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Clark v. State

Supreme Court of Delaware

January 14, 2020

JEFFREY CLARK, Defendant Below, Appellant
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: November 6, 2019

         Upon appeal from Superior Court of the State of Delaware. AFFIRMED.

          Court Below: Superior Court of the State of Delaware Cr. ID: N1503017606A

          Christopher S. Koyste, Esquire, Wilmington, Delaware, Counsel for Appellant.

          Abby L. Adams, Esquire, Department of Justice, Wilmington, Delaware, Counsel for Appellee.

          Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

          TRAYNOR, Justice

         Jeffrey Clark and two of his associates, Rayshaun Johnson and Christopher Harris, were indicted on charges of murder in the first degree, conspiracy in the first degree, possession of a firearm during the commission of a felony, and possession of a deadly weapon by a person prohibited, for their roles in the shooting death of Teodore "Teddy" Jackson. After Harris pleaded guilty to the conspiracy charge and entered into a cooperation agreement with the State, the Superior Court granted Clark's request that his case be tried separately from Johnson's. Johnson's case went to trial first, and a jury convicted him on all indicted charges. Ten, after a nine-day trial in September 2017, a jury found Clark guilty of attempted assault in the second degree-purportedly a lesser-included offense of murder in the first degree, and conspiracy in the second degree, a lesser included offense of conspiracy in the first degree.

         Before he was sentenced, Clark moved the Superior Court "to enter a judgment of acquittal for the convicted counts of attempted assault in the second degree, reducing the counts of conviction to counts supported by the evidence; that is, attempted assault third degree and conspiracy third degree."[1] The court denied Clark's motion and eventually sentenced Clark to four years' incarceration, followed by descending levels of supervision.

         In this direct appeal, Clark makes a single claim-that despite the inescapable fact that Teddy Jackson, the only victim identified in the indictment, is dead, the State failed to present sufficient evidence at trial to support the jury's finding that Clark, at the time of the alleged crime, intended to cause "serious physical injury." And because intent to cause "serious physical injury," as opposed to mere "physical injury," is an element of attempted assault in the second degree, according to Clark, the Superior Court erred when it denied his post-trial motion for judgment of acquittal. For the reasons that follow, we conclude that Clark's claim is without merit, and we therefore affirm the Superior Court's judgments of conviction.

         Facts and Procedural History

         On April 3, 2014, a young man approached Doris Reyes, the mother of one of Clark's children, and delivered a threatening message intended for Clark. The young man referred to a "situation he had with [Clark] years ago" and told Reyes and her daughter, "When you see Jeff, say goodbye to him because that will be the last time you see him."[2] Reyes relayed the message to Clark by telephone, who became aggravated and upset upon hearing this news.[3] Clark was with co-defendants, Harris and Johnson, when he received the call from Reyes describing the threatening encounter.

         Harris testified that Clark appeared upset and irate, and wanted to find the man who made the threat so that he could "do something to him."[4] Clark believed that the young man who made the threat was named Kyle, and Clark "wanted to fight" him.[5] Clark told Reyes "not to worry," assuring her that "he wasn't going to let anything happen" to her or their child.[6] Clark explained that, "[i]f he had to take him in the middle of the street, fight him, then he would."[7] Reyes informed Clark that Kyle was wearing "Army fatigue pants and a black shirt, or black jacket."[8]Thereafter, Clark "took of running, looking for Kyle."[9]

         Clark, Johnson, and Harris spent the evening searching for Kyle. During their pursuit, they encountered Marcel Swanson at a nearby corner store. Clark asked Swanson about Kyle and explained that he had disrespected someone in his family. Swanson described Clark's demeanor during their interaction as "angry" and "real aggressive."[10] Swanson also noted that Clark was shirtless, wearing "black jeans and. . . red shoes, "[11] with a gun tucked in his waistband.

         Te three men left the store in a car driven by Bryshere Giles and continued searching for Kyle. When they saw someone matching Kyle's description, they parked the car. Next, according to Harris's testimony, Johnson and Clark exited the car wielding firearms. Shortly thereafter, Harris heard approximately ten gunshots, then Clark-still sporting black pants and red shoes-and Johnson "ran back to the car."[12] Upon their return, they told Giles to drive away and said "we got him."[13] The victim was actually a man named Teddy Jackson, who died that evening as the result of multiple gunshot wounds.

         Marcel Swanson's testimony corroborated Harris's in several material respects. Swanson was also at the corner store, when he saw Clark, Johnson, and Harris "hop in the car and take off."[14] Swanson left the store and walked in a southerly direction on Van Buren Street. He then heard several gunshots and, in short order, saw Clark and Johnson "running towards the car, "[15] which left the scene. As Swanson continued to walk to his home, he saw "a man on the ground"[16] and "smelled the gun powder."[17]

         Five or so minutes after Swanson heard the gunshots, Johnson called him on the phone. Swanson recounted for the jury what Johnson had to say:

He tells me, remember the guy Kyle that we was looking for? Well, I think we found him. I think we got him.[18]

         During that conversation and again later that evening, Swanson informed Johnson that the person he saw on the ground "could have been the wrong person."[19]Swanson was right-Clark and Johnson got the wrong person. It was Teddy Jackson-not "Kyle"-who the police found lying in the street with multiple gunshot wounds. They also found two different types of numerous shell casings.

         Clark testified in his own defense. Although he acknowledged that, after Reyes relayed Kyle's threat, he "wanted to fight Kyle, "[20] he attempted to pin the shooting of Jackson on Johnson and Harris. Clark told the jury that, after dropping of two of his children at Johnson's mother's house, he got into Bryshere Giles' car with Johnson, Harris, and Harris's female companion, Adrian Moody. The group traveled to Second and Harrison where Reyes provided additional information about the person who had threatened Clark, including that he was wearing Army fatigue pants and a black shirt or jacket. Armed with this information, Clark removed his earrings, nose ring, and his shirt, and "took of running, looking for Kyle."[21]

         According to Clark's testimony, he was unable to find Kyle, so eventually he and the others got back in Giles' car. As the group cruised around the neighborhood continuing to look for Kyle, Harris and Johnson spotted Marcel Swanson so Giles stopped the car so that they could talk with Swanson. Clark admitted that he was "still kind of aggressive" and personally asked Swanson if he had seen Kyle; Swanson said that he had not.

         To this point, Clark's testimony did not conflict materially with Swanson's and Harris's testimony. Thereafter, however, there was a radical difference. Clark testified that, after the encounter with Swanson, he got back in Giles' car and put his shirt and earrings back on and replaced his nose ring. According to Clark, as Giles was driving away, Harris noticed a man on the street who ft the description that Reyes had provided, and Johnson ordered Giles to pull over. Clark claimed that he tried to persuade Harris and Johnson that the person who had attracted their attention was not Kyle but that his efforts were unavailing. Clark then testified that Johnson and Harris, both armed-Johnson with a silver Smith & Wesson semiautomatic firearm and Harris with an "all-black semiautomatic"-got out of the car, after which Clark heard several gunshots. Once the shooting stopped, under Clark's version, Johnson, with his "firearm ajar, "[22] and Harris, with his "weapon . . . still intact, "[23]got back in the car. Giles, Johnson, and Clark then returned to Johnson's mother's house, where Clark collected his children, having left them there in Johnson's mother's care so that he could hunt for Kyle, got in his vehicle, and went home.

         Lest this recitation of the basic facts adduced at trial leave the impression that the jury's determination hinged solely on a credibility battle between Harris and Swanson on one side and Clark on the other, it bears noting that there was other evidence tending to corroborate Harris's and Swanson's testimony. For instance, consistent with Swanson's observation that the person who approached him earlier looking for Kyle and later running to the car after the gunshots were heard was wearing red shoes, the police found two pairs of red Chuck Taylor Converse sneakers-one high-top and one low-top-during their search of Clark's residence.

         More damning yet was the testimony of Ronald Jackson, Teddy Jackson's cousin who was housed in the same pod as Clark at Howard R. Young Correctional Institution ("HRYCI") in November 2016, ten months before Clark's trial. After overhearing Clark comment on what Jackson interpreted to be the shooting of his cousin, Jackson asked Clark if he was in HRYCI for shooting Teddy Jackson. Clark admitted that he was and tried to apologize, telling Jackson at first that "he was there but he didn't actually do it."[24] Jackson later overheard Clark tell others that "he got out of the car, but . . . told his lawyer that he didn't get out of the car."[25] Jackson also heard Clark say that there were three guns involved, saying that there was "a nine, a .40 and . . . a 38, "[26] and that Clark and his friends "all shot but his friends [were] the ones who . . . initially started shooting . . .."[27] Thereafter, in direct conversation with Jackson, Clark said that "he shot . . . [but] that he didn't shoot [Jackson's] cousin."[28]

         During the prayer conference that preceded the parties' closing arguments, Clark requested-despite Teddy Jackson's death- that the court instruct the jury on the lesser-included offenses of attempted assault third degree (under the murder in the first degree count) and conspiracy in the third degree (under the conspiracy in the first degree count). As noted by the Superior Court in its post-trial order, "[Clark] also agreed that there was a rational basis in the evidence for instructions on attempted assault second degree and conspiracy second degree."[29]

         Implicit in Clark's argument during the prayer conference and now explicit in his argument before us was his contention that the jury could find that he was innocent of Teddy Jackson's killing but subject to conviction of an attempted assault on the young man named Kyle, who was never found. The State objected, noting that Clark was not indicted on an unconsummated assault of Kyle and that attempted assault was not a lesser-included offense of the charged offense-murder in the first degree. Nevertheless, the court granted Clark's request, but added instructions for attempted assault second degree and conspiracy in the second degree.[30]

         Most relevant to Clark's argument on appeal are the attempted assault instructions, which were as follows:

In order to find the defendant guilty of attempted assault in the second degree as an included offense of Count I of the indictment, you must find that all of the following elements have been established beyond a reasonable doubt: The defendant attempted by his own voluntary act to cause serious physical injury to another person; two, the defendant's acts, under the circumstances as he believed them to be, constituted a substantial step in a course of conduct planned to culminate in his commission of the crime of assault in the second degree; and three, the defendant acted intentionally.
[I]n the event you are at an impasse and are unable to reach a unanimous verdict on the charge of attempted assault in the second degree, you should then consider the included offense of attempted assault in the third degree.
In order for a defendant to be found guilty of attempted assault in the third degree as an included offense of Count I of the indictment, you must find that all of the following elements have been established beyond a reasonable doubt: The defendant attempted, by his own voluntary act, to cause physical injury to another person; the defendant's acts under the circumstances as he believed them to be constituted a substantial step in a course of conduct planned to ...

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