IN THE SUPREME COURT OF THE STATE OF DELAWARE
OMARI E. CLARK, § § Defendant Below, § No. 150, 2017 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1006026385 § Plaintiff Below, § Appellee. §
Submitted: December 13, 2017 Decided: January 10, 2018
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
This 10th day of January 2018, having considered the briefs and the record
below, it appears to the Court that:
(1) In March 2015, a Superior Court jury found Omari Clark guilty of
Manslaughter and Possession of a Deadly Weapon During the Commission of a
Felony (“PDWDCF”) in connection with the June 2010 stabbing death of Wyatt
Brower.1 Thereafter, Clark was sentenced to 30 years’ imprisonment, suspended
1 The lapse of time between the offense and conviction is explained by the fact that this was Clark’s second trial. Clark was arrested on July 1, 2010 and charged with Murder in the First Degree and PDWDCF. In May 2011, a Superior Court jury convicted Clark of Manslaughter and PDWDCF, and he appealed. In May 2013, this Court reversed those convictions because of the trial judge’s failure to give a justification instruction for the lesser included offense of manslaughter. Clark v. State, 65 A.3d 571, 581-82 (Del. 2013). after 22 years, followed by probation. Clark raises one argument on appeal—that
the failure of the Superior Court to provide a “missing evidence” jury instruction
deprived him of due process and his right to a fair trial. Finding no merit to Clark’s
contention, we AFFIRM Clark’s convictions.
(2) The incident leading to Brower’s death began when Clark went to the
Brower residence in Wilmington, Delaware looking for his infant daughter’s mother,
Nish, who was the girlfriend of Brower’s grandson. When Clark knocked on the
front door, Vanessa Brower, Wayne Brower’s wife, answered. Clark asked Vanessa
if Nish was in the house. At first, Vanessa believed that Nish was not present and
so advised Clark, who then left. But shortly after Clark left, Vanessa learned that
Nish was in her home, so she went out into the street to see if Clark was still in the
vicinity. He was, and Vanessa told him that Nish was in fact at the Brower residence
and would come out to speak with him.
(3) After Clark engaged in a physical altercation with Nish outside the
residence, Wayne Brower exited the residence and announced his intention to call
the police. Clark responded by punching Brower in the face. The situation
deteriorated further when two of Brower’s sons and his grandson came to his
defense. One of Brower’s sons hit Clark in the back of the head with a metal chair.
Clark then fled on foot, but not long thereafter returned to the Brower residence
wielding a knife.
2 (4) When Clark returned with the knife, Wayne Brower came back out of
the residence with a walking stick. As Brower came out of the house, he beat the
stick on the steps and hollered, “I’m tired of this,”2 and “leave my family alone.”3
The banging of the walking stick caused it to break in two, but Brower was able to
hold on to the skinnier part of the stick.
(5) According to Teheshia Morris, another of the Browers’ children who
was watching from the front door, Brower was trying to get his family members
back into the house while backing up the steps, when he lost his balance and fell
backwards. As Brower lay supine, Teheshia witnessed Clark “run[] up [and] stab[]
[her] father [in the] stomach.”4 After he stabbed Brower, Clark ran to his car. As
he drove away, Nigel Morris struck Clark’s car with one of the pieces of the broken
walking stick, but that did not impede Clark’s escape.
(6) Shaunte Brown, a witness called by the defense, confirmed that Brower
was wielding a stick, which she also described as “like a mop head,” when he came
out of his house before his final encounter with Clark.5 Brown described how “the
older man, [Brower]” was swinging the stick like a “baseball bat,”6 and “actually
2 App. to Ans. Br. at B15. 3 App. to Opening Br. at A53. 4 App. to Ans. Br. at B16. 5 App. to Opening Br. at A61. 6 Id. at A60-A61.
3 connected more than the younger one [Clark] because he had a long stick.”7
According to Brown, as Brower began to walk backwards toward his house, he
started to lose his footing, “but the stick [was] out extended this way, he’s still
hitting.”8 Brown testified that Clark then punched Brower and did not see the knife
with which the other witnesses saw Clark stab Brower.
(7) When the police interviewed Clark after his arrest, he claimed that
Brower came at him with “a bat,” and that he was defending himself when he stabbed
Brower.9 Brower died later that evening as a result of the stab wounds.
(8) The responding officers from the Wilmington Police Department
(“WPD”), who arrived on the scene at 10:22 p.m., approximately three minutes after
being notified of the fight, were told that “a person had been stabbed.”10 They
rendered first aid to Brower and called for an ambulance, which arrived within five
minutes. They then secured the scene and talked to the people who were inside the
residence asking them to describe what happened.
(9) Sergeant Karchner of the WPD Evidence Detection Unit arrived at the
scene at 11:30 p.m. Because a stabbing had occurred, he collected, among other
things, a knife from a butcher block found in the Browers’ kitchen, fingerprinted
7 Id. at 60. 8 Id. 9 State’s Ex. 20. 10 App. to State’s Ans. Br. at B1-B2.
4 various items, and took photographs of the scene. He recalled seeing sticks and
debris in the street in front of the residence but, because the presence of such material
“wouldn’t be uncommon . . . in the roadway . . . of a tree-lined block in the city,”
and did not, in his opinion, have any “specific evidentiary value,” he did not collect
any of the sticks and debris.11
(10) When Sergeant Karchner was photographing and collecting the
physical evidence, he did not know that Brower had brandished a walking stick
shortly before Clark stabbed him.
(11) Clark did not testify at trial but the State introduced a recorded
statement, in which Clark claimed that he acted in self-defense. According to Clark,
“[t]he defense was focused entirely on the concept of self-defense.”12 Among other
things, he contends that the fact that he believed that Brower was wielding not a stick
but a bat somehow bolstered his justification defense.
(12) Clark now claims that the investigating officers’ failure to collect the
fragments of the walking stick, a portion of which the State concedes was in
Brower’s possession when Clark stabbed him, entitled him to a “missing evidence”
instruction, which the trial judge refused to give. We understand him to mean he
11 Id. at B4.
12 Appellant’s Opening Br. at 16. 5 was entitled to a Lolly instruction telling the jury to assume that the missing evidence
would have tended to support his self-defense argument.
(13) Our review of the trial court’s refusal to give the requested jury
instruction is de novo.13
(14) The State has a duty to preserve evidence that is material to a
defendant’s guilt or innocence.14 In Lolly v. State,15 we extended that duty to the
collection of evidence ab initio. We recently explained the consequences flowing
from the State’s violation of this duty:
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
OMARI E. CLARK, § § Defendant Below, § No. 150, 2017 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1006026385 § Plaintiff Below, § Appellee. §
Submitted: December 13, 2017 Decided: January 10, 2018
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
This 10th day of January 2018, having considered the briefs and the record
below, it appears to the Court that:
(1) In March 2015, a Superior Court jury found Omari Clark guilty of
Manslaughter and Possession of a Deadly Weapon During the Commission of a
Felony (“PDWDCF”) in connection with the June 2010 stabbing death of Wyatt
Brower.1 Thereafter, Clark was sentenced to 30 years’ imprisonment, suspended
1 The lapse of time between the offense and conviction is explained by the fact that this was Clark’s second trial. Clark was arrested on July 1, 2010 and charged with Murder in the First Degree and PDWDCF. In May 2011, a Superior Court jury convicted Clark of Manslaughter and PDWDCF, and he appealed. In May 2013, this Court reversed those convictions because of the trial judge’s failure to give a justification instruction for the lesser included offense of manslaughter. Clark v. State, 65 A.3d 571, 581-82 (Del. 2013). after 22 years, followed by probation. Clark raises one argument on appeal—that
the failure of the Superior Court to provide a “missing evidence” jury instruction
deprived him of due process and his right to a fair trial. Finding no merit to Clark’s
contention, we AFFIRM Clark’s convictions.
(2) The incident leading to Brower’s death began when Clark went to the
Brower residence in Wilmington, Delaware looking for his infant daughter’s mother,
Nish, who was the girlfriend of Brower’s grandson. When Clark knocked on the
front door, Vanessa Brower, Wayne Brower’s wife, answered. Clark asked Vanessa
if Nish was in the house. At first, Vanessa believed that Nish was not present and
so advised Clark, who then left. But shortly after Clark left, Vanessa learned that
Nish was in her home, so she went out into the street to see if Clark was still in the
vicinity. He was, and Vanessa told him that Nish was in fact at the Brower residence
and would come out to speak with him.
(3) After Clark engaged in a physical altercation with Nish outside the
residence, Wayne Brower exited the residence and announced his intention to call
the police. Clark responded by punching Brower in the face. The situation
deteriorated further when two of Brower’s sons and his grandson came to his
defense. One of Brower’s sons hit Clark in the back of the head with a metal chair.
Clark then fled on foot, but not long thereafter returned to the Brower residence
wielding a knife.
2 (4) When Clark returned with the knife, Wayne Brower came back out of
the residence with a walking stick. As Brower came out of the house, he beat the
stick on the steps and hollered, “I’m tired of this,”2 and “leave my family alone.”3
The banging of the walking stick caused it to break in two, but Brower was able to
hold on to the skinnier part of the stick.
(5) According to Teheshia Morris, another of the Browers’ children who
was watching from the front door, Brower was trying to get his family members
back into the house while backing up the steps, when he lost his balance and fell
backwards. As Brower lay supine, Teheshia witnessed Clark “run[] up [and] stab[]
[her] father [in the] stomach.”4 After he stabbed Brower, Clark ran to his car. As
he drove away, Nigel Morris struck Clark’s car with one of the pieces of the broken
walking stick, but that did not impede Clark’s escape.
(6) Shaunte Brown, a witness called by the defense, confirmed that Brower
was wielding a stick, which she also described as “like a mop head,” when he came
out of his house before his final encounter with Clark.5 Brown described how “the
older man, [Brower]” was swinging the stick like a “baseball bat,”6 and “actually
2 App. to Ans. Br. at B15. 3 App. to Opening Br. at A53. 4 App. to Ans. Br. at B16. 5 App. to Opening Br. at A61. 6 Id. at A60-A61.
3 connected more than the younger one [Clark] because he had a long stick.”7
According to Brown, as Brower began to walk backwards toward his house, he
started to lose his footing, “but the stick [was] out extended this way, he’s still
hitting.”8 Brown testified that Clark then punched Brower and did not see the knife
with which the other witnesses saw Clark stab Brower.
(7) When the police interviewed Clark after his arrest, he claimed that
Brower came at him with “a bat,” and that he was defending himself when he stabbed
Brower.9 Brower died later that evening as a result of the stab wounds.
(8) The responding officers from the Wilmington Police Department
(“WPD”), who arrived on the scene at 10:22 p.m., approximately three minutes after
being notified of the fight, were told that “a person had been stabbed.”10 They
rendered first aid to Brower and called for an ambulance, which arrived within five
minutes. They then secured the scene and talked to the people who were inside the
residence asking them to describe what happened.
(9) Sergeant Karchner of the WPD Evidence Detection Unit arrived at the
scene at 11:30 p.m. Because a stabbing had occurred, he collected, among other
things, a knife from a butcher block found in the Browers’ kitchen, fingerprinted
7 Id. at 60. 8 Id. 9 State’s Ex. 20. 10 App. to State’s Ans. Br. at B1-B2.
4 various items, and took photographs of the scene. He recalled seeing sticks and
debris in the street in front of the residence but, because the presence of such material
“wouldn’t be uncommon . . . in the roadway . . . of a tree-lined block in the city,”
and did not, in his opinion, have any “specific evidentiary value,” he did not collect
any of the sticks and debris.11
(10) When Sergeant Karchner was photographing and collecting the
physical evidence, he did not know that Brower had brandished a walking stick
shortly before Clark stabbed him.
(11) Clark did not testify at trial but the State introduced a recorded
statement, in which Clark claimed that he acted in self-defense. According to Clark,
“[t]he defense was focused entirely on the concept of self-defense.”12 Among other
things, he contends that the fact that he believed that Brower was wielding not a stick
but a bat somehow bolstered his justification defense.
(12) Clark now claims that the investigating officers’ failure to collect the
fragments of the walking stick, a portion of which the State concedes was in
Brower’s possession when Clark stabbed him, entitled him to a “missing evidence”
instruction, which the trial judge refused to give. We understand him to mean he
11 Id. at B4.
12 Appellant’s Opening Br. at 16. 5 was entitled to a Lolly instruction telling the jury to assume that the missing evidence
would have tended to support his self-defense argument.
(13) Our review of the trial court’s refusal to give the requested jury
instruction is de novo.13
(14) The State has a duty to preserve evidence that is material to a
defendant’s guilt or innocence.14 In Lolly v. State,15 we extended that duty to the
collection of evidence ab initio. We recently explained the consequences flowing
from the State’s violation of this duty:
Where missing evidence is not case dispositive, a consequence for the State’s failure to collect or preserve material evidence is a Lolly instruction, entitling the defendant to the inference that such evidence would have been exculpatory. That is, “[a] missing evidence instruction, or Lolly instruction, tells the jury, in a case where the State has failed to collect or preserve evidence which is material to the defense, to assume that the missing evidence would have tended to prove the defendant not guilty.”16
(15) But “for the police to have a duty to collect and preserve specific
evidence, the police must have had a reason, at that time, to believe that evidence
might be exculpatory.”17 Here, Sergeant Karchner testified that he did not see any
sticks or debris that appeared to have any evidentiary value or “anything that
13 Wright v. State, 953 A.2d 144, 148 (Del. 2008). 14 Deberry v. State, 457 A.2d 744, 751 (Del. 1983). 15 611 A.2d 956 (Del. 1992). 16 Baynum v. State, 133, A.3d 963, 967 (Del. 2016). 17 Powell v. State, 49 A.3d 1090, 1101 (Del 2012) (emphasis added).
6 resembled a walking-stick.”18 Clark does not explain why Sergeant Karchner should
have recognized that the sticks and debris that one would expect to find on the tree-
lined street where the Browers lived had any evidentiary significance. Because the
police had no duty to collect that evidence, the trial judge correctly denied Clark’s
request.
(16) Although the absence of a duty to collect the evidence forms a sufficient
basis for affirming the Superior Court’s judgment, other bases exist, including the
absence of negligence or bad faith, the availability of substitute or secondary
evidence, and the sufficiency of other evidence.
(17) Clark claims that Sergeant Karchner was negligent because he failed to
inform himself appropriately before initiating his search for, and collection of,
evidence at the scene. But based on the testimony at trial, had Karchner conducted
extensive interviews of the witnesses before searching, he would have learned that,
at the time of his final altercation with Clark, Brower had a walking stick in his
hands. Karchner testified that, as he searched for evidence, he did not see anything
resembling a walking stick. The sticks he saw in the road were nothing more than
what he expected to see on a tree-lined street. On these facts, we cannot conclude
that Karchner was negligent.
18 App. to State’s Ans. Br. at B4. 7 (18) Regarding the availability of substitute or secondary evidence, as
mentioned, the State conceded that Brower was in possession of a walking stick. In
this regard, Clark has not explained the legal significance of his belief that Brower
was holding a bat instead of a walking stick. What is more, it bears noting that,
when Clark’s lawyer was asked by the trial judge to identify “[t]he missing evidence
that we’re talking about,” he replied, “The cane, Moses staff, stick, whatever one
may call it.”19
(19) Finally, there was ample evidence supporting the jury’s verdict. More
particularly, at least two eyewitnesses (Teheshia Morris and Nigel Morris) testified
that they saw Clark stab Brower after he had fallen on his front porch.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor Justice
19 Id. at B39. 8