5D08-279 Lexter Caban v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-279

Case Date: 03/16/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

LEXTER CABAN, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed March 20, 2009 3.850 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge. Ryan J. Sydejko, of Loren Rhoton, P.A., Tampa, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee. GRIFFIN, J. Defendant, Lexter Caban ["Caban"], appeals the summary denial of his rule 3.850 motion for post-conviction relief. We find that one issue has merit and requires reversal. On July 19, 1999, Caban was babysitting the two children, ages five and two, of his girlfriend while she was at work. A passerby found Caban outside the apartment, crying, and in search of help while cradling Jonathan, the two-year-old, and trying to rouse him. Caban said that he had put Jonathan in bed for a nap, and Jonathan had fallen off the bed. paramedics arrived. The passerby summoned her brother who performed CPR until Case No. 5D08-279

Jonathan was transported to Osceola Regional Hospital. Dr. Kenneth Byerly noted that Jonathan had bruising over the right eyelid and was experiencing intermittent seizures. The right pupil was dilated, indicating to Dr. Byerly a right side intracranial injury. A CAT scan was performed and surgery was immediately performed to evacuate a large subdural hematoma. During the procedure, Jonathan went into cardiac arrest, and he was airlifted to the intensive care unit at Arnold Palmer Hospital. Three days later, Jonathan died. Caban was charged with first-degree felony murder and aggravated child abuse. He was found guilty of those charges and was sentenced to natural life on the murder charge and a concurrent ten-year term of imprisonment on the aggravated child abuse conviction. His judgment and sentence were affirmed on appeal. See Caban v. State, 892 So. 2d 1204 (Fla. 5th DCA 2005). On direct appeal, the main contention was that there was insufficient circumstantial evidence of guilt and the trial court should have granted Caban's motion for judgment of acquittal. Caban contended that the child had sustained the fatal injury when he fell off the bed. The trial was essentially a contest between experts. Dr. Robert Gold, a pediatric ophthalmologist testified that, consistent with "shaken baby syndrome," the child had hemorrhages in all layers of the central retina of each eye, with no sign of external ocular trauma. The doctor opined that he would not expect to

see retinal hemorrhage result from a fall from a thirty-two-inch high bed on to a carpeted floor. Dr. John Tilelli, an intensive care physician, testified that the CAT scan showed subdural blood, which usually occurs as a result of a direct impact. Moreover, the doctor testified that the child had both a translational or impact injury and also a rotational injury, and the child's history of falling off the bed was not consistent with the 2

injuries or their severity. His opinion was that the child suffered shaken baby syndrome, or whiplash impact syndrome. The doctor explained that when a child is violently

shaken, the head rocks to and fro, causing the child's brain to twist and turn. The twisting and turning causes injury to the brain and subsequent swelling. Dr. Tilelli

testified that in twenty years, he had never seen a child with as severe an injury from a fall off a bed. He testified that it was likely that the injuries resulted from child abuse. Dr. Gary Pearl also testified for the State as an expert. He testified that the child's head injuries were consistent with shaken baby syndrome. Dr. Merle Reyes also opined that this was a case of shaken baby syndrome.1 The defense called two expert witnesses. Dr. Ljubisa Dragovic testified that the child died of blunt force trauma to the head and not from shaking. Dr. Jonathon

Plunkett, who is perhaps the most widely known "shaken baby syndrome" skeptic, testified that short distance falls can cause serious injury and death and that the child's death was caused by a subdural hematoma. He thought it unlikely that the injury was caused by a roll off the bed, and found it more likely that the child was standing or jumping when he fell off the bed. Following the verdict, Caban filed a motion for new trial. The trial judge

expressed concern over improper impeachment of the defense experts through the testimony of the State's experts: Because this was a battle of the experts, it does concern me that there was an improper impeachment of the defense experts in the case. There is clear case law that says one expert cannot comment on the qualifications of another After the defense rested, the State called one more expert witness, Dr. Randall Alexander, a professor of pediatrics, who testified that, in his opinion, to a reasonable degree of medical certainty, the case was one of shaken baby syndrome.
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expert, and without objection, the state questioned their experts about the qualification of the defense experts. The judge further observed the prejudice suffered by Caban as a result of the improper impeachment: And I think anybody who sat through the trial could see almost the physical reaction of the jury when one of the state's experts described the defense experts as simply folks who travel around the country and testify for defendants to try and get them off in serious cases. It's almost as if the jurors just shut down and didn't care what else the defense experts had to say. Because defense counsel did not object to this improper testimony, the trial judge ruled the impeachment issue would have to be raised in a post-conviction proceeding. In this rule 3.850 proceeding, Caban argues that defense counsel was ineffective for failing to object and to preserve for appellate review improper impeachment of Dr. Plunkett by the State's expert witnesses. Caban first complains about Dr. Pearl, who had given direct testimony for the State supporting the theory of shaken baby syndrome, particularly the characteristic of retinal hemorrhage. Defense counsel crossexamined him by asking about his efforts to keep up with all medical journals, and asked if he was familiar with four studies, including Dr. Plunkett's paper, which posit that short distance falls can cause subdural hemorrhages. Dr. Pearl testified that he had read three of the studies, including Dr. Plunkett's paper, but expressed the view that their opinion was "a very small minority." On re-direct examination, the prosecutor

elicited testimony from Dr. Pearl that an ad hoc committee of the National Association of Medical Examiners ["NAME"] held a position in direct opposition to the positions of Dr. Plunkett, and that an article compiled by Dr. Mary Chase, of the ad hoc committee, also

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rejected Dr. Plunkett's views. There was no defense objection.

The article was not entered into evidence, however.

Defense counsel also failed to object when State expert witnesses, Drs. Tilelli, Reyes, and Alexander, attacked the credibility of Dr. Plunkett. Dr. John Tilelli testified that Dr. Plunkett's opinion was not supported or substantiated by his data and that Dr. Plunkett's interpretation of his data is incorrect. Dr. Reyes was asked on cross-

examination whether she ever testified for the defense, and Dr. Reyes answered in the negative, but then volunteered that "people who will testify for the defense are paid." Dr. Reyes was also asked whether particular experts were used by defense attorneys all over the country, and Dr. Reyes answered in the affirmative. Dr. Reyes also agreed with the prosecutor that if you "[want] to make a lot of money" you put your name on a defense attorney list, and that when these defense experts become known in their fields, their income substantially increases. The prosecutor also elicited testimony concerning Dr. Plunkett by asking Dr. Alexander: "And the majority of opinion you indicated in the pediatric community, are you also aware of the opinion of the other associations in the medical community as far as his [Plunkett's] article and his testifying?" Dr. Alexander testified that "the National Association of Medical Examiners has a position paper on abusive head trauma, which basically is the same as the position paper the American Academy of Pediatrics has, and that's really a huge variance with Dr. Plunkett." Dr. Alexander further expressed the opinion that Dr. Plunkett's conclusions were not generally accepted by the medical community, and that his data was "soft." Dr. Alexander testified that Dr. Plunkett's conclusions "are not accepted as even following from his own data." Dr. Alexander further testified that he had heard of Dr. Plunkett because of his testifying for defense 5

attorneys in cases of child abuse. Dr. Alexander also testified that in the last several years, the number of cases where he was called in had increased because the defense had retained experts like Dr. Plunkett. Caban contends that an expert witness may not testify about the credibility of another witness and asserts that the attack upon Dr. Plunkett was exacerbated by inadmissible hearsay as to the opinions of NAME and Dr. Chase. He claims counsel was ineffective for failing to object. Caban is correct that an expert may not comment on the credibility of other witnesses and that this was improper impeachment. See e.g.,

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