    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                       )
                                         )
                     Plaintiff,          )
                                         )
              v.                         )      ID No. 1212015998
                                         )
JOSHUA STEPHENSON,                       )
                                         )
                     Defendant.          )




                       MEMORANDUM OPINION 1


       The State has moved to exclude expert psychiatric testimony of

Susan E. Rushing, M.D. on several grounds, including the testimony is

unreliable and that she is not qualified to render some of her opinions.

The court need not reach these issues because, under the circumstances

of this case, it finds that Dr. Rushing’s testimony would not be helpful to

the trier of fact.

                                    A. Facts

       The State has advised the court that it will offer evidence that on

Christmas Eve 2012 the defendant was visiting the home of his sister,


1
  Oral argument on this, and other motions, took place on June 9, 2014. The court
announced from the bench its rulings (and the reasons therefore) on the pending
motions, including this one, that day. Because the ruling on this motion may be of
some interest to the criminal law bar, the court has issued this memorandum opinion
which memorializes, and to a limited extent, supplements its bench ruling.
the victim, Myron Ashley and their child, Myron Ashley, Jr.       During

defendant’s visit the sister and her six-year-old son went upstairs,

leaving defendant and the victim alone downstairs. Suddenly there was

the sound of gunshots.    The sister and her child ran downstairs and

found the victim on the floor bleeding from the chest.    When they got

downstairs the six year old saw the defendant hide a weapon in the sofa

and later told the police about what he had seen. When the sister tried

to talk to the defendant he punched her in the face and fled out the door.

The shooting victim was rushed to the Christiana Hospital where he was

pronounced dead.     The defendant was arrested the next day at his

grandmother’s house. Gunshot residue was found on defendant’s hands.

                            B. Dr. Rushing’s report

      Defendant retained Dr. Rushing as a psychiatric expert.         Her

credentials are quite impressive.   She earned a Bachelor of Science in

Brain and Cognitive Science at M.I.T., followed by a Doctor of Medicine

from Yale and a J.D. from Stanford. Dr. Rushing completed a Pediatrics

internship, a residency in psychiatry and a residency in forensic

psychiatry and is board certified in psychiatry.       Currently she is

employed as an Assistant Professor of Psychiatry at the University of

Pennsylvania Medical School.

      Dr. Rushing interviewed defendant on two different occasions. She

interviewed family members and reviewed the defendant’s school,

department of labor, Family Court Department of Services for Children,
medical and psychiatric records including Delaware Psychiatric Center

records stemming from defendant’s evaluation following the Christmas

Eve events.          Among other things, Dr. Rushing found a “several year

history of psychotic, manic and depressive symptoms.” Dr. Rushing

arrived at the following diagnosis:

                      •    Schizoaffective Disorder, bipolar type

                      •    Neglected child

                      •    Learning disability

                      •    Rule out intellectual disability

After quoting Delaware’s self protection statute, Dr. Rushing observed

that “at the time of my interview, Mr. Stevenson was able to articulate

facts that could support a Justification of use of force for self protection.”

                                  C. The parties’ contentions

         The State argues that Dr. Rushing is not qualified to give an

opinion on whether the facts recounted to her by the defendant

constitute self defense under Delaware law.                                     At oral argument

defendant’s counsel disavowed any intention of offering Dr. Rushing’s

testimony for this purpose. 2 The court will therefore not consider this


2
  The court agrees that such testimony is inadmissible. As discussed later in the text, D.R.E. 702 allows
expert testimony only if it would assist the trier of fact. In Jolly v. State, 1995 WL 715868 (Del.) the
Supreme Court opined that Rule 702,

                  allows opinion testimony by an expert only if it will assist the trier of
                  fact to gain scientific, technical, or other specialized knowledge. If
                  jurors, without the assistance of the expert, are as capable of answering
                  a question as an expert, then the expert's opinion would not be helpful
                  and is not admissible.
objection.        Instead, according to Defendant, Dr. Rushing’s testimony is

being offered to show how he perceived events on December 24.

Defendant’s theory is that this is relevant because it shows that

defendant had a subjective belief that his life was in danger when he shot

the victim. This is the nub of the present dispute.


                                             D. Analysis

         The first question the court must address is whether psychiatric

testimony is admissible to show the defendant’s state of mind in a self-

defense case. The justification of self defense in Delaware turns on the

subjective belief of the defendant.                      The statute defining self defense

repeatedly refers to the defendant’s belief:

                  (a) The use of force upon or toward another
                  person is justifiable when the defendant
                  believes that such force is immediately
                  necessary for the purpose of protecting the
                  defendant against the use of unlawful force by
                  the other person on the present occasion.

                  (b) Except as otherwise provided in subsections
                  (d) and (e) of this section, a person employing
                  protective force may estimate the necessity
                  thereof under the circumstances as the
                  person believes them to be when the force is
                  used,     without     retreating,   surrendering
                  possession, doing any other act which the
                  person has no legal duty to do or abstaining
                  from any lawful action.

                  (c) The use of deadly force is justifiable under
                  this section if the defendant believes that
                  such force is necessary to protect the

The jury here will be capable of deciding whether a given set of facts constitutes self defense without the
assistance of expert testimony. Therefore Dr. Rushing’s testimony in this regard is inadmissible.
                  defendant against death, serious physical injury,
                  kidnapping or sexual intercourse compelled by
                  force or threat. 3

It is not surprising therefore that the courts of this state have

consistently found that it is the subjective belief of the defendant that is

central to self defense. The test, according to the Supreme Court is the

“subjective test of what the defendant actually believed as to such

necessity, i.e. what the defendant actually thought, which determines

whether he was acting in self defense.” 4

         Here defendant argues that Dr. Rushing’s psychiatric testimony

should be admitted to show how he perceived events at the time of the

shooting. This, according to Defendant, is relevant to what he actually

believed at that time. Neither side, nor the court itself, could find any

case which decided whether psychiatric testimony is admissible to show

the actual belief of the defendant at the time of the alleged crime. Two

Delaware Supreme Court cases, however, provide considerable guidance.

In Tice v. State, 5 the defendant, who claimed a shooting was in self

defense, sought to introduce evidence of the victim’s prior bad acts. The

Supreme Court reasoned that the defendant’s belief at the time of the

shooting was central to his defense and evidence of the victim’s prior bad

acts was admissible to show the defendant’s state of mind.

                  Subject to satisfaction of the requirements
                  articulated in Getz, the defense was entitled to

3
    11 Del. C. sec. 464 (emphasis added)
4
    Coleman v. State, 320 A.2d 740,741 (Del. 1974)
5
    624 A.2d 399 (Del. 1993).
                  use this evidence under D.R.E. 404(b) to show
                  the fear experienced by the defendant, and thus,
                  establish the subjective state of mind required to
                  assert the claim of self-defense. 6


More recently, in Kelly v. State 7 the Supreme Court again considered

whether evidence of prior bad acts of the victim is admissible in self-

defense cases.            In Kelly the defendant, who was serving time for a

burglary conviction, was charged with assault in a correctional facility

after an altercation with another prisoner. Kelly claimed self defense and

sought to introduce evidence that the other inmate was serving a term of

life imprisonment for rape. The trial court excluded that testimony, but

on appeal the Supreme Court ruled this exclusion was an abuse of

discretion. Similar to its opinion in Tice, the Supreme Court reasoned:


                  “[o]ne of the essential elements of a claim of self-
                  defense is the defendant's subjective belief that
                  force was necessary for self-protection. While
                  evidence of [the victim’s] rape conviction is not
                  admissible to prove that [the victim] was
                  attempting to rape Kelly, it may be admissible to
                  establish Kelly's state of mind” 8

         Tice and Kelly leave no doubt that extrinsic evidence is admissible

to show the defendant’s actual belief for purposes of self-defense claims.

No stretch of logic is required, therefore, to conclude that appropriate

psychiatric testimony may be admitted to show how a defendant with a

6
  Id. at 402. The “Getz” in the quotation refers to Getz v. State, 538 A.2d 726 (Del. 1988) in which the
Supreme Court established certain standards for the admissibility of prior bad acts. It is not necessary to
consider Getz here because the defendant is not seeking to introduce evidence of prior bad acts.
7
  981 A.2d 547 (Del. 2009)
8
  Id. at 550.
psychiatric condition might perceive events and how that perception

affects his actual belief as to what is occurring. Courts in other states

have reached the same conclusion 9 and have admitted such testimony.

The court holds, therefore, that psychiatric testimony which otherwise

satisfies the rules of evidence may be admitted to show the defendant’s

subjective belief in self defense cases.

        The holding that psychiatric testimony can be relevant to the

defendant’s subjective belief does not by itself mean that Dr. Rushing’s

proposed testimony is admissible. Rule 702 allows admission of expert

testimony only if the testimony will assist the trier of fact in deciding

some factual issue. 10            The proverbial seminal case relating to the

admissibility of expert testimony is the United States Supreme Court’s

decision in Daubert v. Merrill Dow Pharmaceuticals, Inc. 11                            Although

Daubert was an interpretation of F.R.E. 702 and therefore not binding on

the states, the Delaware Supreme Court--like many other state courts

with evidentiary rules similar to Rule 702--has followed its reasoning.12

In Daubert the Court had this to say about Rule 702’s requirement that

expert testimony must assist the trier of fact:

                Rule 702 further requires that the evidence or
                testimony “assist the trier of fact to understand

9
   See, e.g. Commonwealth v Light, 326 A.2d 288 (Pa. 1974); Greco v. State, 48 A.3d 816 (Md. 2012).
10
    The rule provides in pertinent part “If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an opinion or otherwise . . . . “ (emphasis
added)
11
   509 U.S. 579 (1993).
12
   Nelson v. State, 628 A.2d 69 (Del. 1993).
                   the evidence or to determine a fact in issue. This
                   condition goes primarily to relevance. Expert
                   testimony which does not relate to any issue in
                   the case is not relevant and, ergo, non-helpful.
                   An additional consideration under Rule 702 and
                   another aspect of relevancy—is whether expert
                   testimony proffered in the case is sufficiently
                   tied to the facts of the case that it will aid the
                   jury in resolving a factual dispute. The
                   consideration has been aptly described by Judge
                   Becker as one of “fit.” “Fit” is not always obvious,
                   and scientific validity for one purpose is not
                   necessarily scientific validity for other, unrelated
                   purposes. The study of the phases of the moon,
                   for example, may provide valid scientific
                   “knowledge” about whether a certain night was
                   dark, and if darkness is a fact in issue, the
                   knowledge will assist the trier of fact. However
                   (absent creditable grounds supporting such a
                   link), evidence that the moon was full on a
                   certain night will not assist the trier of fact in
                   determining       whether    an    individual   was
                   unusually likely to have behaved irrationally on
                   that night. Rule 702's “helpfulness” standard
                   requires a valid scientific connection to the
                   pertinent inquiry as a precondition to
                   admissibility. 13


          There 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 “[i]f Mr.

Stevenson presents a defense of self-defense at trial, Mr. Stevenson’s [sic]

mental illness is unlikely to be relevant to such a defense.”



13
     Id. at 591-2 (some internal quotation marks omitted)
      As mentioned earlier, Dr. Rushing diagnosed Defendant as

suffering from Schizoaffective Disorder, bipolar type. But there is simply

no discussion in her report about how this disorder affected defendant’s

perceptions of the December 24 events. Rather the only two times Dr.

Rushing arguably draws any conclusions about the alleged crime are her

assertions that:

         •   “Mr. Stevenson’s mental illness puts him at a higher risk of

             being a victim of a violent crime.” and

         •   “The fact that Mr. Stevenson was suffering from a psychotic

             and manic episode at the time of the crime, does not rule out

             the possibility that Mr. Stevenson was threatened by Mr.

             Ashley.”

The fact that, as a general matter, Defendant’s mental condition “put him

at a higher risk of being a victim of a crime” is not relevant to how, on the

night of December 24, he perceived the events taking place.              Dr.

Rushing’s other observation—the defendant’s episodic mental problems

do “not rule out the possibility [he] was threatened”--goes without saying.

But the issue is not whether Defendant was in fact threatened, it is

whether he actually believed he was threatened.

      Other courts have excluded expert psychiatric testimony in cases

similar to the instant matter when the proposed testimony sheds no light

on how the defendant perceived the events giving rise to the alleged self
defense.        For example, in Commonwealth v Mellone, 14 the defendant

submitted a report of a psychiatrist describing, among other things, the

defendant’s abuse of drugs and alcohol and relying upon a mental health

center’s diagnosis that the defendant suffered from “bipolar disorder” or

“manic depressive” disorder.                     The Massachusetts Court of Appeals

upheld the exclusion of this testimony which was offered, in part 15, to

support the “actual belief” element of Massachusetts’ self defense

statute. The appellate court reasoned that the psychiatrist’s report said

nothing about how the defendant perceived the events ostensibly giving

rise to the need for self defense:

                  Whatever may be held about the propriety of
                  admitting proof of mental impairment as bearing
                  on a defendant's belief that he was in peril, here
                  Dr. Weiss's letter had as little to contribute to
                  the question whether the defendant could (or
                  did) have the requisite belief . . . . 16


         More recently, in Commonwealth v. Ventura, 17 a Pennsylvania

appellate court upheld the exclusion of psychological testimony in a self

defense case because that testimony did not relate to the defendant’s

perception of events:

                  [P]sychiatric testimony is generally admissible to
                  support a theory of self-defense to show the
                  subjective element of the defendant's state of
                  mind at the time of the occurrence. Here, in Dr.

14
   508 N.E.2d 632 (Mass. App. 1987).
15
   The testimony was also offered to show that the defendant could not form the requisite intent to kill.
That is not at issue here.
16
   Id. at 636-7.
17
   975 A.2d 1128 (Pa. Super. 2009)
                    Schneider's report, aside from a bald statement
                    that Ventura lacked specific intent when he
                    stabbed Victim, based upon Ventura's previous
                    personal history, there is no assessment or
                    opinion regarding Ventura's state of mind at the
                    time of the crime. Instead, the report more
                    closely resembles a history of Ventura's life and
                    his emotional state since incarceration and is
                    not relevant for the reasons advanced by
                    Ventura. 18

           Defendant does not argue so much the sufficiency of Dr. Rushing’s

conclusions as he does that Dr. Rushing’s report was merely a summary

and that she might have had more to say about the matter.               His

contention however runs afoul of Criminal Rule 16 which requires, in

certain instances including this one, the defendant to disclose in writing

“the identity of the [expert] witness and the substance of the opinions to

be expressed.” 19 While this rule does not require the defendant to recite

the expert’s entire testimony in haec verba, it does require defendant to

provide enough information to give notice to the state of the opinions to

be offered and the grounds for those opinions. As mentioned previously,

Dr. Rushing’s report is devoid of any mention of the defendant’s mental

capacity on the night of December 24 and its impact on his perception of

the events that night Under these circumstances it can not be said that

the State was provided with fair notice that Dr. Rushing would testify

about how his mental condition affected his perception of the events on

December 24.


18
     Id. at 1140 (internal quotation marks omitted).
19
      Superior Court Criminal Rule 16 (d)(1)(c).
      The State’s motion to exclude the testimony of Dr. Rushing is

therefore GRANTED.




                                 ___________________________
                                       John A. Parkins, Jr.
Date: June 20, 2014                    Superior Court Judge




oc:   Prothonotary

cc:   John W. Downs, Esquire and Barzilai K. Axelrod, Esquire
      Wilmington, Delaware - Attorneys for the State

      Kathryn A.C. van Amerongen, Esquire, Wilmington, Delaware –
      Attorney for the Defendant
