State v. Clanton

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. )
)
HERBERT CLANTON, )
) Cr. ID. No. 1411018085
Defendant. )
)
)
)
)
Submitted: October 28, 2021
Decided: January 25, 2022
MEMORANDUM OPINION
The Court has considered the Defendant’s Motion for Postconviction Relief
(the “Motion”) and the relevant proceedings below. For the reasons discussed
below, Defendant Herbert Clanton’s Motion is hereby denied.
BACKGROUND
On direct appeal, the Delaware Supreme Court, in its January 12, 2017
Order,1 made the following findings.
On the morning of November 29, 2014, Clanton accosted the
victim [Nayyirah Thomas], who was his ex-girlfriend, as she was
1
Clanton v. State, 2017 WL 443728 (Del.)
1
leaving her apartment to go to work. He forced her back into the
apartment, where he kept her against her will for several hours. He
slapped the victim and choked her causing her to lose consciousness.
At one point during the ordeal, he slammed the victim up against the
wall causing damage to the wall. He forced her to call her employer to
explain that she would not be reporting to work that day. Two neighbors
heard the victim screaming and begging her assailant not to kill her.
One of the neighbors called the police.
The officer who arrived at the apartment did not hear any noise
coming from inside. He knocked on the door, but Clanton would not
allow the victim to answer. The officer left. In order to escape, the
victim convinced Clanton that she wanted to be with him again, and she
engaged in sexual intercourse with him. Eventually Clanton left the
apartment around 3 PM. The victim ran to a neighbor’s apartment
where she called 911. The jury acquitted Clanton of Rape in the Second
Degree and Home Invasion but convicted him of [Kidnapping in the
Second Degree, Burglary in the Second Degree, and Strangulation]. 2
Clanton was sentenced on May 20, 2016, for the Kidnapping, Burglary, and
Strangulation convictions. Clanton was declared an Habitual Offender pursuant to
2
Id. at *1-2 (emphasis added).
2
11 Del. C. § 4214(a) regarding both the Kidnapping and Burglary convictions. He
was sentenced to 15 years Level 5 incarceration for Kidnapping. He was
sentenced to 8 years of Level 5 incarceration for Burglary. Clanton was sentenced
to Level 5 incarceration for 5 years, suspended for 2 years of Level 3 supervision
for Strangulation. The Supreme Court denied Clanton’s appeal.
Clanton filed a Rule 61 Motion for Postconviction Relief on October 25,
2017. The Motion claimed ineffective assistance of counsel under a variety of
theories. Counsel was appointed. On August 27, 2018, Counsel filed a Motion to
Withdraw as Counsel. Counsel stated that after a thorough review of the record, he
was unable to find any meritorious claims for relief. Clanton filed a memorandum
in opposition to the Motion to Withdraw.
Clanton then filed an Amended Motion. The State filed an Amended
Response. Clanton replied. The Motion was then assigned to the Superior Court
Commissioner pursuant to 10 Del. C. § 512(b) and Superior Court Criminal
Procedure Rule 62.
The Commissioner ordered new Defense Counsel to submit a “focused and
very specific brief that only addresses the Defendant’s arguments that [Counsel]
finds to have merit.” The assigned Commissioner subsequently was appointed as a
Court of Common Pleas Judge. The pending motion reverted to the assigned
Superior Court Judge.
3
Defense counsel argues:
Mr. Clanton is entitled to postconviction relief on the basis that his trial
counsel failed to consider or request that the jury be given instructions
on lesser-included offenses when it was given instructions on the
Kidnapping in the Second Degree and Strangulation charges. There is
a reasonable probability that, had such instructions been provided, the
jury would have convicted Mr. Clanton of the lesser-included charges
based on the evidence presented at trial. As such, Mr. Clanton’s motion
for postconviction relief should be granted and a retrial ordered.
Mr. Clanton’s remaining claims for postconviction relief lack merit for
the reasons set forth above and as noted in the August 2018
Memorandum in Support of Motion to Withdraw as Counsel and the
September 2019 Motion for Postconviction Relief previously filed in
this case.
The Court held an evidentiary hearing on September 28, 2021.
ANALYSIS
Claims
Defendant originally raised six arguments in his Rule 61 Motion: (1) Trial
Counsel failed to request an instruction on the lesser-included offenses of Unlawful
Imprisonment in the 1st Degree and Assault in the 3rd Degree; (2) Counsel failed to
subpoena and secure witnesses and request a continuance; (3) Counsel failed to
investigate the scene of the crime; (4) Counsel failed to investigate, interview and
impeach defense and state witnesses; (5) Counsel failed to consult with the
Defendant prior to trial; and (6) Counsel failed to object to jury instructions,
testimony, and prosecution remarks.
4
Claims Two through Six
Prior to addressing the substantive merits of any claim for postconviction
relief, the Court first must determine whether the defendant has met the procedural
requirements of Superior Court Criminal Rule 61.3 If a procedural bar exists, then
the claim is barred, and the Court should not consider the merits of the
postconviction claim.4
Criminal Rule 61 provides that the motion must be filed within one year
after the conviction becomes final;5 defendant cannot bring repetitive motions; 6
defendant cannot raise any ground for relief not raised in proceedings leading to
the conviction;7 and defendant cannot raise any ground for relief that was formerly
adjudicated prior to the conviction.8 If Defendant is otherwise barred under Rule
61(i)(1), (2), (3), or (4), Rule 61(i)(5) lifts the bars to relief if the Court lacked
jurisdiction or the claim pleads new evidence that creates a strong inference of
innocence.9
Defendant’s appeal was denied on January 12, 2017. His Motion for
Postconviction Relief was filed on October 25, 2017. Therefore, Defendant’s
3
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4
Id.5
Super. Ct. Crim. R. 61(i)(1).
6
Id. 61(i)(2).
7
Id. 61(i)(3).
8
Id. 61(i)(4).
9
Id. 61(i)(5).
5
Motion is timely. Rule 61(i)(2) is inapplicable because this is Defendant’s first
Motion for Postconviction relief.
Rule 61(i)(4) is inapplicable. Defendant was convicted and has not raised
any claims which were previously adjudicated. Rule 61(i)(5) is inapplicable.
Defendant has not shown the Court lacked jurisdiction over any of his claims.
Defendant has not shown any new evidence that would demonstrate he is factually
innocent.
Rule 61(i)(3) bars Claims two through six. Defendant did not introduce the
stated grounds for relief at the time of sentencing or on direct appeal. Defendant
failed to show cause for the default or any specific prejudice. Thus, Defendant’s
claims two through six are procedurally barred under Rule 61.
Lesser-Included Offenses
Defendant’s first claim can be construed as a claim for ineffective assistance
of counsel. This claim is the only claim properly raised in a motion for
postconviction relief. To prevail on this claim, Defendant must establish: (1) that
counsel’s representation fell below an objective standard of reasonableness; and
(2) that there is a “reasonable probability, but for counsel’s unprofessional errors,
the result of the proceeding would a have been different.” 10
10
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
6
“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.”11 “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”12 Although not
insurmountable, the Strickland standard is highly demanding and leads to a strong
presumption that Counsel’s conduct fell within a wide range of reasonable
professional assistance.13
The Court must determine if there is a rational basis supporting a jury
conviction on lesser-included offenses. “[I]n order to give an instruction on a
lesser included offense, the trial court must be satisfied that ‘the evidence
introduced in the case ... support[s] a jury verdict convicting [the] defendant of the
lesser crime rather than the indicted crime.’”14
The charge of Strangulation requires the State to prove that Defendant
“knowingly or intentionally impeded the breathing or circulation of blood of
another person by applying pressure to the throat or neck of the other person.” 15
Assault in the Third Degree is the relevant lesser-included offense. A defendant is
guilty of Assault in the Third Degree when: (1) defendant intentionally or
11
Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019).
12
Id.13
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del.).
14
White v. State, 173 A.3d 78, 83 (Del. 2017)(quoting Baker v. State, 1993 WL 557951, at *6
(Del.)).
15
11 Del. C. § 607.
7
recklessly causes physical injury to another person; or (2) with criminal negligence
defendant causes physical injury to another person by means of a deadly weapon or
a dangerous instrument. 16
The charge of Kidnapping in the Second Degree requires the State to prove
that the defendant unlawfully restrained another person with any of the following
purposes:
(1) To hold the victim for ransom or reward; or (2) To use the victim
as a shield or hostage; or (3) To facilitate the commission of any felony
or flight thereafter; or (4) To inflict physical injury upon the victim, or
to violate or abuse the victim sexually; or (5) To terrorize the victim or
a third person; or (6) To take or entice any child less than 18 years of
age from the custody of the child's parent, guardian or lawful custodian;
and the actor voluntarily releases the victim alive, unharmed and in a
safe place prior to trial.17
Unlawful Imprisonment in the First or Second Degree are the relevant lesser-
included offenses. A defendant is guilty of Unlawful Imprisonment in the First
Degree when defendant knowingly and unlawfully restrains another person under
circumstances which expose that person to the risk of serious physical injury. 18 A
defendant is guilty of Unlawful Imprisonment in the Second Degree when
defendant knowingly and unlawfully restrains another person.19
16
11 Del. C. § 611.
17
11 Del. C. § 783.
18
11 Del. C. § 782.
19
11 Del. C. § 781.
8
Defendant argues there was a reasonable probability a jury would have
convicted Defendant of the lesser-included offenses had the instruction been
provided.
Defendant relies on White v. State20 to argue a reasonable probability of
prejudice. In White, counsel's refusal to request a lesser-included offense
instruction was based on a mistaken understanding of the statute, rather than on
trial strategy.21 White’s Counsel conceded that he failed to consider the gap
between physical injury and death.22 “[T]rial counsel conceded he acted without a
tactical purpose, and there is no plausible tactical reason for failing to request the
instruction. Thus, counsel's performance fell below an objective standard of
reasonableness for purposes of Strickland.”23
Strangulation
The standard for giving a Strangulation lesser-included offense instruction is
whether there is a rational basis supporting the jury’s conviction on the lesser-
included offense(s). The victim testified at trial that she repeatedly pled with the
Defendant, saying: “Don’t choke me.” She further testified that the Defendant
placed his hands on her throat numerous times. Sufficient pressure was applied
20
173 A.3d at 83.
21
Id. at 82.
22
Id. at 81.
23
Id. at 80.
9
that the victim saw “black and blue.” The forensic nurse testified that she found
redness and abrasions around the victim’s neck. The victim later developed two
black eyes. There was no trial evidence or testimony presented in opposition to
these factual statements.
The Court finds that this evidence supports a conviction on the charge of
Strangulation. There was unrefuted evidence that the victim’s breathing was
impeded and that the Defendant acted intentionally when he placed his hands
around her neck and applied pressure sufficient to cause the victim to see black and
blue, and resulting in redness, abrasions, and two black eyes. The reasonable and
logical inference is that Defendant intended to impede her breathing or blood flow.
For there to be a rational basis supporting a jury conviction on the lesser-included
offense of Assault in the Third Degree, the jury would have had to ignore the
uncontradicted evidence that the victim’s breathing and blood flow were impeded.
During the September 28, 2021 evidentiary hearing, Counsel testified and
admitted to being ineffective. However, Counsel also testified that he thought the
State had considerable evidence regarding the Kidnapping and Strangulation
charges. Counsel recognized the strength of the State’s case. He felt the State had
proven the Strangulation, Burglary in the Second Degree, and Kidnapping in the
Second-Degree. Counsel believed the victim to be credible. His strategy was to
focus on acquittals on the remaining charges—Rape and Home Invasion. That
10
decision benefitted Defendant, particularly resulting in acquittal for the serious
charge of Rape in the Second Degree, which carries a substantial minimum
mandatory sentence.
The sexual assault nurse examiner attested at trial that she found redness and
abrasions on the neck of the victim. Counsel believed this testimony, in
conjunction with the victim’s, would lead to a conviction. Counsel informed
Clanton that he thought the victim testified well and that she was not impeached by
cross-examination.
Counsel considered the corroborating evidence of the arriving officer and
neighbors who heard the commotion. Counsel thought the State had proved the
Strangulation and Kidnapping charge beyond a reasonable doubt. Counsel
believes he was not prompted to consider lesser-included offenses.
The Court finds that Counsel’s decision not to request to not request lesser-
included offenses for the Strangulation charge was not objectively unreasonable.
In Beck v. Alabama,24 the United States Supreme Court discussed the policy
underlying lesser-included offense instructions. “Providing the jury with the ‘third
option’ of convicting on a lesser included offense ensures that the jury will accord
the defendant the full benefit of the reasonable doubt standard.”25 Defendant relies
24
447 U.S. 625 (1980).
25
Id. at 634.
11
on Beck in arguing that without the option of a lesser-included offense, there may
be a substantial risk that a jury will deviate from legal theory and not bestow the
full benefit of reasonable doubt in cases where one element of a charge is in
dispute, but think the Defendant is guilty of some crime.
The State counters that the jury would not have convicted if they thought an
element of the charge had not been met. The jury did acquit Defendant of two
offenses, taking into consideration some of the inconsistencies by the victim and
witnesses at trial.
“A person commits the offense of strangulation if the person knowingly or
intentionally impedes the breathing or circulation of the blood of another person by
applying pressure on the throat or neck of the other person.”26 Strangulation
requires that the victim’s breathing or blood circulation to be impeded. 27 It is not
necessary to prove intent to cut off breath completely. The indictment alleges:
“Herbert Clanton, on or about the 29th day of November, 2014, in the County of
New Castle, State of Delaware, did knowingly or intentionally, impede the
breathing or circulation of blood of Nayyirah Thomas by applying pressure on her
throat or neck.”
26
11 Del. C. § 607.
27
11 Del. C. § 607.
12
Defendant argues that the jury could find Defendant intended to apply
pressure to the victim’s throat but did not intend to impede the victim’s breathing
or circulation. Further, Defendant argues the State must prove separate intent for
applying pressure and impeding breathing or circulation. The victim testified she
was screaming. However, Counsel conceded that talking while being suffocated is
plausible.
The Defendant failed to present any authority supporting Defendant’s
argument. The facts support a reasonable inference that Defendant intended to
impede the breathing of the victim by putting his hands around her neck. There is
no other rational interpretation of the facts.
In Stevenson v. United States,28 the Supreme Court of the United States
found:
A judge may be entirely satisfied, from the whole evidence in the case,
that the person doing the killing was actuated by malice; that he was
not in any such passion as to lower the grade of the crime from murder
to manslaughter by reason of any absence of malice; and yet, if there
be any evidence fairly tending to bear upon the issue of manslaughter,
it is the province of the jury to determine from all the evidence what the
condition of mind was, and to say whether the crime was murder or
manslaughter.29
This Court finds no evidence fairly tending to bear upon the issue of a
lesser-included offense. The jury took all evidence into consideration and
28
162 U.S. 313 (1896).
29
Id. at 323.
13
determined Defendant’s state of mind satisfied the charge of Strangulation. The
jury’s findings were affirmed by the Delaware Supreme Court.
Kidnapping
The evidence supports a finding of Kidnapping in the Second Degree.
Defendant forced the victim back into her apartment as she was leaving. The
victim testified that Defendant held her against her will for several hours,
slamming her against the wall and brandishing a knife. This testimony is
corroborated by physical evidence of a hole in the wall, as well as bruises to her
back. Neighbors heard the victim begging for her life. These pleas were
sufficiently credible that one neighbor called the police. While still in the
apartment, the victim was prevented from responding to an investigating police
officer. Upon being released by Defendant, the victim immediately sought
assistance from a neighbor and called 911.
The distinction between Kidnapping and the Unlawful Imprisonment lesser-
included offenses is the purpose of the restraint. Something more than simple
restraint is required for Kidnapping, such as restraint for the purpose of inflicting
physical injury or terrorizing the victim. The evidence of the victim’s physical
injuries and terror were uncontradicted at trial.
A logical inference can be made between the victim’s injuries and
Defendant’s intent. The logical inference—that his intent was to inflict physical
14
injury to the victim and to terrorize her—does not support a rational basis to
instruct for lesser-included offenses.
CONCLUSION
The facts presented to the jury at trial support no rational basis for
instructing on lesser-included offenses. The evidence supports a finding of
Strangulation. It can be reasonably inferred that defendant intended to impede the
breathing or blood circulation of the victim by putting his hands around her neck.
To convict on a lesser-included offense, the jury would have had to ignore the
uncontradicted testimony and corroborating physical evidence. There is no other
rational interpretation of the facts. The evidence also supports a finding of
Kidnapping in the Second Degree. The victim’s physical injuries are unrefuted. A
logical inference can be made between Defendant’s intent to inflict physical injury
and to terrorize, which distinguish Kidnapping from any lesser-included offense.
The question is whether there is a rational basis supporting the jury’s
conviction on the lesser-included offense(s). “In order to give an instruction on a
lesser included offense, the trial court must be satisfied that ‘the evidence
introduced in the case ... support[s] a jury verdict convicting [the] defendant of the
lesser crime rather than the indicted crime.’”30
30
White, 173 A.3d at 83.
15
The evidence was all or nothing. Regarding the Strangulation charge, if the
jury found beyond a reasonable doubt Defendant impeded the breathing or blood
flow of the victim by putting his hands around her neck and did so intentionally, an
instruction for a lesser-included Assault offense was not appropriate. Regarding
the charge of Kidnapping in the Second Degree, if the jury found beyond a
reasonable doubt Defendant intended to inflict physical injury upon the victim or
to terrorize her, an instruction for lesser-included Unlawful Imprisonment offenses
was not appropriate.
THEREFORE, Defendant’s Motion for Postconviction Relief is hereby
DENIED.
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston
16