Fullwood v. State

Circuit Court for Baltimore County
Case No. 03K01001300
Hon. Ruth A. Jakubowski
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2003

September Term, 2015

TAVON FULLWOOD

v.

STATE OF MARYLAND

Meredith
Friedman
Raker, Irma S.
(Senior Judge, specially assigned),
JJ.

Opinion by Raker, J.

Filed: August 31, 2017

* Judge Kathryn Grill Graeff did not participate,
pursuant to Md. Rule 8-605.1, in the Court’s
decision to report this opinion.
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.

I.

Appellant was convicted by a jury on April 19, 2002, in 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. Jakubowski 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

2
cousin, Melvin Fullwood, sometimes resided with his girlfriend, Chantal 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. 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.

1
Ms. Sina was employed at Greater Baltimore Medical Center. Due to Ms. Luzer’s
unstable condition however, Ms. Sina examined Ms. Luzer in the Shock Trauma Unit of
the hospital.
3
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 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

4
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 observed, offered alternative

explanations for why some of the indications of injury may have been present, and

questioned the interpretations drawn by Ms. Sina. Specfically, 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

5
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 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 diminish 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

6
to 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 naked at the time. There is no dispute
that the victim was brutally attacked and nearly died.
Petitioner’s claims that if expert testimony was available at
trial to refute the rape charge that it would have removed
motive and changed the outcome of the trial. This Court finds

7
no merit or basis to this allegation after considering the
testimony at the hearing, the trial transcript and the applicable
law.”

This timely appeal followed.

II.

Before this Court, appellant argues that trial counsel rendered ineffective assistance

in failing to investigate and call an expert witness to controvert the evidence of a sexual

assault. Appellant argues that the court erred in denying post-conviction relief because

trial counsel admitted there was no strategic reason for failing to investigate and challenge

the rape evidence and Strickland requires trial counsel be reasonably informed, through

investigation, before making a strategic decision. See Strickland v. Washington, 466 U.S.

668, 690-91 (1984). Appellant argues that trial counsel’s focus on who committed the

crimes, rather than whether the crimes actually occurred, did not justify the exclusion of a

defense that could undermine the credibility of the sex crime evidence. By arguing that

the defenses are not mutually exclusive, appellant asserts that counsel’s decision not to

consult with an expert before settling on a defense strategy was unreasonable and cannot

be excused as a strategic decision. Finally, appellant argues there is a reasonable

probability that the outcome of the proceeding would have been different if findings similar

to those presented by the expert at the post-conviction hearing had been presented to the

jury. Appellant argues this evidence would have created reasonable doubt as to whether a

sexual assault occurred and would have undermined the State’s theory of the case.

8
Appellant also argues that the rape accusations had a prejudicial spillover effect on the

attempted murder charge by tainting the jury’s perception of appellant and making the jury

more likely to convict on all counts.

Appellee argues that trial counsel’s failure to investigate and challenge the rape

evidence was an objectively reasonable trial strategy based on the defense’s focus, not on

the extent of what was done to the victim, but rather who committed the crimes against her.

Appellee argues that defense counsel’s strategy was reasonably aimed at presenting a

credible narrative that implicated Melvin and since there was no question that a serious

crime had occurred, the question of whether the victim had, as a matter of fact, been

sexually assaulted was entirely peripheral. Appellee argues that the decision not to allocate

resources to hire an expert was a reasonable decision because it would not effectively refute

Ms. Sina’s findings inasmuch as they were based mostly on her own recollections and

observations and the exam was conducted under less than ideal circumstances because of

the victim’s critical medical condition. Appellee further argues that a defense expert would

provide only inconclusive evidence and incremental impeachment value and therefore may

not have been presented to the jury even if one was retained. Appellee argues that

challenging the sexual assault evidence would have distracted the jury and may have

backfired if interpreted by the jury as an attempt to sully the victim and diminish the horror

that she experienced. The State argues that strategy is evidenced at trial since defense

counsel was careful not to dispute the sexual assault in front of the jury but argued

vigorously before the judge in motions for judgment of acquittal that the evidence,

9
including perceived deficiencies in Ms. Sina’s testimony, was not sufficient to support the

sexual offenses.

III.

The right to effective assistance of counsel in a criminal trial is guaranteed by the

Sixth Amendment to the United States Constitution, made applicable to the states through

the Due Process Clause of the Fourteenth Amendment. Strickland, 466 U.S. at 669. It is

black letter law in Maryland that a “post-conviction proceeding pursuant to the Maryland

Uniform Post Conviction Procedure Act, Maryland Code § 7-102 of the Criminal

Procedure Article (2001), is the most appropriate way to raise the claim of ineffective

assistance of counsel.” Mosely v. State, 378 Md. 548, 558-59, 836 A.2d 678, 684 (2003).

Strickland sets forth the legal standard for determining whether there was ineffective

assistance of counsel with a two-pronged test including a “performance component” and a

“prejudice component.” Barber v. State, 231 Md. App. 490, 515, 153 A.3d 800, 813

(2017); State v. Jones, 138 Md. App. 178, 205, 771 A.2d 407, 423 (2001). A defendant

must demonstrate that “under the circumstances, counsel’s acts resulted from unreasonable

professional judgment, meaning that ‘counsel’s representation fell below an objective

standard of reasonableness . . . .’” Jones, 138 Md. App. at 206, 771 A.2d at 424 (internal

citation omitted). “To establish the requisite degree of prejudice in Maryland, the

defendant must demonstrate a ‘substantial possibility that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Id. at 207-08, 771 A.2d

at 424 (internal citation omitted). Both prongs must be met to show “counsel’s conduct so

10
undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Strickland, 466 U.S. at 686.

The standard of review of the lower court’s determinations regarding issues of

effective assistance of counsel “is a mixed question of law and fact.” Strickland, 466 U.S.

at 698. A reviewing court “will not disturb the factual findings of the post-conviction court

unless they are clearly erroneous.” Jones, 138 Md. App. at 209, 771 A.2d at 425.

Nonetheless, “a reviewing court must make an independent analysis to determine the

‘ultimate mixed question of law and fact . . . [i]n other words, the appellate court must

exercise its own independent judgment as to the reasonableness of counsel’s conduct and

the prejudice, if any.’” Id., 771 A.2d at 425 (internal citations omitted).

First, we examine whether trial counsel’s decision not to investigate and call an

expert witness to testify regarding the evidence of the sexual assault fell below an objective

standard of reasonableness. This inquiry under the performance prong of the Strickland

standard is highly deferential and a defendant “must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689 (internal citation omitted).

Appellant argues that trial counsel’s decision not to pursue a line of defense

challenging the sexual assault evidence cannot be considered a reasonable trial strategy

because counsel testified at the post-conviction hearing that he had no strategic reason for

his failure to investigate the sufficiency of this evidence. While testimony at post-

conviction hearings can help explain tactical decisions, “a fair assessment of attorney

11
performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

For this reason, there is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. Id. at 690.

Trial counsel testified he could think of no strategic reason not to use expert

testimony indicating the State’s evidence presented by the SAFE nurse was not enough to

conclude that a sexual assault had taken place, if he had obtained it. Trial counsel’s

testimony was not an explanation of tactical choices but a retrospective opinion on

something he may have done in different circumstances, namely, if he had retained an

expert. This speculation is susceptible to the same hindsight bias that courts caution

against, particularly when accompanied with the present knowledge that the chosen

strategy did not prevail. Most significantly, the performance inquiry therefore requires an

objective evaluation of the reasonableness of counsel’s conduct from “counsel’s

perspective at the time.” See id. at 689.

Under this objective standard, appellant has failed to offer sufficient explanation as

to why the chosen strategy, which focused on who committed the crime, rather than the

particulars of the crime itself, was unreasonable. “[S]trategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigations.” Strickland, 466 U.S. at 690-91.

Appellant argues that pursuing both lines of defense would not be inconsistent. While

12
pursuing multiple lines of defense may be an available strategic choice, the decision to

pursue one strategy over the other may also be a reasonable strategic choice. “[W]hen you

add a weak argument to a strong argument, you weaken, not strengthen. The sum in such

a case is worth less than the best of its parts. . . . Your advocacy is never stronger than your

weakest argument.” HERBERT J. STERN & STEPHEN A. SALTZBURG, TRYING CASES TO

WIN IN ONE VOLUME 40 (2013). An argument challenging the sexual assault may have

been reasonably viewed as a weak argument and thus the strategic choice to focus squarely

on a stronger argument challenging who committed the crimes was a reasonable trial

strategy.

A review of the record and the circumstantial evidence of a sexual assault supports

the presumption that it was reasonable to reserve argument challenging the sufficiency of

the sexual assault evidence for motions for judgment of acquittal before the judge in order

to present a more consistent and credible defense theory to the jury. This is especially

reasonable due to the sensitivity of challenging the sexual assault when the victim clearly

suffered extensive injuries, was found naked, and the defense’s theory of the case placed

Melvin sitting on top of her nude body. Further, and highly significant in our view,

appellant testified at trial that he heard moaning prior to entering Ms. Luzer’s bedroom and

therefore attacking the sexual assault evidence may have been considered inconsistent with

appellant’s testimony. Thus, appellant has failed to overcome the presumption that trial

counsel’s actions can be considered sound trial strategy.

13
Even if trial counsel’s performance can be said to be deficient, appellant fails to

meet his burden under the second prong of the Strickland test requiring prejudice be shown.

Although the appellant need not show that the prejudice “more likely than not altered the

outcome in the case,” there must be a “substantial possibility” that but for the prejudice,

the result of the proceeding would have been different. Jones, 138 Md. App. at 207-08,

771 A.2d at 424-25 (internal citations omitted). Given that the expert’s testimony at the

post-conviction hearing was inconclusive and admittedly based on an imperfect report due

to the medical exigencies during the forensic exam, it is unlikely such testimony would

have had a substantial effect on a jury. It is even more unlikely because of the

circumstantial evidence pointing to a sexual assault and, additionally, the other undisputed

life-threatening injuries suffered by the victim. Based on these facts and the evidence

presented at trial, we cannot conclude that there was a substantial possibility that, but for

trial counsel’s failure to investigate and challenge the State’s sexual assault evidence, the

result of the proceeding would have been different. We hold that appellant was not denied

effective assistance of counsel.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.

14