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State v. Clark

Superior Court of Delaware, Kent

March 26, 2018

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

          Submitted: January 17, 2018.

          RK12-11-0101 Assault 2nd (F) RK12-11-0100 PFDCF(F) RK12-11-0099 PFBPP PABPP (F) RK12-11-0103 RECK END 1st (F)

          The Honorable Andrea M. Freud, Gregory R. Babowal, Esquire.

          Adam D. Windette, Esquire.

          ORDER

         Before the Court is an Amended First Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 (hereinafter the "Amended Motion") filed by Defendant Luis M. Clark (hereinafter "Mr. Clark") through his appointed counsel; the Commissioner's Report and Recommendation (hereinafter the "Recommendation"); and Mr. Clark's appeal from the Recommendation (hereinafter the "Appeal").

         I. FACTS AND PROCEDURAL HISTORY

         At the trial which led to Mr. Clark's conviction and incarceration, the State and Defense gave different accounts of the events that took place on July 17, 2012. According to the State, the victim, Oscar Ventura (hereinafter "Mr. Ventura"), and Mr. Clark engaged in a verbal dispute concerning Mr. Ventura's decision to park his car in a handicapped parking spot. Shortly thereafter, Mr. Ventura was sitting in the driver's seat of his car when he saw Mr. Clark approach the driver's side door in a menacing fashion with a silver gun in his hand. To defend himself, Mr. Ventura retrieved a taser from the center console, opened his door, and engaged Mr. Clark in a physical fight. During the altercation, Mr. Clark struck Mr. Ventura in the face with the gun. As they fought, the gun discharged and struck the driver's side door of the vehicle. After the gun discharged, Mr. Clark walked away.[1]

         The Defense agrees that the encounter began with a verbal dispute over Mr. Ventura's decision to park in a handicapped spot. However, they argue that Mr. Ventura was the aggressor, exiting his vehicle and attacking Mr. Clark with a taser. At some point during the fight, Mr. Ventura produced the silver gun. Mr. Clark, acting in self-defense, attempted to wrest the gun away from Mr. Ventura, and in the process, the gun discharged. Mr. Clark eventually won control of the gun and struck Mr. Ventura with it to incapacitate him and end the fight.

         Mr. Clark was arrested several months later. Among other crimes, Mr. Clark was charged with Possession of a Firearm by a Person Prohibited; Possession of a Firearm during the Commission of a Felony; Assault in the Second Degree; and Reckless Endangering in the First Degree.

         To defend against these charges, Adam Windett (hereinafter "Mr. Windett") was appointed as Mr. Clark's attorney. Prior to trial, the State and Defense agreed to a stipulation that Mr. Clark was a person prohibited from owning or possessing a firearm. At trial, both sides presented their version of events through the testimony of witnesses. The State's chief eyewitnesses were Mr. Ventura and an apparently disinterested bystander, who observed the fight from across the street. The defense's chief eyewitnesses were Mr. Clark and Mr. Jerome Lands (hereinafter "Mr. Lands"), a friend of Mr. Clark's mother.

         At a prayer conference held February 18, 2014, Mr. Windett requested justification of self-defense instructions for all charges. This Court granted these requests with regard to all charges except the Possession of Firearm by a Person Prohibited charge. Mr. Windett did not request a choice of evils instruction regarding that charge.

         Upon conclusion of the trial, Mr. Clark was found guilty of Possession of a Firearm by a Person Prohibited; Possession of a Firearm during the Commission of a Felony; Assault in the Second Degree; and Reckless Endangering in the First Degree. He was sentenced to a total of forty-six years of Level V incarceration followed by one year of probation. Mr. Clark unsuccessfully appealed the convictions to the Supreme Court before filing the instant Rule 61 motion for postconviction relief.

         Mr. Clark filed an initial pro se first motion for postconviction relief, and upon receiving the services of his appointed counsel, filed an amended motion on March 28, 2016. Mr. Clark raises two claims for relief, each asserting that he received ineffective assistance of counsel: (1) trial counsel failed to request a jury instruction regarding a "choice of evils" defense; and (2) trial counsel stipulated that Mr. Clark was a person prohibited at the time that the offense occurred, resulting in prejudice.

         The State responded to the motion and argued that Claim 1 failed to show ineffective assistance because Mr. Windett had determined that a self-defense instruction was sufficient, and the jury rejected the self-defense instruction and convicted Mr. Clark. As to Claim 2, the State argued that Mr. Windett's strategy of stipulating and sanitizing has been commonly used by defense counsel. Mr. Clark replied to the State's response, and this was also considered by the Court.

         Pursuant to Criminal Rule 62, Mr. Windett, who served as trial counsel for Mr. Clark, filed an affidavit with regard to this matter to explain the reasoning behind his actions at trial. In the affidavit, Mr. Windett asserts that, with regard to Claim 1:

A self-defense justification instruction was requested with regard to all counts of the indictment, including the count of Possession of a Firearm by a Person Prohibited (PFBPP). The Court responded that the defense argument for inclusion of the PFBPP charge in the self-defense instruction was a "stretch" and that the Court was inclined to leave the PFBPP charge out of the self-defense instruction and "favorably entertain a motion for judgment of acquittal" on the PFBPP charge if the jury accepted the self-defense claim and the defendant was found not guilty on the remaining charges.

         With regard to Claim 2, Mr. Windett asserted that the stipulation was a strategic decision to avoid presentation of the defendant's criminal record to the jury, and that the indictment was sanitized to remove any reference to ...


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