IN THE SUPREME COURT OF THE STATE OF DELAWARE

JHAVON GOODE, §

§ No. 276, 2015

Defendant Below, §

Appellant, § Court Below

— Superior Court

§ of the State of Delaware

v. §

§ Cr. ID No. 1404008621A

STATE OF DELAWARE, §

§

Plaintiff Below, §

Appellee. §

Submitted: February 17, 2016

Decided: April 4

, 2016

Before STRINE

, Chief Justice; HOLLAND

, and SEITZ

, Justices.

Upon Appeal from the Superior Court of the State of Delaware: AFFIRMED

.

Andr é M. Beauregard, Esquire, Brown, Shiels & Beauregard, LLC, Dover, Delaware, for

Defendant Below

, Appellant, Jhavon Goode.

Kathryn J. Garrison, Esquire, Department of Justice, Georgetown, Delaware, for Plaintiff

Below

, Appellee, State of Delaware.

SEITZ

, Jus tice:2 I. INTRODUCTION

A Superior Court jury convicted Jhavon Goode of first degree assault, possession

of a firearm during the commission of a felony, and carrying a concealed deadly weapon.

The jury determined that Goode shot Jason Terry in the course of a drug sale in Milford,

Delaware. The court sentenced Goode to a total of eighteen years at Level V

incarceration with credit for time previously served.

Goode appeals his convictions and raises a number of arguments. For the reasons

set forth below, w e conclude that each of his arguments is without merit. With respect to

Goode’s primary argument

— that Terry’s identification of Goode should have been

suppressed as unduly suggestive because Terry identified Goode only after Terry’s

cousin, Raye Boone, showed him a photograph of Goode

— we hold that a state actor

must play a role in an identification before due process concerns arise

. If no state actor is

involved in the identification

, as was the case here, the n the normal rules of evidence and

p rocedure provide sufficient protection to the rights of the accused to challenge the

identification

. Accordingly, we affirm the Superior Court ’ s judgment.

II. FACTS AND PROCEDURAL HISTORY

On April 9, 2014, Jason Terry was walking home after playing basketball at a park

in Milford, Delaware. Terry passed by 105 Montgomery Street, a house frequented by

people who were known for drinking and generally carrying on. While walking by the

house he ran into an acquaintance, Tiger Reynolds. Reynolds told Terry that a person

behind the house wanted to buy marijuana. Evidently, Terry was someone known to3 have marijuana on hand to sell. Intending to make a sale, Terry walked down the alley to

the a rea behind 105 Montgomery Street to meet the prospective buyer

.

Behind the h ouse he encountered two men he did not recognize, one of whom was

sitting in a car. The man in the car said he wanted to buy the marijuana

. Terry

approached him and took the dr ugs out of his pocket. As he did this, the man in the car

pulled out a pistol from under his clothing and pointed it at Terry. Terry, shocked at

having the gun pointed at him, asked the man if he was really going to rob him over

seven grams of marijuana. The man then shot Terry two times.

Terry stumbled back to the street, where police and an ambulance arrived shortly

and took him to the hospital. The shooter and the other man fled. They did not take the

drugs. Although there were various individual s present in and around 105 Montgomery

Street at the time of the shooting, they were all uncooperative when police questioned

them about the shooter’s identity.

Fortunately

, t he neighbors in the house next door witnessed and filmed portions of

the episod e, and were more forthcoming with police. One neighbor identified Jhavon

Goode, whom he recognized from high school, as being present behind 105 Montgomery

Street before the shooting. The neighbors also filmed Terry going down the alley before

he was sho t, men fleeing after the shooting, and the wounded Terry stumbling back up

the alley after the shooting. The film also captured the sound of gunshots. The police

recovered two shell casings from the ground near where the shooting occurred, but no

weapon.4 Terry was taken to the Milford Memorial Hospital, where Detective John Horsman

questioned him. Detective Horsman had been among the first officers to arrive at the

scene of the shooting. Although Terry could not identify the shooter by name, he said

tha t he would be able to recognize the man if he saw him. The next day, Terry was

moved to Christiana Hospital. During his second interview with the police there, Terry

repeated to Detective Horsman that he would be able to identify the shooter if he saw hi s

face.

After the second interview with the police, Terry’s cousin Raye Boone showed

Terry a picture of Jhavon Goode that she found on Facebook. According to Boone,

Goode had been going around town bragging about shooting Terry. 1 After seeing the

pictu re of Goode, Terry was sure Goode was the man who shot him. The police arrested

Goode for the shooting after Terry identified Goode as the shooter based on the picture

Boone show ed to him.

Before trial Goode filed a motion in limine to exclude Terry’s identification of

Goode based on the photograph. Although Goode called it a motion in limine

, the

Superior Court treated it as a motion to suppress. The court denied the motion because a

citizen rather than a State official showed Terry the photograph. The Superior Court

decided that an identification based on a photograph supplied by non

- state actors, such as

1 There is some confusion in the record about how many individuals had been bragging about

shooting Terry. At one point, Terry testified that Boone showed him Goode’s picture and said:

“These were the boys in the area; that they said they shot you, and she showed me a picture.”

App. to Answering Br. at 26. It was not made clear if Terry had been shown pictures of more

than one individual or if the picture he was shown contained more than one person in it.5 friends or relatives, would be admissible, even if it might not be admissible if

orchestrated by the police.

A Superior Co urt jury heard the case from January 12 to 15, 2015. Terry,

Detective Horsman, the neighbors, and several other witnesses testified. Boone did not

testify. After the close of the evidence, the trial judge read the jury the standard

instruction on the bu rden of proof beyond a reasonable doubt. During their deliberations,

the jury asked for additional clarification on the meaning of proof beyond a reasonable

doubt. After considering the jury’s request, counsel for the parties and the court agreed

that it would be problematic to deviate from the standard instruction

. With the agreement

of counsel, the trial judge re

- read the standard instruction. The court also informed the

jury that it was the standard instruction approved by the Delaware Supreme Court, and

that trial judges do not vary the instructions. Half an hour later, the jury returned a guilty

verdict for the charges of first degree assault, possession of a firearm during the

commission of a felony, and carrying a concealed deadly weapon. The co urt set a

sentencing date of March 13, 2015.

A fter trial but before sentencing, the gun used in the shooting was found in a safe

in the woods under unusual circumstances. 2 Although the gun was corroded,

2 The gun was discovered on January 19, 2015 in th e woods near Milford, a few miles from

Goode’s house, by “some random civilian who happened to be walking through the woods and

found a safe, kind of, sitting up against a tree,

. . . and brought it home; cracked it open; and

found a loaded gun inside.” H earing Transcript at 8, State v. Goode

, Cr. ID No. 1404008621A

(Del. Super. May 26, 2015). The gun was not linked to this case until, several months after its

discovery, the State Police conducted the standard testing that they do on all recovered firearm s.

Id. at 9

– 10. The testing linked the shell casings found at the scene of the crime to the gun found

in the woods. Id.6 i nvestigators were able to identif y it as the gun us ed in the shooting because it matched

the shell casings found at the crime scene. The parties and the court agreed that further

testing sh ould be done on the weapon.

The court continued Goode’s sentencing on April 23, 2015 to permit Goode to do

addition al testing and if warranted to file a motion for a new trial. By the time of the next

status conference on May 26, 2015, the defense still had not filed a m otion for a new trial.

T o prevent further delay and recognizing the diminishing possibility that Goode would

file a motion for a new trial, the Superior Court proceeded with sentencing. The court

noted that if testing yielded some result that might entitle Goode to a new trial, he could

appeal to this Court and have his concerns addressed on remand. The court then

sentenced Goode on May 29, 2015 to a total of eighteen years at Level V incarceration

with credit for time previously served. This appeal followed.

III. ANALYSIS

Goode makes five arguments on appeal. First, he argues the Superior Court

should have suppressed Terry’s identification of Goode based on the photograph shown

to him by Terry’s cousin

, Raye Boone

, because the identification procedure was overly

suggestive and therefore constitutionally infirm

. Next, G oode argues the State’s failure

to reveal Boone’s identi t y earlier than it did amounted to a Brady violation and a

violation of Superior Court Criminal Rule 16, and also a violation of the Confrontation

Clause. Third, Goode argues there was insufficient e vidence to convict him. Fourth,

Goode argues the jury convicted him on a lesser standard of proof than “beyond a

reasonable doubt” because it asked for an instruction clarifying the burden of proof, and7 the court merely repeated the standard instruction t hat it had given previously. Finally,

Goode contends that the Superior Court should have granted a cont inuance of his

sentencing after the discovery of the weapon used to shoot Terry, so that he could test it

and move for a new trial. We address each of Goode’s arguments in turn

.

A. The Superior Court Did Not Err When It Declined To Suppress

Terry’s Identification O f Goode

Terry identified Goode as the shooter based on a Facebook photograph that Boone

showed Terry

. According to Goode, Terry’s identification should have been suppressed

as unduly suggestive and therefore a violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. We review constitutional

claims de novo

. 3 After a careful review of the rec ord and the parties ’ legal arguments, we

follow the United States Supreme Court ’s decision in Perry v. New Hampshire

, 4 and

hold

, as did the trial judge, that the Due Process Clause does not require a preliminary

inquiry into the reliability of an eyewitness identification when the identification was not

procured under unnecessarily suggestive circumstances arranged by a state actor

.

As the United States Supreme Court has explained, the Constitution “protects a

defendant against a conviction based o n evidence of questionable reliability, not by

prohibiting introduction of the evidence, but by affording the defendant means to

persuade the jury that the evidence should be discounted as unworthy of credit.” 5 Apart

from the rights guaranteed by the Sixt h Amendment, such as the right to counsel,

3 Ploof v. State

, 75 A.3d 811, 820 (Del. 2013).

4 132 S. Ct. 716 (2012).

5 Id. at 723.8 compulsory process, and the confrontation and cross

- examination of witnesses, the

Supreme Court has recognized that “state and federal statutes and rules ordinarily govern

the admissibility of evidence, and juries are assigned the task of determining the

reliability of the evidence presented at trial.” 6 O nly when the State resorts to evidence

that “is so extremely unfair that its admission violates fundamental concept ion s of

justice” does the Due Process Clause act as a restraint on its admission into evidence. 7

Even w hen police use suggestive and unnecessary identification procedures

,

suppression is not automatic. 8 Instead, “the Due Process Clause requires the courts to

assess, on a case

- by

- case basis, whether improper police conduct created a ‘substantial

likelihood of misidentification.’” 9 Applying a totality of the circumstances approach,

whe n the “‘ indicators of [a witness’] ability to make an accurate identification ’ are

‘outweighed by the corrupting effec t’ of law enforcement suggestion, the identification

should be suppressed.” 10 If not, and if the evidence is admissible in all other respects, it

should be submitted to the jury.

6 Id.

7 Id. (quoting Dowling v. United States

, 493 U.S. 342, 352 (1990)).

8 See id. at 724 (“Even when the police use such a procedure,

. . . suppression of the resulting

identification is not the inevitable consequence.” (citing Manson v. Brathwaite , 432 U.S. 98,

112

– 13 (1977))) ; Younger v. State

, 496 A.2d 546, 550 (Del. 1985) (“That a confrontation is

suggestive, without more,

. . . cannot amount to a due process violation; the unnecessarily

suggestive identification procedure must also carry with it the increased danger of an irreparable

misiden tification.”); see also Monroe v. State

, 28 A.3d 418, 432

– 35 (Del. 2011).

9 Perry

, 132 S. Ct. at 724 (quoting Neil v. Biggers

, 409 U.S. 188, 201 (1972))

. 10 Id. at 725 (quoting Brathwaite

, 432 U.S. at 116); Younger

, 496 A.2d at 550 (“[I]f the Court

determines under the totality of circumstances that a line

- up is impermissibly suggestive, but

nonetheless reliable, evidence of the confrontation will not be excluded at trial.”).9 In Perry

, the United States Supreme Court noted that improper police action was

an essential predicate to its prior decision s address ing eyewitness identification

procedures and due process limitations. According to the Court, a ny other rule “would

open the door to judicial preview, under the banner of due process, of most, if not all,

eyewitness identifications. ” 11 The Supreme Court also acknowledged the fallibility of

eyewitness identifications, but concluded that “ [ t ]he fallibility of eyewitness evidence

does not, without the taint of improper state conduct, warrant a due process rule requiring

a trial court to screen such evidence for reliability before allowing a jury to assess its

creditworthiness.” 12 Rather

, a defendant’s Sixth Amendment rights, an effective defense

attorney’s cross

- examination, e yewitness specific jury instructions, the constitutional

requirement that the government prove guilt beyond a reasonable doubt, and rules of

evidence provide adequate safeguards to a fair trial without the need to resort to a

preliminary due process analys is by the trial judge. 13

We follow the Supreme Court

, and the majority rule, 14 and hold that some state

ac tor must be involved i n procuring a suggestive identification before requiring the trial

court to undertake a preliminary due process analysis

. As th e Court noted in Perry

, its

11 Perry

, 132 S. Ct. at 727.

12 Id. at 728.

13 The Perry Court note d that trial courts have the discretion to exclude evidence when its

prejudicial impact outweighs its probative value under Federal Rule of Evidence 403 and

comparable state rules. Id. at 729. The Court also recognized the possibility of admission in

app ropriate cases of expert testimony on the hazards of eyewitness identification evidence. Id.

14 Lynn M. Talutis, Admissibility of In

- Court Identification as Affected by Pretrial Encounter

that Was not Result of Action by Police, Prosecutors, and the Like

, 86 A.L.R.5th 463 (Originally

published in 2001) (“The majority of courts require that an allegedly suggestive pretrial

encounter be the result of either police or prosecution action to have an effect on the

admissibility of in

- court identification.”).10 prior cases in the identification area dealt with r emedies “ when the police use an

unnecessarily suggestive identification procedure .” 15 In addition to concerns about the

reliability of the identification

, deterring police misconduct when undertaking

identifications motivated the Court’s due process analysis

. 16 Such policy considerations

are absent when private actors stage the identification. We also recognize the

inefficiency in a trial setting of requiring a preli minary due p rocess analysis for private

identifications

, which would require “ judicial preview

. . . of most, if not all, eyewitness

identifications.” 17 As the Supreme Court observed in Perry

, a defendant still has the

necessary tools and procedural protec tions to counter unfair or unreliable identification

procedures. 18

Turning to the case before us

, Terry identified Goode based on the photograph his

cousin found on Facebook. The police were not involved in the identification, which

ends the constitutional inquiry

. We also note that Goode availed himself of all the

procedural protections available to ensure a fair trial. The court appointed counsel for

15 13 2 S. Ct. at 726 (emphasis omitted).

16 Id.

17 Id. at 727.

18 Id. at 728

– 29. Goode relies on a handful of decisions extending due process protections to

identifications not involving state actors. See Thigpen v. Cory

, 804 F.2d 893, 895 (6th Cir.

1986); State v. Atwood

, 832 P.2d 593, 620 (Ariz. 1992), disapproved of by State v. Nordstrom

, 25 P.3d 717, 729 (Ariz. 2001); Commonwealth v. Jones

, 666 N.E.2d 994, 1000

– 001 (Mass.

1996); People v. Walker

, 411 N.Y.S.2d 156, 158

– 59 (Westchester Cnty. Ct. 1978). All of the

cases predate the Supreme Court’s decision in Perry

. Goode also argues that this Court should

extend due process protections under the Delaware Constitution to identifications not involving

state actors. We decline to do so. Generally, “Delaware con stitutional due process is

coextensive with federal constitutional due process,” and in the area of due process this Court

ordinarily defers to the judgment of the “highest court in the land, if the point at issue has been

decided by that Court.” Sheehan v. Oblates of St. Francis de Sales

, 15 A.3d 1247, 1259 (Del.

2011) (quoting Gen. Elec. Co. v. Klein

, 106 A.2d 206, 210 (Del. 1954) ).11 Goode, who attempted through cross

- examination to undermine the credibility and

reliabilit y of Terry’s identification. 19 T he court instructed the jury that to convict they

must find beyond a reasonable doubt that it was, in fact, Goode who shot Terry. In

addition, Goode’s counsel argued strenuously that Terry’s identification was un reliable. 20

Goode also elected not to call Boone as a witness, which was within counsel’s strategic

discretion. 21 Accordingly, the Superior Court correctly declined to suppress Terry ’ s

identification of Goode

.

19 Trial Transcript Volume C at 68 (“Q: Regardless, [Boone] shows you the picture and she

implies that this is the person that shot you, correct? A: No

. . . .”). In Goode’s counsel’s

opening statement, he remarked to the jury:

[T]his case is going to be about identification, and more to the point

misidentification.

. . . On the day he was shot [Terry said] “I don’t know [who

shot me.] I never saw the guy.” The following day he identifies [Goode.] In the

interim what happens is a family member comes to him and shows him a picture

on a cell phone, and he says, “This is the guy who shot you.”

Trial Transcript Volume B at 18

– 19.

20 Goode’s counsel made the following argument in his closing statement:

The day after the shooting, [Terry] doesn’t know who s hot him.

. . . Day two,

before Detective Horsman even makes contact with him, a family member comes

to him with a picture; puts it in his face; and says, That’s the guy who shot you.

. .

. Word on the street is, this shot you [sic]. Now, that’s the guy wh o shot me.

Trial Transcript Volume D at 42. Goode’s counsel also argued:

You may have heard of

. . . these death row exonerations based on DNA. A large

majority of those initial convictions are from misidentifications or identification

cases that are eve ntually reversed through DNA. So then you have Mr. Terry

come in and testify that he’s absolutely sure, but realistically

— I mean, how much

credibility do you put into that identification?

Id. at 46; see also id. at 49 (“[I]s Jason Terry’s ID accurate? Did he really see the shooter or is

he going from the picture that he was shown?”).

21 See Outten v. State

, 720 A.2d 547, 557 (Del. 1998) (“ Whether to call a witness, and how to

cross

- examine those who are called are tactical decisions. ”).12 B. The State’s Delayed Disclosure Of Goode’s Identity Was N ot A

Brady Violation

Goode next argues that the State ’ s failure to disclose the identity of Terry ’ s cousin

Raye Boone was a Brady violation. Specifically, Goode argues the State violated

Superior Court Criminal Rule 16 and violated Brady by not immediately disclosing

Boone ’ s identity. Good e also argues that allowing Detective Horsman and Terry to

tes t ify about Boone ’ s statements violat ed the Confrontation Clause. This Court generally

reviews properly preserved claims of constitutional er ror de novo

. 22 B ecause Goode did

not preserve this claim of error below, we review for plain error. 23 “ To constitute plain

error, an error must be ‘ so clearly prejudicial to substantial rights as to jeopardize the

fairness and integrity of the trial proces s. ’” 24

1. The State Had No Discovery Obligation To Reveal Boone’s I dentity

Before The In Limine Hearing

First, the State did not violate Superior Court Criminal Rule 16. 25 Rule

16( a )(1)(C) provides that:

Upon request

. . . the state shall [provide] books, papers, documents,

photographs, tangible objects, buildings or places, or copies or portions

thereof, which are within the possession

. . . of the state, and which are

material to the preparation of the defendant ’ s defense or are intended for

use by the st ate as evidence in chief at the trial

. . . .

22 Ploof

, 75 A.3d at 820; Nance v. State

, 903 A.2d 283, 285 (Del. 2006).

23 Nance

, 903 A.2d at 285.

24 Id. at 285

– 86 (quoting Williams v. State

, 796 A.2d 1281, 1284 (Del. 2002)).

25 Goode also argues the State violated its duty to preserve evidence by not preserving Boone’s

identity. The State never failed to preserve Boone’s identity

— in fact, it eventually disclosed her

identity during the motion in limine hearing

.13 As the law now stands, Rule 16 does not require the State to disclose the identity

of its witnesses prior to trial 26 or to provide a “ complete and detailed accounting

. . . of all

police investigatory work on a case. ” 27 Goode knew that Terry identified him with the

help of a “ family member who wished to stay anonymous

. ” 28 Although options were

available, Goode never pressed the State for the relative ’ s identity or for any evidence

related to the identification. 29 Nor did the State use Boone or the identification as

“ evidence in chief ”

— instead, it relied on Terry ’ s in

- court identification of Goode as the

shooter and the fact that he was certain Goode was the person who shot him. 30 Goode

has also not shown how Boon e ’ s identity was “material” to his defense. Accordingly, the

State did not violate Rule 16.

2. The State Did Not Violate Brady By Its Delayed Disclosure Of Boone’s

Identity

Under Brady v. Maryland

, “ suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material either to

guilt or to punishment

. . . . ” 31 The defense must establish three elements: “[t] he

evidence at issue must be favorable to the accused, either because it is exculpatory, or

26 Davis v. State

, 99 A.3d 226, 2014 WL 3943100, at *3 (Del. Aug. 12, 2014) (Table); Liket v.

State

, 719 A.2d 935, 937 (Del. 1998) (“ When the testimony or background of a witness offers no

exculpatory value, the State does not have to disclose the identity of that witness prior to that

witness ’ testimony. ”).

27 Lovett v. State

, 516 A.2d 455, 472 (Del. 1986) (quoting Moore v. Illinois

, 408 U.S. 786, 795

(1972)).

28 App. to Answering Br. at 11.

29 See Super. Ct. Crim. R. 16(a)(1)(C) (providing that, “upon request,” defendants are entitled to

certain evidence in the possession of the State).

30 App. to Answering Br. at 58

– 59.

31 373 U.S. 83, 87 (1963).14 because it is impeaching; that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued. ” 32

While Boone ’ s identity could arguably have been used for some impeachment

purpose, the State did not suppress her identity and no prejudice resulted. The police

report provided to Goode under Rule 16( a )(1) stated : “ The victim was able to identify the

suspect through the photographed [sic] provided to him from a family member who

wished to stay anonymous. ” 33 As noted earlier, Goode did not ask the State to reveal the

identity of the family member or file any motion seeking the identity of the family

member

.

Goode al so argues that the State belatedly disclosed Boone’s identity on the eve of

trial

. “ When a defendant is confronted with delayed disclosure of Brady material,

reversal will be granted only if the defendant was denied the opportunity to use the

material effectively. ” 34 Once again, Goode did not ask for the identity of the person who

supplied the photograph, despite knowing as early as June 5, 2014 that such a person

existed

. Goode did learn of Boone ’ s identity at the January 12, 2015 hearing on his

motion to suppress the identification, yet he did not ask for a continuance or otherwise

claim that the late disclosure caused prejudice to the defense

. At trial, Goode cross

examined Terry on the details of Boone ’ s role in his identification, and had every

32 Strickler v. Greene

, 527 U.S. 263, 281

– 82 (1999).

33 App. to Answering Br. at 11.

34 Rose v. State

, 542 A.2d 1196, 1199 (Del. 1988) (citing United States v. Johnston

, 784 F.2d

416, 425 (1st Cir. 1986)).15 opportunity to undermine and cast doubt on the validity of the identification. Goode has

therefore failed to demonstrate a Brady violation.

3. Goode’s Rights Under The Confrontation Clause Were Not Violated

Finally, the State did not violate the Confrontation Clause by presenting Boone ’ s

testimony through Terry and Detective Horsman. In certain situations t he Confrontation

Clause prohibits the use of te stimonial hearsay in criminal trials. 35 But Detective

Horsman never testified to anything that Boone said. Although Terry did begin to repeat

things that Boone had said, the Superior Court quickly halted the testimony and

instructed the jury to disregard his statements. 36 In this situation

, t he trial judge’s prompt

instruction for the jury to disregard the statements cure d any error. 37 Further, it was

Goode who later on cross

- examination elicited testimony about what Boone said. 38

Goode has thus waived any claim that his rights under the Confrontation Clause were

violated. 39

35 Crawford v. Washington

, 541 U.S. 36, 68 (2004) (“ Where testimonial evidence is at issue,

. . . the Sixth Amendment demands what the common law requir ed: unavailability and a prior

opportunity for cross

- examination. ”); Wheeler v. State

, 36 A.3d 310, 317

– 18 (Del. 2012).

36 App. to Opening Br. at 41

– 42.

37 Revel v. State

, 956 A.2d 23, 27 (Del. 2008) (“ A trial judge’s prompt curative instructions ‘are

presumed to cure error and adequately direct the jury to disregard improper statements.’”

( quoting Pena v. State , 856 A.2d 548, 551 (Del. 2004)))

. 38 App. to Opening Br. at 42

- 2

– 43.

39 See United States v. Lopez

- Medina

, 596 F.3d 716, 733 (10th Cir. 2010) (“ [T]here is no

Confrontation Clause violation when the defendant opens the door to the admission of hearsay

testimony. ”); Janosky v. St. Amand

, 594 F.3d 39, 48 (1st Cir. 2010) (holding that defendants may

waive Confrontation Clause rights); see also Bentley v. State

, 930 A.2d 866, 876 (Del. 2007)

(defendants waive the right to object to potentially inadmissible evidence when they bring such

evidence into issue).16 C. The State Presented Sufficient Evidence To Support Goode’s

Conviction

Good e next argues that the State presented insufficient evidence to convict him.

Whe n evaluating sufficiency of the evidence claims, this Court must ask if, considering

the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. 40 Goode ’ s

evidentiary sufficiency argument relies primarily on the premise that Terry ’ s

identification was improper. Goode ’ s conviction relied heavily on Terry ’ s assertion that

he was “ one

- hundred percent

. . . sure ” Goode was the person who shot him. 41 It was

also based on the corroborating testimony of the neighbor that placed Goode at the scene

just before the shooting. Because the trial court properly admitted Terry’s identification,

a rational jury could have believed Terry beyond a reasonable dou bt when he said,

repeatedly and with conviction, that he remembered the face of the man who shot him,

and that the shooter was Goode.

D. The Superior Court Properly Instructed The Jury On The

Beyond A Reasonable Doubt Standard

Goode contends the jury convicte d him using a standard less than beyond a

reasonable doubt because the jury asked the court during deliberations to give further

clarification on that standard, and the court repeated the same standard instruction it had

given previously. According to Goo de, this means the jury never had its confusion

resolved and must have convicted him under a lesser standard.

40 Robinson v. State

, 953 A.2d 169, 173 (Del. 2008).

41 App. to Opening Br. at 42.17 The State had the burden to prove every element of the crimes charged beyond a

reasonable doubt before the jury could convict Goode, 42 and the jury needed to be

instructed on the meaning of that standard. 43 “A trial judge’ s instructions to the jury are

not a basis for reversal if they are reasonably informative and not misleading by common

standards of verbal communication. ” 44 The jury was read

— twice

— an instruction

approved by this Court. 45 It does not follow that because the jury requested clarification

and the court repeated the instruction, the jury was un able to understand it after hearing it

a second time and engaging in additional reflection. J uries are presumed to be able to

understand and follow instructions, 46 and there is nothing to suggest this case is an

exception. Goode ’ s counsel also agreed that the re

- reading of the instruction w as an

appropriate response to the jury ’ s question. Goode ’ s argument is thus without merit.

E. The Superior Court Did Not Err By Declining To Continue

Goode’s Sentencing

Finally, Goode argues that the Superior Court abused its discretion by denying his

request to continue sentencing to allow additional time to test the gun found in the safe in

the woods after his conviction. Whether to grant a continuance is left to the discretion of

42 Mills v. State

, 732 A.2d 845, 849

– 50 (Del. 1999).

43 Id. at 851 (“We adhere to the view that it is desirable to define reasonable doubt for the jury in

a criminal proceeding.”).

44 Id. at 849.

45 See, e.g.

, Keyser v. State

, 893 A.2d 956, 960 (Del. 2006) (endorsing reasonable doubt

instruction nearly identical to Goode ’s); Mills

, 732 A.2d at 852

– 53 (same); see also id. at 852

( “ Justice Ginsberg [has stated of the relevant instruction that] ‘ this model instruction surpasses

others I have seen in stating the reasonable doubt standard succinctly and comprehensively. ’”

(quoting Victor v. Nebraska

, 511 U.S. 1, 27 (1994) (Ginsburg, J., concurring))).

46 See Taylor v. State

, 76 A.3d 791, 802 (Del. 2013) (holding the jury was presumed to have been

able to understand and comply with a limiting instruction); Forrest v. State

, 721 A.2d 1271, 1276

(Del. 1999) (same)

.18 the tria l judge. 47 A trial judge’ s decision to grant or deny a continuance is an abuse of

discretion only if it is clearly unreasonable or capricious. 48

When the Superior Court denied Goode ’ s request for a continuance, he had been

convicted and the court wished t o move the case along without further delay. The c ourt

had already granted Goode a continuance so that he could file a motion for a new trial.

Goode never filed the motion. In addition, the Superior Court noted that in the unlikely

event that something fruitful did come from the testing, Goode would have the

opportunity to seek remand from this Court to address the issue

. The Superior Court did

not act unreasonably or capriciously in denying Goode a continuance, and therefore did

not abuse its discretio n.

IV. CONCLUSION

For the foregoing reasons, the judgment of the Superior Court is affirmed.

47 Cooke v. State

, 97 A.3d 513, 528 (Del. 2014).

48 Id.