Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STEPHANIE M. SPURGEON, ) ) Appellant, ) ) v. ) Case No. 2D19-1278 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed July 10, 2020. Appeal from the Circuit Court for Pinellas County; William H. Burgess III, Judge. Seth E. Miller and Krista Dolan, Tallahassee; and Debra Loevy, Chicago, Illinois, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee. BLACK, Judge. Stephanie Spurgeon appeals from the order denying her amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part. Because our reversal in part requires that Spurgeon receive a new trial, we address only the claim necessitating a new trial—that Spurgeon's trial counsel rendered ineffective assistance in failing to present expert testimony to rebut the State's theory as to the cause of the swelling in the victim's brain, which ultimately resulted in the victim's death. Spurgeon had been a licensed childcare provider for fifteen years. The one-year-old victim began her first day of daycare at Spurgeon's home on August 21, 2008. The victim was asleep when her grandmother picked her up from Spurgeon's home later that afternoon. When they arrived home, the grandmother found the victim to be unresponsive and realized that she had vomited. The victim was taken to the hospital where it was discovered that she had swelling in her brain (cerebral edema) as well as bleeding on the surface of her brain (subdural hematoma). The treating physicians also discovered that the victim had been having seizures and that she had bilateral retinal hemorrhages and elevated blood sugar levels. The victim died a week later, on August 28, 2008, when her family removed her from life support. Her organs were donated before the autopsy. Several months later, Spurgeon was charged with first-degree murder. I. The trial There was no dispute at trial that the cerebral edema caused the victim's death. However, the cause of the cerebral edema—illness or injury—was in dispute. There were no external signs of injury, no injuries to the victim's ribs, and no injuries to the victim's neck or spinal column. Although the State initially theorized that this was a case of shaken baby syndrome, at some point prior to trial that theory changed. At trial -2- the State theorized that the victim's injuries resulted from her being thrown repeatedly against a soft surface, like a mattress. This repetitive-soft-impact theory was supported by the testimony of several of the State's medical experts, including Dr. Smith, a board- certified child abuse pediatrician, and Dr. Thogmartin, the medical examiner. The defense strategy was to suggest that a metabolic disorder had caused the cerebral edema and subdural hematoma, that the subdural hematoma predated Spurgeon's care of the victim, and that it was not possible to produce the amount of force necessary to cause the damage to the victim's brain by shaking, despite the fact that the State was not proceeding with such a theory. Trial counsel presented the testimony of biomechanics expert Dr. Ipser, Ph.D. All of Dr. Ipser's calculations were pertinent to refuting a theory of shaken baby syndrome, as was most of his testimony. Seemingly as an afterthought, at the conclusion of direct examination trial counsel asked Dr. Ipser what he thought about "shaking and impact on a soft surface." In response, Dr. Ipser explained that "impact on a soft surface lowers the force," so "[y]ou're not going to be able to do it with a soft surface because the head doesn't stop sufficiently rapidly given the speed in which you could throw the baby down." On cross-examination, however, Dr. Ipser conceded that while it would have been possible to conduct the necessary calculations to support his testimony regarding the soft-impact theory, he had not measured the amount of force required to injure a child of the victim's size by repeatedly throwing her head into a soft object. Trial counsel also presented the testimony of Dr. Herbst, a radiologist, Dr. Plunkett, a pathologist, and Dr. Leestma, a neuropathologist, each of whom believed -3- that the subdural hematoma predated Spurgeon's care of the victim. However, Dr. Herbst also testified that he believed that the cerebral edema was caused by violent trauma, and Dr. Plunkett did not know what caused the cerebral edema. Dr. Leestma identified a blood clot on the victim's brain slides, which he believed could have caused the subdural hematoma and cerebral edema. However, trial counsel had not provided Dr. Leestma with the computerized tomography (CT) scan or the magnetic resonance angiography (MRA) scan.1 And following Dr. Leestma's testimony, the State recalled Dr. Thogmartin, who refuted Dr. Leestma's testimony based on the MRA. The jury found Spurgeon guilty of the lesser included offense of manslaughter. She was sentenced to fifteen years in prison. Spurgeon's judgment and sentence were affirmed on direct appeal. Spurgeon v. State, 139 So. 3d 308 (Fla. 2d DCA 2014) (table decision). II. The postconviction motion and evidentiary hearing Spurgeon timely filed a motion for postconviction relief. She subsequently filed an amended motion for postconviction relief, raising multiple claims. The postconviction court granted an evidentiary hearing on two of those claims, including claim one in which Spurgeon asserted, in part, that trial counsel was ineffective for failing to present the testimony of a biomechanics expert to rebut the State's theory as to the cause of the cerebral edema and subdural hematoma. At the evidentiary hearing, the defense presented the testimony of two biomechanics experts: Dr. Van Ee, Ph.D., and Dr. Ipser. Dr. Van Ee explained that 1Throughout trial, both parties referred to a magnetic resonance imaging (MRI) scan, but Dr. Thogmartin clarified that it was actually an MRA scan. -4- based on his own research and experiments, as well as a peer-reviewed study by another individual in his field, it would not have been possible for impact on a mattress or similar soft surface to have caused the damage to the victim's brain. Dr. Ipser reached the same conclusion as Dr. Van Ee. Dr. Ipser explained that trial counsel had told him prior to trial that this was a case of shaken baby syndrome, so he had only performed calculations related to that theory. He explained that after conducting soft- impact calculations posttrial and reviewing the relevant literature, it was apparent that the soft-impact theory of injury was physically impossible. Dr. Ipser testified that the State's theory would have required 1000 pounds of force to be exerted and would have resulted in external injuries to the victim. Dr. Smith and Spurgeon's trial counsel also testified at the evidentiary hearing. Dr. Smith reiterated her trial testimony that repetitive soft-impact trauma caused the cerebral edema and subdural hematoma, ultimately resulting in the victim's death. She concluded that the victim's symptoms "cannot be explained by an alternate mechanism other than abusive head trauma." Trial counsel testified that the theory of the defense was that the victim had suffered some medical event prior to being in Spurgeon's care that had caused the cerebral edema and subdural hematoma. Although early in the case the State had theorized that the victim's internal injuries had been caused by shaking, trial counsel conceded that it had become evident prior to trial based on depositions, Dr. Smith's report, and statements made by Dr. Thogmartin that the State's experts believed that the victim's injuries were caused by repetitive soft impact. Nonetheless, trial counsel defended only against a shaken-baby theory because it was his belief that there was -5- "no medical or factual support" for the State's soft-impact theory. Trial counsel did not ask Dr. Ipser to investigate the soft-impact theory or perform any calculations to determine its viability. And trial counsel conceded that he did not state to the jury during closing argument that there was no factual or medical support for the soft-impact theory or point to Dr. Ipser's brief testimony regarding his thoughts on the soft-impact theory. Following the evidentiary hearing, the postconviction court denied Spurgeon's amended motion for postconviction relief. III. Analysis "On review of an order denying postconviction relief following an evidentiary hearing, we defer to the postconviction court's factual findings that are supported by competent substantial evidence but we review de novo the court's legal conclusions." Campbell v. State, 247 So. 3d 102, 106 (Fla. 2d DCA 2018) (citing Light v. State, 796 So. 2d 610, 615 (Fla. 2d DCA 2001)). Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), to be entitled to relief on a claim of ineffective assistance of counsel Spurgeon was first required to show that trial counsel's performance in failing to present the testimony of a biomechanics expert to prove that the State's soft-impact theory was impossible fell "outside the broad range of reasonably competent performance under prevailing professional standards." See State v. Murray, 262 So. 3d 26, 37 (Fla. 2018) (quoting Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010)). Trial "counsel does not necessarily perform deficiently by failing to retain an expert witness to rebut the State's expert testimony." King v. State, 260 So. 3d 985, 1000-01 (Fla. 2018); accord Crain v. State, 78 So. 3d 1025, 1040 (Fla. 2011) ("As the -6- United States Supreme Court has recently recognized, 'Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense' because '[i]n many instances cross-examination will be sufficient to expose defects in an expert's presentation.' " (alteration in original) (quoting Harrington v. Richter, 562 U.S. 86, 111 (2011))). But in this case, the cause of the cerebral edema and subdural hematoma was critical to the State's case, particularly since there were no external signs of trauma or injuries to victim's neck, spine, or ribs. Trial counsel testified at the evidentiary hearing that he felt it unnecessary to rebut the State's soft-impact theory because, in his opinion, there was no medical or factual support for it. And yet he made no such argument to the jury. Moreover, the testimony regarding the soft-impact theory came from medical experts, and Dr. Smith testified at trial that the medical community has had extensive experience in associating the types of injuries exhibited by the victim with repetitive soft-impact trauma. Despite trial counsel's belief that there was no medical support for the State's theory, he did not challenge Dr. Smith or the other medical experts on the theory and only asked the State's experts whether they could state with 100% certainty what had happened to the victim. Cf. Murray, 262 So. 3d at 40 (holding that trial counsel was not deficient for failing to retain an expert on shoeprint analysis where "counsel thoroughly cross-examined [the State's expert] about the discrepancy [in his reports] dealing with the shoe impressions, specifically asking [the State's expert] to read from his report anywhere it mention[ed] the possibility of any shoes other than [the type worn by Murray's codefendant]); Belcher v. State, 961 So. 2d 239, 250 (Fla. 2007) ("Belcher cannot establish deficient performance for failure to retain an expert witness when -7- defense counsel rigorously challenged the State's own witness."); Reed v. State, 875 So. 2d 415, 427-28 (Fla. 2004) (holding that trial counsel's failure to obtain an expert witness to rebut the State's experts was not deficient performance where counsel established the facts necessary for the defense through effective cross-examination of the State's experts). Trial counsel performed deficiently in failing to present potentially exculpatory testimony at trial. See Campbell, 247 So. 3d at 107. Trial counsel's failure to present expert testimony that the State's soft-impact theory was not feasible and instead to present expert testimony to rebut a theory not even presented by the State falls below the standard of reasonably effective counsel. See Ibar v. State, 190 So. 3d 1012, 1021 (Fla. 2016) (holding that trial counsel "was deficient for failing to present a facial identification expert to challenge the State's charge that Ibar was the perpetrator seen in the videotape[—which was of very poor quality—]committing the murders" where the videotape and still images from it were "instrumental to the State's case"); State v. Fitzpatrick, 118 So. 3d 737, 757 (Fla. 2013) (holding that trial counsel performed deficiently for failing to "meaningfully consult an expert or conduct anything more than a cursory investigation into the benefits and potential risks of retesting [the victim's] underwear" for the presence of semen; "counsel failed to exercise reasonable professional judgment when he approached this critical issue based upon only an 'impression' that semen would not be found, and without consulting an expert about the possibility that FDLE's testing could have missed semen"); State v. Plummer, 228 So. 3d 661, 668 (Fla. 1st DCA 2017) (holding that trial counsel performed deficiently for failing to present a ballistics expert to establish the nature of the gun at issue where the -8- defendant was charged with carrying a weapon). Therefore, Spurgeon established deficient performance of trial counsel. As to the second prong of the Strickland analysis, the prejudice prong, Spurgeon was required to demonstrate that trial counsel's deficient performance "so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined." See Murray, 262 So. 3d at 37 (quoting Bolin, 41 So. 3d at 155). "In cases involving the failure to call witnesses, the prejudice prong of Strickland requires that the postconviction court consider the admissibility of the testimony; its weight as determined by whether it goes to the merits of the case, is cumulative, and is material and relevant; and any inconsistencies presented by it." Campbell, 247 So. 3d at 108. Because the victim's organs were donated prior to the autopsy and certain tests were not administered prior to death, pinning the cause of the cerebral edema and subdural hematoma on a metabolic disorder was difficult. However, had trial counsel presented expert testimony to refute the State's only theory as to how the victim suffered internal head trauma in the absence of external injuries, it certainly would have undermined the State's case. Dr. Van Ee's and Dr. Ipser's unrebutted testimony at the evidentiary hearing established that the State's repetitive soft-impact theory was not feasible. Not only would it have required an amount of force that was humanly impossible to generate, even if the half-ton force had been feasible, it would have left visible external injuries to the victim. Cf. Ibar, 190 So. 3d at 1022-23 ("In light of the scant evidence connecting Ibar to this murder and the consequent importance of identifying the individual depicted on the videotape, alleged to have been Ibar, we conclude that trial counsel's deficiency, in failing to procure a facial identification expert, -9- undermines our confidence in Ibar's trial."); Fitzpatrick, 118 So. 3d at 759 ("In light of the severity of these errors [relating to the semen] and the dispositive nature of this issue, counsel's deficient performance significantly undermines confidence in the outcome of Fitzpatrick's trial. Had he not been ineffective, the jury would have received substantial evidence that supported Fitzpatrick's claim that he had consensual sex with [the victim] earlier in the day and that he was not the one who attacked [the victim]."). Trial counsel's brief inquiry about the soft-impact theory at the conclusion of Dr. Ipser's direct examination was hardly a substitute for more thorough questioning and testimony supported by calculations, experiments, and studies just as had been done to demonstrate that the victim's injuries could not have occurred through shaking alone— which of course the State did not dispute. And the State was quick to question Dr. Ipser on cross-examination regarding his failure to conduct any calculations to support his statement regarding the soft-impact theory. Additionally, trial counsel made no effort during closing argument to capitalize upon Dr. Ipser's brief testimony regarding the soft- impact theory; he did not even mention it. Moreover, none of the defense's medical experts refuted the State's soft-impact theory. Trial counsel's failure to adequately investigate and present evidence refuting the actual theory presented by the State undermines confidence in the outcome of this case. The testimony of a biomechanics expert regarding the infeasibility of the soft-impact theory could have created reasonable doubt in the minds of the jurors. Cf. Light, 796 So. 2d at 616. Therefore, prejudice has been established, and the court erred in determining that trial counsel did not render ineffective assistance. See Honors v. State, 752 So. 2d 1234, 1236 (Fla. 2d DCA 2000) (holding that the failure of defense - 10 - counsel "to secure the attendance of an exculpatory witness in a circumstantial evidence case" where the witness's testimony "would have cast doubt on the only evidence linking Honors to the crime" constituted ineffective assistance). Accordingly, we affirm in part and reverse in part the postconviction order denying Spurgeon's rule 3.850 motion. Our reversal in part necessitates a new trial. Affirmed in part; reversed in part; remanded with instructions. NORTHCUTT and SMITH, JJ., Concur. - 11 -