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Baynum v. State

Supreme Court of Delaware

May 29, 2019

STEVEN BAYNUM, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 6, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID: 1310015013A

         Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part, and REMANDED.

          Christopher S. Koyste, Esquire, Wilmington, Delaware for Appellant Steven Baynum.

          Brian L. Arban, Esquire, Department of Justice, Wilmington, Delaware for Appellee State of Delaware.

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

          TRAYNOR, JUSTICE

         In late 2013, Steven Baynum broke into his estranged wife's residence and physically accosted her and her new romantic partner, Dakota Holdren. Approximately one year later, a Superior Court jury found Baynum guilty of first-degree burglary, third-degree assault, offensive touching, and a host of other crimes. After Baynum was sentenced as a habitual offender to 17 years of Level V incarceration, he appealed to this Court, and we affirmed his convictions. Baynum then moved for postconviction relief under Superior Court Criminal Rule 61 claiming, among other things, that his trial counsel provided ineffective assistance of counsel in violation of his rights under the Delaware and United States Constitutions. The Superior Court denied Baynum's motion, and he once again appealed to this court.

         In this appeal, Baynum points to two deficiencies in his counsel's performance that prejudiced him. First he contends-and the State agrees-that his lawyers should have asked the trial court to instruct the jury to consider the charge of offensive touching as a lesser-included offense of third-degree assault in connection with his attack on Holdren. Not only would a conviction of the lesser charge have provided Baynum with the possibility of a lighter sentence, but to the extent it would have been based on the absence of physical injury, the corresponding acquittal of the more serious third-degree assault charge would have undermined the State's prosecution of the first-degree burglary charges, which also had a physical-injury component. Second, Baynum claims that his counsel during his direct appeal made a prejudicial mistake by not appealing the trial court's refusal to grant a mistrial following the State's introduction of improper opinion testimony from one of the lead detectives.

         The Superior Court rejected both of Baynum's claims. But for the reasons that follow, we agree with Baynum on his first claim. The Superior Court itself found that trial counsel's failure to request an instruction on the lesser-included offense of offensive touching was not objectively reasonable. This finding was consistent with the State's concession that Baynum would have been entitled to the instruction had he requested one. By this concession, the State acknowledged that there was a rational basis in the evidence supporting a guilty verdict on the lesser offense (offensive touching) rather than the greater offense (third-degree assault). It follows that there was a reasonable probability, but for trial counsel's failure, of a different outcome-one more favorable to Baynum. We therefore reverse the Superior Court's denial of postconviction relief as to the third-degree assault and first-degree burglary convictions.

         But we disagree with Baynum on his ineffective-assistance claim against his appellate counsel. We see no reasonable probability that we would have reversed Baynum's convictions on the ground that the Superior Court should have ordered a mistrial in the wake of the detective's testimony, which was offered in response to similar testimony elicited by Baynum and was the subject of a curative instruction. We therefore affirm the denial of postconviction relief as to the balance of Baynum's convictions.

         I. BACKGROUND[1]

         In 2012, Baynum and his wife, Manisha, decided to experiment with an open marriage, and the two had an intimate experience with Holdren. Thereafter, Manisha decided to leave Baynum and entered into a more serious relationship with Holdren.

         In September 2013, Manisha filed for divorce in Family Court. A Family Court order granted Manisha exclusive use of the couple's home at 28 Harvest Lane in Newark, Delaware and prohibited Baynum from contacting Manisha or being at 28 Harvest Lane. Nevertheless, Baynum often stayed at 28 Harvest Lane with Manisha and their two children, and Baynum also often stayed at his grandparents' home at 951 New London Road, which neighbored 28 Harvest Lane.

         In the early hours of October 24, 2013, police responded to 28 Harvest Lane after someone dialed 911 and hung up. Officers knocked on the door, heard a scream, and saw Manisha and Holdren run out the door while claiming that Baynum was inside with a knife. Police did not find Baynum inside, however. Later that morning, police arrested Baynum in Cecil County, Maryland, near the Delaware-Maryland border.

         A grand jury indicted Baynum on sixteen offenses, including home invasion, first-degree burglary, third-degree assault (against Holdren), and offensive touching (against Manisha).

         At trial, Manisha and Holdren testified that Baynum had entered their house while they were asleep and made his way up to the bedroom. When Manisha discovered Baynum crouched in her bedroom doorway, Baynum got up and began punching Holdren. Although Manisha dialed 911 from a landline, Baynum took the phone from her hands and removed the battery. Before police arrived in response to the disconnected call, Baynum also allegedly punched Manisha and attempted to tie Holdren and Manisha up with electronics cords.

         The jury found Baynum guilty of two counts of first-degree burglary (one count as a lesser-included offense of home invasion), two counts of second-degree unlawful imprisonment (both as lesser-included offenses of attempted first-degree kidnapping), two counts of menacing (both as lesser-included offenses of aggravated menacing), and one count each of third-degree assault, harassment, and offensive touching. On the State's motion, the Superior Court declared Baynum a habitual offender and sentenced him to 17 years' imprisonment for the first-degree burglary charges, and imposed suspended sentences for the remaining charges. We affirmed Baynum's convictions on direct appeal.

         Baynum then filed pro se motions for postconviction relief and appointment of postconviction counsel. The Superior Court granted Baynum's request for postconviction counsel, who then filed an amended motion. In his amended motion, Baynum argued that his trial counsel was ineffective for failing to request a jury instruction on offensive touching as a lesser-included offense of third-degree assault. The differences in sentencing ranges for offensive touching and third-degree assault are relatively insignificant[2] when viewed against Baynum's 17-year total sentence. Nevertheless, Baynum argues that if the jury had found Baynum guilty of only offensive touching instead of third-degree assault, it is reasonably probable that a jury acting consistently would also have found him guilty of only second-degree burglary-a lesser-included offense upon which the jury was instructed-rather than first-degree burglary. This is so, according to Baynum, because the basis for the hypothetical third-degree assault acquittal and offensive touching conviction would be the absence of physical injury-an absence that would cause the first-degree burglary charge to fail as well.

         Baynum also argued that his appellate counsel was ineffective for failing to appeal the trial court's denial of a mistrial following an improper exchange at trial between the prosecutor and one of the investigating officers.[3] Trial and appellate counsel submitted affidavits, and the Superior Court held an evidentiary hearing. After review, a Superior Court Commissioner recommended that the Superior Court deny Baynum's motion for postconviction relief.[4] The Superior Court adopted the Commissioner's Report and denied Baynum's amended postconviction motion.[5]Baynum appeals that denial to this Court, raising the same claims as below.

         Two aspects of the trial are relevant to the issues before us now-the evidence concerning the extent of Holdren's injuries and the lead detective's testimony about the "possibility" of Baynum's guilt.

         i. The altercation and evidence of injury

         Although Holdren testified that he had suffered a swollen lip and Baynum's grandmother testified that Baynum supposedly told her that "he [Baynum] had beat the crap out of [Holdren], "[6] one of the responding officers at the scene gave more equivocal testimony regarding Holdren's injuries:

Q: Did you notice any injuries on [Holdren]?
[Responding officer]: At first glance, I didn't. When he first ran out, I didn't notice any cuts or anything like that. Once I was standing outside with him, I did notice that he had a swollen lip.[7]

         ii. The lead detective's testimony

         During cross-examination of the State's lead detective, Steven Burse, Baynum's trial counsel pursued the following line of questioning:

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 ...

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