Baynum v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
STEVEN BAYNUM, §
§
Defendant Below, § No. 480, 2018
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID: 1310015013A
§
Plaintiff Below, §
Appellee. §
Submitted: March 6, 2019
Decided: May 29, 2019
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
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.
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
2
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
3
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. BACKGROUND1
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
1The factual background is largely taken from this Court’s decision on direct appeal in Baynum v.
State, 133 A.3d 963 (Del. 2016).
4
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
5
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 insignificant2 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.
2 Third-degree assault is a class A misdemeanor carrying a sentence of up to one year of Level V
incarceration and up to a $2,300 fine. 11 Del. C. § 601; 42 Del. C. § 4206(a). Offensive touching,
under the circumstances of this case, is an unclassified misdemeanor carrying a sentence of up to
30 days at Level V and a fine of up to $575. 11 Del. C. § 601; 42 Del. C. § 4206(c).
6
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
3 On appeal, Baynum’s appellate counsel did not raise the issue of the officer’s testimony because,
as he testified, he “did not consider the claim.” App. to Opening Br. A338 (“A__” hereafter). As
appellate counsel said, “I don’t remember even the issue crossing my mind, so I don’t know how
I would have researched it if I didn’t consider it. And I did review my notes in my own appellate
file prior to today, and I did not have any notes about that issue.” A340. In appellate counsel’s
words, “[i]t’s fair to say that I didn’t consider it.” A341.
4 State v. Baynum (Commissioner’s Report), 2018 WL 1896489 (Del. Super. Ct. Apr. 16, 2018).
5 Ex. A (Superior Court order adopting the Commissioner’s Report, accepting all of the findings
of fact and recommendations made in the Commissioner’s Report).
7
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
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.8
6 App. to Answering Br. B1; Answering Br. 8; A96–97.
7 A27.
8 A77.
8
On redirect examination, the State, apparently believing that a door had been opened,
asked:
Q: And, I guess, Detective, the last question I have for you
is, what is your opinion on the possibility of the defendant,
Steven Baynum, having committed these acts?
A: That he did it.9
Baynum’s counsel then requested a sidebar conference and objected to the
question and Detective Burse’s answer as impermissible opinion testimony. The
State countered that Baynum’s counsel opened the door to the challenged question,
and the Superior Court overruled the objection, making Detective Burse’s answer
the last words of testimony the jury heard that day. Nevertheless, the Superior Court
decided to give the objection more thought overnight.
The next day, Baynum’s counsel requested that the court dismiss the case or,
in the alternative, declare a mistrial because of the State’s improper question and the
detective’s answer. The State conceded that “the last question did cross the line”10
but offered that a curative jury instruction would be a sufficient remedy. Ultimately,
the court did not declare a mistrial, but it did strike both lines of questioning
regarding possibilities and probabilities and gave the jury a curative instruction.11
9 A78.
10 A83.
11 The next morning, the judge told the jury the following:
9
II. STANDARD AND SCOPE OF REVIEW
This Court reviews denials of postconviction relief for abuse of discretion.12
We review de novo constitutional claims, including ineffective assistance of counsel
First off though, I want to talk to you about some things that happened at the end
of the trial yesterday. You remember Detective Burse was testifying—and he’s
sitting at the State table—and there was a series of questions asked by Mr.
Flockerzie at the very end about possibilities.
And that—Mr. Flockerzie was eliciting opinion evidence from the detective, you
know, what is possible. You’re to disregard that testimony. The officer’s opinion is
not relevant. He is a fact witness. So what his opinion is as to possibilities is not
relevant and you’re to disregard that testimony in your deliberations.
In addition, the State started their redirect of Detective Burse, as you can remember,
with the notion of, you hear Mr. Flockerzie say anything is possible, and then there
was a whole line of questioning as to probable, what would be probable. And there
was a question asked of the officer of whether he thought that the defendant did the
act and asked that opinion.
That, too, is irrelevant. He is a fact witness. His opinion as to the guilt or innocence
of Mr. Baynum is irrelevant and you’re to also disregard that. It was started with
the possibilities, which was eliciting opinion evidence from a fact witness, and that
was—is irrelevant and you’re to disregard that in your deliberations. And the
probabilities questions asked by the State that ended with the question about his
opinion as to whether Mr. Baynum committed the act is also opinion and you’re to
disregard that testimony as well.
You’re not to consider either parts of those testimonies, either on cross-examination
of Detective Burse on possibilities or the redirect of Detective Burse in response to
that as to what he probably thought happened. It’s opinion evidence. It’s not to be
considered in your final deliberations. All right?
A84–85.
As a part of his instructions prior to the jury’s deliberations, the judge again reminded the jury:
As I instructed you during the trial, Detective Burse—this is another point. As I
instructed you during trial, Detective Burse’s opinion as to possibilities and
probabilities is not relevant and you’re still instructed to disregard Detective
Burse’s testimony on these points.
A158.
12 Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003).
10
claims.13 Under Strickland v. Washington,14 a petitioner seeking postconviction
relief on the basis of ineffective assistance of counsel must show that (1) his
counsel’s performance “fell below an objective standard of reasonableness”
(“performance”)15 and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different
(“prejudice”).16
III. ANALYSIS
A. Lesser-included offense instruction
First, Baynum claims that his trial counsel’s failure to request a jury
instruction on offensive touching as a lesser-included offense of third-degree assault,
and thereby invite the jury to consider convicting Baynum of only offensive touching
rather than of the more-serious third-degree assault charge, constituted ineffective
assistance that prejudiced him. A party is entitled to a lesser-included instruction “if
there is a rational basis in the evidence to convict the defendant of the lesser crime
rather than the greater.”17 And as we recently held in White v. State,18 where a
13 Starling v. State, 130 A.3d 316, 325 (Del. 2015). We note that while defendants do not have a
constitutional right to postconviction counsel, they do have a constitutional right to counsel on the
first direct appeal as of right. Evitts v. Lucey, 469 U.S. 387, 402 (1985).
14 466 U.S. 668 (1984).
15 Id. at 697.
16 Id. at 694.
17 Miller v. State, 893 A.2d 937, 948 (Del. 2006).
18 173 A.3d 78 (Del. 2017).
11
reasonable jury could find that the defendant was guilty of the lesser crime rather
than the greater, failure to request lesser-included instruction is prejudicial and
warrants postconviction relief in the form of a new trial.19
Here, the difference between third-degree assault and offensive touching is
that third-degree assault requires a showing of physical injury but offensive touching
does not.20 “‘Physical injury’ means impairment of physical condition or substantial
pain.”21 The State conceded below that Baynum would have been entitled to the
offensive-touching instruction had one been requested and does not meaningfully
challenge on appeal that trial counsel’s failure to request the instruction was
objectively unreasonable. Instead, the State focuses its arguments on Baynum’s
purported failure to demonstrate prejudice.
i. The Superior Court correctly determined that trial counsel’s failure to
request a lesser-included instruction was objectively unreasonable
Although our review is de novo, it is instructive to examine the Superior
Court’s findings and analysis, which we agree with in part. Citing Weber v. State,22
19 Id. at 83–84.
20 Compare 11 Del. C. § 611 (third-degree assault), with 11 Del. C. § 601 (offensive touching).
21 11 Del. C. § 222(23).
22 971 A.2d 135, 142 (Del. 2009) (quoting Bentley v. State, 930 A.2d 866, 875 (Del. 2007)) (“A
defendant is entitled to an instruction on a lesser included offense if there is any evidence fairly
tending to bear upon the lesser included offense, however weak that evidence may be.”). While
such an error “is harmless provided the jury returns a guilty verdict for an offense higher up rather
than for an intermediate offense which was also charged,” Weber, 971 A.2d at 142 (quoting
Geschwendt v. Ryan, 967 F.2d 877, 882–87 (3d Cir. 1988)), the error was reversible in Weber
because there was sufficient evidence supporting an acquittal of first-degree robbery and a
12
the Superior Court found that Baynum was entitled to a lesser-included instruction,
an unsurprising finding given that the parties agreed that a reasonable jury could
have acquitted Baynum of third-degree assault. In turn, the parties’ agreement that
acquittal of third-degree assault was a reasonable possibility is sensible given that
the evidence of injury, which consisted primarily of the victims’ testimony and a
statement from the responding officer that was equivocal, might have left the jury
doubting that Holdren suffered injury at the hands of Baynum.
The Superior Court then found that trial counsel’s failure to request an
instruction for offensive touching as a lesser-included offense of third-degree assault
was “in error and not objectively reasonable.”23 The court also concluded that there
was a “substantial risk . . . 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.”24
conviction of offensive touching. We acknowledge that Strickland’s prejudice standard for
postconviction relief—reasonable probability of a different outcome—does not exactly correspond
to the harmless error standard we applied in Weber on direct appeal—harmless beyond a
reasonable doubt. Weber, 971 A.2d at 142 (citing Geschwendt, 967 F.2d at 882–87 (citing Vujosevic
v. Rafferty, 844 F.2d 1023, 1027 (3d. Cir. 1988) (requiring that such errors be harmless beyond a
reasonable doubt))).
23 Commissioner’s Report, supra note 4, at *5.
24 Id.; see Keeble v. U.S., 412 U.S. 205, 213 (1973) (“Where one of the elements of the offense
charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to
resolve its doubts in favor of conviction.”).
13
We concur with the Superior Court’s finding that, absent the lesser-included
instruction, there was as a “substantial risk” that the jury might have found Baynum
guilty of a crime it might otherwise have found him not guilty of had it been
presented with another option. What is more, given that there is no “advantage
which could be gained by withholding a request for the[] instruction[],”25 failing to
make such a request did not constitute sound trial strategy. For the Superior Court,
as for us, trial counsel’s performance here fell below an objective standard of
reasonableness.26
ii. The Superior Court erred by determining that Baynum was not prejudiced
To show that there was a “reasonable probability” of a different outcome to
satisfy Strickland’s prejudice prong, a defendant must demonstrate more than a mere
“conceivable” chance of a different result.27 This reasonable probability standard is
not an onerous one to meet. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”28 Although this objective inquiry is not
mathematically precise, it requires finding prejudice when there is a substantial
likelihood—i.e., a meaningful chance—that a different outcome would have
occurred but for counsel’s deficient performance. It is a lower standard than “more
25 Neal v. State, 80 A.3d 935, 944 (Del. 2013).
26 Id. at 944–45; White, 173 A.3d at 80.
27 Harrington v. Richter, 562 U.S. 86, 112 (2011).
28 Strickland, 466 U.S. at 694.
14
likely than not,” and therefore does not require a defendant to “show that counsel’s
deficient conduct more likely than not altered the outcome in the case.”29
Here, although the Superior Court found that there was a “substantial risk”
that the jury had wrongfully found Baynum guilty in the absence of a lesser-included
instruction, the court nevertheless concluded that Baynum failed to show a
reasonable probability that the results of the proceeding would have been different.
The Superior Court offered two reasons for its conclusion: (1) the jury found
Baynum guilty of first-degree burglary when second-degree burglary was offered as
a lesser-included offense, rendering a guilty finding on the third-degree assault
charge the only possible consistent outcome and (2) Baynum had not shown that the
trial judge would have given him a lesser sentence.
But the Superior Court’s reasoning is at odds with itself. According to the
Superior Court, the jury’s verdict on the first-degree burglary charge indicates that it
could not have consistently—and therefore, would not have—acquitted Baynum of
third-degree assault. But it seems to us that this logic applies equally forcefully in
the other direction: because the jury did not have the option to consider offensive
touching—an offense that does not require injury—the jury likewise might have felt
compelled to ignore the option of second-degree burglary, an offense that likewise
does not require injury. In other words, if there was a “substantial risk” (as the
29 Id. at 693.
15
Superior Court found) that the jury was willing to find Baynum guilty of third-degree
assault despite no proven injury, then it seems that there also was a “substantial risk”
that the jury was willing to find Baynum guilty of first-degree burglary despite no
proven injury in order to maintain a consistent overall verdict.
Furthermore, the Superior Court’s argument that Baynum was not prejudiced
because he likely would not have received a lesser sentence even with a lesser
conviction was also erroneous.
First, it is irrelevant whether the trial judge would have given Baynum a lesser
sentence. If Baynum would have been found guilty of a lesser offense, that is enough
to change the outcome of the case, which is what Strickland requires.
Second, the Superior Court’s finding that Baynum failed to demonstrate a
reasonable probability of a lesser sentence is in conflict with its reasoning that, if the
jury had found Baynum guilty of offensive touching instead of third-degree assault,
“the logical corollary is that Baynum would have been convicted of Burglary
Second, not Burglary First.”30 Second-degree burglary, of course, has a less severe
sentencing range than first-degree burglary, especially under the circumstances of
this case. The minimum mandatory sentence that Baynum would have faced for a
30 Commissioner’s Report, supra note 4, at *6. Although a person may also commit first- and
second-degree burglary without causing injury if that person possesses a deadly weapon during
the commission of the crime, 11 Del. C. §§ 825–26, that is not at issue in this case.
16
second-degree burglary conviction would have been eight years instead of 15 years
for first-degree burglary.31 If it is logical—or is at least reasonably probable—that
Baynum would have been found guilty of a less-serious felony, then it follows that
Baynum could have received a less-severe sentence. As Baynum contends, it is an
unreasonable supposition to think that a sentencing judge would hand down the same
sentence regardless of the seriousness of the offenses (or the minimum sentence, for
that matter). Thus, even if sentencing mattered in this case, there is at least a
reasonable probability of a different sentence, and that is all Strickland requires to
show prejudice.
To reiterate, although a mere conceivable possibility of a different outcome is
insufficient for relief under Strickland, that is not what the Superior Court found.
Instead, it found that there was a “significant risk” that the jury’s verdict would have
been different had the jury been instructed on the lesser-included offense. We agree
with that finding, and from that finding we infer that there was a “reasonable
probability” of a different outcome. Combined with our finding of substandard
performance, that reasonable probability requires us to vacate Baynum’s convictions
for first-degree burglary and third-degree assault.
3111 Del. C. § 825 (second-degree burglary is a class D felony); 11 Del. C. § 826 (first-degree
burglary is a class C felony); 11 Del. C. § 4205 (sentencing ranges).
17
B. Detective Burse’s testimony
Because we have concluded that Baynum’s third-degree assault and burglary
convictions must be vacated, we consider Baynum’s claim that his appellate counsel
was ineffective only as to Baynum’s other convictions. And here, we do not find
that Detective Burse’s trial testimony that “he [Baynum] did it”32 warrants additional
relief.
As with Baynum’s first claim, the State focuses its arguments against
Baynum’s second claim on Strickland’s prejudice prong. According to the State,
there was not a reasonable probability that the outcome of the direct appeal would
have been different even if Baynum raised the denial of a mistrial on direct appeal.
The Superior Court agreed with the State that there was not a reasonable probability
of prejudice, and we concur.
As the State concedes, we would have reviewed the denial of Baynum’s
mistrial request as one based on alleged prosecutorial misconduct. Because defense
counsel raised a timely objection at trial, we would have reviewed for harmless
error.33 When conducting such a review, we first examine de novo whether the
actions constitute prosecutorial misconduct.34 Given that the State conceded that its
32 A78.
33 Baker v. State, 906 A.2d 139, 148 (Del. 2006).
34 Kirkley v. State, 41 A.3d 372, 376 (Del. 2012).
18
“last question did cross the line,”35 we assume without deciding, as the Superior
Court did, that the State’s conduct constituted prosecutorial misconduct.36
But even where there is misconduct,
an improper remark by a prosecutor requires reversal of a
conviction . . . only when it prejudicially affects substantial
rights of the accused. To determine whether prosecutorial
misconduct prejudicially affects a defendant’s substantial
rights, we apply the three factors of the Hughes test, which
are: (1) the closeness of the case, (2) the centrality of the
issue affected by the error, and (3) the steps taken to
mitigate the effects of the error. The factors in
the Hughes test are not conjunctive and do not have the
same impact in every case; for example, one factor may
outweigh the other two. Moreover, we apply the test itself
in a contextual, case-by-case, and fact sensitive manner.37
If the Hughes test does not warrant reversal, we proceed to the Hunter test,
under which we may reverse, but need not do so, if we find that “the prosecutor’s
statements or misconduct are repetitive errors that require reversal because they cast
doubt on the integrity of the judicial process.”38 With respect to Hunter, however, it
cannot be reasonably disputed that the errors were indeed not repetitive, and it does
not seem that Baynum attempts to argue so before us. Accordingly, our analysis
focuses on the Hughes test.
35 A83; see also Answering Br. 28 (“[T]he prosecutor’s line of questioning was admittedly
inartful”).
36 A persuasive argument could be made that Baynum’s counsel opened the door to the question
that elicited the challenged testimony.
37 Baker, 906 A.2d at 149.
38 Id.19
The State appears to concede that the issue affected was central but argues
that the case was not close and that the trial judge mitigated the effects of the error.
We agree. Like the State, we think that the case was not close. Two eyewitnesses,
both of whom knew Baynum intimately, described Baynum’s conduct to the jury.
Baynum sent text messages to Manisha about going over to Manisha’s home that
night. Moreover, Baynum’s decision to hide out in Maryland seems inexplicable if
all he had done was place a ladder in Manisha’s driveway as he claims. Additionally,
Baynum’s explanation for why he had an apparent bite mark on his arm, a mark that
was consistent with Manisha’s testimony of what happened, was unconvincing.
Even without Detective Burse’s disputed testimony, it is likely that a jury would have
found beyond a reasonable doubt that Baynum broke into Manisha’s home and
harassed Manisha and Holdren in a manner consistent with the jury’s verdict on all
the charges other than those of third-degree assault and first-degree burglary. And
of course, the trial judge gave two curative instructions to mitigate the effects of the
error.
As mentioned, “[t]he factors in the Hughes test are not conjunctive and do not
have the same impact in every case”39 and “we apply the test itself in a contextual,
case-by-case, and fact sensitive manner.”40 And here, because the case was not close,
39 Id.40 Id.20
the trial judge gave curative instructions, and context shows that defense counsel
opened the door to the otherwise objectionable question, we most likely would have
not found prejudice and most likely would have rejected this claim on direct appeal.
Therefore, Baynum is not entitled to relief on this claim because he has failed to
show prejudice, at least as to the charges that we have considered in connection with
this claim.
IV. CONCLUSION
Baynum has shown that the Superior Court erred when it failed to find
prejudice despite trial counsel’s failure to request a justifiable lesser-included-
offense instruction. Accordingly, we AFFIRM in part, REVERSE in part, and
REMAND for a new trial. In particular, we reverse the Superior Court’s denial of
postconviction relief as to the third-degree assault and first-degree burglary
convictions, which are hereby VACATED. We affirm the Superior Court’s denial
of postconviction relief as to the remainder of the convictions.
21