IN THE SUPREME COURT OF THE STATE OF DELAWARE 

JAMES E. COOKE, § 

 § 

 Defendant-Below, § Case Nos: 519, 2012 & 526, 2012 

 Appellant, § Consolidated 

 § 

 v. § Court Below: Superior Court 

 § of the State of Delaware, in 

STATE OF DELAWARE, § and for New Castle County 

 § Cr. ID No. 0506005981 

 Plaintiff-Below, § 

 Appellee. § 

 § 

Submitted: May 7, 2014 

Decided: July 24, 2014 

Before STRINE, Chief Justice, HOLLAND, BERGER, and RIDGELY, Justices, 

and JACOBS, Justice (Retired),∗

 constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED. 

Anthony A. Figliola, Jr., Esquire, Figliola & Facciolo, Wilmington, Delaware; 

Peter W. Veith, Esquire, Wilmington, Delaware, Attorneys for Appellant. 

Maria T. Knoll, Esquire, Andrew J. Vella, Esquire, Department of Justice, 

Wilmington, Delaware, Attorneys for Appellee. 

STRINE, Chief Justice: 

 

 

∗

 Sitting by designation under Del. Const. art. IV, § 38 and 29 Del. C. § 5610(a)(2). 
1 

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. 
2 

II. BACKGROUND1

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

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

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

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

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

food because she was hungry.3

 After Bonistall came home, someone broke into the

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

 Bush was out of 

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

an iron cord, and shoved a t-shirt into her mouth as a gag.

5

 The intruder beat Bonistall, 

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

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

knotted around her neck like a ligature.8

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

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

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

 

1

 These facts are drawn from the Superior Court’s sentencing decision, this Court’s decision in 

Cooke’s previous appeal, Cooke v. State, 977 A.2d 803 (2009), and the record below. 

2

 Sentencing Decision, Exhibit B to Cooke’s Opening Br. (Sept. 17, 2012) at 21-23. 

3

 Sentencing Decision, Exhibit B to Cooke’s Opening Br. (Sept. 17, 2012) at 21-23. 

4

 App. to the State’s Answering Br. at B215-216. 

5

 App. to the State’s Answering Br. at B154, B168-170, B208. 

6

 App. to the State’s Answering Br. at B164-166. 

7

 App. to the State’s Answering Br. at B172-173. 

8

 App. to Cooke’s Opening Br. at A204, App. to the State’s Answering Br. at B168-170. 

9

 App. to the State’s Answering Br. at B279. 
3 

wrote, “We Want Are [sic] weed back” and “Give us Are [sic] drugs back.” The intruder 

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

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

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

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

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

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

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

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

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

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

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

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

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

1:00 a.m. 

 

10 App. to Cooke’s Opening Br. at A173-174; App. to the State’s Answering Br. at B205-207. 

11 App. to the State’s Answering Br. at B160, B210-211. 

12 App. to Cooke’s Opening Br. at A539; App. to the State’s Answering Br. at B171. 

13 App. to Cooke’s Opening Br. at A538; App. to the State’s Answering Br. at B280. 

14 App. to Cooke’s Opening Br. at A188-190; App. to the State’s Answering Br. at B155-162. 

15 App. to Cooke’s Opening Br. at A539; Trial Transcript (Mar. 29, 2012), docket 476 (Q. “[C]an 

you please tell the jury approximately, in your opinion, approximately how long it took that fire 

to burn before the smoke reached the hallway to set off the hallway alarm? A. I would say 

probably over an hour . . . maybe even longer . . . .”). Cooke’s counsel confirmed the time 

estimate during cross-examination. Trial Transcript (Mar. 29, 2012), docket 476 (“Q. And you 

believe . . . the fire may have been burning or smouldering for at least an hour? A. It would 

almost have to be at least that long . . .”). 

16 App. to Cooke’s Opening Br. at A204. 
4 

Following the murder, an anonymous person who was attempting to disguise his 

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

first call on May 2, 2005, the caller said that Bonistall’s murder was related to two breakins that had occurred at nearby apartments during the week before Bonistall’s murder.17

 

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

murder and the break-ins at the nearby apartments. 

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

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

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

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

 

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

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

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

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

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

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

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

 

17 App. to the State’s Answering Br. at B256-257. 

18 App. to Cooke’s Opening Br. at A527-528. 

19 App. to the State’s Answering Br. at B229. 

20 App. to the State’s Answering Br. at B230-231. 

21 App. to Cooke’s Opening Br. at A297-298. 
5 

but the intruder said, “Give me your fucking credit cards or I’ll kill you.”22 Cuadra gave 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

22 App. to the State’s Answering Br. at B236-239. 

23 App. to the State’s Answering Br. at B240-43. 

24 App. to Cooke’s Opening Br. at A530-535; App. to the State’s Answering Br. at B245-248. 

25 App. to Cooke’s Opening Br. at A542-546; App. to the State’s Answering Br. at B257, B264. 

26 Cooke has a total of fourteen children by ten different women. Sentencing Decision, Exhibit B 

to Cooke’s Opening Brief (Sept. 17, 2012) at 29, n.22. 

27 App. to the State’s Answering Br. at B282-283. 

28 App. to the State’s Answering Br. at B265-66. 
6 

had left it outside their house.29 Cooke showed Campbell the credit cards and told 

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

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

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

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

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

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

with bumps or freckles on his face and puffy cheeks.

33 That general description matched 

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

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

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

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

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

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

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

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

 

29 App. to the State’s Answering Br. at B267. 

30 App. to Cooke’s Opening Br. at A536; App. to the State’s Answering Br. at B249-251, B267, 

B270. 

31 App. to the State’s Answering Br. at B267. 

32 App. to Cooke’s Opening Br. at A536-37. 

33 App. to Cooke’s Opening Br. at A300. 

34 App. to Cooke’s Opening Br. at A300. 

35 App. to Cooke’s Opening Br. at A303. 

36 App. to Cooke’s Opening Br. at A305. 

37 App. to the State’s Answering Br. at B252. 
7 

him playing basketball in nearby Dickey Park, all identified Cooke as the man in the 

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

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

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

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

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

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

 

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

911 calls was Cooke.41

 

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

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

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

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

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

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

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

four crimes. 

 

38 App. to Cooke’s Opening Br. at A540-541 

39 App. to the State’s Answering Br. at B262. 

40 App. to the State’s Answering Br. at B209, B212-213. 

41 App. to Cooke’s Opening Br. at A325-327. 

42 App. to the State’s Answering Br. at B269. 

43 App. to the State’s Answering Br. at B269, B297-304; Sentencing Decision, Exhibit B to 

Cooke’s Opening Brief (Sept. 17, 2012) at 38-41. 
8 

Cooke was arrested on June 7, 2005 in connection with the murder of Bonistall. 

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

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

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

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

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

told Detective Rubin that he did not know Bonistall.

44 But when Cooke was arrested at 

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

 

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

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

 

Investigators analyzed the scrapings recovered from Bonistall’s fingernails and 

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

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

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

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

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

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

Cooke said that he did not kill Bonistall.48

 

44 App. to Cooke’s Opening Br. at A365. 

45 App. to the State’s Answering Br. at B275. 

46 App. to Cooke’s Opening Br. at A285. 

47 App. to Cooke’s Opening Br. at A204-206; App. to the State’s Answering Br. at B284. 

48 App. to Cooke’s Opening Br. at A369-71. 
9 

Cooke’s first trial began on February 2, 2007. Although Cooke insisted that he 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

49 State v. Cooke, 2007 WL 2129018 (Del. Super. June 6, 2007). 

50 See, e.g., Gonzalez v. United States, 553 U.S. 242, 247 (2008) (right to plead not guilty is a 

fundamental right that a criminal defendant must waive personally and that an attorney alone 

cannot waive); Florida v. Nixon, 543 U.S. 175, 187 (2004) (“[C]ertain decisions regarding the 

exercise or waiver of basic trial rights are of such moment that they cannot be made for the 

defendant by a surrogate. A defendant . . . has the ultimate authority to determine whether to 

plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”) (internal 

quotations omitted). 

51 Cooke v. State, 977 A.2d 803 (Del. 2009) (defense counsel’s pursuit of a verdict of guilty but 

mentally ill despite Cooke’s repeated protestations that he was innocent and not mentally ill 

infringed Cooke’s right to plead not guilty, negated Cooke’s right to testify in his own defense, 

deprived Cooke of the right to an impartial jury, and denied Cooke the assistance of counsel). 

52 App. to Cooke’s Opening Br. at A41. 
10 

2010, alleging violations of his constitutional rights.53 As a result, the Superior Court 

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

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

new Superior Court judge on February 24, 2011.54 

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

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

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

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

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

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

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

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

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

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

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

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

 

53 See, e.g., Cooke v. Goldstein, 2011 WL 2119347 (D. Del. May 26, 2011); Cooke v. Herlihy, 

2011 WL 2119351 (D. Del. May 26, 2011); Cooke v. Wood, 2011 WL 1542825 (D. Del. Apr. 21, 

2011). Nearly all of Cooke’s claims were dismissed as frivolous. 

54 Supreme Court Rule 82(b) was amended on January 6, 2011 to provide that “[i]n a Class A 

felony tried without a jury or a capital first degree murder case that is reversed and remanded by 

the Supreme Court to the Superior Court for a new trial or penalty hearing, the President Judge 

shall assign a different judge to preside over the case.” 

55 App. to Cooke’s Opening Br. at A107-108, A115-116.
11 

Cooke represented himself during the selection of the jury, and then Cooke’s 

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

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

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

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

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

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

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

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

Cooke to death on September 17, 2012. 

III. ANALYSIS

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

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

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

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

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

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

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

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

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

§ 4209(g). 
12 

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 selfrepresentation 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 
13 

mitigation evidence to convince the jury to recommend and the Superior Court to give 

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

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

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

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

be lifted. We now address these related arguments.

1. The State of Delaware Did Not Violate Cooke’s Right To Counsel 

During The Pre-Trial Preparatory Process 

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

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

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

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

reviews the alleged violation of a constitutional right de novo.

56 A criminal defendant 

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

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

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

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

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

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

we detail the key facts regarding this claim. 

 

56 Bentley v. State, 930 A.2d 866, 871 (Del. 2007); Jones v. State, 940 A.2d 1 (Del. 2007). 

57 Bailey v. State, 521 A.2d 1069, 1083 (Del. 1987). 
14 

To begin with, it is critical that all of Cooke’s denial of representation claims be 

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

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

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

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

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

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

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

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

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

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

for the second trial. 

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

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

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

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

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

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

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

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

 

58 App. to Cooke’s Opening Br. at A41. 

59 App. to Cooke’s Opening Br. at A43. 
15 

regarding his case.60 On May 21, 2010, Cooke asked to talk to the warden about moving 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

60 App. to the State’s Answering Br. at B291. 

61 App. to the State’s Answering Br. at B292. 

62 App. to the State’s Answering Br. at B293. 

63 App. to the State’s Answering Br. at B287-90. 

64 App. to the State’s Answering Br. at B293a, B293b.

65 App. to the State’s Answering Br. at B294. 
16 

he could be seen by a female officer.66 Due to his disciplinary problems, and for his own

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

general population at the Vaughn Correctional Center.

67 Because the SHU houses 

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

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

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

corresponding difficulties for attorneys who are representing prisoners housed in the 

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

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

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

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

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

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

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

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

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

 

66 App. to the State’s Answering Br. at B305-307. 

67 App. to the State’s Answering Br. at B8. 

68 Turner v. Safely, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates’ 

constitutional rights, the regulation is valid if it is reasonably related to legitimate penological 

interests” such as institutional security considerations); see also State v. Red Dog, 1993 WL 

144866 (Del. Super. Mar. 2, 1993) (applying the standard set in Turner). 

69 See App. to the State’s Answering Br. at B8 (describing the difficulties for an attorney who is 

advising a client housed in the SHU because of the increased security measures). 

70 App. to Cooke’s Opening Br. at A78. 

71 App. to Cooke’s Opening Br. at A79. 
17 

Superior Court’s efforts to assure that his attorneys could prepare the best defense 

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

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

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

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

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

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

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

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

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

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

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

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

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

was administered.”77

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

Cook’s ability to have adequate access to his counsel or to files necessary for trial 

 

72 A80 (“[COOKE]: I’m just going to fire them . . . . They fired, period. These attorneys is fired. 

. . . They fired, because I don’t want them. . . . Judge Toliver is not going to rule me. You rule 

them, you don’t rule me. Ha, ha, that’s it. THE COURT: Okay -- [COOKE]: I find you to be a 

slave master and an Uncle Tom at the same time.”).

73 App. to Cooke’s Opening Br. at A53. 

74 App. to Cooke’s Opening Br. at A109, A120-121. 

75 App. to Cooke’s Opening Br. at A52-54. 

76 App. to Cooke’s Opening Br. at A120-21. 

77 Cooke’s Opening Brief at 52. 
18 

preparation.78 “Situations involving interference with the assistance of counsel are 

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

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

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

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

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

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

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

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

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

 

78 See Turner v. Safely, 482 U.S. 78, 89 (1987).

79 Bailey v. State, 521 A.2d 1069, 1084 (Del. 1987). 

80 See Bell v. Wolfish, 441 U.S. 520, 540 (1979) (“[I]n addition to ensuring the detainees’ 

presence at trial, the effective management of the detention facility once the individual is 

confined is a valid objective that may justify imposition of conditions and restrictions of pretrial 

detention and dispel any inference that such restrictions are intended as punishment.”); Pell v. 

Procunier, 417 U.S. 817, 827 (1974) (“[Institutional security] considerations are peculiarly 

within the province and professional expertise of corrections officials, and, in the absence of 

substantial evidence in the record to indicate that the officials have exaggerated their response to 

these considerations, courts should ordinarily defer to their expert judgment in such matters.”). 

81 Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964) (“There are no mechanical tests for deciding 

when a denial of a continuance is so arbitrary as to violate due process. The answer must be 

found in the circumstances present in every case, particularly in the reasons presented to the trial 

judge at the time the request is denied.”); see also Jones v. Walker, 540 F.3d 1277, 1283 (11th 

Cir. 2008) (affirming life sentence where trial court denied continuance after defendant in 

murder case fired counsel and elected to proceed pro se on August 8 and trial began on August 

20, and trial had already been rescheduled twice due to the defendant’s conflicts with appointed 

counsel). 
19 

2. The Superior Court’s Denial Of Cooke’s Request For A 

Continuance Was Not An Abuse Of Discretion 

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

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

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

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

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

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

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

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

unless that ruling is clearly unreasonable or capricious.”83 

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

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

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

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

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

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

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

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

 

82 Weber v. State, 971 A.2d 135, 157 (Del. 2009); Riley v. State, 496 A.2d 997, 1018 (Del. 1985); 

see also United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008); Jackson v. United 

States, 330 F.2d 445, 446 (5th Cir. 1964). 

83 Bailey v. State, 521 A.2d 1069, 1088 (Del. 1987); Hicks v. State, 434 A.2d 377, 381 (Del. 

1981). 
20 

second trial for February 22, 2011. That trial was postponed because Cooke filed a 

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

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

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

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

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

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

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

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

experienced defense counsel during the lengthy period since his arrest. 

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

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

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

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

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

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

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

 

84 App. to Cooke’s Opening Br. at A90-91 (“THE COURT: Do you also understand there will be 

no continuance of the trial date if you represent yourself? THE DEFENDANT: Yeah, I 

understand.”). 

85 App. to Cooke’s Opening Br. at A106. 
21 

pitfalls of self-representation.”86 The Superior Court also pointed out that Cooke had 

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

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

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

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

basis for a continuance.89 

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

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

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

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

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

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

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

and added: 

 

86 App. to Cooke’s Opening Br. at A107; see also A115 (“Now, if he doesn’t wish to use you, 

that’s one of the pitfalls of representing yourself.”). 

87 App. to Cooke’s Opening Br. at A107-108 (“There’s been one trial and he’s had counsel go 

over the records and knows what has to be duplicated. . . . But I have no intention, quite 

honestly, of continuing the trial of this matter. This offense took place in 2005. It’s six years 

past. This has been known for a while.”); A115-116 (“It’s been tried once. The evidence is -- 

whatever exists, exists. And I am more than willing to facilitate whatever you need to have 

copied or transferred.”). 

88 App. to Cooke’s Opening Br. at A110-119. 

89 App. to Cooke’s Opening Br. at A117-118. 

90 App. to Cooke’s Opening Br. at A120. 

91 App. to Cooke’s Opening Br. at A120-126; App. to the State’s Answering Br. at B20-21. 

92 See, e.g., App. to Cooke’s Opening Br. at A56 (motion for continuance on Feb. 1, 2012). 

93 See, e.g., App. to the State’s Answering Br. at B30-32 (order denying motion for continuance 

on Feb.10, 2012). 
22 

I will not continue the trial. I told you that at the start, when you assumed 

responsibility for your own defense, you would have to meet the same 

deadlines that I imposed upon counsel. I know of no conspiracy. I have no 

bias against you, one way or the other. I have decided each issue in 

accordance with my understanding of the law and arguments of counsel, 

stand-by, State’s counsel, your own argument.94

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

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

knowingly and voluntarily accepted the difficulties of representing himself in his 

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

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

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

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

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

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

 

94 App. to Cooke’s Opening Br. at A155-156. 

95 See Smith v. Lockhart, 923 F.2d 1314, 1321 (8th Cir. 1991) (“Trial judges must be wary of 

defendants who employ complaints about counsel as dilatory tactics or for some other invidious 

motive.”); Bass v. Estelle, 646 F.2d 1154, 1159 (5th Cir. 1983) (“The freedom to have counsel of 

one’s own choosing may not be used for purposes of delay.”); U. S. ex rel. Davis v. McMann, 

386 F.2d 611, 618 (2d Cir. 1967) (“[A] defendant may not through a deliberate process of 

discharging retained or assigned counsel whenever his case is called for trial subvert sound 

judicial administration by such delaying tactics.”). 

96 See Stevenson v. State, 709 A.2d 619, 631 (Del. 1998) (quoting U.S. ex rel. Carey v. Rundle, 

409 F.2d 1210, 1214 (3d Cir. 1969) (“The calendar control of modern criminal court dockets . . . 

is a sophisticated operation constantly buffeted by conflicting forces. The accused’s rights—

such as those relating to a speedy trial, to an adequate opportunity to prepare the defense, and to 

confront witnesses—are constantly in potential or real conflict with the prosecution’s legitimate 

demands for some stability in the scheduling of cases. The availability of prosecution witnesses 

is often critically dependent on the predictability of the trial list. That delays and postponements 

only increase the reluctance of witnesses to appear in court, especially in criminal matters, is a 

phenomenon which scarcely needs elucidation.”); Carletti v. State, 2008 WL 5077746, *5-6 
23 

prepare for his second trial, a period during which the Superior Court made certain that 

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

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

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

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

3. Cooke Had A Constitutional Right To Represent Himself, But Cooke 

Forfeited That Right Through His Contumacious Behavior 

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

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

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

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

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

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

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

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

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

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

 

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

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

 

(Del. Dec. 3, 2008) (finding that the Court’s interest in the need for calendar control, as well as 

the efficient and effective administration of criminal justice, weighed against a continuance). 

97 Secrest v. State, 679 A.2d 58, 64 (Del. 1996) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-90 

(1964)); Bailey v. State, 521 A.2d 1069, 1088 (Del. 1987). 

98 Cooke’s Opening Brief at 54. 
24 

himself.99 But, Cooke argues, the Superior Court unreasonably delayed by not revoking 

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

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

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

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

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

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

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

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

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

represent him adequately. 

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

101 The 

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

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

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

 

99 Cooke’s Reply Brief at 12. The Reply Brief also said that, “[t]he record before this Court is 

replete with examples of Cooke’s inappropriate behavior prior to opening statements that would 

justify revocation of his self representation rights. . . . The record also reflects several instances 

of Cooke directing disrespectful, derogatory remarks toward the trial judge when rulings were 

not in his favor. Similar remarks were directed toward the State.” Cooke’s Reply Brief at 13 

(internal citations omitted). 

100 Cooke’s Reply Brief at 15. 

101 Williams v. State, 56 A.3d 1053 (Del. 2012); Stigars v. State, 674 A.2d 477, 479 (Del. 1996); 

Grace v. State, 658 A.2d 1011, 1015 (Del. 1995). 

102 U.S. Const. Amend. VI; Del. Const. Art. I, § 7; Faretta v. California, 422 U.S. 806, 812-19 

(1975); Hooks v. State, 416 A.2d 189, 197 (Del. 1980). 

103 Stigars v. State, 674 A.2d 477, 479 (Del. 1996). 
25 

absolute.”104 The Superior Court “may terminate self-representation by a defendant who 

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

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

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

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

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

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

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

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

 

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

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

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

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

 

104 Zuppo v. State, 807 A.2d 545, 547 (Del. 2002); see also Martinez v. Court of Appeal of 

California, Fourth Appellate Dist., 528 U.S. 152, 162 (2000) (“A trial judge may also terminate 

self-representation or appoint ‘standby counsel’—even over the defendant’s objection—if 

necessary. . . . [T]he government’s interest in ensuring the integrity and efficiency of the trial at

times outweighs the defendant’s interest in acting as his own lawyer.”); Clark v. Perez, 510 F.3d 

382, 395 (2d Cir. 2008) (“As it stands, the right to self-representation is not without limits. The 

right is not a license to abuse the dignity of the courtroom.”) (internal quotation omitted). 

105 Payne v. State, 367 A.2d 1010, 1017 (Del. 1976) (quoting United States v. Faretta, 422 U.S. 

806, 834 (1975)). 

106 Cooke’s Opening Brief at 53 (citing U.S. v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998)). 

107 App. to Cooke’s Opening Br. at A85. 

108 App. to Cooke’s Opening Br. at A86. 
26 

defendant of the risks inherent in going forward without the assistance of legal 

counsel.’”109

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

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

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

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

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

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

colloquy between Cooke and the Superior Court continued: 

THE COURT: Do you understand that the right of self-representation is not a 

license to be disruptive and interrupt trial proceedings and that your behavior 

and conduct during trial will be held to the same level as that of an attorney? 

THE DEFENDANT: Yes, I understand. 

THE COURT: You must also follow the Court’s directions and orders. Do 

you understand that and agree? 

THE DEFENDANT: Yes, I understand. 

THE COURT: Do you also agree? 

THE DEFENDANT: Yes, I understand and agree. 

THE COURT: Do you understand that the right of self-representation entails 

a degree of civility and courtesy that must be shown towards the Court and 

opposing counsel during trial proceedings and that any unsolicited disruptive 

remarks made or actions taken during the course of the trial will constitute a 

forfeiture of your right of self-representation? 

THE DEFENDANT: Yes, sir, I understand. 

THE COURT: Do you understand that the Court does not have to advise you 

of this again and that no further warning need be provided to you? Any 

disruptive remarks made or actions taken during the course of the trial 

 

109 Williams v. State, 56 A.3d 1053, 1055 (Del. 2012) (quoting Zuppo v. State, 807 A.2d 545, 547 

(Del. 2002)); Stigars v, State, 674 A.2d 477, 479 (1996). 

110 App. to Cooke’s Opening Br. at A86-102; App. to the State’s Answering Br. at B9-18. 

111 App. to Cooke’s Opening Br. at A92. 

112 App. to Cooke’s Opening Br. at A92-93. 
27 

proceedings could constitute a forfeiture of your right to self-representation? 

Do you understand that this will serve as your last warning, Mr. Cooke? 

THE DEFENDANT: Yes, I understand.113

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

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

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

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

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

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

listen.115 

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

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

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

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

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

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

 

113 App. to Cooke’s Opening Br. at A95-96. 

114 See Hartman v. State, 918 A.2d 1138, 1140 (Del. 2007) (“[O]nce a defendant has invoked the 

right to self-representation that decision must be honored”). 

115 McKaskle v. Wiggins, 465 U.S. 168, 184 (1984) (trial judge did not violate defendant’s right 

to self-representation by appointing standby counsel over defendant’s objection); Clark v. Perez, 

510 F.3d 382, 395 (2d Cir. 2008) (“[A] judge may qualify it by appointing stand-by counsel, 

with or without the defendant’s consent, to aid the accused if and when the accused requests 

help, and to be available to represent the accused in the event that termination of the defendant’s 

self-representation is necessary.”) (internal quotation omitted). 

116 App. to Cooke’s Opening Br. at A157. 

117 App. to Cooke’s Opening Br. at A157-160. 
28 

questioning of the witness.118 Later, Cooke became frustrated when the Superior Court 

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

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

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

THE COURT: I will give you a second admonition, I have instructed you to 

stop doing certain things, you continued, you will add things which are, at 

best untrue, concerning whatever it is you said or heard, or whatever you 

said, it has got to stop. If it does not stop, you will, in the first instance, 

waive any right to continue to represent yourself, given the egregious nature 

that been exhibited thus far, you are going a little bit further, you will, 

perhaps, forfeit that right, which is a second problem. 

... 

I have given you as much leeway as I can. I have told you how to get past 

certain objectionable questions, certain run-on sentences, certain use of 

certain language that no one but you understand, and that’s all I can do. If 

you don’t stop continuing to go past what I have told you to do, then you are 

going to forfeit that right, as well as waive the right to represent yourself, and 

that would be unfortunate, given the fact that you made that request. If you 

don’t stop, it is going to happen. 

... 

Now, if you want to represent yourself, you have to follow the rules of 

evidence, and rules of Superior Court. When you don’t do that, that creates a 

problem. Then you want to add argument beyond that. I told you to stop 

that. So if you continue, then I will revoke your right to represent yourself, 

and I am telling [counsel] and [counsel], if this continues, then they will 

become counsel for the defendant . . . . I have gone as far as I can go. There 

is no rancor here. You have made some intelligent, raised some intelligent 

issues and questions, but then again, you go further and beyond what the 

Court has said you can do, consistently said you could do. You called into 

question the integrity and credibility of the Court, counsel, and anyone who 

has been involved in this, who has done something you don’t like. . . . You 

have to behave and obey the rules of the court. 

... 

I told you where the boundaries are. If you go beyond that, continue to go 

beyond that, then I will determine that you can no longer represent yourself. 

 

118 App. to Cooke’s Opening Br. at A161-165. 

119 App. to the State’s Answering Br. at B147. 
29 

You will have forfeited the right. If you go further, you will waive the right 

to be present, or forfeit the right to be present. I will make the appropriate 

findings if and when you continue. Please stop, it is unnecessary, and I think 

we reached a point where you have to do some serious thinking about how 

you wish to proceed, if you wish to proceed under what circumstances.120

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

120 App. to the State’s Answering Br. at B147-148. 

121 App. to Cooke’s Opening Br. at A177-179. 

122 App. to Cooke’s Opening Br. at A192-194. 

123 App. to Cooke’s Opening Br. at A197. 

124 App. to Cooke’s Opening Br. at A198-199. 

125 App. to Cooke’s Opening Br. at A199. 
30 

Court, then I will have to act accordingly.”126 The Superior Court took a short recess to 

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

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

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

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

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

THE COURT: The Court . . . has determined that we need to stop these 

proceedings at this point. Mr. Cooke, I am going so because it appears that 

you do not wish to abide by the rules and guidelines of this Court. Now, I’m 

not in a position to argue[] with you, I would like to have you continue to 

represent yourself, but if you wish not to do so, based upon the guidelines 

and the instructions given, then I’m going to have no choice but to 

determine that you forfeited that right. Now, again, and for the last time, I 

ask you: Do you wish to follow the instructions and guidelines of the Court? 

MR. COOKE: I have always been, Your Honor. I’m just telling the truth. 

And I believe you hate the truth.130

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

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

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

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

 

126 App. to Cooke’s Opening Br. at A199-200. 

127 App. to Cooke’s Opening Br. at A207-212. 

128 App. to Cooke’s Opening Br. at A214. 

129 App. to Cooke’s Opening Br. at A214-215. 

130 App. to Cooke’s Opening Br. at A217-217a. 

131 App. to Cooke’s Opening Br. at A220. 
31 

forcing me. I understand you threatening me. You threatening me not to get a fair 

trial.”132 The exchange continued: 

MR. COOKE: Every time I cross-examine every witness and you see that I 

do the good job, you hear me, either the State jumps up and says objection, 

argumentative, and you step in, you coach along with them, and I’m shut 

down every time. I’m going to cross-examine the witness, that’s all I can do. 

THE COURT: You going to do it your way, I assume? 

MR. COOKE: My way is not the Court way. I didn’t come here as parties. 

I’m not part of the party. I’m not part of this party. I’m not a Republican, 

I’m not a Democrat. 

THE COURT: What does that have to do with it? 

MR. COOKE: That’s mainly what sits up there, don’t it? 

THE COURT: I’m sorry, sir, I don’t understand that.

MR. COOKE: Figure it out.133

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

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

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

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

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

I still deserve to represent myself. It’s nothing I done wrong. But if you 

chose to overlook that, then I have no choice. But anything they do is still 

against my will. I fired them. . . . I do believe I deserve to[] still finish out 

my representation. And if I do wrong then snatch it. If I do one more 

thing, then take it from me, but at least allow me to proceed.135

 

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

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

 

132 App. to Cooke’s Opening Br. at A220. 

133 App. to Cooke’s Opening Br. at A220-221. 

134 App. to Cooke’s Opening Br. at A222-223. 

135 App. to Cooke’s Opening Br. at A242-243. 
32 

And I told you before, rudeness and lack of civility would not be tolerated 

nor would the failure to comply with the rules and dictates of this Court, be 

tolerated. . . . I do not wish to do this, but I also believe that unless I do it 

and reinstate some orderly processes, then this case will get out-of-hand. . . . 

I find that in the first instance that you forfeited your right to proceed. . . . I 

have no -- any other way to get around it. You have been warned 

repeatedly. You have been disrespectful to the Court and counsel.136 

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

counsel assumed control of Cooke’s defense. 

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

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

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

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

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

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

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

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

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

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

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

 

136 App. to Cooke’s Opening Br. at A244-248. 

137 United States v. Faretta, 422 U.S. 806, 834 (1975) (“[T]he trial judge may terminate selfrepresentation by a defendant who deliberately engages in serious and obstructionist 

misconduct.”); see also Bultron v. State, 897 A.2d 758, 765 (Del. 2006) (“If a defendant’s 

behavior is sufficiently egregious, it will constitute forfeiture.”). 

138 Payne v. State, 367 A.2d 1010, 1017 (Del. 1976) (“Standards required of members of the Bar 

must be adhered to by defendants undertaking their own defense, and gross deviations from these 

standards constitute a waiver of the right of self representation.”). 
33 

are not fairly raised, because they were not made in Cooke’s Opening Brief and so the 

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

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

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

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

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

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

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

continue representing himself, and Cooke insisted that he did. 

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

disruptive, contumacious, stubbornly defiant defendants must be given sufficient 

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

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

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

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

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

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

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

 

139 Supreme Court Rule 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the 

body of the opening brief shall be deemed waived and will not be considered by the Court on 

appeal.”). 

140 Cooke’s Reply Brief at 16. 

141 Illinois v. Allen, 397 U.S. 337 (1970). 
34 

But, at the same time, the Superior Court noted that Cooke seemed to be playing a “cat 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

142 App. to Cooke’s Opening Br. at A244-248 (“And interestingly enough, Mr. Cooke, you have 

kind of played -- and this is my view of it, but I do so find -- kind of a cat and mouse game 

where you would go, well, I’ll do what you want, yeah, and then something else will happen and 

then you’ll do something else. . . . And what it appears to me, for purposes of delay or 

disruption, you will say yes one minute, then go back and do something else and the next time a 

witness comes through.”). 

143 Cf. FRANZ KAFKA, THE TRIAL (1925). 

144 United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990) (“The right to make a knowing 

and intelligent waiver of the right to counsel does not grant the defendant license to play a ‘cat 

and mouse’ game with the court, or by ruse or stratagem fraudulently seek to have the trial judge 

placed in a position where, in moving along the business of the court, the judge appears to be 

arbitrarily depriving the defendant of counsel.”) (internal quotations omitted). 
35 

expensive, patient, and time-consuming measures to secure Cooke’s right to effective 

representation. 

4. The Superior Court’s Order That Standby Counsel Should Present 

Mitigating Evidence Did Not Violate Cooke’s Rights Because Cooke’s 

Waiver Of That Right Was Ambiguous And Any Error Was Harmless 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

145 Lockett v. Ohio, 438 U.S. 586 (1978); Shelton v. State, 744 A.2d 465, 495 (Del. 2000). 

146 Taylor v. State, 32 A.3d 374, 389 (Del. 2011). 
36 

the right to present mitigating evidence may be waived by a defendant,147 and this Court 

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

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

alleged violation of a constitutional right de novo.

150

 

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

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

constitutional violation where counsel presents mitigating evidence over his objection. 

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

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

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

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

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

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

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

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

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

 

147 Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (“[T]he Constitution does not prohibit a 

competent capital defendant from waiving the presentation of mitigation evidence.”); Singleton 

v. Lockhart, 962 F.2d 1315, 1322-23 (8th Cir. 1992) (“If a defendant may be found competent to 

waive the right of appellate review of a death sentence, we see no reason why a defendant may 

not also be found competent to waive the right to present mitigating evidence that might forestall 

the imposition of such a sentence in the first instance.”). 

148 Taylor v. State, 32 A.3d 374, 389 (Del. 2011). 

149 State’s Answering Brief at 92. 

150 Flonnory v. State, 893 A.2d 507, 515 (Del. 2006); Hall v. State, 788 A.2d 118, 123 (Del. 

2001). 
37 

sentence, Cooke essentially admits that by presenting mitigation evidence in an attempt 

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

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

more merciful sentence. 

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

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

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

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

 

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

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

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

sentence. 

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

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

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

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

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

 

151 Williams v. Taylor, 529 U.S. 362, 393 (2000) (Reversing and remanding a case because “[the 

defendant] had a right—indeed, a constitutionally protected right—to provide the jury with the 

mitigating evidence that his trial counsel either failed to discover or failed to offer.”); Lockett v. 

Ohio, 438 U.S. 586, 604 (1978) (“To meet constitutional requirements, a death penalty statute 

must not preclude consideration of relevant mitigating factors.”); Eddings v. Oklahoma, 455 U.S. 

104, 113-14 (1982) (“[T]he state courts must consider all relevant mitigating evidence and weigh 

it against the evidence of the aggravating circumstances.”). 
38 

be part of a game of cat and mouse. Where a defendant has forfeited his right to represent 

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

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

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

end with professional zeal and skill.153 

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

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

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

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

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

 

152 New York v. Hill, 528 U.S. 110, 115 (2000) (“[D]ecisions by counsel are generally given 

effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements 

to conclude regarding the admission of evidence.”) (citing Jones v. Barnes, 463 U.S. 745, 751 

(1983); Henry v. Mississippi, 379 U.S. 443, 451 (1965); and United States v. McGill, 11 F.3d 

223, 226-227 (1st Cir. 1993); Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (“The adversary 

process could not function effectively if every tactical decision required client approval.”); see 

also Am. Bar Ass’n, Criminal Justice Section Standards on Defense Function, Control and 

Direction of the Case § 5.2(b), available at www.americanbar.org/publications/ 

criminal_justice_section_archive/crimjust_standards_dfunc_blk.html (“Strategic and tactical 

decisions should be made by defense counsel after consultation with the client where feasible 

and appropriate. Such decisions include what witnesses to call, whether and how to conduct 

cross-examination, what jurors to accept or strike, what trial motions should be made, and what 

evidence should be introduced.”). 

153 Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense Counsel in 

Death Penalty Cases § 10.11, Commentary (rev. ed. 2003) (emphasis added), reprinted in 31 

Hofstra L.Rev. 913, 1024 (2003), available at www.americanbar.org/content/dam/aba/ 

migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf (“Counsel 

at every stage of the case should take advantage of all appropriate opportunities to argue why 

death is not suitable punishment for their particular client.”); Am. Bar Ass’n, Model Code of 

Professional Responsibility, Canon 7-1 (2008) (“The duty of a lawyer, both to his client and the 

legal system, is to represent his client zealously within the bounds of the law.”). 

154 See, e.g., App. to Cooke’s Opening Br. at A255, A394-395, A520, A524. 
39 

preparation of a mitigation case.155 Standby counsel stated multiple times that Cooke told 

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

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

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

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

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

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

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

manifesting an unequivocal desire to receive a death sentence. 

 

155 App. to Cooke’s Opening Br. at A398-399, A411. 

156 App. to Cooke’s Opening Br. at A522. 

157 App. to Cooke’s Opening Br. at A397 (“THE DEFENDANT: I am waiving that mitigation. I 

told you I waived it. It is not going to be a fair hearing regards how I look at it. THE COURT: 

You don’t wish to participate and present any witnesses or evidence? THE DEFENDANT: I 

waive it, because it is not going to mean anything to me. THE COURT: I understand you don’t 

wish to participate . . . THE DEFENDANT: I am not going to participate. As a matter of fact, I 

want the death penalty, Your Honor. Just give me death. That’s what I deserve. That’s what 

you want to give me.”). 

158 App. to Cooke’s Opening Br. at A397. 

159 See, e.g., App. to Cooke’s Opening Br. at A394 (“THE COURT: Will you cooperate with 

[mitigation] witnesses? MR. COOKE: No. THE COURT: Sorry? MR. COOKE: No, sir. I am 

not cooperating. I don’t. I didn’t do this crime, State know I didn’t do this crime. Those 

attorneys know I didn’t do this crime. They have full documents, everything. You denied to 

hear everything I had to bring in front out of. Why should I corroborate? THE COURT: You 

mean cooperate? MR. COOKE: Why should I corroborate now to please the State?”); A396 

(“THE COURT: Let me ask you a question, Mr. Cooke, because I need to understand. Basically 

your position is I don’t see any use and any utility in having a penalty phase because the case has 

been stacked against me from the start. THE DEFENDANT: Yes. THE COURT: Let me finish, 

because I want to make sure I understand this. And this has been an unfair prosecution and I 

didn’t do it. I maintain my innocence. And this jury only convicted me, because I’m innocent, 

because this was a corrupted function based upon activities, myself, [the original Superior Court 

judge], the prosecutors, and defense attorneys did. Correct? THE DEFENDANT: Yes. Because 

I pointed these issues out. THE COURT: I just want to make sure that’s what you’re saying.”). 
40 

Therefore, the Superior Court engaged in a lengthy colloquy with Cooke regarding 

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

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

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

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

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

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

Superior Court said: 

[T]he defendant has maintained, and I think said it clearly in my estimation, 

that he did not get a fair trial. He said the same thing consistently. And 

that as a result of not having had a fair trial he sees no point in presenting 

the mitigation case, which is far different from . . . recognizing that the 

State can meet its burden and admitting -- and/or admitting, conceding that 

the imposition of the death penalty is warranted based upon the facts and 

circumstances of the case.162

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

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

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

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

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

 

160 App. to Cooke’s Opening Br. at A416. 

161 App. to Cooke’s Opening Br. at A394 (noting that “this is further continued implementation 

of [Cooke’s] choice of strategy or decision to plead not guilty.”). 

162 App. to Cooke’s Opening Br. at A398. 

163 Cooke’s Opening Brief at 86. 
41 

actual guilt and a corollary wish to die, rather than spend his life in prison, as 

punishment. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

164 App. to Cooke’s Opening Br. at A418-419. 

165 App. to Cooke’s Opening Br. at A419. 

166 App. to the State’s Answering Br. at B308-14. 

167 App. to the State’s Answering Br. at B321-329. 

168 App. to the State’s Answering Br. at B330-345. 
42 

allocution.169 On May 2, 2012, Cooke testified and said that the mitigation evidence was 

presented against his wishes.170

Because Cooke supported the presentation of mitigation evidence on his behalf 

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

opposition to the presentation of mitigating evidence.

171 That Cooke then shifted again 

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

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

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

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

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

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

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

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

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

 

169 App. to the State’s Answering Br. at B346. 

170 App. to the State’s Answering Br. at B347. 

171 Cf. Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (“Once asserted, however, the right to 

self-representation may be waived through conduct indicating that one is vacillating on the issue 

or has abandoned one’s request altogether.”); Williams v. Bartlett, 44 F.3d 95, 100-01 (2d Cir. 

1994) (“The purpose of requiring that a criminal defendant make an ‘unequivocal’ request to 

waive counsel is twofold. First, unless the request is unambiguous and unequivocal, a convicted 

defendant could have a colorable Sixth Amendment appeal regardless of how the trial judge 

rules: if his request is denied, he will assert the denial of his right to self-representation; if it is 

granted, he will assert the denial of his right to counsel. Second, the requirement of an 

unambiguous and unequivocal request inhibits any ‘deliberate plot to manipulate the court by 

alternatively requesting, then waiving counsel.’) (internal citations omitted). 

172 See Kostyshyn v. State, 2004 WL 220321, *2 (Del. Jan. 30, 2004) (finding a series of 

disruptive, dilatory outbursts was not a “genuine, unequivocal request to proceed pro se”). 
43 

a claim under Strickland v. Washington173 for ineffective assistance of counsel, and 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

any alleged error. 

 

173 466 U.S. 668 (1984). 

174 See Van Arsdall v. State, 524 A.2d 3, 10-11 (Del. 1987) (citing Chapman v. California, 386 

U.S. 18, 23-24 (1967). 

175 Cf. Stigars v. State, 674 A.2d 477, 479 (Del. 1996) (“When faced with an ambiguous request 

for self-representation, a trial court should lean in favor of the right to counsel.”). 
44 

B. Cooke’s Contentions That The Superior Court’s Rulings Regarding The 

Admissibility Of Certain Evidence Were Erroneous Are Without Merit 

1. The Superior Court Properly Excluded Certain Evidence 

About Bonistall’s Prior Sexual Conduct 

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

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

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

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

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

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

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

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

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

murdered.177

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

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

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

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

 

176 11 Del. C. § 3508 and § 3509. 

177 Cooke’s Opening Brief at 65 (“The defense argued that the sex between Bonistall and 

defendant was consensual.”); see also App. to Cooke’s Opening Br. at A263-264, A370-371.

178 App. to Cooke’s Opening Br. at A265 (“I would deny it under 3508, but I don’t even need to 

reach 3508, at least as to the prior sexual conduct, because it’s simply not relevant. Then, if I go 

to 3508, what is proffered in the affidavit, isn’t relevant again, nor is it in any way assisting. . . . 

[I]t’s not relevant, and therefore, it’s not admissible, with or without 3508, but in the alternative,

with 3508.”). 
45 

Superior Court’s decision to exclude this evidence, on the ground that the Rape Shield 

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

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

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

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

the evidence. 

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

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

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

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

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

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

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

order to prove consent by the complaining witness.”181 

 

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

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

that the Rape Shield Statute does not apply because Bonistall was murdered, and a dead 

 

179 Cooke’s Opening Brief at 65; Cooke’s Reply Brief at 18. 

180 Richardson v. State, 43 A.3d 906, 911 (Del. 2012) (citing Harris v. State, 991 A.2d 1135, 

1138 (Del. 2010). 

181 11 Del. C. § 3509(a). 

182 Cooke’s Reply Brief at 18 (“Cooke never challenged the statute itself . . .”). “In cases 

involving the validity of rape shield statutes, the courts have been confronted with a number of 

different constitutional issues, but, almost without exception, have upheld the particular statute 

involved.” Joel E. Smith, Constitutionality of “rape shield” statute restricting use of evidence of 

victim’s sexual experiences, 1 A.L.R.4th 283 (1980). 
46 

victim cannot be a “complaining witness” under the Statute. That off-putting argument 

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

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

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

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

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

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

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

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

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

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

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

 

183 Jenkins v. State, 2012 WL 3637236, at *2-3 (Del. Aug. 23, 2012) (quoting Scott v. State, 642 

A.2d 767, 771 (Del. 1994)) (the purpose of Delaware’s Rape Shield Law is “to allow defenses 

based on the complainant’s credibility while protecting [the complainant] from unnecessary 

humiliation and embarrassment” thus “ensur[ing] the cooperation of victims of sexual 

offenses”); see also Vance v. State, 384 S.W.3d 515, 519 (Ark. 2011) (“The purpose of the rapeshield statute is to shield victims of rape or sexual abuse from the humiliation of having their 

sexual conduct, unrelated to the charges pending, paraded before the jury and the public when 

such conduct is irrelevant to the defendant’s guilt.”); State v. Alberts, 722 N.W.2d 402, 409 

(Iowa 2006) (“[T]he purpose of the rape-shield law . . . is to protect the victim’s privacy, 

encourage the reporting and prosecution of sex offenses, and prevent the parties from delving 

into distractive, irrelevant matters.”); State v. Garron, 827 A.2d 243, 254 (N.J. 2003) (“The 

overarching purpose of the Rape Shield Statute is to protect the privacy interests of the victim 

while ensuring a fair determination of the issues bearing on the guilt or innocence of the 

defendant.”); State v. Lynch, 854 A.2d 1022, 1035 (R.I. 2004) (“The rape shield statute was 

enacted to encourage victims to report crimes without fear of inviting unnecessary probing into 

the victim’s sexual history.”) (internal quotation marks omitted).
47 

applicability is not limited to living victims.184 The statutory language is itself dispositive 

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

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

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

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

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

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

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

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

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

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

 

184 11 Del. C. § 3508(b); see also 11 Del. C. § 3509(e) (defining “complaining witness” as “the 

alleged victim of the crime charged, the prosecution of which is subject to this section”). 

185 Kelty v. State Farm Mutual Auto Ins. Co., 73 A.3d 926, 929 (Del. 2013) (“When interpreting 

a statute, we attempt to determine and give effect to the General Assembly’s intent. We give 

unambiguous statutory language its plain meaning unless the result is so absurd that it cannot be 

reasonably attributed to the legislature.”). 

186 See, e.g., Hobson v. State, 675 N.E.2d 1090, 1093 (Ind. 1996) (“[A] victim’s death does not 

abrogate the public policy advanced by the Rape Shield Statute, inter alia, encouraging victims 

to report rape.”); Jenkins v. State, 627 N.E.2d 789, 795 (Ind. 1993) (“If the statute is not applied 

to victims who ultimately are murdered, then perpetrators of sex crimes will be encouraged to 

kill their victims, thus enabling them to defend the charges through exploitation of evidence of 

the victim’s prior sexual activity.”); Holland v. State, 587 So. 2d 848, 863 (Miss. 1991) (“[The 

defendant] contends that [the rape shield law] has nothing to do with relevancy because it was 

‘designed [solely] to protect the privacy of a [living ] victim’—not a dead victim . . . . Common 

sense dictates that [the defendant’s] contention is meritless.”); State v. Clowney, 690 A.2d 612, 

619 (N.J. Super. Ct. App. Div. 1997) (“We find nothing in the language of the statute, or its 

underlying purposes, to suggest a deceased victim’s prior sexual conduct is less protected than a 

living victim’s. Beyond that, we find it irrational and illogical to suggest that the rape shield law

should be made inapplicable when the victim is killed after a rape. The statutory goals of 

protecting the privacy of the victim and seeking to avoid character assassination are no less 
48 

acknowledged that the purpose of the evidence was to demonstrate the Bonistall had 

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

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

proving consent.187

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

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

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

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

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

 

consequential when the rape victim is killed. A deceased rape victim’s life is entitled to the same 

privacy as a surviving victim’s.”); State v. Craig, 853 N.E.2d 621, 636 (Ohio 2006) (“No part of 

the rape shield law suggests that a deceased victim’s sexual history is less protected than that of a 

living victim. . . . [T]he state interests underlying the rape shield law are not eliminated when the 

victim has died.”); State v. Turner, 2001 WL 605153 (Tenn. Crim. App. June 5, 2001) (The fact 

that the victim died does not affect the application of [Tennessee’s rape shield law].”); Hoke v. 

Com., 377 S.E.2d 595, 599 (Va. 1989) (applying Virginia’s Rape Shield Law to preclude the 

admission of evidence about the past sexual history of a victim who was murdered after a rape). 

187 See, e.g., Ketchum v. State, 1989 WL 136970, at *2-3 (Del. Oct. 17, 1989) (holding that 

evidence about the victim’s prior sexual conduct, including affidavits from three men stating that 

the victim would have sex while intoxicated and wake up disoriented and unaware of the events 

of the previous night, was inadmissible under § 3509 if proffered to show consent.”). 

188 App. to Cooke’s Opening Br. at A264. 

189 See, e.g., Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A 

Proposal for the Second Decade, 70 MINN. L. REV. 763, 798 (1986) (“More compelling . . . was 

the claim by rape-shield proponents that the changing moral climate in this country simply 

invalidated the underpinnings of the common-law doctrine, rendering unchastity evidence 

irrelevant for its stated purposes.”); Tanya Bagne Marcketti, Rape Shield Laws: Do They Shield 

the Children?, 78 IOWA L. REV. 751, 754 (1993) (“Rape shield statutes evolved from society’s 

recognition that a rape victim’s prior sexual history is irrelevant to issues of consent . . . .”). 

Other commentators have considered statutes like § 3509 to constitute a legislative determination 

that this evidence, if possibly of marginal relevance, is barred under a balancing test akin to 

exclusion under Rule of Evidence 403. See, e.g., Clifford S. Fishman, Consent, Credibility, and 

the Constitution: Evidence Relating to A Sex Offense Complainant’s Past Sexual Behavior, 44 

CATH. U. L. REV. 709, 722 (1995) (“Such legislation represents a legislative judgment that 
49 

proffered evidence has “any tendency to make the existence of any fact that is of 

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

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

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

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

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

particular occasion with the defendant now accused of her rape. 

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

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

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

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

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

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

affidavit contained no rational articulation of how the proffered evidence compromised 

 

evidence of a complainant’s prior sexual conduct is only marginally relevant and that, barring 

unusual circumstances, it tends to confuse the issues, unduly harass witnesses, and may also be 

unfairly prejudicial to the prosecution.”) (internal quotation omitted). 

190 Delaware Rule of Evidence 401. 

191 See The Kinsey Institute, Frequently Asked Sexuality Questions, www.iub.edu/~kinsey/ 

resources/FAQ.html (last updated July 21, 2012) (90% of men and 86% of women surveyed 

reported having had sex in the last year); Delaware Rule of Evidence 201(b) (judicial notice may 

be taken of a fact “not subject to reasonable dispute”). 

192 Wright v. State, 513 A.2d 1310, 1314-15 (Del. 1986). 11 Del. C. § 3508 requires a defendant 

to “make a written motion to the court and prosecutor stating that the defense has an offer of 

proof concerning the relevancy of evidence of the sexual conduct of the complaining witness 

which the defendant proposes to present, and the relevancy of such evidence in attacking the 

credibility of the complaining witness” and accompany it with “an affidavit in which the offer of 

proof shall be stated.” 
50 

Bonistall’s credibility, or why her credibility was even at issue. The Superior Court did 

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

2. The Superior Court Did Not Abuse Its Discretion By Allowing 

Lay Opinion Testimony From A Police Officer That It Was 

Cooke’s Voice On The 911 Calls 

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

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

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

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

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

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

admitted into evidence. 

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

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

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

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

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

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

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

 

 

193 App. to the State’s Answering Br. at B256-57. 

194 App. to Cooke’s Opening Br. at A542-46; App. to the State’s Answering Br. at B257, B264. 

195 App. to Cooke’s Opening Br. at A325-27. 

196 App. to Cooke’s Opening Br. at A337. 
51 

Cooke’s counsel objected to Detective Rubin’s lay opinion testimony about the identity 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

197 Richardson v. State, 43 A.3d 906, 911 (Del. 2012) (citing Harris v. State, 991 A.2d 1135, 

1138 (Del. 2010). 

198 Delaware Rule of Evidence 701. Additionally Delaware Rule of Evidence 901(b)(5) permits 

the “[i]dentification of a voice, whether heard firsthand or through mechanical or electronic 

transmission or recording, by opinion based upon hearing the voice at any time under 

circumstances connecting it with the alleged speaker.” 

199 Washington v. State, 945 A.2d 1168 (Del. 2008). 

200 Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982). 

201 United States v. Sanabria, 645 F.3d 505, 515 (1st Cir. 2011). 
52 

than the jury, and that his testimony was therefore helpful.202 Because there was a basis 

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

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

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

did not abuse its discretion in admitting the testimony.

203

 

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

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

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

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

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

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

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

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

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

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

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

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

 

202 App. to Cooke’s Opening Br. at A321. 

203 See, e.g., United States v. Cruz-Rea, 626 F.3d 929, 935 (7th Cir. 2010); United States v. 

Gholikhan, 370 F. App’x 987, 991 (11th Cir. 2010); United States v. Zepeda-Lopez, 478 F.3d 

1213, 1221 (10th Cir. 2007). 

204 Van Arsdall v. State, 524 A.2d 3, 10 (Del. 1987) (“[T]his Court has consistently refused to 

reverse convictions for errors found to be harmless.”). 

205 Nelson v. State, 628 A.2d 69, 77 (Del. 1993) (quoting Johnson v. State, 587 A.2d 444, 451 

(Del. 1991)). 
53 

even without Detective Rubin’s lay opinion testimony any error by the Superior Court in 

admitting the evidence was harmless. 

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

1. The Superior Court’s Refusal To Declare A Mistrial Because Of 

Inappropriate Comments By A Potential Juror Who Was 

Not Selected Was Not An Abuse Of Discretion 

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

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

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

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

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

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

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

The Superior Court investigated to determine whether juror misconduct had 

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

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

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

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

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

the comments. Reeder stated: 

 

206 App. to the State’s Answering Br. at B83-84. 

207 App. to the State’s Answering Br. at B93-94. 
54 

MS. REEDER: Yes. We were in the cafeteria and he spouted off and 

everybody at the table got up and left and went and sat at other chairs. And 

he was just -- that’s all, to me, he was doing was spouting off. 

THE COURT: When you say he was spouting off, what did he say? 

MS. REEDER: He was saying how prejudiced he was and I’m going to tell 

that judge that since the guy is black and he did it anyway -- and that’s all I 

meant was spouting off. And I thought to myself . . . how dumb are you?208 

Reeder added: 

MS. REEDER: And he sat and boasted about how he was prejudice[d]. 

And he has a daughter and, you know, it was just unnecessary remarks. 

THE COURT: He didn’t say anything about the merits of the case, just that 

he thought that the defendant did it? 

MS. REEDER: He was going to say he did it anyway. 

THE COURT: Just to get out from -- just to -- 

MS. REEDER: Yeah.209

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

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

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

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

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

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

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

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

 

208 App. to Cooke’s Opening Br. at A131. 

209 App. to Cooke’s Opening Br. at A134. 

210 App. to Cooke’s Opening Br. at A137-38. 

211 App. to Cooke’s Opening Br. at A143. 

212 App. to Cooke’s Opening Br. at A135; A152. 

213 App. to Cooke’s Opening Br. at A152. 
55 

This Court reviews the Superior Court’s denial of a request for a mistrial based on 

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

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

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

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

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

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

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

justice would be otherwise defeated.’”217

 

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

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

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

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

 

214 Durham v. State, 867 A.2d 176, 177 (Del. 2005) (citing Barriocanal v. Gibbs, 697 A.2d 1169, 

1171 (Del. 1997)). 

215 Caldwell v. State, 780 A.2d 1037, 1058 (Del. 2001) (quoting Massey v. State, 541 A.2d 1254, 

1257 (Del. 1998); see also Lovett v. State, 516 A.2d 455, 475 (Del. 1986) (“The Trial Judge has 

very broad discretion in deciding whether a case must be retried or the jurors summoned and 

investigated due to alleged exposure to prejudicial information or improper outside influence.”). 

216 Durham v. State, 867 A.2d 176, 179 (Del. 2005) (quoting Hughes v. State, 490 A.2d 1034, 

1043 (Del. 1985)); see also Capano v. State, 781 A.2d 556, 645 (Del. 2001) (quoting Massey v. 

State, 541 A.2d 1254, 1255 (Del. 1988) (“To impeach a jury verdict because of juror misconduct, 

‘a defendant must establish actual prejudice unless defendant can show that the circumstances 

surrounding the misconduct were so egregious and inherently prejudicial as to support a 

presumption of prejudice to defendant.’”)). 

217 Steckel v. State, 711 A.2d 5, 11 (Del. 1998) (quoting Fanning v. Superior Court, 320 A.2d 

343, 345 (Del. 1974). 

218 Cooke’s Opening Brief at 47. 

219 Ross v. Oklahoma, 487 U.S. 81, 86 (1988). 
56 

juror. Furthermore, there is no evidence of record that any of the seated jurors were 

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

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

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

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

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

2. The Superior Court Did Not Abuse Its Discretion When It Dismissed 

Juror #10 For Inappropriate Conduct 

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

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

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

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

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

abuse of discretion.221 

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

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

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

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

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

 

220 Cooke’s Opening Brief at 49. 

221 Capano v. State, 781 A.2d 556, 644 (Del. 2001); Johnson v. State, 311 A.2d 873, 874 (Del. 

1973); see also United States v. Bertoli, 40 F.3d 1384, 1392 (3d Cir. 1994). 

222 App. to the State’s Answering Br. at B258. 

223 App. to Cooke’s Opening Br. at A319. 
57 

looking away and seems agitated.”224 That afternoon, the State said that they had noticed 

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

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

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

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

but would “continue to watch it.”227

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

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

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

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

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

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

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

 

224 App. to Cooke’s Opening Br. at A320. 

225 App. to Cooke’s Opening Br. at A328; App. to the State’s Answering Br. at B272. 

226 App. to Cooke’s Opening Br. at A328. 

227 App. to Cooke’s Opening Br. at A328. 

228 App. to Cooke’s Opening Br. at A339-340 (“She got all mad. Fuck, you know, all kind of 

curse words, stomping her feet, waving her hands, totally upset. . . . Then once we got off the 

elevator on the eighth floor, she was “F” this and “F” that. This is bullshit, waiving her hands in 

the air. . . . She started yelling at me, saying this was bullshit. . . . And . . . she apparently called 

me a fucking idiot.”); A341 (“She started stomping her feet, waving her hands, saying this is 

bullshit and, you know, I want to fucking smoke. This is -- just ranting and raving basically 

about not being able to smoke all the way. . . . But as she was going in, I believe she was like, 

well, I’ll just be late for everything then. She’s been consistently late pretty much every day.”). 

229 App. to Cooke’s Opening Br. at A340. 
58 

Juror #10 to be removed. After hearing testimony from the bailiff and Juror #10 about 

the incident, the Superior Court excused Juror #10.230

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

#10 should be excused due to her inappropriate conduct and not because of her views of 

the evidence, the Superior Court did not abuse its discretion by dismissing her. 

Furthermore, when the Superior Court questioned each of the remaining jurors to 

determine whether Juror #10’s behavior or her excusal would affect their ability to give 

fair and impartial consideration to the issues in the case, the remaining jurors indicated 

that they would be able to proceed unaffected.231

3. The Superior Court’s Refusal To Declare A Mistrial For Inaccurate Answers Given 

By Juror #3 During Voir Dire Was Not An Abuse Of Discretion 

Cooke’s final argument relating to the composition of the jury is that the Superior 

Court erred by failing to excuse a juror who gave inaccurate information in response to 

voir dire questions. Cooke says that had that juror given accurate answers, he would 

have attempted to strike her, and that the juror’s failure to answer accurately thus 

deprived him of a fair jury. To address this claim fairly, the factual background must first 

be recited in some detail. 

 

230 App. to Cooke’s Opening Br. at A346 (“[S]he has been late, consistently late. And that in and 

of itself doesn’t bother me. But I just see a disruptive influence. And her behavior and conduct 

is such that I wouldn’t take it from an attorney and I wouldn’t take it from a party and I’m not 

going to take it from her. I, therefore, reluctantly and over your objection and Mr. Cooke’s 

objection . . . I’m going to excuse her.”). 

231 App. to Cooke’s Opening Br. at A346-53. 
59 

During the jury selection process, the Superior Court asked ten preliminary 

questions to the jury array. Then individual voir dire questioning began. When Luz 

Rodriguez (who eventually became “Juror #3”) presented on February 21, 2012, she was 

asked, “Have you, a relative, or close friend ever been a witness of, or a victim of a 

violent crime?”232 Juror #3 responded that two of her nephews had been killed ten years 

ago in Philadelphia. Further questioning revealed that the perpetrators had been 

convicted and sentenced to life in prison. Juror #3 was also asked, “Have you, a relative, 

or close friend ever been charged with, or convicted of a criminal offense?”233 Juror #3 

said no. Juror #3 was also asked, “Are you, a relative, or close friend presently under 

investigation or prosecution by any law enforcement agency for any criminal offense?”234

 

Juror #3 said no. Juror #3 said that on a scale from one to ten, she was a seven in favor of 

the death penalty.235 Juror #3 also disclosed that she had been a juror twice before, in a 

robbery trial and an attempted murder trial, and both juries had given guilty verdicts.236 

Neither Cooke nor the State challenged Juror #3 for cause or used a peremptory challenge 

to strike her, and she was seated as a member of the jury. 

After the jury returned guilty verdicts against Cooke on all but one misdemeanor 

theft charge, the penalty hearing began on April 18, 2012. During the penalty hearing, on 

April 25, 2012, Juror #3 received a notice in the mail that she had been summoned as a 

 

232 App. to Cooke’s Opening Br. at A129. 

233 App. to Cooke’s Opening Br. at A129. 

234 App. to Cooke’s Opening Br. at A129. 

235 App. to Cooke’s Opening Br. at A128. 

236 App. to Cooke’s Opening Br. at A129. 
60 

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 namecalling, and then the Daughter threatened the Husband with a kitchen knife.238 The 

grandchildren were present, so Juror #3 took them upstairs. A few minutes later, Juror #3 

heard the Husband calling her name. When Juror #3 returned to the kitchen, she saw the 

Daughter on the floor and the Husband holding the Daughter by the neck. Juror #3 told 

the Husband to let the Daughter go, and when he did, the Daughter called the police. The 

Husband told Juror #3 that after she left, the Daughter hit him twice with a frying pan.239 

The Husband said that he had grabbed the Daughter only to prevent her from hitting him 

again. Juror #3 believed him and felt that he had only held the Daughter by the neck in 

order to stop her from assaulting him. 

Nonetheless, the police arrested the Husband, and he spent the night in jail, but 

Juror #3 posted his bail the next day.240 The Husband was initially charged with 

strangulation, menacing, and three counts of endangering the welfare of a child. Those 

 

237 App. to Cooke’s Opening Br. at A420. 

238 App. to Cooke’s Opening Br. at A424. 

239 App. to Cooke’s Opening Br. at A425. 

240 App. to Cooke’s Opening Br. at A425. 
61 

charges were reduced to two misdemeanors for offensive touching and menacing. But 

the Daughter repeatedly informed Juror #3 that she had dropped all charges 

voluntarily.241

On April 11, 2012, the day the jurors were to be sequestered, the Husband carried 

Juror #3’s luggage to the courthouse and told her that he had to go to a hearing that 

day.242 Juror #3 went with him to the hearing because the Husband does not speak much 

English, and she discovered that the charges had not been dropped. Juror #3 called the 

Daughter to ask what was going on, and the Daughter said that she “told them [she] 

didn’t want to press charges against him.”243 Juror #3 told the Superior Court that she did 

not inform it about the situation at that time because, after talking to the Daughter, she 

thought that the charges would be dropped. Juror #3 did not know that the charges had 

not been dropped until she received the witness summons in the mail. 

The Superior Court asked Juror #3 whether the incident created any problems with 

her participation in the case, and whether it would cause her to treat the State differently 

than the Defense. Juror #3 answered “no” to both questions.244 After discussion with 

counsel, the Superior Court concluded that it did not have enough information to make a 

determination about whether the incident had impaired or would impair Juror #3’s ability 

to be impartial. The Superior Court called Juror #3 back for a hearing on April 27, 2012. 

Juror #3 provided additional information about the incident and answered questions from 

 

241 App. to Cooke’s Opening Br. at A425-426. 

242 App. to Cooke’s Opening Br. at A426. 

243 App. to Cooke’s Opening Br. at A427. 

244 App. to Cooke’s Opening Br. at A421. 
62 

the Superior Court. The Superior Court asked Juror #3 multiple times whether the 

incident affected her vote in the case or negatively affected her ability to be fair and 

impartial, and Juror #3 answered, “Not at all.”245

The Superior Court asked Juror #3 why she did not say during voir dire that she 

had been a witness to a violent crime. Juror #3 responded that the question did not cause 

her to think about the incident with the Daughter, “[b]ecause based on what I saw I never 

felt that he tried to kill her. The way that I saw it, he [was] just trying to stop her from 

hitting him with a frying pan.”246 The Superior Court asked Juror #3 why she did not say 

during voir dire that a relative had been charged with a criminal offense. Juror #3 said 

that “because my daughter had told me that she withdraw the charges against him, my 

answer was no” and that she considered the charges by her daughter to be “a false 

claim.”247 The Superior Court asked Juror #3 why she did not say during voir dire that a 

relative was under investigation. Juror #3 said that “because [the Daughter] had already 

told me that she withdr[e]w the charges, then I thought there was no investigation going 

on.”248 The Superior Court asked whether Juror #3 thought that hitting the Husband was 

a violent act. Juror #3 said, “No. I mean, it’s violence, but I wasn’t thinking about that 

incident when I answered that question” because “[i]t was a family thing.”249 

 

245 App. to Cooke’s Opening Br. at A428-29. 

246 App. to Cooke’s Opening Br. at A427. 

247 App. to Cooke’s Opening Br. at A431. 

248 App. to Cooke’s Opening Br. at A431. 

249 App. to Cooke’s Opening Br. at A431. 
63 

The Husband’s case was prosecuted by the Family Division of the Delaware 

Department of Justice, and the prosecutor represented to the Superior Court that the 

Family Court unit was entirely separate from the unit tasked with prosecuting felony 

trials in the Superior Court.250 Juror #3 did not know the prosecutor or defense attorney 

involved in the Husband’s case and had not met them.

251

 

Cooke’s counsel then moved for a mistrial,252 which the Superior Court denied 

after hearing arguments.253 The Superior Court remarked that “I don’t have someone 

who’s being disingenuous”254 and then concluded: 

I did find her -- she was inaccurate [i]n her answers, but she was honest. I do 

not believe she meant to deceive. I think, in her mind, she explained why she 

answered what she answered. The [Defense] has a view of whether she 

would have been struck or not have been struck, but at this point I do not find 

the error, A, to be intentional and, B, to be of such a dimension that it would 

result in a fundamental injustice to the defendant.255

The Superior Court then had to determine whether to remove Juror #3 and replace her 

with an alternate for the sentencing hearing. The State argued that Juror #3 should be 

removed because it was concerned that she would be biased against the State.256 But the 

defense argued that Juror #3 should remain on the panel, stating that “if you find that she 

was fair enough to render a verdict of guilty, she’s fair enough to sit on the penalty 

 

250 App. to Cooke’s Opening Br. at A432. 

251 App. to Cooke’s Opening Br. at A427. 

252 App. to Cooke’s Opening Br. at A433. 

253 App. to Cooke’s Opening Br. at A440. 

254 App. to Cooke’s Opening Br. at A434. 

255 App. to Cooke’s Opening Br. at A440. 

256 App. to Cooke’s Opening Br. at A440-41. 
64 

phase.”257 The State noted that the next alternate juror said that on a scale from one to 

ten, he was a ten in favor of the death penalty, whereas Juror #3 was only a seven.258 The 

Superior Court determined that Juror #3 would stay on the panel and would not be 

excused. On May 21, 2012, the defense filed a motion for a new trial, based on the 

grounds of juror bias and misconduct, specifically the issue with Juror #3’s inaccurate 

answers to the voir dire questions.259 On July 24, 2012, the Superior Court issued a 

38-page decision denying the motion for a new trial.

260

 Cooke now claims that if Juror #3 had answered the voir dire questions accurately, 

then he would have challenged her for cause or exercised a peremptory challenge.261

 

Cooke also claims that the Superior Court’s failure to remove Juror #3 or to declare a 

mistrial deprived him of trial by an impartial jury, and that he should be entitled to a new 

trial as a result. This Court reviews the Superior Court’s refusal to grant a motion for a 

new trial for abuse of discretion.262

The Constitutions of our nation and our state guarantee a criminal defendant the 

right to have his case heard by an impartial jury.263 The right to challenge a potential 

juror during voir dire is an important safeguard of the right to trial by an impartial jury, 

 

257 App. to Cooke’s Opening Br. at A441-42. 

258 App. to Cooke’s Opening Br. at A442. 

259 App. to Cooke’s Opening Br. at A467. 

260 App. to Cooke’s Opening Br. at A478; see also State v. Cooke, 2012 WL 3060956 (Del. 

Super. July 24, 2012). 

261 Cooke’s Opening Brief at 42. 

262 Taylor v. State, 685 A.2d 349, 350 (Del. 1996); Massey v. State, 541 A.2d 1254, 1257 (Del. 

1988).

263 U.S. Const. Amend. VI; Del. Const. Art. I, § 7; Flonnery v. State, 778 A.2d 1044, 1052 (Del. 

2001). 
65 

and that right can be compromised when a juror fails to disclose material information.264 

The purpose of voir dire is to provide the Superior Court and the parties with “sufficient 

information to decide whether prospective jurors can render an impartial verdict based on 

the evidence developed at trial and in accordance with the applicable law.”265 This Court 

has held that “if only one juror is improperly influenced, a defendant in a criminal case is 

denied his Sixth Amendment right to an impartial jury.”266 

In addressing what consequences should follow when jurors have failed to answer 

material questions during voir dire accurately, the law distinguishes between situations 

where a juror’s failure to answer accurately was deliberate, rather than inadvertent. 

Where a juror deliberately fails to answer honestly a material question during voir dire, 

that dishonesty is considered to be, in itself, sufficient evidence of bias to require that the 

defendant be afforded a new trial.267 By contrast, to determine whether a new trial must 

be held in cases involving inadvertent non-disclosure by a juror, this Court has adopted 

the standard set by the United States Supreme Court in McDonough Power Equipment 

Inc. v. Greenwood.

268

 McDonough held that to obtain a new trial, a defendant must 

demonstrate both that “a juror failed to answer honestly a material question on voir dire,” 

and that “a correct response would have provided a valid basis for a challenge for 

 

264 Jackson v. State, 374 A.2d 1, 2 (Del. 1977). 

265 Hughes v. State, 490 A.2d 1041 (Del. 1985) (citing Parson v. State, 275 A.2d 777, 780 (Del. 

1971)). 

266 Hall v. State, 12 A.3d 1123 (Del. 2010). 

267 Schwan v. State, 65 A.3d 582, 591 (Del. 2013); Jackson v. State, 374 A.2d 1, 2 (Del. 1977). 

268 464 U.S. 548 (1984); Banther v. State, 783 A.2d 1287, 1290-91 (Del. 2001). 
66 

cause.”269 This Court has held that “[d]uring jury selection in a capital murder case, the 

answer to a question about violent crime is material.”270 Thus, Cooke has established that 

the relevant questions posed to Juror #3 were material. 

The Superior Court’s assessment of a juror’s honesty during voir dire is entitled to 

“special deference.”271 This deference is “based upon the judge’s ability to assess the 

veracity and credibility of the potential juror.”272 Here, the Superior Court concluded that 

Juror #3’s answers to the voir dire questions were inadvertently inaccurate, rather than 

purposefully untrue.273 The Superior Court also found that Juror #3’s explanations were 

“candid and credible,”274 and that Juror #3’s voir dire answers were an “honest statement 

or belief made in good faith.”275

 

The record adequately supports the Superior Court’s conclusion that Juror #3’s 

incomplete answers to the voir dire questions resulted from an honest mistake. Juror #3 

plausibly explained why the Superior Court’s question about witnessing a violent crime 

 

269 Schwan v. State, 65 A.3d 582, 591 (Del. 2013); Banther v. State, 783 A.2d 1287, 1290–91 

(Del. 2001). 

270 Banther v. State, 783 A.2d 1287, 1291 (Del. 2001), see also Sampson v. United States, 724 

F.3d 150, 165 (1st Cir. 2013) (“[A] voir dire question is material if a response to it ‘has a natural 

tendency to influence, or is capable of influencing,’ the judge’s impartiality determination.”). 

271 Patton v. Yount, 467 U.S. 1025, 1038 (1984); DeShields v. State, 534 A.2d 630, 636 (Del. 

1987) (“Determinations of juror impartiality are the responsibility of the trial judge who has the 

opportunity to question the juror, observe his or her demeanor, and evaluate the ability of the 

juror to render a fair verdict.”). 

272 Schwan v. State, 65 A.3d 582, 589 (Del. 2013); Hughes v. State, 490 A.2d 1034, 43 (Del. 

1985) (“[I]t is the judge who is best situated to determine competency to serve impartially.”). 

273 App. to Cooke’s Opening Br. at A507 (“There is no indication that Juror No. 3 was 

intentionally deceptive at any point in her responses to the voir dire, in bringing the matter to the 

attention of the Court or in testifying before Court about her involvement in the . . . matter.”). 

274 App. to Cooke’s Opening Br. at A508. 

275 App. to Cooke’s Opening Br. at A438. 
67 

did not cause her to think about the ambiguous event between the Husband and the 

Daughter. Juror #3 testified that she viewed her Husband as defending himself against 

the Daughter’s attacks with a knife and a frying pan. Juror #3 also explained that she did 

not think that the Husband was charged with, or was under investigation for, a crime 

because she believed that the Daughter had dropped the charges. Although Cooke argued 

that the Superior Court erred by accepting Juror #3’s explanation, the Superior Court’s 

decision to do so was within its discretion and resulted from a very thorough factual 

inquiry. Supporting its finding was the fact that Juror #3 herself surfaced the issue, 

belying the notion that Juror #3 had somehow purposely hid the issue so as to further 

some desire on her part to serve as a juror in Cooke’s trial. 

Because the Superior Court had a sufficient basis to conclude that Juror #3’s 

answers were not intentionally false, we need not reach the second prong of McDonough 

— the question of whether the record also supports the Superior Court’s conclusion that 

Cooke would not have had a basis to strike Juror #3 for cause even if she had more 

accurately answered the voir dire questions. Put simply, Juror #3’s honest but mistaken 

answers to the voir dire questions do not amount to a violation of Cooke’s constitutional 

rights that would entitle him to a new trial.276 As the United States Supreme Court 

 

276 See Smallwood v. State, 2002 WL 31883015 (Del. Dec. 26, 2002); see also United States v. 

Hodge, 321 F.3d 429, 441 (3d Cir. 2003) (“Generally, we will not invalidate a jury’s verdict 

because of a juror’s mistaken, though honest, response at voir dire.”); United States v. Ortiz, 942 

F.2d 903, 909 (5th Cir. 1991) (“Moreover—and much more important—[the juror]’s post-verdict 

dialogue with the district court suggests that he answered the voir dire query honestly yet 

inaccurately, something McDonough Power Equipment Co. expressly permits.”); Arreola v. 

Choudry, 533 F.3d 601, 608 (7th Cir. 2008) (quoting McDonough). 
68 

explained in McDonough, “[t]o invalidate the result of a [multi]-week trial because of a 

juror’s mistaken, though honest response to a question, is to insist on something closer to 

perfection than our judicial system can be expected to give.”277

D. Imposition Of The Death Penalty Does Not Fail A Proportionality Review 

This Court is statutorily mandated to conduct a specific form of judicial review 

following the imposition of a death sentence. Under 11 Del. C. § 4209(g), this Court 

must review a sentence of death to determine whether: (1) the evidence supports, beyond 

a reasonable doubt, the jury’s finding of at least one statutory aggravating circumstance; 

(2) the sentence was arbitrarily or capriciously imposed or recommended; and (3) the 

sentence is disproportionate to the penalty imposed in similar cases.278 

Cooke argues that his death sentence in this case fails a proportionality review, 

because it is “disproportionate to the penalty recommended in similar cases.”279 Cooke 

also claims that “the trial process and the penalty phase were so flawed as to deny him 

Due Process so that a proportionality review for this case would be impossible.”280 

Cooke claims that the conviction and sentence are “manifestly unjust and [] so lacking in 

reliability that it renders such analysis useless.”281 As explained above, Cooke’s 

complaints about the trial process and the penalty phase do not have merit, and thus they 

do not render the required proportionality review impossible or useless. 

 

277 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984). 

278 Sykes v. State, 953 A.2d 261, 273 (Del. 2008), Pennell v. State, 604 A.2d 1368 (Del. 1992). 

279 Cooke’s Opening Brief at 95 (citing 11 Del. C. § 4209(g)(2)(a)). 

280 Cooke’s Opening Brief at 97. 

281 Cooke’s Opening Brief at 98. 
69 

We also conclude that Cooke’s alternative argument that the sentence entered 

against him does not survive the statutory review process lacks merit. 

First, the evidence in the record supports the jury’s finding that there was no 

reasonable doubt that a statutory aggravating factor existed because Bonistall’s murder 

was committed while Cooke was engaged in the commission of, or attempt to commit, 

one of the enumerated felonies in 11 Del. C. § 4209(e)(1)(j). The jury convicted Cooke 

of first degree rape and first degree burglary. Because Cooke was properly convicted of 

those crimes by the jury on sufficient evidence, the statutory aggravating circumstance 

was established as a matter of law.282

Next, the Superior Court did not arbitrarily or capriciously impose the death 

penalty. A trial court’s decision is arbitrary and capricious only if the decision is not “the 

product of a deliberate, rational and logical deductive process.”283 Here, the Superior 

Court set out its rationale for the sentencing decision in a detailed 70-page written 

opinion.284 The Superior Court identified several nonstatutory factors alleged by the 

State, including the gruesome circumstances of Bonistall’s murder, the other home 

invasions and violent crimes that Cooke committed in Newark and in Atlantic City 

around the same time as Bonistall’s murder, and Cooke’s 25-year criminal history. In 

reaching its decision, the Superior Court also carefully considered the mitigating 

evidence presented by Cooke’s standby counsel, including the abandonment and abuse in 

 

282 Dawson v. State, 627 A.2d 57, 66 (Del. 1994). 

283 Manley v. State, 918 A.2d 321, 329 (Del. 2007) ((quoting Red Dog v. State, 616 A.2d 298, 

310 (Del. 1992)). 

284 See Sentencing Decision, Exhibit B to Cooke’s Opening Brief (Sept. 17, 2012). 
70 

his childhood, Cooke’s affection for his family, and the impact his execution would have 

on his children. Then, after reviewing these factors, the Superior Court made a reasoned 

determination that the mitigating factors were outweighed by the aggravating factors. 

Because the Superior Court’s decision was the result of rational thinking that cannot be 

described as arbitrary and capricious, we are bound to defer to it.285

Finally, Cooke’s sentence is not disproportionate to the penalty imposed in similar 

cases. To determine if a death sentence is disproportionate, the Court reviews the 

universe of cases,286 which is comprised of those First Degree Murder cases that have 

included a penalty hearing and in which a sentence of either life or death has become 

final,287 without or following a review by this Court.288 A definitive comparison of cases 

is “almost impossible.”289 “The fact that there is only one statutory aggravating factor in 

this case does not make imposition of the death penalty disproportionate.”290 

The task of conducting a proportionality review under § 4209(g) has a necessarily 

uncomfortable quality, because determining whether a crime that ended in someone’s 

death is more or less condemnable involves a decisionmaking process that can never be 

wholly objective or untroubling. But this is not a close case. Burglarizing an occupied 

 

285 Red Dog v. State, 616 A.2d 298, 309 (Del. 1992). 

286 See Appendix A. 

287 Capano v. State, 781 A.2d 556, 677-78 (Del. 2001). 

288 Sykes v. State, 953 A.2d 261, 273 (Del. 2008). 

289 Clark v. State, 672 A.2d 1004, 1010 (Del. 1996). 

290 Capano v. State, 781 A.2d 556, 677-78 (Del. 2001). 
71 

home in the early morning hours is more than sufficiently terrorizing to the victim.291 

Binding,292 brutally beating, raping, and strangling the innocent and defenseless victim,293

and then dousing her dead body in bleach and burning it in an attempt to destroy evidence 

of the crime is — by any minimal standard of human decency — horrific and depraved 

conduct, which renders the perpetrator eligible for a sentence of death under clear 

precedent interpreting the Constitutions of our state and our nation.294 Therefore, the 

Superior Court was justified in finding that “[t]he evidence presented at trial leads to the 

inescapable conclusion that the murder of Lindsey Bonistall was committed in an 

unusually cruel and depraved fashion.”295 Accordingly, this case easily fits the pattern of

cases where the death penalty has been upheld as proportionate. 

IV. CONCLUSION 

For all of these reasons, the judgment of the Superior Court is AFFIRMED. 

 

291 See, e.g., Swan v. State, 820 A.2d 342, 360 (Del. 2003) (“[T]he home [is] one place where a 

person should feel secure from the elements that may place their family at risk.”). 

292 See, e.g., Dawson v. State, 637 A.2d 57, 68 (Del. 1994) (noting that “Dawson’s murder 

victim, like those of Red Dog and Pennell, was rendered helpless by binding before her death” 

when concluding that Dawson’s death sentence was proportionate). 

293 See, e.g., Steckel v. State, 711 A.2d 5, 14 (Del. 1998) (affirming death sentence where 

defendant attacked, strangled, and raped his helpless victim). 

294 See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 437-38 (2008) (distinguishing between 

intentional first-degree murder and other serious violent crimes, and determining that although 

the death penalty is constitutional for murder, “the death penalty should not be expanded to 

instances where the victim’s life was not taken”) Tison v. Arizona, 481 U.S. 137, 158 (1987) 

(death penalty is constitutional in a felony murder case where the defendant was a major 

participant in the felony committed and the defendant acted with reckless indifference to human 

life); Dawson v. State, 637 A.2d 57, 67-68 (Del. 1994) (death penalty was constitutional where 

the defendant “was found guilty of committing an unprovoked, cold-blooded murder of a person 

who lacked the ability to defend herself”). 

295 Sentencing Decision, Exhibit B to Cooke’s Opening Brief (Sept. 17, 2012) at 48. 
 A-1 

APPENDIX A*

Name: Robert Ashley 

Criminal ID: 9605003410 

County: New Castle 

Sentence: Life imprisonment (following retrial and second penalty 

 hearing) 

Decision on appeal: 2006 WL 797894 (Del. Mar. 27, 2006) 

Name: Meri-Ya C. Baker 

Criminal ID: 90011925DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1993 WL 557951 (Del. Dec. 30, 1993) 

Name: Jermaine Barnett 

Criminal ID: 9506017682 

County: New Castle 

Sentence: Life imprisonment (following second penalty hearing) 

Decision on appeal: 749 A.2d 1230 (Del. 2000) (remanding for new 

 sentencing) 

Name: Hector S. Barrow 

Criminal ID: 9506017661 

County: New Castle 

Sentence: Life imprisonment (following second penalty hearing) 

Decision on appeal: 749 A.2d 1230 (Del. 2000) (remanding for new 

sentencing) 

Name: Tyreek D. Brown 

Criminal ID: 9705011492 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1999 WL 485174 (Del. Mar. 1, 1999) 

 

*

The universe of cases prior to 1991 is set forth in appendices to prior opinions by this 

Court, and those appendices are incorporated herein by reference. See, e.g., Lawrie v. 

State, Del. Supr., 643 A.2d 1336, 1352-56 (1994). 
 A-2 

Name: Justin L. Burrell 

Criminal ID: 9805012046 

County: Kent 

Sentence: Life imprisonment 

Decision on appeal: 766 A.2d 19 (Del. 2000) 

Name: Luis G. Cabrera 

Criminal ID: 9703012700 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 747 A.2d 543 (Del. 2000) 

Name: Luis G. Cabrera 

Criminal ID: 9904019326 

County: New Castle 

Sentence: Death 

Decision on appeal: 840 A.2d 1256 (Del. 2004) 

Name: James B. Clark, Jr. 

Criminal ID: 9406003237 

County: New Castle 

Sentence: Death (judge only) 

Decision on appeal: 672 A.2d 1004 (Del. 1996) 

Name: Charles M. Cohen 

Criminal ID: 90001577DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: No direct appeal taken 

Name: Donald Cole 

Criminal ID: 0309013358 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 922 A.2d 364 (Del. 2007)
 A-3 

Name: James T. Crowe, Jr. 

Criminal ID: 9508008979 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1998 WL 736389 (Del. Oct. 8, 1998) 

Name: David F. Dawson 

Criminal ID: 88K00413DI 

County: New Castle (venue changed) 

Sentence: Death 

Decision on appeal: 637 A.2d 57 (Del. 1994) 

Name: Byron S. Dickerson 

Criminal ID: 90011926DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1993 WL 541913 (Del. Dec. 21, 1993) 

Name: Cornelius E. Ferguson 

Criminal ID: 91009926DI 

County: New Castle 

Sentence: Death 

Decision on appeal: 642 A.2d 772 (Del. 1994) 

Name: Donald Flagg 

Criminal ID: 9804019233 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: No direct appeal taken 

Name: Freddy Flonnory 

Criminal ID: 9707012190 

County: New Castle 

Sentence: Life imprisonment (following second penalty hearing) 

Decision on appeal: 893 A.2d 507 (Del. 2006) 
 A-4 

Name: Sadiki J. Garden 

Criminal ID: 9912015068 

County: New Castle 

Sentence: Life imprisonment ordered on appeal 

Decision on appeal: 844 A.2d 311 (Del. 2004) 

Name: Robert J. Garvey 

Criminal ID: 0107010230 

County: New Castle 

Sentence: Life imprisonment 

Appeal: 873 A.2d 291 (Del. 2005) 

Name: Robert A. Gattis 

Criminal ID: 90004576DI 

County: New Castle 

Sentence: Death (death sentence commuted in 2012)

Decision on appeal: 637 A.2d 808 (Del. 1994) 

Name: Arthur Govan 

Criminal ID: 92010166DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1995 WL 48359 (Del. Jan. 30, 1995) 

Name: Tyrone N. Guy 

Criminal ID: 0107017041 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 913 A.2d 558 (Del. 2006) 

Name: Jason Anthony Hainey 

Criminal ID: 0306015699 

County: New Castle 

Sentence: Life imprisonment 

Appeal: 878 A.2d 430 (Del. 2005) 
 A-5 

Name: Ronald T. Hankins 

Criminal ID: 0603026103A 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 976 A.2d 839 (Del. 2009) 

Name: Akbar Hassan-El 

Criminal ID: 010701704 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 911 A.2d 385 (Del. 2006) 

Name: Robert W. Jackson, III 

Criminal ID: 92003717 

County: New Castle 

Sentence: Death 

Decision on appeal: 684 A.2d 745 (Del. 1996) 

Name: Larry Johnson 

Criminal ID: 0309013375 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 878 A.2d 422 (Del. 2005) 

Name: Shannon Johnson 

Criminal ID: 0609017045 

County: New Castle 

Sentence: Death 

Decision on appeal: 983 A.2d 904 (Del. 2009) 

Name: David Jones 

Criminal ID: 9807016504 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 798 A.2d 1013 (Del. 2002) 
 A-6 

Name: Michael Jones 

Criminal ID: 9911016309 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 940 A.2d 1 (Del. 2007). 

Name: Michael Keyser 

Criminal ID: 0310021647 

County: Kent 

Sentence: Life imprisonment 

Decision on appeal: 893 A.2d 956 (Del. 2006) 

Name: David J. Lawrie 

Criminal ID: 92K03617DI 

County: Kent 

Sentence: Death 

Decision on appeal: 643 A.2d 1336 (Del. 1994) 

Name: Thomas M. Magner 

Criminal ID: 9509007746 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1998 WL 666726 (Del. July 29, 1998) 

Name: Michael R. Manley 

Criminal ID: 9511007022 

County: New Castle 

Sentence: Death 

Decision on appeal: 918 A.2d 321 (Del. 2007) 

Name: Frank W. Moore, Jr. 

Criminal ID: 92S03679DI 

County: Sussex 

Sentence: Life imprisonment 

Decision on appeal: 1994 WL 202289 (Del. May 9, 1994) 
 A-7 

Name: Adam Norcross 

Criminal ID: 0002006278A 

County: Kent 

Sentence: Death 

Decision on appeal: 816 A.2d 757 (Del. 2003) 

Name: Juan Ortiz 

Criminal ID: 0107004046A 

County: Kent 

Sentence: Death 

Decision on appeal: 869 A.2d 285 (Del. 2005) 

Name: Darrel Page 

Criminal ID: 9911016961 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 934 A.2d 891 (Del. 2007) 

Name: James W. Perez 

Criminal ID: 93001659 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: No. 207, 1993, Moore, J. (Del. Feb. 3, 1994) 

Name: Gary W. Ploof 

Criminal ID: 0111003002 

County: Kent 

Sentence: Death 

Decision on appeal: 75 A.3d 840 (Del. 2013) 

Name: Derrick Powell 

Criminal ID: 0909000858 

County: Sussex 

Sentence: Death 

Decision on appeal: 49 A.3d 1090 (Del. 2012) 
 A-8 

Name: James Allen Red Dog 

Criminal ID: 91001754DI 

County: New Castle 

Sentence: Death (judge only) 

Decision on appeal: 616 A.2d 298 (Del. 1992) 

Name: Luis Reyes 

Criminal ID: 9904019329 

County: New Castle 

Sentence: Death 

Decision on appeal: 819 A.2d 305 (Del. 2003) 

Name: James W. Riley 

Criminal ID: 0004014504 

County: Kent 

Sentence: Life imprisonment (following retrial) 

Decision on appeal: 2004 WL 2085525 (Del. Oct. 20, 2004) 

Name: Jose Rodriguez 

Criminal ID: 93001668DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 1994 WL 679731 (Del. Nov. 29, 1994) 

Name: Richard Roth, Jr. 

Criminal ID: 9901000330 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 788 A.2d 101 (Del. 2001) 

Name: Reginald N. Sanders 

Criminal ID: 91010161DI 

County: New Castle (venue changed) 

Sentence: Life imprisonment (following 1992 resentencing) 

Decision on appeal: 585 A.2d 117 (Del. 1990) (remanding for new 

 sentencing) 
 A-9 

Name: Nelson W. Shelton 

Criminal ID: 92000788DI 

County: New Castle 

Sentence: Death 

Decision on appeal: 652 A.2d 1 (Del. 1995) 

Name: Donald J. Simmons 

Criminal ID: 92000305DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: No direct appeal taken 

Name: Chauncey Starling 

Criminal ID: 0104015882 

County: New Castle 

Sentence: Death (on two counts) 

Decision on appeal: 903 A.2d 758 (Del. 2006) 

Name: Brian David Steckel 

Criminal ID: 9409002147 

County: New Castle 

Sentence: Death 

Decision on appeal: 711 A.2d 5 (Del. 1998) 

Name: David D. Stevenson 

Criminal ID: 9511006992 

County: New Castle 

Sentence: Death 

Decision on appeal: 918 A.2d 321 (Del. 2007) 

Name: Willie G. Sullivan 

Criminal ID: 92K00055 

County: Kent 

Sentence: Death 

Decision on appeal: 636 A.2d 931 (Del. 1994) 
 A-10 

Name: Ralph Swan 

Criminal ID: 0002004767A 

County: Kent 

Sentence: Death 

Decision on appeal: 820 A.2d 342 (Del. 2003) 

Name: Ambrose L. Sykes 

Criminal ID: 04011008300 

County: Kent 

Sentence: Death 

Decision on appeal: 953 A.2d 261 (Del. 2008)

Name: Antonio L. Taylor 

Criminal ID: 9404018838 

County: Kent 

Sentence: Life imprisonment 

Decision on appeal: 685 A.2d 349 (Del. 1996) 

Name: Emmett Taylor, III 

Criminal ID: 0708020057 

County: Sussex 

Sentence: Death 

Decision on appeal: 28 A.3d 399 (Del. 2011) 

Name: Milton Taylor 

Criminal ID: 0003016874 

County: New Castle 

Sentence: Death 

Decision on appeal: 822 A.2d 1052 (Del. 2003) 

Name: Desmond Torrence 

Criminal ID: 0205014445 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 2005 WL 2923501 (Del. Nov. 2, 2005) 
 A-11 

Name: Charles H. Trowbridge 

Criminal ID: 91K03044DI 

County: Kent 

Sentence: Life imprisonment 

Decision on appeal: 1996 WL 145788 (Del. Mar. 4, 1996) 

Name: James W. Virdin 

Criminal ID: 9809015552 

County: Kent 

Sentence: Life imprisonment 

Decision on appeal: 780 A.2d 1024 (Del. 2001) 

Name: John E. Watson 

Criminal ID: 91008490DI 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: No direct appeal taken 

Name: Dwayne Weeks 

Criminal ID: 92010167 

County: New Castle 

Sentence: Death 

Decision on appeal: 653 A.2d 266 (Del. 1995) 

Name: Joseph Williams 

Criminal ID: 9809018249 

County: New Castle 

Sentence: Life imprisonment 

Decision on appeal: 2003 WL 1740469 (Del. Apr. 1, 2003) 

Name: Roy R. Williamson 

Criminal ID: 93S02210DI 

County: Sussex 

Sentence: Life imprisonment 

Decision on appeal: 669 A.2d 95 (Del. 1995) 
 A-12 

Name: Craig A. Zebroski 

Criminal ID: 9604017809 

County: New Castle 

Sentence: Death 

Decision on appeal: 715 A.2d 75 (Del. 1998)