State v. Morris

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. No.: 1702013025 & 1702012586
)
ANTHONY E. MORRIS, )
)
Defendant. )
)

March 31, 2022

Upon Petitioner’s Motion for Postconviction Relief
GRANTED.

MEMORANDUM OPINION

Casey L. Ewart, Deputy Attorney General, Department of Justice, Georgetown,
Delaware. Attorney for the State.

Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste, LLC.,
Wilmington, Delaware. Attorney for the Petitioner.

Robinson, J.
 I. INTRODUCTION

Anthony E. Morris (“Morris”) filed an Amended Motion for Postconviction

Relief (“Motion”) pursuant to Superior Court Criminal Rule 61(a)(1) (“Rule 61”)

challenging his conviction after a jury trial in Superior Court. His Motion raises one

claim: that trial counsel (“Counsel”) was ineffective for failing to request that the

jury instructions include lesser-included offenses for the charge of Home Invasion.

I find that Counsel’s failure to request the instruction was objectively unreasonable

and caused prejudice to Morris under Strickland v. Washington.1 The thirteen

remaining convictions stand, as Morris has not established ineffective assistance of

counsel or prejudice for any of those convictions. My reasoning follows.

II. FACTUAL AND PROCEDURAL BACKGROUND

Morris’s charges stem from three separate incidents. The first incident

occurred on February 18, 2017. Seaford Police responded to a motel to investigate a

domestic incident occurring in the parking lot.2 As the officer pulled up, he saw

Morris standing at the open driver’s side door of a car and saw Jennifer Middleton

(“Middleton”) in the driver’s seat with her legs pointed out of the vehicle. According

to the officer, “Morris appeared to be standing in between her legs so that she

1
Strickland v. Washington, 466 U.S. 668 (1984).
2
These facts have largely been taken from Supreme Court’s decision on Morris’s appeal. Morris
v. State, 210 A.3d 724 (Del. 2019).
1
couldn’t get out.”3 As the officer approached, Morris looked at the officer, looked

back at Middleton, and then struck her in the face with his open hand. The officer

immediately pulled Morris off Middleton and placed him under arrest. Middleton

testified that prior to the arrival of officers, Morris shattered one of the windows of

her new car, tore up her cash, and punched her face multiple times. The injuries from

this altercation left Middleton’s lips bleeding and swollen, and her left eye swollen.

The police arrested Morris and charged him with Assault Third Degree,

Kidnapping First Degree, misdemeanor Theft, and misdemeanor Criminal Mischief.

A Justice of the Peace Court magistrate arraigned Morris and imposed unsecured

bail with a condition that Morris have no contact with Middleton. Morris was

released from the Seaford Police Department at 12:14 p.m. after the no-contact order

was explained to him and he indicated he understood it. An officer called Middleton,

who had returned to her apartment in Laurel, and informed her of Morris’s release

and the no-contact order that was now in place.

The second incident occurred shortly thereafter. According to Middleton,

Morris went to Middleton’s apartment and began kicking her front door and

demanding to be let inside. Middleton did not want him in her apartment, but she

also did not want him to kick in her door. She testified she was concerned with the

noise and afraid someone might report the incident to her landlord, so she opened

3
App. to Pet’r. Am. Mot. for Postconviction Relief, D.I. 142, at A110.
2
the door. Morris entered her apartment, accused her of getting him in trouble, and

started punching her face. Middleton testified that she “tried to run upstairs so [she]

could lock the door,”4 and she attempted to block his strikes to her face. Middleton

testified that Morris choked her with his hands so she could not breath, although she

could not remember when during the altercation this choking occurred.5 Middleton

said that she tried to get away but fell over a loveseat and that Morris then grabbed

her and threw her to the couch. She testified that she was kicking Morris and

attempting to push him off. She said that Morris then took off her underwear and

pulled down his pants. She repeatedly told him to stop. She tried to get up, but he

was on top of her and held her down. He then began having sexual intercourse with

her, while she continued telling him to stop. He eventually stopped, and she got up

and ran upstairs to the bathroom, locked the door, and took a bath. Morris left her

apartment. Middleton told the jury that she was left with bruises all over her arms,

an even more swollen left eye, and a swollen lip. Middleton also told the jury that

she believed Morris kept his shoes on throughout the entire encounter—the

relevance of which will be explained later.6

After her bath, Middleton called the police. Police officers arrived and

Middleton was taken by ambulance to a hospital. At the hospital, Nurse Rachael

4
Id. at A172.
5
Id. at A178.
6
Id. at A194.
3
Cartwright (“Cartwright”) conducted a forensic examination. She photographed

Middleton’s injuries and conducted a vaginal examination where she observed white

fluid consistent with semen. Detective Christopher Story (“Story”), the chief

investigating officer, went to Middleton’s apartment to take photographs of the scene

at approximately 7:45 p.m. that same day. For the incidents at Middleton’s

apartment, Morris was charged with Home Invasion, Rape First Degree,

Strangulation, Assault Second Degree, and two counts of Non-Compliance with

Bond.

While Morris was incarcerated awaiting trial, he made various attempts to

contact Morris. These attempts were the basis of the third set of charges: four counts

of Non-Compliance with Bond, two counts of Act of Intimidation, and Conspiracy

Second Degree.

Morris’s trial took seven days, beginning April 23 and ending May 3, 2018.

At the conclusion of the State’s case-in-chief, the Court dismissed the charge of

Kidnapping, finding insufficient independent evidence to support that charge.7 The

Court also reduced the charge of Assault Second Degree related to the incident at

Middleton’s apartment, to Assault Third Degree. Morris presented no witnesses.

At the trial’s prayer conference, Counsel did not request any lesser-included

offense instructions for the charge of Home Invasion. When the Court asked about

7
Id. at A20.
4
such instructions, Counsel responded, “I have none on the home invasion.”8 Counsel

did, however, request a lesser-included offense instruction of Rape Second Degree

on the charge of Rape First Degree. The Court denied the request, ruling that the

evidence and “posture of the case” were insufficient to establish a rational basis for

a lesser-included offense of Rape Second Degree. Counsel did not argue for any

other lesser-included offenses. The Court included an alibi instruction as part of jury

instructions.

In closing arguments, Counsel asserted several arguments. She argued that:

(1) there was no evidence of a violent crime happening in the living room, (2) there

were no dents in the door, and (3) the neighbors did not see or hear anything. Counsel

argued the rape never occurred, relying on testimony from Cartwright, the forensic

nurse, that Middleton did not have any injuries in her pelvic region. Lastly, Counsel

argued that Middleton was using these accusations to get back at Morris, as,

Middleton admitted, she had done in the past.

The jury acquitted Morris of Strangulation and could not reach a verdict on

the charge of Rape First Degree.9 The jury found Morris guilty of all the other

offenses, including Home Invasion.

8
Id. at A394.
9
The State later entered a Nolle Prosequi on this charge. However, it warned Morris that if any of
his convictions were overturned on appeal or through post-conviction relief, it would retry him on
this charge. Prior to issuance of this decision, I asked post-conviction counsel to confirm with
Morris that he was willing to accept this risk if he proceeded with post-conviction relief. Post-
5
 This Court sentenced Morris to twelve years of incarceration—ten years of

which was on the charge of Home Invasion—followed by decreasing levels of

supervision.

Morris appealed his convictions and sentence to the Delaware Supreme Court,

which affirmed his convictions and sentence in May of 2019.10

Morris filed a pro se motion for postconviction relief and a motion for the

appointment of counsel on August 29, 2019. This Court appointed postconviction

counsel who filed an Amended Motion for Postconviction Relief on April 9, 2021.

Counsel submitted an affidavit regarding Morris’s Motion. Counsel asserts in

the affidavit that it was an oversight to not request the lesser-included jury

instructions: “I did not make a conscious, thoughtful decision not to request jury

instruction on lesser included charges because I never even considered them. It was

an oversight and was never discussed with Mr. Morris.”11 Later, in an email to

postconviction counsel, Counsel also stated: “I never looked at it as an all or nothing

proposition.”12

III. PARTIES’ CONTENTIONS

conviction counsel confirmed that Morris wanted to proceed with this Motion knowing that if he
was successful, the State intended to retry him for Rape First Degree.
10
Morris v. State, 210 A.3d 724 (Del. 2019).
11
Trial Counsel’s Aff., D.I. 143, ¶ 3.
12
Pet’r. Ex. D., D.I. 148.
6
 Morris’s petition presents a single claim: that Counsel was ineffective for

failing to request lesser-included offense instructions on the charge of Home

Invasion,13 specifically Burglary Second Degree,14 Criminal Trespass First Degree,15

and Criminal Trespass Third Degree.16 Morris maintains that lesser-included offense

instructions probably would have changed the outcome of the trial because there was

sufficient evidence to support the lesser charges. Morris argues Counsel’s failure to

request the lesser-included instructions amounts to a violation of his rights under the

Sixth and Fourteenth Amendments of the United States Constitution and his rights

under Article I, § 7 of the Delaware Constitution.

The State argues that Counsel made a strategic decision to not pursue a lesser-

included offense instruction because Counsel was pursuing an “all-or-nothing”

13
11 Del C. § 826A(a) (2017) (REPEALED): “A person is guilty of home invasion when the
person knowingly enters or remains unlawfully in a dwelling with intent to commit a violent felony
therein, and: (1) that dwelling is occupied by another person who is not a participant in the crime;
and (2) when, in effecting entry or when in the dwelling or in immediate flight therefrom, the
person or another participant in the crime engages in the commission of, or attempts to commit,
any of the following felonies: a. Robbery in any degree; b. Assault in the first or second degree; c.
Murder in any degree; d. Manslaughter; e. Rape in any degree; f. Kidnapping in any degree; and
(3) When, in effecting entry or when in the dwelling or in immediate flight therefrom, the person
or another participant in the crime: Is armed with explosives or a deadly weapon; or b. Causes
physical injury to any person who is not a participant in the crime.”
14
11 Del. C. § 825 (Effective: to Sept. 15, 2019): “A person is guilty of burglary in the second
Degree when the person knowingly enters or remains unlawfully: (1) In a dwelling with intent to
commit a crime therein; or (2) In a building and when, in effecting entry or while in the building
or in immediate flight therefrom, the person or another participant in the crime: a. Is armed with
explosives or a deadly weapon; or b. Causes physical injury to any person who is not a participant
in the crime.”
15
11 Del. C. § 823: “A person is guilty of criminal trespass in the first degree when the person
knowingly enters or remains unlawfully in a dwelling . . ..”
16
11 Del. C. § 821: “A person is guilty of criminal trespass in the third degree when the person
knowingly enters or remains unlawfully upon real property.”
7
strategy and a lesser-included offense instruction would have undermined that

strategic decision. The State relies on Allison v. State17 and Robertson v. State18 to

argue that Counsel’s strategy is entitled to deference under the Strickland standard.

Alternatively, the State contends there was no prejudice to Morris because if Counsel

had requested such an instruction, the Court would have not issued it for lack of a

rational basis in the evidence—as it did when it denied Counsel’s request for a lesser-

included offense on the charge of Rape First Degree.

IV. DISCUSSION

A. Preliminary Procedural Considerations

This Court must first determine if there are any procedural bars to a motion

for postconviction relief before considering the merits of the claims.19 Generally

speaking, Rule 61 imposes four procedural bars on such motions: (1) the motion

must be brought within one year after the judgment of conviction is final; (2) any

basis for relief must not have been asserted in prior postconviction relief

proceedings; (3) any basis for relief not asserted in the proceeding below as required

by the court rules is subsequently barred unless defendant can show cause and

17
5 A.3d 629, 2010 WL 3777919 (Del. Sept. 24, 2010) (TABLE).
18
38 A.3d 1255, 2012 WL 628001 (Del. Feb. 27, 2012) (TABLE).
19
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
8
prejudice; and (4) any ground for relief that was formerly adjudicated is thereafter

barred.20

Morris’s postconviction motion is timely and the issues it raises have not been

formerly adjudicated. This is Morris’s first motion under Superior Court Criminal

Rule 61.21 The other procedural bars likewise do not apply because colorable claims

of ineffective assistance of counsel are properly presented by way of a motion for

postconviction relief.22 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.23 Morris’s Motion, therefore, is not

procedurally barred and I may consider it on its merits.

B. Standard of Review

To prevail on a claim of ineffective assistance of counsel, Morris must meet

the two-pronged test established by the United States Supreme Court in Strickland

v. Washington.24 First, Morris must show that his counsel’s representation fell below

20
Super. Ct. Crim. R. 61(i).
21
Defendant’s first motion, having been filed within one year of the Supreme Court’s decision on
direct appeal, is timely. Super. Ct. Crim. R. 61.
22
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).
23
See Green v. State, 238 A.3d 160, 175 (Del. 2020); Malloy v. State, 2011 WL 1135107, at *2
(Del. Mar. 28, 2011); Brodie v. State, 2011 WL 927673, at *1 (Del. Super. Ct. Mar. 17, 2011);
State v. Ross, 2004 WL 2735515, at *2 (Del. Super. Ct. Nov. 22, 2004).
24
466 U.S. 668, 688, 694 (1984).
9
an objective standard of reasonableness.25 Second, that there is a reasonable

probability the outcome of the proceedings would have been different but for

counsel’s unprofessional errors.26 If Morris fails on either of these prongs it will

result in a denial of the motion.

Although not insurmountable, the Strickland standard regarding the first

prong is highly demanding and leads to a strong presumption that the representation

was professionally reasonable.27 A defendant must show that any alleged errors were

so serious that his counsel was not functioning as the “counsel” guaranteed by the

Sixth Amendment.28 Great weight and deference is given to the tactical decisions of

trial counsel.29 The reviewing court must avoid viewing counsel’s conduct through

the distorting lens of hindsight, but instead must examine the conduct from the

counsel’s perspective at that time.30 However, where the record establishes that

counsel’s decision was not a strategic choice, then counsel is not entitled to this

presumption of deference set forth in Strickland.31

Regarding the second prong of Strickland, the reviewing court will not set

aside the conviction if the error, however unreasonable, had no effect on the

25
Id.
26
Id.
27
Flamer v. State, 585 A.2d 736, 753 (Del.1990).
28
State v. Finn, 2012 WL 1980666, at *4 (Del. Super. Ct. May 23, 2012).
29
State v. Miller, 2013 WL 871320, at *4 (Del. Super. Ct. Feb. 26, 2013).
30
State v. Wright, 632 A.2d 288, 295 (Del Super. Ct. 1994).
31
Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011) (citing Strickland, and Thomas v. Varner,
428 F.3d 491, 499–500 (3d Cir. 2005)).
10
outcome.32 To show prejudice, the defendant must establish “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”33 Further, the likelihood of a different result

“must be substantial, not just conceivable.”34 In the context of lesser-included

offense instructions, the reviewing court may find that the second prong of

Strickland has been met where a reasonable jury could acquit on the greater offense

and convict on the lesser offense.35 “[W]here a 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.”36

C. Merits of the Claim

This Court faces two questions: (1) did Counsel’s failure to request a lesser-

included offense instruction fall below an objective standard of reasonableness or

was it part of a valid trial strategy, and (2) if not part of a valid trial strategy, was it

prejudicial?

32
Strickland, 466 U.S. at 692.
33
Id. at 687.
34
Id. at 697.
35
Baynum v. State, 211 A.3d 1075, 1083 (Del. 2019) (see also White v. State, 173 A.3d 78 (Del.
2017)).
36
Id.
11
 1. Did Counsel’s failure to request a lesser-included offense fall below an
objective standard of reasonableness or was it based on valid trial
strategy?

The Delaware Supreme Court recently held that “where a reasonable jury

could find that the defendant was guilty of the lesser crime rather than the greater,

failure to request a lesser-included instruction is prejudicial and warrants

postconviction relief in the form of a new trial.”37 As stated in Brooks, “[c]ounsel

who forgets to request an instruction that could help his client fails to meet an

objective standard of reasonableness.”38 However, where there is a decision by

counsel to not request a lesser-included offense instruction based on a valid trial

strategy—that is, if such a request would be inconsistent with the defense’s valid

strategy and theory of the case—that decision is entitled to deference.39

In certain cases, trial counsel may choose to pursue an “all-or-nothing”

approach and choose not to request a lesser-included offense instruction. This

approach is a valid trial strategy and deserves deference.40 If there is such an all-or-

nothing strategy in this case, then there is no ineffective assistance under Strickland

because Morris’s claim fails the first prong of the Strickland standard.41

37
Id.
38
Id. (citing Brooks v. State, 40 A.3d 346, 354 (Del. 2012)).
39
Allison, 2010 WL 3733919 at *2 (finding counsel was not ineffective for not requesting a lesser-
included offense instruction because it would have been inconsistent with the defendant's actual
innocence defense).
40
Id.
41
Id.
12
 Under the facts of this case, I find there was no valid trial strategy pursued by

Counsel when Counsel failed to request a lesser-included offense instruction for the

charge of Home Invasion. First, Counsel states in her affidavit that her failure to

request a lesser-included offense instruction regarding Home Invasion was not the

result of a conscious, thoughtful decision, but was an “oversight.”42 Counsel

explicitly states in an email to postconviction counsel that it was never “an all or

nothing proposition.”43

Furthermore, during the trial’s prayer conference, Counsel requested a lesser-

included offense instruction as to the charge of Rape First Degree, which was

charged as part of the same incident as the Home Invasion charge. Counsel’s request

for this lesser-included offense instruction shows she was not pursuing an all-or-

nothing strategy. Counsel could not simultaneously advance an all-or-nothing

strategy as to the charge of Home Invasion while requesting a lesser-included

offense instruction for Rape First Degree, one of the bases of the Home Invasion

charge. It matters not that this request was ultimately denied by the Trial Court.44

42
I recognize that Counsel’s statements in her affidavit are not the beginning and end of the inquiry
as to trial strategy, as many attorneys may take a hands-off approach on Rule 61 affidavits to better
protect their former clients’ interests. See, e.g., White v. State, 173 A.3d 78, 81 n. 16 (Del. 2017)
(“We are aware of legitimate concerns on the part of the state and trial judges that trial counsel
sometimes fault their own performance in the Rule 61 context, in situations when their confession
of failing to live up to their duties seems strained and inconsistent with the record.”).
43
Pet’r. Ex. D., D.I. 148.
44
I note that the discussion of the charge of Rape First Degree only came after the discussion for
the charge of Home Invasion. Therefore, Counsel was not dissuaded from requesting a lesser-
13
 In its response to the Motion, the State relies on both Allison and Robertson.

However, the present case is distinguishable. In Allison, trial counsel submitted an

affidavit asserting that the defense’s trial strategy was that the defendant was not at

the scene of the crime, and the Supreme Court found no reason in the trial record to

doubt that claim.45 Similarly, in Robertson, the court made a finding that trial counsel

took an all-or-nothing approach in trying to convince the jury that he was not at the

scene of the crime and that he was not guilty of any offense.46 Here, Counsel did not

adopt that strategy. Instead, Counsel requested lesser-included instruction on the

charge of Rape First Degree. Counsel argued that the evidence from the incident at

the apartment—the lack of dents on the door that Morris was supposedly kicking

violently, the absence of neighbors who heard any commotion, the photographs of

the apartment that showed the apartment was in good order, and the lack of new

injuries—was not consistent with Middleton’s testimony. Accordingly, I find that

Counsel’s performance was not consistent with her trial strategy and fell below an

objective standard of reasonableness.

2. Was Morris prejudiced?

included offense instruction for the charge of Home Invasion due to the trial court’s ruling on the
request on the charge of Rape First Degree as that discussion had already taken place.
45
Allison, 2010 WL 3733919, at *2.
46
Robertson, 2012 WL 628001, at *3.
14
 The second prong of Strickland requires counsel’s failure to be prejudicial.

To satisfy Strickland’s prejudice prong, there must be a “reasonable probability” of

a different outcome.47 If there is evidence that would permit a rational jury to convict

a defendant of a lesser-included offense and acquit him of the greater offense, a

lesser-included offense instruction is required as a due process protection.48 In the

present matter, an acquittal of the charge of Home Invasion and a finding of guilt to

a lesser offense would have significantly reduced the period of incarceration Morris

faced. The charge of Home Invasion—which no longer exists—required in part that

the person unlawfully entered a dwelling with the intent to commit an enumerated

violent felony.49 Morris argues there are three possible lesser-included offenses of

Home Invasion under the facts of his case: Criminal Trespass Third Degree, which

requires a person to remain unlawfully on real property;50 Criminal Trespass First

Degree, which requires a person to unlawfully enter a dwelling;51 and Burglary

Second Degree, which requires a person to unlawfully enter a dwelling with the

intent to commit a crime therein.52

In determining whether Morris was entitled to an instruction on Burglary

Second Degree, Criminal Trespass First Degree, or Criminal Trespass Third Degree,

47
Harrington v. Richter, 562 U.S. 86, 112 (2011).
48
Beck v. Alabama, 447 U.S. 625, 635-638 (1980).
49
11 Del. C. § 826(A) (2017) (REPEALED).
50
11 Del. C. § 821.
51
11 Del. C. § 823.
52
11 Del. C. § 825.
15
I must determine whether the record in this case provides a rational basis for

acquitting Morris of Home Invasion and convicting him of one of the lesser-included

offenses. At the outset of my analysis, I note that the jury’s verdicts indicate that the

jurors had doubts about what transpired at Middleton’s apartment in Laurel, despite

Middleton’s testimony. Although the jury found Morris guilty of Home Invasion,

Assault Third Degree, and two counts of Non-Compliance with Bond related to the

incident at the apartment, it found him not guilty of Strangulation. More importantly,

the jury could not agree upon a verdict on the charge of Rape First Degree. Taken

together, these varying outcomes suggest that the jury believed Morris was present

at Middleton’s apartment but were not convinced beyond a reasonable doubt about

the severity of Morris’s acts at or inside the apartment.

After reviewing the evidence, I find that the jury could have convicted Morris

of one of the lesser-included offenses of Home Invasion. The jury could have found

that Morris entered or remained unlawfully in Middleton’s apartment with the intent

to commit a crime other than one of the specific felonies enumerated in the Home

Invasion statute—which it did when it found Morris guilty of Assault Third Degree.

In this scenario, if it had the option, the jury could have returned a verdict of guilty

of Burglary Second Degree.53 The only charge Morris faced that was sufficient to

53
One of the elements of the Home Invasion charge in the Indictment was that Morris “committed
or attempted to commit the felony of Rape.” App. To Pet’r. Am. Mot. for Postconviction Relief,
at A31. On direct appeal, the Delaware Supreme Court determined that any inconsistency in these
16
sustain a conviction of Home Invasion was the charge of Rape First Degree. Counsel

elicited evidence that could lead a rational jury to acquit on the charges of Rape First

Degree, or an Attempted Rape First Degree. Officer Cannon and Officer Story both

testified there were no muddy footprints in the room, despite the muddy footprint on

the front door and Middleton’s testimony that Morris was wearing his shoes when

he accosted her in her apartment. There was additional testimony about a lack of

disturbance in the apartment, while Middleton testified a violent crime occurred

there. Additionally, Nurse Cartwright testified that Middleton had no injury in her

pelvic region. Counsel also elicited testimony that Middleton did not have injuries

beyond what was observed after the Seaford incident, even though she claimed

Morris assaulted her at her apartment. I find this evidence could have been

considered by a rational jury to acquit Morris of the charge of Home Invasion and

convict him on the lesser-included offense of Burglary Second Degree.

There was also evidence supporting an acquittal of Home Invasion and a

conviction of Criminal Trespass First or Third Degree. To acquit Morris of Home

Invasion and convict him of Criminal Trespass First Degree, the jury could have

found that Morris entered or remained unlawfully inside Middleton’s apartment.

This finding could have been supported by the lack of disturbance in the apartment.

verdicts—i.e. failure to convict him of Rape First Degree, while finding him guilty of Home
Invasion—could be ascribed to jury lenity. Morris, 2019 WL 2123563, at *4 (Del. 2019).
17
There is also evidence that would support a conviction of Criminal Trespass Third

Degree. To convict Morris of this charge, the jury could have concluded that Morris

went to Middleton’s apartment but did not enter it and only remained unlawfully.

The jury could have reached this conclusion because although there was a muddy

footprint on the door, the officer did not observe mud inside the apartment.

This case is similar to Baynum v. State.54 In Baynum, trial counsel admitted

that although he had asked for lesser-included instructions on other charges, he had

forgotten to make the request for an instruction on the charge of Offensive Touching

as a lesser-included offense of Assault Third. The Supreme Court agreed with the

trial court’s postconviction assessment that the jury “might have found Baynum

guilty of a crime it might otherwise have found him not guilty had it been presented

with another option.”55 As to the prejudice prong, however, the trial court in Baynum

found there was no prejudice because the jury found Baynum guilty of First Degree

Burglary and not the lesser-included offense of Second Degree Burglary, so it was

unlikely the jury would have found him guilty of the lesser-offense of Assault

Third.56 The Supreme Court disagreed. It concluded that if the jury had found

Baynum guilty of Offensive Touching instead of Assault Third Degree, it was

54
211 A.3d 1075, 1083 (Del. 2019).
55
Id. at 1084.
56
The trial court also found no prejudice because Baynum could not prove that he would have
received a lesser sentence, but the Supreme Court said it was irrelevant whether or not Baynum
would have received a lesser sentence.
18
logical that the jury would have availed itself of the option to convict him of Second

Degree Burglary instead of First Degree Burglary, which carries a much less-severe

sentence. Here, unlike in Baynum, the jury hung on the charge of Rape First Degree

and acquitted Morris of Strangulation, acts which strongly suggest that it did not find

the State’s evidence entirely convincing. I find there was a reasonable probability

the jury would have found Morris guilty of lesser crimes than Home Invasion if

given the opportunity. As the Delaware Supreme Court noted in Baynum, if “there

is at least a reasonable probability of a different sentence . . . that is all Strickland

requires to show prejudice.”57 Therefore, Counsel’s failure to request lesser-included

instructions on the charge of Home Invasion resulted in prejudice to Morris because

the jury could have found him guilty of offenses that carried significantly less

incarceration.

V. CONCLUSION

For the aforementioned reasons, I find that Morris has met his burden under

both prongs of the Strickland standard regarding the conviction of Home Invasion.

Therefore, I grant Morris’s 61 Motion for Postconviction Relief for that charge.

57
Baynum, at 1085.
19