           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
