      IN THE SUPREME COURT OF THE STATE OF DELAWARE

LUIS M. CLARK,                           §
                                         §   No. 238, 2014
      Defendant Below-                   §
      Appellant,                         §
                                         §
      v.                                 §   Court Below—Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for Kent County
                                         §   Cr. ID 1207014755
      Plaintiff Below-                   §
      Appellee.                          §

                           Submitted: August 28, 2014
                            Decided: October 21, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                  ORDER

      This 21st day of October, upon consideration of the appellant's

Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the

State's response thereto, it appears to the Court that:

      (1)    On February 20, 2014, a Superior Court jury found the

defendant-appellant, Luis Clark, 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. The Superior Court sentenced Clark as a habitual offender on each

conviction and imposed a total sentence of forty-six years at Level V
imprisonment followed by one year of probation. This is Clark’s direct

appeal.

      (2)    Clark’s counsel on appeal has filed a brief and a motion to

withdraw under Rule 26(c). Clark’s counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably

appealable issues. By letter, Clark’s attorney informed him of the provisions

of Rule 26(c) and provided Clark with a copy of the motion to withdraw and

the accompanying brief. Clark also was informed of his right to supplement

his attorney's presentation.

      (3)    In response to his counsel’s motion and brief, Clark raised

several issues for this Court's consideration. 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. The State has responded to Clark’s points, as well as to

the position taken by Clark’s counsel, and has moved to affirm the Superior

Court's judgment.




                                     2
      (4)    The standard and scope of review applicable to the

consideration of a motion to withdraw and an accompanying brief under

Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel

has made a conscientious examination of the record and the law for arguable

claims; and (b) this Court must conduct its own review of the record and

determine whether the appeal is so totally devoid of at least arguably

appealable issues that it can be decided without an adversary presentation.1

      (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 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
1
 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

                                         3
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.2 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.



2
  Defense counsel presented the testimony of an emergency medical technician (EMT)
who treated Ventura at the scene. The EMT testified that Ventura told him that he was
driving on New Street when a man approached him, broke out his window, and then
struck him in the head with the butt of a gun.

                                         4
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 searched Donald Clark and found two guns.

One gun was silver and had blood on it.

      (11)   The gun was sent to a laboratory for DNA testing. The State

admitted the DNA report at trial without objection. No expert witness

testified about the results. The report reflected that swabs taken of the

trigger and grip of the gun did not show any traces of blood. There was a


                                       5
mixture of other DNA evidence in those swabs from three individuals. One

of those individuals was positively identified as Ventura. The other two

contributors were unidentified, and no conclusion could be drawn about

whether Clark was one of those contributors.        Two other swabs found

evidence of blood elsewhere on the handgun and also on the magazine. The

DNA in that blood evidence was consistent with Ventura’s DNA profile.

Clark was excluded as a contributor of that DNA evidence.

      (12) Clark presented the testimony of an eyewitness, Jerome Lands.

Lands testified that he knew Clark and is a friend of Clark’s mother. He

testified that he saw Ventura park his van in the handicap spot and heard

Clark made an insulting comment. He stated that Ventura exited the van

with a taser in his hand and began to attack Clark. Lands stated that as Clark

began to get the upper-hand in the fight, Ventura returned to the van and

produced a silver handgun.      As Clark and Ventura struggled, the gun

discharged. Clark grabbed the gun and used it to strike Ventura in the head.

      (13) Clark testified in his own defense at trial. He admitted striking

Ventura with a gun but claimed that he acted in self-defense. Clark testified

that he and Ventura got into a verbal altercation while Ventura was inside

his van. Clark stated that, as he started to approach the van, Ventura got out

and starting swinging at him. Clark felt an electric jolt with each punch that


                                      6
Ventura landed. Clark testified that as he started to punch back, Ventura

retreated to his van and retrieved a gun, which Clark tried to wrestle away

from him. He stated that when the gun discharged, it startled both of them.

Clark then was able to take the gun away from Ventura. He testified that he

hit Ventura in the head several times just until Ventura was incapacitated;

then he walked away. As Clark was approaching his apartment, he saw his

brother walking toward him. He panicked and gave the gun to his brother,

although he did not instruct his brother to dispose of the gun. Clark then

went to his apartment, cleaned himself off and left the area.

      (14) The first issue that Clark raises on appeal is a claim of

prosecutorial misconduct.    Although Clark contends that the prosecutor

knowingly admitted false testimony, in fact, Clark’s complaint is about

statements made by the prosecutor in his closing rebuttal argument. The

prosecutor’s statement was made in response to an argument by defense

counsel.   Defense counsel argued in his closing that the presence of

Ventura’s DNA, but not Ventura’s blood, on the grip and handle of the gun

supported Clark’s testimony that Ventura was the one who retrieved the gun.

In rebuttal, the prosecutor stated: “[T]he State would suggest that there are

other sources of DNA in addition to the blood, like the report says: Sweat,

skin, hair. You saw the picture of Mr. Ventura with his long hair and the


                                       7
condition he was in at the time. So there are plenty of sources where his

DNA could have gotten on that gun.”

          (15) In fact, the DNA report did not state that sweat, skin, or hair

were other possible sources of DNA besides blood. The report was silent on

this point. Defense counsel, however, made no objection to the prosecutor’s

misstatement. Accordingly, because no objection was raised at trial, we will

review this claim for plain error only.3 Plain error exists when the error

complained of is apparent on the face of the record and is so prejudicial to a

defendant’s substantial rights as to jeopardize the integrity and fairness of

the trial.4 The burden of persuasion is on the defendant to show prejudice.5

          (16) In this case, the prosecutor’s statement about the contents of the

DNA report was incorrect. Nonetheless, we conclude that Clark has not met

his burden of showing any prejudice. The prosecutor’s misstatement was

one isolated comment. The DNA report was in evidence, and the jurors

could judge for themselves what the report said or did not say. Moreover,

the DNA report was favorable to Clark. The prosecutor’s misstatement did

not undermine the favorable contents of the report. Accordingly, we find no



3
    Del. R. Evid. 103(d).
4
    Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
5
    Brown v. State, 897 A.2d 748, 753 (Del. 2006).

                                             8
basis to conclude that the prosecutor’s error affected Clark’s substantial

rights and jeopardized the integrity of the trial.

         (17) Clark next argues that his trial counsel was ineffective for

failing to object to this misstatement in the prosecutor’s rebuttal. This

Court, however, will not consider a claim of ineffective assistance of counsel

for the first time on direct appeal.6

         (18) Clark’s third argument is that Ventura’s trial testimony

contained discrepancies and, therefore, was not credible. Specifically, Clark

points out that Ventura stated at one point that he had a “perfect memory” of

the events but also claimed not to remember having made certain statements.

According to Clark, this inconsistent testimony proves that Ventura lied.

The jury, however, is solely responsible for judging the credibility of the

witnesses and resolving conflicts in the evidence.7 To the extent there were

any discrepancies in Ventura’s testimony, it was entirely within the jury's

purview to credit part of Ventura’s testimony while rejecting other parts.8

Under the circumstances, we find no merit to this argument.

         (19) Finally, Clark contends that the Superior Court erred when it

failed to conduct an adequate inquiry into Clark’s understanding of defense

6
    Duross v. State, 494 A.2d 1265, 1267 (Del. 1985).
7
    Tyre v. State, 412 A.2d 326, 330 (Del. 1980).
8
    Pryor v. State, 453 A.2d 98, 100 (Del. 1982).

                                              9
counsel’s “stipulation”9 with the prosecutor to admit the DNA report without

requiring an expert to testify.         We disagree.       Defense counsel has the

authority to manage the day-to-day conduct of the defense strategy,

including making decisions about when and whether to object, which

witnesses to call, and what defenses to develop.10 The decision to waive the

need for a foundational expert prior to the State’s admission of the DNA

report was a matter within the sound discretion of defense counsel. The trial

court had no obligation to second-guess or contravene defense counsel’s

strategy and make sure that Clark agreed with his counsel’s strategic choice.

Indeed, it would not have been appropriate.11 Accordingly, we hold that the

trial court committed no error.

         (20) This Court has reviewed the record carefully and has concluded

that Clark’s appeal is wholly without merit and devoid of any arguably

appealable issue. We also are satisfied that Clark’s counsel has made a

conscientious effort to examine the record and the law and has properly

determined that Clark could not raise a meritorious claim in this appeal.

9
  To the extent Clark is suggesting that he signed a formal stipulation allowing the DNA
report into evidence, he is mistaken. Clark did sign a formal stipulation agreeing that he
was a person prohibited from carrying a firearm. He did not sign any stipulation
regarding the DNA report.
10
     Zimmerman v. State, 2010 WL 546971, *2 (Del. Feb. 16, 2010).
11
   See State v. Brower, 971 A.2d 102, 109 (Del. 2009) (holding that it would not have
been proper for a trial court to contravene defense counsel’s strategy by giving a jury
instruction sua sponte).

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      NOW, THEREFORE, IT IS ORDERED that the State's motion to

affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.

The motion to withdraw is moot.

                                   BY THE COURT:


                                   /s/ Randy J. Holland
                                          Justice




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