         IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSHUA STEPHENSON,                       §
                                         §
       Defendant Below,                  § No. 199, 2019
       Appellant,                        §
                                         § Court Below—Superior Court
       v.                                § of the State of Delaware
                                         §
STATE OF DELAWARE,                       § Cr. ID No. 1212015998A&B (N)
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                          Submitted: January 6, 2020
                          Decided:   February 18, 2020

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

                                   ORDER

      After consideration of the brief and motion to withdraw filed by the

appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the

Superior Court record, it appears to the Court that:

      (1)    The appellant, Joshua Stephenson, was indicted for first-degree murder,

possession of a firearm during the commission of a felony (“PFDCF”), possession

of a firearm by a person prohibited (“PFBPP”), third-degree assault, and

endangering the welfare of a child. The evidence at trial showed that, on December

24, 2012, Stephenson visited the home of his sister, Ruth Ann Stephenson (“Ruth”);

Ruth’s six-year-old son, Myron Ashley, Jr. (“Myron Jr.”); and Myron Jr.’s father,

Myron Ashley, Sr. (“Ashley”). Stephenson had previously lived at the home, but
had recently moved to his grandparents’ house. After talking with Stephenson for a

period of time, Ruth sent Myron Jr. upstairs to take a bath. Ruth and Ashley

continued to talk with Stephenson, and then Ruth went upstairs to help Myron Jr.

with his bath. While Myron Jr. was in the bathtub, Ruth, who had worked a double

shift that day, lay down for a moment and fell asleep. She awoke when she heard

two gunshots downstairs. She ran downstairs. Myron Jr. heard a gunshot while he

was in the bathtub and ran downstairs after Ruth. Ruth saw Ashley lying on the floor

in the living room, in front of the sofa. Stephenson was sitting on the smaller love

seat. Ruth yelled at Stephenson “what did you do?” and grabbed at him. He punched

her in the face and quickly left the house.

      (2)     Officers arrested Stephenson several hours later in the basement of his

grandparents’ home. They also found a leather jacket with Ashley’s blood on it,

along with other clothing items that Stephenson had been wearing at Ruth’s house

that night.

      (3)     Ashley’s death was caused by two gunshot wounds—one of which

went through his left arm, and one of which entered and exited his right arm and

then entered and exited his torso. When investigating the scene of the shooting,

police officers found a gun on the loveseat and four spent shell casings and a bullet

in various areas of the living room. They also found two gunshot holes in the sofa

and corresponding holes in the wall behind the sofa and in the floor under the sofa.



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They were unable to locate those two bullets or any bullet or hole that corresponded

to the fourth shell casing. The gun had Stephenson’s DNA on it, as well as the DNA

of at least two other, unidentified individuals. Ballistics testing revealed that the

shell casings had been fired from the gun that was found on the loveseat. Swabs that

were taken of Stephenson’s hands after his arrest tested positive for gunshot residue.

       (4)    Stephenson had a long history of mental health issues. After his arrest,

the Court of Common Pleas ordered a competency evaluation. Three mental health

professionals, including a psychiatrist retained by the defense, opined in five

different reports that he was competent to stand trial.

       (5)    At trial, defense counsel attempted to establish that Stephenson shot

Ashley in self-defense. Counsel elicited testimony from various witnesses in an

attempt to establish that Stephenson and Ashley had struggled that night and that

Stephenson had not gone to the home with any intent to do any harm. But she

advised Stephenson against testifying because (i) based on the evidence at trial,

counsel believed there was a good chance that the jury might return a lesser-included

offense verdict (which did, in fact, occur), and (ii) counsel was concerned about

cross-examination concerning inconsistent statements regarding the incident that

Stephenson had made to one of the examining mental health professionals.1


1
  Appendix to Appellant’s Opening Brief, at A-270. In both versions, Stephenson indicated that
he acted in self-defense, but the details varied, and counsel believed that cross-examination on
these points might reduce the chance of obtaining a lesser-included offense verdict. Id.


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Stephenson also had a history of prior violent felonies, which could have been

disclosed to the jury if he testified.2 Stephenson did not take the stand.

       (6)     On January 13, 2015, following a six-day trial, a jury found Stephenson

guilty of PFDCF, endangering the welfare of a child, and second-degree murder, as

a lesser-included offense of first-degree murder; the jury found Stephenson not

guilty of offensive touching.3 The Superior Court found Stephenson guilty of

PFBPP in a separate bench trial. On June 17, 2015, the Superior Court sentenced

Stephenson to life imprisonment, plus a term of years.

       (7)     On direct appeal, Stephenson’s counsel argued that the Superior Court

erred by denying Stephenson’s request for a self-defense jury instruction and by

excluding the testimony of psychiatrist Dr. Susan Rushing to show that Stephenson’s

psychiatric symptoms might have affected his perceptions of danger on the night of

the shooting, supporting a claim of self-defense. This Court affirmed the judgment

of the Superior Court.4

       (8)     Stephenson then filed a pro se motion for postconviction relief, in

which he asserted nine grounds for postconviction relief. The Superior Court




2
  Id. at A-265.
3
  After hearing the evidence at trial, the court submitted the charge of third-degree assault to the
jury as the lesser-included offense of offensive touching.
4
  Stephenson v. State, 2016 WL 3568170 (Del. June 22, 2016) (affirming on the basis of the
Superior Court’s memorandum opinion in State v. Stephenson, 2014 WL 2891626 (Del. Super. Ct.
June 20, 2014)).


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ordered the appointment of postconviction counsel. After reviewing the record,

postconviction counsel filed an amended motion, asserting one of Stephenson’s pro

se claims as grounds for postconviction relief. Specifically, postconviction counsel

argued that trial counsel provided ineffective assistance of counsel by advising

Stephenson against testifying, even after it became clear that the Superior Court

would not permit Dr. Rushing’s testimony unless Stephenson testified. The Superior

Court also permitted Stephenson to supplement his counsel’s briefing with two pro

se claims, which Stephenson has not raised in this appeal. After considering the

parties’ briefing and the affidavits submitted by trial counsel to address the

ineffective assistance of counsel claims, the Superior Court denied the motion for

postconviction relief. Stephenson has appealed.

      (9)   On appeal, Stephenson’s counsel has filed a brief and motion to

withdraw under Supreme Court Rule 26(c). Stephenson’s counsel asserts that, based

upon a conscientious review of the record and the law, no arguably appealable issues

exist. Counsel informed Stephenson of the provisions of Rule 26(c) and provided

him with a copy of the motion to withdraw and the accompanying brief. Counsel

also informed Stephenson of his right to supplement counsel’s brief by stating in

writing any points he would like the Court to consider. Stephenson has raised one

point for the Court’s consideration. The State has responded to the Rule 26(c) brief




                                         5
and to the issue raised by Stephenson, and argues that the Superior Court’s judgment

should be affirmed.

       (10) Our review in this appeal is twofold: (i) the Court must be satisfied that

postconviction counsel has made a conscientious examination of the record and the

law for arguable claims;5 and (ii) the Court must conduct its own review of the record

and determine whether “the appeal is indeed so frivolous that it may be decided

without an adversary presentation.”6

       (11) Stephenson argues on appeal that his trial counsel was ineffective

because she advised Stephenson against testifying. He suggests that his testimony

regarding self-defense, supported by testimony by Dr. Rushing regarding the effect

of his psychiatric conditions on his perceptions, would have outweighed the likely

introduction of his criminal record and cross-examination regarding the inconsistent

statements that he made to Dr. Rushing.

       (12) In order to prevail on a claim of ineffective assistance of counsel, a

defendant must demonstrate that (i) defense counsel’s performance fell below an

objective standard of reasonableness; and (ii) there is a reasonable probability that

but for the deficient performance the result of the proceeding would have been




5
  Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
6
  Penson, 488 U.S. at 81.


                                              6
different.7 The appellant must state and substantiate concrete allegations of actual

prejudice.8 The appellant must also overcome a strong presumption that counsel’s

performance was professionally reasonable.9

       (13) Stephenson’s claim does not overcome the strong presumption that

counsel’s performance was professionally reasonable and that it was consistent with

“sound trial strategy.”10 Counsel was in the difficult position of balancing the

potential benefit of Stephenson’s testimony—explaining his version of the events

that occurred on the night Ashley died—against the risks of cross-examination, the

introduction of Stephenson’s criminal history, and the potential loss of a lesser-

included offense verdict.         Counsel’s advice not to testify was not objectively

unreasonable, nor was it inconsistent with sound trial strategy.11 The record reflects

that trial counsel consulted with Stephenson multiple times about the issue, and that

Stephenson ultimately made the decision not to testify, as reflected in the colloquy

with the Superior Court.12


7
  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
8
  Peters v. State, 2015 WL1280628, at *2 (Del. Mar. 20, 2015) (citing Younger v. State, 580 A.2d
552, 556 (Del. 1990)).
9
  Id.; Albury v. State, 551 A.2d 53, 59 (Del. 1988).
10
   Strickland, 466 U.S. at 689.
11
   Cf. Flamer v. State, 585 A.2d 736, 755 (Del. 1990) (rejecting claim that counsel was ineffective
for advising client to testify at trial); Allen v. State, 1986 WL 17122 (Del. July 1, 1986) (holding
that defense counsel’s advice to testify that intercourse was consensual, and therefore admit
penetration, was not unreasonable and was a reasonable tactical decision).
12
   See generally Taylor v. State, 28 A.3d 399, 406 (Del. 2011) (“A criminal defendant has ultimate
authority to make certain fundamental decisions regarding the case, as to whether to plead guilty,
waive a jury, testify in his or her own behalf, or take an appeal.” (internal quotations omitted)).


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       (14) Moreover, contrary to Stephenson’s claim, it is not clear that if

Stephenson had testified, the Superior Court would have permitted Dr. Rushing to

testify to show how a defendant with Stephenson’s psychiatric conditions might

have perceived events on the night of the shooting. The Superior Court excluded

Dr. Rushing’s testimony on the grounds that “[t]here is nothing in Dr. Rushing’s

report addressing how Defendant perceived events on December 24 and therefore

her testimony will not assist the trier of fact on this issue. Indeed, Dr. Rushing

seemingly disavows any attempt to relate Defendant’s mental condition to his

perception of those events—she states in her report that ‘if Mr. [Stephenson]

presents a defense of self-defense at trial, [his] mental illness is unlikely to be

relevant to such a defense.’”13

       (15) This Court has carefully reviewed the record and concluded that

Stephenson’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that counsel made a conscientious effort to examine the

record and the law and properly determined that Stephenson could not raise a

meritorious claim on appeal.




13
  Stephenson, 2014 WL 2891626, at *4 (certain alterations omitted), aff’d, Stephenson v. State,
2016 WL 3568170 (Del. June 22, 2016).


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

Court is AFFIRMED. The motion to withdraw is moot.



                                  BY THE COURT:


                                  /s/ Collins J. Seitz, Jr.
                                       Chief Justice




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