Vega v. State
| Decision Date | 17 January 2020 |
| Docket Number | Case No. 5D19-729 |
| Citation | 288 So.3d 1252 |
| Parties | Giovanni K. VEGA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman and Robin A. Compton, Assistant Attorneys General, Daytona Beach, for Appellee.
Giovanni Vega appeals a final order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He asserts two claims for relief. We affirm the summary denial of Vega's second claim without further comment. However, we find merit in Vega's first claim, and reverse for an evidentiary hearing.
In 1999, following the death of his then-girlfriend's three-year-old son, Xavier Collado, Vega was charged with first-degree felony murder and aggravated child abuse. When confronted by police, Vega initially stated that he was not present when Xavier was injured. That statement was quickly exposed as a lie when Xavier's mother informed the police that Vega had been watching Xavier that day, and called to tell her that Xavier had been hurt when he fell out of the bathtub. Vega then told the police that while he was on the phone, Xavier fell down a flight of stairs. However, the medical professionals who treated Xavier at the hospital suspected child abuse, which the medical examiner later confirmed based on certain findings made during the autopsy.
At Vega's trial in 2001, the State presented the testimony of Dr. Shashi Gore, the Orange County Medical Examiner. Dr. Gore testified that Xavier had sustained a torn frenulum,1 which in his opinion could have resulted only from someone striking the child. Dr. Gore opined that a fall down the stairs could not have produced the force required to tear the child's frenulum. Dr. Gore also found retinal hemorrhaging during Xavier's autopsy. Dr. Gore concluded that the cause of death was blunt force applied to the child's head as a result of child abuse. Based primarily on the fact that Vega was the only adult with the child at the time of injury and Dr. Gore's testimony, Vega was convicted as charged and sentenced to life in prison. His conviction was affirmed without opinion. Vega v. State, 804 So. 2d 1263 (Fla. 5th DCA 2002).
In 2002, Vega filed his first rule 3.850 motion, arguing that his trial counsel was ineffective for failing to retain an expert to investigate the possibility that the child died from falling down a flight of stairs. Specifically, Vega alleged that an expert could have disputed Dr. Gore's conclusions because there were no external injuries to the child's lip area, which would have cast doubt on Dr. Gore's conclusion that the torn frenulum was the result of child abuse. The trial court summarily denied the motion, and this Court affirmed without opinion. Vega v. State, 856 So. 2d 1010 (Fla. 5th DCA 2003).
With Dr. Anderson's report in hand, Vega filed a successive rule 3.850 motion in 2010. Vega argued, among other things, that Dr. Anderson's report constituted newly discovered evidence, and thus, was not procedurally barred. The postconviction court summarily denied the motion, concluding that "as the State persuasively argues, the medical articles in question (upon which Dr. Anderson relied) do not qualify as newly discovered evidence." Moreover, "because the records (Dr. Anderson) reviewed and the studies he considered in reaching his opinion were available well over two years before the instant Motion was filed," the claim was untimely.2
Vega moved for rehearing, arguing that the date Dr. Anderson issued his report was the date the newly discovered evidence could have been "discovered," or alternatively, the date the articles became generally accepted in the scientific community was the date they were "discovered." The postconviction court denied the motion for rehearing, concluding that Vega was simply seeking to "present new experts, who [drew] different conclusions." Vega appealed, and this Court affirmed without opinion. Vega v. State, 64 So. 3d 692 (Fla. 5th DCA 2011).
In 2012, Vega retained another medical examiner, Dr. Radford Shanklin, who concluded, after reviewing the autopsy and Xavier's hospital records, that the cause of death was septic shock, brought on by meningitis
. Based on Dr. Shanklin's report, Vega filed another rule 3.850 motion in 2013, and, after an appeal, was granted an evidentiary hearing. Vega v. State, 135 So. 3d 382, 382 (Fla. 5th DCA 2014). However, Dr. Shanklin died before he could testify, and Vega's then-postconviction counsel either did not, or could not, find an expert to testify to a similar conclusion.
In 2018, Vega filed the successive rule 3.850 motion that is now before us. In that motion, he claimed that a new trial was required to prevent a manifest injustice. He asserted that Dr. Gore's conclusions had been "thoroughly discredited," and pointed to the subsequent discipline of Dr. Gore as well as the reports authored by Dr. Anderson and Dr. Shanklin. The postconviction court summarily denied the motion as procedurally barred because Vega's arguments had been previously raised, denied by the postconviction court, and affirmed on appeal.
On appeal, we must determine whether Dr. Anderson's report constituted newly discovered evidence, and if so, whether the failure to reconsider our earlier decision would result in a manifest injustice, as required to overcome the law of the case.
Thus, to raise a claim based on newly discovered evidence, the defendant must satisfy two requirements. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 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 defendant or his counsel could not have known [of it] by the use of diligence.’ " Id. (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." Id. (citing Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) ). This second prong is also satisfied if the evidence "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Hildwin v. State, 141 So. 3d 1178, 1181 (Fla. 2014) (quoting Jones, 709 So. 2d at 521 ). "To reach this conclusion the trial court is required to ‘consider all newly discovered evidence which would be admissible’ at trial and then evaluate the ‘weight of both the newly discovered evidence and the evidence which was introduced at the trial.’ " Jones, 709 So. 2d at 521 (quoting Jones, 591 So. 2d at 916 ). When examining the second prong, the trial court must consider factors such as whether the new evidence would have...
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