Submitted: March 6, 2019
Below-Superior Court of the State of Delaware Cr. ID:
appeal from the Superior Court. AFFIRMED in part, REVERSED in
part, and REMANDED.
Christopher S. Koyste, Esquire, Wilmington, Delaware for
Appellant Steven Baynum.
L. Arban, Esquire, Department of Justice, Wilmington,
Delaware for Appellee State of Delaware.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
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.
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.
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.
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.
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.
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.
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.
jury indicted Baynum on sixteen offenses, including home
invasion, first-degree burglary, third-degree assault
(against Holdren), and offensive touching (against Manisha).
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.
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.
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 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.
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. 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. The Superior Court adopted the
Commissioner's Report and denied Baynum's amended
postconviction motion.Baynum appeals that denial to this Court,
raising the same claims as below.
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.
The altercation and evidence of injury
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], " one of the responding officers at the
scene gave more equivocal testimony regarding Holdren's
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.
The lead detective's testimony
cross-examination of the State's lead detective, Steven
Burse, Baynum's trial counsel pursued the following line
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?
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