In re the Personal Restraint of Morris
In re the Personal Restraint of Morris
Opinion of the Court
¶1
Michael James Morris seeks collateral relief from the judgment and sentence following his conviction of first degree assault of his six-week-old baby, A.M. Because he fails in his burden to show that he was actually and substantially prejudiced by his trial counsel’s performance, we deny his petition for relief.
¶2 A jury convicted Morris of assault in the first degree.
¶3 Approximately 10 minutes after Brittany
¶4 A.M. was immediately transferred to Harborview Medical Center.
¶5 Two days later, Dr. Kenneth Feldman examined A.M.
¶6 Later that day, A.M. was transferred to Seattle Children’s Hospital. An MRI (magnetic resonance imaging) confirmed that there was bleeding in A.M.’s brain and that areas of her brain were “ ‘quite damaged.’ ”
¶7 At Children’s, pediatric ophthalmologist Dr. Erin Herlihy, who also testified at trial, examined A.M. on the
¶8 A police officer interviewed Morris shortly after the incident. He told the officer that he ran across the street without supporting A.M.’s head.
f 9 Thereafter, the State charged Morris with assault of a child in the first degree. It alleged as an aggravating factor that Morris knew or should have known that A.M. was particularly vulnerable and incapable of resistance.
¶10 At trial, the State called a number of witnesses, including several treating doctors, social workers, Brittany Morris, Dr. Feldman, and Dr. Herlihy.
¶11 The defense theory was that an acceleration/deceleration force did not cause A.M.’s injuries. The defense called Dr. Steven Gabaeff and Dr. Patrick Barnes.
¶12 The jury convicted Morris as charged. Morris appealed, arguing that insufficient evidence supported the conviction. This court affirmed the conviction.
¶13 Morris timely moved for relief of judgment pursuant to CrR 7.8(c)(2). The superior court transferred his motion to this court for consideration as a personal restraint petition.
INEFFECTIVE ASSISTANCE OF COUNSEL
¶14 Morris first argues that he was denied his right to effective assistance of counsel. Specifically, he argues that his trial counsel “failed to competently challenge the State’s expert’s opinion on causation” and failed to expose the flaws in the State’s case.
f 15 To obtain relief on collateral review based on constitutional error, the petitioner must demonstrate by a preponderance of the evidence that he was actually and
¶16 The right to counsel includes the right to effective assistance of counsel.
¶17 First, the defendant must show that counsel’s performance was deficient.
¶18 We make every effort “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.”
f 19 Second, the defendant must show that the deficient performance prejudiced the defense.
Frye and ER 702
¶20 Morris first argues that his trial counsel “failed to competently challenge the State’s expert’s opinion on causation.”
¶21 Washington courts evaluate expert testimony under the Frye test.
¶22 If the Frye test is satisfied, the trial court must then determine whether to admit expert testimony under ER 702.
¶23 Here, Dr. Feldman testified that A.M. suffered “abusive head trauma.”
¶24 This testimony satisfied the Frye standard. Abusive head trauma as a diagnosis, and shaking as a cause of such injuries, are generally accepted theories in the relevant scientific community. At trial, the State offered position papers from the American Academy of Pediatrics, the Academy of Ophthalmology, and the National Association of Medical Examiners, as well as a publication from the Centers for Disease Control and Prevention.
¶26 Dr. Feldman’s testimony also satisfied ER 702. Dr. Feldman clearly qualified as an expert. He had practiced pediatric medicine for 40 years at the time of trial and had worked as a child abuse specialist for 28 years.
¶[27 Moreover, Dr. Feldman’s testimony did not mislead the jury. He testified that he reached his diagnosis by conducting a “differential diagnosis,” where he system
¶28 Further, Dr. Feldman testified that there is “a lot of skepticism whether shaking can cause these injuries” and “a lot of skepticism for the evidence base behind it.”
¶29 In sum, given the evidence of general acceptance in the relevant scientific community, Morris fails to show that counsel’s performance was deficient for failing to insist on a Frye hearing.
f 30 Likewise, Morris fails to show that his counsel’s performance was deficient for failing to challenge this evidence under ER 702. It is reasonable to conclude that trial counsel’s decision to challenge Dr. Feldman’s testimony through cross-examination was strategic. We note that Morris fails to present a declaration from his trial counsel to indicate otherwise. This omission is telling.
|31 Finally, “there is no ineffectiveness if a challenge to admissibility of evidence would have failed.”
¶33 Morris relies on Bowers v. Norfolk Southern Corporation to distinguish a “differential diagnosis” from a “differential etiology.”
¶34 This is unpersuasive. As already explained, Dr. Feldman reached his conclusion though a differential diagnosis. He systematically excluded other conditions in order to reach a valid diagnosis of abusive head trauma. And he was not focused on the specific mechanism that caused the injuries. In short, Bowers is distinguishable.
¶35 Morris next makes several arguments that Dr. Feldman’s testimony was unreliable. Most of his challenges go to the weight, not the admissibility, of the testimony. And none of his arguments are persuasive.
¶36 First, Morris argues that Dr. Feldman’s opinion is unreliable because “his diagnosis ruled in a cause incapable of causing the injuries at issue.”
¶38 Second, while some biomechanical studies do undermine the theory that shaking can cause such injuries, these studies are not conclusive. As a 2009 Policy Statement from the American Academy of Pediatrics states, “Biomechanical modeling has since been used to both support and refute the contributions of shaking or impact to abusive head trauma.”
¶39 Further, other studies indicate that shaking can cause the kind of injuries observed in A.M. For example, a 2010 Information Statement from the American Academy of Ophthalmology states, “Currently, there is abundant evidence from multiple sources (perpetrator confessions, clinical studies, postmortem studies, mechanical models, animal models and finite element analysis) that repetitive acceleration-deceleration with or without head impact is injurious . . . .”
¶40 Moreover, Dr. Feldman acknowledged that there is skepticism whether shaking can cause such injuries.
¶41 Second, Morris contends that Dr. Feldman’s opinion is unreliable because “the current knowledge base does not support making definitive conclusions on causation.”
¶42 In support of this argument, Morris cites Del Prete v. Thompson.
¶44 Third, Morris asserts that Dr. Feldman’s opinion is unreliable because “the evidence-base for shaking is admittedly weak and non-scientific.”
¶45 It is true that several of these studies rely on perpetrator confessions in order to determine whether there are characteristic injuries that indicate abuse. And Dr. Feldman testified that he relied on these studies and confessional data. But the scientists who conducted these studies considered the confessions reliable. We reject Morris’s invitation to conclude that these confessional studies are unreliable as a matter of law. Further, other studies support abusive head trauma as a diagnosis. As one recent article states, “[T]here have been at least eight systematic reviews, over fifteen controlled trials, over fifty comparative cohort studies or prospective cases series, and numerous well-designed, retrospective case series/reports, comprising thousands of cases, supporting the diagnosis of [abusive head trauma].”
¶47 But again, other studies support the conclusion that these symptoms are reliable indicators of abuse. For example, one article cited by the State indicates that there is “a clear, strong, and highly statistically significant association of [subdural hematomas] and [retinal hemorrhages] with trauma.”
¶48 Fifth, Morris argues that A.M.’s posttrial head injury illustrates the unreliability of Dr. Feldman’s conclusion.
¶49 But this evidence does not establish that Dr. Feldman’s testimony was unreliable. In fact, this evidence appears to support Dr. Feldman’s opinion, as it indicates
¶50 Finally, Morris argues that “[t]rial counsel’s failure to know the biomechanical literature and the history of [the abusive head trauma] hypothesis, confirming that the evidence-base for shaking is weak and now anchored in confessions only, is inexcusable.”
Cross-Examination
¶51 Morris next argues that his trial counsel failed to effectively confront the State’s “misleading evidence.”
¶52 Decisions on how to conduct cross-examination are strategic.
¶53 First, Morris contends that it was misleading for Dr. Feldman to give “[t]he impression that the evidence-base in support of [abusive head trauma] is strong.”
¶54 But trial counsel questioned Dr. Feldman about the evidence base in support of abusive head trauma. She asked
¶55 Trial counsel also asked Dr. Feldman about the lack of witnesses and the lack of literature:
[Trial counsel]: It’s never been witnessed that shaking causes these injuries?
[Dr. Feldman]: As far as I know, right.
[Trial counsel]: Now, that’s part of the evidence-based medicine we talked about, correct?
[Dr. Feldman]: It is.
[Trial counsel]: And, again, there’s no literature about that in this field?
[Dr. Feldman]: Right. That, obviously, would be the gold standard, but we don’t have it yet.[109 ]
¶56 Further, trial counsel pointed to two studies, the “Donohoe study” and a study by Dr. Jan E. Leestma, to attempt to demonstrate that the evidence base was weak:
[Trial counsel]: And there was an article by Dr. Lee[st]ma in 2001,1 believe, correct?
[Dr. Feldman]: Correct.
[Trial counsel]: And he essentially confirmed Dr. Donohoe — I believe you said Donohoe, D-O-N-O-H-O-E?
[Dr. Feldman]: Yeah.
[Trial counsel]: That the evidence base was weak, correct?
[Dr. Feldman]: Yeah. Lee[st]ma, again, did a very poor study to come to his conclusions. He only included case reports that had individual data. He ignored all of the body of literature that had some data on a number of patients. So he came to the*503 conclusion that he desired to come to, but there wasn’t a good database, but it was a lousy review.
[Trial counsel]: And he looked at 54 cases from 1969 to 2001?
[Dr. Feldman]: Correct.
[Trial counsel]: And, again, he concluded that there wasn’t
enough evidence base to support this?
[Dr. Feldman]: That was his conclusion.[110 ]
¶57 In short, trial counsel adequately questioned Dr. Feldman about the evidence base in support of abusive head trauma. Morris fails to show deficient performance.
¶58 In general, Morris argues that trial counsel should have questioned Dr. Feldman on his criticisms of the Donohoe study, should have pointed out that the underlying data supporting the theory relies on confessions, and should have pointed out flaws in studies relied on by Dr. Feldman such as the problem of “circular bias.”
¶59 But, as Strickland notes, “Even the best criminal defense attorneys would not defend a particular client in the same way.”
160 Second, Morris contends that it was misleading for Dr. Feldman to claim that the injuries could be precisely timed. And he argues that trial counsel should have used available studies on the topic of “lucid intervals” to estab
¶61 But Dr. Feldman did not claim that this injury could be precisely timed. Rather, he testified that there “should be” some behavioral alteration in the child at the time of the event and that the “vast majority” of studies indicate that children are immediately symptomatic.
¶62 In any event, trial counsel questioned Dr. Feldman on the topic of timing. On cross-examination, Dr. Feldman admitted that while he had indicated that 95 percent of the time there is an immediate onset of symptoms, 95 percent is a number that he “just pulled . . . out of the air.”
¶63 Trial counsel also questioned Dr. Feldman about lucid intervals.
¶65 Morris also asserts that if trial counsel had used the studies available on the issue of lucid intervals, “she could have established through Dr. Feldman the facts supporting a motion to dismiss: That he could not state precisely when the injury occurred.”
¶66 Finally, even if we agreed that counsel’s performance was deficient for any of these reasons, Morris fails in his burden to show prejudice. There is simply no showing in this record that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
¶67 First, the main thrust of Morris’s challenge is to the admission of evidence by Dr. Feldman. This tactic ignores other significant evidence in this record.
¶69 Six weeks after this initial examination, the doctor examined A.M. again. Her conclusions remained unchanged.
¶70 Second, we have the undisputed fact that A.M. had been “acting normally” that day, according to her mother’s testimony. Nothing had changed when she left A.M. with her father that night. Ten minutes after she left the baby with Morris, the incident we described earlier in this opinion started.
¶71 Third, we have Morris’s statements. He admitted to investigating officers that he shook A.M. twice, the second time harder than the first. And Morris sent A.M.’s mother a text message admitting that he had shaken A.M. and apologized, questioning if he was a bad parent.
¶72 Accordingly, had the court excluded the evidence provided by Dr. Feldman, it is unlikely the outcome of this
¶73 At oral argument in this proceeding, Morris advanced the theory that Dr. Feldman’s testimony was the only evidence of timing of the injuries.
¶74 But as we just discussed, Morris admitted twice shaking the child when she was in his care, 10 minutes after her mother left with A.M. acting normally. He also admitted shaking her harder the second time. His text message to the mother, apologizing for shaking her, is also relevant and material.
¶75 Given this and the other evidence at trial, a jury could find beyond a reasonable doubt that Morris caused the injuries when the child was in his care and that the injuries were caused by him shaking her. This record simply does not rationally support any other scenario. Thus, the exclusion of Dr. Feldman’s testimony would not undermine the jury’s verdict.
DUE PROCESS
¶76 Finally, Morris argues that his due process rights were violated “by the State’s presentation of evidence it knew, or should have known was false and misleading.”
¶77 Morris cites federal cases either involving Brady
¶78 We deny his petition for relief.
State v. Morris, noted at 173 Wn. App. 1013, 2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *1.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *2.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *2.
Due to the similarity in names, this opinion uses Brittany Morris’s first name for clarity.
Morris, 2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *2.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *2.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *2.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *2-3.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *3.
2013 WL 503140, at *1, 2013 Wash. App. LEXIS 284, at *4.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *4.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *4.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *4.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *4 (alteration in original).
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5-6.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *5-6.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *6.
2013 WL 503140, at *2, 2013 Wash. App. LEXIS 284, at *6.
2013 WL 503140, at *3, 2013 Wash. App. LEXIS 284, at *6.
2013 WL 503140, at *3, 2013 Wash. App. LEXIS 284, at *7.
2013 WL 503140, at *3, 2013 Wash. App. LEXIS 284, at *7.
2013 WL 503140, at *3, 2013 Wash. App. LEXIS 284, at *7.
2013 WL 503140, at *3, 2013 Wash. App. LEXIS 284, at *7.
2013 WL 503140, at *3, 2013 Wash. App. LEXIS 284, at *7-8.
2013 WL 503140, at *9, 2013 Wash. App. LEXIS 284, at *24.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 1.
In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).
In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).
Strickland, v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Crawford, 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).
Strickland, 466 U.S. at 687.
Id. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
Strickland, 466 U.S. at 687.
Id. at 688.
Id. at 689.
Id.
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)).
id.
Id. at 687.
Id. at 694.
Id.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 1.
54 App. D.C. 46, 293 F. 1013 (1923).
In re Det. of Thorell, 149 Wn.2d 724, 754, 72 P.3d 708 (2003).
Id. (internal quotation marks omitted) (quoting In re Pers. Restraint of Young, 122 Wn.2d 1, 56, 857 P.2d 989 (1993)).
Id. (alterations in original) (internal quotation marks omitted) (quoting Young, 122 Wn.2d at 56).
State v. Copeland, 130 Wn.2d 244, 256, 922 P.2d 1304 (1996).
Id.
Id.
Report of Proceedings (June 3, 2011) at 13.
Id. at 5.
Id. at 7.
Id. at 16-17.
State’s Motion to Transfer Motion for Relief from Judgment, Exhibit 5 (Trial Exhibits 28, 29, 30, 31).
Id. at Exhibit 6 (Sandeep Narang, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, 11 Houston J. Health L. & Pol’y 505, 574-76 (2011)).
Narang, supra, at 574-76.
Id. at 583.
Id. at 593.
Report of Proceedings (June 2, 2011) at 96-97.
Id. at 102, 109.
State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004).
Report of Proceedings (June 2, 2011) at 122; Report of Proceedings (June 3, 2011) at 13.
See Report of Proceedings (June 3, 2011) at 2-13.
See Memorandum in Support of CrR 7.8 Motion for Relief From Judgment or Order at 20.
Narang, supra, at 585.
Report of Proceedings (June 3, 2011) at 21.
Id. at 21-29, 40-47.
State v. Nichols, 161 Wn.2d 1, 14-15, 162 P.3d 1122 (2007).
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 20 (citing Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1360 (M.D. Ga. 2007)).
See Bowers, 537 F. Supp. 2d at 1360-62.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 17.
id at 18.
State’s Motion to Transfer Motion for Relief from Judgment, Exhibit 5 (Cindy W. Christian et al., Policy Statement: Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409 (2009).
State’s Motion to Transfer Motion for Relief from Judgment, Exhibit 5 (Am. Acad, of Ophthalmology, Information Statement: Abusive Head Trauma/Shaken Baby Syndrome (May 2010).
Report of Proceedings (June 3, 2011) at 21.
Id. at 22-25.
Id. at 27-28.
See Thorell, 149 Wn.2d at 756; In re Det. of Campbell, 139 Wn.2d 341,358,986 P.2d 771 (1999).
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 21.
Id.
Id. at 23.
10 F. Supp. 3d 907 (N.D. III. 2014).
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 24.
Id. at 25.
Narang, supra, at 540 (emphasis in original).
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 29-30.
Id. at 29.
Id.
Narang, supra, at 571.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 30-31.
Id. at 31.
Id. at 27.
Id. at 31.
In re Pers. Restraint of Stenson, 142 Wn.2d 710, 736, 16 P.3d 1 (2001).
Davis, 152 Wn.2d at 720 (quoting State v. Stockman, 70 Wn.2d 941, 945, 425 P.2d 898 (1967)).
Id. (quoting Stockman, 70 Wn.2d at 945).
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 32.
Report of Proceedings (June 3, 2011) at 41-44.
Id. at 41.
Id. at 45-46.
Id. at 46.
Strickland, 466 U.S. at 689.
See Narang, supra, at 533.
Id. at 562.
Report of Proceedings (June 3, 2011) at 17, 18.
Id. at 18.
Id. at 93-99.
Id. at 94.
Id.
Id. at 97-98.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 37.
Id. at Appendix Z (M.G.E Gilliland, Interval Duration Between Injury and Severe Symptoms in Nonaccidental Head Trauma in Infants and Young Children, 43 J. Forensic Sci. 723, 724 (1998)).
Report of Proceedings (June 10, 13, 2011) at 789-91.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 39.
Strickland, 466 U.S. at 694.
Report of Proceedings (June 6, 2011) at 301-05.
Id. at 307-12.
Id. at 312.
Id. at 313.
Id. at 314.
Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order at 1-2.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Reference
- Full Case Name
- In the Matter of the Personal Restraint of Michael James Morris
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- 12 cases
- Status
- Published