Fullwood v. State

Raker, J. Tavon Fullwood, appellant, was convicted by a jury in the Circuit Court for Baltimore County on April 19, 2002, of attempted first-degree murder, first-degree rape, first-degree sexual offense, and attempted sodomy. In this post-conviction appeal, appellant presents one question for our review: “Did the post-conviction court abuse its discretion in denying appellant’s petition for post-conviction relief on the grounds that defense counsel did not provide ineffective assistance in failing to investigate and call an expert witness to testify regarding the evidence of sexual assault, and that this contention ‘has been finally litigated on appeal?’ ” We shall hold that defense counsel’s failure to investigate and call an expert witness to testify regarding the evidence of sexual assault did not constitute ineffective assistance and shall affirm the judgment. h-1 Appellant was convicted by a jury on April 19, 2002, m the Circuit Court for Baltimore County of attempted first-degree murder, first-degree rape, first-degree sexual offense, and attempted sodomy. The court sentenced appellant to a term of life imprisonment for the attempted murder; a consecutive term of life imprisonment for the rape, with the balance suspended; a concurrent term of life imprisonment for the sexual offense; and a concurrent term of ten years’ imprisonment for the attempted sodomy. Appellant filed a timely appeal to the Court of Special Appeals which affirmed the conviction in an unreported opinion on June 7, 2004.

Fullwood v. State, September Term 2002, No. 2197 (filed June 7, 2004). The Court of Appeals denied appellant’s petition for writ of certiorari on September 21, 2004. On November 7, 2012, appellant filed a Petition for Post Conviction Relief. The State filed an Answer on December 3, 2013.

Judge Ruth A. Jaku- ⁶¹ bowski held the post-conviction hearing on December 19, 2013 and continued and concluded it on May 27, 2015. Judge Jakubowski denied the post-conviction Petition on September 3, 2015. Appellant filed a timely Application for Leave to Appeal and this Court granted appellant’s Application on December 1, 2016. Because appellant is arguing in this appeal that his counsel provided ineffective assistance by failing to investigate and call an expert witness to testify regarding the evidence of sexual assault, we set out the relevant factual background: On March 15, 2001, at around 3:00 a.m., Baltimore County Police found Ms. Luzer at her apartment.

Police responded to a call from residents of the apartment located below Ms. Luzer. The neighbor testified she heard screams, woke up her boyfriend, and then called the police. She heard window blinds moving and thought she saw a person’s shadow drop from above and flee. The boyfriend also heard screaming but thinks he saw two shadows fall past the apartment.

Officers found Ms. Luzer naked and face down on her bed. She was covered in blood and had been stabbed several times in the chest, torso, and arms. While waiting for an ambulance to arrive, an officer administered first aid to Ms. Luzer and asked if she had been sexually assaulted. She said no.

A detective on the scene requested that the sexual assault forensic examiner collect evidence. Police discovered potential blood stains along the handrail of the outside hallway which led from Ms. Luzer’s apartment building to the apartment building where appellant’s cousin, Melvin Fullwood, sometimes resided with his girlfriend, Chan-tal Veanie, and their three-year-old daughter. A detective questioned residents who lived adjacent to the handrail, including Melvin, who answered the door at Veanie’s apartment. Because Melvin’s statement was inconsistent with that of other neighbors, the detective sought a search warrant for Veanie’s apartment.

Veanie later consented to the search, and both she and Melvin cooperated with police. Based on the information they gave, an arrest warrant for appellant was issued and appellant turned himself in to police headquarters. ⁶² Melvin and appellant’s account of the night differ. Melvin recounted being at Veanie’s apartment with appellant, Both Melvin and Veanie recall that appellant had an angry conversation with someone on the telephone shortly after Veanie returned home at 11:30 p.m. with her daughter, then appellant left the apartment, and returned between 2:45 and 3:00 a.m. Melvin answered the door and appellant entered screaming and yelling about being in a fight with “some guys” and Melvin saw blood on his hands.

According to Melvin, appellant showered upstairs, they argued, appellant left, returned, and left again. Veanie and Melvin testified they did not clean the upstairs bathroom. Soraya Sina, a Sexual Assault Forensic Examiner nurse (SAFE witness), testified that she examined Ms. Luzer in the Shock Trauma Unit. 1 The examination was interrupted when Ms. Luzer’s blood pressure dropped and she had to be rushed to surgery. Ms. Sina later continued the examination where she determined, and later testified at trial, that Ms. Luzer had contusions, tears, and abrasions to her vagina; tears and swelling around her anus; and bruising, blood, and a small laceration three to four inches inside her vaginal cavity.

There was some blood and tearing on her hymen, but it was intact. Ms. Sina also conducted a “pubic combing” in an effort to collect trace evidence or semen. There were no condoms at the scene and no semen was detected on any of the items tested, Appellant testified in his own defense at the trial. He admitted to being in Ms. Luzer’s apartment on the night of the attack.

Appellant testified that he was at Veanie’s apartment with Melvin and, after Veanie fell asleep with her daughter, Melvin asked him to come with him to what turned out to be the victim’s apartment. Appellant said that he followed Melvin into Ms. Luzer’s apartment and waited in the living room while Melvin went back into Ms. Luzer’s bedroom. Appellant then heard muffled noises and screams and when he ⁶³ entered the bedroom, he saw Melvin on top of Ms. Luzer’s naked body. Melvin stabbed Ms. Luzer, appellant wrestled with him for the knife, and then Melvin left the apartment by jumping out of the window.

Appellant testified that he went to the kitchen to call 911 but decided not to call because he was covered in blood. Appellant heard someone at the door and because he thought it might be the police he left through the same window as Melvin. Appellant went back to Veanie’s apartment where Melvin was showering upstairs, they argued, Melvin gave appellant clothes to change into, and he left. DNA evidence from Ms. Luzer’s apartment confirmed appellant’s presence during the attack.

No fingerprints were determined conclusively to belong to Melvin, although appellant testified that Melvin wore gloves. Multiple blood samples recovered from the upstairs bedroom of Veanie’s apartment tested positive for Ms. Luzer’s DNA. An empty can of Ajax cleaner was found in the upstairs bathroom by forensic examiners and they noticed a strong odor of cleaning solution as well. The State advanced a theory of the case with rape as the motive for the attack and the attempted murder an effort to get rid of the witness.

At trial the defense did not challenge the occurrence of a sexual assault but focused its defense on the theory that Melvin committed the crimes, not appellant. The jury convicted appellant and appellant filed a direct appeal, which this Court affirmed in an unreported opinion filed on June 7, 2004. Fullwood v. State, September Term 2002, No. 2197 (filed June 7, 2004). Approximately ten years later, appellant filed a Petition for Post Conviction Relief.

Appellant retained a SAFE expert with experience conducting, reviewing, and interpreting the results of SAFE examinations. After reviewing the State’s SAFE witness’s examination and testimony, the expert made several findings that questioned the credibility of the evidence. The expert was critical of the manner in which the examination had been done, questioned whether the photographs taken by Ms. Sina showed the injuries that Ms. Sina testified that she had ⁶⁴ observed, offered alternative explanations for why some of the indications of injury may have been present, and questioned the interpretations drawn by Ms. Sina. Specifically, appellant’s SAFE expert testified at the post-conviction hearing that Ms. Sina failed to photograph certain injuries and failed to include other injuries in her written report that she later testified to at trial.

Additionally, appellant’s expert testified that it was possible one of the injuries may have been caused by the insertion of the catheter at shock trauma, the Teledyne blue dye used during the examination may have been misapplied to certain areas that could lead to a false positive reading, and the positioning of the posterior fourchette was misidentified as being located at the five, six, and seven o’clock positions although the posterior fourchette is only at the six o’clock position. Appellant’s SAFE expert acknowledged that she was unable to conclude definitively that the injuries described and documented by Ms. Sina had not occurred and certain conclusions were limited because she could only review photographs and could not conduct a live examination of the victim. At the post-conviction hearing, appellant’s counsel called as a witness Kenneth Ravenell, appellant’s trial counsel. He testified that he did not conduct any pre-trial investigation into the sufficiency of the State’s sex crime evidence.

He acknowledged that Ms. Sina provided much of the State’s evidence as to the sexual assault and “the bulk of the State’s evidence and the rape case” depended on the credibility of the SAFE nurse. Trial counsel admitted if he had similar testimony as the SAFE expert retained for the post-conviction hearing he “absolutely” would have presented it to the jury and there was “no strategic reason” not to. Trial counsel explained how the evidence could be used to attack the credibility of the State’s case by undermining the theory that rape was the motive for the attack. Trial counsel testified as to his belief that undermining the State on one issue can dimmish its credibility on other issues.

On September 3, 2015, Judge Jakubowski denied the request for Post Conviction relief and held that appellant failed to overcome the presumption that trial counsel’s failure to ⁶⁵ investigate and challenge the state’s rape evidence was trial strategy. Judge Jakubowski provided a reasoned explanation for her ruling denying relief as to each of appellant’s allegations of error including: 1) ineffective assistance of counsel for trial counsel’s failure to challenge the rape evidence asserted by State witness, Soraya Sina; failure to investigate and cross-examine witness, Melvin Fullwood; failure to object to the introduction of the prejudicial mug shot into evidence; failure to test and present exculpatory DNA evidence at trial; failure to pursue and investigate Melvin Fullwood’s confession; 2) trial counsel’s conflict of interest stemming from his involvement with Melvin Fullwood in another case; and 3) cumulative ineffective assistance of counsel. Judge Jakubowski stated: “Petitioner has failed to overcome the presumption that trial counsel’s actions were mere trial strategy, as required by the deficiency prong of the Strickland test. Petitioner presented insufficient evidence to indicate that the evidence and background of SAFE nurse, Sina, required further investigation.

The Petitioner offers an inadequate basis as to how an expert witness called to refute Nurse Soraya would have been an effective trial strategy. Additionally, counsel testified at the Post Conviction hearing that the case centered around who had committed the crime. It should be noted that trial counsel was successful in establishing that Nurse Sina was a fact witness and not an expert witness. Challenging a prosecution witness and deciding not to call a witness are actions that are considered tactical in nature.

Tactical defense decisions are within counsel’s purview. * * * It should also be noted that the Petitioner testified at trial that Melvin Fullwood committed the assault and he saw him on top of the victim who was