The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KAREEM DANIEL FARRELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-2589
[May 13, 2015]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562010CF002086A.
Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
LEVINE, J.
Appellant appeals his conviction for aggravated child abuse and
sentence of thirty years’ imprisonment. Appellant raises multiple issues
on appeal, the majority of which we find are without merit. The only issue
we address is that regarding the state’s cross-examination of one of
appellant’s expert witnesses. Because we find the cross-examination did
not constitute reversible error, we affirm.
The state charged appellant with aggravated child abuse under section
827.03(2), Fla. Stat. (2010), alleging that he shook his eight-month-old
nephew, causing the child to suffer severe retinal bleeding and brain
injuries.
At trial, the child’s mother testified that her brother, appellant, was
living with her and her two children at the time of the incident. The mother
stated that the victim had been acting normally until the day prior to the
incident, when she noticed he was not eating his whole bottle and cried
more than usual. On the day of the incident, the child was more active,
but still not eating normally.
At some point during the day, the mother left appellant to watch the
children while she did laundry in another part of the home. She checked
on them and noticed the child was sitting on the floor and “it looked like
he was falling asleep and he kinda like limped over to his side.” When the
mother picked up the child, she noticed he had a small amount of blood
on his mouth, which she washed off. She tasked appellant with putting
the child down for a nap.
Approximately ten to fifteen minutes later, the mother went to go check
on the child and was met in the hallway by appellant, who was holding the
child and stated that the child was not breathing properly. Appellant
called 911 while the mother gave the child CPR until an ambulance
arrived.
The mother testified that the child now can no longer eat normally and
is fed via a tube. She also testified that she thinks he can see her, but
cannot walk or talk.
The state called Dr. Lee Friedman, a pediatric ophthalmologist, who
testified that he examined the child on the day after the incident. The
doctor stated the child had “multiple, multilayer deep hemorrhages in the
back of the right eye – massive throughout the retina from the optic nerve
to the macula all the way to the periphery of the eye.” The doctor testified
there were less severe hemorrhages scattered throughout the left eye as
well.
He testified that the eye injuries, when combined with the appearance
of bruises on the body and bleeding in the brain, are commonly seen in
cases of Shaken Baby Syndrome or “non-accidental head trauma.” The
doctor stated that the eye hemorrhages are thought to be caused by
“shearing forces from the gel in the eye” and were “extremely unlikely” to
be caused by a short distance fall. He testified that injuries as extensive
as the ones seen in this case were unlikely to be caused by more
substantial head traumas, such as falling from a jungle gym or a car
accident, and were not of the sort caused by increased intracranial
pressure. The doctor also testified that the injury definitely occurred
“within the past couple of days,” based on the presence of active blood and
no sign of healing.
A detective from the Port St. Lucie Police Department interrogated
appellant a few days after the child’s injuries. The detective identified an
apology letter that appellant wrote to the mother at the end of his
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interview. An audio/video recording of appellant’s interrogation was
played for the jury.
In the recording, appellant told the detective that the child was not
sleeping well and may have had an ear infection, but was otherwise fine.
Appellant later stated that the child had been “acting strange” all week.
On the day of the incident, appellant walked into the room, and the child
“just flopped over” from where he was propped up next to his mattress.
Appellant stated he alerted the mother and they “sat him on the sofa and
he took a breath and stopped breathing just like that.”
Later in the same interview, the detective began to ask appellant if what
happened was “intentional” or “unintentional.” Appellant stated that he
was worried about the mother losing her children. He denied that
anything could have been intentional. The detective told appellant this
was a “fixable” mistake. Appellant eventually stated, “I did it – I did it – I
did it, ma’am.” When asked what happened, appellant stated, “I shook
him.” The detective continued questioning appellant:
Q: I don’t want – I don’t want to worry about whether or not
[the mother] is going to lose her kids. What I want to know
is what happened to this little boy to cause this and I want
the truth.
A: He was shaken.
Q: Who shook him?
A: I did.
Q: What happened?
A: I did it, ma’am.
Q: What happened?
A: Just – I’m – I’m telling a lie. I can’t do it ma’am, I can’t lie.
I can’t. . . . [The mother] is only 26-years-old. . . .
....
A: I shook him. I just walk up to him and shake – [the child]
had his meltdown, I was so scared. I ain’t know if he was
alive, I ain’t know what to do. . . . [H]e wouldn’t come back.
Appellant reiterated that he shook the child “to bring him back” and
that he “wasn’t shaking the life out of him.” He also stated this was
unintentional and he never meant to hurt his nephew. Appellant later
clarified that he shook the child “two hours – or a hour before – 30 minutes
at least” before appellant walked into the child’s room to find him “flopped
over” near his mattress.
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The state called Dr. Randall Alexander, a professor of pediatrics who
serves as a statewide medical director for all of Florida’s Child Protection
Teams. The professor reviewed the child’s medical records and noted that
the child had skin irritation marks on his body and bruising on his chest
that was not typical of CPR. The medical records also showed the child
had internal injuries, including bruising on the lungs, fluid in the
abdomen, and swelling in the brain. The professor testified that the
victim’s brain injury would have been fatal without medical intervention.
The injury could not have occurred a week prior, because there was brand
new blood in the head and the injury had not yet started to heal. The
professor further testified that the injuries in this case were not consistent
with a short fall or intracranial pressure. The child’s brain showed
substantial damage and he would probably suffer from cerebral palsy of
his left side, vision problems, and developmental delays. The professor
also testified that Shaken Baby Syndrome was globally recognized by
major medical organizations.
Appellant’s first expert witness was Dr. Willey, a pathologist and former
medical examiner. The pathologist testified that he, as well as a number
of other people in the medical community, deny the validity of Shaken
Baby Syndrome, although he recognized this viewpoint is in the minority.
He also testified that he believed the alleged bruises on the victim’s lungs
were actually fluid in the chest caused by medical care, and that the
shaking described by appellant would be insufficient to cause the damage
seen in the victim.
Appellant next called Dr. Lloyd, a biomechanist with the Department of
Veterans’ Affairs. Appellant asked Dr. Lloyd generally about his education,
scientific studies, publication history, and professional experience. Dr.
Lloyd testified that a fall would be more likely to cause these injuries than
shaking, because the neck ligaments would absorb some of the
momentum in a shaking motion. He stated that he conducted a study
which determined the average adult was incapable of generating sufficient
acceleration to cause brain injury by shaking. He also stated that shaking
was incapable of causing retinal bleeding, but instead blamed increased
pressure in the brain.
On cross-examination and over defense objection, the state questioned
Dr. Lloyd about inconsistencies in prior versions of his curriculum vitae.
Specifically, his C.V. from October 2012 stated that he was a professor of
medicine at University of South Florida (“USF”). By January 2013, this
C.V. entry now stated that his status as professor was “in process.” By
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March 2013, any reference to being a professor at USF was removed
entirely.
Dr. Lloyd explained that these C.V. changes were due to a
misunderstanding with the university. He initially believed he had
received a “courtesy appointment” as a professor of medicine at USF, but
when the department chairman was replaced, he learned his application
had not been completed. The state also asked about a cease and desist
letter sent to Dr. Lloyd by the university asking him to take the alleged
position off his website. He explained that different positions and titles
help in the grant application process and in securing funding.
In closing argument, the state referenced this line of questioning by
telling the jury, “Again, is this someone who is overstating his credentials,
who has an interest in making money from this case?”
The jury returned a verdict of guilty as charged of aggravated child
abuse. Appellant timely appeals.
On appeal, appellant argues the state should not have been allowed to
question Dr. Lloyd about inconsistencies in his C.V., as such questioning
was an impermissible attack on his character and improper impeachment,
as evidence of particular bad conduct.1 The state responds that these
questions were proper impeachment of Dr. Lloyd through demonstration
of “bias, corruption, or lack of competency.” The state argues that
appellant’s questioning of Dr. Lloyd regarding his credentials and
experience opened the door for the state to question him about these
inconsistencies. The state also argues the questions were germane to his
credibility and the matters addressed on direct examination.
“A trial court’s decision to admit or exclude evidence is reviewed by
utilizing the abuse of discretion standard of review. However, this
discretion is limited by the rules of evidence.” Alexander v. State, 103 So.
3d 953, 954 (Fla. 4th DCA 2012) (citation omitted). Likewise, the scope
and limitation of cross-examination in a criminal trial “lies within the
sound discretion of the trial court and is not subject to review except for a
clear abuse of discretion.” Tompkins v. State, 502 So. 2d 415, 419 (Fla.
1986).
1Because appellant did not object when the state asked Dr. Lloyd about the cease
and desist letter from USF, he waived his objection to this line of questioning.
Morrison v. State, 818 So. 2d 432, 445 (Fla. 2002).
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Cross-examination serves two purposes: “(1) to weaken, test, or
demonstrate the impossibility of the testimony of the witness on direct
examination and, (2) to impeach the credibility of the witness, which may
involve, among other things, showing his possible interest in the outcome
of the case.” Steinhorst v. State, 412 So. 2d 332, 337 (Fla. 1982).
“Therefore it is held that questions on cross-examination must either
relate to credibility or be germane to the matters brought out on direct
examination.” Id.
Further,
[w]henever an expert testifies, counsel may cross-examine the
expert regarding any matter about which the expert testifies
in establishing his or her qualifications, both as a basis of
arguing that the witness is not qualified as an expert and to
argue that even if he or she is qualified, the jury should not
give the opinion testimony great weight.
Flores v. Miami-Dade Cnty., 787 So. 2d 955, 957 (Fla. 3d DCA 2001)
(quoting Charles W. Ehrhardt, Florida Evidence § 702.5, at 601-03 (2001)).
See also Cheshire v. State, 568 So. 2d 908, 913 (Fla. 1990) (“Any
deficiencies in an expert’s qualifications, experience and testimony may be
aired on cross-examination . . . .”).
Any attack on an expert witness’s credibility is subject to a section
90.403 balancing analysis. See Grau v. Branham, 761 So. 2d 375, 378
(Fla. 4th DCA 2000) (holding that once the trial court determined that
allowing the appellee to ask about the appellant’s expert witness’s drug
abuse “was more prejudicial than probative,” “its decision to then admit
same was an abuse of discretion,” but amounted to harmless error
because it “pertained only to a collateral matter”).
In the instant case, the state cross-examined Dr. Lloyd about prior
versions of his C.V. listing job titles he never officially held. Such
questioning was “germane to the matters brought out on direct
examination,” because appellant’s counsel asked Dr. Lloyd about his
professional experience and credentials for testifying as an expert.
Steinhorst, 412 So. 2d at 337. The state was entitled to cross-examine Dr.
Lloyd regarding his qualifications as they related to his credibility as an
expert. Flores, 787 So. 2d at 957; Steinhorst, 412 So. 2d at 337. Thus,
the trial court did not abuse its discretion in allowing the state’s
questioning.
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Even assuming arguendo that the cross-examination was erroneous,
we would still affirm on the basis that the alleged error was harmless. Any
error regarding improper cross-examination of a witness is subject to
harmless error analysis. See Tormey v. Trout, 748 So. 2d 303, 306 (Fla.
4th DCA 1999). An error is harmless where the state, as the beneficiary
of the error, can “prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict or, alternatively stated, that
there is no reasonable possibility that the error contributed to the
conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The
“application of [the harmless error] test requires an examination of the
entire record by the appellate court including a close examination of the
permissible evidence on which the jury could have legitimately relied, and
in addition an even closer examination of the impermissible evidence
which might have possibly influenced the jury verdict.” Id.
We believe that the state met its burden and any error resulting from
the state’s cross-examination was harmless. The cross-examination of Dr.
Lloyd about his C.V.s was brief and isolated, constituting an insignificant
portion of the trial and of Dr. Lloyd’s testimony. The state’s questioning
“was not so pervasive as to require the granting of a mistrial or new trial
especially in light of the other abundant evidence upon which the jury
could have weighed this doctor’s testimony.” Tormey, 748 So. 2d at 306.
In fact, Dr. Lloyd was able to explain the discrepancies within his C.V.s.
Furthermore, the state did not repeatedly reference Dr. Lloyd’s overstated
credentials during the remainder of the cross-examination, which focused
specifically on his research, scientific studies, and opinion in this case.
Finally, the state made only a single brief, isolated reference to the cross-
examination during closing argument. Therefore, we conclude that there
is no reasonable possibility that the error, if any, contributed to the verdict.
In summary, we find that the cross-examination of appellant’s expert
witness in the accuracy of his C.V. was not error, and even assuming it
was error, it was clearly harmless and would not be grounds for reversal.
Thus, we affirm.
Affirmed.
GERBER, J., concurs.
FORST, J., concurring specially with opinion.
FORST, J., concurring specially.
I write separately solely on the issue of improper impeachment of
Appellant Kareem Daniel Farrell’s expert witness. Dr. Lloyd, a
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biomechanist with the Department of Veterans’ Affairs, was called at trial
to refute the State’s theory that the injuries to the victim were indicative
of the child being shaken. In my view, the State’s questions about
inconsistencies in prior versions of Dr. Lloyd’s curriculum vitae (CV) were
improper. However, I join the majority opinion’s harmless error analysis
and conclusion that any error resulting from the state’s cross-examination
was harmless.
Improper Questioning
Dr. Lloyd is part of a growing minority in the biomedical field who
dispute the traditional acceptance of Shaken Baby Syndrome.2 At trial, he
testified that his experiments showed an adult human is physically
incapable of shaking a child hard enough to create the acceleration
necessary to damage the child’s brain. In addition to properly cross-
examining Dr. Lloyd on the contents of his testimony, the State chose to
go beyond the bounds of proper impeachment (see below) and questioned
him about a position that appeared on prior versions of his CV, but was
not listed in the most recent version. Specifically, Dr. Lloyd’s CV from
October 2012 stated that he was a professor of medicine at the University
of South Florida (USF). By January 2013, this CV entry now stated that
his status as professor was “in process.” By March, any reference to being
a professor at USF was removed entirely. Neither of the prior versions of
the CV were offered into evidence or discussed during direct examination
of Dr. Lloyd.
While Dr. Lloyd had a reasonable explanation for the changes in his
CV, the questions were nonetheless improper. Under section 90.608,
Florida Statutes (2013), parties can impeach a witness by: “1) introducing
statements of the witness which are inconsistent with the witness’s
present testimony; 2) showing that the witness is biased; [or] 3) attacking
the character of the witness in accordance with the provisions of sections
90.609 or 90.610.” If a party chooses to impeach by attacking the
character of a witness, it must do so by admitting evidence in the form of
reputation (under section 90.609) or conviction of certain crimes (under
section 90.610). Therefore, “evidence of particular acts of ethical
2 This minority view has recently been used to overturn convictions in shaken
baby cases around the country. For more information on the science for and
against the diagnosis of Shaken Baby Syndrome, see Debbie Cenziper, A Disputed
Diagnosis Imprisons Parents, WASH. POST, Mar. 20, 2015, available at
http://www.washingtonpost.com/graphics/investigations/shaken-baby-
syndrome/.
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misconduct cannot be introduced to impeach the credibility of a witness.”
Pantoja v. State, 59 So. 3d 1092, 1096 (Fla. 2011). These questions were
impermissible attacks on Dr. Lloyd’s credibility or character. See also
Farinas v. State, 569 So. 2d 425, 429 (Fla. 1990) (holding that questioning
expert witness about specific allegations of misconduct was improper
impeachment); Roosevelt v. State, 42 So. 3d 293, 296 (Fla. 3d DCA 2010).
(holding that the State could not impeach an expert witness with evidence
concerning past issues with the payment of taxes).
“The proper purposes of cross-examination are: (1) to weaken, test, or
demonstrate the impossibility of the testimony of the witness on direct
examination and, (2) to impeach the credibility of the witness, which may
involve, among other things, showing his possible interest in the outcome
of the case.” Steinhorst v. State, 412 So. 2d 332, 337 (Fla. 1982). We have
stated that “included in the types of matters that demonstrate bias are
prejudice, interest in the outcome of a case, and any motivation for a
witness to testify untruthfully.” Becker v. State, 110 So. 3d 473, 476 (Fla.
4th DCA 2013) (quoting Jones v. State, 678 So. 2d 890, 892 (Fla. 4th DCA
1996)). Dr. Lloyd stated that having the honorary title of professor of
medicine helped him gain grants and funding for his research. However,
while this shows that he may have had a reason to misstate his job title
on his CV, it does not show any bias in his testimony in the case at hand.
Dr. Lloyd had no interest in the outcome of this case and his position (or
lack thereof) as a professor of medicine was collateral to his testimony, as
he did not mention this position during direct examination or state he had
medical training. Therefore, these questions should have been excluded
and the trial court erred by allowing these questions.
The Error was “Harmless”
An error is harmless where the State, as the beneficiary of the error,
can “prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict or, alternatively stated, that there is no
reasonable possibility that the error contributed to the conviction.” State
v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). In a case with competing
expert testimony, the credibility of the experts is of paramount importance.
Here, the defense was able to, essentially, “rehabilitate” Dr. Lloyd’s
credibility, by eliciting testimony that explained the discrepancies within
his C.V.s. The state’s questioning was over the line and, accordingly, I do
not join the majority opinion in concluding that the trial court did not
abuse its discretion in allowing the state’s questioning. However, I agree
with the majority that the harm to defendant’s case was too tangential or
collateral as to necessitate reversal. Grau v. Branham, 761 So. 2d 375,
378 (Fla. 4th DCA DCA 2000); Caruso v. State, 645 So. 2d 389, 394 (Fla.
9
1994).
* * *
Not final until disposition of timely filed motion for rehearing.
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