June 7, 2013

Grand jury: No misconduct by deputies in Altona man's death


---- — PLATTSBURGH — A Clinton County grand jury has ruled there was no misconduct by Clinton County sheriff’s deputies in the death of Dusty M. Clark.

Clark, 28, was shot and killed on Dec. 30, 2012, in his home in Altona when Deputies Jason R. Winters and Andrew J. Bertrand attempted to serve him with an arrest warrant for failure to appear on charges of second-degree unlicensed operation of a motor vehicle, a misdemeanor, and unsafe passing, a traffic violation.


The cause of death was determined to be injuries resulting from four gunshot wounds, Clinton County District Attorney Andrew Wylie said.

The autopsy report cites a penetrating gunshot wound to the neck, a perforating gunshot wound to the right chest, a penetrating gunshot wound to left chest and a penetrating gunshot wound to left shoulder, Wylie said.

“It’s a terribly unfortunate incident. There is no positive outcome with a situation like this,” Clinton County Sheriff David Favro told the Press-Republican on Thursday.


Reached for comment, Dusty’s father, Edward Clark, said he had not been told of the outcome of the case.

“Nobody really even looked to see what his (health) records consisted of,” Edward said, adding that things have been difficult for him emotionally since his son’s death.

Edward said his son’s offenses were not so serious as to warrant the use of force in his arrest.

“They should have walked out of the house and came back later.”

Edward said he had called New York State Police a couple of days before Thanksgiving last year in hopes that they could help get Dusty to the hospital so he could be evaluated and get treatment for his mental illness.

State Police went to his home then, Edward said, but could legally do nothing since it appeared Dusty was not a threat to himself or others at the time.

Dusty was acting strangely but not violent, Edward told the Press-Republican in December. His son had never been known to act violently in his life, he said.


Testimony from Dusty’s mother, Sheila Clark, about her son’s past is detailed in the grand-jury investigative report, dated April 18, 2013.

While a senior in high school at Northern Adirondack Central School, Dusty wrote a paper for his English class, telling how, while he was on a trip to North Carolina, he had considered driving his car off a cliff.

Dusty spent “a couple days” at the CVPH Medical Center Mental Health Unit in Plattsburgh for evaluation.

In his testimony, Deputy Bertrand said he was in Dusty’s graduating class in high school but did not socialize with him and was unaware that Dusty had mental-health issues.

Dusty enlisted in the Marines before his high-school graduation and served from June 2004 to 2007. He was in the reserves after he was honorably discharged.

He was denied re-enlistment because of a lack of job openings.

Sheila testified that she sought mental-health services for her son from the Veterans Administration after Dusty was discharged from the Marines but was unsuccessful.


Dusty’s tickets were originally issued on September 2011, and court appearances had been scheduled regularly until November 2012, according to court records.

He failed to appear for most of those dates, according to the grand-jury report.

On one occasion when Dusty did show up in court, Town Justice Eli Lambert saw him moving a samurai sword in and out of its sheath several times during the court session, the report says.

“Lambert was concerned enough about Clark’s behavior that he required other court attendees to remain in the building another 10 minutes until Clark cleared the area,” the report says.

The incident was never reported to any law-enforcement agency.

In court that day, Lambert “attempted to talk to Clark like a father,” encouraging him to resolve the ticket cases.


Lambert issued the arrest warrant on Dec. 11, 2012, according to the grand-jury investigative report.

The next day, he called the Clinton County Sheriff’s Office and told the dispatcher he wanted Dusty’s bail set at $2,000 and a psychiatric evaluation ordered upon arraignment, according to the report.

That information was included on the arrest-warrant paperwork that the deputies received, Favro said.

There are a myriad of reasons the judge would request a psychiatric evaluation, he said.

“Just because a judge is requesting a psychiatric evaluation (it) doesn’t always indicate a mental illness.”

Deputies are not advised to exercise any more caution in cases such as Dusty’s as they would with any case, as any situation can turn dangerous, Favro said.

“You don’t know how anybody is going to react. People who have no diagnosis of a mental illness can go off the edge and act irrationally once they’re told they’re under arrest.

“In all reality, you should always address every person cautiously,” the sheriff said. “We constantly remind the deputies, you always use universal precaution; be aware of your surroundings.”


The incident happened Dec. 30 between 4 and 4:40 p.m., as Winters and Bertrand arrived at 9 Bloomer St. in Altona and knocked on the door.

Dusty had been living in the home, which is owned by his father, with his cousin and his cousin’s wife.

When Dusty answered, the deputies asked that he go with them to court for arraignment, and he refused to comply, retreating back into the house, according to the grand jury report.

The deputies followed him inside.

“Clark shortly thereafter reappeared in the kitchen holding a knife in his right hand above his shoulder area in a threatening manner,” the report said.


Winters, who was “positioned in direct line with Clark” near the kitchen sink, drew his Taser with his non-dominant left hand and told Dusty multiple times to drop the knife, the report said.

When Dusty failed to put down the weapon, Winters discharged the Taser at him.

It failed to subdue Dusty, and he continued to move closer to Winters, still holding the knife “in a threatening manner.”

Favro said the reason the Taser was not effective has not been exactly determined, but “one of the barbs did not penetrate.”

Two barbs must penetrate the skin of the individual to set off the electric current, he said.

“It (the barb) could have hit the knife and veered off,” Favro said. “It wasn’t a (Taser) malfunction issue.”

After the Taser proved ineffective, Winters dropped it and immediately drew his Sig Sauer P229 .40 caliber semi-automatic pistol, warning Dusty and telling him again to drop the knife, the report said.

When Dusty continued to advance toward him, Winters fired four rounds, and Dusty fell face-down to the floor.

“All four rounds struck and entered Clark’s body, causing Clark’s immediate death,” the jury’s report said.

About four seconds of video footage and several minutes of audio recorded from the Taser device was in line with Winter’s testimony, according to the report.

“It’s very difficult to say what you could do differently” in this sort of situation, Favro said.

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