BRIAN HERLIHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Herlihy was convicted of manslaughter and sentenced to 15 years imprisonment. On appeal, he challenged his trial counsel's ineffectiveness for failing to request a Frye hearing regarding expert testimony about Shaken Baby Syndrome. The court affirmed the denial of his motion for postconviction relief, holding that such medical diagnosis testimony is expert opinion not subject to Frye analysis.
Trial counsel was not ineffective because expert opinion testimony based on a doctor's personal experience and training regarding diagnosis of a medical condition is not subject to Frye analysis. Therefore, counsel was not deficient for failing to request an inappropriate Frye hearing.
[1] Ineffective assistance of counsel requires a showing that counsel's performance was deficient and that the deficient performance prejudiced the outcome of the proceedings…
[2] A Frye hearing is required to determine the admissibility of new or novel scientific principles.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In order for an appellant to show ineffective assistance of counsel, the appellant must show that counsel's performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different.”
Establishes the two-prong Strickland test for ineffective assistance of counsel claims.
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Join FLexlaw to unlock all legal intelligenceHerlihy was convicted of manslaughter following a jury trial and sentenced to 15 years imprisonment. His conviction and sentence were affirmed on dire…
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PER CURIAM.
Following a jury trial, the appellant, Brian Herlihy, was convicted of manslaughter and sentenced to 15 years’ imprisonment. This court affirmed Appellant’s conviction and sentence on direct appeal. Herlihy v. State, 887 So. 2d 332 (Fla. 1st DCA 2004) (unpublished table opinion). Appellant now challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, arguing his trial counsel was ineffective for failing to request a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), challenging the admissibility of evidence relating to “Shaken Baby Syndrome.”
In order for an appellant to show ineffective assistance of counsel, the appellant must show that counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So. 2d 52 (Fla.2003); Cherry v. State, 659 So. 2d 1069, 1072 (Fla.1995); Betts v. State, 792 So. 2d 589, 589-90 (Fla. 1st DCA 2001).
The trial court properly denied Appellant’s motion where he has failed to demonstrate that his counsel’s conduct was outside of the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.
A Frye hearing is appropriate to determine the admissibility of a “new or novel” scientific principle. See Zack v. State, 911 So. 2d 1190, 1197-98 (Fla.2005) (citing to Brim v. State, 695 So. 2d 268 (Fla.1997)).
However, expert opinion testimony “which is based on an ‘expert’s personal experience and training’ ” is not subject to Frye testing. Gelsthorpe v. Weinstein, M.D., 897 So. 2d 504, 509 (Fla. 2d DCA 2005) (citing to Flanagan v. State, 625 So. 2d 827, 828 (Fla.1993)).
Therefore, a diagnosis based on an expert’s opinion and experience, versus a specific scientific test, would not be subject to a Frye hearing. Id. at 510 (stating that expert “testimony concerning the causation of a medical condition will be considered pure opinion testimony — and thus not subject to Frye analysis”).
Here, Appellant argues that testimony relating to the diagnosis that the victim suffered from Shaken Baby Syndrome should have been subjected to a Frye hearing. However, such testimony is based on an expert’s opinion and, as such, is not evidence which would be subject to the Frye analysis. See Gelsthorpe, 897 So. 2d at 510. Therefore, Appellant’s counsel was not deficient for failing to request an inappropriate Frye hearing. Cf. Rutherford v. Moore, 774 So. 2d 637, 643 (Fla.2000) (stating that appellate counsel cannot be ineffective for failing to raise a meritless claim).1 Accordingly, the trial court properly denied Appellant’s motion for postconviction relief.
AFFIRMED.
BARFIELD, BROWNING and THOMAS, JJ., concur.
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Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)…ked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Flanagan, 625 So. 2d at 828; see also Hadden, 690 So. 2d at 579-80 (same); Herlihy v. State, 927 So. 2d 146, 148 (Fla. 1st DCA 2006) (“[A] diagnosis based on an expert’s [*549] opinion and experience, versus a specific scientific test, would not be subject to a Frye hearing.”); Gelsthorpe, 897 So. 2d at 510-11 (finding Frye inapplicable to “pure opinion t…
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Johnson v. State, 933 So. 2d 568 (Fla. 1st DCA 2006)…Syndrome as the cause of the infant’s death was an expert opinion based on the medical examiner’s personal training and experience. An expert opinion based on personal training and experience is not subject to a Frye analysis. See Herlihy v. State, 927 So. 2d 146 (Fla. 1st DCA 2006) (citing Gelsthorpe v. Weinstein, M.D., 897 So. 2d 504, 509 (Fla. 2d DCA 2005)). In Herlihy, we held that the appellant’s trial counsel was not ineffective for failing to object to medical testimony identifying Shaken Baby Syndrom…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000)
- Cherry v. State, 659 So. 2d 1069 (Fla. 1995)
- Dusty Ray Spencer v. State, 842 So. 2d 52 (Fla. 2003)
- Brim v. State, 695 So. 2d 268 (Fla. 1997)
- Flanagan v. State, 625 So. 2d 827 (Fla. 1993)
- Zack v. State, 911 So. 2d 1190 (Fla. 2005)
- Betts v. State, 792 So. 2d 589 (Fla. 1st DCA 2001)
- Farrah Gelsthorpe and Travis Bacus v. Lawrence I. Weinstein, M.D., 897 So. 2d 504 (Fla. 2d DCA 2005)