Baynum v. State, 211 A.3d 1075

In Oct. 2013 Baynum entered his estranged wife’s home, assaulted Dakota Holdren and Manisha, and was later arrested; he was indicted on multiple counts including first-degree burglary and third-degree assault.
At trial the jury convicted Baynum of first-degree burglary, third-degree assault (against Holdren), offensive touching (against Manisha), and related lesser-included offenses; Superior Court declared him a habitual offender and sentenced him to 17 years.
Baynum filed a Rule 61 postconviction motion asserting ineffective assistance of trial counsel for failing to request an instruction that offensive touching was a lesser-included offense of third-degree assault, and ineffective assistance of appellate counsel for not appealing the trial court’s denial of a mistrial after a detective testified "he did it."
The Superior Court denied relief; Baynum appealed. The State conceded that the offensive-touching instruction should have been given if requested.
The Delaware Supreme Court held trial counsel’s failure to request the lesser-included instruction was objectively unreasonable and prejudicial (requiring vacatur and remand), but rejected the ineffective-assistance-of-appellate-counsel claim about the detective’s testimony because the error was not prejudicial in context.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial counsel ineffective for not requesting offensive-touching as a lesser-included offense of 3rd-degree assault	Failure to request instruction deprived Baynum of a reasonable alternative verdict (offensive touching) and could have led to acquittal on 3rd-degree assault and reduction of burglary to 2nd-degree	State conceded instruction entitlement but argued no prejudice because jury convicted of 1st-degree burglary and sentencing would not change	Court: Performance deficient and prejudice shown; vacated 3rd-degree assault and 1st-degree burglary convictions and remanded for new trial on those counts
Appellate counsel ineffective for not appealing denial of mistrial after detective’s opinion testimony (“he did it”)	Appellate counsel should have raised prosecutorial misconduct on appeal; the testimony was improper and warranted reversal	State: Even if misconduct occurred, error was cured by curative instructions, the case was not close, and any error was harmless under Hughes factors	Court: No reasonable probability of a different appellate outcome; affirmed denial of relief on remaining convictions

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: performance and prejudice)
White v. State, 173 A.3d 78 (Del. 2017) (failure to give lesser-included instruction can warrant postconviction relief when a reasonable jury could convict of the lesser)
Weber v. State, 971 A.2d 135 (Del. 2009) (standards for lesser-included-offense instructions and harmless-error discussion)
Baker v. State, 906 A.2d 139 (Del. 2006) (Hughes test for evaluating prosecutorial misconduct: closeness, centrality, mitigating steps)
Harrington v. Richter, 562 U.S. 86 (2011) (standard for evaluating prejudice under Strickland)