WARSAW — A man sentenced in April 2008 to life without parole for the death of a 2-year-old is back in Kosciusko Circuit Court. He is seeking post-conviction relief.
Ian Clark, 41, who has been incarcerated at the Indiana State Prison, Michigan City, was brought into the courtroom Friday afternoon, Jan. 15, handcuffed at the wrists and ankles, escorted by four jail officers. The wrist handcuffs were removed after approval by the judge. Two jailers remained in the front of the courtroom and two remained in the back.
The two-hour hearing focused on the actions of J. Brad Voelz, now the county’s chief deputy prosecuting attorney, who was a private attorney at the time he filed Clark’s appeal directly to the Indiana State Supreme Court. The Supreme Court upheld the trial courts conviction and sentencing for murder on Oct. 15, 2009. Clark also briefly took the stand.
The judge took the matter under advisement and gave both sides until the close of business on March 18 to file briefs and finding of facts in the case. The judge will then issue his findings.
Kathleen Cleary, deputy public defender and John Pinnow, both with the office of the Public Defender of Indiana, Indianapolis, represented Clark. Dan Hampton, county prosecutor, was assisted by Deputy Prosecuting Attorneys Robert Bishop and Katy Hampton.
The hearing focused on the points filed in the amended petition for post-conviction relief on Aug. 10, 2015, by the state’s public defender’s office. These areas included:
- Clark being denied his constitutionally protected right to the effective assistance of appellate counsel.
- Appellate counsel was deficient and Clark was prejudiced as a result of the following acts of omissions: failing to present an issue the trial court erred by permitting the state to amend the murder charge mid-trial; that he refused a pre-trial plea offer for a fixed term; only three instances were noted in the use of the term of evil when there was significantly more. (It was noted during Friday’s hearing the amendment was to correct a grammatical error in the original filing of the murder charge.)
- Trial counsel failed to withdraw the insanity defense until the third day, allowing the jury to receive irrelevant and prejudicial information about the insanity defense.
- The trial counsel failed to object to prosecutorial misconduct during its closing argument when the state presented Clark started drinking to cover his act.
The parties involved at the time of the trial were R. Steven Hearn, county prosecutor; Circuit Court Judge Rex Reed and Byron Beery, attorney for Clark.
Cleary presented a box full of exhibits: a record of previous proceedings, table of contents, transcripts from the trial, trial exhibits, petitions of rehearing, a certified copy of Clark’s trial court attorney Byron J. Beery, certified discs and hard copies of petitions of re-hearing, letters and the supreme court’s decision.
Initial questioning of Voelz focused on his educational and professional background, experience in various types of cases, including appeals, before addressing the issues in the petition. He was questioned regarding how he communicated with Clark, prior to filing the appeals, which he stated was via mail, noting this is sometimes common. He also noted Clark had written him more than 60 letters which he reviewed, as well as the entire case file.
The main questions appeared to focus on his choice of facts presented to the Supreme Court. Voelz, at one point, stated “many things about the appeal and transcripts (he reviewed) seven to eight years ago, I don’t remember … honestly I’m having a difficult time.” He added, “I’ve likely come up with reasons justifiable now … but I don’t know if I used that for justification (then).”
He explained as he read the transcripts of the trial he would write down the issues and made a check list. “There were more than 20 issues, good appealable issues,” he said. He researched each issue before choosing those that meet the bare bone issues. He also stated the issues he chose would not affect any further appeals, should there be an unfavorable ruling in the initial appeal. He stated that alone the facts chosen were not appealable, but together it presented a theme and an attack on Clark by the prosecutor.
Voelz was asked to verify a letter written to Clark was from him. Voelz stated “there is no doubt I sent the letter,” but the underlining of items nor handwritting on that letter was not of his doing. However, when asked by the state to verify the same letter, Voelz cited attorney client privileges, refusing to answer. Reed asked why he now refused to answer the same question he verified earlier. Voelz stated “My concern is client confidentiality … until specifically ordered by the court.” With that response, Reed ordered Voelz to answer.
Clark Takes Stand
Questions of Clark focused on offerings of plea agreements, attempts to physically meet with Voelz or communicate with him via telephone and his representation were the focus.
Clark stated Berry told him there was a negotiation for a plea agreement multiple times, and at one time the state offered a charge of battery as an A felony, but he was told the state “re-nigged” and unwilling to negotiation. He also stated he was the only person in the home at the time of the incident. Regarding contact with Voelz, Clark stated he tried to set up a telephone connection with Voelz, but he was unwilling to do that and that Voelz did not raise the issues in his appeal that he wanted wanted raised.
Clark also told the court that during the closing arguments when Hearn referenced Clark’s attempt to cover his act by starting to drink, he nudged his attorney to object, which he did not. “What he was saying was not discussed in the trial and was not brought forth as evidence,” stated Clark.
Bishop cross examined Clark focusing on the plea agreement offerings, including that of reckless homicide, and the fact Clark was unhappy how Berry was handling the case. “Was that always the case?” Bishop asked. “Not the entire time,” Clark said and after being asked if he had fired Berry and the time frame of when that occurred, Clark stated it was close to the trial.
It was also noted that Clark filed a disciplinary complaint against Hearn with the state judicial system. However, Clark stated he did not remember as “I wrote lots of things,” After being shown the handwritten complaint, Clark verified his handwriting. It was also noted the courts were notified about attorney problems approximately one month before the trial.
Clark was charged on May 30, 2007, with battery, a class A felony. A charge of murder was filed the following day. Original court documents show on May 25, 2007, police responded to a call of a baby not breathing. The mother of the child, Matara Muchowisz, was found walking down the roadway away from the home holding her daughter in the arms. The child not breathing, blue in color, with bruising to the head, mouth and with semi-dried blood on the child’s face. Police stated the injuries appeared to be from blunt force trauma. The child was pronounced dead by medical personnel at Kosciusko Community Hospital.
Muchowisz told police she had left her daughter with her boyfriend, Clark. When she came home she found the child naked, laying on the chest of Clark on the couch. Clark told her she had fallen and hit her head on the coffee table three hours earlier. Clark was found with blood on his shirt and face, and told police the child had fallen, hitting her head on a coffee table and that he did not kill her.
A search warrant was obtained and upon searching the home, police found bloody diapers, bloody tissue paper and blood on the bottom shelf of the coffee table. In another room officers found blood spatter on the wall, a hole in the drywall above a towel rack containing hair and blood, consistent to that of the child.
A forensic pathologist found the cause of death was multiple blunt force trauma. Among her injuries were a broken jaw and a broken left wrist.
The jury trial began March 3, 2008 and lasted until March 7, when at 11:30 a.m. the jury found him guilty of murder. He was sentenced on April 3.