Opinion
Case No. 6D23-1161
02-10-2023
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 Alyssa M. Williams, Assistants Attorney General, Daytona Beach, for Appellee.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Alyssa M. Williams, Assistants Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Giovanni Vega was convicted in 2001 of first-degree murder and aggravated child abuse of a three-year-old boy in his charge. He filed a motion for new trial pursuant to Florida Rule of Criminal Procedure 3.850 based on newly discovered evidence. The postconviction court summarily denied his motion, but Vega prevailed on appeal, and the case was remanded to the lower court for an evidentiary hearing. Vega v. State, 288 So. 3d 1252 (Fla. 5th DCA 2020) ( Vega IX ). The court below held the hearing, made appropriate findings of fact, and denied a new trial.
This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023.
Vega has filed nine previous appeals.
The child's mother left her three-year-old boy and his younger sister in Vega's care in the motel room in which they lived. Vega called the child's mother a little after 5:00 p.m. and told her to come to get the child. When the mother arrived, Vega was "coming with [the child] in his arms." The child was bleeding from his nose and mouth and had many bruises on his forehead. Vega told the mother that he "did it trying to wake [the child] up." The mother drove the child to the emergency room. Vega took most of his belongings and left the motel room with a friend, leaving the younger sister behind. That child also appeared to be injured. After visiting several places with his friend, Vega was dropped off at his aunt's house. Law enforcement found him there hiding behind an entertainment center.
Several months before, the child's mother had left the boy in Vega's care while she traveled to Puerto Rico. When she returned, she found her son with a "lot of bruises and a lot of marks, like belt ... in his face and body." Vega told the mother that the marks had been inflicted by a boy the same age as the child. However, Vega admitted to a neighbor that he "whipped" the child. One night the neighbor heard "some crying, like screaming, crying coming from next door." The next day the child was acting hurt, so the neighbor checked him for injuries. The neighbor "checked his back and he had, like, belt marks all over his back, his neck, his buns, his legs, his ankles." His neighbor identified these marks as bruises and noted that they "were just all over [and the child] had a belt mark from the side of his neck all the way to his mouth." Another witness saw the child around the same time and noticed he had bruises on his face, back, arms, and legs.
One of Vega's fellow inmates testified at the trial. He stated that Vega admitted killing the child and asked him to call the friend who had picked him up that night to tell him to "stick to his story."
Vega made various inconsistent statements to the police. He denied even being present at the motel room and blamed the mother for the child's death. After his story about not being present was exposed as untruthful, Vega said the child had fallen in the bathtub. At trial he testified that the child fell down the stairs of the apartment.
Dr. Sashi Gore, the state's medical examiner, testified that the child died from a subdural hemorrhage, resulting from abuse. Dr. Gore described, in detail, the factors that went into his opinion that the child died of blunt trauma to the head. Dr. Gore testified that "considerable force" was needed to produce the hemorrhage. At the autopsy, Dr. Gore found contusions on much of the body, including on the child's head, jaw, shoulder, chest, back, and abdomen. In his opinion those contusions would have been caused within 48 hours of the child's death. The child's left eye had hemorrhaged, and the frenulum torn. Moving to the interior of the body, Dr. Gore found contusions on the interior chest wall, hemorrhaging in the right lung, and a lacerated mesentery (the lining of the abdomen). In the head he found contusions in the skull. He found hemorrhaging diffused in the brain. That hemorrhaging was the cause of death. Given all the other injuries, it was the doctor's opinion the hematoma was caused by blunt trauma to the head inflicted during a course of physical abuse. Dr. Gore was asked about the probability that the hemorrhaging was caused by a fall in the bathtub. The doctor replied that in the event of a fall in a bathtub, one would have expected contusions and hemorrhaging to be localized near the point of impact. In this child, however, the hemorrhaging was diffused in the brain, making a bathtub fall an unlikely cause of the hemorrhaging.
In Vega IX, the court wrote that "Dr. Gore opined that a fall down the stairs could not have produced the force required to tear the child's frenulum" (the tissue inside the lip). Vega, 288 So. 3d at 1255. The record from the evidentiary hearing conducted after the appeal does not bear out this assertion.
Dr. Gore's testimony was consistent with the observations and conclusions of the emergency room doctor who first treated the child for his injuries. That doctor testified that the child presented with contusions all over the body—front, back, head, torso, and abdomen. The child had a fractured clavicle. These observations were evidence of multiple traumatic events. As described by the doctor, "A bruise to your forehead, a bruise to your abdominal wall, a bruise over your kidney, [and] a broken clavicle when you are three and a half years old is consistent with trauma, [not a one-time fall]." The brain swelling was consistent with severe head trauma or shaking and certainly indicated that the injuries were not caused by an accident. Photographs of the child's body support the witness accounts, showing a small boy covered in bruises.
In Vega IX, Vega claimed that newly discovered evidence, in the form of medical studies published since the trial, undermine Dr. Gore's testimony. The studies purportedly show that, at the time of trial, the prevailing medical opinion held that a short-distance fall could not cause death, but now the prevailing view is otherwise. Vega IX held that allegation to be sufficient to entitle Vega to an evidentiary hearing. Vega, 288 So. 3d at 1255.
To obtain a new trial based on newly discovered evidence, a defendant must produce evidence that satisfies two conditions. 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 the defendant or his counsel could not have known of it by the use of diligence." Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (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. Jones, 709 So. 2d at 521. This second test is satisfied if the newly discovered evidence weakens the state's case to the extent it would give rise to reasonable doubt as to the defendant's guilt. Hildwin v. State, 141 So. 3d 1178, 1188 (Fla. 2014). The postconviction court must consider "all newly discovered evidence which would be admissible" at trial and "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at trial." Jones, 709 So. 2d at 521.
Put another way, at the hearing the defendant must first prove that the alleged new evidence actually exists and, if so, that the evidence is of the type the law recognizes as newly discovered evidence. If the defendant cannot prove these two things, the motion will be denied. On the other hand, if the defendant meets this test, the court must then compare that new evidence to the evidence produced at trial and decide whether the new evidence, had it been offered at the trial, probably would have given rise to a reasonable doubt. If the evidence presented is not of the type that may qualify as newly discovered evidence or if it does not undermine the evidence presented at trial, the motion for relief should be denied.
In this case the defendant sought to prove his newly discovered evidence through the testimony of Dr. William Anderson. Dr. Anderson had been hired by the defense around the time of trial to review the autopsy and other medical records and to evaluate the opinions reached by the medical examiner as to the cause of death. He did not testify at the trial. It was his report, submitted as part of Vega's Rule 3.850 motion for postconviction relief, upon which the Vega IX court relied in granting an evidentiary hearing.
Dr. Anderson testified that he read all the hospital records, reviewed the autopsy report, and viewed photographs. Then he listed a number of items of criticism of Dr. Gore's analysis, most of them resulting from Dr. Gore's failure to conduct certain diagnostic tests that Dr. Anderson felt were necessary to provide the data Dr. Gore needed. Notably, he did not say Dr. Gore's opinion was wrong, only that Dr. Gore did not have sufficient data to render his opinion.
It is notable that Dr. Anderson did not review Dr. Gore's trial testimony. For Vega to prevail, it is Dr. Gore's trial testimony that he must undermine with his newly discovered evidence.
Specifically, Dr. Anderson testified that Dr. Gore did not have the scientific basis to "tell anyone that this is a sure, slam-dunk child abuse case." Dr. Gore made no such characterization.
As to the question of newly discovered evidence, Dr. Anderson did not provide any significant discussion of any particular medical studies, merely that, "over the years" it has been shown that short falls can cause subdural hematoma. In his mind, the importance of the studies was that, when a doctor finds a subdural hematoma, the doctor should not jump to the conclusion it was a case of child abuse. It is important that the doctor consider all other relevant factors. The most comprehensive expression of this by Dr. Anderson was that, until recently, the concept that a relatively innocuous, short-distance fall could result in death was often unrecognized by medical trauma investigators, including many medical examiners. This was the predominant medical opinion in 1999, at the time this autopsy was performed. Shortly thereafter, a series of articles began to populate the medical field, and it is now understood that a short-distance fall may be a reasonable cause of death when certain medical evidence is apparent.
If we accept that the studies and Dr. Anderson's testimony constitute a change in medical opinion since the trial, it must be asked how that new opinion would be applicable to the evidence at trial. For example, was Dr. Gore's opinion as to the cause of the hematoma based on an assumption that a low impact fall could not cause subdural hematomas ? If not, it does not matter whether or not there had been a change in medical consensus, because any such change would have had no effect on the testimony of Dr. Gore or the results of the trial.
The Vega IX court held that the studies in this case constituted newly discovered evidence. We do not revisit the Vega IX court's ruling because that issue is not before us and is not necessary for the resolution in this case.
While Dr. Gore testified that the hematoma in this case was the result of significant force, he did not render an opinion as to whether subdural hematomas could be produced in ways other than by a high-velocity event. In short, nothing in the newly produced studies is inconsistent with Dr. Gore's testimony in any significant way.
It is apparent that the main purpose of Dr. Anderson's testimony was to criticize Dr. Gore's analysis and to opine that, while Dr. Gore's conclusions might have been accurate, he should have done a more extensive workup before he stated them. An expert providing different opinions on the evidence produced at trial is not newly discovered evidence. Booker v. State, 413 So. 2d 756, 757 (Fla. 1982).
When referring to the subdural hematoma, Dr. Anderson testified, "Maybe it's still a result of abuse. Maybe it's not."
In the affidavit submitted with Vega's motion for postconviction relief Dr. Anderson averred that, "based upon the available forensic data, it is absolutely reasonable that [the victim] died from an accidental fall." At the evidentiary hearing, however, Dr. Anderson did not testify that the victim's cause of death was consistent with such an accidental fall or that the child died from any cause other than child abuse.
Both Dr. Gore and the emergency room doctor considered the totality of the vast and significant injuries to the victim in their determination that his death was not accidental. Dr. Gore also discussed the diffused versus localized nature of the hematoma.
The lower court was not required to ignore Vega's confession, the evidence of past abuse Vega perpetrated against the victim, the autopsy evidence reflecting bruises all over the child's body, or the child's broken collarbone and ruptured spleen. Nor was the lower court required to ignore Vega's untruthfulness as to what had occurred, the testimony of the emergency room physician who first treated the victim in the hospital, and that Vega fled the scene and was arrested at a relative's home, hiding behind a piece of furniture. In considering these circumstances, the lower court adequately examined the "total picture" of the case against Vega. See Lightbourne v. State, 742 So. 2d 238, 247 (Fla. 1999).
Vega IX held that Vega's allegations of newly discovered evidence were sufficient to warrant a hearing in which he could show there was newly discovered evidence and that the evidence would probably produce an acquittal on retrial. We agree with the lower court that Vega failed to meet that burden at the evidentiary hearing.
Vega also produced evidence that Dr. Gore had been disciplined after the trial for conduct unrelated to this case. As the court below stated, this evidence would have no impact at a retrial because it would be inadmissible. See generally Rainey v. State, 938 So. 2d 632 (Fla. 5th DCA 2006).
AFFIRMED.
SASSO, C.J., and NARDELLA, J., concur.