        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In the Matter of the Personal                )         No. 73278-1-1
Restraint Petition of:
                                             )         DIVISION ONE
MICHAEL JAMES MORRIS,

                      Petitioner.            )         UNPUBLISHED                  i—


                                                                                    CO
                                             )         FILED: Julv 13. 2015
                                                                                Xstt



                                                                                V?
                                                                                o




        Cox, J. — Michael James Morris seeks collateral relief from the judgment

and sentence following his conviction of first degree assault of his six-week-old

baby, A.M. Because he fails in his burden to show that he was actually and

substantially prejudiced by his trial counsel's performance, we deny his petition

for relief.

        A jury convicted Morris of assault in the first degree.1 The conviction was

based on an incident that occurred on May 29, 2009. On that night, Brittany

Morris, A.M.'s mother, left A.M. in Morris's care.2 When she left, Morris was

sitting on the couch starting to feed A.M. from a bottle.3




        1 State v. Morris, noted at 173 Wn. App. 1013, 2013 WL 503140, at*1.

        2 Id.

          Id.
No. 73278-1-1/2


           Approximately 10 minutes after Brittany4 left, Morris ran with A.M. in his

arms across the street to a neighbor's house.5 Morris told the neighbor that

something was wrong with A.M., that she had suddenly started vomiting, and that

he needed a ride to the hospital.6 During the drive to the hospital, A.M. was

gasping and having difficulty breathing.7 By the time they arrived at the hospital,

A.M.'s skin was blue and she was limp and not breathing.8

           A.M. was immediately transferred to Harborview Medical Center.9 She

was admitted to the intensive care unit, where a team of doctors treated her. An

ophthalmologist examined her and found severe bleeding in both of her retinas.10

           Two days later, Dr. Kenneth Feldman examined A.M.11 Dr. Feldman said

that A.M. was not "responding as a normal child would respond at six weeks of

age."12 He testified at trial that A.M. had blood in the white of her left eye and "a

tremendous amount of bleeding within the retina."13 He also testified that she



           4 Due to the similarity in names, this opinion uses Brittany Morris's first name for
clarity.

           5 Morris. 2013 WL 503140, at *1.

           6id

           7]d

           8ld

           9ld

           10 ]d

           11 Id at *2.

           12 Id (internal quotation marks omitted).

           13 Id (internal quotation marks omitted).
No. 73278-1-1/3



had a bruise under the chin and her fontanel was "quite full and quite tense,"

which suggested that there was "extra pressure inside [her] head."14 His

preliminary diagnosis was abusive trauma.

       Later that day, A.M. was transferred to Seattle Children's Hospital. An

MRI confirmed that there was bleeding in A.M.'s brain and that areas of her brain

were "quite damaged."15

      At Children's, pediatric ophthalmologist Dr. Erin Herlihy, who also testified

at trial, examined A.M. on the day following Dr. Feldman's examination.16 She

found severe bleeding in A.M.'s eyes and signs of "severe traumatic injury."17

A.M. was partially paralyzed.18

      A police officer interviewed Morris shortly after the incident. He told the

officer that he ran across the street without supporting A.M.'s head.19 He then

told the officer that he accidentally dropped A.M. on his lap and "jogged" her

head.20 In a written statement, Morris said that on May 29, he shook A.M.

because she was not breathing.21 He said that he shook her twice, shaking her



       14 Jd. (internal quotation marks omitted).

       15 Id (internal quotation marks omitted).

       16 Jd

       17 Id (internal quotation marks omitted).

       18 Id

       19 Id

       20 Jd (internal quotation marks omitted).

       21 Id.
No. 73278-1-1/4



harder the second time.22 Morris also sent a text message to Brittany admitting

that he shook A.M. and apologizing for doing so.23

       Thereafter, the State charged Morris with assault of a child in the first

degree. It alleged as an aggravating factor that Morris knew or should have

known that A.M. was particularly vulnerable and incapable of resistance.24

       At trial, the State called a number of witnesses including several treating

doctors, social workers, Brittany Morris, Dr. Feldman, and Dr. Herlihy.25 Dr.

Feldman testified that the most likely cause of A.M.'s injuries was "abusive head

trauma" resulting from "whiplash forces."26 Similarly, Dr. Herlihy testified that to

cause this type of hemorrhages in the retina, there must have been an

"acceleration/deceleration force, something that would cause a shearing type of

injury to tear blood vessels."27

       The defense theory was that an acceleration/deceleration force did not

cause A.M.'s injuries. The defense called Dr. Steven Gabaeff and Dr. Patrick

Barnes.28 Dr. Gabaeff testified that the most likely cause of A.M.'s injury to the

brain was viral meningitis.29 Dr. Barnes testified that the most likely cause was


       22 Jd

       23 Jd

       24 Jd

       25 Jd      at*3.


       26 Jd (internal quotation marks omitted).

       27 Jd

       28 Id.

       29
            Id.
No. 73278-1-1/5



lack of oxygen or blood flow, and the next most likely causes were a "bleeding or

a clotting problem," infection, or "accidental or nonaccidental injury."30

        The jury convicted Morris as charged. Morris appealed, arguing that

insufficient evidence supported the conviction. This court affirmed the

conviction.31

        Morris timely moved for relief of judgment pursuant to CrR 7.8(c)(2). The

superior court transferred his motion to this court for consideration as a personal

restraint petition.

                       INAFFECTIVE ASSISTANCE OF COUNSEL

        Morris first argues that he was denied his right to effective assistance of

counsel. Specifically, he argues that his trial counsel "failed to competently

challenge the State's expert's opinion on causation" and failed to expose the

flaws in the State's case.32 We disagree.

        To obtain relief on collateral review based on constitutional error, the

petitioner must demonstrate by a preponderance of the evidence that he was

actually and substantially prejudiced by the error.33 But "if a personal restraint

petitioner makes a successful ineffective assistance of counsel claim, he has

necessarily met his burden to show actual and substantial prejudice."34


        30 Jd (internal quotation marks omitted).

        31 Jd at *9.

        32 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 1.

        33 In re Pers. Restraint of Davis. 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).

        34 In re Pers. Restraint of Crace. 174Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

                                                    5
No. 73278-1-1/6


       The right to counsel includes the right to effective assistance of counsel.35

An ineffective assistance of counsel claim has two components.36 Ifa defendant

cannot demonstrate either component, the ineffective assistance of counsel

claim fails.37

       First, the defendant must show that counsel's performance was

deficient.38 This requirement involves showing that counsel's performance "fell

below an objective standard of reasonableness."39 Judicial scrutiny of counsel's

performance is "highly deferential."40

       We make every effort "to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and to evaluate

the conduct from counsel's perspective at the time."41 "[A] court must indulge a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'"42 "There are countless ways to provide


       35 Strickland v. Washington. 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L Ed. 2d
674 (1984); State v. Crawford. 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).

       36 Strickland. 466 U.S. at 687.

       37 Jd at 697; State v. Foster. 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       38 Strickland. 466 U.S. at 687.

       39 Jd at 688.

       40 ]d at 689.

       41 Id

      42 Id. (quoting Michel v. State of La.. 350 U.S. 91, 101, 76 S. Ct. 158, 100 L.Ed.
83(1955)).
No. 73278-1-1/7



effective assistance in any given case. Even the best criminal defense attorneys

would not defend a particular client in the same way."43

        Second, the defendant must show that the deficient performance

prejudiced the defense.44 Prejudice is defined as "a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have

been different."45 "A reasonable probability is a probability sufficient to

undermine confidence in the outcome."46

                                   Frve and ER 702

        Morris first argues that his trial counsel "failed to competently challenge

the State's expert's opinion on causation."47 Specifically, he asserts that Dr.

Feldman's causation testimony was inadmissible under both Frve v. United

States48 and ER 702. We disagree.

        Washington courts evaluate expert testimony under the Frye test.49 "The

Frve standard requires a trial court to determine whether a scientific theory or

principle 'has achieved general acceptance in the relevant scientific community'




        43 Jd

        44 Jd at 687.

        45 Jd at 694.

        46 Jd

        47 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 1.


        48 293 F. 1013, 34A.L.R. 145 (D.C. Cir. 1923).

        49 InreDet. ofThorell, 149 Wn.2d 724, 754, 72 P.3d 708 (2003).
No. 73278-1-1/8


before admitting it into evidence."50 "'[T]he core concern ... is only whether the

evidence being offered is based on established scientific methodology.'"51

       If the Frye test is satisfied, the trial court must then determine whether to

admit expert testimony under ER 702.52 That rule has a two part test.53 The

court first considers whether the witness qualifies as an expert, and second,

whether the expert's testimony would be helpful to the trier of fact.54

       Here, Dr. Feldman testified that A.M. suffered "abusive head trauma."55

He testified that A.M.'s brain injury is typically the result of "whiplash forces."56

And he testified that shaking is a force that causes whiplashes and could

potentially cause such injuries.57 But he testified that he did not know the specific

mechanism that caused A.M.'s injury because he was not in the room when it

happened.58

       This testimony satisfied the Frve standard. Abusive head trauma as a

diagnosis, and shaking as a cause of such injuries, are generally accepted

       50 Jd (internal quotation marks omitted) (quoting In re Pers. Restraint of Young,
122 Wn.2d 1, 56, 857 P.2d 989 (1993)).

       51 Id (alterations in original) (internal quotation marks omitted) (quoting Young.
122Wn.2dat56).

       52 State v. Copeland. 130 Wn.2d 244, 256, 922 P.2d 1304 (1996).

       53 Jd

       54 Jd

       55 Report of Proceedings (June 3, 2011) at 13.

       56 Jd at 5.

       57 Jd at 7.

       58 Id. at 16-17.


                                                8
No. 73278-1-1/9


theories in the relevant scientific community. At trial, the State offered position

papers from the American Academy of Pediatrics, the Academy of

Ophthalmology, and the National Association of Medical Examiners, as well as a

publication from the Centers for Disease Control and Prevention.59 Each of

these recognizes abusive head trauma and accepts shaking as a mechanism for

injury.

          Further, the State now presents a 2011 article listing various international

and domestic medical organizations "that have publicly acknowledged the validity

of [abusive head trauma] as a medical diagnosis."60 Among the 15 listed is the

World Health Organization.61 The article further states that "it is virtually

unanimous among national and international medical societies that [abusive

head trauma] is a valid medical diagnosis."62 And it states that while some courts

have concluded that the diagnosis is based on inconclusive research, the vast

majority have not.63 In short, Dr. Feldman's testimony was not inadmissible

under Frye.

          Dr. Feldman's testimony also satisfied ER 702. Dr. Feldman clearly

qualified as an expert. He had practiced pediatric medicine for 40 years at the



       59 State's Motion to Transfer Motion for Relief from Judgment, Ex. 5 (Trial
Exhibits 28, 29, 30, 31).

          60 Jd at Ex. 6 (Dr. Sandeep Narang, A Daubert Analysis of Abusive Head
Trauma/Shaken Baby Syndrome. 11 Hous. J. Health L. & Pol'y 505, 574-76 (2011)).

          61 Dr. Narang, supra, at 574-76.

          62 Jd at 583.

          63 Id. at 593.
No. 73278-1-1/10


time of trial and had worked as a child abuse specialist for 28 years.64 He is

board certified in pediatrics and child abuse pediatrics.65 And Dr. Feldman's

testimony was helpful to the trier of fact. "Expert testimony is helpful if it

concerns matters beyond the common knowledge of the average layperson and

does not mislead the jury."66 Here, the medical testimony was beyond the

common knowledge of the average layperson and was central to the issue of

causation.

       Moreover, Dr. Feldman's testimony did not mislead the jury. He testified

that he reached his diagnosis by conducting a "differential diagnosis," where he

systematically excluded other possible causes of the injury.67 And he explained

this process to the jury.68 As Morris acknowledges, the differential diagnosis

methodology is a reliable method of ascertaining causation.69 And courts have

held that this methodology is well-recognized and reliable.70

       Further, Dr. Feldman testified that there is "a lot of skepticism whether

shaking can cause these injuries" and "a lot of skepticism for the evidence base



       64 Report of Proceedings (June 2, 2011) at 96-97.

       65Jdat102, 109.

       66 State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004).

       67 Report of Proceedings (June 2, 2011) at 122; Report of Proceedings (June 3,
2011) at 13.

       68 See Report of Proceedings (June 3, 2011) at 2-13.

       69 See Memorandum in Support of CrR 7.8 Motion for Relief From Judgment or
Order at 20.

       70 Dr. Narang, supra, at 585.


                                               10
No. 73278-1-1/11



behind it."71 He explained the literature that supported his belief as well as the

literature that disputed it.72 Thus, he presented the jury with accurate

information about the conflicting science.

       In sum, given the evidence of general acceptance in the relevant scientific

community, Morris fails to show that counsel's performance was deficient for

failing to insist on a Frye hearing.

       Likewise, Morris fails to show that his counsel's performance was deficient

for failing to challenge this evidence under ER 702. It is reasonable to conclude

that trial counsel's decision to challenge Dr. Feldman's testimony through cross-

examination was strategic. We note that Morris fails to present a declaration

from his trial counsel to indicate otherwise. This omission is telling.

       Finally, "[T]here is no ineffectiveness if a challenge to admissibility of

evidence would have failed."73 That principle controls here.

       For these reasons, Morris also cannot demonstrate prejudice.

       Morris relies on Bowers v. Norfolk Southern Corporation to distinguish a

"differential diagnosis" from a "differential etiology."74 In general, a "differential

diagnosis" is focused on diagnosing the disease, and a "differential etiology" is

focused on determining the cause of the disease.75 In Bowers, the court stated



       71 Report of Proceedings (June 3, 2011) at 21.

       72 Jd at 21-29, 40-47.

       73 State v. Nichols. 161 Wn.2d1, 14-15, 162 P.3d 1122 (2007).

        74 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 20 (citing Bowers v. Norfolk S. Corp.. 537 F. Supp. 2d 1343, 1360 (M.D. Ga. 2007)).

       75 See Bowers. 537 F. Supp. 2d at 1360-62.

                                               11
No. 73278-1-1/12



that a differential diagnosis is inherently reliable but a differential etiology is not.76

Morris asserts that Dr. Feldman conducted a differential etiology.

         This is unpersuasive. As already explained, Dr. Feldman reached his

conclusion though a differential diagnosis. He systematically excluded other

conditions in order to reach a valid diagnosis of abusive head trauma. And he

was not focused on the specific mechanism that caused the injuries. In short,

Bowers is distinguishable.

         Morris next makes several arguments that Dr. Feldman's testimony was

unreliable. Most of his challenges go to the weight, not the admissibility, of the

testimony. And none of his arguments are persuasive.

         First, Morris argues that Dr. Feldman's opinion is unreliable because "his

diagnosis ruled in a cause incapable of causing the injuries at issue."77 Morris
asserts that Dr. Feldman testified that A.M. was injured by violent shaking. And

he argues that "it has been repeatedly shown that shaking does not achieve the

level of force necessary to inflict the injuries at issue."78 In support of this

assertion, Morris cites several "biomechanical" studies.

         This argument is unpersuasive for two reasons. First, Morris

mischaracterizes Dr. Feldman's testimony. Dr. Feldman did not testify that

violent shaking caused A.M.'s injuries. Rather, Dr. Feldman explicitly testified

that he did not know the specific mechanism that caused A.M.'s injury.

         76Jdat1361.

         77 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 17.

         78 Id. at 18.


                                                12
No. 73278-1-1/13


       Second, while some biomechanical studies do undermine the theory that

shaking can cause such injuries, these studies are not conclusive. As a 2009

Policy Statement from the American Academy of Pediatrics states,

"Biomechanical modeling has since been used to both support and refute the

contributions of shaking or impact to abusive head trauma."79

       Further, other studies indicate that shaking can cause the kind of injuries

observed in A.M. For example, a 2010 Information Statement from the American

Academy of Ophthalmology states, "Currently, there is abundant evidence from

multiple sources (perpetrator confessions, clinical studies, postmortem studies,

mechanical models, animal models and finite element analysis) that repetitive

acceleration-deceleration with or without head impact is injurious . . . ."80

       Moreover, Dr. Feldman acknowledged that there is skepticism whether

shaking can cause such injuries.81 He testified about the most commonly cited

biomechanical study and explained why he thought that it was flawed.82 And he

criticized reliance on biomechanical studies, explaining that these studies use

adult monkeys or dummies, and that neither is the same as an infant.83 In short,



       79 State's Motion to Transfer Motion for Relief from Judgment, Ex. 5 (American
Academy of Pediatrics, Policy Statement: Abusive Head Trauma in Infants and Children.
PEDIATRICS, Vol. 123, No. 5, 1409, May 2009).

       80 State's Motion to Transfer Motion for Relief from Judgment, Ex. 5 (American
Academy of Ophthalmology, Information Statement: Abusive Head Trauma/Shaken
Baby Syndrome. May 2010).

       81 Report of Proceedings (June 3, 2011) at 21.

       82 Jd at 22-25.

       83 Id. at 27-28.


                                                13
No. 73278-1-1/14


the fact that there are differences in medical opinion go to the weight of Dr.

Feldman's testimony, not the admissibility of it.84

         Second, Morris contends that Dr. Feldman's opinion is unreliable because

"the current knowledge base does not support making definitive conclusions on

causation."85 He asserts that "injury thresholds and how infant tissue responds to

repetitive forces still have not been established."86 And he argues that because

injury thresholds and levels of force are "inherent components to determining

causation," the lack of reliable information renders Dr. Feldman's testimony

speculative.87

         In support of this argument, Morris cites Del Prete v. Thompson.88 In that

case, Jennifer Del Prete was convicted of first degree murder of a child based on

a theory that the child had suffered abusive head trauma and Del Prete had

caused the injuries.89 She petitioned for federal habeas relief and the district

court concluded that she had established that no reasonable jury would find her

guilty beyond a reasonable doubt.90 In reaching this conclusion, the court stated



      84 See Thorell, 149 Wn.2d at 756: In re Pet, of Campbell, 139 Wn.2d 341, 358,
986P.2d771 (1999).

         85 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 21.


         86 Id

         87 Jd at 23.

         88 10 F. Supp. 3d 907 (N.D. III. 2014).

         89 Jd at 909, 916.

         90 Id. at 958.


                                                   14
No. 73278-1-1/15



that the lack of an established injury threshold provided "a newfound basis for

skepticism about causation and mechanism testimony . . . ."91

         But again, this argument ignores the fact that Dr. Feldman testified that he

did not know the specific mechanism that caused A.M.'s injury. It also ignores

the fact that there are studies that do support making definitive conclusions on

causation. Additionally, reliance on Del Prete is misplaced. The evidence in that

case was new evidence, while in this case, the conflicting evidence was explored

at trial. For these reasons, Morris fails to establish that Dr. Feldman's testimony

was speculative.

         Third, Morris asserts that Dr. Feldman's opinion is unreliable because "the

evidence-base for shaking is admittedly weak and non-scientific."92 He points out

that the evidence base for shaking is confessions. And he argues that

confessional studies are problematic because perpetrator admissions are "hardly

scientific and are a known source of wrongful convictions."93

         It is true that several of these studies rely on perpetrator confessions in

order to determine whether there are characteristic injuries that indicate abuse.

And Dr. Feldman testified that he relied on these studies and confessional data.

But the scientists who conducted these studies considered the confessions

reliable. We reject Morris's invitation to conclude that these confessional studies

are unreliable as a matter of law. Further, other studies support abusive head

         91 Jd at 954.

         92 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 24.

         93 Id. at 25.


                                               15
No. 73278-1-1/16


trauma as a diagnosis. As one recent article states, "[T]here have been at least

eight systematic reviews, over fifteen controlled trials, over fifty comparative

cohort studies or prospective cases series, and numerous well-designed,

retrospective case series/reports, comprising thousands of cases, supporting

the diagnosis of [abusive head trauma]."94

       Fourth, Morris argues that epidemiological data illustrates the unreliability

of Dr. Feldman's conclusions.95 In support, he points to a study that analyzed the

Kids' Inpatient Database between 2000 and 2009.96 He asserts that, contrary to

Dr. Feldman's conclusions, this study shows that subdural hematomas and

retinal hemorrhages are very poor indicators of abusive head trauma.97

       But again, other studies support the conclusion that these symptoms are

reliable indicators of abuse. For example, one article cited by the State indicates

that there is "a clear, strong, and highly statistically significant association of

[subdural hematomas] and [retinal hemorrhages] with trauma."98 These
conflicting studies present issues of weight, not admissibility.

       Fifth, Morris argues that A.M.'s post trial head injury illustrates the

unreliability of Dr. Feldman's conclusion.99 He submits medical records from

       94
            Dr. Narang, supra, at 540 (emphasis in original).

       95 Memorandum in Support of CrR 7.8 Motion for Relieffrom Judgment or Order
at 29-30.

       96 Jd at 29.

       97 Jd

       98 Dr. Narang, supra, at 571.

       99 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 30-31.

                                                  16
No. 73278-1-1/17


2011, indicating that, after this trial, A.M. suffered another head injury while with

a babysitter in Missouri. He asserts that doctors in Missouri similarly concluded

that the injuries were indicative of abuse. And he argues that "like Dr. Feldman,

the doctors in Missouri are, erroneously, assuming the presence of the same

medical findings are reliable indicators for abuse."100

       But this evidence does not establish that Dr. Feldman's testimony was

unreliable. In fact, this evidence appears to support Dr. Feldman's opinion, as it

indicates that other doctors believe abuse can be a cause of similar injuries.

       Finally, Morris argues that "[t]rial counsel's failure to know the

biomechanical literature and the history of [the abusive head trauma] hypothesis,

confirming that the evidence-base for shaking is weak and now anchored in

confessions only, is inexcusable."101 But the record does not support the

assertion that trial counsel failed to know the biomechanical literature or the

evidence-base for shaking. She adequately cross-examined Dr. Feldman on

these topics, as we discuss next.

                                 Cross-Examination


       Morris next argues that his trial counsel failed to effectively confront the

State's "misleading evidence."102 We disagree.




       100 Jd at 31.

       101 Jd at 27.

       102 Id. at 31.


                                              17
No. 73278-1-1/18


         Decisions on how to conduct cross-examination are strategic.103 "The

extent of cross-examination is something a lawyer must decide quickly and in the

heat of the conflict.'"104 It is "'a matter of judgment and strategy.'"105

         First, Morris contends that it was misleading for Dr. Feldman to give "[t]he

impression that the evidence-base in support of [abusive head trauma] is

strong."106 And he argues, in general, that trial counsel should have pointed out

that the evidence base for abusive head trauma is weak.


         But trial counsel questioned Dr. Feldman about the evidence base in

support of abusive head trauma. She asked Dr. Feldman about the portion of the

medical community that questions the theory, including the biomechanics

sector.107 And Dr. Feldman acknowledged that "[t]here are a few biomechanical

physicians who question [the theory]."108

         Trial counsel also asked Dr. Feldman about the lack of witnesses and the


lack of literature:


         [Trial counsel]: It's never been witnessed that shaking causes
         these injuries?

         [Dr. Feldman]: As far as I know, right.


         103
               In re Pers. Restraint of Stenson, 142 Wn.2d 710, 736, 16 P.3d 1 (2001).

         104 Davis, 152 Wn.2d at 720 (quoting State v. Stockman, 70 Wn.2d 941, 945, 425
P.2d 898 (1967)).

         105 Jd (quoting Stockman. 70 Wn.2d at 945).

         106 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 32.


         107 Report of Proceedings (June 3, 2011) at 41-44.

         108 Jd at 41.


                                                   18
No. 73278-1-1/19


        [Trial counsel]: Now, that's part of the evidence-based medicine we
        talked about, correct?

        [Dr. Feldman]: It is.

        [Trial counsel]: And, again, there's no literature about that in this
        field?


        [Dr. Feldman]: Right. That, obviously, would be the gold standard,
        but we don't have it yet.[109]

        Further, trial counsel pointed to two studies, the "Donohoe study" and a

study by Dr. Leetsma, to attempt to demonstrate that the evidence base was

weak:


        [Trial counsel]: And there was an article by Dr. Leetsma in 2001, I
        believe, correct?

        [Dr. Feldman]: Correct.

        [Trial counsel]: And he essentially confirmed Dr. Donohue—I
        believe you said Donohue, D-O-N-O-H-O-E?

        [Dr. Feldman]: Yeah.

        [Trial counsel]: That the evidence base was weak, correct?

        [Dr. Feldman]: Yeah. Leetsma, again, did a very poor study to
        come to his conclusions. He only included case reports that had
        individual data. He ignored all of the body of literature that had
        some data on a number of patients. So he came to the conclusion
        that he desired to come to, but there wasn't a good database, but it
        was a lousy review.

        [Trial counsel]: And he looked at 54 cases from 1969 to 2001?

        [Dr. Feldman]: Correct.

        [Trial counsel]: And, again, he concluded that there wasn't enough
        evidence base to support this?



        109 Jd at 45-46.


                                               19
No. 73278-1-1/20


       [Dr. Feldman]: That was his conclusion.1110]

       In short, trial counsel adequately questioned Dr. Feldman about the

evidence base in support of abusive head trauma. Morris fails to show deficient

performance.

       In general, Morris argues that trial counsel should have questioned Dr.

Feldman on his criticisms of the Donohoe study, should have pointed out that the

underlying data supporting the theory relies on confessions, and should have

pointed out flaws in studies relied on by Dr. Feldman such as the problem of

"circular bias."

       But, as Strickland notes, "Even the best criminal defense attorneys would

not defend a particular client in the same way."111 Thus, the strategic choices

trial counsel made in this case do not require us to conclude that counsel

performed deficiently. Moreover, it is not clear that further questioning would

have discredited Dr. Feldman. The Donohoe study, criticized by Dr. Feldman, is

criticized by others as well.112 And while circular bias is an acknowledged

problem, one article cited by the State indicates that there have been numerous

well-designed studies set out to control circularity.113

       Second, Morris contends that it was misleading for Dr. Feldman to claim

that the injuries could be precisely timed. And he argues that trial counsel should


        110 Jd at 46.

        111 Strickland. 466 U.S. at 689.

        112 See Dr. Narang, supra, at 533.

        113 Id. at 562.


                                              20
No. 73278-1-1/21



have used available studies on the topic of "lucid intervals" to establish that the

injury could not be precisely timed due to the fact that an infant may appear

normal before developing severe symptoms.

       But Dr. Feldman did not claim that this injury could be precisely timed.

Rather, he testified that there "should be" some behavioral alteration in the child

at the time of the event and that the "vast majority" of studies indicate that

children are immediately symptomatic.114 Further, Dr. Feldman acknowledged

that lucid intervals can happen, but he testified that they usually occur in cases

with milder injuries and that was "not really the scenario we have here."115

       In any event, trial counsel questioned Dr. Feldman on the topic of timing.

On cross-examination, Dr. Feldman admitted that while he had indicated that 95

percent of the time there is an immediate onset of symptoms, 95 percent is a

number that he "just pulled ... out of the air."116 Thus, trial counsel obtained Dr.

Feldman's concession that children are not always immediately symptomatic and

her questioning suggested that Dr. Feldman's conclusion was unsupported.

       Trial counsel also questioned Dr. Feldman about lucid intervals.117 On

cross-examination, he conceded that a lucid interval can last a few minutes or

"may stretch out to a couple days."118 Further, trial counsel questioned Dr.



       114 Report of Proceedings (June 3, 2011) at 17, 18.

       115 Id at 18.

       116 Jd at 93-99.

       117 Jd at 94.

       118 Jd


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No. 73278-1-1/22



Feldman about a study where immediate symptoms were noticeable in only four

of 13 cases.119 This study appeared to contradict Dr. Feldman's assertion that a

vast majority of children are immediately symptomatic and do not experience a

lucid interval.


         Morris argues that "the issue of lucid intervals is not disputed . .. ."120 And

he points to an article that cautions experts about making timing determinations

in light of lucid intervals.121 But Dr. Feldman did not dispute that lucid intervals

could happen. Rather, he testified that such an event was unlikely in this case.

Morris fails to explain how the studies he now cites call this testimony into

question. Moreover, trial counsel discussed lucid intervals in closing argument,

pointed to studies supporting her theory, and argued that Dr. Feldman could not

establish the timing of the injury.122

         Morris also asserts that if trial counsel had used the studies available on

the issue of lucid intervals, "she could have established through Dr. Feldman the

facts supporting a motion to dismiss: That he could not state precisely when the

injury occurred."123 But trial counsel was able to make this argument without

relying on these studies. Thus, this is not persuasive.


         119 Jd at 97-98.

         120 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 37.

         121 Jd at App. Z (M.G.F. Gilliland, Interval Duration Between Injury and Severe
Symptoms in Non-accidental Head Trauma in Infants and Young Children, 43 J.
FORENSIC SCI. 723, 724 (1998)).

         122 Report of Proceedings (June 10, 13, 2011) at 789-91.

         123 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 39.

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No. 73278-1-1/23


       Finally, even if we agreed that counsel's performance was deficient for

any of these reasons, Morris fails in his burden to show prejudice. There is

simply no showing in this record that "but for counsel's unprofessional errors, the

result of the proceeding would have been different."124 We reach this conclusion

for several reasons.


       First, the main thrust of Morris's challenge is to the admission of evidence

by Dr. Feldman. This tactic ignores other significant evidence in this record.

       For example, an ophthalmologist at Harborview found severe bleeding in

both of A.M.'s retinas on the day she was admitted to that hospital. When

transferred to Children's, Dr. Herlihy, another ophthalmologist, examined A.M. to

evaluate her injuries. This doctor diagnosed her as suffering from severe retinal

hemorrhages in both eyes.125 In making her diagnosis, she identified and then

eliminated a number of potential causes for the injuries.126 She then concluded

that the damage was due to severe head trauma because nothing else was likely

to have caused the injuries sustained by A.M.127 She further testified that

hemorrhages to this extent would not be caused by an accidental fall or minor

jostling.128 She stated that with hemorrhages like this, itwas severe head trauma




       124 Strickland. 466 U.S. at 694.

       125 Report of Proceedings (June 6, 2011) at 301-05.

       126 Id at 307-12.

       127 Jd at 312.

       128 Jd at 313.


                                              23
No. 73278-1-1/24



"either from a shaking force or a fall off of a 13-story building."129

       Six weeks after this initial examination, the doctor examined A.M. again.

Her conclusions remained unchanged.

       Second, we have the undisputed fact that A.M. had been "acting normally"

that day, according to her mother's testimony. Nothing had changed when she

left A.M. with her father that night. Ten minutes after she left the baby with

Morris, the incident we described earlier in this opinion started.

       Third, we have Morris's statements. He admitted to investigating officers

that he shook A.M. twice, the second time harder than the first. And Morris sent

A.M.'s mother a text message admitting that he had shaken A.M. and

apologized, questioning if he was a bad parent.

       Accordingly, had the court excluded the evidence provided by Dr.

Feldman, it is unlikely the outcome of this case would have been different due to

the matters we just discussed. Because the evidence provided by Dr. Feldman

was properly admitted and neither the evidence we just discussed nor the other

evidence in the record at trial that was not challenged by Morris in this

proceeding, we conclude that he fails to show prejudice.

       At oral argument in this proceeding, Morris advanced the theory that Dr.

Feldman's testimony was the only evidence of timing of the injuries.

       But as we just discussed, Morris admitted twice shaking the child when

she was in his care, 10 minutes after her mother left acting normally. He also

admitted shaking her harder the second time. His text message to the mother,

apologizing for shaking her, is also relevant and material.

       129 Jd at 314.
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No. 73278-1-1/25



          Given this and the other evidence at trial, a jury could find beyond a

reasonable doubt that Morris caused the injuries when the child was in his care

and that the injuries were caused by him shaking her. This record simply does

not rationally support any other scenario. Thus, the exclusion of Dr. Feldman's

testimony would not undermine the jury's verdict.

                                     DUE PROCESS

          Finally, Morris argues that his due process rights were violated "by the

State's presentation of evidence it knew, or should have known was false and

misleading."130 We disagree.

          Morris cites federal cases either involving Brady violations or cases where

a witness lied on the stand. But unlike those cases, the facts of this case do not

support the conclusion that the evidence was either false or misleading. Rather,

the record shows that there were differences in opinion about the issue of

causation. This does not give rise to a due process violation.

          We deny his petition for relief.
                                                             fex.O .
WE CONCUR:




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          130 Memorandum in Support of CrR 7.8 Motion for Relief from Judgment or Order
at 1-2.



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