         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 RAMON JOYNER,                            §
                                          §       No. 424, 2018
       Defendant Below,                   §
       Appellant,                         §       Court Below: Superior Court
                                          §       of the State of Delaware
       v.                                 §
                                          §       I.D. No. 1502005446 (N)
 STATE OF DELAWARE,                       §
                                          §
       Plaintiff Below,                   §
       Appellee.                          §

                          Submitted: February 13, 2019
                            Decided: April 18, 2019

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                     ORDER

      On this 18th day of April 2019, upon consideration of the parties’ briefs and

the record on appeal, it appears that:

      (1)    The appellant, Ramon Joyner, appeals from the Superior Court’s denial

of his motion for postconviction relief. He contends that the Superior Court erred

by rejecting his claim that he received ineffective assistance of counsel at trial. Two

of the charges for which Joyner stood trial were Attempted Rape in the First Degree

and Rape in the Second Degree. The claimed ineffectiveness was trial counsel’s

failure to object to testimony of a forensic nurse examiner when the nurse read

verbatim a narrative account of the incident given to her by the victim of the alleged

sexual assault. Joyner argues that many portions of this narrative were not related
to medical diagnosis or treatment and, therefore, were not admissible under

Delaware Rule of Evidence 803(4), the hearsay exception for statements made for

medical diagnosis or treatment. He also argues that the narrative was cumulative,

served only to bolster the testimony of the complaining witness, and was unfairly

prejudicial under Delaware Rule of Evidence 403. For the reasons that follow, we

reject Joyner’s contentions and affirm.

       (2)    In addition to Attempted Rape in the First Degree and Rape in the

Second Degree, Joyner was charged with Kidnapping in the First Degree,

Strangulation, and Malicious Interference with Emergency Communications. All

of the charges arose from Joyner’s alleged assault upon an acquaintance, Amanda

Brooks,1 on February 8, 2015, at a hotel in Newark, Delaware.

       (3)    The trial transcript reflects that Brooks, her mother, and two friends

went to a casino in Wilmington on February 7, 2015.2 Brooks saw Joyner at the

casino and struck up a conversation with him. Brooks and Joyner were acquainted

with each other and had each other’s cell phone numbers. Early the next morning,

around 6:00 a.m., Brooks and Joyner decided to leave the casino in separate cars and

go out for breakfast. After picking up food at a drive-thru restaurant, Brooks and



1
  Because Amanda Brooks is the pseudonym that was used on direct appeal pursuant to Supreme
Court Rule 7(d), see Joyner v. State, 155 A.3d 832, 2017 WL 444842, at *1 n.1 (Del. Jan. 20,
2017) (Table), we reuse it for this postconviction appeal.
2
  The facts are largely taken from our opinion on direct appeal. See Joyner, 2017 WL 444842, at
*1-2.
                                              2
Joyner went to Joyner’s nearby hotel room, where Brooks fell asleep after eating

breakfast.

       (4)     Brooks testified that when she woke up awhile later, Joyner was gone

and her ID and car keys were missing. She texted and called Joyner multiple times

with no answer. Joyner finally responded, sending her a text expressing his desire

to have sex with her. Brooks eventually agreed to have sex with Joyner for the

purpose of obtaining her keys. According to Brooks, when Joyner returned to the

room with the keys, he stated that she needed to “live up to her end of the bargain”

and have sex with him.3

       (5)     Brooks testified that she did not want to have sex with Joyner, but that

he was standing between her and the hotel room door and “something about his

stance let her know that he wasn’t going to give up easily.”4 Consequently, Brooks

picked up the room phone and dialed the front desk to ask for help, telling the woman

who answered the phone, “I need someone in the room.”5 At that, according to

Brooks, Joyner became angry, snatched the phone from her hand, and hit her with a

closed fist. Brooks testified that Joyner continued to hit her as he held her down

and buried her face in a pillow, which suffocated her, and that he pulled down her



3
  Id. at *1 (alteration omitted) (quoting Trial Tr. at 136 (Oct. 7, 2015), available at App. to
Appellant’s Opening Br. at A074).
4
  Id. (alteration and omission omitted) (quoting Trial Tr. at 137, available at App. to Appellant’s
Opening Br. A074).
5
  Id. (quoting Trial Tr. at 137, available at App. to Appellant’s Opening Br. A074).
                                                3
pants and touched her buttocks and vagina with his hands. According to Brooks,

Joyner then took his arm off the back of her neck and used his hand to try to guide

his penis into her vagina.

      (6)    Brooks testified that she attempted twice to flee the hotel room. The

first time, she made it out of the room and to her car before Joyner caught her and

dragged her back to the room where he continued to beat and choke her. When

Brooks attempted to escape the second time, Joyner stopped her, ripped the phone

cord from the base of the phone, tied her arms with that cord, and tied her feet with

another cord. Joyner eventually left the room, and Brooks was able to get loose

from the cords. She left the room and sought help from a maintenance worker.

Hotel staff called 911. Shortly thereafter, police arrived, encountered Joyner in the

hotel lobby, and placed him under arrest.

      (7)    Later that morning, Brooks went to Christiana Hospital where she was

examined by a forensic nurse examiner. At trial, the nurse read, without objection,

from the medical history she prepared from the information Brooks gave her at the

hospital.   This medical history included Brooks’s narrative statement which

described the entire event in substantial conformity with Brooks’s in-court

testimony, except that the medical history indicated that Brooks said that Joyner had

penetrated her vagina with his finger. At trial, Brooks did not testify that such




                                            4
penetration had occurred. At the request of Joyner’s counsel, the nurse’s written

record of what she had been told by Brooks was not admitted as an exhibit.

         (8)    Joyner testified at trial. He described a much different scenario. He

testified that when he returned to the room after Brooks woke up, the couple decided

to shower together. According to Joyner, Brooks got out of the shower, saying that

she had to get her facial cleanser, but instead she ran out of the hotel room with his

jacket, which contained his money and ID. Joyner testified that he chased Brooks

and stopped her before she made it to her vehicle. He testified that he found his

money in her purse, that she then struck him, and that he struck her back. He denied

attempting any sexual contact.

         (9)    Whether or not Joyner penetrated Brooks with his finger was relevant

to the charge of Rape in the Second Degree. That count of the indictment alleged,

in pertinent part, that Joyner “did intentionally engage in sexual penetration with

[Brooks], without her consent.”6 At Joyner’s request, the Superior Court agreed to

instruct the jury on Unlawful Sexual Contact, which does not require penetration,7

as a lesser-included offense of Rape in the Second Degree.

         (10) The jury acquitted Joyner of Rape in the Second Degree but convicted

him of the lesser-included offense of Unlawful Sexual Contact in the First Degree.



6
    App. to Appellant’s Opening Br. at A015-16.
7
    11 Del. C. § 769(a)(1).
                                                  5
The jury also convicted him of Kidnapping in the First Degree, Strangulation, and

Malicious Interference with Emergency Communications. The jury could not reach

a verdict on Attempted Rape in the First Degree, and the State entered a nolle

prosequi on that charge.

       (11) By acquitting Joyner of Rape in the Second Degree and convicting him

of the lesser-included offense of Unlawful Sexual Contact in the First Degree, the

jury resolved in Joyner’s favor the one material discrepancy between the nurse’s

testimony concerning what she was told by Brooks and Brooks’s testimony at trial—

whether Joyner penetrated Brooks. Thus, Joyner suffered no prejudice from that

aspect of the nurse’s testimony.

       (12) We affirmed Joyner’s convictions on direct appeal.

       (13) On January 30, 2017, Joyner timely filed a pro se motion for

postconviction relief pursuant to Superior Court Criminal Rule 61. Counsel was

appointed to represent him, and counsel filed an amended motion that presented four

grounds for relief, including the ineffective-assistance claim that is now before us

on appeal.8

       (14) The Superior Court found that Joyner’s ineffectiveness claim “fail[ed]

to meet both Strickland’s performance deficiency and prejudice prongs.” 9 The


8
  The other three claims were unsuccessful in the Superior Court and have not been raised in this
appeal.
9
  Appellant’s Opening Br. Ex. A, at 9, 9-11 (applying Strickland v. Washington, 466 U.S. 668
                                               6
court summarized Joyner’s claim as being “an allegation that the [nurse’s] testimony

was cumulative and unduly prejudicial under DRE 403.”10 The court found that

“[t]he notes were admitted as a statement made for the purpose of medical diagnosis

or treatment under DRE 803(4).”11 It then applied Rule 403 and found that “the

probative value of the notes on the issue of medical diagnosis or treatment was not

substantially outweighed by the danger of unfair prejudice or the needless

presentation of cumulative evidence.”12 The court further found that “any risk that

the jury might give the notes greater weight than the complaining witness’ trial

testimony was mitigated by the Court’s decision not [to] allow the written notes to

be admitted as an exhibit.”13 The court concluded: “Because the testimony was

properly admitted, trial counsel was not ineffective in failing to object. For that

same reason, Joyner was not prejudiced by counsel’s failure to object.”14

       (15) We review the Superior Court’s denial of a Rule 61 motion for

postconviction relief for abuse of discretion.15 We review legal and constitutional

questions de novo.16




(1984)).
10
   Id. at 10.
11
   Id.
12
   Id.
13
   Id.
14
   Id. at 10-11.
15
   Ploof v. State, 75 A.3d 811, 820 (Del. 2013) (en banc).
16
   Id.
                                                7
       (16) To prevail on a claim of ineffective assistance of counsel, the defendant

must satisfy the two-prong standard of Strickland v. Washington. 17                       Under

Strickland, the defendant must prove that his trial counsel’s performance was

objectively unreasonable and that his defense was prejudiced as a result. 18

Although judicial scrutiny under the first prong is “highly deferential” and courts

must proceed with a “strong presumption” that counsel’s conduct was reasonable,19

there is no need to analyze whether an attorney’s performance was objectively

unreasonable if the alleged deficiency did not prejudice the defendant.20

       (17) Under the second prong, “[i]t is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the proceeding.”21 In

other words, “not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.” 22 The movant “must

make specific allegations of actual prejudice and substantiate them.” 23                   These

allegations must show “that there is a reasonable probability that, but for counsel’s




17
   466 U.S. at 687.
18
   Id. at 687-88, 691-92.
19
   Id. at 689.
20
   Ploof, 75 A.3d at 825; see also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.”).
21
   Strickland, 466 U.S. at 693.
22
   Id.
23
   Outten v. State, 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State, 671 A.2d
1353, 1356 (Del.) (en banc), cert. denied, 517 U.S. 1249 (1996)).
                                                8
unprofessional errors, the result of the proceeding would have been different.”24 “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”25

       (18) In our view, even if portions of the nurse’s narrative were not

admissible under DRE 803(4), Joyner has failed to satisfy the prejudice element of

Strickland because Brooks’s testimony and other admissible evidence was sufficient

to sustain the jury’s verdict. 26       An error in admitting evidence that is not of

constitutional magnitude “may be deemed to be ‘harmless’ when ‘the evidence

exclusive of the improperly admitted evidence is sufficient to sustain a

conviction.’”27 “Evidence erroneously admitted is frequently found to be harmless

if it was cumulative, that is, if ‘other evidence to the same effect was properly before

the jury.’”28 Here, the jury resolved the one material difference between the nurse’s

narrative and Brooks’s testimony in favor of Joyner, and the nurse’s narrative was



24
   Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
25
   Strickland, 466 U.S. at 694.
26
   See Capano v. State, 889 A.2d 968, 976 (Del. 2006) (en banc) (finding no prejudice under
Strickland “because even without the prosecution’s hearsay evidence, there was sufficient
evidence to sustain the jury’s verdict”).
27
   Cooke v. State, 97 A.3d 513, 547 (Del. 2014) (en banc) (quoting Nelson v. State, 628 A.2d 69,
77 (Del. 1993)); see also Super. Ct. Crim. R. 52(a) (“Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.”); Banks v. State, 93 A.3d 643, 646
(Del. 2014) (“Even if a court has abused its discretion in excluding evidence, this Court affirms
unless there was significant prejudice to deny the accused of his or her right to a fair trial.”).
28
   United States v. Bercier, 506 F.3d 625, 632 (8th Cir. 2007) (quoting United States v. White, 11
F.3d 1446, 1451 (8th Cir. 1993)); id. at 633 (“Thus, we have held in more than one case that
admitting prior consistent statements that merely bolstered a witness’s credibility by repeating
testimony already in evidence was harmless error.” (internal quotation marks omitted)).
                                                9
otherwise cumulative of Brooks’s testimony. In addition, there was significant

other admissible evidence that tended to corroborate Brooks’s testimony. This

evidence included photographs that showed injury to Brooks’s head, neck, back, left

shoulder, right upper arm, and knees. The photographs supported Brooks’s account

of what had happened and tended to refute Joyner’s account.             Additionally, a

witness who saw Brooks immediately after the incident testified that her “face was

bloody” and her “clothes were all tore up.” 29 Another witness testified that her

“face was very bruised up.” 30          There was also evidence that when the police

examined the hotel room, they found an alarm clock with its cord on the floor and

the telephone and a lamp with their cords tangled on the floor. This tended to

corroborate Brooks’s testimony that a struggle had taken place in the room. We are

satisfied that the other admissible evidence in the case was sufficient to sustain

Joyner’s conviction and that any error in the admission of portions of the nurse’s

narrative was harmless and did not cause Joyner any unfair prejudice.

         (19) Joyner has failed to establish that there is a reasonable probability that

the result of his trial would have been different if the nurse’s narrative had been

redacted to remove the parts he claims were inadmissible. Therefore, the Superior

Court did not err in denying his motion for postconviction relief.



29
     App. to Appellant’s Opening Br. at A108.
30
     Id. at A044.
                                                10
     NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                               BY THE COURT:

                              /s/ James T. Vaughn, Jr.
                              Justice




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