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