Opinion
C. A. PM-2019-3924
02-24-2020
DANIELLE LEFEBVRE v. STATE OF RHODE ISLAND
For Plaintiff: Kathleen A. Nee, Esq. For Defendant: Shannon Signore, Esq.
For Plaintiff: Kathleen A. Nee, Esq.
For Defendant: Shannon Signore, Esq.
DECISION
VOGEL, J.
Danielle Lefebvre brings this application for post-conviction relief asserting that she did not receive effective assistance of counsel at trial and that the Court should grant her application and order a new trial. On March 24, 2015, Ms. Lefebvre was convicted by a jury of first-degree child abuse in causing horrific permanent injuries to her seven-week old infant son. This Court denied Ms. Lefebvre's motion for a new trial and sentenced her to twenty years at the Adult Correctional Institutions, with eighteen years to serve and the balance suspended with probation. The Supreme Court affirmed the conviction on January 7, 2019. For the reasons set forth in this Decision, the Court denies Ms. Lefebvre's application for post-conviction relief.
I Standard of Review
The standard by which a hearing justice considers a petition for post-conviction relief based upon a claim of ineffective assistance of counsel is clear. To prevail on a petition for post-conviction relief, an applicant must demonstrate by a fair preponderance of the evidence that the conviction violated her constitutional rights requiring that the conviction be vacated "in the interest of justice." Mattatall v. State, 947 A.2d 896, 901 (R.I. 2008); see also Washington v. State, 989 A.2d 94, 98 (R.I. 2010); Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007); Page v. State, 995 A.2d 934, 942 (R.I. 2010). In Rhode Island, the Court patterns its evaluation of ineffective assistance of counsel cases "under the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001); see also Washington, 989 A.2d at 99; Armenakes v. State, 821 A.2d 239, 245 (R.I. 2003). In applying Strickland, the hearing justice must determine '"whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."' Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000) (quoting Strickland, 466 U.S. at 686).
The standard enunciated in Strickland has two prongs. Strickland, 466 U.S. at 687. First, an applicant must demonstrate "that counsel's performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guaranteed by the Sixth Amendment." Brennan, 764 A.2d at 171; see also Strickland, 466 U.S. at 687. In other words, the applicant must prove that trial counsel's performance fell "below an objective standard of reasonableness * * * considering all the circumstances." Brennan, 764 A.2d at 171 (internal quotation marks omitted); see Strickland, 466 U.S. at 688; see also Rodrigues v. State, 985 A.2d 311, 315 (R.I. 2009) ("The Court will reject an allegation of ineffective assistance of counsel unless a defendant can demonstrate that counsel's advice was not within the range of competence demanded of attorneys in criminal cases.") (Internal quotation omitted.) There is a strong (but rebuttable) presumption "that counsel's performance was competent." Gonder v. State, 935 A.2d 82, 86 (R.I. 2007); see also State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994).
If deficient performance is found to have existed, the Court proceeds to the second step or "prong" of the Strickland analytical scheme. In that second step, the applicant must demonstrate that the "deficient performance was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial." Brennan, 764 A.2d at 171; see Strickland, 466 U.S. at 687. Additionally, the prejudice prong of the Strickland test requires the applicant to show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 (emphasis added). Unless an applicant satisfies both prongs of the Strickland test, '"it cannot be said that the conviction or * * * sentence resulted from a breakdown in the adversary process that renders the result unreliable."' Simpson v. State, 769 A.2d 1257, 1266 (R.I. 2001) (quoting Strickland, 466 U.S. at 687); see also Hazard v. State, 968 A.2d 886, 892 (R.I. 2009) ("[T]he applicant's failure to satisfy either prong will result in the denial of the claim of ineffective assistance of counsel.").
II Facts and Background
To put this application in perspective, the Court will review certain pertinent evidence adduced at trial. The infant presented to the Hasbro Children's Hospital for emergency treatment on Wednesday, October 19, 2011, at which time medical staff performed a head CT scan and a skeletal survey of his body. Those tests revealed multiple injuries, including complex skull fractures with subdural and subarachnoid hemorrhages and brain contusions, all of which were life threatening and which have caused serious permanent damage. He was admitted to the hospital, and while an inpatient on November 3, 2011, he was x-rayed, and it was determined that he also sustained rib fractures. It is undisputed that rib fractures do not often appear on x-ray immediately, and the baby's rib fractures are consistent with having been suffered on October 18, 2011 or a few days one side or the other of that date.
There is no evidence that the infant had any pre-existing conditions. His birth was uncomplicated, and by all accounts, Ms. Lefebvre delivered a healthy baby boy just seven weeks earlier.
Ms. Lefebvre testified at trial as to her version of how the injuries occurred. Her testimony just was not credible, and the Court and likely the jury discounted it and rejected her claim that the baby suffered his life-threatening injuries in an accidental short-fall from her bed.
Other witnesses and statements given by Ms. Lefebvre herself portrayed her as someone who never bonded with the baby, felt resentful and angry toward him, and demonstrated aggressiveness in caring for the newborn, even shaking him and throwing him on the bed just to get away from him.
The first witness called by the State was Sgt. Carl Weston of the Providence Police Department assigned to the Youth Services Bureau. He provided compelling testimony as to Ms. Lefebvre's admitted failure to bond with the baby and her aggressiveness toward the seven-week old infant. She admitted to him that she had indeed shaken the baby. Sgt. Carl Weston obtained a recorded interview with Ms. Lefebvre on October 22, 2011, after giving her the Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). That recorded statement was played for the jury, and they likely were struck by her demeanor in that audio interview. Her baby was in critical condition. Yet, Ms. Lefebvre's manner appeared matter-of-fact. She sounded cold and detached. However, even more than her demeanor, Ms. Lefebvre's words were very damaging to her case.
She told Sgt. Weston that she had been sitting at the foot of her bed against the foot board (not the head of the bed by the pillows) and that the baby had been cradled on her stomach or on her chest. She dozed off, and when she woke up, the baby was on the hardwood floor next to the bed crying. It was mid-day on October 18, 2011, and her plan was to take the infant to her grandmother's home for an overnight stay. Ms. Lefebvre was scheduled to return to work for the first time after her maternity leave the next day, Wednesday, October 19, 2011. The Court, and likely the jury, found the explanation of her sitting against the foot board convenient because if she had been sitting in any other location on the bed, the baby would have fallen entirely on an area rug. Even in her version of events, part of the infant would have landed on the rug. The bed was standard height, 2.5 to 3 feet. She stated that when she first found the baby on the floor, the whole back of his head was red, but that the redness faded.
In spite of the age of the infant, the fact that he supposedly fell, and that the whole back of his head was red, she virtually disregarded the incident and proceeded to take the baby to her grandmother without even mentioning the fall to the caregiver. By noon the next day, her grandmother told her over the telephone that the baby had rapid eye movement or twitching. He was listless, and her grandmother expressed concerns for his well-being. Nonetheless, Ms. Lefebvre remained at work until 1:30 p.m. The Court, and likely the jury, would have been shocked that she did not make sure the baby got immediate medical attention, particularly if she knew the baby had fallen the day before.
Instead, Ms. Lefebvre went to her grandmother's house, arriving around 2:30 p.m. She noted at that time that the baby didn't look right. He was relatively limp and had rapid eye movement. At that point, she acknowledged thinking that maybe the fall from the bed was causing the problem. Instead of rushing him to the hospital, she took him home, changed his clothes, tried to feed him, etc. and didn't arrive at the Hasbro Children's Hospital until 4:15 p.m. or so. Her grandmother's home was a five-minute drive from her own home in Providence, at 343 River Avenue. Ms. Lefebvre lived a fairly short distance from the hospital. The Court, and likely the jury, were shocked at the lapse in time from her initial appearance at her grandmother's house to her arrival at the hospital.
The next day, Thursday, October 20, 2011, a representative from the Rhode Island Department of Children, Youth, and Families (DCYF), Bridget Crook, met with her at the hospital. After hearing Ms. Lefebvre's version of the so-called accidental fall, she told Ms. Lefebvre that the injuries did not match the history she provided and that she needed to leave the hospital, that the baby was going to be taken into state custody, and that she would be contacted either on Friday or Monday to discuss visitation. Ms. Lefebvre complied without protest.
In her recorded statement to Sgt. Weston, Ms. Lefebvre explained that she "had issues with bonding with him (the infant) and things like that, so I can't say that I have the attachment that I should." She acknowledged telling the DCYF worker that she felt she wasn't as gentle with the baby as she should have been. She admitted that she was rough with him. She said: "I know that I get upset, and I know I'm rougher than I should be." Ms. Lefebvre admitted rocking the infant aggressively.
Sgt. Weston asked Ms. Lefebvre a series of questions about whether she had shaken the infant. She responded in the affirmative-that she was upset and shook the baby. When asked if the shaking was violent, she replied that it was not gentle, but that she did not know if you would consider it violent, but she guessed that it was because he was a baby. These admissions on her part set the table for the evidence that followed.
Bridget Crook, the DCYF worker, also testified. She described Ms. Lefebvre's affect as very flat and noted that she had shown no signs of emotion. She recounted that Ms. Lefebvre told her that she had been feeling depressed lately and that she had a short fuse. Ms. Lefebvre told her that she got verbal with the infant when he cried a lot, yelling at him. She admitted that she wasn't that gentle with him and at times rocked him more aggressively than she should. Crook testified that Ms. Lefebvre said she, herself, was to blame for the injuries. It was at that point that Ms. Crook denied Ms. Lefebvre further access to the infant. When Ms. Lefebvre was told to leave the hospital, no longer able to sit at her critically ill infant's bedside, she remained calm, inquiring only as to whether she should take the baby's stroller with her.
An East Providence police officer, Darnell Sherrill, testified that he was a close family friend and that he rushed to Ms. Lefebvre's home after learning that the infant was hospitalized in critical condition. He wanted to find out how the infant was doing and asked Ms. Lefebvre what had happened to him. She snapped back at Sherrill and said: "I'm not doing well either, Darnell." He quoted not only her words, but her tone. It came across to the Court, and likely to the jury, that Ms. Lefebvre lacked empathy for the infant and cared only about herself. After a pause, he complied with her wishes and asked how she was doing. She said she was upset because the doctors and DCYF accused her of causing the injuries. Ms. Lefebvre never expressed any concern to Sherrill for the baby. She did tell him, however, that, "I must have done something to him, but I can't remember." Contrary to what she told the police about the redness on the back of his head, she told Sherrill that after she found the baby on the floor, he had no visible injuries.
Ms. Lefebvre's mother, Joanne Lefebvre, testified that her daughter and the infant lived with her in the same apartment. She opined that she didn't think her daughter had bonded with the infant well. She had not observed a lot of patience and recounted that Ms. Lefebvre would yell as though venting frustration. She recalled a time when Ms. Lefebvre was a little aggressive with the baby when he was in a carrier and just put him down on the couch like she would a handbag. Ms. Lefebvre's mother recalled that on October 18, 2011, she observed a red bloodspot in the infant's eye and told her daughter that she should take him to the doctor. Ms. Lefebvre responded that it was nothing, that he had it before.
On that same Tuesday afternoon, October 18, 2011, purportedly shortly after the fall from the bed, Ms. Lefebvre brought the baby to stay with Betty Gonsalves, Ms. Lefebvre's grandmother. Ms. Gonsalves' testimony was significant because she watched the baby overnight from October 18 to the afternoon of October 19, 2011. Ms. Gonsalves noticed that his eye looked sort of cloudy, and she too observed a little red dot in the corner of his eye. She actually called Ms. Lefebvre that night to report her concerns that the baby didn't take his bottle as well as usual and refused a couple of them. At about 2:00 a.m., he was whimpering and crying. When she attempted to console him, she noticed that the infant's arm and leg twitched two times. Ms. Gonsalves called Ms. Lefebvre a second time to report the observations to her. Ms. Lefebvre dismissed the middle of the night calls and her grandmother's concerns as colic without ever mentioning the supposed accidental fall to her.
On Wednesday morning, October 19, 2011, Ms. Lefebvre went to work at her job in Putnam, Connecticut. Ms. Gonsalves called her granddaughter at work and told her that she thought there was something wrong with the baby and that she thought Ms. Lefebvre should come right home from work and take him to see the doctor. When her granddaughter finally arrived at her grandmother's home, Ms. Gonsalves told her that the baby was listless and that she should go straight to the doctor. Ms. Lefebvre herself observed that he wasn't himself and was going to need to see the doctor. Ms. Lefebvre later recalled that she then suspected that the supposed accidental short-fall may have caused the problems, but she neither shared those thoughts with her grandmother nor did she treat the issue as urgent. The Court, and likely the jury, found no reasonable explanation as to why, under those circumstances, she delayed taking the baby to the hospital for another two hours.
Diane Crabtree, then a social case worker with DCYF, met Ms. Lefebvre three times between October 25, 2011 and November 4, 2011. Among the reasons for the meetings were to assess her for safety and risk, to determine her role in the case, to advise her of available resources, and to describe the Family Court legal system to Ms. Lefebvre. Ms. Crabtree testified that Ms. Lefebvre told her that she dropped the baby on the floor with his face up and rocked the baby too rough. She also said that she got so angry at the baby, that she told her mother that she wanted to be far away from him. She said that she needed time away, but although her family agreed to help her, they never did. Ms. Lefebvre admitted that she was rough, a little rough with the baby. According to Ms. Crabtree, when they spoke on November 4, 2011, Ms. Lefebvre said, "I don't know why I did what I did. I don't know why I shook the baby and threw him on the floor."
The State presented testimony from Dr. Amy Goldberg, a board-certified child abuse pediatrics specialist with impressive credentials. She is an attending physician at the Aubin Child Protection Center at Hasbro Children's Hospital. Dr. Goldberg offered compelling and highly credible testimony about the baby's injuries. She concluded that the baby suffered injuries from rotational force, from impact of the child's head and from anterior/posterior, front-to-back squeezing or compression bending of the ribs. She testified that the baby's injuries were inconsistent with an accidental short-fall from the bed.
She obtained a history from Ms. Lefebvre who told her that she had fallen asleep with the infant and she woke up and saw the baby on the floor next to her which she contended accounted for his symptoms. Ms. Lefebvre also noted that he had been crying but that he was consoled. Ms. Lefebvre told Dr. Goldberg that without reporting the incident to anyone, she took the baby to her grandmother's home and left him in her care. Ms. Lefebvre told her that he had stopped eating and had started to develop what was described to her as rapid eye movements. Ms. Lefebvre told the doctor that the infant had some twitching of his extremities.
Dr. Goldberg described the baby's injuries in great detail using scans to assist with her description. When she first saw the infant, he was on a ventilator, not breathing on his own. Pertinent to this application for post-conviction relief, she opined that the baby suffered from abusive head trauma. She rejected the contention that the injuries occurred from an accidental fall from the bed. She testified that the infant's injuries were inconsistent with such a fall, a short-fall.
She described the development of a seven-week old baby's skull. She explained the difference between a simple skull fracture and a complex one, such as the fractures suffered by the infant. Dr. Goldberg opined that given the nature and extent of his injuries, they had to have been caused by a very significant impact causing the brain to move in relation to the skull. She explained that there was rotation. She acknowledged that some subdural hematomas can happen purely from impact, but not in this case because the subdural hematoma was on the opposite side of a fracture. She described it as a relatively deep injury, not just bleeding on the scalp. She said that the injuries were caused by force, by rotation of the head, resulting in two different sites of deep hemorrhages. The injury was caused by the brain moving in contrast to the scull. She testified that when the brain rotated within the skull, vessels can break. She opined that the infant suffered a head injury with significant impact to the left side of the head resulting in deep injuries, rotation inside the skull and subarachnoid and subdural hemorrhages. She described blood located in the subdural space as well as within the brain and adherent to the brain which is the subarachnoid membrane. She testified that with blood on the left side and blood on the right side as was the case with this infant, there had to be a very significant impact and that the brain moved in relationship with the skull, that there was some rotation that caused this type of injury to occur. She explained that the baby sustained a relatively deep injury, not just an injury that caused bleeding on the scalp. She opined that it was bleeding and force that was transmitted into the brain itself, a component of shaking.
Dr. Goldberg testified that the complex fracture sustained by the infant and the subarachnoid and subdural hemorrhages were inconsistent with a short-fall off the bed. She opined that you could not separate the complexity of the fracture with what she saw inside the head. Considering all of his skull and brain injuries in combination, Dr. Goldberg concluded that they certainly were not caused by a short-fall from the bed.
She noted that the infant sustained a complex fracture, not a simple one. With fractures from simple falls, doctors expect to see simple fractures, not one where the bone is elevated as in the case with these injuries. There were multiple components to the baby's fractures which you don't see with a simple fracture from a simple fall.
She also testified about the rib fractures that were discovered on the x-ray on November 3, 2011. The doctor explained that a follow-up skeletal survey is done because some fractures, especially those to the chest wall and rib fractures, can be easily missed in very acute phases, and it is not until there is some healing, when the bones start to look white, that they are visible on x-ray. On the follow-up x-rays, rib fractures were visible. They could not have been caused by a fall. The left-sided fractures, closer to the side, are not consistent with impact. They are consistent with anterior/posterior or front-to-back squeezing or compression bending of the ribs.
She opined that the head injury was caused by a significant impact to the left side of the head resulting in deep injuries on that side of the head and to the brain. She testified that there was also rotation of the brain inside of the skull resulting in the subdural hemorrhage and possibly as part of a component to the subarachnoid hemorrhage as well.
There was large subconjunctival hemorrhage in the left eye and a smaller one in the right eye. That consists of little, red, broken blood vessels under the conjunctiva, a very thin layer of cells over the eye and lining the eyelids. She opined that in this infant, the most likely diagnosis for that condition is a trauma to both eyes, an impact.
Dr. Goldberg presented as an experienced, highly qualified professional who provided credible testimony and scientifically reliable opinions.
After the State rested, Ms. Lefebvre testified on her own behalf. Her manner of testimony was consistent with the recorded statement she gave to Sgt. Weston. Ms. Lefebvre appeared detached, unemotional. Her version of events lacked credibility. Based upon all of the facts and circumstances presented at trial, the Court, and likely the jury, rejected her claim that the baby was injured in a short-fall from the bed. She specifically denied causing his injuries and said that she told Sgt. Weston that she shook or rocked him aggressively, not based upon her own recollections, but because the medical professionals told her that the injures had to be caused by something other than the history she provided of a fall from the bed. She stated that she was trying to come up with anything that she possibly could have thought that she or anybody else had done that may have made the injury worse, cause an additional injury. She said she felt pressured to give some reason to how any of it had happened. Ms. Lefebvre said she never intentionally shook the infant multiple times, never intentionally threw him, never threw him on the bed or on the floor.
After defense rested, counsel for the State presented evidence in rebuttal that brought before the jury a damaging statement made by Ms. Lefebvre to a clinical social worker at Butler Hospital. In response to a subpoena duces tecum issued to Butler Hospital, a licensed clinical social worker in the admissions department, Sheila Russell, offered testimony about statements Ms. Lefebvre made to her on November 8, 2011 during an initial psychiatric evaluation. Based upon the record of that interview, the witness indicated that Ms. Lefebvre stated to her that "she doesn't remember what she did or how many occasions but has enough fuzzy recollection to know she did indeed cause the harm, remembers feeling enraged at the baby, throwing him on the bed just to get away from him."
III Application for Post-Conviction Relief
Ms. Lefebvre bases her application on two main claims: first, that trial counsel provided ineffective assistance of counsel by going to trial without presenting an expert witness and without consulting with one before cross-examining Dr. Goldberg; and second, that she provided the applicant with ineffective assistance of counsel by voluntarily producing mental health records to the prosecution, incorrectly believing them to be inadmissible at trial. Keeping the applicable Strickland standards in mind, the Court will address each of Ms. Lefebvre's contentions.
Taking the second claim first, Ms. Lefebvre complains that her trial counsel prejudiced her by making a tactical decision to produce her mental health records from an initial psychiatric evaluation at Butler Hospital where she sought treatment after the baby was injured and removed from her care. It is clear that trial counsel produced the records in an effort to provide the State with mitigating information to prompt the prosecutor to amend the charge to second-degree child abuse and recommend a lesser sentence. She hoped to demonstrate that Ms. Lefebvre was remorseful and was seeking and obtaining psychiatric treatment to address mental health issues that purportedly led to the alleged conduct in question. The Butler Hospital records included a statement attributable to Ms. Lefebvre that "she doesn't remember what she did or how many occasions but has enough fuzzy recollection to know she did indeed cause the harm, remembers feeling enraged at the baby, throwing him on the bed just to get away from him."
Trial counsel had good reason to hope for an amendment to the charge. If the case went to trial, the evidence against Mr. Lefebvre overwhelmingly supported the State's claim that she committed first-degree child abuse on her infant son. In accordance with Rhode Island statutory law, a conviction on the criminal offense of second-degree child abuse carries with it a ten-year maximum sentence and a five-year minimum sentence. In comparison, the maximum sentence for a defendant convicted of first-degree child abuse of a person five years of age is twenty years. Of significance, the first ten years of that sentence must be imposed as time to serve without the benefit of suspended time, deferment of sentence, or probation. Additionally, a person convicted of first-degree child abuse of a person five years of age or under shall not be eligible for parole until he or she has served eight and a half years of the sentence. G.L. 1956 § 11-9-5.3.
The prosecutor had not provided trial counsel with any assurances or promises that she would amend the charge if she received mitigation material. According to hearing testimony provided by trial counsel, the prosecutor told her that she would review any mitigation information she was provided and that they potentially could discuss an amendment to the charge. After reviewing the Butler Hospital records, the prosecutor refused to amend the charge. Apparently, the best offer that the State made pretrial was to recommend the statutory minimum sentence for first-degree child abuse, which offer was rejected by Ms. Lefebvre. With the benefit of hindsight, it was a decent offer.
At trial, in a pretrial motion, the State advised the Court in the presence of Ms. Lefebvre that the prosecution may be offering evidence of the aforementioned communications under R.I. R. Evid. 801(d)(2)(A), statement of the party-opponent. She argued that pursuant to Rhode Island statutory law, the privilege that protects information to a health care provider is abrogated in situations involving known or suspected child abuse or neglect. Such privilege shall not constitute grounds for failure to give or accept evidence in any judicial proceeding relating to child abuse or neglect. 40 R.I. G.L. 1956 § 40-11-11.
The Court found that the statute was clear and unambiguous, and that the motion to use the information was granted and objection overruled. It is not without significance that the Court cautioned the prosecutor that just because she could use the records doesn't mean she should use them. Counsel for the State agreed not to use the Butler Hospital records in its case-in-chief but made it clear to Ms. Lefebvre and defense counsel that she reserved the right to use them in rebuttal if Ms. Lefebvre testified and made statements inconsistent with information she gave in the psychiatric evaluation.
That is exactly what happened. Having been forewarned, Ms. Lefebvre took the stand and testified under oath that the comments she made in her recorded interview about shaking the baby did not come from her own recollection of doing so. She attributed the statements to information she received from medical professionals telling her that the injuries had to have been caused by something other than the fall from the bed. Ms. Lefebvre stated that she did not recall ever shaking the infant. She said that she never intentionally shook the infant multiple times, never intentionally threw him on the bed or on the floor, or grabbed him around the ribs and shook him. She said that when she told the DCYF worker that she was responsible for the injuries, she merely meant that as his mother, she was the person responsible to protect him.
The Court finds that the decision to produce those records was a tactical one, albeit ignorant of the prosecutor's statutory right to obtain and present the records at trial. It was strategic because the evidence against Ms. Lefebvre was overwhelming. Counsel sought to demonstrate remorse by producing those records to prompt the State to amend the charge. In fact, apparently, it prompted the prosecutor to offer to recommend the minimum statutory sentence on the charged offense. Certainly, in light of Ms. Lefebvre's poor chance for an acquittal at trial, this Court cannot conclude that the strategy was ill advised and certainly not tantamount to ineffective assistance of counsel. This is particularly the case because the evidence against Ms. Lefebvre was so strong, her pretrial statements were so damaging, and her version of how the injuries were sustained was so lacking in credibility.
The statements she made to the clinical social worker at Butler Hospital were in part cumulative to other evidence in the case. Whether or not the trial attorney knew the risk of bringing those records to the attention of the prosecutor, she had good tactical reasons for doing so. '"[I]t is well established that tactical decisions by trial counsel, even if ill-advised, do not by themselves constitute ineffective assistance of counsel."' Rice v. State, 38 A.3d 9, 18 (R.I. 2012) (quoting Vorgvongsa v. State, 785 A.2d 542, 549 (R.I. 2001)). The Court "will not meticulously scrutinize an attorney's reasoned judgment or strategic maneuver in the context of a claim of ineffective assistance of counsel." Brennan, 764 A.2d at 173; Rivera v. State, 58 A.3d 171, 180-81 (R.I. 2013).
Additionally, the production of those records did not alter the outcome of the case. The evidence against Ms. Lefebvre was overwhelming, and it is not reasonably probable that but for the production of those records she would have been acquitted. Finally, Ms. Lefebvre was given fair warning that the records would not be used unless she took the witness stand and offered testimony inconsistent with the statements she provided to the clinical social worker at Butler Hospital. She opened the door to the rebuttal testimony. Accordingly, the Court rejects Ms. Lefebvre's claim that her application for post-conviction relief should be granted because the trial counsel voluntarily produced the records from Butler Hospital.
The Court now turns to the claim that trial counsel was ineffective for failure to engage the services of an expert for consultation and presentation at trial. First, the Court notes that there is a threshold question of whether the Court would have granted a request for funds to engage the services of an expert in this case. Although she had been screened and found qualified for the services of a public defender, Ms. Lefebvre chose instead to reject representation from that office and to engage private counsel. She sought a referral from the Rhode Island Bar Association who connected her to Ms. Savage to whom she paid a very low flat fee. When Ms. Lefebvre made that decision, she rejected not only representation by an attorney from the public defender's office but also the resources available to defendants represented by a public defender. There was no conflict that would have prompted the Court to appoint alternate counsel for Ms. Lefebvre. She chose to engage private counsel. In fact, on several occasions, her private attorney suggested to her that she might want to change attorneys and seek representation from the Public Defender, but she rejected the suggestion.
However, the Court need not address the issue of whether Court funds would have been provided if requested. The Court leaves the question for another day because, for purposes of this application, the Court will assume that funds would have been provided if requested. In an effort to provide Ms. Lefebvre with a broad and complete opportunity to pursue her post-conviction relief application, the Court provided requested funds to her post-conviction relief attorney to engage the services of an expert. She chose to retain Dr. Joseph Scheller who appeared in Court and offered testimony at the post-conviction hearing.
In light of his appearance and readiness to testify, this Court need not reach the issue in general or academic terms. Instead, the Court analyzes the proffered testimony of Dr. Scheller and decides this petition as though counsel had obtained funds and had consulted with and presented an expert such as Dr. Scheller at trial. In other words, it is an assumption the Court makes for purposes of this application rendering the issue of whether the Court would provide funds for an expert to private counsel moot as to this Decision. An expert was engaged by Ms. Lefebvre, and the Court has had the benefit of determining specific to that expert and to the facts and circumstances of this case whether the failure to engage him at the pretrial and trial stages of the case rendered trial counsel's representation of Ms. Lefebvre ineffective and negatively impacted the outcome. Counsel for Ms. Lefebvre contends that "there is a reasonable probability that had the jury heard from Dr. Scheller or another qualified expert, they would have found Ms. Lefebvre not guilty." The Court disagrees as it relates to Dr. Scheller, and it would be pure speculation to assume that another expert engaged by counsel would have succeeded where he would have failed.
First, the Court must determine whether trial counsel's cross-examination of Dr. Goldberg was so ineffective that her performance fell below an objective standard of reasonableness and created a reasonable probability that it affected the outcome of Ms. Lefebvre's trial. Counsel points to two areas that the trial attorney failed to address purportedly due to the absence of guidance from an expert. She claims that trial counsel failed to challenge Dr. Goldberg on the difference between a subconjunctival hemorrhage and a retinal hemorrhage which Dr. Scheller suggests is indicative of abusive head trauma whereas the former is not. The Court notes that although Dr. Goldberg addressed the appearance of subconjunctival hemorrhages, she did not base her finding of abusive head trauma on those findings. However, she did note them as evidence of traumatic impact based upon the facts of the case. Dr. Scheller testified that retinal hemorrhage is one of the markers of abusive head trauma, but he never actually opined that an infant cannot suffer from abusive head trauma without retinal hemorrhages. Counsel also faulted trial counsel for failing to explore the absence of bruising, external signs of trauma, fractures to extremities and other internal organ injuries. Again, there is no evidence that an infant cannot sustain abusive head trauma in the absence of those injuries.
Contrary to Ms. Lefebvre's description of trial counsel's cross-examination as "woefully lacking," the Court found that attorney Savage was well-prepared and that her cross-examination was adequate. The Court notes that trial counsel made every effort to familiarize herself with the baby's condition. Ms. Savage testified at the post-conviction relief hearing that she conducted exhaustive research on abusive head trauma in cases where convictions had been overturned. She sought and received some assistance at a minimal cost from a nurse who reviewed the records quickly to help give her the basics to understand the content of the records. She also spoke to three or four experts about potentially retaining them for the case and sent them very basic documentation to review, but she did not receive an affirmative reply from any of them. Ms. Savage acknowledged discussing with Ms. Lefebvre that she needed an expert witness in the case because it was best to have one due to the differences in opinions regarding abusive head trauma and the fact that she did not have a medical background. Trial counsel felt it would be best if they had an expert. However, Ms. Lefebvre told her trial counsel that she had no money for an expert consultant or witness, not even enough to seek to engage one on a sliding scale. Ms. Savage further stated that she never had done more research on one subject than she did in this particular case. She further acknowledged conducting extensive cross-examination of Dr. Goldberg on certain key issues, subdural hematomas and subarachnoid hematomas. She questioned the doctor in detail about the infant's injuries. She questioned Dr. Goldberg about the infant's significant brain contusions and rib fractures, about the aging and timing of rib fractures, and the mechanisms that could cause them in a child. She questioned the doctor about the presence of subconjunctival hemorrhages in the baby's eyes. Trial counsel testified at the hearing on post-conviction relief that she did the best she could. Based upon the Court's observation and review of her cross-examination of Dr. Goldberg, it is clear that trial counsel approached the task after familiarizing herself with the subject matter and with the baby's injuries. The standard is not perfection or what the most experienced or most highly skilled trial attorney would have done differently. Lack of trial experience in and of itself does not disqualify a licensed attorney from representing a defendant at trial, even in a complex case. There is no per se rule in this state that in order to provide effective counsel in an abusive head trauma case, defense counsel must consult an expert or be declared ineffective. In this case, the Court notes counsel had some trial experience and had represented clients on the Abuse and Neglect calendar in Family Court. Based upon this Court's observation of her cross-examination of Dr. Goldberg and recent review of that examination, the Court cannot conclude that it was the product of uninformed, sloppy or ineffective counsel. Ms. Lefebvre has failed to demonstrate how Ms. Savage's preparation for cross-examining Dr. Goldberg so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Accordingly, the Court rejects the contention by Ms. Lefebvre that her trial counsel's failure to engage an expert for consultation constituted ineffective assistance of counsel.
The Court now addresses trial counsel's failure to present an expert such as Dr. Scheller at trial. The Court's analysis of this issue is based both on admissibility of his proffered opinions and his overall credibility as an expert witness. The Court must determine whether his opinions would be admissible at trial as legally sufficient, having evidentiary reliability, scientific validity and relevance. Even if the Court finds that his opinions would be admissible from a legal standpoint, the Court must consider whether his credibility was so poor that no reasonable jury would have accepted his opinions and that failure to present him at trial failed to meet the prejudice prong in Strickland.
Counsel for Ms. Lefebvre cites several cases from other jurisdictions supporting the argument that in an abusive head trauma case, effective assistance of counsel requires retaining an expert. "Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence. . ." Harrington v. Richter, 562 U.S. 86, 106 (2011). She cites a Wisconsin case, State v. Edmunds, 746 N.W.2d 590, 599 (Wisc. 2008) (noting a "significant dispute" and "shift in [the] mainstream medical [community]" regarding shaken baby syndrome/abusive head trauma diagnoses); a case from the Supreme Court of Michigan, People v. Ackley, 870 N.W.2d 858 (Mich. 2015), that found the failure of defense counsel to engage an expert witness to rebut the prosecution's expert testimony, or to attempt to consult an expert with the scientific training to support the defendant's theory of the case, fell below an objective standard of reasonableness and created a reasonable probability that this error affected the outcome of defendant's trial.
As interesting as the Court finds Ms. Lefebvre's contentions in this regard from an academic standpoint, the Court does not reach the issue in general terms. There were specific facts and circumstances presented at trial, and the infant sustained specific injuries. This Court provided funds to counsel representing Ms. Lefebvre on her post-conviction application to engage an expert, to consult with that expert, and to present his testimony in Court. In other words, this Court has the benefit of knowing how, if at all, an expert retained by Ms. Lefebvre at trial would have assisted trial counsel in defending the case and would have appeared as a witness to offer evidence favorable to her, to wit, favorable to her version of an accidental short-fall off the bed. We do not have to speculate as to what testimony the trial attorney could have obtained had she engaged an expert. Instead, the Court has the benefit of analyzing the testimony of Dr. Scheller on the issue of causation.
Having done so, the Court finds that it is unclear whether his testimony would have survived a Daubert challenge. See DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 687 (R.I. 1999) adopting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 583 (1993). In accordance with Rhode Island law, the trial justice sits as a gatekeeper determining whether to admit testimony from an expert. Faced with a proffer of expert scientific testimony, the trial judge must determine at the outset, pursuant to the Rhode Island Rules of Evidence, whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine the fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.
Starting with the issue of credibility, Dr. Scheller is a pediatric neurologist who for the past fifteen to twenty years traveled the country testifying in abusive head trauma cases for defendants charged with child abuse. Although Board Certified in his field of pediatrics and pediatric neurology, he does not hold similar certifications in child abuse pediatrics or in radiology or neuroradiology. Dr. Scheller dismisses the American Academy of Pediatrics' recommendation that pediatricians considering whether an injury was the result of abusive head trauma should consult with specialists in the field of child abuse pediatrics. He never has testified for the prosecution. He never testified in a courtroom setting that a child's head injuries were caused by shaking.
Of the 200 or so trials where he has offered testimony, (a growing number, apparently with about thirty in each of the last two years alone) defendants in about fifty of those cases confessed to the crimes or made damaging admissions. As to those confessions or admissions, Dr. Scheller disregards them. It is his practice to ignore them. He testified that he never has seen a credible confession in an abusive head trauma case. Yet, he has reviewed them in fifty cases. He offers the blanket statement that they are not believable.
Apparently, statements from and about the defendant's conduct toward the infant is not background information of a type reasonably relied upon by Dr. Scheller in forming opinions on the subject matter. This issue goes not only to the weight of his opinion, but to whether it is scientifically valid and reliable. The only statement he seems to have considered in this case from Ms. Lefebvre was her contention that the baby suffered his injuries from an accidental short-fall. With that mindset, he ignored the statements made by Ms. Lefebvre and about Ms. Lefebvre as to her handling of the infant. In doing so, he overly sanitized the case. The jury, on the other hand, had the benefit of all of the facts and circumstances presented at trial concerning Ms. Lefebvre's handling of the baby and her admissions.
He testified that the infant's injuries indicate that the baby had two impacts, one to each side of his head. He suggested that the infant may have hit something on the way to the floor from the bed although there is no evidence of any obstruction that he could have hit. It is clear that Dr. Scheller ignored the many statements that Ms. Lefebvre gave as to her relationship with the baby, her anger, frustration and how she took that out on the infant. His rejection of confessions and admissions as not believable is, of course, convenient to his theory of the case, but no reasonable juror would have agreed with him on this point.
In addition, the doctor actually stated that he could not accept or believe that a person could violently hurt a child or shake a child out of pure frustration. He believes that it just does not happen without a history of a serious psychological problem or serious behavior problem. Since he disregards all defendants' statements about their relationship with the injured babies, one would assume that he would not be able to form an opinion as to whether a particular defendant had sufficient mental health issues to be able to violently hurt a child or shake a child out of frustration. Certainly, in this case, he disregarded all such evidence as it relates to Ms. Lefebvre. With that premise and the failure to consider Ms. Lefebvre's admissions, the jury likely would have rejected his opinion as a hired gun offering disingenuous testimony not worthy of any weight whatsoever.
The purpose of Dr. Scheller's testimony was to offer an opinion that it is possible that the baby's injuries were caused by an accidental short-fall from the bed. As such, he disputes Dr. Goldberg's conclusion that the injuries were caused by abusive head trauma. On direct examination, he testified that abusive head trauma is a diagnosis reached following head or brain injuries where there is no medical explanation for the injuries. He opined that
"even though the vast majority of infants who fall off a bed from a low height ….. don't suffer any serious or life-threatening injuries … [T]here are exceptions to that where even short falls as we call them, can cause very serious brain injury. And so it is possible that (the infant's) injuries documented at the end of October, 2011 did happen from a short fall even though they are very dramatic and very serious."
He testified that he had reviewed the images taken of the infant in this case. He described the images in detail and concluded that the injuries to the infant were "actually very dangerous and life-threatening." He opined that mere shaking of the infant would not have caused the type of scalp or skull injury sustained by the infant. There had to have been an impact. As to the rib fractures, he suggested that because you cannot date the injuries with specificity, they could have been sustained within a few days' window and possibly by medical personnel who handled the baby in the hospital.
Dr. Scheller pointed to certain markers that strongly suggest abusive head trauma that he referred to as a "triad." They included subdural hematoma or subdural blood clot (which the infant had), dramatic change in mental state, excessive lethargy or seizures (which the infant demonstrated), and retinal hemorrhage. He distinguished subconjunctival hemorrhage from retinal hemorrhage and testified that the infant had the former, but not the latter. Dr. Scheller stated that the subconjunctival hemorrhage seen on the baby could have been caused in a short-fall or even by scratching of the eye. He testified that, in his opinion, retinal hemorrhage is an important aspect of diagnosing abusive head trauma. He never testified that it is a necessary factor to diagnosing abusive head trauma or that the diagnosis cannot be made without a finding of retinal hemorrhage. The Court notes, as did Dr. Goldberg, that in this case the baby had subconjunctival hemorrhages in both eyes, not merely in one. Dr. Scheller never opined to a reasonable degree of medical certainty that the absence of retinal hemorrhage precluded abusive head trauma as the cause of the baby's injuries.
He noted the absence of other injuries, bruises or skid markings from excessive squeezing, but did acknowledge, however, that "there is no absolute rule that you would always see it, but it's the kind of thing you would expect." He also pointed to the absence of a neck injury. Dr. Scheller said that when a child is treated violently and abused, "we sometimes see limb fractures, arm or leg fractures" which were absent in this case.
Dr. Scheller concluded: "I don't believe that the physicians involved in making the diagnosis of abusive head trauma were able to rule out an accidental cause of the findings." In his opinion, it was possible that the infant could have sustained the same injuries from an accidental short-fall from the bed. As such, Ms. Lefebvre suggests that Dr. Scheller's testimony, if presented at trial, likely would have established reasonable doubt as to whether the infant's injuries were caused by abusive head trauma as testified to by Dr. Goldberg.
However, Dr. Scheller's opinion must be viewed in its entirety, not only in light of the direct examination, but also in connection with the cross-examination. On cross-examination, when the basis of his opinion was challenged, he admitted that although it is within the realm of possibility that the injuries could have been sustained by an accidental short-fall, it would have been a rare occurrence for such a fall to cause such severe injuries. He even acknowledged that given the multitude of the infant's injuries, it would be extremely rare for them to be caused by an accidental short-fall as opposed to being violently thrown on the floor.
The gist of his testimony is that it is possible, although highly unlikely, that the baby's injuries could have been caused by an accidental short-fall from the bed, and that Dr. Goldberg's failure to exclude that possibility rendered her opinion of abusive head trauma insufficient. Nonetheless, Dr. Scheller did not dispute that it was far more likely that the injuries occurred other than by an accidental fall from the bed. He spoke not only in terms of possibilities, but in terms of rare possibilities. He never quantified his opinion that it was possible for the injuries to have been sustained in an accidental short-fall. He certainly never opined that it was equally plausible that a short-fall caused the injuries or even that it was a one in ten chance, a one in one hundred chance, a one in a thousand or one in ten thousand chance. In Rhode Island, expert witnesses are not permitted to opine based upon speculation or conjecture. The decision to allow an expert witness's opinion is within the sound discretion of the trial justice and will be disturbed only for an abuse of that discretion. An expert opinion must be derived from sufficiently articulated facts to allow the trial justice to determine whether the opinion elicited has probative force or is merely speculative. Gorham v. Public Building Authority of City of Providence, 612 A.2d 708, 717 (R.I. 1992)
Dr. Scheller acknowledged that the complications suffered by Ms. Lefebvre's infant were rare after short-falls or drops and even more rare when you consider the subdural and subarachnoid hemorrhages, brain contusion and skull fracture. His response to this question was very telling:
"Wouldn't you agree that the subdural hematomas, the subarachnoid hematoma, the brain contusion, the skull fracture, all of those things in combination, multiple brain injuries on both sides of this child's head is more consistent for being thrown to a floor … (than) a short fall?"
His sheepish answer was: "Well, that is a short-fall too."
When asked to opine between two choices, falling off a bed versus being thrown down with force onto a hard surface, he acknowledged that the baby's injuries were more consistent with a child being thrown with force onto a hard surface as opposed to merely falling off a bed.
He was confronted with a study that he had attached with his own report which stated, "injuries from falling from household objects were usually mild, falls from low height rarely cause significant brain injuries." He replied, "that is absolutely the case."
The baby's rib fractures were posterior. When asked about the location of the rib fractures as more consistent with squeezing motion than just falling off a bed, he acknowledged that the idea is out there, in the child abuse literature, but that he is not convinced of it. He said that he has seen it expressed. However, he acknowledged that the infant's fractures, six and seven on the right side and seven and eight on the left side are consistent with the squeezing mechanism. He said, "they can be, yes." He did admit that rib fractures on children are somewhat rare, especially if they are in the posterior part of the ribs.
Finally, he testified that the complications sustained by the infant are rare after short falls, and all those injuries coupled together are more consistent with an infant, seven weeks old, that is shaken and thrown with force on a hardwood floor as compared to merely falling off a bed. He admitted that a violent throw would more likely produce the findings that the infant presented with on October 19, 2011 than a mere fall from the bed.
The State had to prove beyond a reasonable doubt that Ms. Lefebvre inflicted serious bodily injury on a child in her care and that she did so knowingly and intentionally. Beyond a reasonable doubt does not mean beyond all doubt or beyond a shadow of a doubt or beyond all possible doubt. A reasonable doubt is not a whimsical or fanciful one. State v. Thorpe, 429 A.2d 785, 790 (R.I. 1981). If permitted to testify at trial, Dr. Scheller would opine that it is possible, although highly unlikely and exceedingly rare, that the injuries were caused by accident rather than by intentional conduct. He suggests that the failure of Dr. Goldberg to exclude that extremely rare possibility negates the strength of her opinion that the infant suffered abusive head trauma. Dr. Scheller's failure to quantify what he meant by "possible" leaves the Court to wonder if his opinion would assist the trier of fact or merely confuse the pertinent issues in the case. It also suggests a standard of proof beyond that required by the Rhode Island Supreme Court. His testimony, if believed, would establish only that the State's medical witness failed to prove causation beyond all doubt or beyond a shadow of a doubt.
Sitting as a gatekeeper, facing a Daubert challenge, this Court would have concluded that Dr. Scheller failed to provide a scientifically valid and reliable opinion to challenge the strength of Dr. Goldberg's contention that the infant did not sustain his multiple injuries from an accidental short-fall. He failed to quantify the conclusion that it was possible that the injuries were sustained by accidental short-fall. With his admissions on cross-examination that such an occurrence would be quite rare, the Court is left to conclude that his opinion was tantamount to speculation and conjecture, and, even if believed, failed to establish reasonable doubt on the issue.
However, even if his opinion passed the Daubert test, this is an application for post-conviction relief, and the Court must consider whether his testimony, if presented, would have tipped the scales in favor of reasonable doubt. Unless his testimony would be sufficiently credible and reliable that a reasonable jury might rely on it to find that the State failed to prove causation, it would not meet the prejudice prong of the Strickland standard. The prejudice prong of the Strickland test requires the applicant to show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 (emphasis added). Jurors are cautioned not to leave their common sense at home and to view the evidence in light of their own experiences and observations in the affairs of life. For the reasons articulated herein, no reasonable juror would have accepted his testimony as sufficiently credible to impeach the opinion of Dr. Goldberg on causation. Because this issue does not pass the prejudice prong, the Court rejects the contention that trial counsel was ineffective for failing to present an expert at trial.
Although not briefed, counsel for Ms. Lefebvre eluded to two other issues when the Court conducted the post-conviction relief hearing.
The Court notes that Ms. Lefebvre was asked by Sgt. Weston about her oldest child, a daughter who lived with her father, whose parents were guardians for the child. She gave up custody of the child without protest. After she had a falling out with the father's family in 2009, they kept her from seeing the child, and she obtained a court order for visitation. Her exchange with Sgt. Weston on this issue was part of the recorded statement played for the jury. Whether or not trial counsel should have objected to this evidence or moved in limine to preclude it, in light of the overwhelming evidence in the case as to her guilt, this evidence, even in combination with any other failings on the part of trial counsel, would not have tipped the scales in favor of acquittal.
Additionally, when she testified, the DCYF social case worker, Ms. Crabtree, offered a gratuitous comment that the Court ordered stricken. She said that she would visit the infant during her lunch break and that "he was ready to die, we were all praying that he would die, we requested his last rights . . ." Ms. Lefebvre's counsel objected to the comments, and after striking the statement, the Court sent the jury out of the courtroom and chastised the witness. The Court invited counsel to craft a cautionary instruction and then supplemented what she provided to the Court. The jurors returned to the courtroom, and, in pertinent part, the Court advised them that the comments of the witness were not responsive to the question, that only medical treaters are competent to opine as to the infant's condition and prognosis, that Ms. Crabtree was not qualified to do so and that her remarks were inflammatory. The Court further told the jury that the infant is alive today and that his current condition would not prompt anyone to think that he was better off dead. The Court conducted an individual voir dire to determine if each juror could disregard Ms. Crabtree's comments and remain a fair juror in the case. All jurors assured the Court that they could do so. At the request of defense counsel, the Court invited any juror who wished to address the Court to appear at sidebar to discuss the issue privately. No juror indicated that he or she was interested in doing so. Counsel for Ms. Lefebvre did not move to pass the case. The Court was satisfied that the jurors were able to disregard the inappropriate comments, and the Court cannot conclude that the failure to seek a mistrial was below an objective standard of reasonableness, considering all the circumstances, particularly the overwhelming evidence of guilt.
IV Conclusion
For the foregoing reasons, Ms. Lefebvre's application for post-conviction relief is denied. Counsel for the State shall present an order consistent with this Decision. The order shall note that the Court has agreed to stay entry of the order until May 1, 2020.