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State v. Clark

Superior Court of Delaware, Kent

August 9, 2017

STATE OF DELAWARE
v.
LUIS M. CLARK, Defendant.

         RK12-11-0099-01 PFBPP PABPP (F) RK12-11-0100-01 PFDCF (F) RK12-11-0101-01 ASLT2nd(F) RK12-11-0103-01 Reck End 1st (F)

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Gregory R. Babowal, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Patrick J. Collins, Esq. and Matthew C. Buckworth, Esq., Collins and Associates, Wilmington, Delaware for Defendant.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          FREUD, Commissioner.

         The defendant, Luis M. Clark ("Clark"), was found guilty following a jury trial on February 20, 2014 of one count of Possession of a Firearm or Firearm Ammunition by a Person Prohibited ("PFBPP"), 11 Del C. § 1448; one count of Possession of a Firearm during the Commission of a Felony, 11 Del C. § 1447; one count of Assault Second Degree, 11 Del. C. § 612 and one count of Reckless Endangering First Degree, 11 Del. C. § 604. Clark was also facing one count of Aggravated Menacing and three additional counts of Reckless Endangering in the First Degree but was found not guilty on those charges. On April 17, 2014, at sentencing, Clark was declared a habitual offender pursuant to 11 Del. C. § 4214(a) and received a total sentence of forty-six years Level V incarceration followed by one year probation.

         A timely Notice of Appeal to the Delaware Supreme Court was filed. Clark's counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to withdraw, appellate counsel represented that he conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed Clark of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. Clark was informed of his right to supplement his attorney's presentation. Clark, pro se, raised four issues for appeal for the Supreme Court to consider, which the Supreme Court classified as follows:

First, he contends that the prosecutor engaged in misconduct. Second, he asserts that his trial counsel was ineffective. Third, he contends that the complaining witness' testimony was not credible. Finally, he contends that the Superior Court erred by failing to ensure that Clark understood his counsel's stipulation allowing a DNA report into evidence without requiring the State to produce an expert witness to testify.[1]

         The Supreme Court granted the State's motion to affirm as to all of Clark's claims.[2] Next, pro se, Clark filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("the original motion"). Subsequently Patrick J. Collins, Esquire and Matthew C. Buckworth, Esquire ("Appointed Counsel") were appointed to represent Clark in his motion. They filed an amended motion for postconviction relief alleging ineffective assistance of counsel on March 28, 2016.

         FACTS

         The following is a summary of the facts as noted by the Delaware Supreme Court in its opinion:

(5)The evidence presented by the State at trial reflects the following version of events: On July 17, 2012, the victim, Oscar Ventura, his girlfriend and three children were in a Mazda minivan. Ventura parked the minivan in a handicapped parking space in front of their apartment building so that his girlfriend could return to their apartment to retrieve their dirty laundry, which they were planning to take to the laundromat. Their neighbor, Luis Clark, made a derogatory comment about Ventura parking in the handicapped spot. Ventura told his girlfriend that he was going to 'whoop [Clark's] ass, ' but his girlfriend told him not to engage Clark.
(6) After his girlfriend left the vehicle to return to their apartment, Ventura testified that he saw Clark approaching the driver's side door from the rear of his vehicle in a 'tactical, ' 'crouching' position with a silver gun in his hand. Ventura grabbed a taser which was attached to a set of brass knuckles, from his center console. As he opened the driver's side door, he pushed Clark backwards. The two engaged in a physical fight. Ventura testified that Clark began hitting him in the face with the gun. During the struggle, the gun discharged and struck the driver's side door of the vehicle. The three children were still inside, although none of them was hurt. After the gun discharged, Clark walked away.
(7) During cross-examination, Ventura admitted that he was familiar with handguns because he and his two brothers, who were both in the army, liked to go to a local shooting range and practice. He testified that the cover photo on his Facebook page was a photo of guns. He denied owning any guns and stated that he only rented them when he went to the shooting range.
(8) An eyewitness, who had been at a business across the street, testified at trial that she saw two men (whom she described as a black man and a white man) fighting. She saw the black man holding a gun to the white man's neck. She did not see the white man strike the black man. After the gun discharged, she saw the black man hand the gun to a different black man in a red shirt.
(9) Police officers were dispatched to the scene in response to several phone calls reporting gunfire. Approximately 20 officers responded. One officer testified that he reached the scene and found Ventura bloody and dazed. After he was briefly interviewed, Ventura was taken to the hospital by ambulance. Other officers went to Clark's girlfriend's apartment, which was the apartment next door to Ventura's. They recovered bloody napkins from the apartment but found no sign of Clark. Clark, in fact, was not found and arrested until several months after the incident.
(10) Another officer testified at trial that he responded to the vicinity of the reported gunfire in order to establish a perimeter around the scene. In the process, the officer encountered a man who turned his back upon seeing the officer. The officer handcuffed the man, who turned out to be Clark's brother, Donald. The officer ...

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