June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RUSHELL FLUKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-02-0608.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 suffices for a conviction under N.J.S.A. 2C:12-1(b)(1). The PCR judge thus reasoned:
Here, we're talking about a charge and conviction of a second degree aggravated assault, which requires the [S]tate to prove, beyond a reasonable doubt, that the defendant either caused or attempted to cause serious bodily injury, as that term is defined in the statute and as that term was defined to the jury.
The argument is made that in order to combat the charge, that it required the testimony of a doctor who the defense believes would have testified that the injuries were not serious bodily injuries, and then go on and say, but we can't supply proof of that without a hearing, because --and -- and I believe from the papers that were submitted, that the doctor, for some reason, is not willing to cooperate. And I -- and I do believe that the doctor is not willing to cooperate.
But the question, and --- and always seemed to me, in this case, that this was a case of attempting to cause serious bodily injury. And no doctor is going to be able to talk or come to a scientific conclusion about what was in Mr. Fluker's mind.
A doctor's testimony, as to whether or not a blow to the head could cause serious bodily injury, is not determinative. It's what the jury determines from the testimony in the case and from all the surrounding circumstances that a jury would have to make the factual finding as to what Mr. Fluker's motivation was.
Medical testimony wouldn't add to that at all. It would if the [S]tate were saying that these injuries were serious bodily injuries, but the -- the [S]tate didn't put anyone on to say -- even the EMT, he didn't say that there was bleeding in the liver, he didn't say that that was serious -- he talked about what his concerns were.
But somebody who struck somebody else in the head was doing it to cause injury, significant bodily injury, serious bodily injury. And what was the motivation? There was testimony, contested testimony, but testimony as to the confrontation, there was testimony about how the bat was swung, there was testimony about what was allegedly said.
From the verdict, one must conclude that the jury, having heard all of the testimony, came to the conclusion that the defendant's intent was to cause serious bodily injury. They don't ever get to the point where they have to come to the conclusion that serious bodily injury was caused.
Could this have been legitimate trial strategy? Perhaps. The defense in this case was, I never hit him with a bat. We got into a mutually agreed upon fight, we fell down a concrete flight of stairs. Not just a wooden flight of stairs, and that's where all of the injuries were sustained.
The PCR court also rejected defendant's argument that counsel was ineffective because he admitted at defendant's sentencing that he should have called the doctor to testify.
Noting that defendant had failed to demonstrate that the doctor would have been able to provide any substantive information beyond the victim's medical records, which were admitted into evidence, the PCR judge concluded:
The fact that on sentence day [defense counsel] stood up and said, I'm at least partially responsible for him being convicted, doesn't impress me, quite frankly. At best, that's a self-serving or client-serving declaration. . . .
I don't think [defense counsel] not calling the doctor was the cause of Mr. Fluker being convicted.
And lastly, in denying defendant's request for an evidentiary hearing, the PCR judge concluded that defendant had failed to establish a prima facie case of ineffectiveness and that, in any event, the proposed medical testimony would not have changed the outcome of the trial:
But, at best, what the doctor could say is what the injuries were, whether or not those injuries actually were serious bodily injury, but even the doctor couldn't say whether or not they were an attempt to cause bodily injury.
Therefore, I don't find the need for an evidentiary hearing. And I do not find that the performance of [defense counsel] fell below an objective standard of reasonableness, and even if it did, given the fact that second degree aggravated assault is either causing or attempting to cause, I don't find that bringing the doctor in would have changed the outcome of the trial.
On appeal, defendant reiterates his argument that an evidentiary hearing was required to determine whether defense counsel was ineffective for failing to present any medical testimony in support of his defense. We reject this claim and affirm substantially for the reasons expressed by the PCR judge in his oral decision of February 14, 2007. We add only the following comments.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). We are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.
Defendant has made no proffer of what the proposed medical testimony would have established to support a finding of any deficiency on counsel's past. Just as wanting was any showing of prejudice as a result of the alleged deficiency. As cogently observed by the PCR judge, any such medical testimony, by its very nature, could not have addressed the element of "intent" to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1), and therefore would not have affected the outcome of the trial. The same reasoning applies to defendant's additional claim on appeal that posits a distinction between "causing serious bodily injury" and the "attempt" to do so, for purposes of NERA sentencing. Suffice it to say, as of June 29, 2001, N.J.S.A. 2C:43-7.1 no longer includes the definition of "violent crime" and instead expressly identifies those crimes to which a NERA enhancement applies, including second-degree aggravated assault, N.J.S.A. 2C:12-1(b), as well as "an attempt or conspiracy" to commit that crime. L. 2001, c. 129, § 1. See also State v. Natale, 348 N.J. Super. 625, 628-29 n.2 (App. Div. 2002), aff'd o.b., 178 N.J. 51 (2003).