Cosden v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JACKIE COSDEN, §
§
Defendant Below, § No. 210, 2023
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE § Cr. ID Nos. 2009013056 &
§ 2205008772
Appellee. §

Submitted: February 14, 2024
Decided: April 29, 2024

Before SEITZ, Chief Justice; TRAYNOR, and LEGROW, Justices.

ORDER

After considering the parties’ briefs, the record on appeal, and the arguments

of counsel, it appears to the Court that:

(1) Defendant Below-Appellant Jackie Cosden seeks to vacate his

convictions for Burglary First Degree, Offensive Touching, Criminal Mischief

Under $1,000, Terroristic Threatening, and Strangulation. Cosden’s convictions

arose from a domestic violence incident involving his girlfriend, Sequoia Warren.

During trial, the State presented evidence that Cosden left the crime scene after

learning that police had been called and that he later attempted to flee from police

when they arrived at his father’s residence. Based on that evidence, the Superior

Court issued a flight instruction to the jury over Cosden’s objection. On appeal,

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Cosden challenges both the trial court’s decision to issue the flight instruction and

the language of the instruction itself.

(2) Cosden first argues that the trial court’s decision to issue the flight

instruction was based on the State’s inaccurate representation that the charges at trial

were Cosden’s only “active case” at the time of his arrest. In Cosden’s view, had the

trial court been made aware that he had another “active case,” giving him another

reason to flee from police, the court would not have issued the flight instruction.

Second, Cosden contends that the flight instruction’s language was a comment on

the evidence in violation of Del. Const. art. IV, § 19. We conclude that neither

argument has merit, and we therefore affirm Cosden’s convictions.

FACTUAL AND PROCEDURAL BACKGROUND

(3) On September 26, 2020, shortly after midnight, Warren and her friend,

Alsanarda Carr, drove to Warren’s apartment following a night out together. When

the two friends arrived at Warren’s apartment, Cosden approached their car and

began yelling at Warren. Warren and Carr drove away, and when they returned a

few minutes later, it appeared that Cosden had left the apartment complex.

(4) Warren and Carr entered Warren’s apartment alone. While they were

in Warren’s bedroom, the two women heard someone attempting to forcibly enter

through the apartment’s front door. Carr testified that, after hearing the noise, she

and Warren attempted to barricade the door with a dresser, but they were unable to

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do so. Cosden entered Warren’s apartment by force and continued yelling at her.

According to Carr, as soon as he broke through the door, Cosden slapped and

punched Warren before putting his hands around her throat.

(5) Carr testified that during the attack, Cosden threatened to kill them both

if Carr called 9-1-1. Because of Cosden’s threat, Carr discreetly called 9-1-1, put

her phone down, and allowed the 9-1-1 operator to listen. At trial, the State played

for the jury a recording of the 9-1-1 call. Cosden could be heard telling Carr that

Warren was not okay because she was “getting her a-- whooped.” He yelled that he

intended to “f--- [Warren] up” every time he saw her. Cosden eventually stopped

his attack, at which point Carr told him that the police were on their way, and he left

the apartment.

(6) Officer James Kiser and an EMT responded to Warren’s apartment.

Officer Kiser observed signs of forced entry, testifying that the door’s locking

mechanism was “completely knocked off the frame.” He described Warren as

“clearly shaken-up” and noted small lacerations on her hand, a bite wound, bruising,

and faint redness around her neck. Warren told the EMT that the marks on her body

were from biting and scratching. Despite the EMT’s recommendation, Warren

refused to go to the hospital.

(7) Officer Kiser was unable to locate Cosden immediately after the

incident at Warren’s apartment. At 5:40 a.m. on September 26, 2020, Officer Kiser

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obtained a warrant (the “First Warrant”) for Cosden’s arrest for Burglary Second

Degree, Strangulation, Terroristic Threatening, Assault Third Degree, Offensive

Touching, and Criminal Mischief Under $1,000. Those were the charges for which

Cosden later went to trial and that he now challenges on appeal.

(8) Cosden remained at large and continued to text Warren throughout that

day. At 5:07 p.m., Cosden texted Warren saying “B---- ima kill you…” Warren

called the police and showed them the text message. At 8:53 p.m. on September 26,

2020, police obtained another warrant (the “Second Warrant”) for Cosden’s arrest

on one separate charge of Terroristic Threatening arising from the text message.

Both the First and Second Warrants, issued less than fourteen hours apart, involved

acts perpetrated by Cosden against Warren on the same day.

(9) Sixteen days after the domestic violence incident, on October 12, 2020,

police located Cosden at his father’s house and arrested him based on the First and

Second Warrants. When Officer Kiser arrived at the house, Cosden looked right at

him before fleeing out the back door. Shortly thereafter, Officer Kiser apprehended

Cosden, who told Officer Kiser that he “knew it was stupid” to run.

(10) During Officer Kiser’s trial testimony, the State asked him what

occurred when he went to arrest Cosden on October 12th. This line of questioning

prompted an objection from Cosden’s trial counsel. At sidebar, the State informed

the trial court that, although Cosden did have an unrelated “pending case,” the

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charges at trial were his “only active case” at the time of his arrest. This was

incorrect. At the time Cosden fled from Officer Kiser, the First and Second Warrants

were both active. The State then informed the trial court that the testimony was

relevant because the State intended to request a flight instruction. Cosden objected,

arguing that because of the passage of time between the domestic violence incident

and his eventual arrest, it was unknown what caused him to flee. The trial court

reasoned that “there [was] nothing else that anyone knew of that [Cosden] was

wanted for at the time,” and the Court therefore allowed limited testimony from

Officer Kiser regarding Cosden’s flight.

(11) The trial court later granted the State’s request for a flight instruction

over Cosden’s objection. At the prayer conference, the trial court explained that,

because there were disputed contentions as to why Cosden fled, the parties were free

to argue “the weight of that evidence and whether they believe there is some disputed

reasons as to why [Cosden fled].” Neither party, however, commented on Cosden’s

flight during their closing arguments to the jury. Cosden did not object to the flight

instruction’s phrasing or propose an alternative instruction. On appeal, Cosden

renews his argument that the evidence did not support a flight instruction in this case.

He additionally contends for the first time that the instruction’s wording violated the

Delaware Constitution.

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ANALYSIS

(12) “This Court reviews de novo a trial court’s decision to issue a jury

instruction over the defendant’s objection.”1 This Court also considers whether the

instructions, examined as a whole, correctly stated the law.2 When, however,

objections to jury instructions are not fairly preserved in the trial court, we will

“review[] the content of jury instructions for plain error.”3 “Under the plain error

standard of review, the error complained of must be so clearly prejudicial to

substantial rights as to jeopardize the fairness and integrity of the trial process.” 4

“[T]he doctrine of plain error is limited to material defects which are apparent on the

face of the record; which are basic, serious and fundamental in their character, and

which clearly deprive an accused of a substantial right, or which clearly show

manifest injustice.”5

A. The Superior Court did not err in giving the jury a flight instruction
based on the evidence presented at trial.

(13) Cosden’s first argument on appeal is predicated on his contentions that:

(i) had the State properly represented the existence of the Second Warrant, the trial

1
Robertson v. State, 41 A.3d 406, 408 (Del. 2012).
2
Claudio v. State, 585 A.2d 1278, 1282 (Del. 1991).
3
Dupree v. State, 295 A.3d 1099, 2023 WL 2783164, at *3 (Del. 2023) (TABLE) (quoting Brooks
v. State, 40 A.3d 346, 351 (Del. 2012)).
4
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
5
Id.

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court would not have issued the flight instruction; and (ii) it was “just as likely” that

Cosden was fleeing from the Second Warrant as it was that he was fleeing from the

First Warrant. But under the unique facts of this case, the trial court did not err in

holding that the evidence presented at trial supported the jury instruction related to

Cosden’s flight.

(14) A defendant’s motive for fleeing is a question of fact for the jury.6

Evidence of a defendant’s flight from the crime scene or evasion of arrest following

the commission of a crime is generally admissible to show consciousness of guilt.7

This Court has held that a flight instruction is proper “where there is evidence of

flight or concealment and the evidence reasonably supports an inference that

defendant fled because ‘of a consciousness of guilt and a desire to avoid an

accusation based thereon, or for some other reason. . . .’”8

(15) Here, Cosden fled from Warren’s apartment—the crime scene—

immediately after learning that the police were on their way. He then fled when

Officer Kiser located Cosden two weeks later at his father’s house. When Officer

Kiser ultimately apprehended him, Cosden stated that he “knew it was stupid” to

run. Cosden does not dispute that this evidence, standing alone, constituted a

6
Tice v. State, 382 A.2d 231, 233 (Del. 1977).
7
Robertson, 41 A.3d at 409; Tice, 382 A.2d at 233.
8
Thomas v. State, 467 A.2d 954, 958 (Del. 1983) (citing Tice, 382 A.2d at 233).

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sufficient factual basis to support a flight instruction. Instead, he argues that the

Second Warrant’s existence renders unreasonable any inference that he fled because

of the charges relating to the incident at Warren’s apartment. We disagree.

(16) The charges in the First and Second Warrants were not wholly

unrelated; to the contrary, they stemmed from incidents occurring on the same day

and involving the same victim. The First Warrant was based on the domestic

violence incident between Cosden and Warren and was issued in the early morning

hours of September 26, 2020. Police obtained the Second Warrant later that night

based on a text message that Cosden sent to Warren in which he threatened to kill

her mere hours after he fled from her apartment.

(17) Although the State incorrectly informed the trial court that Cosden only

had one “active case” at the time of his arrest, that mistaken statement of fact does

not render the trial court’s flight instruction improper. Even if the trial court had

been made aware of the Second Warrant, the related nature of the events on

September 26, 2020, including the fact that they occurred on the same day and

involved the same victim, supported a reasonable inference that Cosden fled because

he knew that police had been called to Warren’s apartment and he wanted to avoid

arrest for that incident. The record therefore supports the trial court’s decision to

issue a flight instruction.

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B. The flight instruction given to the jury did not amount to plain error.

(18) Cosden’s second argument on appeal is that the particular flight

instruction given in this case was unconstitutional. Del. Const. art. IV, § 19 provides

that “[j]udges shall not charge juries with respect to matters of fact, but may state

the questions of fact in issue and declare the law.”9 The trial court issued the

following instruction to the jury:

In this case, the State contends that the defendant evaded arrest and took
flight following the commission of or after committing the offenses
charged in the indictment. Evidence of evasion of arrest and flight is
admissible in a criminal case as a circumstance tending to show
consciousness of guilt. You may consider any evidence for this limited
purpose only. You may not consider evidence of evasion of arrest or
flight as poof that the defendant is a bad person and, therefore, probably
committed the offenses charged in the indictment. You may use this
evidence only to help you in deciding whether the defendant committed
the offenses contained in the indictment. The evidence of evasion of
arrest or flight, if proved, may be considered by you in light of all the
facts proven. Whether or not such evidence shows consciousness of
guilt and the significance to be attached to such evidence are matters
solely for your determination.10

(19) On appeal, Cosden argues that this instruction commented on the

evidence in violation of Del. Const. art. IV, § 19 in three ways: (i) the phrase “tending

to show guilt” suggested a heightened likelihood of guilt; (ii) the language

highlighted only one permissible inference—guilt; and (iii) the instruction failed to

recognize that consciousness of guilt was not “all or nothing.”

9
Del. Const. art. IV, § 19.
10
App. to Opening Br. at A387-88 (Trial Tr.).

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(20) At trial, Cosden did not object to the instruction based on Del. Const.

art. IV, § 19. Although this Court generally reviews constitutional issues de novo,

constitutional issues that are not raised in the trial court are reviewed for plain error.11

(21) To begin, we note that Cosden has not argued that flight instructions are

per se unconstitutional under the Delaware Constitution. In Robertson v. State,12

this Court rejected the defendant’s contention that flight instructions necessarily

violate Del. Const. art. IV, § 19, and Cosden has not asked us to revisit that ruling.

As the State correctly points out—and as Cosden concedes—the instruction at issue

on appeal is substantively similar to the instruction upheld by this Court in Robertson

and the flight instruction provided in Delaware’s pattern criminal jury instructions.13

Cosden nevertheless contends that our decision in Robertson did not pass on the

precise wording of the instruction and only addressed the constitutionality of flight

instructions generally. Cosden now challenges the instruction’s wording,

specifically whether the language of the trial court’s instruction improperly

commented on the facts. We hold that the instruction’s wording was not so clearly

prejudicial to Cosden’s substantial rights as to jeopardize the trial’s fairness and

integrity.14 Accordingly, we affirm the challenged instruction.

11
Nance v. State, 903 A.2d 283, 285 (Del. 2006).
12
41 A.3d at 409.
13
Id. at 408.
14
Wainwright, 504 A.2d at 1100.

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(22) First, Cosden argues that this jury instruction violated Del. Const. art.

IV, § 19 because the words “tending to show guilt” suggest a heightened likelihood

of guilt instead of framing guilt as one permissible inference. This argument,

however, misquotes the challenged flight instruction, which described flight as “a

circumstance tending to show consciousness of guilt.”15 Labeling the legal

significance of Cosden’s flight as one circumstance that “tend[ed] to show

consciousness of guilt” was not a comment on the evidence.

(23) Second, Cosden contends that the instruction “highlights one

permissible inference—guilt—over all others.”16 This assertion is misplaced when

the instruction is considered as a whole.17 In the last paragraph, the challenged

instruction advised the jury that flight evidence “may be considered in light of all of

the facts proven,” and that whether Cosden’s flight showed his consciousness of guilt

were matters solely for the jury’s determination. The trial court did not limit the

jury’s inference exclusively to guilt; rather, by stating the questions of fact at issue

and declaring the applicable law, the trial court properly reserved issues of fact for

the jury.

15
App. to Opening Br. at A388 (Trial Tr.).
16
Opening Br. at 13.
17
Claudio, 585 A.2d at 1282.

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(24) Finally, Cosden argues that the court’s flight instruction improperly

generalized consciousness of guilt as “all or nothing” because it “suggested to the

jury that Cosden fled because of guilt of ‘the offenses charged in the indictment.’”18

In Cosden’s view, had the jury been informed of the Second Warrant, it may have

reached a different conclusion regarding the significance of the flight evidence. But

nothing prevented trial counsel from arguing to the jury that Cosden may have fled

for reasons other than the charges being tried. Further, there is nothing in the record

to indicate that Cosden proposed alternative language or sought changes to the

proposed instruction. Because the language in the instruction did not clearly

prejudice Cosden’s rights under the Delaware Constitution, the trial court did not

commit plain error by instructing the jury in the manner that it did.

For the foregoing reasons, we conclude that there is no merit to Cosden’s

appeal. NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

18
Opening Br. at 12-13.

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