IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID. No. 1207014755
‘ In and for Kent County
v. : RKIZ-l l-OlOl Assault 2“d (F)
: RKIZ-l l-OlOO PFDCF (F)
LUIS M. CLARK, : RK12-l 1-0()99 PFBPP PABPP (F)

RK12-l 1-0103 RECK END lST (F)
Defendant.

ORDER

Subrnitted: January l7, 2018
Decided: March 26, 2018
Before the Court is an Amended First Motion for Postconviction Relief
pursuant to Superior Court Criminal Rule 61 (hereinafcer the “Amended Motion”)
filed by Defendant Luis M. Clark (hereinafter “Mr. Clark”) through his appointed
counsel; the Commissioner’s Report and Recommendation (hereinafter the
“Recomrnendation”); and Mr. Clark’ s appeal from the Recornmendation (hereinafcer

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 l7, 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. Afcer the gun discharged, Mr. Clark walked away.l

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 (hereinafcer “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 (hereinafcer “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

 

l Clark v. State, 103 A.3d 514 (Del. 2014).

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 l 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 l:

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 the prior
convictions leading to Mr. Clark’s prohibited status.

The matter was referred to the Commissioner for findings of fact and
recommendation pursuant to Superior Court Criminal Rule 62. The Commissioner
filed the Recommendation that the Court deny Mr. Clark’s motion for postconviction
relief, stating that Mr. Windett’s actions did not constitute ineffective assistance

After the issuance of the Recommendation, Mr. Clark, through counsel, filed
an appeal, claiming that the Commissioner had misstated the law and

misapprehended important elements of Mr. Clark’s claims.

II. STANDARD

The Sixth Amendment guarantees defendants the right to the “effective
assistance of counsel” throughout each critical stage in the criminal process,
including pretrial preparation.2 A Rule 61 movant must satisfy the two-prong test of

Stricklana' v. Washingt0n3 to determine whether his counsel rendered assistance that

 

2 Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richara'son, 397 U.S.
759, 771 n.l4 (1970)); Marshall v. Roa'gers, 133 S. Ct. 1446, 1449 (2013) (quoting lowa v.
Tovar, 541 U.S. 77, 80-81 (2004)).

3 466 U.s. 668 (1984).

was “so defective as to require reversal of a conviction.”4 “First, the defendant must
show that counsel’s performance was deficient.”5 Such deficient performance must
“fall[] ‘below an objective standard of reasonableness,’ as indicated by ‘prevailing
professional norms.”’6 When examining the representation of counsel pursuant to
the first prong of the Strickland test, there is a strong presumption that counsel’s
conduct was professionally reasonable.7 This standard is highly demanding
Strickland mandates that, when viewing counsel’s representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”8

Second, Delaware courts have consistently held that in setting forth a claim
of ineffective assistance of counsel, a defendant must make concrete allegations of
actual prejudice and substantiate them or risk summary dismissal.9 To demonstrate
prejudice, a movant must establish “a reasonable probability that, but for counsel’s
deficient conduct, the result of the proceeding would have been different. A
reasonable probability is defined as a probability sufficient to undermine confidence

in the outcome.”10

III. DISCUSSION

The Court first addresses the inapplicability of the procedural bars. Mr. Clark
timely filed his initial pro se motion and therefore is not barred by Rule 61 (i)(l). Mr.

Clark is also asserting ineffective assistance of counsel; therefore, Rule 6l(i)(5) will

 

4 Strickland, 477 U.S. at 687

5 Id.

6 Chaidez v. Uni¢ed szazes, 133 s. Ct. 1103, 1107 (2013) (quoting srrickland, 477 U.s. at 687-
88).

7 Albwy v. Sraze, 551 A.2d 53, 60 (Del. 1988).

8 Strickland 466 U.s. at 689.

9 See e.g., owen v. S¢a¢e, 720 A.2d 547, 557 (Del. 1998).

10 Norcross v. State, 36 A.3d 756, 766 (Del. 2011).

not procedurally bar his claim, assuming his motion succeeds in demonstrating

ineffective assistance of counsel.

A. CLAIM l

Mr. Clark’s first claim is that trial counsel failed to request a jury instruction
regarding a choice of evils defense for the possession of a firearm by a person
prohibited charge. The pattern jury instruction regarding the “choice of evils”
defense permits a jury to find a defendant not guilty if “(l) the conduct was necessary
as an emergency measure to avoid an imminent public or private injury; (2) the
injury about to occur was the result of a situation that developed through no fault of
the defendant; and (3) the imminent injury was so grave that, according to the
ordinary standards of intelligence and morality, the desirability and urgency of
avoiding the injury clearly outweighed the desirability of avoiding the conduct that
constituted the crime.”

The Strickland Court instructs that reviewing courts should first assess
whether a movant seeking postconviction relief has demonstrated actual prejudice.11
A defendant must prove that his counsel’s failure to request a particular instruction
caused him prejudice because the “failure to request such an instruction will not
always be prejudicial per se.”12 “The prejudicial effect depends upon the facts and
circumstances of each particular case.”13

Upon review of the record, the Court finds that the jury was presented with
all the facts and arguments that underpin the “choice-of-evils” jury instruction.

Despite the Court’s decision not to give such an instruction, Mr. Windett marshaled

 

11 Strickland, 466 U.S. at 697 (“if it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that course should be
followed”).
§ smith v. S¢aze, 991 A.2d 1169, 1180 (Del. 2010).

Id.

the relevant facts into an argument for acquittal of the possession of a firearm by a
person prohibited charge. During his closing argument, Mr. Windett stated: “Now,
the State may argue in rebuttal, because the State gets another opportunity to speak
to you, that if you believe Mr. Clark acted in self-defense, he still possessed a firearm
because he carried it away from the scene. And this is where your common sense
comes in again. Was Mr. Clark still defending himself as he left the area? And when
does the self-defense end? And should he have simply left the firearm there with the
man who just attacked him and turn [sic] his back and walked away?”

Throughout the closing argument, Mr. Windett argued that Mr. Clark acted in
self-defense and that his use of force was justifiable and reasonable, and that he
should be acquitted of all charges. The Court instructed the jury prior to closing
arguments that Mr. Clark could be acquitted of assault in the second degree,
aggravated menacing, and reckless endangering if he “believed in the circumstances
as they occurred that the force used was immediately necessary to protect himself
against the use of unlawful force by another.”14

Despite these efforts, the jury found that Mr. Clark was not acting in self-
defense and thus that he did not believe his use of force was necessary to protect
himself`. This finding is inconsistent with the essence of Mr. Clark’s claim of
prejudice_that the jury was willing to find that his possession of the gun was
justified had they been presented with an appropriate instruction that allowed them
to do so. In fact, by finding that Mr. Clark did not act in his own defense, the jury
rejected the Defense’s version of the facts, and appeared to accept the version of
events presented by the State. According to the State’s account of the events, Mr.
Clark was the aggressor, approaching Mr. Ventura’s vehicle with a gun in his hand.

The jury’s verdict indicates that Mr. Clark was partially, if not entirely, at fault for

 

14 A264.

the physical altercation and resulting injuries. Given this verdict, the jury certainly
would not have found that the Mr. Clark was forced to take the gun because of “a
situation that developed through no fault” of his own. Therefore, Mr. Windett’s
decision not to request a “choice of evils” instruction resulted in no prejudice to Mr.

Clark, and he is not entitled to postconviction relief on this claim.

B. CLAIM 2

Mr. Clark’s second claim is that Mr. Windett was ineffective for stipulating
that Mr. Clark was a person prohibited at the time the offense occurred. Here again,
the Court begins its analysis by determining whether this stipulation prejudiced Mr.
Clark. In this case, the parties stipulated that Mr. Clark was a person prohibited, but
sanitized the indictment and did not reveal the nature of the underlying offenses.
Indeed, the Court notes that the stipulation makes no reference to the reason why
Mr. Clark was a person prohibited, i.e., because he had previously been convicted
of a felony. In his motion, Mr. Clark claims that the stipulation that he was a person
prohibited from possessing a firearm “left the jury free to speculate how he became
a person prohibited and allowed the jury to draw the impermissible conclusion that
Mr. Clark was a person of bad character with a general criminal disposition.”

Similar arguments have previously been found meritless by the Delaware
Supreme Court. In Frazier v. State,15 a defendant appealed from his conviction in
Superior Court, arguing that he was prejudiced by the court’s refusal to sever his
possession of a firearm by a person prohibited charge.16 The Frazier defendant
argued that he was prejudiced because evidence of his prior felony would be put

before the jury and “the jury could cumulate evidence or infer a general criminal

 

15 609 A.zd 668 (Table) 1992 WL 135149(D61. 1992).
16 ld. at *4.

intent.”17 The Court found that the “mere possibility the jury might misuse evidence”
did not establish a sufficient ground for a showing of prejudice, particularly when
“the jury was instructed not to use his status as a felon as evidence of guilt of the
other charges.”18

Here, the stipulation was even less prejudicial, mentioning only that Mr. Clark
was “prohibited from purchasing, owning, possessing, or controlling a deadly
weapon or ammunition for a firearm within the state,” without mentioning that this
was because of a felony conviction. No statement was ever made to the jury implying
or informing them that persons prohibited from possessing firearms are necessarily
or probably convicted felons.

Additionally, in this case, Mr. Clark chose to testify, and was cross examined
on certain of his prior criminal convictions, namely, that he was twice convicted of
shoplif`ting, once in 2008 and again in 2009. When instructing the jury, the Court
admonished that the jury “may not consider the evidence of the defendant’s prior
convictions in deciding his guilt or innocence.” Therefore, even if no stipulation had
been made, the jury would still have heard actual evidence_not mere
implications_of some of Mr. Clark’s prior convictions, and thus potentially made
an inference of general criminal intent. Of course, this was an inference the jury was

explicitly instructed not to make. The Court finds that the stipulation did not
prejudice Mr. Clark in any way.

 

17 Id.
18 Id.

IV. CONCLUSION

WHEREFORE, Mr. Clark has failed to show that he was prejudiced, he has
not satisfied the requirements set forth in Strickland and adopted by Delaware’s
Supreme Court in Albury v. State,19 and he therefore cannot succeed in his claims of
ineffective assistance of counsel. After a de novo review of the record in this action,
and for the reasons stated in the Commissioner’s Recommendation, Mr. Clark’s
Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 is

hereby DENIED.

IT IS SO ORDERED.

vt a 44

L Judge

 

NEP/sz

oc: Prothonotary

cc: The Honorable Andrea M. Freud
Gregory R. Babowal, Esquire
Adam D. Windette, Esquire

 

19 551 A.2d 53, 58 (1988).
10

