### IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMES E. COOKE, § § Defendant-Below, § Case Nos: 519, 2012 & 526, 201 2 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 & Facci olo, Wilmington, Delaware; Peter W. Veith, Esquire, Wilmington, Delaware, Atto rneys 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 Dela ware student. Cooke now seeks to have the judgment of convictions and the death sent ence that were entered against him in the Superior Court vacated and to receive a new tri al, 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 punish ment because of his own inexcusable and incorrigible conduct. For example, Cooke’s con tumacious 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 ci tizen where his own obstreperous conduct impairs his interests.2 II. BACKGROUND 1 On April 30, 2005, Lindsay Bonistall was a 20-year- old student at the University of Delaware. That night, Bonistall went to her fri end Nicole Gengaro’s dorm room and watched Saturday Night Live with Gengaro, Katie Joh nson, 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 a s a gag. 5 The intruder beat Bonistall, striking her above her eye and on her chin, and rap ed 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 cou ntertops of the apartment. 9 The intruder wrote “KKK” at multiple locations arou nd 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 se ntencing 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, B168-17 0, 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 S tate’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 A re [sic] drugs back.” The intruder also wrote, “More Bodies Are going to be turn in [s ic] up Dead.” 10

To eliminate evidence of the crime, the intruder do used 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 smok e alarm and other residents began to evacuate the apa rtment building. The fire department

was called at 2:49 a.m. and the Newark volunteer fi re department responded. 13 After putting out the fire, the firefighters discovered B onistall’s burned body in the bathtub, still bound and gagged. 14 The Fire Marshal determined that the fire had bee n intentionally set, and testified that the fire woul d 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 Bo nistall was dead before the fire was

started. 16 In other words, the fire would have been set at a round 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 t he State’s Answering Br. at B205-207. 11 App. to the State’s Answering Br. at B160, B210-21 1. 12 App. to Cooke’s Opening Br. at A539; App. to the S tate’s Answering Br. at B171. 13 App. to Cooke’s Opening Br. at A538; App. to the S tate’s Answering Br. at B280. 14 App. to Cooke’s Opening Br. at A188-190; App. to t he State’s Answering Br. at B155-162. 15 App. to Cooke’s Opening Br. at A539; Trial Transcr ipt (Mar. 29, 2012), docket 476 (Q. “[C]an you please tell the jury approximately, in your opi nion, 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 Transcrip t (Mar. 29, 2012), docket 476 (“Q. And you believe . . . the fire may have been burning or smo uldering 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 a ttempting to disguise his

voice made at least three calls to the Newark Polic e Department’s 911 call center. In the first call on May 2, 2005, the caller said that Bon istall’s murder was related to two breakins that had occurred at nearby apartments during t he 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 Bonist all was murdered. Around 1:00 a.m. on April 26, 2005, Cheryl Harmon returned to h er apartment. Harmon discovered that someone had written “I WHAT [sic] My drug Mone y,” “DON’T Mess With My Men,” and “we’ll be back” on the walls of her apart ment with red fingernail polish. 18 Harmon noticed that she was missing several DVDs an d two personalized rings. 19 The point of entry was a living-room window with a prie d-off lock. 20 The second break-in occurred three days later, on A pril 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 fac e. 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 C uadra’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 t he 911 call center on May 7, 2005. In those calls, the anonymous caller gave de tailed information about the three crimes, including information that had not been rel eased to the public. 25 The calls

convinced the Newark Police that the crimes were li nked and had been committed by the same person. Evidence also emerged that focused th e 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 chil d 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 Ap ril 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 t he State’s Answering Br. at B245-248. 25 App. to Cooke’s Opening Br. at A542-546; App. to t he State’s Answering Br. at B257, B264. 26 Cooke has a total of fourteen children by ten diff erent 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. Coo ke tried to use Cuadra’s VISA card at a nearby ATM, but it did not work because Cuadra ha d already cancelled the card. 30 Cooke then returned home without the backpack or th e credit cards. 31 But Cuadra’s credit card company noticed that someo ne 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-skin ned 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 f rom the Cuadra robbery to create a wanted poster for Bonistall’s murderer, wh ich was displayed around Newark, including at the Payless shoe store where Cooke wor ked 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 S tate’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 i dentified Cooke as the man in the posters. They based their identification in part o n 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 t he 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 perc ent 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, in cluding three home

invasions. 43 In one, Cooke entered the apartment through a sec ond floor window, and when the victim woke up she saw Cooke sitting on he r bed. Cooke started to choke the victim before taking several of her credit cards an d 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, an d 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, B212-21 3. 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, B297-30 4; 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 wi th 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 D egree; 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 Departm ent 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 messa ges left on the walls in Bonistall’s and Harmon’s apartments and determined that Cooke c ould have written both. 46 Investigators analyzed the scrapings recovered from Bonistall’s fingernails and determined that they matched Cooke’s DNA, as did th e 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 no t 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 befor e Bonistall’s death and the same night Cooke broke into Cuadra’s apartment and stole her b ackpack 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 t he 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. Alt hough 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 Coo ke was mentally ill when he committed the crimes. The jury unanimously recomme nded 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 appe al arguing that the guilty but mentally ill plea that was entered over Cooke’s objections b y Cooke’s first set of counsel violated Cooke’s constitutional right to direct his own defe nse and plead not guilty. 50 This Court agreed, and we reversed and remanded the case to th e 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 obt aining 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 guil ty is a fundamental right that a criminal defendant must wa ive personally and that an attorney alone cannot waive); Florida v. Nixon , 543 U.S. 175, 187 (2004) (“[C]ertain decisions re garding the exercise or waiver of basic trial rights are of suc h moment that they cannot be made for the defendant by a surrogate. A defendant . . . has th e ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her o wn behalf, or take an appeal.”) (internal quotations omitted). 51 Cooke v. State , 977 A.2d 803 (Del. 2009) (defense counsel’s pursu it 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, negate d Cooke’s right to testify in his own defense, deprived Cooke of the right to an impartial jury, a nd denied Cooke the assistance of counsel). 52 App. to Cooke’s Opening Br. at A41.10

2010, alleging violations of his constitutional rig hts. 53 As a result, the Superior Court granted Cooke’s second set of counsel’s motion to w ithdraw, and the trial was rescheduled. Then, due to a Supreme Court Rule cha nge, 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 t oo. 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 Co urt conducted a colloquy with Cooke to ensure that his choice to represent himsel f was knowing and voluntary. The Superior Court made it clear that if it granted Coo ke’s request to represent himself, it would not grant a continuance to allow Cooke more t ime 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 C ourt granted Cooke’s request to represent himself. The Superior Court also appoint ed standby counsel to help Cooke prepare his defense, and directed standby counsel t o prepare for trial in case Cooke was no longer able to represent himself or forfeited hi s 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 degr ee murder case that is reversed and remanded by the Supreme Court to the Superior Court for a new t rial 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 t he jury, and then Cooke’s second trial began on March 7, 2012. But Cooke wou ld not follow the Superior Court’s orders and was repeatedly disruptive and disrespect ful. Thus, on March 9, 2012, the third day of the State’s case-in-chief, the Superior Cour t determined that Cooke had forfeited his right to represent himself. After a continuanc e 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 d eath by a vote of 11-1 as to felony murder and by a vote of 10-2 as to intentional murd er. The Superior Court sentenced Cooke to death on September 17, 2012.

III. ANALYSIS

Cooke has raised ten different claims of error on a ppeal, 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 addre ss Cooke’s contentions that the Superior Court’s rulings regarding the admissibilit y of certain evidence were erroneous.

We then address Cooke’s contention that various iss ues relating to the jury’s composition compromised his right to an impartial jury. We con clude by addressing Cooke’s contention that his death sentence fails the propor tionality review required by 11 Del. C. § 4209(g).12

A. Cooke’s Contentions That He Was Denied His Cons titutional

Right To Counsel Are Without Merit Cooke claims that his constitutional right to couns el 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 Superi or Court did not also grant his request for a continuance, giving him only three months bet ween that ruling and the start of his second trial on March 7, 2012 to prepare his defens e. Third, Cooke makes two mutually inconsistent arguments in support of his contention that his constitutional right to representation was denied. In his opening brief, C ooke 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 misconduc t, 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 tha t the Superior Court erred by failing to do so sooner. In other words, because his own cond uct was so egregious, Cooke now contends that the Superior Court should have reliev ed him of his right to selfrepresentation earlier, and given his standby couns el more time to play the leading role on his behalf. Finally, Cooke argues that his deat h sentence should be vacated because, in the face of his ambiguous and shifting positions , his standby counsel presented13

mitigation evidence to convince the jury to recomme nd and the Superior Court to give Cooke a life, rather than death sentence at the pen alty phase. Although Cooke sought to escape a death sentence, he at times opposed the pr esentation of mitigation evidence on his behalf. Because standby counsel presented miti gating evidence, Cooke argues that his constitutional right to control his case was vi olated and that his death sentence should be lifted. We now address these related arguments. 1. The State of Delaware Did Not Violate Cooke’s R ight To Counsel

During The Pre-Trial Preparatory Process Cooke argues that the State of Delaware, in particu lar the Delaware Department of Correction, interfered with his access to counsel b y limiting the time, place, and date of

visitation with counsel. Cooke claims that this la ck of access caused him to lose trust in his third set of counsel, which is why he decided t o represent himself. This Court reviews the alleged violation of a constitutional r ight 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 b oth the federal and Delaware Constitution[s].” 57 But the record demonstrates that the State did no t 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 misc onduct. 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 d enial of representation claims be placed in proper context. Cooke had a key advantag e 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 am assed 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 cou nsel 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 advant age 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 wi th his third set of counsel in advance of his second trial. That feebleness begins to eme rge from the early stages of preparation

for the second trial. On March 17, 2010, Cooke’s counsel requested that C ooke be moved from the James T. Vaughn Correctional Institution (the “Vaug hn Correctional Center”) in Smyrna to the Howard R. Young Correctional Institution (“G ander 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 a ble to get to him without the restrictions imposed on counsel visits to the Vaugh n Correctional Center.” 59 Thus, the Superior Court facilitated Cooke’s access to counse l. After his transfer, Cooke was placed in the disciplinary unit at Gander Hill; whe re 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 warde n about moving into general population, but the warden was not ava ilable because it was Saturday. Cooke began kicking the door of his cell and scream ing. 61 Officers tried to subdue him, but Cooke continued kicking the door of his cell an d screaming. Disciplinary charges were brought against Cooke as a result of the incid ent. 62

Cooke continued to misbehave. As noted, to facilit ate 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 w eight-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 remai ned in bed masturbating rather than standing at the fro nt 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 him self 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 20 11, Cooke was found guilty

of another instance of sexual misconduct when he st ood 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 Hous ing Unit (the “SHU”) and not the general population at the Vaughn Correctional Cente r. 67 Because the SHU houses inmates who pose special dangers because of their c onduct 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 re presenting prisoners housed in the SHU, as compared to prisoners in the general popula tion. 69 On October 20, 2011, Cooke’s third set of counsel filed a motion to comp el the State to relocate Cooke back to Wilmington, where the trial was being held, to incr ease their access to him. Despite the fact that Cooke’s own behavior earned his assignmen t 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 t old the Superior Court that he did not

want to be transferred. 70 The Superior Court explained that: “[M]y first co ncern 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 regulati on impinges on inmates’ constitutional rights, the regulation is valid if i t is reasonably related to legitimate penological interests” such as institutional security considera tions); see also State v. Red Dog , 1993 WL 144866 (Del. Super. Mar. 2, 1993) (applying the sta ndard set in Turner ). 69 See App. to the State’s Answering Br. at B8 (describin g 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 attorne ys could prepare the best defense possible for him, Cooke fired his attorneys and ins ulted 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 arra ngements 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 material s 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 th at he would have sufficient space to

review the record. 76 Cooke acknowledges that the Superior Court took “ appropriate” ameliorative action — by having Cooke transferred t o Gander Hill over his objections and by ordering special conditions for his confinem ent — but Cooke claims that the Superior Court did not take that ameliorative actio n 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 couns el 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 C OURT: 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 assis tance 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 competi ng interest in the administration of criminal justice.” 79 Here, the record shows that in order to secure Co oke’s constitutional rights, the Superior Court, and the Department of C orrection 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 fi les 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 ensur ing the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify impo sition of conditions and restrictions of pretrial detention and dispel any inference that such restri ctions are intended as punishment.”); Pell v. Procunier , 417 U.S. 817, 827 (1974) (“[Institutional securit y] considerations are peculiarly within the province and professional expertise of c orrections 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 defe r to their expert judgment in such matters.”). 81 Ungar v. Sarafite , 376 U.S. 575, 589-90 (1964) (“There are no mechan ical tests for deciding when a denial of a continuance is so arbitrary as t o violate due process. The answer must be found in the circumstances present in every case, p articularly 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 cou rt 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 du e to the defendant’s conflicts with appointed counsel).19 2. The Superior Court’s Denial Of Cooke’s Request F or A Continuance Was Not An Abuse Of Discretion Cooke next argues that the Superior Court should ha ve 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 onl y 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 capri cious.” 83 Again, Cooke’s argument ignores important context a nd the several advantages that he had going into his second trial. The heari ng on Cooke’s request to represent himself was held on November 30, 2011, and Cooke wa s 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 fir st trial in 2007. Cooke knew that he

would receive a second trial when this Court revers ed his convictions on August 17, 2009, and the Superior Court issued an order on Mar ch 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 th e 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 coun sel 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 guarante e 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 o wn, 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 peri od since his arrest. Thus, on November 30, 2011, when engaging in a coll oquy with Cooke about his request to represent himself, the Superior Court ma de 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 reques t, Cooke’s third set of counsel suggested that if Cook e were going to represent himself, then the Superior Court should continue the case fo r 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 y ourself? 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 ha d 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 n ot 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 sufficien t 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 h imself. 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 r equested 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 duplicate d. . . . 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 willin g 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 t he State’s Answering Br. at B20-21. 92 See, e.g. , App. to Cooke’s Opening Br. at A56 (motion for co ntinuance on Feb. 1, 2012). 93 See, e.g. , App. to the State’s Answering Br. at B30-32 (orde r 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 n o conspiracy. I have no bias against you, one way or the other. I have dec ided each issue in accordance with my understanding of the law and arg uments of counsel, stand-by, State’s counsel, your own argument. 94 Cooke had four-and-a-half years after his first tri al to prepare for his second trial, after having already seen the evidence presented du ring that first trial. Cooke also knowingly and voluntarily accepted the difficulties of representing himself in his colloquy with the Superior Court, after being infor med of the risks inherent in going forward without counsel, including that the Superio r Court would not grant him a

continuance. When Cooke then decided on November 3 0, 2011 to fire yet another set of counsel and represent himself, he was thus fairly t old 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 judge s must be wary of defendants who employ complaints about counsel as d ilatory 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 ma y not through a deliberate process of discharging retained or assigned counsel whenever h is 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 c ontrol 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 ade quate opportunity to prepare the defense, and to confront witnesses—are constantly in potential or r eal conflict with the prosecution’s legitimate demands for some stability in the scheduling of cas es. 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, *5-623

prepare for his second trial, a period during which the Superior Court made certain that Cooke was afforded special privileges — such as a c ell 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 ther e is no plausible basis for Cooke’s contention that he was denied an adequate opportuni ty to prepare for trial. 97 3. Cooke Had A Constitutional Right To Represent Hi mself, But Cooke Forfeited That Right Through His Contumacious Behav ior As discussed, Cooke elected to exercise his constit utional 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 or dered 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 constit utional right to represent himself when it terminated his self-representation, because — al though 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 inter est in the need for calendar control, as well as the efficient and effective administration of crimi nal 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 unreasonabl y delayed by not revoking his right to represent himself fast enough, and tha t the Superior Court should have substituted standby counsel earlier in the proceedi ngs to minimize the prejudice to him that was caused by his own misbehavior. In other w ords, Cooke’s “right of self representation should have been terminated long bef ore it ultimately was” because “Cooke’s behavior early in the stages of his self r epresentation 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 cou nsel, because during the jury selection and the first three days of the State’s case-in-chi ef, Cooke’s disruptive behavior had already caused so much harm to his own case that hi s standby counsel was unable to represent him adequately. This Court reviews the alleged violation of a const itutional 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 “no t

99 Cooke’s Reply Brief at 12. The Reply Brief also s aid that, “[t]he record before this Court is replete with examples of Cooke’s inappropriate beha vior prior to opening statements that would justify revocation of his self representation right s. . . . The record also reflects several instance s of Cooke directing disrespectful, derogatory remark s toward the trial judge when rulings were not in his favor. Similar remarks were directed to ward 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-representa tion by a defendant who deliberately engages in serious and obstructive mis conduct.” 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 impossibl e for the proceedings to continue.” 106 The record shows that Cooke demanded to represent h imself, and the Superior Court scrupulously respected his right to do so. O n November 30, 2011, the Superior Court held a hearing on Cooke’s request to represen t 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 fol lowed 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 defenda nt 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’—ev en over the defendant’s objection—if necessary. . . . [T]he government’s interest in en suring 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 t o 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 wi thout the assistance of legal

counsel.’” 109 To make the required finding, the Superior Court co nducted a lengthy colloquy with Cooke regarding self-representation. 110 The Superior Court informed Cooke that he

would have to conduct his defense in accordance wit h 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 d o 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 conti nued: THE COURT: Do you understand that the right of self -representation is not a license to be disruptive and interrupt trial procee dings and that your behavior and conduct during trial will be held to the same l evel as that of an attorney? THE DEFENDANT: Yes, I understand. THE COURT: You must also follow the Court’s directi ons 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 show n 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 no t have to advise you of this again and that no further warning need be p rovided 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 th e 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 r ight 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 Coo ke’s request to represent

himself. 114 But the Superior Court also appointed standby cou nsel to help Cooke prepare his defense and instructed them to be prepared to t ake 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 th e pro se defendant if he chooses to

listen. 115 Cooke’s effort to act as his own advocate did not p roceed smoothly. On March 7, 2012, Cooke made improper comments during his openi ng 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 Supe rior 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 defend ant 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 vio late defendant’s right to self-representation by appointing standby counse l over defendant’s objection); Clark v. Perez , 510 F.3d 382, 395 (2d Cir. 2008) (“[A] judge may qu alify 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 quota tion 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 jur y for the day and said: THE COURT: I will give you a second admonition, I h ave 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 littl e bit further, you will, perhaps, forfeit that right, which is a second prob lem.

... I have given you as much leeway as I can. I have t old you how to get past certain objectionable questions, certain run-on sen tences, certain use of certain language that no one but you understand, an d that’s all I can do. If you don’t stop continuing to go past what I have to ld you to do, then you are going to forfeit that right, as well as waive the r ight 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 do n’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 c ontinues, then they will become counsel for the defendant . . . . I have go ne 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 furthe r and beyond what the Court has said you can do, consistently said you co uld 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 y ou don’t like. . . . You have to behave and obey the rules of the court.

... I told you where the boundaries are. If you go bey ond 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 furth er, 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 seriou s thinking about how you wish to proceed, if you wish to proceed under w hat circumstances. 120 On March 8, 2012, Cooke informed the Superior Court that he wished to continue to represent himself and resumed his cross examinat ion of the State’s second witness. Cooke’s questioning exceeded the scope of the direc t, and the State objected. 121 The Superior Court explained that if Cooke had other qu estions for the witness, then he could call the witness back during his presentation of hi s case. But Cooke continued to exceed the scope of the direct examination, and the Superi or Court sent the jury out. 122 At this point, Cooke told the Superior Court that it was go ing 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 muc h 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 wit hout another incident. On March 9, 2012, Cooke immediately began to argue with the Superior Court. 127 Later that day, Cooke attempted to cross examine th e State’s third witness. 128 Cooke continued to make factual arguments and various sta tements 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 n eed to stop these proceedings at this point. Mr. Cooke, I am going s o because it appears that you do not wish to abide by the rules and guideline s 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, b ased upon the guidelines and the instructions given, then I’m going to have no choice but to determine that you forfeited that right. Now, agai n, 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 jus t telling the truth. And I believe you hate the truth. 130 When Cooke continued to argue with the Superior Co urt, the Court said, “It does not appear to me that you wish to follow those rule s and guidelines. Now, that leaves us with what to do next. . . . If you forfeit this ri ght 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 jump s up and says objection, argumentative, and you step in, you coach along wit h them, and I’m shut down every time. I’m going to cross-examine the wi tness, 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 c ome here as parties. I’m not part of the party. I’m not part of this pa rty. 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 th ey 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 t hen 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 i t. 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 dete rmined 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 civilit y 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 a lso believe that unless I do it and reinstate some orderly processes, then this cas e will get out-of-hand. . . . I find that in the first instance that you forfeite d your right to proceed. . . . I have no -- any other way to get around it. You hav e been warned repeatedly. You have been disrespectful to the Cou rt 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 Co oke’s disorderly conduct, the Superior Court’s determination that Cooke had forfe ited 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 wo uld not tolerate disrespectful behavior. Furthermore, Cooke’s new arguments in his Reply Bri ef — that the Superior Court waited too long to revoke Cooke’s right to re present 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 enga ges 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 constit ute forfeiture.”). 138 Payne v. State , 367 A.2d 1010, 1017 (Del. 1976) (“Standards requi red 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 i n 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 t hat 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 Coo ke’s right to represent himself for as long as it could. The Superior Court also repeated ly confirmed that Cooke wanted to continue representing himself, and Cooke insisted t hat he did. As the United States Supreme Court has explained, “ trial judges confronted with disruptive, contumacious, stubbornly defiant defend ants 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 r especting 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 repeat edly confirmed that Cooke wanted to continue representing himself, took extra time to e xplain its legal rulings, gave Cooke additional instructions, and sent the jury out to m inimize 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 an d 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 tha t Cooke seemed to be playing a “cat and mouse game” in which he was intentionally tryin g to disrupt the trial to further delay the proceedings against him. 142 The Superior Court’s apt description applies equa lly to Cooke’s arguments to this Court, which involve both the notion that the Superior Court erroneously took away Cooke’s right to represent hi mself and the opposite notion that the Superior Court erred by failing to take away that r ight earlier. This approach is Kafkaesque — but with the twist that it is the citi zen 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 ineq uitable and without basis in the Constitutions of our nation and our state, particul arly where the Superior Court so conscientiously respected his rights. To the exten t 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 St ate of Delaware. 144 Indeed, despite Cooke’s repeated misbehavior, the record reflects t hat the State of Delaware took

142 App. to Cooke’s Opening Br. at A244-248 (“And inte restingly 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, ye ah, and then something else will happen and then you’ll do something else. . . . And what it a ppears to me, for purposes of delay or disruption, you will say yes one minute, then go ba ck and do something else and the next time a witness comes through.”). 143 Cf. F RANZ K AFKA , T HE T RIAL (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 strat agem fraudulently seek to have the trial judge placed in a position where, in moving along the bus iness 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 Wa s Harmless Also odd is Cooke’s final argument relating to his representation. Cooke argues

that his death sentence should be vacated because h is attorneys introduced mitigation evidence in an attempt to convince the jury and jud ge that Cooke should receive a life, not a death sentence. Cooke claims that he unequiv ocally 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 dis regard of his desire that his counsel not try their best to preserve his life, Cooke now seek s 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 s tandby counsel to present a mitigation case over his objections therefore violated his con stitutional right to control his case. Cooke uses as the foundation of his argument the st raightforward and logical proposition that in a death penalty case, a defendant has a con stitutional right to present mitigating evidence to convince the sentencing authority not t o give a death sentence. Lockett v.

Ohio and many other cases so hold. 145 As this Court has also noted, the right to presen t 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 wai ved by a defendant, 147 and this Court found those decisions to be “authoritative and pers uasive.” 148 But the State argues that Cooke did not waive his right clearly and unambiguo usly. 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 mit igating evidence over his objection. At the very least, we doubt that such an argument c an 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 executi on 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 constitu tional 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, th e only plausible effect of the mitigation

evidence Cooke’s counsel submitted was to make it l ess — not more — likely that Cooke received a death sentence. Because by his appeal C ooke seeks vacation of the death

147 Tyler v. Mitchell , 416 F.3d 500, 504 (6th Cir. 2005) (“[T]he Constit ution does not prohibit a competent capital defendant from waiving the presen tation of mitigation evidence.”); Singleton v. Lockhart , 962 F.2d 1315, 1322-23 (8th Cir. 1992) (“If a def endant may be found competent to waive the right of appellate review of a death sent ence, we see no reason why a defendant may not also be found competent to waive the right to p resent mitigating evidence that might forestall the imposition of such a sentence in the first inst ance.”). 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 presenti ng mitigation evidence in an attempt to convince the jury and Superior Court he should n ot receive the death penalty, standby counsel sought to comply with Cooke’s most fundamen tal 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 de ath sentence, the harm is obvious. 151 Where, by contrast, the defendant’s counsel do thei r utmost to submit mitigating evidence to obtain a life sentence for a defendant who has p led not guilty, there is no logic to remedying counsel’s good faith effort to protect th e defendant by vacating his death

sentence.

Even if this Court were ever to hold that a defenda nt in a capital case had a constitutional right to demand that no mitigation e vidence 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 p rotected right—to provide the jury with the mitigating evidence that his trial counsel either f ailed 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 mitigat ing factors.”); Eddings v. Oklahoma , 455 U.S. 104, 113-14 (1982) (“[T]he state courts must consid er all relevant mitigating evidence and weigh it against the evidence of the aggravating circumst ances.”).38

be part of a game of cat and mouse. Where a defenda nt has forfeited his right to represent himself, he has no constitutional right to direct h is counsel how to perform every aspect

of their duties. 152 A great deal of professional discretion remains f or counsel, and if the client’s fundamental goal is to avoid a death sente nce, counsel is required to pursue that end with professional zeal and skill. 153 Here, Cooke did not unequivocally and unvaryingly w aive his right to present mitigation evidence. Admittedly, the record reflec ts 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 special ist, refused to be tested by any psychologists or psychiatrists, and initially i nstructed 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 evident iary 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 tac tical decision required client approval.”); see also Am. Bar Ass’n, Criminal Justice Section Standards o n 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 c onsultation with the client where feasible and appropriate. Such decisions include what witnes ses 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 D efense Counsel in Death Penalty Cases § 10.11, Commentary (rev. ed. 2003) (emphasis adde d), reprinted in 31 Hofstra L.Rev. 913, 1024 (2003), available at www.americanbar.org/content/dam/aba/ migrated/2011_build/death_penalty_representation/20 03guidelines.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 particul ar 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, A5 20, 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 mitigatio n evidence. 156 At one point, Cooke requested the death penalty. 157 But, when the Superior Court pointedly asked Cook e if he was admitting that he had committed Bonistall’s rap e and murder, Cooke responded, “I didn’t commit anything. I am an innocent man. Jus t give me the death penalty, plain and simple, Your Honor.” 158 Cooke’s answers implied that he did not want to p resent mitigation evidence because he thought the proceedi ngs thus far had been unfair, and he did not think that he could get a fair penalty phas e either. 159 That falls short of manifesting an unequivocal desire to receive a deat h 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 DEFENDAN T: 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 witne sses 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 d eath. 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 f ull documents, everything. You denied to hear everything I had to bring in front out of. Wh y should I corroborate? THE COURT: You mean cooperate? MR. COOKE: Why should I corroborat e 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 utilit y in having a penalty phase because the case has been stacked against me from the start. THE DEFEND ANT: 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 j ury only convicted me, because I’m innocent, because this was a corrupted function based upon ac tivities, 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 tha t it might have negative consequences for his sentence. 160 But the Superior Court ordered counsel to present mitigation evidence because Cooke’s objections to t he 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 pr esenting 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 a dmitting, conceding that the imposition of the death penalty is warranted ba sed 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 h is perceived belief that he did not get a fair trial. Additionally, the [Superior Court] hel d 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 g enuine 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 plea d 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 th an spend his life in prison, as punishment. Consistent with the Superior Court’s conclusion tha t Cooke had not unequivocally and unvaryingly decided to waive his right to prese nt mitigating evidence during the penalty phase of his case, on April 26, 2012, stand by 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 cou nsel 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 soc ial worker] testimony on Tuesday . . . as well as the DYFS records and Ms. Connors [the mi tigation expert].” 165 Two of Cooke’s children testified that day, and prior test imony 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 fami ly, educational, and medical history up to age 18. 168 Then, Cooke again changed his mind and objected t o the testimony from Connors, but stated that he wished to testify and a lso 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 mitigat ion evidence on his behalf during a key period of the penalty proceedings, he effectively nullified his prior opposition to the presentation of mitigating eviden ce. 171 That Cooke then shifted again and objected to parts of the mitigating evidence af ter the fact simply illustrates his lack of consistency and clarity. The erratic nature of Coo ke’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, a nd sought to be found not guilty. And at this stage, Cooke is asking this Court to lift h is 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, h owever, the right to self-representation may be waived through conduct i ndicating 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 de fendant make an ‘unequivocal’ request to waive counsel is twofold. First, unless the reques t is unambiguous and unequivocal, a convicted defendant could have a colorable Sixth Amendment ap peal 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 ‘d eliberate 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. Washington 173 for ineffective assistance of counsel, and would support that claim by pointing to the same ch anges 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 harm less 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 mit igation evidence to present. When faced with ambiguous directions from a defendant wh o claimed to be innocent, the Superior Court properly leaned in favor of preservi ng 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 wa s for counsel to do their utmost to obtain the most favorable sentence possible for the ir client. The only possible effect of admitting the mitigation evidence over Cooke’s obje ction was to make it less likely that the aggravating factors would outweigh the mitigati ng 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 a n 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 R ulings Regarding The Admissibility Of Certain Evidence Were Erroneous Ar e Without Merit 1. The Superior Court Properly Excluded Certain Ev idence

About Bonistall’s Prior Sexual Conduct At trial, Cooke sought to introduce evidence regard ing Bonistall’s prior sexual history. That evidence did not involve any prior s exual relationship with Cooke himself. Out of respect for Bonistall and the purposes serve d by Delaware’s Rape Shield Statute, 176 we do not detail the evidence Cooke proffered. Su ffice it to say that even if that evidence were true, nothing in the evidence wo uld distinguish Bonistall from tens of millions of other American college students in rece nt 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 conse nsual sexual relations with other people in the past, that she had consented to sex w ith Cooke on the night before she was

murdered. 177 But the Superior Court excluded the evidence that C ooke 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 Evid ence 401. 178 Cooke challenges the

176 11 Del. C. § 3508 and § 3509. 177 Cooke’s Opening Brief at 65 (“The defense argued t hat 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 admiss ible, 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 adm it 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 evide nce was to buttress his contention that he did not rape and then kill Bonis tall, but instead had consensual sex with her on Friday, April 29, 2005, over 24 hours b efore 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 o f rape, 11 Del. C. § 3509 provides that evidence of a victim’s sexual reputation or specifi c 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 uncon stitutional. 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 a t 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 withou t exception, have upheld the particular statute involved.” Joel E. Smith, Constitutionality of “rape shield” statute restrict ing 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 fro m 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 te stify, there is no reason to apply the statute to exclude the evidence in tha t circumstance. In other words, Cooke argues that so long as the person alleged to have b een a victim of rape has been killed, the defendant accused of the rape may use evidence of t he 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 impor tant, Cooke ignores the statutory definition of a “complaining witness,” wh ich is clear on its face. A “complaining witness” is defined as “the alleged vi ctim of any degree of rape . . .” and its

183 Jenkins v. State , 2012 WL 3637236, at *2-3 (Del. Aug. 23, 2012) (qu oting 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 protec ting [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 sexu al abuse from the humiliation of having their sexual conduct, unrelated to the charges pending, p araded 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 offe nses, 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 t o protect the privacy interests of the victim while ensuring a fair determination of the issues b earing 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 witho ut 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 ambiguou s, we would not embrace Cooke’s reading of the Rape Sh ield Statute. There is no reason to believe that the General Assembly’s concern that al leged rape victims should not be subjected to general character assassination extend s only to living victims and not to those who also paid the ultimate price of losing th eir 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. Fo r these reasons, arguments like Cooke’s have been largely rejected by other state c ourts, which have found that their Rape Shield Statutes apply regardless of whether th e alleged victim of the rape is alive or

dead. 186 We agree with those well-reasoned decisions. Coo ke’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 prosecutio n 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 un less 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 Shi eld 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 perpet rators of sex crimes will be encouraged to kill their victims, thus enabling them to defend th e 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 noth ing 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 irrationa l and illogical to suggest that the rape shield law should be made inapplicable when the victim is kill ed after a rape. The statutory goals of protecting the privacy of the victim and seeking to avoid character assassination are no less48

acknowledged that the purpose of the evidence was t o 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 offe red 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 de ceased 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 underlyi ng the rape shield law are not eliminated when the victim has died.”); State v. Turner , 2001 WL 605153 (Tenn. Crim. App. June 5, 2001) (T he fact that the victim died does not affect the applicatio n 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) (hol ding that evidence about the victim’s prior sexual conduct, i ncluding affidavits from three men stating that the victim would have sex while intoxicated and wak e up disoriented and unaware of the events of the previous night, was inadmissible under § 350 9 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 Cou rts: A Proposal for the Second Decade , 70 M INN

. L. R EV . 763, 798 (1986) (“More compelling . . . was the claim by rape-shield proponents that the changi ng moral climate in this country simply invalidated the underpinnings of the common-law doc trine, rendering unchastity evidence irrelevant for its stated purposes.”); Tanya Bagne Marcketti, Rape Shield Laws: Do They Shield the Children? , 78 I OWA L. R EV

. 751, 754 (1993) (“Rape shield statutes evolved from society’s recognition that a rape victim’s prior sexual histo ry 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 relevan ce, 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 Offens e Complainant’s Past Sexual Behavior , 44 C ATH

. U. L. R EV . 709, 722 (1995) (“Such legislation represents a l egislative judgment that49

proffered evidence has “any tendency to make the ex istence 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 h uman 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 s ubmitted a motion and affidavit requesting to admit the evidence of Bonis tall’s sexual history under § 3508. Evidence of a complaining witness’s prior sexual hi story 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 a lleged 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 issu es, unduly harass witnesses, and may also be unfairly prejudicial to the prosecution.”) (interna l 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 dispu te”). 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 prosecut or stating that the defense has an offer of proof concerning the relevancy of evidence of the s exual conduct of the complaining witness which the defendant proposes to present, and the re levancy of such evidence in attacking the credibility of the complaining witness” and accompa ny 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 thre e 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 calle r gave detailed information about the three crimes, i ncluding information that had not been previously released to the public. 194 The calls convinced the police that the crimes we re 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, R ochelle Campbell, testified that she was 100 percent certain that the voice on all o f the 911 calls was Cooke. 195 But the State also wanted Detective Rubin to present lay op inion testimony that he recognized the

voice on the calls as Cooke’s voice. Detective Rub in 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 w as 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 th e 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 o pinion testimony about the identity of the voice on the 911 calls, but the Superior Cou rt 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 b ased 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, tech nical 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 f or 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 o pinion.” 201 Cooke argues that Detective Rubin was no better sui ted than the jury to make the judgment at issue. The jury had listened to the re cordings 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 mo re 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 Delaw are Rule of Evidence 901(b)(5) permits the “[i]dentification of a voice, whether heard fir sthand or through mechanical or electronic transmission or recording, by opinion based upon he aring the voice at any time under circumstances connecting it with the alleged speake r.” 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 D etective 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 testi mony. 203 In any event, the admission of Rubin’s lay opinion testimony was harmless. 204 As explained, the jury was required to and was instruc ted to make its own determination about this factual question, and there is no ration al basis to believe that the jury did not do that here, or that the jury was somehow unduly infl uenced 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 i mproperly 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 t hem, 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 — als o 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 conclud e 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 con sistently 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 testimon y any error by the Superior Court in admitting the evidence was harmless.

C. Cooke’s Right To An Impartial Jury Was Not Comp romised 1. The Superior Court’s Refusal To Declare A Mistr ial 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 ju ry was compromised because the Superior Court did not declare a mistrial when evid ence 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 Super ior Court on February 29, 2012. 206 The Superior Court investigated to determine whethe r juror misconduct had occurred. Reeder had been excused from jury servic e 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 attorn ey and the neighbor in to testify about what they had been told. 207 The Superior Court also brought Reeder back to te stify about what she had heard and try to determine the identit y 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 sp outed 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 d id 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 i t 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 un necessary 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 Wi lson. At Cooke’s request, Wilson was brought in to answer questions regarding his commen ts. 210 Wilson said that he could not remember exactly what he said but admitted it was p ossible 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 wou ld “make sure that no one has had any conversations and ask[] them if they have had a ny 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 investi gative hearings into allegations of juror misconduct’ and on the remedy for such miscon duct 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 pre sumption of prejudice.’” 216 “A trial judge should grant a mistrial only where there is ‘manife st 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 t hose who were excused. 219 Both Reeder and Wilson were excused, so the misconduct w as 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 h as very broad discretion in deciding whether a case mu st 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 ju ry 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 in herently 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 w ere of a generically offensive racist kind and did not involve statements suggesti ng that Wilson possessed case-specific evidence about Cooke’s culpability. Perhaps for th at reason, Cooke has not even alleged that he suffered any actual prejudice as a result o f 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 vi ews 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 M arch 26, 2012, Juror #10 arrived late, and her tardiness delayed the start o f the trial. Juror #10 had been late

several times before. 222 When Juror #10 arrived, the Superior Court reprim anded 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 th e 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 noti ced that Juror #10 was “muttering under her breath” dur ing 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 beca use 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 h e 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 instruction s to stay with the group during the site visit, and that she had attempted to ask the invest igating officer a substantive question, which was against the Superior Court’s explicit ins tructions. 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 S tate’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, t otally 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 t his was bullshit. . . . And . . . she apparently ca lled 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. T his is -- just ranting and raving basically about not being able to smoke all the way. . . . B ut 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 f rom the bailiff and Juror #10 about the incident, the Superior Court excused Juror #10. 230 Because there is ample evidence in the record to su pport its conclusion that Juror #10 should be excused due to her inappropriate cond uct 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 eac h of the remaining jurors to

determine whether Juror #10’s behavior or her excus al would affect their ability to give fair and impartial consideration to the issues in t he case, the remaining jurors indicated that they would be able to proceed unaffected. 231 3. The Superior Court’s Refusal To Declare A Mistri al For Inaccurate Answers Given By Juror #3 During Voir Dire Was Not An Abuse Of Di scretion 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 i naccurate information in response to

voir dire questions. Cooke says that had that juror given a ccurate 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 be en late, consistently late. And that in and of itself doesn’t bother me. But I just see a disr uptive influence. And her behavior and conduct is such that I wouldn’t take it from an attorney an d I wouldn’t take it from a party and I’m not going to take it from her. I, therefore, reluctant ly 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 Cou rt asked ten preliminary questions to the jury array. Then individual voir dire questioning began. When Luz Rodriguez (who eventually became “Juror #3”) presen ted 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 be en 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 convicte d of a criminal offense?” 233 Juror #3 said no. Juror #3 was also asked, “Are you, a rela tive, 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 fr om 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 bo th 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 th e jury. After the jury returned guilty verdicts against Coo ke 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 m ail 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 schedule d 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 exp lained that on December 18, 2011, she witnessed an altercation between her husb and, Jose Acevedo (the “Husband”), and her twenty-year old daughter, Valerie Cotto (th e “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 Husba nd with a kitchen knife. 238 The grandchildren were present, so Juror #3 took them u pstairs. 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 D aughter 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 Daug hter hit him twice with a frying pan. 239 The Husband said that he had grabbed the Daughter o nly 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 h e 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 endang ering 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 offens ive 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 se questered, the Husband carried Juror #3’s luggage to the courthouse and told her t hat 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 no t 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 beca use, 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 sum mons in the mail. The Superior Court asked Juror #3 whether the incid ent 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 q uestions. 244 After discussion with counsel, the Superior Court concluded that it did n ot have enough information to make a determination about whether the incident had impair ed 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 negativel y 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 s ay during voir dire that she

had been a witness to a violent crime. Juror #3 re sponded 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 o ffense. Juror #3 said that “because my daughter had told me that she with draw 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 th at “because [the Daughter] had already told me that she withdr[e]w the charges, then I tho ught 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 v iolence, 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 Div ision of the Delaware Department of Justice, and the prosecutor represent ed to the Superior Court that the Family Court unit was entirely separate from the un it tasked with prosecuting felony trials in the Superior Court. 250 Juror #3 did not know the prosecutor or defense a ttorney

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 so meone who’s being disingenuous” 254 and then concluded: I did find her -- she was inaccurate [i]n her answe rs, 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 vi ew 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 su ch 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 p anel, 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 sai d that on a scale from one to ten, he was a ten in favor of the death penalty, wh ereas 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 moti on 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 exer cised 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 guara ntee 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 fail s to disclose material information. 264 The purpose of voir dire is to provide the Superior Court and the parties w ith “sufficient information to decide whether prospective jurors ca n render an impartial verdict based on the evidence developed at trial and in accordance w ith the applicable law.” 265 This Court has held that “if only one juror is improperly infl uenced, a defendant in a criminal case is denied his Sixth Amendment right to an impartial ju ry.” 266 In addressing what consequences should follow when jurors have failed to answer material questions during voir dire accurately, the law distinguishes between situatio ns where a juror’s failure to answer accurately was de liberate, rather than inadvertent. Where a juror deliberately fails to answer honestly a material question durin g voir dire , that dishonesty is considered to be, in itself, suf ficient evidence of bias to require that the

defendant be afforded a new trial. 267 By contrast, to determine whether a new trial mus t 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 hon estly 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 materia l.” 270 Thus, Cooke has established that the relevant questions posed to Juror #3 were mater ial. The Superior Court’s assessment of a juror’s honest y 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 th an purposefully untrue. 273 The Superior Court also found that Juror #3’s exp lanations 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 questi on 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 quest ion 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 th e responsibility of the trial judge who has the opportunity to question the juror, observe his or h er 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 d etermine 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 respons es to the voir dire, in bringing the matter to the attention of the Court or in testifying before Cour t 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 even t between the Husband and the Daughter. Juror #3 testified that she viewed her H usband as defending himself against the Daughter’s attacks with a knife and a frying pa n. 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 res ulted 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 purpos ely hid the issue so as to further some desire on her part to serve as a juror in Cook e’s trial. Because the Superior Court had a sufficient basis t o conclude that Juror #3’s answers were not intentionally false, we need not r each the second prong of McDonough

— the question of whether the record also supports th e 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 mist aken

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, respo nse at voir dire .”); United States v. Ortiz , 942 F.2d 903, 909 (5th Cir. 1991) (“Moreover—and much m ore important—[the juror]’s post-verdict dialogue with the district court suggests that he a nswered 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 tri al because of a juror’s mistaken, though honest response to a quest ion, 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 spe cific form of judicial review following the imposition of a death sentence. Unde r 11 Del. C. § 4209(g), this Court

must review a sentence of death to determine whethe r: (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 im posed 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 f ails a proportionality review, because it is “disproportionate to the penalty reco mmended 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 th is 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 i mpossible 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 p rocess lacks merit. First, the evidence in the record supports the jury ’s finding that there was no reasonable doubt that a statutory aggravating facto r existed because Bonistall’s murder was committed while Cooke was engaged in the commis sion 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. Be cause Cooke was properly convicted of those crimes by the jury on sufficient evidence, th e statutory aggravating circumstance

was established as a matter of law. 282 Next, the Superior Court did not arbitrarily or cap riciously 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 deduc tive process.” 283 Here, the Superior Court set out its rationale for the sentencing deci sion in a detailed 70-page written opinion. 284 The Superior Court identified several nonstatutor y factors alleged by the State, including the gruesome circumstances of Boni stall’s murder, the other home

invasions and violent crimes that Cooke committed i n Newark and in Atlantic City around the same time as Bonistall’s murder, and Coo ke’s 25-year criminal history. In reaching its decision, the Superior Court also care fully considered the mitigating evidence presented by Cooke’s standby counsel, incl uding 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 B rief (Sept. 17, 2012).70

his childhood, Cooke’s affection for his family, an d the impact his execution would have on his children. Then, after reviewing these facto rs, the Superior Court made a reasoned determination that the mitigating factors were outw eighed by the aggravating factors. Because the Superior Court’s decision was the resul t 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 t o the penalty imposed in similar cases. To determine if a death sentence is disprop ortionate, the Court reviews the universe of cases, 286 which is comprised of those First Degree Murder ca ses 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 aggrav ating factor in this case does not make imposition of the death pen alty disproportionate.” 290 The task of conducting a proportionality review und er § 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 decisi onmaking 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 suffic iently terrorizing to the victim. 291 Binding, 292 brutally beating, raping, and strangling the innoc ent and defenseless victim, 293 and then dousing her dead body in bleach and burnin g 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 sta te 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 B onistall 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 pr oportionate.

IV. CONCLUSION For all of these reasons, the judgment of the Super ior Court is AFFIRMED.

291 See, e.g. , Swan v. State , 820 A.2d 342, 360 (Del. 2003) (“[T]he home [is] o ne place where a person should feel secure from the elements that ma y 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 pr oportionate). 293 See, e.g. , Steckel v. State , 711 A.2d 5, 14 (Del. 1998) (affirming death sente nce where defendant attacked, strangled, and raped his helple ss victim). 294 See, e.g. , Kennedy v. Louisiana , 554 U.S. 407, 437-38 (2008) (distinguishing betwe en intentional first-degree murder and other serious v iolent crimes, and determining that although the death penalty is constitutional for murder, “th e 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 defenda nt 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 un provoked, 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 an d second penalty hearing) Decision on appeal: 2006 WL 797894 (Del. Mar. 27, 2 006)

Name: Meri-Ya C. Baker Criminal ID: 90011925DI County: New Castle Sentence: Life imprisonment Decision on appeal: 1993 WL 557951 (Del. Dec. 30, 1 993)

Name: Jermaine Barnett Criminal ID: 9506017682 County: New Castle Sentence: Life imprisonment (following second pen alty hearing) Decision on appeal: 749 A.2d 1230 (Del. 2000) (rema nding for new sentencing)

Name: Hector S. Barrow Criminal ID: 9506017661 County: New Castle Sentence: Life imprisonment (following second pen alty hearing) Decision on appeal: 749 A.2d 1230 (Del. 2000) (rema nding 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, 19 99)

* 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, 19 98)

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, 1 993) 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 pen alty 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, 19 95) 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, 1 998) 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, 199 4)

### 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, 1 994) 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 resente ncing) Decision on appeal: 585 A.2d 117 (Del. 1990) (reman ding 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, 2 005)

### A-11

Name: Charles H. Trowbridge Criminal ID: 91K03044DI County: Kent Sentence: Life imprisonment Decision on appeal: 1996 WL 145788 (Del. Mar. 4, 19 96)

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, 2 003) 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)