Court for Baltimore County Case No. 03K01001300 Hon. Ruth A.
Meredith Friedman Raker, Irma S. (Senior Judge, specially
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?'"
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.
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.
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
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, 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.
Sina, a Sexual Assault Forensic Examiner nurse (SAFE
witness), testified that she examined Ms. Luzer in the Shock
Trauma Unit. 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.
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.
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.
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 ...