Ex parte Rosa Estela Olvera JIMENEZ, Applicant.
No. AP-76669.
Court of Criminal Appeals of Texas.
April 25, 2012.
364 S.W.3d 866
I, for one, am not buying into this idea that you can “infer” a continuing operation theory. The concept should have been clearly stated and reviewed by the magistrate in order to support the issuance of the warrant. The affidavit here failed to provide a time frame to support a standard probable cause finding, it did not demonstrate an ongoing criminal operation, and the affiant did not bring the ongoing operation theory to the attention of the magistrate. Therefore, I cannot find that the warrant was sufficient to support the search. I would reverse the judgment and remand for a new trial.
Elizabeth Sabatier Phillips, Asst. D.A., Lisa C. McMinn, State‘s Attorney, Austin, for State.
COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and ALCALA, JJ., joined.
This is a tragic case involving the death of a toddler who choked on a wad of paper towels while applicant was babysitting him.
A jury convicted applicant of felony murder and injury to a child and sentenced her to 75 years in prison for the murder and 99 years in prison for the injury to a child. The court of appeals affirmed applicant‘s convictions,1 and we denied applicant‘s petition for discretionary review. Applicant then filed an application for a writ of habeas corpus and, after conducting extensive hearings, the habeas judge recommended that we grant applicant a new trial.2 The habeas judge concluded that (1) applicant‘s due process rights under Ake v. Oklahoma3 were violated because she was denied adequate funding to hire experts, and (2) trial counsel was ineffective because he failed to (a) retain qualified experts, (b) make a written request for such experts, and (c) object and request a mistrial and a continuance in response to his own expert‘s testimony. Although we agree with some of the habeas judge‘s factual findings, we do not adopt them all because some of them are not supported by both the trial and habeas records. As the ultimate fact finder, we will “exercise our authority to make contrary or alternative findings and conclusions” when necessary.4 After reviewing all of the evidence, we find that applicant has failed to show that she is entitled to a new trial. Therefore, we deny relief.
I.
A. Background.
According to applicant, she was babysitting 21-month-old B.G. when she saw him walking toward her and noticed that he was “limp and purple.” After a neighbor called 911, paramedics arrived and extracted a “large mass” of “blood soaked” paper towels stuffed into B.G.‘s throat. B.G. died three months later from brain damage due to the prolonged lack of oxygen during the choking. The court of appeals‘s opinion described the trial testimony in detail and summarized the theories of both the defense and the State:
Jimenez‘s theory was that the entire incident was an accident. B.G. liked to play with paper towels and put things in his mouth. On the day in question, he put the paper towels in his mouth and accidentally swallowed them. Jimenez discovered B.G. choking, tried to help him in the bathroom (thus explaining the blood found there), and when she was unable to do so, immediately carried him to her neighbor‘s apartment. Jimenez found support in the fact that witnesses who had tried to look inside B.G.‘s mouth had been unable to do so because B.G. kept biting their fingers. That would have been impossible, according to Jimenez, if B.G.‘s airway had been occluded for a long period of time. The defense also portrayed Jimenez as a young pregnant woman who would not have been physically able to commit the crime of which she was accused. Additionally, the defense claimed that Jimenez‘s various explanations of the incident were largely consistent, and that any minor inconsistencies were the result of the trauma that she had just experienced and the fact that she did not have a proper understanding of the English language. Her possibly incriminating statements to Officer De Los Santos
were also attributed to trauma and De Los Santos‘s aggressive questioning. Jimenez also argued that the State‘s medical experts were biased in the State‘s favor because of the emotional nature of the case. Finally, Jimenez argued that her expert, Dr. Kanfer, provided testimony that the blood on the paper towels was primarily the result of pulmonary edema and that if the paper towels had been forced down B.G.‘s throat, there should have been evidence of injury to the child‘s face or mouth and evidence that the paper towels had been shredded by the child‘s teeth. The State‘s theory was that Jimenez had forced the wad of paper towels down B.G.‘s throat. The blood found on the paper towels and in Jimenez‘s bathroom, in the State‘s view, was evidence of force, not an accidental choking. The State‘s medical experts had testified that it was physically impossible for a 21-month-old child to place five paper towels down his throat, and that the child‘s gag reflex would prevent the child from accidentally swallowing such a large object. Furthermore, the State argued that Jimenez provided inconsistent explanations of how she found the child and that her statements to Officer De Los Santos were incriminating. Additionally, the State referred to photographic evidence of what appeared to be bite marks on Jimenez‘s hand and Jimenez‘s admission to Officer De Los Santos that B.G. bit her. Based on this evidence, the State argued, “Folks, we don‘t need a forensic odontologist to tell you what this is on her hand.”5
The resolution of this case depended primarily on expert testimony6 concerning whether B.G. could have stuffed the five wadded-up, double-ply paper towels into his mouth by himself and accidentally choked on them or whether that was “physically impossible,” in which case applicant must have forced the wad down his throat.
B. The Trial Testimony Concerning “Accident” or “Homicide.”
At trial, Dr. John Boulet testified that he was a board-certified pediatric emergency physician who first treated B.G. at the hospital. He stated that he saw the wad of paper towels that had been removed from B.G.‘s throat, and that it was nearly the size of his own fist.7 In his opinion, an object of that size could not go down a child‘s airway accidentally; “it would have to be put down there.”
Dr. Patricia Oehring testified that she is a pediatric critical-care physician. She was B.G.‘s primary doctor once he was moved from the emergency room to the intensive care unit. When shown a photograph of the wad of paper towels, she said that it was not possible for B.G. to put this wad down his throat all by himself. Although toddlers “definitely” put things that look like candy or food into their
She concluded that B.G.‘s gag reflex would have prevented him from forcing a large object down his throat: “[H]e‘ll gag as soon as you hit the soft palate” and the gag reflex operates all the way down the airway. In her opinion, an adult forced the paper towels into B.G.‘s throat: “He‘d have to be held down.... [H]e would have been coughing and gagging and bleeding and fighting and struggling up to the point where his brain didn‘t get enough oxygen to where he became limp.”8
Finally, Dr. Oehring said that a child of B.G.‘s age would not have the strength or dexterity to “wad” the paper towels together into a small ball. She thought that the wad must have been soaked in “water or something” before being put into his mouth.9
Dr. Elizabeth Peacock, a forensic pathologist and deputy medical examiner,10 testified that B.G.‘s death was a homicide caused by damage to the brain from a lack of oxygen. This finding was “not a close call” because “the physics of it [being an accidental death] are impossible.” She explained that the back of the throat of a 21-month-old child is small, less than an inch in diameter. “The only things that can really get down there and obstruct, in my opinion, and in the forensic texts are something that‘s round or small to that degree.”
The defense expert, Dr. Ira Kanfer, is a forensic pathologist and medical examiner. In his opinion, B.G.‘s choking was accidental. He believed that B.G. would have been able to wad up the paper towels himself, stuff them into his mouth, and accidentally swallow them. He explained that he had conducted an experiment to test this theory by wadding up five paper towels, soaking them in water, and compressing them into a ball small enough to fit into a toddler‘s mouth and throat.
Dr. Kanfer also thought that the blood found on the towels was consistent with pulmonary edema, a reaction that can occur when a person is choking, where blood flows into the air sacs in the lungs. He stated that the results of B.G.‘s chest x-ray taken several days after the incident were consistent with pulmonary edema.12
Dr. Kanfer also disagreed with the State‘s theory that B.G. had stopped breathing by the time of the 911 call. In his opinion, B.G. was experiencing “agonal” breathing, a result of severe oxygen deprivation. He said that when a person‘s airway is completely blocked, the heart cannot continue to beat for more than four to five minutes and that, after the heart stops, all “purposeful movement” lasts only a minute or two longer. Thus, B.G. would not have been able to bite the neighbor‘s or the paramedic‘s fingers when they tried to open his mouth if the choking occurred earlier than the time applicant said.13
Finally, Dr. Kanfer suggested that the various attempts to resuscitate B.G. by applicant, the neighbor, and the paramedic may have driven the wad farther down his throat and accidentally made the obstruction worse.
The defense also called Dr. Randall Alexander, a board-certified pediatrician, as a hostile witness. Dr. Alexander agreed with Dr. Kanfer that, if a child‘s airway is completely occluded, his heart would not continue to beat for an hour, and that pulmonary edema might (or might not) occur when one‘s airway is blocked. However, on cross-examination, Dr. Alexander largely agreed with the testimony of the treating doctors.14
C. The Testimony at the Habeas Hearing Concerning “Accident” or “Homicide.”
After the court of appeals affirmed her conviction, applicant filed an application for a writ of habeas corpus, claiming, among other things, “actual innocence” based on additional expert evidence that B.G. could have, and most likely did, put the wad of paper towels into his mouth and then accidentally choke on them. During the habeas proceedings, applicant presented the live testimony of two pediatric specialists from the Children‘s Hospital of Philadelphia, Dr. Karen Zur, a pediatric otolaryngologist, and Dr. John McCloskey, a pediatric anesthesiologist and critical-care specialist. She also submitted an affidavit from Dr. Janice Ophoven, a pediatric forensic pathologist. These were all highly qualified experts who based their opinions upon a scientific methodology, and their opinions were supported by scientific data as well as familiarity with the facts of this case.
They, like Dr. Kanfer, questioned the reliability of the conclusions offered by the two doctors who had cared for B.G., Dr. Alexander (whom applicant had called as a hostile witness) and the two medical examiners who had testified at trial. These new experts, like Dr. Kanfer, testified that B.G.‘s injury was likely due to an accidental choking. Their credentials were even more impressive than those of Dr. Kanfer and their examples even more vivid and detailed than his. They, like Dr. Kanfer, presented an eminently plausible theory of how B.G. could have accidentally choked on a wet wad of paper towels.
The habeas judge made detailed factual findings concerning these three experts, their credentials, their opinions, and the factual bases for their opinions.16 He
Although the habeas judge concluded that the State‘s witnesses at the habeas hearing, did not “credibly rebut[] the testimony of applicant‘s experts that B.G. likely choked accidentally on the wad of paper towels,” he acknowledged, in his legal conclusions, that the credibility of dueling experts is for the jury to decide. Thus applicant failed to show, by clear and convincing evidence, that she was actually innocent of murder or injury to a child. As the United States Supreme Court recently noted, in the context of upholding the sufficiency of the evidence in a “shaken baby” homicide case, “Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”20 We, like the court of appeals and the habeas judge, are legally constrained to uphold the jury‘s verdict in this case. We therefore adopt the habeas judge‘s recommendation and deny relief on applicant‘s “actual innocence” claim.
We requested additional briefing on two of applicant‘s claims, one based on Ake v. Oklahoma, the other on ineffective assistance of counsel. We turn now to those claims.
II.
Applicant contends that she was denied due process and the effective assistance of counsel because the trial judge denied her the necessary funds for expert assistance as guaranteed under Ake v. Oklahoma.21 In this case, applicant requested, and was given, funds for the appointment of two experts, but she asserts that she should have had additional expert assistance, including an expert on choking such as a pediatric otolaryngologist, to “level the playing field” with the State‘s experts.
A. The Constitutional Right of an Indigent Defendant to Expert Assistance at Trial.
In Ake, the United States Supreme Court held that due process may require that an indigent defendant be granted access to expert assistance if “the expert can provide assistance which is ‘likely to be a significant factor’ at trial.”22 Three interests must be balanced in determining whether the State must provide such access:
The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.23
This analysis is conducted with a view towards whether failing to provide the defendant with the expert help he claims is necessary creates “a high risk of an inaccurate verdict.”24
However, the State need not “purchase for an indigent defendant all the
If the trial judge appoints an expert, and the defendant requests another or a different expert, the trial judge may deny further expert assistance unless the defendant proves that the original appointed expert could not adequately assist the defendant.31 The Constitution does not entitle “a defendant to the best (or most expensive) expert, or to more than one expert if the first does not reach a conclusion favorable to the defense. Just as a defendant who relies on counsel at public expense must accept a competent lawyer, rather than Clarence Darrow, so a defendant who relies on public funds for expert assistance must be satisfied with a competent expert.”32
The Supreme Court has stated that an indigent defendant is not entitled to the
Courts uniformly stress that the showing of need must set forth in detail what assistance is being requested and why it is needed. The defense must identify the expert, explain what the expert will do, and explain why that will be important in representing the defendant.35
Thus, courts have held that a trial judge does not err in denying funds for an appointed expert if the defense fails to set out the name of the requested expert in his motion, why the expert is necessary in the particular case, and the approximate cost of appointing that expert.36 Article
B. Factual Background to Applicant‘s Ake Claim.
In his first habeas affidavit, applicant‘s lead trial counsel explained the composition of the defense team as consisting of himself; second-chair counsel; a third counsel who joined the team shortly before trial; the defense investigator and his as-
The trial record does show that applicant‘s trial counsel was able to obtain monetary assistance from the trial judge when he filed written motions requesting such assistance. On June 13, 2003-six months after applicant‘s arrest-Judge Wisser granted applicant funds for the appointment of an investigator. He granted additional investigative funds on October 1, 2004. On January 16, 2004, Judge Wisser, “after considering the evidence and argument of counsel,” signed an order approving funds for applicant to retain an expert in forensic medicine. Several months later, trial counsel wrote a letter to the prosecutor informing her that he had retained Dr. Kanfer whom he had found “through Dr. Henry Lee (of the O.J. case).... He is a forensic pathologist. He was the expert in the Boston Nanny case.39 ... Dr. Kanfer is even willing for you to depose him, assuming that Judge Wisser will allow him to be paid for it.... We have a tragic accident and I think that Dr. Kanfer might be able to shed some light.” A few days before trial, Judge Wisser signed another order, granting applicant‘s “Sealed Ex parte Motion for Approval of Expert Witness,” approving funds for “Keith Kristelis of Ichabod.com for simulation, animation, and demonstrative evidence.” There is nothing in the trial record that shows that the trial judge denied any Ake motions or other requests for monetary assistance to retain experts.40
Applicant‘s initial habeas application did not contain any Ake claim. It was only when she filed a supplement to that application that she raised an Ake claim and attached a new affidavit from trial counsel in which he stated,
During my pre-trial preparations, I met with Judge [Wisser] to ask for additional funds to retain experts such as Dr. McGeorge and a biomechanical expert. I explained to the judge why we needed these experts, and I did not think that my current team was adequate to counter the State‘s case. Judge [Wisser] told me that he had authorized more experts than usual in a non-capital case, and that he would not pay for any more expert assistance regardless of my need. Based on the judge‘s ruling, I was forced to work within the constraints
There is nothing in the trial record that reflects this conversation. And there is nothing in either the trial or habeas record that shows when this conversation occurred. This is a critical omission because the reasonableness of a trial judge‘s denial of an Ake motion depends upon the specific information that the trial judge had in front of him at the time that he denied that motion.41 Further, applicant did not include any such assertions or evidence supporting her Ake claim in her motion for new trial. And she did not raise this issue on direct appeal.
C. May an Ake Claim Be Considered When It Is First Raised in a Post-Conviction Writ of Habeas Corpus?
We ordered the parties to brief a threshold issue to determine whether applicant could raise her Ake claim for the first time in an application for a writ of habeas corpus. Ordinarily a convicted person may not raise an issue in a habeas proceeding if the applicant could have raised that issue on direct appeal.42 Even constitutional claims are “forfeited if the applicant had the opportunity to raise the issue on appeal. This is because the writ of habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law.”43 Indeed, we recently noted our “trend ... to draw stricter boundaries regarding what claims may be advanced on habeas” petitions because “the Great Writ should not be used’ to litigate matters ‘which should have been raised on appeal’ or at trial[.]”44
Applicant admits that, under normal circumstances, a defendant must preserve an Ake claim in the trial court and
If the judge decided to authorize payment, I would then file a motion requesting expert assistance that would simply state my need for the expert. This motion would be granted, as authorized in the prior ex parte conversation in chambers.
But Ake does not authorize such an informal methodology in seeking expert assistance, and such an off-the-record informal meeting will not itself preserve a claim to the entitlement of expert assistance for
judicial review by the appellate courts in Texas either on direct appeal or habeas review. The contemporaneous objection rule applies to Ake claims just as it applies to other constitutional claims.48
Before an indigent defendant is entitled to appointment and payment by the State for expert assistance, he must make a pretrial “preliminary showing” that is based upon more “than undeveloped assertions that the requested assistance would be beneficial.”49 Thus, in Texas, an indigent defendant will not be entitled to funding for experts absent adequate factual support in the written motion that he presents to the trial judge.
In cases holding that a sufficient showing was not made under Ake, the defendant typically has failed to support his motion with affidavits or other evidence in support of his defensive theory, an explanation as to what his defensive theory was and why expert assistance would be helpful in establishing that theory, or a showing that there was reason
In Williams, we reiterated the importance of presenting affidavits or other information to the trial judge in making the required threshold showing.51 We held that the defendant is entitled to present his motion and evidence in an ex parte hearing outside the presence of the prosecutor to protect the defendant from disclosing his defensive theory to the State before the trial has begun.52
But a trial judge does not err in denying an informal, off-the-record request for additional funding for experts when he is not presented with a written motion that contains affidavits or other evidence that would support the defendant‘s request.53 If Judge Wisser had denied an informal, off-the-record request for additional funding for experts, applicant could have preserved that constitutional issue by filing a formal motion ex parte with the appropriate affidavits or information supporting the request before trial. Then she could have raised that claim in her motion for a new trial or on direct appeal. But we cannot review the merits
of an Ake claim on either direct appeal or habeas review if the defendant failed to file a proper pretrial Ake motion that the trial judge denied. In this case, applicant forfeited consideration of her Ake claim on habeas review because she failed to preserve her constitutional claim in the trial court by filing a proper written Ake motion and ensuring that the trial judge formally ruled on it.54
We therefore deny relief on this claim.
III.
Applicant also claims that she is entitled to a new trial based on her lead counsel‘s ineffective assistance. Specifically, she asserts that her lead counsel was deficient because (1) he hired Dr. Kanfer; and he failed to (2) object and request a mistrial and a continuance in response to Dr. Kanfer‘s cross-examination testimony; (3) retain other qualified experts; and (4) make a written request under Ake for retaining those experts. Applicant‘s counsel refers to this case as a “failure of forensics” because of these four interrelated deficiencies.
In Strickland v. Washington,55 the United States Supreme Court recog-
We “indulge in a strong presumption that counsel‘s conduct [fell] within the wide range of reasonable assistance,’ and that ‘the challenged action might be considered sound trial strategy.”58 The mere fact that another attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel.59 The Strickland test is judged by the “totality of the representation,” not by counsel‘s isolated acts or omissions, and the test is applied from the viewpoint of an attorney at the time he acted, not through 20/20 hindsight.60
A. Counsel‘s Qualifications and Preparation.
Lead counsel did not testify at any of the habeas hearings, but he did submit two affidavits setting forth his qualifications, his strategy in this case, and explanations for his tactics. Counsel stated that he has been in practice for “more than 28 years ... with never any disciplinary issue or finding of ineffectiveness.” He is board certified in criminal law and is on the appointed-attorney capital-murder list for Travis County.61 He and his co-counsel, as well as his investigator, “undertook extensive interviews” with applicant and made every attempt to talk to the witnesses who had knowledge of the case and of applicant‘s character. Because many of the witnesses “aligned with the State” declined to talk to lead counsel, he sent them letters almost a year before trial again asking them to talk with him. Not one of them responded. He and his team did speak to many witnesses who knew applicant “as well as family in Mexico with the help of the Mexican Consulate.” They learned as much as possible “about child abuse, the most common types of abuse, and the character traits of abusers.” Their research included “treatises, articles, cases reported, and speaking with experts,” but they found no case of abuse similar to the present one.
“The next part of the plan was to explain the accident with the testimony of Dr. Kanfer and the demonstrative evidence of Mr. Kristelis. We would demonstrate how the accident could have happened, which was consistent with the evidence and explained why the child had no injury.” Experienced counsel was not ineffective in his pretrial preparation and focus upon the primary contested issue.
B. The Retention of Dr. Kanfer.
Counsel stated that it was very hard to find an expert willing to accept the low pay of an appointed case and “we do not have the type of funds that give us the luxury of getting anyone we want.... Dr. Kanfer was willing to take the appointed case and worked very hard to find the truth. He worked on this case for a year and did not even charge all his time.” He worked with Dr. Henry Lee (of the O.J. Simpson case) who had referred Dr. Kanfer to lead counsel. “Dr. Kanfer worked numerous difficult cases and had extensive experience in testifying.” Dr. Kanfer had worked as a medical examiner for the State of Connecticut for almost twenty years by the time of trial. He had testified as an expert witness about 350 times. In the hearing outside the jury to qualify Dr. Kanfer as an expert witness, the trial judge concluded that “in all candor, obviously, this gentleman‘s going to be able to testify....I mean, this isn‘t a close call so-it should be apparent to everyone.”
Dr. Kanfer‘s direct testimony clearly and cogently laid out the scientific and medical basis for his opinion that B.G.‘s choking was accidentally caused by the toddler‘s act of wadding up the paper towels and stuffing them into his own mouth. Dr. Kanfer had even conducted an experiment to show how that could have occurred. Nowhere does applicant find fault with the direct testimony of Dr. Kanfer, the content of his opinions, or the scientific basis for those opinions.
Indeed, applicant acknowledges that “Dr. Kanfer‘s opinions were generally sound and supportive of her case,”62 but she complains about his lack of pediatric training. Dr. Kanfer may not have been a specialist in pediatric forensic pathology, but trial counsel concluded that he had some pediatric experience, both as an expert in the “Boston Nanny” case and because he filed a motion for continuance shortly before the trial was originally scheduled in September of 2004, asking for additional preparation time and noting that “Counsel is not ready in that he has just very recently gotten an expert to aid in the case. There were several difficulties in finding and employing an expert with experience in pediatrics.” The trial was postponed for almost a full year, during which time counsel worked with Dr. Kanfer, who, as counsel stated, had some experience in pediatrics. A forensic pathologist like Dr. Kanfer (and Drs. Peacock and Parungao who testified at trial) is ideally situated to determine the cause and manner of death in suspicious circumstances. That is what pathologists do. Dr. Peacock testified that “the discipline of forensic pathology is a discipline where common
C. Trial Counsel‘s Failure to Request a Mistrial or Continuance in Response to Dr. Kanfer‘s Use of Profanity.
The real problem that applicant notes (and the habeas judge found) was in Dr. Kanfer‘s unfortunate remark, including an expletive verb, to the lead prosecutor in the hallway during a break in the proceedings and the prosecutor‘s repeated references to that remark in front of the jury.64 This was an infelicitous incident and probably quite damaging to Dr. Kanfer‘s credibility as a neutral scientific expert. However, trial counsel had done his best to prepare Dr. Kanfer for the prosecutor‘s aggressive and confrontational style. Counsel stated that he was well aware of both the prosecutor‘s penchant for attacking defense witnesses and the trial judge‘s willingness to give the attorneys leeway in their questioning:
We knew [she] would attack our expert. We calculated that if Dr. Kanfer could withstand the attack, it would hurt the State. I also felt that if I tried to protect the witness he would lose credibility.... No one regretted the exchange between Dr. Kanfer and [the prosecutor] more than Dr. Kanfer himself. He had been prepared and knew what to expect and was supposed to be ready to handle it. Some judges would never have allowed some of the prosecutors’ tactics, objection or no objection, but I knew Judge Wisser would, that is why Dr. Kanfer was prepared.
We conclude that counsel‘s belief was reasonable under the circumstances as Dr. Kanfer was an experienced forensic pathologist who had testified in some 350 trials. Applicant does not explain how lead counsel could have, or should have, known that Dr. Kanfer would “blow up” at the prosecutor in the hallway.
Applicant also asserts that, after Dr. Kanfer‘s outburst, lead counsel should have asked for a continuance or a mistrial because of this “highly prejudicial conduct.” But applicant does not explain the legal basis for such a request, other than to say counsel “failed to act appropriately.” But what was he supposed to do? The trial judge overruled his objection, and the court of appeals held that the prosecutor was entitled to refer to the hallway colloquy to show Dr. Kanfer‘s bias against the prosecutor and the State‘s position.65 And the correctness of those legal rulings is not before us in this habeas proceeding.
Counsel explained his strategy in not always objecting to the prosecutor‘s sarcasm, sidebar remarks, and “mistreatment of defense witnesses“:66
It was my decision based on what I thought was an outlandish theory by the
State to give [the prosecutor] a great deal of leeway as I thought her behavior would alienate a jury and combined with an outlandish theory would enure to our benefit. We knew, and it is basic, that if you attack a witness, who is not a party, juries do not like it.
...
[Counsel‘s strategy] was considered after trial counsel had received feedback from prior jurors who completely disliked her and her sarcastic, mean-spirited approach. It was determined that we would allow her some freedom to be[] herself.
Given these considerations, trial counsel‘s strategy was not unreasonable. First, the reasonableness of his decision to retain and call Dr. Kanfer as an expert witness must be assessed at the time counsel retained Dr. Kanfer and at the time he called him to the witness stand-not at the time Dr. Kanfer used an expletive during a break in the proceedings.67
Second, in this case, unlike the two cases applicant cites in her brief,68 Dr. Kanfer was clearly competent to testify to applicant‘s theory of B.G.‘s cause of death, and he testified on direct examination exactly as predicted and anticipated.
Third, a reasonable attorney could not have been expected to predict that, despite defense counsel‘s warning about the prosecutor‘s aggressive style, his experienced expert would make profane remarks during a break.
In hindsight, counsel clearly should not have let Dr. Kanfer come anywhere near the prosecutor during any breaks, but that single failure does not make counsel ineffective. In sum, trial counsel‘s performance in retaining Dr. Kanfer and calling him as an expert witness was not deficient.
Furthermore, counsel was not deficient for failing to ask for a mistrial or continuance. A mistrial is “a remedy appropriate for a narrow class of highly prejudicial and incurable errors.”69 But appli-
D. The Failure to Retain or Request Funding for Additional Experts.
Applicant asserts that her trial defense team-a team composed of three lawyers, two investigators, and two expert witnesses-retained with funding approved by the trial judge and paid for by the State, was inadequate. She states that she has now found Dr. Zur (an expert in accidental choking), Dr. McCloskey (an expert in pediatric critical care anesthesiology and general pediatrics with training in child abuse), and Dr. Ophoven (an expert in pediatric forensic pathology), and that they could have testified at the time of trial as a “multidisciplinary team.” Indeed, they might have been able to, but that is not the issue. It is certainly true that this trial was not a perfectly “level playing field” in terms of the number of expert witnesses on each side.
In an ideal world, it might well be wise to have an equal number of experts on each side of a lawsuit, each one matching the skill and experience of his opposing expert. Applicant makes a compelling argument that she was outclassed and outmatched by the State‘s numerous experts. But the issue before us is whether the constitution requires that an indigent defendant be provided with an absolute (or even rough) equivalency of experts when the primary contested issue at trial involves the cause of death. We cannot find that Ake stretches that far. Instead, we must conclude that applicant does not have a constitutional right to a “team of ex-
The issue is whether counsel‘s failure to hire (or to request the trial judge to appoint and provide funding for) additional experts created “a high risk of an inaccurate verdict.”72 This case depended, in large part, upon medical forensics and the question of whether B.G. could have accidentally stuffed the wad of paper towels into his mouth by himself or whether someone else-presumably applicant-must have done so. Applicant was clearly entitled to access to an expert who could speak knowledgeably on that question to build an effective defense, but she has not shown that the failure to have additional experts, beyond Dr. Kanfer, to address that question created “a high risk of an inaccurate verdict.”73
The additional experts that applicant has now produced are perhaps even more qualified than Dr. Kanfer, but she has not shown how their testimony would be significantly different or more persuasive than was Dr. Kanfer‘s. They reached exactly the same ultimate opinion as Dr. Kanfer and for almost precisely the same reasons. Applicant implies that because a “multidisciplinary team of experts (including three pediatric specialists) testified for the State,” she was entitled to a similar team. First, the State called two treating doctors-not retained experts-to testify to the facts they observed and the care that they provided to B.G. Their opinions concerning the cause of his death were based upon their first-hand involvement with the toddler; the State did not retain them as part of a multidisciplinary team of testifying experts. So far as we can tell from the record, Dr. Alexander was the only expert specifically retained by the State. Second, Ake does not require the appointment of a defense expert to match every State expert. Ake ensures that an indigent defendant has access to at least the “basic tools” of a defense, but applicant cites no case from any jurisdiction that states that an indigent defendant is entitled to multiple experts to testify to the same ultimate opinion on the same topic or that such a defendant is entitled to match the State expert for expert.
Applicant‘s counsel was not ineffective for failing to file a written Ake request for additional funding to retain more experts to testify on the defense theory that B.G. could have crumpled up the paper towels by himself, stuffed that wad into his mouth, and accidentally choked on it. The defensive theory, buttressed by Dr. Kanfer‘s testimony, was cogently, coherently, and completely presented to the jury. Additional defense medical experts would surely have been helpful, but they were not constitutionally required. Applicant has not shown that, if his attorney had retained (or requested funding for) more experts to testify to the same theory, the result of the trial likely would have been different.74
We therefore conclude that counsel was not ineffective under the Strickland standard.
IV.
Because we conclude that applicant has failed to prove, by a preponderance of the
MEYERS, J., did not participate.
Notes
Q: And you‘re just here as a completely unbiased expert to educate the jury.
Defense counsel then objected to the State “getting into the personal thing any more.” The prosecutor responded that the question was relevant to the issue of Dr. Kanfer‘s bias, and the trial judge overruled the objection. At the end of her cross-examination, after the prosecutor asked about Dr. Kanfer‘s disagreement with Dr. Alexander‘s opinions, the prosecutor said,
Q: But you‘re not angry at Dr. Alexander. A: No, he‘s a nice guy. Q: Okay. Well, then you don‘t want to tell him to go [expletive] himself. A: No.
The court of appeals concluded that the trial judge did not err in permitting this cross-examination because “Dr. Kanfer‘s admitted use of profanity when referring to the prosecutors revealed potential animosity toward the prosecutors.” 240 S.W.3d at 403.
3. The opinions of medical experts who have reviewed materials available at the time of trial are not newly discovered evidence of the type that is sufficient to support an actual innocence claim. Ex parte Briggs, 187 S.W.3d 458, 465 (Tex.Crim.App.2005).
4. The expert opinions produced by Applicant do not constitute newly discovered evidence under actual innocence jurisprudence because they rely on the same evidence as that available at the time of trial. Applicant‘s experts have merely presented a differing interpretation of the physical and medical evidence that existed at the time of trial.
5. Even if the opinions of Applicant‘s three experts had been sufficient to qualify as newly discovered evidence, the applicant has not met her burden. Having examined the habeas evidence against the trial evidence of guilt, this court finds Applicant has not shown by clear and convincing evidence that no reasonable juror would have convicted her in light of the habeas evidence. The evidence presented by the applicant‘s three experts is not medically indisputable, but rather offers a differing view of the medical evidence from that presented by the State.
(1) Defendant shall make an ex parte application to the trial court for expert assistance[;] (2) The application is reviewed in camera and sealed until resolution of the pending charges[;] (3) The application contain a sufficiently plausible explanation showing: (a) The requested expert will assist the defendant in the preparation of his or her defense[;] (b) The materiality of the expert-material evidence is that evidence which necessarily enters into the consideration of the controversy, and which by itself or in connection with other evidence is determinative of the case[;] (c) The expert is not cumulative to other readily available witnesses[;] and, (d) The expert is favorable to the defense. Id. at 540 n. 12. This procedure is similar to that used in Texas courts. See note 37 infra.
The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society‘s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification. Sykes, 433 U.S. at 90, 97 S.Ct. 2497.