People v. Clark

• Decision Date: 29 April 2015
• Docket Number: 2011-00191
• Parties: The PEOPLE, etc., respondent, v. Prince CLARK, appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1

9 N.Y.S.3d 277

2015 N.Y. Slip Op. 03558

The PEOPLE, etc., respondent

v.Prince CLARK, appellant.

2011-00191

Supreme Court, Appellate Division, Second Department, New York.

April 29, 2015.

Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, ROBERT J. MILLER, and SYLVIA HINDS–RADIX, JJ.

Opinion

MASTRO, J.P.

The defendant stands convicted of murder in the second degree for the shooting death of Jamel Wisdom, and assault in the second degree for the shooting of Gamard Talleyrand, who survived his injuries. At trial the defendant relied on a misidentification defense, maintaining throughout the proceedings that he was not the individual depicted fighting with Wisdom on a grainy surveillance video that captured the shooting, and emphasizing Talleyrand's inability to identify his assailant. On appeal the defendant primarily argues that he was denied his constitutional right to the effective assistance of counsel by his trial counsel's failure to request that the court charge the jury on the potential alternative defense of justification, and that the trial court erred by failing to charge such a justification defense sua sponte. For the reasons that follow, we reject the defendant's contentions. Trial counsel's failure to request that the court charge a justification defense, which defense was contrary to his client's claim of actual innocence and against his client's informed choice and expressed wishes in selecting a defense, and which would have served to undermine his competing misidentification defense, did not render trial counsel's representation constitutionally deficient. Furthermore, the trial court was not required to give a justification charge over the objections of the defendant and his counsel, and in contravention of the defendant's personal and fundamental right to maintain his innocence and to present a defense of his own choosing.

The evidence at the defendant's trial established that, at approximately 10:00 p.m. on September 22, 2008, the defendant and his cousin, Michael Morrison, were with their girlfriends and another friend (hereinafter the eyewitness) on East 17th Street in Brooklyn. According to the testimony of the eyewitness, at that time, a group of four or five other men, including Talleyrand and Wisdom, confronted the defendant and began to taunt, push, and fight with him. Talleyrand was “beating [the defendant] up,” although the fight consisted of “tussling. They was all like pushing him and trying to ... act like tough guys and [the defendant], he didn't really want to fight. They just provoked him and provoked him and he fought.” The eyewitness elaborated that “[the defendant] was fighting [Talleyrand] and they was all like pushing him and, like ... oh, you're a pussy and trying to punk him.” The members of the group laughed at the defendant, who became “upset because they beat him up.” During the intermittent fighting, the eyewitness saw the defendant's eye bleed, and she heard him say, “They got a knife, they are going to cut me.” However, the eyewitness did not specify which person allegedly had a knife, and neither the eyewitness nor any other witness ever testified to seeing any member of the group in possession of a knife. In fact, no evidence regarding the existence of a knife was ever mentioned again at the trial.

Once the fighting ceased, the defendant retreated to East 19th Street, but again he was accosted by his tormentors before he reached an apartment building at 68 East 19th Street, where he and Morrison lived on the fifth floor with relatives. Members of the group continued “provoking” him and were “beating him up again and they pushed him in the trash.” The defendant entered the building with Morrison, and the two returned to the street shortly thereafter, the defendant visibly angry and upset. The defendant walked down the block at a fast pace in the direction of the group who had been fighting with him. The eyewitness, who had accompanied the defendant to East 19th Street, did not see him do anything, but she heard gunshots and fled the scene.

Talleyrand, the defendant's neighbor, testified that he had known the defendant for one to two years and had considered him a friend until they had a disagreement over the ownership of some jewelry. Talleyrand admitted to fighting with the defendant on the night in question. The fight ended in the vicinity of the defendant's building, and Talleyrand did not notice where the defendant went afterwards. However, shortly after the fight ended, Talleyrand was standing in the street near some other people when he observed Wisdom drop to the ground. Talleyrand turned around and saw the barrel of a gun, so he began running. As he ran, a bullet struck him in the calf. He did not see, and could not identify, who was holding the gun. Talleyrand was treated at the hospital and eventually recovered from his wound

.

Video recordings from surveillance cameras located in the interior and on the exterior of the defendant's apartment building were admitted into evidence and played for the jury. The eyewitness identified the defendant as a male wearing a white t-shirt in the video. However, Talleyrand viewed the same footage and was unable to make any identification. The video revealed that the male in the white t-shirt and another male (identified by the eyewitness as Michael Morrison) entered the building lobby at approximately 10:26 p.m. (a time which coincided with the end of the fistfight in the street). The male in the white t-shirt used the elevator and the other male ascended a set of stairs. They then came down the stairs together a mere one minute later and hurriedly exited the building. The male in the white t-shirt walked into the street and appeared to shout and gesture at others, while his companion waited several feet from the lobby entrance. Approximately two minutes later, the male in the white t-shirt returned to his companion and, appearing agitated, retrieved a handgun from him. He then walked back into the street and out of the camera's view. Approximately 20 seconds later, as confirmed by other evidence, Talleyrand was shot in the leg, and the crowd of bystanders hurriedly scattered in all directions. An additional 15 seconds later, the male in the white t-shirt, still holding the gun, reappeared on the video, quickly backing up toward the entrance to the building lobby as another man, subsequently identified as Wisdom, pursued him inside. Wisdom did not brandish any weapon. The two men entered the lobby and briefly wrestled. The male in the white t-shirt then wriggled free and fired several shots into Wisdom at close range. The two men fell to the ground together, and a third male appeared on the scene and separated them. The male in the white t-shirt then ran away, while the body of Wisdom, shot six times at close range, lay still on the floor of the lobby. Wisdom died from his wounds

.

During the trial, the defendant's assigned counsel advised the court on the record that he had discussed with the defendant the possibility of presenting defenses of extreme emotional disturbance and/or justification in addition to the misidentification defense favored by the defendant, but stated, “I would need the defendant's permission to make such an argument.” Counsel summarized the defendant's position thusly:

“[H]e said no way. I do not wish to have you indicate in any manner, shape or form as far as justification or diminished capacity on the murder two. Without his permission I've told him I cannot do it. The answer was no way.”

In order to assure itself that the defendant, who was 21 years old at the time of the trial, understood the ramifications of his decision, the trial court engaged in a lengthy colloquy with him. As the transcript of that exchange reveals, the defendant, far from being an innocent waif who was unfamiliar with the relevant legal concepts and their potential consequences, demonstrated savvy and sophistication in his choice of defense:

“THE COURT: All right, Mr. Clark, you understand what counsel is saying? ... I mean the most common defense obviously [is] you got the wrong guy, it wasn't me. Other times in a homicide case based on the circumstances the defendant may raise the claim, well, I did it but I thought he was going to kill me so it was self defense. Or third in some cases that whatever the circumstances were, even though I did it[,] I did it under an extreme emotional disturbance and, therefore, the law says that if established [it] might reduce a murder charge to a manslaughter charge, do you understand what I'm saying?

“THE DEFENDANT: I understand. I comprehend, Judge.

“THE COURT: Have you had an adequate opportunity to discuss these various legal issues and tactical decisions with your attorney?

“THE DEFENDANT: Yes.

“THE COURT: And we've indicated now in open court that at least [as] to the justification or self defense claim or the extreme emotional disturbance, ... [h]ave you had a chance to discuss that?

“THE DEFENDANT: I did.

“THE COURT: And your attorney says that as a tactical decision which you're entitled to make, that you don't want to pursue those defenses in terms of justification and or extreme emotional disturbance, is that correct?

“THE DEFENDANT: That is correct.

“THE COURT: Anybody force you or threaten you in any way to make that decision?

“THE DEFENDANT: No.

“THE COURT: Anybody make any promises to you to get you to make that decision?

“THE DEFENDANT: No, sir.

“THE COURT: You doing so voluntarily in full recognition of the potential consequences?

“THE DEFENDANT: I am not making any decision ... referring to you reducing it to any manslaughter or anything like that cause this is not me.

“THE COURT: Okay. All right” (emphasis added).

In accordance with the defendant's foregoing acknowledgment...