ROBERT E. MCDANNOLD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert McDannold appeals the summary denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The appellate court affirmed, holding that even if defense counsel should have objected to improper bolstering of an expert witness, any error was harmless because substantial other testimony would have reached the same conclusion.
The trial court's summary denial of the postconviction motion was affirmed. Although the expert's reference to a study was improper, the failure to object was harmless error because Dr. Aruzza's substantial independent testimony based on personal experience and expertise would have reached the same conclusion regardless. The eleventh ground based on newly discovered evidence was facially invalid because appellant failed to demonstrate the evidence was unknown at trial or that it would probably produce an acquittal on retrial.
[1] Improper bolstering of expert testimony constitutes harmless error when the record contains substantial testimony from the expert based on personal experience and experti…
[2] A defendant seeking a new trial based on newly discovered evidence must demonstrate that the evidence was unknown at the time of trial and could not have been discovered…
Previewing 2 of 4 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“the record contains substantial testimony from Dr. Aruzza, based on her personal experience and expertise, that two separate blows to the head caused the child's fatal injuries, not a single fall from a bed.”
Demonstrates the harmless error analysis—sufficient independent evidence existed to support the conviction despite the improper bolstering.
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Join FLexlaw to unlock all legal intelligenceMcDannold was convicted in a trial where the state's medical expert, Dr. Aruzza, testified that two separate blows to the head caused the child victim…
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PER CURIAM.
Robert McDannold appeals the summary denial of his 3.850 postconviction motion. We affirm the trial court’s order and write only to address two issues.
In ground eight of the postconviction motion, appellant argues defense counsel rendered ineffective assistance by not objecting to improper bolstering of the state’s expert witness — Dr. Aruzza. Although the doctor’s reference to the “study” was indeed improper, see Schwarz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997), the record attachments provided by the trial judge conclusively refute appellant’s claim that, in the absence of the “bolstered” testimony, the outcome of the trial may have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring defendant to show defense counsel’s purported error undermined confidence in outcome of trial).
Here, the record contains substantial testimony from Dr. Aruz-za, based on her personal experience and expertise, that two separate blows to the head caused the child’s fatal injuries, not a single fall from a bed.
Accordingly, even in the absence of the minimal bolstering, Dr. Aruzza’s testimony dismissed a fall from a bed as a possible cause of the victim’s fatal skull and brain injuries. See Theus v. State, 922 So. 2d 391, 391(Fla. 1st DCA 2006) (holding improper bolstering of expert testimony amounted to harmless error pursuant to State v. DiGuilio, 491 So. 2d 1129 (Fla.1986)).
The second issue we address is appellant’s eleventh ground for relief, which appellant presented in a second supplement to the original motion. The trial judge failed to address this ground in the final order. Although we would generally remand an issue not addressed by a trial court in a postconviction motion, see, e.g., Sassnett v. State, 838 So. 2d 650 (Fla. 1st DCA 2003), we deny appellant’s claim as facially invalid. When arguing that newly discovered evidence calls for a new trial, a defendant must show that the evidence was “ ‘unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” Jones v. State, 591 So. 2d 911, 916 (Fla.1991) (quoting Hallman v. State, 371 So. 2d 482, 485 (Fla.1979)).
The defendant is also required to demonstrate the evidence is “of such na ture that it would probably produce an acquittal on retrial.” Id. at 915.
Here, appellant fails to make either showing.
AFFIRMED.
BARFIELD, KAHN and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Schwarz v. State, 695 So. 2d 452 (Fla. 4th DCA 1997)
- Donnie K. Sassnett v. State, 838 So. 2d 650 (Fla. 1st DCA 2003)
- Theus v. State, 922 So. 2d 391 (Fla. 1st DCA 2006)
- Sutton v. Amerson, 922 So. 2d 391 (Fla. 1st DCA 2006)