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State v. Fluker

June 20, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUSHELL FLUKER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-02-0608.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 27, 2008

Before Judges Parrillo and Gilroy.

Defendant Rushell Fluker appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and related weapon offenses, N.J.S.A. 2C:39-5(d) and N.J.S.A. 2C:39-4(d). He was sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), to an extended term of thirteen years with an 85% period of parole ineligibility, N.J.S.A. 2C:43-7.2, on ten of the thirteen years. Defendant's aggravated assault conviction stems from an incident which occurred on August 13, 2002 on the front porch of the home of his ex-girlfriend, Denise Williams, wherein defendant swung a baseball bat at her boyfriend, Darren Bennett, hitting him across the head. The two men fell off the porch and Bennett, who injured his knee, started to run away, bleeding profusely from his head. Defendant caught up with Bennett and again began striking him in the back of the head with the bat. Bennett once more tried to escape, but became dizzy and fell down. Defendant continued striking Bennett with the bat, beating him in the chest cavity area. Defendant then ran back to Williams' home while Bennett fled down South Orange Avenue towards the hospital.

Responding to Williams' call, police and emergency personnel arrived at Williams' home and she directed them towards Bennett who had blood on his face and clothing, and appeared as though he had lost consciousness. A paramedic, Wesley Rusk, Jr., noted that Bennett had low blood pressure, lacerations on his head, skinned knees, and a bruise on his upper right quadrant. Rusk was concerned about Bennett as he was pale, his blood pressure was low, and he had lost blood from his head. Rusk was also concerned that the upper right quadrant area where Bennett was struck was close to the liver, and a laceration to the liver could have been fatal. At the hospital, Bennett was taken into the emergency room and treated for his injuries. He had a bruise on his chest, bruised ribs, torn skin on one hand, and his knee was swollen. He was sent for x-rays and a CAT scan, and had his lacerations stitched. He received twelve stitches on the right side of the forehead, and has a permanent scar. In addition, Bennett received fifteen stitches where he was hit in the back of the head.

Defendant appealed from the judgment of conviction, arguing, among other things, that his counsel was ineffective for failing to call a medical doctor as a defense witness. We affirmed,*fn1 noting that defendant's claim of ineffective assistance of counsel is more appropriately the subject of a PCR petition. State v. Fluker, No. A-2479-03T4 (App. Div. Apr. 28, 2005) (slip op. at 19, 21). The Supreme Court denied defendant's petition for certification. State v. Fluker, 185 N.J. 36 (2005).

The instant PCR petition followed. Therein, defendant raised the following issues in the Law Division:

I. DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO CALL AS WITNESSES EITHER OF THE DOCTORS WHO TREATED DARREN BENNETT.

A. IN FAILING TO CALL ONE OF THE DOCTORS WHO TREATED DARREN BENNETT, DEFENSE COUNSEL'S CONDUCT FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS.

B. AN EVIDENTIARY HEARING IS ESSENTIAL TO ENABLE PETITIONER TO DEMONSTRATE THAT THERE EXISTS A REASONABLE PROBABILITY THAT BUT FOR HIS ATTORNEY'S DEFICIENCIES, THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT.

II. DEFENDANT IS ENTITLED TO A RECONSIDERATION OF SENTENCE IN ACCORDANCE WITH THE PRINCIPLES SET FORTH BY THE SUPREME COURT IN STATE V. PIERCE.

Following argument, the PCR judge denied defendant's petition without an evidentiary hearing,*fn2 concluding that defendant's proposed medical testimony would not have assisted the jury in determining whether it was the defendant's intention to attempt to cause serious bodily injury, which ...


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