roy R. Williamson
Criminal ID: 93S02210DI
County: Sussex
Sentence: Life imprisonment
Decision on appeal:
Name: Craig A. Zebroski
Criminal ID: 9604017809
County: New Castle
Sentence: Death
Decision on appeal:
Notes
.These facts are drawn from the Superior Court’s sentencing decision, this Court’s decision in Cooke’s previous appeal,
Cooke v. State,
. Sentencing Decision, Exhibit B to Cooke’s Opening Br. (Sept. 17, 2012) at 21-23.
. Sentencing Decision, Exhibit B to Cooke's Opening Br. (Sept. 17, 2012) at 21-23.
. App. to the State's Answering Br. at B215-216.
. App. to the State's Answering Br. at B154, B168-170, B208.
. App. to the State’s Answering Br. at B164-166.
. App. to the State’s Answering Br. at B172-173.
. App. to Cooke's Opening Br. at A204, App. to the State's Answering Br. at B168-170.
. App. to the State's Answering Br. at B279.
. App. to Cooke’s Opening Br. at A173-174; App. to the State's Answering Br. at B205-207.
. App. to the State's Answering Br. at B 160, B210-211.
. App. to Cooke’s Opening Br. at A539; App. to the State’s Answering Br. at B171.
. App. to Cooke’s Opening Br. at A538; App. to the State's Answering Br. at B280.
. App. to Cooke’s Opening Br. at A188-190; App. to the State's Answering Br. at BISS-162.
. 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 smoulder-ing for at least an hour? A. It would almost have to be at least that long ... ”).
. App. to Cooke's Opening Br. at A204.
. App. to the State's Answering Br. at B256-257.
. App. to Cooke's Opening Br. at A527-528.
. App. to the State's Answering Br. at B229.
. App. to the State's Answering Br. at B230-231.
. App. to Cooke’s Opening Br. at A297-298.
. App. to the State’s Answering Br. at B236-239.
. App. to the State’s Answering Br. at B240-43.
. App. to Cooke's Opening Br. at A530-535; App. to the State’s Answering Br. at B245-248.
. App. to Cooke’s Opening Br. at A542-546; App. to the State’s Answering Br. at B257, B264.
. 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.
. App. to the State’s Answering Br. at B282-283.
. App. to the State’s Answering Br. at B265-66.
. App. to the State's Answering Br. at B267.
. App. to Cooke’s Opening Br. at A536; App. to the State’s Answering Br. at B249-251, B267, B270.
. App. to the State's Answering Br. at B267.
. App. to Cooke’s Opening Br. at A536-37.
. App. to Cooke’s Opening Br. at A300.
. App. to Cooke’s Opening Br. at A300.
. App. to Cooke's Opening Br. at A303.
. App. to Cooke’s Opening Br. at A305.
. App. to the State’s Answering Br. at B252.
. App. to Cooke’s Opening Br. at A540-541.
. App. to the State's Answering Br. at B262.
. App. to the State’s Answering Br. at B209, B212-213.
. App. to Cooke’s Opening Br. at A325-327.
. App. to the State’s Answering Br. at B269.
. 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.
. App. to Cooke’s Opening Br. at A365.
. App. to the State’s Answering Br. at B275.
. App. to Cooke’s Opening Br. at A285.
. App. to Cooke's Opening Br. at A204-206; App. to the State’s Answering Br. at B284.
. App. to Cooke’s Opening Br. at A369-71.
.
State v. Cooke,
.
See, e.g., Gonzalez v. United States,
.
Cooke v. State,
. App. to Cooke’s Opening Br. at A41.
.
See, e.g., Cooke v. Goldstein,
. 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.”
. App. to Cooke's Opening Br. at A107-108, All 5 — 116.
.
Bentley v. State,
.
Bailey v. State,
. App. to Cooke's Opening Br. at A41.
. App. to Cooke’s Opening Br. at A43.
. App. to the State’s Answering Br. at B291.
. App. to the State’s Answering Br. at B292.
. App. to the State’s Answering Br. at B293.
. App. to the State’s Answering Br. at B287-90.
. App. to the State’s Answering Br. at B293a, B293b.
. App. to the State’s Answering Br. at B294.
. App. to the State’s Answering Br. at B305-307.
. App. to the State’s Answering Br. at B8.
.
Turner v. Safley,
. 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).
. App. to Cooke’s Opening Br. at A78.
. App. to Cooke's Opening Br. at A79.
. 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.”).
. App. to Cooke’s Opening Br. at A53.
. App. to Cooke’s Opening Br. at A109, A120-121.
. App. to Cooke's Opening Br. at A52-54.
. App. to Cooke's Opening Br. at Al 20-21.
. Cooke’s Opening Brief at 52.
.
See Turner v. Safley,
.
Bailey v. State,
.
See Bell v. Wolfish,
. Ungar v. Sarafite,
.
Weber v. State, 971
A.2d 135, 157 (Del. 2009);
Riley v. State,
.
Bailey v. State,
. 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.’’).
. App. to Cooke’s Opening Br. at A106.
. 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.”).
. App. to Cooke’s Opening Br. at Al 07-108 ("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.”); Al 15-116 ("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.”).
. App. to Cooke’s Opening Br. at Al 10-119.
. App. to Cooke’s Opening Br. at Al 17-118.
. App. to Cooke’s Opening Br. at A120.
. App. to Cooke’s Opening Br. at A120-126; App. to the State’s Answering Br. at B20-21.
. See, e.g., App. to Cooke's Opening Br. at A56 (motion for continuance on Feb. 1, 2012).
. See, e.g., App. to the State’s Answering Br. at B30-32 (order denying motion for continuance on Feb. 10, 2012).
. App. to Cooke’s Opening Br. at A155-156.
.
See Smith v. Lockhart,
.See Stevenson v. State,
.
Secrest v. State,
. Cooke's Opening Brief at 54.
. 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).
. Cooke's Reply Brief at 15.
.
Williams v. State,
. U.S. Const. Amend. VI; Del. Const. Art. I, § 7;
Faretta v. California,
.
Stigars v. State,
.
Zuppo v. State,
.
Payne
v.
State,
. Cooke’s Opening Brief at 53 (citing
U.S.
v.
Brock,
. App. to Cooke’s Opening Br. at A85.
. App. to Cooke’s Opening Br. at A86.
.
Williams v. State,
. App. to Cooke's Opening Br. at A86-102; App. to the State’s Answering Br. at B9-18.
. App. to Cooke’s Opening Br. at A92.
. App. to Cooke’s Opening Br. at A92-93.
. App. to Cooke’s Opening Br. at A95-96.
.
See Hartman v. State,
. McKaskle v. Wiggins,
. App. to Cooke's Opening Br. at A157.
. App. to Cooke’s Opening Br. at A157-160.
. App. to Cooke's Opening Br. at A161-165.
. App. to the State’s Answering Br. at B147.
. App. to the State's Answering Br. at B147-148.
. App. to Cooke’s Opening Br. at A177-179.
. App. to Cooke’s Opening Br. at A192-194.
. App. to Cooke’s Opening Br. at A197.
. App. to Cooke's Opening Br. at A198-199.
. App. to Cooke's Opening Br. at A199.
. App. to Cooke’s Opening Br. at A199-200.
. App. to Cooke’s Opening Br. at A207-212.
. App. to Cooke's Opening Br. at A214.
. App. to Cooke's Opening Br. at A214-215.
. App. to Cooke's Opening Br. at A217-217a.
. App. to Cooke’s Opening Br. at A220.
. App. to Cooke’s Opening Br. at A220.
. App. to Cooke's Opening Br. at A220-221.
. App. to Cooke's Opening Br. at A222-223.
. App. to Cooke’s Opening Br. at A242-243.
. App. to Cooke’s Opening Br. at A244-248.
.
Faretta v. California,
.
Payne v. State,
. 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.”).
. Cooke’s Reply Brief at 16.
.
Illinois v. Allen,
. 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.”).
. Cf. Franz Kafka, The Trial (1925).
.
United States v. Allen,
.
Lockett v. Ohio,
.
Taylor v. State,
.
Tyler
v.
Mitchell,
.
Taylor v. State,
. State’s Answering Brief at 92.
.
Flonnory v. State,
.
Williams v. Taylor,
.
New York v. Hill,
. 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/201 l_build/death_penalty_represent ation/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 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.”).
. See, e.g., App. to Cooke's Opening Br. at A255, A394-395, A520, A524.
. App. to Cooke’s Opening Br. at A398-399, A411.
. App. to Cooke's Opening Br. at A522.
. 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
. App. to Cooke's Opening Br. at A397.
. 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.”).
. App. to Cooke’s Opening Br. at A416.
. 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.”).
. App. to Cooke’s Opening Br. at A398.
. Cooke’s Opening Brief at 86.
. App. to Cooke's Opening Br. at A418-419.
. App, to Cooke’s Opening Br. at A419.
. App. to the State's Answering Br. at B308-14.
. App. to the State’s Answering Br. at B321-329.
. App. to the State’s Answering Br. at B330-345.
. App. to the State’s Answering Br. at B346.
. App. to the State’s Answering Br. at B347.
.
Cf. Wilson v. Walker,
.See Kostyshyn v. State,
.
.
See Van Arsdall v. State,
.
Cf. Stigars v. State,
. 11 Del. C. § 3508 and § 3509.
. 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.
. 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.... [fit's not relevant, and therefore, it's not admissible, with or without 3508, but in the alternative, with 3508.”).
. Cooke’s Opening Brief at 65; Cooke’s Reply Brief at 18.
.
Richardson v. State,
. 11 Dei. C. § 3509(a).
. 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,
.Jenkins v. State,
. 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”).
.
Kelty v. State Farm Mutual Auto. Ins. Co.,
.
See, e.g., Hobson v. State,
.
See, e.g., Ketchum v. State,
. App. to Cooke’s Opening Br. at A264.
. 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 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).
. Delaware Rule of Evidence 401.
. 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”).
. Wright v. State,
. App. to the State's Answering Br. at B256-57.
. App. to Cooke’s Opening Br. at A542-46; App. to the State’s Answering Br. at B257, B264.
. App. to Cooke's Opening Br. at A325-27.
. App. to Cooke’s Opening Br. at A337.
.
Richardson v. State,
. 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.”
.
Washington v. State,
.
Vourasv. State,
.
United States v. Sanabria,
. App. to Cooke's Opening Br. at A321.
.
See, e.g., United States v. Cruz-Rea,
.
Van Arsdall v. State,
.
Nelson v. State,
. App. to the State’s Answering Br. at B83-84.
. App. to the State’s Answering Br. at B93-94.
. App. to Cooke's Opening Br. at A131.
. App. to Cooke’s Opening Br. at A134.
. App. to Cooke’s Opening Br. at A137-38.
. App. to Cooke's Opening Br. at A143.
. App. to Cooke's Opening Br. at A135; A152.
. App. to Cooke’s Opening Br. at A152.
.
Durham v. State,
.
Caldwell
v.
State,
.
Durham v. State,
.
Steckel v. State,
. Cooke’s Opening Brief at 47.
.
Ross v. Oklahoma,
. Cooke’s Opening Brief at 49.
.
Capano v. State,
. App. to the State’s Answering Br. at B258.
. App. to Cooke’s Opening Br. at A319.
. App. to Cooke’s Opening Br. at A320.
. App. to Cooke's Opening Br. at A328; App. to the State's Answering Br. at B272.
. App. to Cooke's Opening Br. at A328.
. App. to Cooke's Opening Br. at A328.
. 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.”).
. App. to Cooke’s Opening Br. at A340.
. 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.”).
. App. to Cooke’s Opening Br. at A346-53.
. App. to Cooke’s Opening Br. at A129.
. App. to Cooke’s Opening Br. at A129.
. App. to Cooke's Opening Br. at A129.
. App. to Cooke’s Opening Br. at A128.
. App. to Cooke's Opening Br. at A129.
. App. to Cooke’s Opening Br. at A420.
. App. to Cooke’s Opening Br. at A424.
. App. to Cooke's Opening Br. at A425.
. App. to Cooke’s Opening Br. at A425.
. App. to Cooke’s Opening Br. at A425-426.
. App. to Cooke’s Opening Br. at A426.
. App. to Cooke’s Opening Br. at A427.
. App. to Cooke’s Opening Br. at A421.
. App. to Cooke’s Opening Br. at A428-29.
. App. to Cooke’s Opening Br. at A427.
. App. to Cooke’s Opening Br. at A431.
. App. to Cooke’s Opening Br. at A431.
. App. to Cooke's Opening Br. at A431.
. App. to Cooke’s Opening Br. at A432.
. App. to Cooke’s Opening Br. at A427.
. App. to Cooke’s Opening Br. at A433.
. App. to Cooke’s Opening Br. at A440.
. App. to Cooke’s Opening Br. at A434.
. App. to Cooke's Opening Br. at A440.
. App. to Cooke’s Opening Br. at A440-41.
. App. to Cooke's Opening Br. at A441-42.
. App. to Cooke's Opening Br. at A442.
. App. to Cooke's Opening Br. at A467.
. App. to Cooke's Opening Br. at A478;
see also State v. Cooke,
. Cooke’s Opening Brief at 42.
.
Taylor v. State,
. U.S. Const. Amend. VI; Del. Const. Art. I, § 7;
Flonnory v. State,
.
Jackson v. State,
.
Hughes v. State,
.
Hall
v.
State,
.
Schwan
v.
State,
.
.
Schwan v. State,
.
Banther v. State,
.
Patton v. Yount,
.
Schwan v. State,
. 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.”).
. App. to Cooke’s Opening Br. at A508.
. App. to Cooke’s Opening Br. at A438.
.
See Smallwood v. State,
.McDonough Power Equip., Inc. v. Greenwood,
.
Sykes v. State,
. Cooke's Opening Brief at 95 (citing 11 Del. C. § 4209(g)(2)(a)).
. Cooke's Opening Brief at 97.
. Cooke's Opening Brief at 98.
.
Dawson v. State,
.
Manley v. State,
. See Sentencing Decision, Exhibit B to Cooke’s Opening Brief (Sept. 17, 2012).
.
Red Dog v. State,
. See Appendix A.
.
Capano v. State,
.
Sykes v. State,
.
Clark
v.
State,
.
Capano v. State,
.
See, e.g., Swan v. State,
.
See, e.g., Dawson v. State,
.
See, e.g., Steckel v. State,
.
See, e.g., Kennedy v. Louisiana,
. Sentencing Decision, Exhibit B to Cooke's Opening Brief (Sept. 17, 2012) at 48.
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.,