IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

Cr.ID.N0.1310015013A

STEVEN BAYNUM,

Defendant.

Submitted: March 2, 2018
Decided: April 16, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

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.

MAYER, Commissioner

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.
BACKGROUND AND PROCEDURAL HISTORY

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.l 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

 

l The facts set forth herein were taken from the Supreme Court’s decision affirming
the conviction. See Baynum v. State, 133 A.3d 963 (Del. 2016).

2 The Supreme Court’s appellate decision summarizes some of Ms. Baynum’s
inconsistent statements about the events in question.

2

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 2(), 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.

 

3 Although the witnesses testified Defendant brandished a knife and held a
decorative sword, Defendant was not convicted of a weapons charge.

4 See D.I. #s 52, 54. Defendant was declared a habitual offender pursuant to ll
D_el. Q. §4214(a) based upon previous convictions including Attempted Rape Fourth
Degree in 2000, Assault Second Degree in 2004, and Failure to Register as a SeX
Offender in 2008.

5 The minimum mandatory sentence was l5 years and the State requested 25 years.
Defendant also received 4 years and 3 months of Level 5 time for the other charges,
suspended for decreasing levels of supervision.

3

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,
2()17 (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
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
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

 

6 See D.I. #s 83-85, 87, 90, 91, 97-101.

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

 

7 Trial Tr. Oct. 30, 2014 p. 68-71.
8 Trial Tr. Oct. 30, 2014 p. 71.

9 see D.I. # 97 at p. 3; 11 ge_l. g §825(3)(1).
5

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.lO 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.ll With respect to Appellate

 

10 See Affidavit of Response of Ross A. Flockerzie Pursuant to Superior Court
Criminal Rule 61(g)(2) [D.I. # 87] and Affidavit of Response of Santino Ceccotti
Pursuant to Superior Court Criminal Rule 61(g)(2) [D.I. # 101].

" See Evidentiary Hearing Transcript of September 21, 2017, attached as Exhibit
A to D.I. # 97, at pp. 15, 18-20, 26-27 (hereinafter “Evid. Hrg. Tr. at __”).

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 considered12 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
III. APPLICABLE LAW

The Court must first determine whether there are any procedural bars to the
motion before considering the merits of the claims.'5 This is Defendant’s first

motion under Superior Court Criminal Rule 61 and it was timely filed.16 The other

 

'2 Evid. Hrg. Tr. at pp. 36-38.

'3 Evid. Hrg. Tr. at p. 41.

14 Evid. Hrg. Tr. at pp. 43-44. Appellate Counsel testified that he did not remember
“even the issue crossing my mind” and he did not have any notes about the issue.
Ia’. at 46.

'5 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

'6 Defendant’s first motion, having been filed within one year of the Supreme
Court’s Mandate on direct appeal, is timely. Super. Ct. Crim. R. 61(m)(2) and
Super. Ct. Crim. R. 61(i)(1).

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

 

17 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Ct. Aug. 25, 2016).

18 See Malloy v. State, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011); Brodl`e v.
State, 2011 WL 927673, at *l (Del. Super. Ct. Mar. 17, 2011); State v. Ross, 2004
WL 2735515, at *2 (Del. Super. Ct. Nov. 22, 2004).

19 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).

20 State v. Wright, 653 A.2d 288, 295 (Del. Super. Ct. 1994).

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

 

21 State v. Fz`nn, 2012 WL 1980566, at *4 (Del. Super. Ct. May 23, 2012).

22 Ia'., at *4 (holding defense counsel provided active and capable advocacy when
evidence against Defendant was overwhelming) (citing Harrington v. Richter, 131
S. Ct. 770, 787-792 (2011)).

23 State v. Mz'ller, 2013 WL 871320, at *4 (Del. Super. Ct. Feb. 26, 2013).

24 Strickland, 466 U.S. at 687-88, 694; Hitchens v. State, 757 A.2d 1278 (Del. 2000).
25 State v. Wright, 653 A.2d at 293-94 (citations omitted).

26 Breakl'ron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011), citing Strz`ckland, and
Thomas v. Varner, 428 F.3d 491 , 499-500 (3d Cir. 2005).

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.

IV. THE LESSER INCLUDED OFFENSE INSTRUCTION

“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

 

27 Miller v. State, 893 A.2d 93 7, 948 (Del. 2006) (internal citations omitted); Dickens
v. State, 2010 WL 2889501, at *2 (Del. July 23, 2010).

28 Del. Code. Ann. Titl. 11, § 206(b)(1) 2015. See also Del. Super. Ct. Crim. R.
31(c) (“Conviction of Included Offense. The defendant may be found guilty of an
offense included in the offense charged in accordance with 11 DLI. Q. § 206”); Wara’
v. State, 575 A.2d 1156, 1158 (Del. 1990) (“A defendant may be convicted of a
crime for which he has not been indicted if all of the elements of that crime are
included in the definition of the crime with which he has been charged.”).

 

2911D_el.g.§611.
10

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 D_el. Q.
§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

 

30 See ll D_el. Q. §222.

3' 11D_el.g.§601.

11

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

 

32 Trial Counsel moved for a judgment of acquittal as to Assault Third Degree and
argued the alleged injury was insufficient to satisfy the elements of the statute. See
Trial Tr. Oct. 30, 2014 pp. 68-71.

12

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 foensive 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

 

33 Evid. Hrg. Tr. at pp. 29-30, 31-32. Trial Counsel also acknowledged at the
hearing that he argued in closing that Holdren was not injured, that there was no
blood on the sheets, and it is possible the events did not happen as set forth by the
witnesses. la’. at pp. 32-33.

13

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

 

34 State’s Response at D.I. # 90, p. 7. The courts have consistently held that
Delaware is a “party autonomy jurisdiction;” meaning the trial court will not
interfere in the litigation strategy of the parties and must withhold charging on a
particular lesser-included offense unless requested by a party. State v. Coverdale,
2018 WL 259775, at *3-4 (Del. Super. Ct. Jan. 2, 2018), citing Chao v. State, 604
A.2d 1351, 1358 n. 4 (Del. 1992) (citing Walker v. United States, 418 F.2d 1116,
1119 (D.C. Cir. 1969) and Hagans v. State, 559 A.2d 792, 804 (Md. 1989)).

35 Breakl`ron v. Horn, 642 F.3d 126, 138-139 (3d Cir. 2011), citing Beck v. Alabama,
447 U.S. 625, 634 (1980), and quoting Keeble v. Um'tea’ States, 412 U.S. 205, 212-
13 (1973) (“[A] defendant is entitled to a lesser offense instruction in this context or
any other - precisely because he should not be exposed to the substantial risk that
the jury’s practice will diverge from the theory. Where one of the elements of the
offenses 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.”).

14

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, l 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. lt is not possible for the courts to delve into the minds of the jurors as to

 

36 State v. Covera'ale, 2018 WL 259775, at * l l.

37 Neal v. State, 80 A.3d 935, 945 (Del. 2013) (citing Brooks v. State, 40 A.3d 364,
354 (Del. 2012).

38 Capano v. State, 781 A.2d 556, 629 (Del. 2001), citing Mz`ller v. State, 426 A.2d
842 (Del. 1981) (holding defendant’s exculpatory defense did not preclude a charge
on arson in the second degree), Webb v. State, 663 A.2d 452, 462 (Del. 1995)
(finding the standard applies even when the defendant denies any involvement in the
charged offense).

15

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.4l 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

 

39 Trial Tr. Oct. 30, 2014 pp. 47-48.

40 Trial Tr. Oct. 29, 2014 pp. 134-136.

41 Trial Tr. Oct. 28, 2014 pp.145, 164.

42 Trial Tr. Oct. 28, 2014 pp. 164-166, 217-218.
43 Trial Tr. Oct. 29, 2014 pp. 209-212.

44 Trial Tr. Oct. 29, 2014 pp. 210-212 and Exhibit 22 (identified as “Dakota
Holdren lip injury”).

16

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

 

45 Trial Tr. Oct. 29, 2014 pp. 104-105.
40 Trial Tr. Oct. 30, 2014 pp. 68-71.

47 For example, the jury did not believe Ms. Baynum and Mr. Holdren’s testimony
regarding the alleged sword that was used by the Defendant and found him not guilty
of the Possession of a Deadly Weapon charge.

17

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

 

48 See 11 _D_el. Q. §4214, et. seq. and 11 Qe_l. Q. Sections 825, 826.
49 Stl”icklana', 466 U.S. at 693.

50 Id. at 695.

18

been offered Burglary Second Degree - this reasoning is not persuasive.51 ln 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.

l 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

 

51 Cf White v. State, 173 A.3d 78 (Del. Oct. 17, 2017) (reversing decision denying
postconviction relief because defendant demonstrated prejudice by showing that
there was a reasonable probability that had the jury received a lesser included offense
instruction, the defendant would have been convicted of a misdemeanor instead of a
felony).

52 Hara’en v. State, 2018 WL 716854, at *15 (Del. Feb. 6, 2018), re’hrg en banc
denied Mar. 1, 2018, quoting Taylor v. State, 32 A.3d 374, 386 (Del. 2011). The
dissent in Hara’en (at p. 3) also recognized that the sentencing judge was in “the best
position to know whether it was reasonably probable that [he] would have given
[defendant] a different sentence.”

53 Sentencing Tr. at p. 14.

19

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.

ln 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

 

54 Sentencing Tr. at pp. 16-19.

55 Sentencing Tr. at pp. 23-27.

56 Sentencing Tr. at pp. 39-40.

57 Sentencing Tr. at p. 40.

20

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, l 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, l 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.
V. THE OPINION TESTIMONY

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. l 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. ln my opinion?

 

58 Sentencing Tr. at p. 44.

21

Q. l’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 questions.59

The State then immediately advanced with re-direct examination as follows:

Q. Detective Burse, you said anything is possible?

A. Yes.

Q. Is it possible that Mr. Flockerzie was actually the
suspect in this case?

A. Anything is possible.

Q. Right. Does the evidence in this case and your
investigation suggest that this incident happened as
Manisha Baynum and Dakota Holdren said it did?

A. Yes.80

The State then proceeded to explore other topics but returned to this line of
questioning before concluding re-direct by asking:

Q. And, I guess, Detective, the last question l 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.61

Mr. Flockerzie then promptly requested a sidebar conference and objected to the last

question and answer because it “directly called for the officer to, essentially, cast his

 

59 Trial Tr. oct. 29, 2014 pp. 233-234 at D.i. # 62.
80 Trial Tr. Oct. 29, 2014 p. 234.

61 Trial Tr. Oct. 29, 2014 p. 238.

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vote as to whether my client is guilty or not guilty and that’s not his role here.”62

The State argued that the defense had “open[ed] the door.” The objection was
overruled and the sidebar conference concluded.63 Due to the late hour, the Court
elected not to start another witness but to finish for the day. However, after some
discussion, the Court noted “I am going to think about the issue overnight, the last
objection, but I _ I’m not saying that I’m going to _ l just want to look at one thing
that l just thought about, but if we have to, that will - he’ll still be available for cross-
examination.”64

When trial resumed the following morning, Mr. Flockerzie again raised the
issue of the detective’s testimony. Mr. Flockerzie had conferred with the State and
they were in agreement that the question was not appropriate.65 The concern was
the remedy as “[t]he officer opined as to [Defendant’s] guilt and it was the last

question the jury heard. lt is something that the jurors individually have been able

to think about overnight into this morning and it was inappropriate.”66 Mr.

 

62 Trial Tr. Oct. 29, 2014 pp. 238-239.

63 Trial Tr. Oct. 29, 2014 p. 239.

64 See Trial Tr. Oct. 29, 2014 pp. 240-242.

65 Trial Tr. Oct. 30, 2014 pp. 4-5 at D.I. # 63.

66 Trial Tr. Oct. 30, 2014 p. 5.

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Flockerzie then requested dismissal of the case, or in the alternative, to declare a
mistrial, arguing a curative instruction was insufficient because “[t]he officer has
opined as to the ultimate issue. The jury cannot unhear that and there is some
pressure that they would need to convict because a police officer, who did all this
investigation is the chief investigating officer, believes my client is guilty, therefore,
he must be.”67

The State’s counsel repeatedly conceded that the last question “crossed the
line a bit” but was a reaction to what she perceived as improper questioning from
the defense. Despite this, the State argued that a mistrial would be an extraordinary
remedy for what was considered a “small issue,” the case did not “turn on his
testimony,” and that a curative instruction that the offending question/answer would
be stricken was the proper remedy.68

The Court held that both lines of questioning asked for an opinion and that the
remedy would be to instruct the jury that Detective Burse’s opinion about

possibilities and probabilities is irrelevant and should be disregarded.69 The Court

specifically noted that “[t]his is the first opportunity to address this. lt could have

 

67 Trial Tr. Oct. 30, 2014 pp. 5-6.
68 Trial Tr. Oct. 30, 2014 pp. 6-8.

69 Trial Tr. Oct. 30, 2014 pp. 10-12.

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been addressed last night, but there wasn’t a limiting instruction offered at that point,
nor was there a request for a mistrial at that point. There was an objection to the
testimony.”70 Soon after the jury was brought in, the Court issued a lengthy
instruction that the jury was to disregard the officer’s testimony, that his opinion as
to the guilt or innocence of Mr. Baynum is irrelevant and the jury was not to consider
either part of the testimony.71 When it was time for jury deliberations to commence,
another instruction was provided to the jury.72

The question for this Court is whether appellate counsel’s failure to raise the issue
of the Opinion Testimony and the denial of the motion for dismissal/mistrial, on
appeal, was ineffective assistance of counsel. Delaware law is clear that a witness
may not vouch for the credibility of another witness, and improper vouching
includes testimony that either directly or indirectly provides an opinion on the
veracity of a particular witness.73 However, it is also well settled that a prompt
curative jury instruction will alleviate any prejudice to the defendant because the
jury is presumed to follow the instructions Whether that limiting instruction is

sufficient depends on “( 1) the effectiveness of the limiting instruction; (2) the extent

 

70 Trial Tr. Oct. 30, 2014 p. 12.
71 Trial Tr. Oct. 30, 2014 pp. 17-19.
72 Trial Tr. Oct. 31, 2014 pp. 155-157 at D.l. # 65.

73 Capano v. State, 781 A.2d 556, 595 (Del. 2001) (internal citations omitted).

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to which the State’s case depends on the witness’ testimony; and (3) the extent to
which the credibility of the witness is in dispute.”74 The Supreme Court has
recognized that an instruction will be deemed sufficient to alleviate prejudice to the
defendant unless the prejudice is egregious.75

Appellate counsel need not raise every claim on appeal but can select from among
the possible claims in order to maximize the likelihood of success.76 To establish
ineffective assistance of appellate counsel, Defendant must show that the omitted
nonfriviolous issue was clearly stronger than the issues counsel presented.77
Appellate Counsel only raised one issue on appeal and would not have been

constrained to raise the Opinion Testimony as a second issue. Defendant argues the

 

74 Capano v. State, 781 A.2d at 588-589, 597 (internal citations omitted) (also
holding that the Court must determine whether the evidence, exclusive of the
improper testimony, was sufficient to sustain the conviction).

75 Barnard v. State, 2005 WL 1950191, at *2 (Del. July 22, 2005) (finding trial
judge’s “prompt” sustaining of objection and “immediate” curative instruction to
have addressed any prejudice to defendant). See also Hassan-EI v. State, 911 A.2d
385, 398 (Del. 2006) (finding a limiting or curative instruction can be a sufficient
remedy depending on the strength of the State’s case); Armstrong v. State, 1990 WL
72572, at *2 (Del. May 3, 1990) (police officer made improper statement that was
deemed cured by trial court’s immediate instruction to the jury and because it is
presumed that the jury obeyed the instruction).

76 Neol v. State, 80 A.3d at 946, quoting Smith v. Robbz`ns, 528 U.S. 259, 288 (2000).

77 Ia’.

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issue that was raised on appeal -the Lolly instruction78 - had already been addressed
by the Delaware Supreme Court and Trial Counsel’s cross-examination of the
witnesses regarding the unrecorded time made this issue less likely to be successful
on appeal. Thus, there was a second non-frivilous issue, i.e. the Opinion
Testimony/mistrial, that was stronger and the Supreme Court has found reversible
error as a result of prosecutorial misconduct79 that could not be remedied by a
curative instruction.

l find that Appellate Counsel erred in not raising this issue on appeal, however,
Defendant failed to demonstrate how the outcome of the appeal would have been
different had the argument been raised or sufficient prejudice to warrant relief.80 In

this case, (i) the State solicited the opinion of the Chief lnvestigating Officer on

 

78 Defendant argued on appeal that the police failed to collect and preserve an
inconsistent statement from Ms. Baynum and the trial court erred in denying his
request for a Lolly instruction. See Lolly v. State, 611 A.2d 956 (Del. 1992).

79 Not only did the prosecutor improperly solicit the detective’s opinion on ultimate
guilt but the questioning vouched for the truthfulness of Ms. Baynum and Holdren’s
testimony, A police officer’s personal belief in the credibility of the witnesses’
statements is not admissible evidence. See Holtzman v. State, 1998 WL 666722, at
*4 (Del. luly 27, 1998) (State should not have introduced officer’s opinion of
claimant’s testimony); Quirz`co v. State, 2004 WL 220328, *4 (Del. Jan. 27, 2004)
(citing Sauno’ers v. State, 602 A.2d 623, 624 (Del. 1984) (recognizing “improper
vouching” when “prosecutor implies that he or she has superior knowledge, beyond
that logically inferable from the evidence, that a witness has testified truthfully.”).

80 See Stone v. State, 690 A.2d 924, 925-926 (Del. 1996) (reviewing standard for
ineffective assistance of appellate counsel claims).

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ultimate guilt and who inherently vouched for the credibility of the complaining
witnesses,81 (ii) there was conflicting testimony and the credibility of the witnesses
was placed at issue; and (iii) the jury believed some but not all of the testimony as
evidenced by the fact that the jury did convict of some lesser included offenses and
acquitted on some charges. Moreover, the State admitted at trial that the questioning
“crossed the line” and conceded error. Appellate Counsel testified that there was no
strategic purpose in failing to raise the issue on appeal.

After reviewing these factors, l find that Defendant could have challenged the
State’s actions on appeal on the basis of prosecutorial misconduct. The Supreme
Court reviews questions of law and constitutional claims de novo.82 ln the context
of prosecutorial misconduct claims, where defense counsel timely objects, the

”83 The harmless error analysis

Supreme Court will review for “harmless error.
includes (1) de novo review of the record as to whether prosecutorial misconduct

occurred; and (2) a determination of whether the conduct prejudicially affected the

 

81 To the extent the State argues that the defense opened the door for this line of
questioning, Delaware has recognized the “invited response” or “invited reply” rule
that two improper arguments or wrongs, “do not make for a right result.”
Brokenbrough v. State, 522 A.2d 851, 858 (1987), citing Lawn v. United States, 355
U.S. 339 (1985), and quoting Uniteo’ States v. Young, 470 U.S. l (1958).

82 Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).

83 Baker v. State, 906 A.2d 139, 148 (Del. 2006).

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defendant’s substantial rights warranting reversal.84 ln making this determination,
the court applies the Hughes three factor test.85 The test requires the Court to review
the closeness of the case, centrality of the issue, and steps taken to mitigate the
prejudice to the defendant.86 lf after applying this test, the court concludes that
consideration of these factors does not weigh in favor of reversal, the court can then
apply the Hunter87 test and consider whether the prosecutor’s statements or
misconduct are repetitive errors that require reversal because they cast doubt on the
integrity of the judicial process.88

Assuming this case was close and the Opinion Testimony was central to the
issues in the case, the Court must then inquire whether the instructions to the jury -
given the next day, as well as at the conclusion of the case - was sufficient to mitigate
any prejudice or cure any misconduct. The trial court denied the mistrial application
and found the instructions appropriate. A trial judge’s ruling on a mistrial

application will only be reversed if it is based on unreasonable or capricious

 

84 Iu'. at 148-149.
85 Io'.

86 See Hughes v. State, 437 A.2d 559, 571, quoting Dyson v. Uniteu’ States, 418
A.2d 127, 132 (D.C. 1980);F10nn01”y v. Stal‘€, 893 A.2d 507, 538 (D€l. 2006).

87 See Hunter v. State, 815 A.2d 730 (Del. 2002).

88 Baker v. State, 906 A.2d at 149, citing Hunter, 815 A.2d at 732.

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grounds.89 Since juries are presumed to follow the trial judge’s instructions, a
prompt curative instruction is presumed to cure error if adequately directed to
disregard any improper statements.90

When faced with prosecutorial misconduct, a close case, little or no physical
evidence, and credibility determinations, the Supreme Court has made it clear that
the lack of a curative instruction is clearly prejudicial and reversal is appropriate to
avoid manifest injustice.91 Here, the instruction was given the very next morning
after the jury reconvened. Defendant argues that the prejudicial testimony having
been given the night before, and being the last thing the jury heard before the
overnight recess, could not be cured by an instruction the next day. Defendant points
the Court to Michaels v. State, 970 A.2d 223, 229 (Del. 2009), where the court found
that the defendant was required to demonstrate how the passage of time unfairly
prejudiced him in the eyes of the jury when the instruction itself was properly
designed to cure any prejudice. Recognizing that the temporal constraints of the trial

schedule alone cannot give rise to a claim of unfair prejudice, the court went on to

 

89 Revel v. State, 956 A.2d 23, 27 (Del. 2008), citing Zimmerman v. State, 628 A.2d
62, 65 (Del. 1993); Chavin v. Cope, 243 A.2d 694, 699 (Del. 1968); Pitts v. White,
109 A.2d 786, 788 (Del. 1954).

90 Revel v. State, 956 A.2d at 27 (intemal citations omitted).

91 Baker v. State, 906 A.2d at 153-154; McCoy v. State, 112 A.3d 239, 260-261 (Del.
2015); Brokenbrough v. State, 522 A.2d 851 (Del. 1987).

30

hold that a weekend recess or two-day delay did not render the trial judge’s curative
instruction inadequate.92

l find that it is more likely than not that the instruction cured any prejudice
resulting from the officer’s testimony. Notably, the jury returned a verdict of not
guilty on three offenses and convicted Defendant of several lesser included offenses.
lf the jury were to have accepted the officer’s opinion in whole, then they would
have simply convicted Defendant of each charge as originally asserted by the State.
However, the jury’s mixed verdict in this case shows that the jury did not accept the
testimony and the State’s arguments as a whole.93 Tuming now to the issue presently
before the Court, the logical conclusion is that although Appellate Counsel erred in

not raising the issue on appeal, the error was not so prejudicial as to likely affect the

 

92 Michaels v. State, 970 A.2d at 229-230, citing Garvey v. State, 873 A.2d 291,
300 (Del. 2005) (holding that where trial judge recessed for day immediately
following improper statement, and then issued curative instruction later the next day,
delay was not so “significant” to render that instruction ineffective in curing
prejudice to the defendant). l disagree with Defendant that Uniteo’ States v. Gullo,
502 F.2d 759, 762 (1974) is directly on point. The court in that matter relied not
only on the delay but also the prosecution’s failure to call a witness as promised
which pressured the defense to produce an unwanted and questionably credible
witness. lt was the combination of circumstances that made the trial
“unsatisfactory.”

93 See e.g., Armstrong v. State, 1990 WL 72572, at *2 (Del. May 3, 1990) (jury
returned not guilty verdict on two offenses showing they considered each charge
separately and not impermissibly influenced by matters they were directed to
disregard).

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outcome of the case, Although this issue should have been raised on appeal, when
balanced with the mixed verdict, l conclude that there was a substantial likelihood
that the Supreme Court would have found that the very brief delay was not so

prejudicial to affect the outcome of the proceedings.

F or all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED.

IT IS SO RECOMMENDED.

  
 

"'--___

‘Kat anne L. l\/layE-rr

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