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)
Honorable Andrea M. Freud, Gregory R. Babowal, Esquire.
D. Windette, Esquire.
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").
FACTS AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
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
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.
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
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.
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 ...