Opinion
Case No. 5D19-729
01-17-2020
Giovanni K. VEGA, Appellant, v. STATE of Florida, Appellee.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman and Robin A. Compton, Assistant Attorneys General, Daytona Beach, for Appellee.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman and Robin A. Compton, Assistant Attorneys General, Daytona Beach, for Appellee.
ORFINGER, J.
Giovanni Vega appeals a final order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He asserts two claims for relief. We affirm the summary denial of Vega's second claim without further comment. However, we find merit in Vega's first claim, and reverse for an evidentiary hearing.
UNDERLYING EVENTS
In 1999, following the death of his then-girlfriend's three-year-old son, Xavier Collado, Vega was charged with first-degree felony murder and aggravated child abuse. When confronted by police, Vega initially stated that he was not present when Xavier was injured. That statement was quickly exposed as a lie when Xavier's mother informed the police that Vega had been watching Xavier that day, and called to tell her that Xavier had been hurt when he fell out of the bathtub. Vega then told the police that while he was on the phone, Xavier fell down a flight of stairs. However, the medical professionals who treated Xavier at the hospital suspected child abuse, which the medical examiner later confirmed based on certain findings made during the autopsy.
At Vega's trial in 2001, the State presented the testimony of Dr. Shashi Gore, the Orange County Medical Examiner. Dr. Gore testified that Xavier had sustained a torn frenulum, which in his opinion could have resulted only from someone striking the child. Dr. Gore opined that a fall down the stairs could not have produced the force required to tear the child's frenulum. Dr. Gore also found retinal hemorrhaging during Xavier's autopsy. Dr. Gore concluded that the cause of death was blunt force applied to the child's head as a result of child abuse. Based primarily on the fact that Vega was the only adult with the child at the time of injury and Dr. Gore's testimony, Vega was convicted as charged and sentenced to life in prison. His conviction was affirmed without opinion. Vega v. State, 804 So. 2d 1263 (Fla. 5th DCA 2002).
The frenulum is the flap of skin inside the mouth that holds the upper lip in place.
VEGA'S POSTCONVICTION EFFORTS
In 2002, Vega filed his first rule 3.850 motion, arguing that his trial counsel was ineffective for failing to retain an expert to investigate the possibility that the child died from falling down a flight of stairs. Specifically, Vega alleged that an expert could have disputed Dr. Gore's conclusions because there were no external injuries to the child's lip area, which would have cast doubt on Dr. Gore's conclusion that the torn frenulum was the result of child abuse. The trial court summarily denied the motion, and this Court affirmed without opinion. Vega v. State, 856 So. 2d 1010 (Fla. 5th DCA 2003).
In 2009, Dr. William Anderson, the former Orange County Deputy Medical Examiner, authored a report concerning Xavier's death. Dr. Anderson observed that when Xavier's autopsy was done in 1999, the medical community did not believe "short distance" falls could cause death. However, a series of medical articles changed that view and by 2009, the prevailing belief was that "a ‘short distance’ fall may be a reasonable cause of death when certain medical evidence is apparent." Dr. Anderson opined that "relatively benign moving head injuries can result in the same type of injury we see in this case–specifically a moving head impacting a stationary object or surface with resulting accumulation of blood in the sub-dural space."
Dr. Anderson's report called into question Dr. Gore's original conclusions about Xavier's cause of death, particularly in light of Dr. Gore's failure to conduct any histological tests, which would have been helpful "in making the differential diagnosis between inflicted and accidental head trauma." Dr. Anderson concluded that
[t]he omission of these studies represents a significant departure from accepted forensic medical practice which, had they been done, would have supported the diagnosis of a low-impact, probably accidental, injury in this particular case.
....
In view of these significant deficiencies in the analysis that led to the conclusions to which Dr. Gore testified in this case and the newly discovered changes in medical science, it is my opinion that the findings do not pin-point any time frame as to when the injuries may have occurred or how they occurred, and consequently should not be used to single out any particular potential perpetrator, and also do not exclude, for the reasons listed above, accidental trauma as the manner of death.
It is my opinion that, based upon the available forensic data, it is absolutely reasonable that Xavier Collado died from an accidental fall and that the conclusions based upon the autopsy examination performed by Dr. Shashi Gore is not scientifically sound and not based upon principles of reasonable scientific and medical certainty–often even ignoring information available to the scientific community at the time of the evaluation.
It is also my opinion that, if a competent medical examiner performed the autopsy
of Xavier Collado today, she or he would reasonably not opine with any reasonable degree of medical certainty, that Xavier Collado's death was the result of a homicide to the exclusion of other probable mechanisms, including accidental trauma.
With Dr. Anderson's report in hand, Vega filed a successive rule 3.850 motion in 2010. Vega argued, among other things, that Dr. Anderson's report constituted newly discovered evidence, and thus, was not procedurally barred. The postconviction court summarily denied the motion, concluding that "as the State persuasively argues, the medical articles in question (upon which Dr. Anderson relied) do not qualify as newly discovered evidence." Moreover, "because the records (Dr. Anderson) reviewed and the studies he considered in reaching his opinion were available well over two years before the instant Motion was filed," the claim was untimely.
In February 2004, the Florida Department of Law Enforcement's Medical Examiners Commission found probable cause to believe that Dr. Gore violated Florida law while performing an autopsy in an unrelated case and recommended that Dr. Gore be prohibited from performing autopsies. Instead, Dr. Gore retired. In the 2010 rule 3.850 motion, Vega separately argued that the evidence of Dr. Gore's poor performance was likewise newly discovered evidence. The postconviction court determined that this claim was also procedurally barred.
--------
Vega moved for rehearing, arguing that the date Dr. Anderson issued his report was the date the newly discovered evidence could have been "discovered," or alternatively, the date the articles became generally accepted in the scientific community was the date they were "discovered." The postconviction court denied the motion for rehearing, concluding that Vega was simply seeking to "present new experts, who [drew] different conclusions." Vega appealed, and this Court affirmed without opinion. Vega v. State, 64 So. 3d 692 (Fla. 5th DCA 2011).
In 2012, Vega retained another medical examiner, Dr. Radford Shanklin, who concluded, after reviewing the autopsy and Xavier's hospital records, that the cause of death was septic shock, brought on by meningitis. Based on Dr. Shanklin's report, Vega filed another rule 3.850 motion in 2013, and, after an appeal, was granted an evidentiary hearing. Vega v. State, 135 So. 3d 382, 382 (Fla. 5th DCA 2014). However, Dr. Shanklin died before he could testify, and Vega's then-postconviction counsel either did not, or could not, find an expert to testify to a similar conclusion.
In 2018, Vega filed the successive rule 3.850 motion that is now before us. In that motion, he claimed that a new trial was required to prevent a manifest injustice. He asserted that Dr. Gore's conclusions had been "thoroughly discredited," and pointed to the subsequent discipline of Dr. Gore as well as the reports authored by Dr. Anderson and Dr. Shanklin. The postconviction court summarily denied the motion as procedurally barred because Vega's arguments had been previously raised, denied by the postconviction court, and affirmed on appeal.
On appeal, we must determine whether Dr. Anderson's report constituted newly discovered evidence, and if so, whether the failure to reconsider our earlier decision would result in a manifest injustice, as required to overcome the law of the case.
NEWLY DISCOVERED EVIDENCE
Ordinarily, a defendant has two years from the date his judgment and sentence became final to file a motion for postconviction relief. Fla. R. Crim. P. 3.850(b). An exception to this rule exists when
the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.
Thus, to raise a claim based on newly discovered evidence, the defendant must satisfy two requirements. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). First, "the evidence ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.’ " Id. (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994) ). Second, "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Id. (citing Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) ). This second prong is also satisfied if the evidence "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Hildwin v. State, 141 So. 3d 1178, 1181 (Fla. 2014) (quoting Jones, 709 So. 2d at 521 ). "To reach this conclusion the trial court is required to ‘consider all newly discovered evidence which would be admissible’ at trial and then evaluate the ‘weight of both the newly discovered evidence and the evidence which was introduced at the trial.’ " Jones, 709 So. 2d at 521 (quoting Jones, 591 So. 2d at 916 ). When examining the second prong, the trial court must consider factors such as whether the new evidence would have been admissible; whether the new evidence goes to the merits of the case or would merely be impeachment evidence; whether the new evidence would be cumulative; and the "materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence." Id.
A defendant who "seeks to present new experts, who draw different conclusions, does not present a claim of newly discovered evidence." Fuster v. State, 664 So. 2d 18, 20 (Fla. 3d DCA 1995) (citing Elledge v. Graham, 432 So. 2d 35 (Fla. 1983) ). Similarly, the Florida Supreme Court has generally "not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence." Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007) ; accord Long v. State, 271 So. 3d 938, 941-43 (Fla. 2019) ; Branch v. State, 236 So. 3d 981, 985-87 (Fla. 2018) ; Davis v. State, 142 So. 3d 867, 874-76 (Fla. 2014) ; Morton v. State, 995 So. 2d 233, 245-46 (Fla. 2008). However, in some cases, recent medical studies, reports, and articles—not available at the time of trial—have been held to constitute newly discovered evidence. See Clark v. State, 995 So. 2d 1112, 1113 (Fla. 2d DCA 2008). Similarly, case specific studies that cast doubt on critical state evidence can also constitute newly discovered evidence, Wyatt v. State, 71 So. 3d 86, 99-100 (Fla. 2011), provided that the study or report is more than just a new opinion based on a compilation of analyses of previously existing data and scientific information. Henry v. State, 125 So. 3d 745, 750 (Fla. 2013).
THE LAW OF THE CASE AND MANIFEST INJUSTICE
To avoid the procedural bar of this Court's prior affirmance of the same claim, Vega must demonstrate a manifest injustice–"an exception to procedural bars to postconviction claims in only the rarest and most exceptional of situations ...." Cuffy v. State, 190 So. 3d 86, 87 (Fla. 4th DCA 2015). Merely "[i]ncanting the words ‘manifest injustice’ does not excuse the procedural bar[ ]." McClellion v. State, 186 So. 3d 1129, 1132 (Fla. 4th DCA 2016). This is true because this Court's earlier decision is the law of the case. The doctrine of the law of the case is a principle of judicial estoppel. Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 102 (Fla. 2001). It requires that questions of law actually decided on appeal must govern the case in the appellate court and in the lower tribunal in all subsequent stages of the proceeding. Id. Its purpose is "to lend stability to judicial decisions and the jurisprudence of the state, as well as to avoid ‘piecemeal’ appeals and to bring litigation to an end as expeditiously as possible." Strazzulla v. Hendrick, 177 So. 2d 1, 3 (Fla. 1965). The doctrine is "a self-imposed restraint that courts abide by." State v. Owen, 696 So. 2d 715, 720 (Fla. 1997). Decisions made by an appellate court "will seldom be reconsidered or reversed, even though they appear to have been erroneous." McGregor v. Provident Tr. Co., 119 Fla. 718, 162 So. 323, 327 (1935). An appellate court will reconsider its earlier decision only when " ‘manifest injustice’ will result from a strict and rigid adherence to the rule." Strazzulla, 177 So. 2d at 4. But, when "the court finds that a manifest injustice has occurred, it is the responsibility of that court to correct the injustice if it can." Adams v. State, 957 So. 2d 1183, 1186 (Fla. 3d DCA 2006) (citing Baker v. State, 878 So. 2d 1236, 1246 (Fla. 2004) ). "Under Florida law, appellate courts have ‘the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.’ " State v. Akins, 69 So. 3d 261, 268 (Fla. 2011) (quoting Muehleman v. State, 3 So. 3d 1149, 1165 (Fla. 2009) ). "[T]he ‘law of the case’ does not rigidly bind a court to its former decisions, but is only addressed to its good sense." Higgins v. Cal. Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir. 1924). In other words, "[l]aw of the case directs a court's discretion, it does not limit the tribunal's power." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (citing S. Ry. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283 (1922) ; Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) ). But, defining what constitutes manifest injustice is more art than science.
Generally speaking, a showing of manifest injustice "requires, at a bare minimum, ‘a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong’ and resulted in prejudice." United States v. Moran, 393 F.3d 1, 8 (1st Cir. 2004) (quoting Ellis v. United States, 313 F.3d 636, 648 (1st Cir. 2002) ). Put another way, to establish manifest injustice, the reviewing court must be "left with the definite and firm conviction that a mistake has been committed." Smith v. Clark Cty. Sch. Distr., 727 F.3d 950, 955 (9th Cir. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). The error must also affect the defendant's substantial rights. See United States v. Keppler, 2 F.3d 21, 24 (2d Cir. 1993). "To show that an error affected one's substantial rights, the defendant must show that there is a reasonable probability of a different result in the outcome of [the] case." United States v. Rozier, 685 F. App'x 847, 851 (11th Cir. 2017).
Here, Dr. Anderson concluded that at the time the autopsy was conducted in 1999, the general consensus opinion in the forensic medical community was that the injury Xavier sustained was the result of a high-velocity impact injury indicative of abuse. However, based on various articles and studies, some of which were available shortly after Vega's trial, though the majority came later, the forensic medical community has since come to recognize the injuries that Xavier sustained can result from "relatively benign moving head injuries" and not abuse. The State concedes Dr. Anderson's report meets the first prong of the newly discovered evidence requirement—the evidence was unknown to the trial court, Vega or trial counsel and could have not been discovered with reasonable diligence. See Jones, 709 So. 2d at 521. But the State contends that the report would not likely produce an acquittal on retrial or weaken the case against Vega so as to give rise to a reasonable doubt as to his culpability. See id. at 526. We disagree. Given the advances in forensic medicine, Dr. Anderson's report raises significant doubts about the reliability, and therefore the admissibility, of Dr. Gore's conclusions. See Smith v. State, 23 So. 3d 1277, 1279 (Fla. 2d DCA 2010) (Altenbernd, J., specially concurring). The State's case consisted largely of the fact that Vega was the only adult with Xavier at the time the child was injured and Dr. Gore's opinion that the child's injury, and ultimate death, were the result of abuse. Dr. Anderson's evidence certainly weakens the State's case against Vega and casts doubt on the validity of his conviction.
The State correctly argues that Vega raised this same claim in 2010 and that the postconviction court and this Court rejected it. Hence, the State contends the law of the case requires both the trial court and this Court to reject the claim as procedurally barred. We are bound to do so unless we determine that doing so would result in a manifest injustice. Based on the unique facts in this case, we believe a manifest injustice has occurred and that reconsideration of Vega's previously rejected claim is warranted. As we have explained, Dr. Anderson's report satisfied the test for newly discovered evidence because it was both case specific and suggested a significant change in the consensus view of the medical community regarding the cause of the fatal injury. And nothing could be more manifestly unjust than having a murder conviction rest largely on the testimony of, and an autopsy done by, a medical examiner whose work has been called into doubt, both by the FDLE and Dr. Anderson, and when apparent advances in forensic science appear to substantially weaken the opinions reached.
Accordingly, we reverse the order as to claim one and remand for an evidentiary hearing. We affirm the denial of claim two.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
EDWARDS and EISNAUGLE, JJ., concur.