       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                     )
                                      )
                                      )
            v.                        )        I.D.   1212015998
                                      )
                                      )
JOSHUA C. STEPHENSON,                 )
                                      )
            Defendant.                )


                                  ORDER

      1.   This is a murder case in which Defendant is charged with

shooting and killing Myron Ashley on Christmas Eve, 2012. The State

contends the evidence will show that police were called to a home in

Wilmington where they found the victim. He had been shot twice in the

head by a .45 caliber weapon and was later pronounced dead at

Christiana Hospital.   Two .45 caliber shell casings were found in the

living room and a .45 caliber handgun was found on a loveseat.

Defendant’s sister, who was the victim’s girlfriend, was upstairs when

she heard gunshots. She rushed downstairs and asked Defendant what

he had done. Defendant punched her in the face and fled. Defendant

was arrested the following day.    DNA analysis showed blood found on

Defendant’s jacket to be that of the victim.

      2. Defendant has filed a motion seeking to admit at trial evidence

that the victim had been convicted in 2007 of possession of a firearm
during the commission of a felony. Defendant does not show why this

evidence is relevant. Indeed his entire motion reads as follows:

            1. At Defendant’s specific request of June 14, 2014, the
               State supplied the criminal history of Myron Ashley
               which is not attached but may be provided;
            2. Myron Ashley has a conviction for Possession of a
               Firearm During the Commission of a Felony in 2007.
               Mr. Ashley was on Level 4 home confinement for this
               conviction at the time of his death;
            3. DNA evidence provided by the State indicates that
               Defendant and at least two other persons were DNA
               donors to the firearm used during the homicide in the
               instant case; and
            4. The State is seeking to enter evidence about
               Defendant’s prior ownership of a gun for which he has
               no conviction.

        3. In the absence of any showing of relevancy, the court will deny

Defendant’s motion.        The court notes in passing that a victim’s prior

conviction of a weapons offense may be admissible under certain

circumstances to support Defendant’s claim of self defense. In Tice v.

State 1 the Supreme Court held that evidence of prior violent acts of the

victim may be admissible to show self defense:

               Since one of the factors that influences the
               reasonable belief of a defendant, threatened with
               imminent assault, is the defendant's knowledge
               or awareness of the victim's past acts of
               violence, these instances are relevant for their
               proper noncharacter purpose. Subject to the
               satisfaction of the requirements articulated in
               Getz [v. State 2] the defense was entitled to use
               this evidence under [Delaware Rules of Evidence]
               404(b) to show the fear experienced by the
               defendant, and thus, establish the subjective


1   624 A.2d 399 (Del. 1993).
2   538 A.2d 726 (Del. 1988).


                                       2
               state of mind required to assert the claim of self-
               defense. 3

       4.   The court has some doubt whether the rule in Tice is broad

enough to encompass the present case.                 Here the conviction was for

possession of a firearm during the commission of a felony and the

underlying felony was possession with intent to distribute. Because the

prior conviction did not involve an act of physical violence, the court has

difficulty seeing how it would be probative of the claim the defendant

acted in self defense. The court need not decide the issue, however. A

necessary predicate to the admissibility of a victim’s prior conviction in a

self defense case is that the defendant had actual knowledge of that

conviction at the time he ostensibly acted in self defense. 4 Defendant

does not allege in his motion that he was aware of the victim’s prior

conviction for possession of a firearm during the commission of a felony.

Accordingly his motion is DENIED.


Dated: October 30, 2014                             John A. Parkins, Jr.
                                                    Superior Court Judge


oc: Prothonotary

cc: John W. Downs, Esquire, Department of Justice, Wilmington,
    Delaware
    Kathryn van Amerongen, Office of the Public Defender, Wilmington,
    Delaware


3 Id. at 402. (emphasis in original).
4 Wright v. State, 25 A.3d 747, 754 (Del. 2011) (“[E]vidence of a victim's prior bad acts
may be admissible to support a claim of self-defense where the defendant had actual
knowledge of the victim's prior bad acts.”)


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