Devatee T. Clinton v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Devatee Tymar Clinton, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2019-001272

Appeal From Lancaster County
R. Knox McMahon, Trial Judge
Paul M. Burch, Post-Conviction Relief Judge

Unpublished Opinion No. 2024-UP-129
Heard February 6, 2024 – Filed April 17, 2024

REVERSED AND REMANDED

Appellate Defender Jessica M. Saxon, of Columbia, for
Petitioner.

Alan McCrory Wilson, Assistant Attorney General D.
Russell Barlow, II, and Assistant Attorney General
Talida Balaj, all of Columbia, for Respondent.

PER CURIAM: We issued a writ of certiorari to review the post-conviction relief
(PCR) court's denial of Devatee Tymar Clinton's application for PCR on the issue
of whether defense counsel was ineffective for failing to proffer exculpatory
evidence. We reverse.

FACTS

On January 19, 2012, Jenika Jones (Victim) was killed during a home invasion.
The intruder shot Victim at close range in the den of her small mobile home. One
investigator testified "there was blood everywhere" when he discovered Victim.

Three of Victim's children, one-year-old AR; two-year-old AS; and four-year-old
AN, were at the home during the crime. Although the children were bloody when
officers arrived at the scene, they did not suffer any injuries. Officers found AR
"standing right next to [Victim's] face" and another child sitting by Victim's feet.
AN had blood on him, but he did not have "nearly as much as the other two."
Officers discovered the children's footprints in Victim's blood. The footprints
created a pathway from the den to a bedroom, indicating at least one of the
children made several trips between those two rooms. The master bedroom, which
was "ransacked," was the only other room the intruders disturbed. One of the
children alerted a neighbor, who called the police.

During a pretrial hearing, the State sought to exclude any testimony regarding AN
stating the following to investigators or EMS workers: "Shi's daddy shot my
momma," "Jamia's daddy hurt my momma," or "Shortycake shot my momma." 1
Clinton argued the statements were admissible under Rule 803(2), SCRE, the
excited utterance exception to the hearsay rule. The State argued any exception to
the hearsay rule required the defense to show the declarant, a four-year-old child,
was a competent witness. After taking the matter under advisement, the trial court
determined a finding of AN's competency was not required and the statements met
the admissibility factors for the excited utterance exception to the hearsay rule.
However, the court ruled the defendants 2 were required to "lay the foundation" for
the testimony during trial.

Trial testimony revealed the defendants were close friends. Green knew Victim
because Green, Victim, and Green's sister lived in an apartment together prior to

1
Shortycake is a nickname for Rashad Johnson, Shi's father. Jamia and Shi are
names for the same person, a child close in age to AN. Johnson was initially
considered a person of interest in the investigation; however, the State never
charged him with a crime in relation to this case.
2
Clinton was tried with his co-defendant, Al Martinez Green.
Victim's move to the mobile home park. Further, Clinton's grandmother, whom he
lived with occasionally, lived in the mobile home next door to Victim.

A witness testified that on the day before Victim's murder, the defendants
discussed "doing a lick," indicating their intention to commit a robbery. Green
allegedly mentioned a female, questioning, "Does she drive a black car," without
indicating who "she" referred to. Additionally, Clinton allegedly stated "he had
[an unrelated male's] gun." Another witness testified that later that night, he saw
the defendants, and Clinton asked that witness and Green if they wanted to "go on
a lick" with him. According to that witness, Green "was down for it. You know
what I am saying. He was like, yeah, he's ready."

Wayne Blakeney, a relative of Clinton,3 testified that on January 19, 2012, the day
of Victim's murder, Clinton, Green, and Delrico McDow borrowed a white
Cadillac from a male later identified as Pomp Blackmon, a local community
member. 4 Blakeney drove the group to a club where Clinton allegedly asked
Blakeney to "take him to get some money." Thereafter, the group—Blakeney,
Clinton, Green, and McDow—left the club, and Clinton directed Blakeney to drive
to Victim's mobile home park. Clinton had a gun in his possession.

Blakeney testified that the defendants and McDow exited the car, disappeared for
approximately ten minutes, and returned quickly, in a "bit of a hurry." Blakeney
sped out of the mobile home park and drove the group back to the club. After
staying at the club for a while, Blakeney drove the group home. During the drive
home, with only Clinton and Blakeney in the car, Clinton allegedly asked
Blakeney if he "could keep a secret" and when Blakeney responded in the
affirmative, Clinton stated, "I killed that 'B'." Blakeney then dropped Clinton off at
Clinton's grandmother's house in the same neighborhood where the crime occurred.
Clinton told Blakeney he left the gun in the glove compartment and asked
Blakeney to hold on to it. Shortly thereafter, Blakeney abandoned the car in a
Piggly Wiggly grocery store parking lot because it had a flat tire. 5

Two witnesses testified that at approximately 9:30 or 10:00 p.m. on January 19,
2012, they noticed an older, small white "Oldsmobile, Buick, [or] Cadillac style"

3
Blakeney was unsure of the familial relation he shared with Clinton; however, he
stated he was "pretty sure [they were] close kin."
4
Blakeney and McDow were also charged in relation to Victim's murder. Their
cases are not the subject of this appeal.
5
The Piggly Wiggly was less than a mile from Victim's mobile home park.
car, or "white Cadillac with a rag top," with no headlights on, driving at a rapid
speed out of Victim's mobile home park as the witnesses drove into the
neighborhood. One of the witnesses stated she saw the same car the following day
in the Piggly Wiggly parking lot with a flat tire.

Pomp Blackmon confirmed that in January 2012, he owned a 1991 eggshell white
Cadillac Seville that had a rag top. He also confirmed that he loaned the Cadillac
to a group of males on January 19, 2012. After the men did not return his car that
evening, Blackmon searched for the car the next day. He found his car in the
Piggly Wiggly parking lot with a flat tire. He discovered a blue jumpsuit and a
work identification card 6 in the backseat of the car.

Vivian Stradford, who knew Clinton and Victim, saw Clinton on January 19,
within a few hours after she was notified of Victim's death. Stradford saw Clinton
at a gas station within walking distance of the club Clinton, Green, Blakeney, and
McDow attended that night.7 She testified Clinton did not respond when she told
him Victim was killed earlier that evening. She also testified Clinton was wearing
a blue jumpsuit that night and he regularly wore one. Stradford identified the
jumpsuit found in Blackmon's car as Clinton's jumpsuit.

Detective Frederick Thompson, of the Lancaster County Sheriff's Office, testified
Clinton admitted to the police that he wore a camouflage jumpsuit on the night of
the murder. Thompson also testified Clinton admitted the blue jumpsuit was his;
however, he contended he did not wear the jumpsuit that evening and had loaned it
out on different occasions.

After the State rested, both defendants renewed their motions for directed verdicts,
which the trial court denied. The jury convicted them both of murder, and the trial
court sentenced them to life imprisonment without the possibility of parole. In his
direct appeal, Clinton argued the trial court erred in failing to admit AN's
statements pursuant to the excited utterance or present sense impression exceptions
to the rule against hearsay. This court affirmed in a summary opinion, State v.
Clinton, Op. No. 2016-UP-206 (S.C. Ct. App. filed May 11, 2016), finding the
issue was not preserved. Clinton filed an application for PCR, alleging, inter alia,
ineffective assistance of counsel arising from counsel's failure to preserve the

6
The name of the person on the identification card was not included in the record.
7
The record suggests Clinton walked to the gas station while the rest of the group
remained at the club.
issue. The State filed a return. Clinton filed an amended petition, raising three
issues.8

At the PCR hearing, trial counsel testified the trial court ruled the evidence was
admissible if a proper foundation was laid. When counsel was examining the
police officer who heard AN's statements, the trial court then "inexplicably said
that [it] wasn't going to allow [counsel] to go further into the questioning."
Counsel claimed he again attempted to get the statement in later during the trial
and the trial court "shut it down again." Counsel testified he was baffled by this
court's opinion finding the issue was not preserved. Counsel admitted he did not
proffer the testimony. Counsel testified there was no DNA evidence tying Clinton
to the scene; the majority of the State's case was based on the biased testimony of
co-defendant Wayne Blakeney's testimony; and he possibly should have had a
forensic child interview conducted. By order filed July 26, 2019, the PCR court
denied PCR and dismissed Clinton's application.

In its order, the PCR court found trial counsel's strategy, to get the statement into
evidence through cross-examination of the first responders, was reasonable. The
court found counsel believed the only other way to introduce the statements would
be to call the child to testify, which he did not want to do. He testified that in
hindsight, he could have proffered the testimony, but at the time, he decided to
move on with his cross-examination. Counsel stated that even in hindsight, he
would not have wanted to proffer the testimony because the child had gone through
a traumatic event and counsel was unsure what the child would say.

The PCR court found that although counsel did not proffer the testimony, the court
would "not second-guess trial counsel's decision to move on." The court found
"[b]ecause trial counsel articulated reasonable trial strategy for attempting to elicit
the child's out-of-court statement, . . . he was not deficient." The court denied the
petition and dismissed Clinton's application.

Clinton filed this petition for a writ of certiorari. By order dated January 9, 2023,
this court granted certiorari on the following issue:

[Whether t]he PCR court erred by ruling defense counsel
was not ineffective where counsel failed to proffer and
argue that the identification statements of the victim's

8
Clinton filed a prior application, which our supreme court denied and remitted on
August 4, 2017. Clinton then timely filed these applications.
four-year-old son made shortly after the shooting that
specifically named someone other than Petitioner as the
murderer were admissible as "excited utterances" or
"present sense impressions" where the Court of Appeals
found the error excluding these statements unpreserved
because counsel failed to proffer this testimony at trial.

STANDARD OF REVIEW

"In [PCR] proceedings, the burden of proof is on the applicant to prove the
allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512,
514 (2008). "We defer to a PCR court's findings of fact and will uphold them if
there is evidence in the record to support them." Smalls v. State, 422 S.C. 174,
180, 810 S.E.2d 836, 839 (2018). "We review questions of law de novo, with no
deference to trial courts." Id. at 180-81, 810 S.E.2d at 839.

LAW/ANALYSIS

Clinton argues the PCR court erred in dismissing his PCR application because trial
counsel's failure to preserve the issue of the trial court's exclusion of the
exculpatory statements made by AN was both deficient and his deficiency caused
prejudice. We first find counsel's performance was deficient.

Initially, we conclude the trial court correctly determined AN's statements—"Shi's
daddy shot my momma," "Jamia's daddy hurt my momma," or "Shortycake shot
my momma"—met the admissibility requirements for an excited utterance
exception to the hearsay rule. "'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." Rule 801(c), SCRE. The rule against hearsay
prohibits the admission of evidence of an out-of-court statement to prove the truth
of the matter asserted unless an exception to the rule applies. Rule 802, SCRE. An
excited utterance is not excluded by the hearsay rule, even though the declarant is
available as a witness. Rule 803(2), SCRE. An excited utterance is "[a] statement
relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition." Id. In State v. Washington,
our supreme court explained:

Three elements must be met in order for a statement to be
an excited utterance: (1) the statement must relate to a
startling event or condition; (2) the statement must have
been made while the declarant was under the stress of
excitement; and (3) the stress of excitement must be
caused by the startling event or condition.

379 S.C. 120, 124, 665 S.E.2d 602, 604 (2008). "In determining whether a
statement falls within the excited utterance exception, a court must consider the
totality of the circumstances." State v. Sims, 348 S.C. 16, 20, 558 S.E.2d 518, 521
(2002).

We agree the statements qualified as excited utterances. The statements related to
the startling event of AN seeing his mother lying in a pool of blood and his
younger siblings standing by her "saturated" in blood. See id. at 21, 558 S.E.2d at
521 ("The statement here clearly meets the first element because it relates to the
startling event of the [five-year-old] son seeing his mother after she was attacked
and possibly while she was being attacked." (emphasis added)). The statements
were made while AN was under the stress of excitement as he made the statements
within hours of Victim's death. See id. at 23, 558 S.E.2d at 522 (finding the child
"was under the continuing stress of excitement when he told [an officer] appellant
was in the home the night of [his mother's] attack" even though twelve hours had
passed between the time of the attack and time of the child's statement to the
officer). Finally, we find the evidence shows the stress of excitement was caused
by the startling event or condition. See id. at 21, 558 S.E.2d at 521 ("As for the
third element, if the son was under the stress of excitement, then that stress was
caused by the startling event of seeing his mother being attacked and not being
able to wake her.").

"Statements which are not based on firsthand information, as where the declarant
was not an actual witness to the event, are not admissible under the excited
utterance or spontaneous declaration exception to the hearsay rule." State v. Hill,
331 S.C. 94, 99, 501 S.E.2d 122, 125 (1998) (quoting 23 C.J.S. Crim.Law § 876
(1989)). Here, although the record does not include direct evidence showing AN
witnessed the shooting, we conclude AN's personal knowledge of the shooting can
be inferred from the totality of the circumstances. Substantial circumstantial
evidence suggests AN witnessed the intruder shoot his mother. By identifying the
shooter in the statements, it can be inferred from the statements that AN observed
the shooter. Accordingly, we find the statements were excited utterances and
based on firsthand information; thus, they met the admissibility requirements for
excited utterances.
We next turn to whether Clinton's counsel was deficient for failing to proffer the
statements to preserve the issue for appellate review after the trial court refused to
allow the statements to be admitted. "In post-conviction proceedings, the burden
of proof is on the applicant to prove the allegations in his application." Speaks,
377 S.C. at 399, 660 S.E.2d at 514. "A criminal defendant is guaranteed the right
to effective assistance of counsel under the Sixth Amendment to the United States
Constitution." Taylor v. State, 404 S.C. 350, 359, 745 S.E.2d 97, 101 (2013). To
establish a claim of ineffective assistance of counsel, a PCR applicant must show
(1) counsel was deficient and (2) counsel's deficiency prejudiced the defendant's
case. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate
deficiency, "the defendant must show that counsel's representation fell below an
objective standard of reasonableness." Id. at 687-88.

Clinton argues the PCR court erred in finding counsel's failure to proffer the
testimony was not deficient because even if counsel's strategy for admitting the
statements was valid, it did not excuse the failure to proffer the statements. We
agree. "Counsel's performance is accorded a favorable presumption, and a
reviewing court proceeds from the rebuttable presumption that counsel 'rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.'" Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632
(2010) (quoting Strickland, 466 U.S. at 690). "Accordingly, when counsel
articulates a valid reason for employing a certain strategy, such conduct will not be
deemed ineffective assistance of counsel." Id. "A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S.
at 689. However, where counsel's strategy is not sound, counsel's performance
may be found to be deficient. Stone v. State, 419 S.C. 370, 384, 798 S.E.2d 561,
569 (2017) (stating "counsel's decision to employ a certain strategy will be deemed
unreasonable . . . if the reasons given for the strategy are not sound").

Here, we find counsel's failure to proffer the exculpatory evidence constituted
deficient performance and the reasons given were not sound. Failure to preserve
an issue for appellate review may be deemed deficient performance. See Foye v.
State, 335 S.C. 586, 590, 518 S.E.2d 265, 267 (1999) (finding trial counsel was
deficient for failing to place his argument about the jury seeing his client in chains
on the record and thus failing to adequately preserve the issue for appeal). When
asked if he failed to protect the record by not proffering the officer's testimony,
counsel testified, "It wasn't my objection. The State made the objection. I tried to
get the statement in, and the [trial court] ruled it inadmissible." Counsel continued,
stating "I am still baffled by the Court of Appeals' ruling. . . . I couldn't preserve
an objection I didn't make." Counsel then admitted he did not proffer what the
officer's testimony would have been and testified he disagreed with the Court of
Appeals' opinion finding the issue not preserved because the evidence was not
proffered.

Counsel later testified he did not hire a forensic interviewer to interview AN
because he would be faced with cross-examining a young child. During cross-
examination, counsel testified he "believed we were on good footing with the
hearsay exception. It was an excited utterance. I still believe that to this day."
Counsel was asked, "[w]ould the only other thing you could have done . . . be to
call the child and put him on the stand?" Counsel responded, "I suppose so. . . . I
didn't want to put the child on the stand." The PCR court stated, "The [PCR c]ourt
finds trial counsel's strategy to elicit the child's out-of-court statement through
cross-examination reasonable. . . . The [c]ourt further finds trial counsel's decision
not to proffer the child's testimony reasonable. . . . While trial counsel arguably
needed to proffer the child's testimony to preserve the issue for appellate review,
the [PCR c]ourt will not second-guess trial counsel's decision to move on with his
questioning."

We find counsel's failure to recognize that he could proffer the evidence through
the testimony of the responding officer rather than by calling the child to testify
was deficient performance. See State v. Jackson, 384 S.C. 29, 34, 681 S.E.2d 17,
19–20 (Ct. App. 2009) (finding the defendant failed to preserve the issue of the
trial court's exclusion of evidence objected to by the State because the defendant
failed to proffer the excluded testimony). In addition, we find the PCR court erred
in finding counsel's strategy, to get the statement into evidence through cross-
examination of the first responders rather than call the child as a witness, did not
excuse his failure to proffer the evidence.

We next turn to the prejudice prong of a claim of ineffective assistance of counsel.
Clinton argues trial counsel's failure to preserve the issue of the trial court's
exclusion of AN's excited utterances prejudiced him. He first notes there was no
forensic evidence that linked him to the murder. He also argues the majority of the
State's case relied on the testimony of a co-defendant, Blakeney, and that Blakeney
was biased "as he stood to gain, and did in fact receive, a great benefit in return for
testifying against" Clinton.

Establishing ineffective assistance of counsel requires an applicant to show not
only counsel's performance was deficient, but that "counsel's deficient performance
prejudiced the applicant's case." Speaks, 377 S.C. at 399, 660 S.E.2d at 514 (citing
Strickland, 466 U.S. at 687). To establish prejudice, "a PCR applicant must show
that 'there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.'" Bennett v. State, 383 S.C.
303, 309, 680 S.E.2d 273, 276 (2009) (quoting Cherry v. State, 300 S.C. 115, 117–
18, 386 S.E.2d 624, 625 (1989)). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The State's case turned on witness credibility, and the State failed to produce
strong evidence other than Blakeney's testimony. Thus, because there is a
reasonable probability that the outcome of Clinton's trial would have been different
if the excited utterances naming another person as the perpetrator had been
admitted (or properly proffered), we find Clinton has established both deficiency
and prejudice.

CONCLUSION

Based on the foregoing, the PCR court's order is

REVERSED and REMANDED.

THOMAS, MCDONALD, VERDIN, JJ., concur.