Opinion
A22-0749
02-13-2023
Robert John Kaiser, petitioner, Respondent, v. State of Minnesota, Appellant.
Mark R. Bradford, Bassford Remele, P.A., Minneapolis, Minnesota; and James R. Mayer, Great North Innocence Project, Minneapolis, Minnesota (for respondent) Keith Ellison, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Chief Deputy County Attorney, St. Cloud, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Stearns County District Court File No. 73-CR-14-7529
Mark R. Bradford, Bassford Remele, P.A., Minneapolis, Minnesota; and James R. Mayer, Great North Innocence Project, Minneapolis, Minnesota (for respondent)
Keith Ellison, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Chief Deputy County Attorney, St. Cloud, Minnesota (for appellant)
Considered and decided by Cochran, Presiding Judge; Bjorkman, Judge; and Reilly, Judge.
BJORKMAN, Judge
Appellant State of Minnesota challenges the postconviction court's grant of a new trial to respondent on charges of second-degree murder in the death of his infant son. The state argues that the postconviction court abused its discretion by determining that (1) two of the state's expert witnesses offered false testimony at respondent's trial, and (2) respondent received ineffective assistance of counsel. Because the district court did not abuse its discretion by ordering a new trial based on false testimony, we affirm.
FACTS
On August 27, 2014, respondent Robert Kaiser was caring for his two-month-old son while the child's mother was at work. During the day, the child was pale, sweaty, and fussy. By the evening, he was nonresponsive and unable to focus his eyes. Kaiser and mother took the child to the hospital, where he had recurring seizures. Doctors administered the medication Propofol, which reduced but did not eliminate the seizure activity, and sought to identify the cause of the seizures. The child had a small bruise on his jaw but no other external injury. His lab results were normal, but a CT scan revealed subdural hematomas (bleeding on the brain) without a skull fracture. Doctors also noted that the child had healing rib fractures. Eye examinations revealed numerous retinal hemorrhages (bleeding at the back of the eye) in both eyes. And the left eye had a hemorrhagic macular schisis, which is a separation in the layers of the macula at the center of the retina with bleeding in the separation. After several days, the child's seizures continued and his abdomen became distended. Surgery revealed that he had necrotizing enterocolitis, which results in death of bowel tissue. The child's condition continued to deteriorate, and he died on September 3.
The state charged Kaiser with first-degree murder (while committing child abuse, with past pattern of child abuse) and two counts of second-degree murder (predicated on underlying felonies of third-degree assault and malicious punishment of a child). At trial, the state presented extensive medical testimony from: six doctors who examined and cared for the child at the hospital, including pediatric ophthalmologist and eye surgeon Jeffrey Lynch, M.D.; a local pediatrician who specializes in child abuse; the medical examiner who performed the child's autopsy; and a 20-year forensic pathologist and medical examiner from Michigan, Carl Schmidt, M.D. All of these experts opined that the child suffered a hypoxic ischemic brain injury (resulting from lack of blood and oxygen) that led to his death. And they concluded his constellation of injuries, particularly subdural hematomas and retinal hemorrhages including macular schisis, mean that he suffered abusive head trauma (AHT) through violent shaking shortly before his admission to the hospital. Dr. Lynch and Dr. Schmidt testified specifically about the relationship between macular schisis and AHT.
Kaiser testified in his own defense. He presented context for the child's condition, including evidence that the child fell from his stroller about a month earlier and suffered a bout of prolonged vomiting about ten days before his admission to the hospital. He also presented the testimony of a pathologist who opined that the child's subdural hematomas were older, with some recent rebleeding, and that fact combined with the absence of skull fractures or neck trauma weighed against but did not preclude a diagnosis of AHT. Defense counsel also presented a report from a neonatologist who opined that the prolonged administration of Propofol caused the child to develop necrotizing enterocolitis, which ultimately caused his death.
The jury acquitted Kaiser of first-degree murder but found him guilty on both second-degree-murder counts. We affirmed Kaiser's convictions on appeal. State v. Kaiser, No. A17-0571 (Minn.App. May 29, 2018), rev. denied (Minn. Aug. 21, 2018).
In November 2020, Kaiser petitioned for postconviction relief on three grounds. First, he asserted that the state presented false evidence at trial, including testimony that AHT was the only possible medical explanation for the child's macular schisis and other retinal hemorrhages. Second, he asserted that newly discovered evidence casts doubt on the verdict, relying in part on recent medical opinions that the child's brain and eye injuries resulted from cerebral venous thrombosis (CVT), which can occur without trauma. Third, he asserted that trial counsel was constitutionally ineffective in failing to consult with experts who could address the radiographic evidence the state would necessarily rely on to prove that the child's condition resulted from AHT, and that such consultation would have led to evidence that the child had CVT.
Over the course of an eight-day evidentiary hearing, Kaiser presented the testimony of a pathologist, a pediatrician, a neuroradiologist, a diagnostic radiologist, and an ophthalmologist/eye pathologist. These five medical experts unanimously opined that the child's symptoms, neurological and ophthalmological findings, and medical history (particularly the recent bout of prolonged vomiting) point to a diagnosis of CVT. The state countered with testimony from its own experts, both new and returning trial witnesses, including its pediatric ophthalmologist, Dr. Lynch. They acknowledged similarities between the child's injuries and CVT but disagreed with the CVT diagnosis and maintained that, even if the child had CVT, the condition can result from AHT. Defense counsel also testified about his consultation with and retention of medical experts for trial.
In a thorough and well-reasoned 90-page order, the postconviction court rejected Kaiser's claim of newly discovered evidence and three of his four false-evidence claims. But the court found that Kaiser proved (1) the state presented false testimony that "macular schisis is not caused by anything other than AHT"; and (2) his trial counsel was ineffective in failing to consult with and present testimony from imaging experts. Because the court further reasoned that the errors prejudiced Kaiser, it granted a new trial. The state appeals.
DECISION
We review a postconviction court's decision to grant a new trial for abuse of discretion. Gilbert v. State, 982 N.W.2d 763, 768 (Minn.App. 2022). A postconviction court abuses its discretion if it bases its decision on an erroneous view of the law or unsupported factual findings. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). We review legal conclusions de novo but will not disturb factual findings unless they are clearly erroneous. Id. "If there is sufficient evidence to support a postconviction court's finding, the finding will stand." McKenzie v. State, 872 N.W.2d 865, 872 (Minn. 2015).
Minnesota courts apply the three-prong Larrison test when evaluating false-testimony claims. Opsahl v. State, 677 N.W.2d 414, 422 (Minn. 2004) (citing Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928)). Under that test, a petitioner is entitled to a new trial if: (1) the court is "reasonably well-satisfied" that a material witness's testimony was "false," (2) the jury "might" have reached a different conclusion without the false testimony, and (3) the petitioner "was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after trial." Gilbert, 982 N.W.2d at 770 (quoting Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013)). The first two prongs are "compulsory," while the third is merely "relevant." Martin, 825 N.W.2d at 740. We address each prong in turn.
False Testimony
A petitioner can demonstrate that trial testimony was false in several ways-a trial witness recanting or materially contradicting their trial testimony, evidence that a witness testified dishonestly, or evidence that a witness was mistaken. Gilbert, 982 N.W.2d at 770; see State v. Caldwell, 322 N.W.2d 574, 587 (Minn. 1982) (permitting relief for mistakenly false testimony). But evidence of a witness's general unreliability or failure to fully explain their testimony will not suffice. Gilbert, 982 N.W.2d at 770.
The postconviction court found that the state's pediatric ophthalmologist Dr. Lynch and forensic pathologist Dr. Schmidt testified at trial that "macular schisis is not caused by anything other than AHT," and that this testimony was false. In making this finding, the court relied in part on Dr. Lynch's "contrary" testimony at the postconviction hearing. The court rejected the argument that the doctors' trial testimony merely expressed medical opinions on which experts could differ, finding the testimony "was instead a representation to the jury that as a matter of medical fact macular schisis is not caused by anything other than AHT."
The postconviction court noted that it "d[id] not find that Dr. Lynch, Dr. Schmidt, or the State knowingly provided false testimony or had an intention to deceive or mislead the jury." It did not expressly find that Dr. Lynch and Dr. Schmidt were "material witnesses," but the state has never disputed that they were.
The state contends these findings are clearly erroneous in several ways. First, the state asserts that the postconviction court inaccurately summarized the testimony in question. The state characterizes the doctors' testimony as truthful statements that AHT can cause macular schisis or mere failure to expound on other possible causes of macular schisis. We are not persuaded.
The state also criticizes the postconviction court for listing a comment the prosecutor made during closing argument as false testimony. The court briefly referenced a statement by the prosecutor that Kaiser discussed in his postconviction petition but appropriately focused its false-testimony analysis on the doctors' testimony.
With respect to Dr. Schmidt, the postconviction court found that he testified "that outside of abusive head trauma, there is no other cause for macular schisis." That fairly summarizes the following testimony:
Q. What does [the finding of macular schisis] mean to you in regards to [the child's] case?
A. Well, it's the kind of thing you see with abusive head trauma.
Q. Do you see it in other cases?
A. I have.
Q. In other cases, other than abusive head trauma?
A. No. I don't think it's been described outside of abusive head trauma.
Similarly, the postconviction court found that Dr. Lynch testified "that there is really no other cause for macular schisis other than abusive head trauma that he has seen in his career." This is also consistent with the doctor's testimony:
Q. With the macular schisis, do you have an opinion as to . . . whether that is more associated with abusive head trauma?
[Objection overruled.]
A. Yes.
Q. And is that opinion to a reasonable degree of medical certainty?
A. Yes.
Q. And what is that opinion? [Objection overruled.]
A. When I see something like a macular schisis cavity, it's- in seeing a lot of kids' eyes, there really isn't any other type of cause of that, that I've seen in my career.
In both instances, the record supports the court's findings that the two key statements told the jury that, as a matter of medical fact, "macular schisis is not caused by anything other than AHT."
Second, the state argues that the postconviction court inaccurately summarized Dr. Lynch's postconviction testimony about macular schisis. Dr. Lynch addressed the subject twice, first stating that it "would be incorrect" if he had testified at trial that "AHT is the only cause of macular schisis," and later stating that macular schisis "on its own" is neither "diagnostic of abusive head trauma" nor "almost" diagnostic. The state asserts that the postconviction court mischaracterized this testimony as "contrary to his trial testimony" because the doctor "never testified at trial that a macular schisis was 'diagnostic or almost diagnostic' of an abusive injury." As the preceding discussion reflects, the state is correct that Dr. Lynch did not make that precise statement at trial. But the postconviction court's findings in this regard do not purport to quote the doctor's testimony. Rather, they reflect the court's assessment that the doctor's testimony communicated to the jury (and therefore justified the prosecutor's statement in closing argument) that macular schisis is "almost diagnostic" of AHT. The postconviction court did not clearly err by describing Dr. Lynch's postconviction testimony as contrary to his trial testimony.
Third, the state contends the postconviction court's false-testimony findings are flawed because the court misunderstood the terminology, erroneously distinguishing between retinal hemorrhages and macular schisis. The court's order defeats this contention. In its order, the court does not distinguish between the two because it failed to understand their relationship. To the contrary, the court repeatedly describes the child's macular schisis as a type of retinal hemorrhage. Nor did Kaiser invite the distinction; as the state accurately notes, his postconviction petition essentially claimed that evidence identifying AHT as a cause of any type of retinal hemorrhage was false. Rather, the distinction reflects the evidence. There was extensive testimony about the cause of retinal hemorrhages generally and some testimony about the cause of macular schisis specifically. The postconviction court's findings recognize that the doctors' testimony concerning the latter was-by overstating the connection to AHT-itself erroneous.
Fourth, the state asserts the doctors' testimony could not be false under Larrison because: (1) it was "qualified" with phrases like "that I've seen in my career" and "I don't think"; and (2) it amounted to an expert opinion that was merely impeached but not proven to be "false." Neither argument persuades us to reverse.
The state also asserted in its briefs that the Larrison test does not apply to expert opinions. But it acknowledged during oral argument that Gilbert forecloses that argument. See Gilbert, 982 N.W.2d at 769 (applying Larrison to a claim of false expert testimony because it "applies broadly to all allegations of false trial testimony" (quotation omitted)); see also Caldwell, 322 N.W.2d at 587 (applying Larrison to an expert opinion).
We agree with the state that qualifying language may weigh against a determination of falsity. In Gilbert, for example, we reversed a determination that a DNA expert gave false testimony about water dissipation because the testimony was "qualified" by the expert's statements that she had not "studied it" and her opinion was "just my guess." 982 N.W.2d at 770. The testimony here is different. Dr. Lynch's reference to his career did little to limit his statement that "there really isn't any other type of cause of [macular schisis]" other than AHT, particularly since he prefaced it by emphasizing that he has "see[n] a lot of kids' eyes." Nor did Dr. Schmidt's use of the phrase "I don't think" reflect equivocation. The prosecutor asked him whether "you see [macular schisis] in other cases . . . than abusive head trauma," and he responded: "No. I don't think it's been described outside of abusive head trauma." Both statements were offered as expressions of medical facts based on expert training and experience, not guesses or estimates. Accordingly, we discern no error by the postconviction court in reviewing them for truth or falsity.
As to the sufficiency of contradiction, evidence that serves only to impeach or disagree with earlier testimony is insufficient to demonstrate falsity. Pippitt v. State, 737 N.W.2d 221, 227 (Minn. 2007); Gilbert, 982 N.W.2d at 771 (stating that "a difference of opinion between two experts alone" generally is insufficient to show falsity). But an expert's material contradiction or recantation of his own trial testimony can establish falsity. Gilbert, 982 N.W.2d at 770. So can other experts' later contrary testimony so long as it goes beyond mere difference of opinion to demonstrate that the original testimony "could not have been true." See id. at 771 (citing Caldwell, 322 N.W.2d at 582, 587). That was the case in Caldwell, where an expert testified at trial that fingerprint evidence matched the defendant but multiple experts later agreed the fingerprint in question "could not have been" the defendant's. Caldwell, 322 N.W.2d at 580, 582. Even though the trial expert never expressly "recanted" his testimony, the later contrary expert testimony left "no doubt that the fingerprint was misidentified." Id. at 587.
Like Caldwell, this case involves contrary evidence that goes beyond impeachment to demonstrate the falsity of the doctors' trial testimony. Kaiser's ophthalmologist/eye pathologist testified in the postconviction hearing that retinal hemorrhages, even with macular schisis, are not specific to or diagnostic of AHT. Dr. Lynch not only agreed that AHT is not the only cause of macular schisis, he further testified that it would have been incorrect for him to testify that macular schisis is diagnostic or nearly diagnostic of AHT. The state presented no evidence at the postconviction hearing that only AHT can cause macular schisis, even hemorrhagic macular schisis, and does not dispute that such a statement would be untrue. It disputes only that the doctors said that at trial-a challenge to the postconviction court's findings that we have rejected.
In sum, the state advances numerous arguments that could have justified a different court in making different findings, but it has not demonstrated that the postconviction court clearly erred in finding that the doctors' trial testimony falsely overstated the causal relationship between macular schisis and AHT.
Impact
False testimony warrants a new trial only if, without the testimony, the jury "might" have reached a different conclusion. Opsahl, 677 N.W.2d at 423. Analysis of the prejudice prong does not involve a "sufficiency of the evidence inquiry," although it may encompass consideration of whether other evidence was "overwhelming." Martin, 825 N.W.2d at 743. Prejudice exists when there is "something more than an outside chance" but "much less than" a probability that the absence of the false testimony would yield a different result. Id. (quoting Caldwell, 322 N.W.2d at 585 n.8).
The postconviction court found that without the doctors' false testimony the jury might have reached a different conclusion, largely because "testimony regarding [the child's] retinal findings was one of the central elements in the State's case." The state agrees that retinal hemorrhaging was "central" to its case but contends the challenged statements linking macular schisis to AHT were two brief moments in a long trial and, therefore, their absence would have no impact. But brevity does not equal insignificance. The statements about macular schisis were presented to the jury by two experts-a pediatric ophthalmologist who had seen "a lot of kids' eyes" and a forensic pathologist with decades of experience-as medical fact. The statements were the only evidence permitting the jury to draw a straight if-then line from injury to abuse, which was a critical link in this circumstantial-evidence case. And the statements would have informed how the jury viewed other evidence, particularly the photographic evidence of the child's macular schisis, which Dr. Lynch discussed immediately before stating that "there really isn't any other type of cause" of a macular schisis other than AHT. The prosecutor recognized the weight of the statements by arguing to the jury that the child's macular schisis was "almost diagnostic" of AHT and "indicative of abuse." On this record, we see no clear error in the postconviction court's finding that the jury might have reached a different result without the false testimony.
Surprise
The postconviction court also found that Kaiser did not know at the time of trial that the statements in question were false. The state contends this finding is clearly erroneous because Kaiser must have known the state would present evidence that the child had retinal hemorrhages, including macular schisis, and that they can result from AHT. But that does not mean that Kaiser was aware that the state would present testimony that macular schisis can only result from AHT or, more importantly, that he was aware such testimony was false. Moreover, any flaw in the district court's findings on this prong would not invalidate its decision since surprise is merely "relevant" to a false-evidence claim, not "compulsory." Martin, 825 N.W.2d at 740.
In sum, each aspect of the postconviction court's false-testimony analysis comports with applicable law and its findings of fact find ample support in the record. The doctors falsely overstated the connection between macular schisis and AHT. The jury might have accepted the truth of their statements based on their expertise and relied on those uniquely definitive and unanticipatory statements in finding that the state proved its circumstantial case against Kaiser. Accordingly, we discern no abuse of discretion by the postconviction court in granting a new trial based on false testimony.
Because we affirm the postconviction court's determination that Kaiser is entitled to a new trial based on false evidence, we need not address its determination that he is also entitled to relief based on ineffective assistance of counsel.
Affirmed.