Clanton v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

HERBERT CLANTON, §
§ No. 39, 2022
Defendant-Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No: 1411018085
STATE OF DELAWARE, §
§
Appellee. §

Submitted: August 10, 2022
Decided: October 20, 2022

Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.

ORDER

On this 20th day of October 2022, it appears to the Court that:

(1) The defendant-appellant, Herbert Clanton (“Clanton”), appeals from

the Superior Court’s denial of his Motion for Postconviction Relief. Clanton was

convicted by a jury of Strangulation, Kidnapping in the Second Degree, and

Burglary in the Second Degree. His convictions were affirmed by this Court on

direct appeal.1 In this appeal, Clanton asserts that his trial counsel provided

ineffective assistance because counsel failed to request a jury instruction on lesser-

included offenses for the Strangulation and Kidnapping charges. For the reasons

1
Clanton v. State, 2017 WL 443728 (Del. Jan. 12, 2017).
that follow, we have concluded that the Superior Court’s judgment should be

affirmed.

(2) The evidence presented by the State at Clanton’s trial reflects the

following version of events: On the morning of November 29, 2014, Clanton

accosted Nayyirah Thomas (“Thomas”), his ex-girlfriend, as she was 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, and she

testified that she lost consciousness and saw “black and blue.”2 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.

(3) 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 p.m. Thomas ran to a neighbor’s

apartment where she called 911.

(4) As previously mentioned, a Superior Court jury found Clanton guilty

2
App. to Opening Br. at A32.

2
of Burglary in the Second Degree, Kidnapping in the Second Degree, and

Strangulation. The jury acquitted Clanton of Home Invasion and Rape in the Second

Degree.

(5) Clanton filed a pro se Rule 61 Motion for Postconviction Relief,

claiming ineffective assistance of counsel under a number of theories. After

reviewing Clanton’s memorandum, his assigned counsel found that there was one

valid claim for relief—trial counsel’s failure to request instructions on lesser-

included offenses for the Strangulation and Kidnapping charges. Clanton argued

that his defense counsel was ineffective because a reasonable jury could have

acquitted him of those two charges and instead found him guilty of Assault in the

Third Degree on the Strangulation charge and Unlawful Imprisonment in the First

or Second Degree on the Kidnapping charge. After briefing and an evidentiary

hearing, in which trial counsel was the only witness, the Superior Court rejected

Clanton’s motion for postconviction relief. This appeal followed.

(6) We review the Superior Court’s denial of a Rule 61 motion for

postconviction relief for abuse of discretion.3 We review legal and constitutional

questions de novo.4

3
Ploof v. State, 75 A.3d 811, 820 (Del. 2013) (en banc).
4
Id.

3
 (7) To prevail on a claim of ineffective assistance of counsel, the defendant

must satisfy the two-prong standard of Strickland v. Washington.5 The defendant

must prove that; (1) his trial counsel’s performance was objectively unreasonable;

and (2) his defense was prejudiced as a result.6 Under the first prong, judicial

scrutiny is “highly deferential.”7 Courts must ignore the “distorting effects of

hindsight” and proceed with a “strong presumption” that counsel’s conduct was

reasonable.8 The Strickland Court explained that “a court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”9

(8) Under the second prong, “[i]t is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the proceeding.”10 In

other words, “not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.”11 The movant “must

make specific allegations of actual prejudice and substantiate them.”12 These

allegations must show “that there is a reasonable probability that, but for counsel’s

5
466 U.S. 668, 687 (1984).
6
Id. at 687-88, 691-92.
7
Id. at 689.
8
Id.
9
Id. at 690.
10
Id. at 693.
11
Strickland, 466 U.S. at 693.
12
Outten v. State, 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State, 671 A.2d
1353, 1356 (Del. 1996) (en banc), cert. denied, 517 U.S. 1249 (1996)).

4
unprofessional errors, the result of the proceeding would have been different.”13 “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”14 “The ‘reasonable probability’ standard is less strict than the ‘more

likely than not’ standard, but it requires more than a showing of a theoretical

possibility that the outcome was affected.”15 In sum, the defendant must prove actual

prejudice.16

(9) Further, Strickland does not require that we evaluate these prongs in

any specific order. As stated by the Court in Strickland, “The object of an

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.”17 Therefore, we will first

evaluate whether defense counsel’s failure to provide lesser included offenses at trial

prejudiced Clanton’s defense.

(10) When defense counsel fails to request lesser-included offenses in the

jury instructions, the defendant will be prejudiced if “a reasonable jury could find

13
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
14
Strickland, 466 U.S. at 694.
15
Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992), cert. denied, 507 U.S. 954 (1993) (citing
Strickland, 466 U.S. at 693-94).
16
Strickland, 466 U.S. at 693 (“[A]ctual ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the defendant affirmatively prove
prejudice.”).
17
Id. at 697.

5
that the defendant was guilty of the lesser crime rather than the greater.”18 Therefore,

the question here is whether there is a reasonable probability that the jury would

have acquitted Clanton on the Strangulation and Kidnapping charges and convicted

him on the lesser offenses. We believe that there is not a rational basis to find that

defense counsel’s performance prejudiced Clanton’s defense.

(11) Under Delaware law, a person commits the crime 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.”19 Therefore, the State must prove three elements: (1) knowing or

intentional action; (2) impeding breathing or blood flow; and (3) application of

pressure to another’s throat or neck. The appropriate lesser offense is the

misdemeanor of Assault in the Third Degree, which occurs where “[t]he person

intentionally or recklessly causes physical injury to another person.”20 Assault Third

Degree requires proof of two elements: (1) intentional or reckless conduct and (2)

causation of physical injury to another. Therefore, the distinguishing elements

between these two offenses are whether Clanton intentionally applied pressure to

Thomas’s neck, which impeded her breathing.

18
Baynum v. State, 211 A.3d 1075, 1083 (Del. 2019).
19
11 Del. C. § 607(a)(1).
20
11 Del. C. § 611(1).

6
 (12) At trial, Thomas testified that while Clanton was in her apartment, she

repeatedly pled for her life. She also testified that Clanton put his hand on her throat

multiple times, causing her to see “black and blue” and lose consciousness.21 A

forensic nurse also testified at trial that Thomas’s neck had redness and abrasions,

and that Thomas told her that Clanton had “choked her” multiple times.22 The only

facts that Clanton now relies upon to undermine this evidence are that Thomas

testified at trial that she had been talking and breathing throughout the alleged

strangulation incidences. Clanton argues that a reasonable jury could not have

believed that she had the ability to talk while Clanton restricted her breathing.23

Clanton also attests that if he had actually put sufficient pressure on her throat for

her to stop breathing, there would have been bruises instead of just redness and

abrasions.24 However, the forensic nurse testified that they do not often see those

types of injuries with strangulation.

(13) At trial, defense counsel did not present any evidence or witnesses, but

rather focused his efforts on pointing out inconsistencies in Thomas’s testimony and

attempting to undermine her credibility. Clanton argues here that a there was a

rational basis for the jury to question Thomas’s credibility.25 However, there was

21
App. to Opening Br. at A32.
22
Id. at A45-46.
23
Opening Br. at 16.
24
Id. at 14.
25
Id. at 15.

7
overwhelming evidence that Clanton intentionally restricted Thomas’s breathing by

applying pressure to her neck, and we do not find Clanton’s arguments to the

contrary to be persuasive. Not only did the jury consider Thomas’s testimony, but

also that of the forensic nurse and corroborating evidence from neighbors that

Thomas was screaming and pleading for her life throughout the day. As the Superior

Court noted below, “[f]or 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.”26 Because there is not a rational basis to find that a jury would have

acquitted Clanton of Strangulation and convicted on the lesser offense, the Superior

Court did not abuse its discretion in denying postconviction relief on this basis.

(14) A person is guilty of Kidnapping Second Degree when the person

unlawfully restrains another person with any one of six enumerated purposes, and

the actor voluntarily releases the victim alive, unharmed, and in a safe place prior to

trial.27 At trial, it was argued that Clanton restrained Thomas for two purposes: (1)

to inflict injury; and (2) to terrorize the victim.28 The elements of this crime,

therefore, are: (1) unlawful restraint; (2) for the purposes of inflicting physical injury

or terrorizing the victim; and (3) pretrial release of the victim alive, unharmed, and

26
State v. Clanton, 2022 WL 214557, at *4 (Del. Super. Jan. 25, 2022).
27
11 Del. C. § 783.
28
Opening Br. at 17.

8
in a safe place. The lesser-included offense of Unlawful Imprisonment in the Second

Degree requires a finding that the defendant knowingly and unlawfully restrained

another person.29 The lesser-included offense of Unlawful Imprisonment in the First

Degree occurs if the knowing and unlawful restraint exposes the victim to the risk

of serious physical injury.30 Therefore, the distinguishing element is whether

Clanton restrained Thomas with the purpose of terrorizing her or inflicting physical

harm.

(15) At trial, the jury heard unrefuted testimony from Thomas that Clanton

held her against her will for several hours and slammed her against a wall. This was

corroborated by a hole in the wall and bruises on Thomas’s back. Neighbors heard

Thomas screaming throughout the day. The jury also heard the testimony and

corroborating evidence relating to the strangulation incidences. The evidence

clearly justifies a conclusion that Clanton unlawfully restrained Thomas for the

purpose of physical injury or to terrorize.

(16) Clanton contends that the evidence contains a rational basis to find that

Clanton lacked either purpose. He points to Thomas’s credibility issues and the fact

that over the several hours they were in the apartment, they did other activities

besides fighting, including eating and having what he considered to be consensual

29
11 Del. C. § 781.
30
11 Del. C. § 782.

9
sex.31 This evidence, Clanton argues, points to an inference that his purpose was to

rekindle their relationship, not terrorize or harm.32 This argument is unpersuasive.

The great weight of the evidence supports the inference that Clanton’s purpose was

to terrorize Thomas and cause her harm. There is not a reasonable probability that

the jury would have acquitted him of Kidnapping and convicted on the lesser-

included offenses.

(17) Clanton also supports his arguments with language from Beck v.

Alabama, in which the U.S. Supreme Court explained, “[w]here 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.” 33 Clanton

contends that without the option of these lesser-included offenses, there is a

substantial risk that the jury convicted Clanton on the charged offenses even though

an element of the charged offenses was in doubt, because the jury assumed he was

guilty of some crime.34 However, the record does not support the contention that the

jury found Clanton guilty of Strangulation and Kidnapping despite having some

doubt about an element of each offense. The jury here actually acquitted Clanton of

two charges, showing that they were willing to acquit if they believed an element of

a crime was in question. Further, as discussed, the evidence supporting a conviction

31
Opening Br. at 17-18.
32
Id.
33
Beck v. Alabama, 447 U.S. 625, 634 (1980).
34
Opening Br. at 11-12.

10
on these crimes was overwhelming. There is no reason to believe that the jury had

any doubt about an element of either offense.

(18) Because we do not believe that there is a reasonable probability that the

jury would have acquitted Clanton on the Strangulation and Kidnapping charges and

convicted on the lesser-included offenses, we find that defense counsel’s failure to

include these instructions was not prejudicial to Clanton’s defense. We therefore

need not consider counsel’s performance under the first Strickland prong.

NOW, THEREFORE, it is the order of the Court that the judgment of the

Superior Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr.
Justice

11