JAMES E. COOKE, Defendant-Below, Appellant,
STATE OF DELAWARE, Plaintiff-Below, Appellee
Submitted May 7, 2014
Case Closed August 1, 2014.
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Court Below: Superior Court of the State of Delaware, in and for New Castle County. Cr. ID No. 0506005981.
Anthony A. Figliola, Jr., Esquire, Figliola & Facciolo, Wilmington, Delaware; Peter W. Veith, Esquire, Wilmington, Delaware, Attorneys for Appellant.
Maria T. Knoll, Esquire, Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware, Attorneys for Appellee.
Before STRINE, Chief Justice, HOLLAND, BERGER, and RIDGELY, Justices, and JACOBS, Justice (Retired),[*] constituting the Court en Banc.
STRINE, Chief Justice
James E. Cooke was convicted of, among other things, raping and murdering Lindsey Bonistall, a 20-year-old University of Delaware student. Cooke now seeks to have the judgment of convictions and the death sentence that were entered against him in the Superior Court vacated and to receive a new trial, or at least a new penalty hearing. Cooke has raised ten claims of error on appeal that defy brief summary. But what is common to all of Cooke's arguments is that none of them provides a basis for reversing the judgment of convictions and the death sentence that were entered against him. The Superior Court took painstaking efforts in the face of Cooke's continuous provocations and contemptuous behavior to respect his legitimate constitutional rights and to ensure that he received a fair trial and sentencing.
What is also common to many of Cooke's arguments is that they are grounded in the contention that he should be relieved of punishment because of his own inexcusable and incorrigible conduct. For example, Cooke's contumacious and disorderly behavior resulted in him forfeiting his right to continue to represent himself at trial. A criminal defendant may forfeit his constitutional rights by disruptive and unacceptable conduct. The Constitution protects citizens from having our government deprive them of their constitutional rights, but it does not protect a citizen where his own obstreperous conduct impairs his interests.
On April 30, 2005, Lindsay Bonistall was a 20-year-old student at the University of Delaware. That night, Bonistall went to her friend Nicole Gengaro's dorm room and watched Saturday Night Live with Gengaro, Katie Johnson, and Isabel Whiteneck (né e Rivero). 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. After Bonistall came home, someone broke into the apartment that
Bonistall shared with her roommate, Christine Bush. Bush was out of town that weekend. The intruder attacked Bonistall in her bedroom, tied her hands with an iron cord, and shoved a t-shirt into her mouth as a gag. The intruder beat Bonistall, striking her above her eye and on her chin, and raped her. The intruder then knelt on Bonistall's chest and strangled her to death, using another t-shirt that had been tied and knotted around her neck like a ligature.
The intruder scrawled messages on the walls and countertops of the apartment. The intruder wrote " KKK" at multiple locations around the apartment. In the kitchen area, the intruder wrote, " WHITE Power." On a wall in the living room, the intruder wrote, " We Want Are [sic] weed back" and " Give us Are [sic] drugs back." The intruder also wrote, " More Bodies Are going to be turn in [sic] up Dead." 
To eliminate evidence of the crime, the intruder doused Bonistall's body in bleach. The intruder then dragged her body to the bathtub, put it in, covered it with flammable items, and set it on fire. The fire burned until it set off the hallway smoke alarm and other residents began to evacuate the apartment building. The fire department was called at 2:49 a.m. and the Newark volunteer fire department responded. After putting out the fire, the firefighters discovered Bonistall's burned body in the bathtub, still bound and gagged. The Fire Marshal determined that the fire had been intentionally set, and testified that the fire would have had to burn for at least an hour before it was put out to cause the damage it did. An autopsy determined that the cause of Bonistall's death was strangulation, and that Bonistall was dead before the fire was started. In other words, the fire would have been set at around 1:45 a.m. at the latest, meaning that Bonistall was killed less than an hour after she left her friends at around 1:00 a.m.
Following the murder, an anonymous person who was attempting to disguise his
voice made at least three calls to the Newark Police Department's 911 call center. In the first call on May 2, 2005, the caller said that Bonistall's murder was related to two breakins that had occurred at nearby apartments during the week before Bonistall's murder. The phone call led the Newark Police to investigate connections between Bonistall's murder and the break-ins at the nearby apartments.
The first break-in occurred four days before Bonistall was murdered. Around 1:00 a.m. on April 26, 2005, Cheryl Harmon returned to her apartment. Harmon discovered that someone had written " I WHAT [sic] My drug Money," " DON'T Mess With My Men," and " we'll be back" on the walls of her apartment with red fingernail polish. Harmon noticed that she was missing several DVDs and two personalized rings. The point of entry was a living-room window with a pried-off lock.
The second break-in occurred three days later, on April 29, 2005 -- the evening before Bonistall was murdered. Amalia Cuadra woke up in the middle of the night because someone was shining a flashlight in her face. Cuadra called out to see if it was her roommate, and the intruder responded, " Shut the fuck up or I'll kill you" and " I know you have money. Give me your fucking money."  Cuadra gave the intruder $45 in cash, but the intruder said, " Give me your fucking credit cards or I'll kill you."  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."  Cuadra screamed for her roommate and dialed 911 on her cell phone. The intruder fled, taking Cuadra's backpack, which had her name on it and contained an iPod and some diet pills in a tin container.
The anonymous caller made two additional calls to the 911 call center on May 7, 2005. In those calls, the anonymous caller gave detailed information about the three crimes, including information that had not been released to the public. The calls convinced the Newark Police that the crimes were linked and had been committed by the same person. Evidence also emerged that focused the investigation on James E. Cooke.
Cooke lived with Rochelle Campbell, his girlfriend and the mother of three of his children. Campbell was pregnant with a fourth child by Cooke at the time. Harmon, Cuadra, and Bonistall's apartments were all within a quarter mile of Cooke's residence and could be seen from his back door. Campbell saw Cooke with the backpack from the Cuadra robbery in the
early morning hours of April 30, 2005. Cooke told Campbell that he got the backpack from some college kids who had gotten into a car accident and had left it outside their house. Cooke showed Campbell the credit cards and told Campbell that he was going to try to use them. Cooke tried to use Cuadra's VISA card at a nearby ATM, but it did not work because Cuadra had already cancelled the card. Cooke then returned home without the backpack or the credit cards.
But Cuadra's credit card company noticed that someone tried to use her stolen credit cards. The Newark Police retrieved the ATM surveillance video of the person who tried to use the card. Cuadra had described the intruder as a light-skinned black male with bumps or freckles on his face and puffy cheeks. That general description matched Cooke. Cuadra also said the intruder was wearing a gray hoodie, a hat, knitted gloves, and light blue pants. When Cuadra was shown the surveillance video from the ATM, she was fairly sure that it was the intruder, but when the Newark Police showed Cuadra a photo array including Cooke, Cuadra did not pick out Cooke's photo.
The Newark Police used the ATM surveillance video from the Cuadra robbery to create a wanted poster for Bonistall's murderer, which was displayed around Newark, including at the Payless shoe store where Cooke worked part-time. Campbell, Cooke's coworkers from the Payless shoe store, and a woman who recognized Cooke from seeing him playing basketball in nearby Dickey Park, all identified Cooke as the man in the posters. They based their identification in part on the distinctive way the man in the poster stood on his toes and the type of gloves he was wearing. Both the distinctive foot position and the gloves were characteristics these witnesses associated with Cooke. The gloves contained small grips on the inside of the hand in a dotted pattern. 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. Campbell also later testified that she was 100 percent certain that the voice on all of the 911 calls was Cooke.
Cooke quit his job without notice after the murder, left Newark, and went to Atlantic City. Cooke then committed four more violent crimes, including three home invasions. In one, Cooke entered the
apartment through a second floor window, and when the victim woke up she saw Cooke sitting on her bed. Cooke started to choke the victim before taking several of her credit cards and a necklace. As Cooke was leaving, he tugged at the victim's underwear, but then did not go further. The victims from those four crimes identified Cooke as the perpetrator, and Cooke admitted to committing those four crimes.
Cooke was arrested on June 7, 2005 in connection with the murder of Bonistall. Cooke was then charged with Murder First Degree (2 counts -- the second count being felony murder); Rape First Degree; Burglary First Degree; Arson First Degree; Reckless Endangering First Degree; Burglary Second Degree (2 counts); Robbery Second Degree; and Misdemeanor Theft (2 counts). After Cooke was arrested, he was interrogated by Detective Andrew Rubin of the Newark Police Department for four to six hours. Cooke told Detective Rubin that he did not know Bonistall. But when Cooke was arrested at his sister's house, a hoodie was discovered at the house that had Bonistall's hair on it. Investigators analyzed the handwriting of the messages left on the walls in Bonistall's and Harmon's apartments and determined that Cooke could have written both. Investigators analyzed the scrapings recovered from Bonistall's fingernails and determined that they matched Cooke's DNA, as did the sample of semen taken from Bonistall's vagina. After the evidence showed that Cooke had contact with Bonistall, Cooke did a one-eighty. Cooke then said that he not only knew Bonistall, but also claimed that they had smoked marijuana together and had consensual sex on the evening of Friday, April 29, 2005, more than 24 hours before Bonistall's death and the same night Cooke broke into Cuadra's apartment and stole her backpack and credit cards. But Cooke said that he did not kill Bonistall.
Cooke's first trial began on February 2, 2007. Although Cooke insisted that he was innocent and wished to plead not guilty, Cooke's first set of counsel pursued a defense of guilty but mentally ill. The jury found Cooke guilty of all charges on March 8, 2007, and did not accept the contention that Cooke was mentally ill when he committed the crimes. The jury unanimously recommended death at the penalty phase. The Superior Court sentenced Cooke to death on June 6, 2007. Cooke was then assigned a second set of counsel, who filed an appeal arguing that the guilty but mentally ill plea that was entered over Cooke's objections by Cooke's first set of counsel violated Cooke's constitutional right to direct his own defense and plead not guilty. This
Court agreed, and we reversed and remanded the case to the Superior Court for a new trial on August 17, 2009. The new trial was scheduled to begin in February 2011.
The success of Cooke's second set of counsel in obtaining a reversal of his convictions and death sentence did not satisfy him. Cooke filed multiple actions under 42 U.S.C. § 1983 against his second set of counsel and a host of others in December 2010, alleging violations of his constitutional rights. As a result, the Superior Court granted Cooke's second set of counsel's motion to withdraw, and the trial was rescheduled. Then, due to a Supreme Court Rule change, the case was reassigned to a new Superior Court judge on February 24, 2011.
Cooke's third set of counsel was appointed on March 7, 2011. Cooke, however, became discontented with his third set of counsel too. Therefore, on November 10, 2011, Cooke requested to represent himself. A hearing on that application was held on November 30, 2011. At the hearing, the Superior Court conducted a colloquy with Cooke to ensure that his choice to represent himself was knowing and voluntary. The Superior Court made it clear that if it granted Cooke's request to represent himself, it would not grant a continuance to allow Cooke more time to prepare, because Cooke was already familiar with the evidence against him. After assuring itself that Cooke understood the choice he was making, the Superior Court granted Cooke's request to represent himself. The Superior Court also appointed standby counsel to help Cooke prepare his defense, and directed standby counsel to prepare for trial in case Cooke was no longer able to represent himself or forfeited his right to do so.
Cooke represented himself during the selection of the jury, and then Cooke's second trial began on March 7, 2012. But Cooke would not follow the Superior Court's orders and was repeatedly disruptive and disrespectful. Thus, on March 9, 2012, the third day of the State's case-in-chief, the Superior Court determined that Cooke had forfeited his right to represent himself. After a continuance to give standby counsel more time to prepare, standby counsel took over Cooke's defense and completed the trial. The jury found Cooke guilty of all charges except one charge of misdemeanor theft. At the penalty phase, the jury recommended a sentence of death by a vote of 11-1 as to felony murder and by a vote of 10-2 as to intentional murder. The Superior Court sentenced Cooke to death on September 17, 2012.
Cooke has raised ten different claims of error on appeal, which are not organized in his briefs in any thematic way. For the sake of coherence, we analyze Cooke's claims by grouping those raising common themes together. We begin by analyzing Cooke's claims that involve, in various forms, a contention that he was denied the ability to effectively defend himself at trial. We next address Cooke's contentions that the Superior Court's rulings regarding the admissibility of certain evidence were erroneous. We then address Cooke's contention that various issues relating to the jury's composition compromised his right to an impartial jury. We conclude by addressing Cooke's contention that his death sentence fails the proportionality review required by 11 Del. C. § 4209(g).
A. Cooke's Contentions That He Was Denied His Constitutional Right To Counsel Are Without Merit
Cooke claims that his constitutional right to counsel was violated in several ways. First, Cooke argues that he was not afforded a fair opportunity to consult with his attorneys and to spend time with the record in his case during his incarceration by the Department of Correction before his second trial. Second, Cooke argues that after his motion to represent himself was granted on November 30, 2011, he was denied the ability to represent himself effectively because the Superior Court did not also grant his request for a continuance, giving him only three months between that ruling and the start of his second trial on March 7, 2012 to prepare his defense. Third, Cooke makes two mutually inconsistent arguments in support of his contention that his constitutional right to representation was denied. In his opening brief, Cooke argues that the Superior Court erred by concluding on the third day of trial that Cooke had forfeited the right to represent himself by engaging in repeated misconduct, and would be represented by standby counsel for the remainder of his trial. In his Reply Brief, Cooke changes position, abandoning his argument that the Superior Court erred by relieving him of the right to represent himself, and arguing instead that the Superior Court erred by failing to do so sooner. In other words, because his own conduct was so egregious, Cooke now contends that the Superior Court should have relieved him of his right to self-representation earlier, and given his standby counsel more time to play the leading role on his behalf. Finally, Cooke argues that his death sentence should be vacated because, in the face of his ambiguous and shifting positions, his standby counsel presented mitigation evidence to convince the jury to recommend and the Superior Court to give Cooke a life, rather than death sentence at the penalty phase. Although Cooke sought to escape a death sentence, he at times opposed the presentation of mitigation evidence on his behalf. Because standby counsel presented mitigating evidence, Cooke argues that his constitutional right to control his case was violated and that his death sentence should be lifted. We now address these related arguments.
1. The State of Delaware Did Not Violate Cooke's Right To Counsel During The Pre-Trial Preparatory Process
Cooke argues that the State of Delaware, in particular the Delaware Department of Correction, interfered with his access to counsel by limiting the time, place, and date of visitation with counsel. Cooke claims that this lack of access caused him to lose trust in his third set of counsel, which is why he decided to represent himself. This Court reviews the alleged violation of a constitutional right de novo.
A criminal defendant has a right to the effective assistance of counsel. Denying a criminal defendant access to counsel " is a denial of due process of law, under both the federal and Delaware Constitution[s]."  But the record demonstrates that the State did not impede Cooke's access to counsel or the preparation of his defense. Instead, the record shows that the State made substantial efforts to facilitate Cooke's ability to prepare for trial, and that any lack of access was ...