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State v. Baynum

Superior Court of Delaware

April 16, 2018


          Submitted: March 2, 2018

          Zoe Plerhoples, Deputy Attorney General and Cari Chapman, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware.

          Christopher Koyste, Wilmington, Delaware, Attorney for Steven O. Baynum.



         This 16th day of April, 2018, upon consideration of Defendant's Motion for Postconviction Relief, the full briefing, the Evidentiary Hearing, closing arguments, and the record in this matter, the following is my Report and Recommendation.


         On October 29, 2013, Steven Baynum, Defendant, was arrested and charged based on an incident that occurred a few days prior at the home of Defendant's ex-wife.[1] At the time, there was a no-contact order against the Defendant and he was not to be at their home. Despite this, he came to the home while Ms. Baynum, and a close friend (Dakota Holdren), were sleeping, and attacked them. The details of the evening were testified to at length by Ms. Baynum and Mr. Holdren but were at times unclear or confusing.[2] Briefly, amongst other things, the witnesses testified to Defendant punching Mr. Holdren many times and tying his hands together. Ms. Baynum and Mr. Holdren also testified they were in fear for their lives. The police responded to the residence at which point Mr. Baynum fled. He was later apprehended in Maryland and returned for trial.

         The trial was conducted over four days beginning on October 28, 2014. At the conclusion of the trial, Defendant was found guilty of Burglary First Degree (as a lesser included offense of Home Invasion), Burglary First Degree, two counts of Unlawful Imprisonment Second Degree (as the lesser included offense of Attempted Kidnapping First Degree), two counts of Menacing (as the lesser included offense of Aggravated Menacing), Assault Third Degree, Offensive Touching and Harassment. Defendant was found not guilty of Robbery First Degree, Robbery Second Degree and Possession of a Deadly Weapon During the Commission of a Felony.[3]

         On March 20, 2015, relying on the Burglary First Degree charge, the Court granted the State's motion to declare Defendant a habitual offender, [4] and Defendant was sentenced that same date. As a habitual offender, Defendant received a total non-suspended sentence of 17 years imprisonment at Level 5.[5]

         On April 8, 2015, Defendant appealed his conviction to the Delaware Supreme Court. The judgment of the Superior Court was affirmed on February 8, 2016.

         Defendant filed a pro se motion for postconviction relief and for the appointment of counsel. Counsel was appointed and the Court issued a briefing schedule. The Amended Motion for Postconviction Relief was filed on February 13, 2017 (the "Motion"). The record was enlarged and after both trial and appellate counsel submitted affidavits in response, the State filed an opposition and Defendant filed a reply. An Evidentiary Hearing was held on September 21, 2017 at which time both trial and appellate counsel testified. Defendant and the State then submitted closing arguments to the Court and the record is now complete.[6]


         I. Overview of Claims

         The Motion presents two arguments. Defendant fist argues he received ineffective assistance of counsel because Trial Counsel failed to pursue an instruction for Offensive Touching, as the lesser included offense of Assault Third Degree, in violation of his rights under Article I, Section 7 of the Delaware Constitution, and in violation of the Sixth and Fourteenth Amendments to the United States Constitution. At the conclusion of the State's case-in-chief, Trial Counsel moved for a judgment of acquittal on the charge of Assault Third Degree with respect to the alleged attack on Mr. Holdren on the basis that the evidence was insufficient to support the charge. After a colloquy with the Court, the motion was denied on the basis that there was more than sufficient evidence for the issue to go to the jury.[7] However, the Court recognized that "when we go through the jury instructions, it might be - a lesser-included offense of offensive touching might - might be considered."[8] Despite this, during the prayer conference and thereafter, Trial Counsel did not ask for an instruction on the lesser included offense of Offensive Touching. Defendant's Motion argues that (1) Trial Counsel erred in failing to request the lesser included offense instruction; and (2) if the jury had acquitted him of Assault Third Degree, then he likely would have been convicted of Burglary Second Degree (not First Degree) which carries a significantly lower minimum mandatory time.[9]

         The second argument is based on Defendant's claim that Appellate Counsel ! was ineffective for having failed to raise an issue on appeal. During the trial, the State's counsel questioned the lead investigator and elicited Detective Burse's thoughts or opinion as to the guilt of the Defendant and he vouched for the complaining witnesses' version of the events (the "Opinion Testimony"). The Court overruled an objection from Trial Counsel, concluded trial for the day, and then addressed the matter again the following morning. The Court then denied Trial Counsel's motion to dismiss or for a mistrial, agreed the questioning was improper and issued an instruction to the jury to disregard the testimony involving the officer's opinion. This issue was not raised on appeal.

         II. Response from Counsel

         Defendant's former counsel have "fallen on their swords" and agree that they failed to submit these issues to the courts on his behalf. Mr. Flockerzie, as Trial Counsel, and Mr. Ceccotti, as Appellate Counsel, each separately submitted an Affidavit of Response and conceded that Mr. Baynum's allegations were correct in that Mr. Flockerzie did not request a jury instruction of Offensive Touching as a lesser included offense of Assault Third Degree; and Mr. Ceccotti did not raise on appeal the trial court's denial of the motion for a mistrial.[10] Further, both testified at the hearing that they essentially missed the issue or simply did not think about it at the time. Trial Counsel testified that it was not a strategic decision but rather, if he had remembered, he certainly would have requested the lesser included offense instruction because there was an argument as to whether the injury was sufficient for Assault Third Degree and this was a credibility case.[11] With respect to Appellate Counsel, he testified that although he reviewed the trial transcripts to identify potential legal arguments for appeal, he has no recollection of why he did not raise the issue at bar other than it simply wasn't considered.[12] According to Appellate Counsel, issues will be raised on appeal if they appear meritorious, could result in a positive outcome and have the highest probability of reversal.[13] Although he recognizes that jurors are presumed to follow their oath and instructions, he has raised issues on appeal when a curative instruction was given, but here, he did not consider the claim.[14]


         The Court must first determine whether there are any procedural bars to the motion before considering the merits of the claims.[15] This is Defendant's first motion under Superior Court Criminal Rule 61 and it was timely filed.[16] The other procedural bars likewise do not apply because ineffective assistance of counsel claims cannot be raised at any earlier stage in the proceedings and are properly presented by way of a motion for postconviction relief.[17] The fact that counsel did not raise an argument or objection during the trial, or on appeal, does not bar a defendant from alleging that counsel's failure amounted to ineffective assistance.[18]Defendant's Motion is not procedurally barred.

         In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and the deficiencies in counsel's representation caused the defendant actual prejudice.[19] When reviewing such a claim, the Court must analyze counsel's conduct based upon all of the facts of the case and avoid peering through the lens of hindsight.[20] Defendant must show that any alleged errors were so serious that his counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.[21] "A defense attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities."[22] Great weight and deference are given to tactical decisions by the trial attorney and counsel cannot be deemed ineffective for failing to pursue motions that lack merit.[23] Further, in order to prevail on an ineffective assistance of counsel claim, a defendant must show that but for the errors, there is a reasonable probability that the outcome of the proceedings would have been different.[24] In doing so, Defendant must overcome a strong presumption that counsel's conduct was reasonably professional under the circumstances.[25] However, where the record establishes that counsel's decision was not a strategic choice, then counsel is not entitled to the presumption of deference set forth in Strickland.[26]

         Therefore, Defendant's motion should be granted if (i) Trial Counsel's failure to argue for a lesser included instruction or Appellate Counsel's failure to raise the Opinion Testimony on appeal, fell below an objective standard of reasonableness and (ii) counsel's actions were so prejudicial that it is reasonably probable that the outcome would have been different.


         "The prosecution or the defense is entitled to a lesser included offense instruction if the crime not charged is in fact a lesser-included offense, and if there is a rational basis in the evidence to convict the defendant of the lesser crime rather than the greater."[27] An offense is so included when "it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged."[28]

         To obtain a conviction of Assault Third Degree, the State must prove that the defendant intentionally or recklessly caused physical injury to another.[29] Physical injury is defined as an impairment of physical condition or substantial pain.[30] In comparison, the charge of Offensive Touching requires evidence that the defendant intentionally touched another person knowing that the defendant is likely to cause offense or alarm to that person.[31] Based on the facts and circumstances of this case, the parties do not dispute that if requested, Defendant would have been entitled to an instruction of Offensive Touching.

         Defendant was convicted of Burglary First Degree pursuant to 11 Del. C. §826, which, amongst other things, required the jury to find beyond a reasonable doubt that Defendant was either "armed with explosives or a deadly weapon" or caused "physical injury to any person who is not a participant in the crime." In the present case, there was no evidence of explosives, the jury found Defendant not guilty of Possession of a Deadly Weapon During Commission of a Felony, and the jury found Defendant guilty of Offensive Touching (not Assault Third) with respect to Ms. Baynum. Therefore, the only logical conclusion is that the jury convicted of Burglary First because they found there was "physical injury" to Holdren. Defendant now argues though that if the jury had the opportunity to convict of Offensive Touching with respect to Holdren then the jury would have acquitted of Burglary First Degree, consistently finding that there was insufficient evidence to establish "physical injury" to another. In the alternative, if the jury had convicted of Offensive Touching and Burglary First Degree, the Court would have been required to reduce the charge to Burglary Second Degree on the basis that the jury acquitted Defendant of a necessary element of Burglary First Degree when it found Defendant not guilty of Assault Third Degree.

         The State contends defense counsel's strategy was to argue Defendant was not present at the house the night of the incident, which story, if believed, is inconsistent with a strategy of requesting a lesser included offense of Offensive Touching. However, Trial Counsel admitted that his failure to request the lesser included offense was not strategic but rather, he forgot to submit the request. Contrary to the State's position, requesting the lesser included offense would have been wholly consistent with the defense strategy of requesting a lesser included instruction when applicable and in fact not only did Trial Counsel request a lesser included instruction for several charges, but the jury convicted Defendant of the lesser charge in three instances. Further, the issue of Holdren's injury was raised early in the trial process, [32] the Court acknowledged an instruction may be appropriate, and defense counsel's strategy throughout the trial, and in closing, was to not only argue Defendant was not culpable, but to also attack the evidence supporting the alleged injury to Holdren. And, Trial Counsel testified that he did ask for lesser included offense instructions on other offenses that were charged because his strategy was "in the hopes of if they were going to convict, that they would convict for a lesser reduced offense" and that he simply did not think of asking for the Offensive Touching charge when the time came.[33] In fact, the record demonstrates that the charge of Burglary Second Degree was offered as both a lesser included offense of Home Invasion and Burglary First Degree.

         This case is not dissimilar to Weber v. State, 971 A.2d 135 (Del. 2009). In Weber, the defendant denied any involvement in the charged offense, but the Supreme Court held that the lesser included offense test should still have been applied. In granting a reversal, the Supreme Court further opined that the trial judge only instructed on the highest offense and a reasonable jury could have convicted defendant of the lesser offense. In Baynum's case, the parties agree that the lesser included offense of Offensive Touching was appropriate based upon the evidence presented and could have been presented to the jury if requested.[34]

         I also agree with Defendant's concern that although a jury abides by its duties, some courts have recognized '"a substantial risk that the jury's practice will diverge from theory' when it is not presented with the option of convicting of a lesser offense instead of acquitting outright."[35] The substantial risk in this case was that the jury may have elected to convict Baynum of Assault Third Degree, despite one element of the charge unproven, rather than acquit him entirely where they felt some criminal conduct occurred.

         Defense counsel not only bears the burden of requesting an instruction, but the decision to waive a lesser included offense instruction requires "an in-depth discussion of the trial evidence and defense tactics between counsel and client."[36] In this case, Trial Counsel testified he simply missed it when the time came to instruct the jury. Mere oversight by trial counsel will amount to deficient performance and counsel who forgets to request an instruction that could help his client fails to meet an objective standard of reasonableness.[37] Although the State argues that Baynum's defense strategy precluded the lesser included offense instruction, the Supreme Court has held that a defendant's exculpatory testimony cannot be the sole basis for precluding the instruction.[38] Therefore, I find that Trial Counsel's failure to request the lesser included offense of Offensive Touching was in error and not objectively reasonable.

         Relief can only be afforded though if this error was so prejudicial that there is a reasonable probability that the outcome of the proceedings would have been different. It is not possible for the courts to delve into the minds of the jurors as to what they would or would not have done. However, there are several factors here that should be considered.

         Detective Vincenzo testified that he did not collect the bed sheets as he felt they were not related to the investigation and had he seen something (such as blood), he would have collected them.[39] Although Holdren testified he was hit 20-30 times in the head, he "guessed" about seeing blood, but also said he was bleeding from the nose.[40] Officer Fitzpatrick testified he did not initially observe any injuries to Holdren but later observed a swollen lip.[41] Ms. Baynum told the officer that Holdren was not injured but she also testified that she saw blood.[42] Detective Burse did testify that Holdren "appeared to have a swollen upper lip" but he did not recall other injuries.[43] Pictures of the injuries to Holdren were presented to the jury as Exhibit 22.[44] In addition, Enola Teeter, Defendant's grandmother, testified that Defendant admitted to her that he "beat" a man believed to be Holdren.[45] In denying the motion for acquittal on the Assault Third Degree charge, the Court held that the swollen lip, as well as pain testimony, could be "impairment" but also stated that the lesser included offense of Offensive Touching could be considered.[46] The jury's verdict demonstrates that the jurors believed some of the witnesses' testimony and rejected some of their claims.[47] In addition, the jury did not hesitate in convicting of a lesser included offense where they believed it was appropriate.

         Since the jury's verdict was predominantly dependent on credibility of the witnesses and conflicting testimony, Defendant argues that if given the opportunity, the jury could have convicted him of Offensive Touching and not Assault Third Degree. If that had happened, the logical corollary is that the Defendant would have been convicted of Burglary Second, not Burglary First, because both Assault Third and Burglary First have the same statutory definition of physical injury. Defendant next argues that since the State sought a habitual offender sentence based on the Burglary First conviction, the outcome of the case would have been different if Defendant had been convicted of Burglary Second instead. A Burglary Second conviction could still have made Defendant eligible for habitual offender sentencing, but the minimum mandatory would have been reduced from 15 years to 8 years and the sentencing would have been discretionary.[48] The State argues that there is no basis to think the Court would not have imposed the same penalty regardless of whether the conviction was Burglary First or Second.

         Although Defendant has established error by counsel, Defendant has not met his burden of demonstrating actual prejudice. Defendant's proposition is too tenuous. The test is not whether the Defendant can demonstrate that the error had some "conceivable effect" on the outcome but rather whether the error undermined the reliability of the result of the proceeding.[49] Defendant must show that there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.[50] Defendant does not dispute that there was sufficient evidence for the jury to convict of Assault Third Degree. The Court is being asked to assume that it was probable that not only could the jury have convicted Defendant of Assault Third, but it would have weighed the evidence and elected to convict of Offensive Touching, instead. In light of the jury's conviction of Burglary First - as a lesser included offense of Home Invasion, and after having been offered Burglary Second Degree - this reasoning is not persuasive.[51] In order for Defendant to prevail though, he must take it one step further and establish a sufficient reasonable probability that but for counsel's error, the sentencing judge would have been "swayed" to decide Defendant's sentence differently.[52] This is where Defendant's argument fails.

         I have reviewed the information provided to the Court prior to sentencing as well as the transcript from the Sentencing Hearing and do not find it reasonably probable that the Court would have imposed a lesser sentence under the circumstances. Prior to and at sentencing, the Court was aware of Defendant's previous convictions, read the psycho-forensic evaluation, and reviewed the letter submitted by the State.[53] The judge examined the mitigating factors with respect to the attempted rape charge and indicated he was "very familiar" with the case having reviewed these submissions and after having presided over the trial. The Court also considered the State's argument that this case was "part of the pattern of continuing and escalating domestic abuse by the defendant, " that Defendant accepted no responsibility and showed no remorse for his actions, but also accepted the State's concession that Defendant had a "horrific childhood."[54] The Court listened to defense counsel's unique legal argument that the Assault Third charge should merge into the Burglary First conviction and provided an opportunity for Defendant to argue it further.[55] Defense counsel presented an impassioned plea for leniency followed by Defendant's colloquy with the Court. The hearing concluded with the victims' statements.

         In issuing his decision, the judge acknowledged Defendant's prior violent conduct, habitual offender status, repetitive criminal conduct, need for correctional treatment - especially mental health, undue depreciation of offense and lack of remorse.[56] The sentencing judge also commented that he watched Defendant "sit on the stand, and take an oath, and testify in a way that just defies logic that wasn't even there" and after providing an example states the jury "did the right thing."[57] Despite the State's request for 25 years, the Court sentenced Defendant to 17 years and specifically stated in doing so that "[o]ne of the things that, again, I try to balance is if he weren't declared an habitual offender, I could sentence him to lots of back time so that if he were to try and contact Ms. Baynum and the like."[58] The Court's decision making was thorough, detailed, and considered. Based on this record, I do not find that it is reasonably probable that Defendant would have been sentenced to less than 17 years, nor that the outcome of this matter would have been different if the jury had convicted of the lesser included offenses as proposed by Defendant.


         As part of its case in chief, the State called Detective Burse to testify at which time he summarized the investigation and facts believed to support the charges. The following cross-examination by defense counsel then occurred:

Q. Detective, do you recall testifying in a pretrial hearing in this case?
A. I do.
Q. Do you remember during the hearing you told me that anything is possible?
A. Yes.
Q. Isn't it possible that this didn't happen the way Manisha and Dakota said it happened?
A. Anything is possible.
Q. Isn't it possible that, in fact, this alleged activity did not happen?
A. Which activity specifically are you referring to?
Q. This incident. Isn't it possible that this alleged incident did not occur?
A. In my opinion?
Q. I'm asking - what I'm saying is, is it possible that this incident didn't occur?
A. Anything is possible.
Mr. Flockerzie: Thank you, no further ...

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