Commonwealth v. Epps

By the Court (Cypher, Grainger & Maldonado, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

In this consolidated appeal, the defendant, Derick Epps, appeals from his conviction of assault and battery upon a child causing substantial bodily injury in violation of G. L. c. 265, § 13J(b), and from the denial of his motion for new trial. He asserts that scientific research that challenges the theory of shaken baby syndrome (SBS) and abusive head trauma (AHT) has gained general acceptance in the scientific community, rendering this evidence newly discovered and warranting a new trial. Alternatively, he faults trial counsel, in a claim of ineffective assistance of counsel, for failing to present this evidence at trial. The defendant raises no separate claims of error relative to his direct appeal. We affirm.

Discussion. 1. Standard of review. We review the denial of a new trial motion for abuse of discretion or significant errors of law. Commonwealth v. Elangwe, 85 Mass. App. Ct. 189, 194 (2014). Where the trial judge and the motion judge are the same, as is the case here, we give "special deference to [the judge's] assessment of the trial record." Ibid. (quotations and citation omitted). "A judge's subsidiary findings of fact will not be disturbed on appeal unless they are shown to be the result of a clear abuse of discretion or were clearly erroneous." Commonwealth v. Grant, 78 Mass. App. Ct. 450, 454 (2010) (quotations and citation omitted).

2. Newly discovered scientific evidence. The defendant contends the judge erred in determining that he presented no newly discovered evidence in support of his new trial motion. He argues the research challenging SBS, while in existence at the time of trial, has gained general acceptance in the scientific community since his trial, resulting in admissible evidence strongly favoring the defense. See Commonwealth v. Powell, 450 Mass. 229, 238 (2007). In support of his claim, the defendant introduced various studies challenging SBS and AHT -- some of which were published after the trial. He also called Dr. Joseph Scheller, a neurologist, to testify to the accidental, rather than intentional, nature of the victim's injuries.

For the defendant to prevail on his claim, he must show "the evidence was unknown to [him] or trial counsel and not reasonably discoverable at the time of trial," Commonwealth v. Shuman, 445 Mass. 268, 271 (2005), and "that the evidence 'casts real doubt on the justice of the conviction.'" Id. at 272, quoting from Commonwealth v. Salvati, 420 Mass. 499, 506 (1995). In addition, "[t]he evidence said to be new not only must be material and credible, but also must carry a measure of strength in support of the defendant's position." Commonwealth v. Shuman, supra at 272 (quotations and citations omitted). It must be shown that the new evidence "would have been a significant factor in the jury's deliberations, had it been admitted at trial." Ibid.

The judge rejected the defendant's claim that the proffered scientific evidence is new and widely accepted. The judge determined "the defendant's evidence that the views of Dr. S[c]heller . . . are now widely accepted is not credible." This determination is amply supported. The defendant's own expert, Dr. Scheller, admitted that his position is in the "significant minority." See Commonwealth v. Robinson, 449 Mass. 1, 5-6 (2007). Some of the findings reported in the proffered studies also refute the defendant's theory that the victim's injuries could have been accidental. See, e.g., Levin & Christian, Clinical Report -- The Eye Examination in the Evaluation of Child Abuse, 126 Pediatrics 376, 378 (2010) ("[T]here has been a continued and dramatic increase in the evidence supporting the diagnostic specificity of severe hemorrhagic retinopathy as an indicator of [abusive head trauma]"); Narang, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, 11 Hous. J. Health L. & Pol'y 505, 543 (2011) ("Pathology studies have also confirmed the predominance of trauma, and more specifically non-accidental trauma, as the cause of [subdural hemorrhages]").

Moreover, the judge, who found Dr. Scheller's position "absurd" on the basis of, among other things, his testimony that he (1) believed "child abuse pediatricians are such good marketers"; (2) believed "Abusive Head Trauma . . . [is] a great PR term [which] doesn't mean anything"; (3) disregards confessions in which individuals admit to having shaken a baby or child; and (4) believed regular people do not violently shake a child out of frustration, could properly assess credibility. See Commonwealth v. Shuman, supra at 272 (new evidence must be credible). Cf. Commonwealth v. Hensley, 454 Mass. 721, 742 (2009) ("In analyzing the reasonableness of trial counsel's decision, the motion judge necessarily considered the negative consequences of presenting this evidence. This was entirely proper"); Smith v. Bell Atl., 63 Mass. App. Ct. 702, 718-719 (2005) (doctor's failure to gather knowledge about plaintiff's life "called into question the reliability of her conclusion"). Accordingly, we see no plain error or abuse of discretion in the judge's decision to deny the new trial motion in the absence of newly discovered reliable evidence. See Commonwealth v. Pike, 431 Mass. 212, 218 (2000).

3. Ineffective assistance of counsel. The defendant also alternatively contends trial counsel was ineffective for failing to challenge the Commonwealth's SBS theory of the case with evidence of this alternative research and an expert to opine that SBS does not exist. This claim also lacks merit.

Counsel cannot be faulted for making a strategic or tactical decision "unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978). Here, trial counsel made a tactical decision not to call an expert. Counsel instead, as the judge found, "used his agile and compelling cross-examination of [the Commonwealth's expert] to make all of the essential points he needed." Counsel elicited in his cross-examination of the Commonwealth's expert, among other things, the expert's awareness of the research that refutes his theory of SBS and AHT. Any further exploration into this area, as the Commonwealth aptly points out in pages 46-47 of its brief, would have undermined the defendant's ultimate defense that someone other than the defendant, i.e., the victim's mother, inflicted the victim's injuries. See Commonwealth v. Rosado, 434 Mass. 197, 201-202 (2001); Commonwealth v. Glover, 459 Mass. 836, 844 (2011). Moreover, where the proffered research remains in the significant minority and subject to sizeable attack, counsel was not unreasonable in electing both not to call such an expert and not to explore that line of questioning any further. See, e.g., Commonwealth v. Pillai, 445 Mass. 175, 187 (2005) (not unreasonable to decide not to call witnesses to discredit "likeable" victims because it could engender sympathy for the victims); Commonwealth v. Morales, 453 Mass. 40, 47-48 (2009) (reasonable to decide not to call a witness deemed not credible). We conclude, therefore, the judge did not abuse his discretion in determining that counsel's "strategic judgment in this matter was not manifestly unreasonable." Commonwealth v. Acevedo, 446 Mass. at 442.

Judgment affirmed.

Order denying motion for new trial affirmed.

By the Court (Cypher, Grainger & Maldonado, JJ.),

Clerk Entered: April 22, 2015.