Joshua D. Preston v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 18 2018, 9:39 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Anne Murray Burgess Ian McLean
Deputy Public Defender Supervising Deputy Attorney
Indianapolis, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua D. Preston, July 18, 2018
Appellant-Petitioner, Court of Appeals Case No.
35A04-1711-PC-2727
v. Appeal from the
Huntington Circuit Court
State of Indiana, The Honorable
Appellee-Respondent. Thomas Hakes, Judge.
Trial Court Cause No.
35C01-1303-PC-3
Kirsch, Judge.
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After his convictions for neglect of a dependent and battery were affirmed on
direct appeal, Joshua D. Preston (“Preston”) filed a petition for post-conviction
relief, which the post-conviction court denied. Preston now appeals and raises
the following restated issues:
I. Whether the post-conviction court erred when it found
that his trial counsel did not provide ineffective assistance
when counsel did not hire an expert to support Preston’s
version of events, that N.B. sustained accidental impact
injury; and
II. Whether the post-conviction court erred when it found
that studies published since 2012, which assisted Preston’s
expert in forming his opinions, did not constitute newly
discovered evidence.
We affirm.
Facts and Procedural History
The facts supporting Preston’s convictions as set forth by this court on his direct
appeal are as follows:
In early August 2010, Preston was babysitting N.B., the eight-
month-old child of his girlfriend, Michelle Bowling (“Bowling”).
Preston told Bowling that N.B. had fallen off his lap and hit her
head on a television stand. Bowling observed a rug burn on
N.B.’s head and some bruising across her ear. Around this same
time, Bowling also observed that N.B. had stopped crawling.
Bowling took N.B. to the hospital and the doctor informed her
that N.B. had stopped crawling due to the ear infection she was
experiencing at the time, because it was affecting her equilibrium.
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In early September 2010, Preston was experiencing withdrawal
from the methadone pills that he had previously been using
without a prescription. Therefore, from September 4-6, 2010, he
was too sick to help Bowling move into their home, and she
testified that he was irritable and grouchy during that period of
withdrawal.
On September 7, 2010, Bowling left N.B. with Preston while she
went to the store, even though Preston still looked pale and had
vomited earlier that day. While Bowling was away, Preston
called her and told her that N.B. had fallen off the couch and was
crying uncontrollably, but he then called Bowling back to tell her
N.B. was doing better. However, for several hours after
Bowling’s return, N.B. was vomiting and lethargic. Later that
night, Bowling called the doctor. The nurse advised Bowling to
continue to monitor N.B. and to take her to the hospital if the
vomiting did not cease.
Bowling suggested to Preston that they should take N.B. to the
hospital but Preston told Bowling not to take N.B. because he
would be accused of child abuse. Tr. at 463. Nonetheless,
Bowling, on her own, took N.B. to Parkview Huntington
Emergency Room. Bowling relayed to the emergency room
doctors Preston’s story that N.B. had fallen off the couch, and
after performing a CT scan, doctors released N.B. and told
Bowling to give N.B. Tylenol and to put ice on her head. During
the day on September 8, 2010, N.B. appeared lethargic, was still
throwing up, and would not eat. Tr. at 467. As the day
progressed, N.B. seemed to improve.
On September 9, 2010, N.B. seemed to be doing better. Bowling
left N.B. with Preston while she went with her stepsister to apply
for a new job. While Bowling was away, Preston called
Bowling’s stepsister’s phone and was screaming N.B.’s name
repeatedly, but Bowling and her stepsister could not discern what
was wrong. Preston then ran out onto his porch holding N.B.
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and shouting N.B.’s name. A stranger passing by, Andrew
Delagrange (“Delagrange”) saw Preston out on his porch,
holding N.B. Delagrange asked if he could help, and he told
Preston to call 911. When the paramedics arrived at the home,
nine-month-old N.B. was pale, unresponsive to stimuli, her eyes
were wide open with no pupillary response, and she was having
irregular and shallow breathing. State’s Ex. 2. They also
observed a dime sized greenish bruise on her right forehead and
blood in her nose. Preston told the paramedics that N.B. had
rolled off the couch and was unresponsive.
N.B. was flown by helicopter to Parkview Hospital in Fort
Wayne. Dr. Jayesh Patel (“Dr. Patel”), medical director of the
pediatric intensive care unit, initially diagnosed N.B. with a
significant cerebral concussion. After more tests and
consultation with other doctors, he concluded N.B.’s symptoms
were not consistent with a fall off a couch and he diagnosed her
with “shaken baby syndrome[.]” Tr. at 391, 393. Dr. Jeffrey
Bessette (“Dr. Bessette”), a diagnostic radiologist, conducted a
CT scan and a MRI scan of N.B.’s brain and observed a subdural
hematoma. He also reviewed the CT scan from September 7,
2010 and discovered that the subdural hematoma was already
present on that day. He also observed a fracture on N.B.’s right
radius from an injury sustained four to eight weeks prior. Dr.
Barbara Schroeder (“Dr. Schroeder”), an ophthalmologist, also
examined N.B. and noted that N.B.’s eyes showed massive
preretinal and intraretinal hemorrhages, which she noted was
“consistent only with non-accidental shaking trauma.” State’s Ex.
9.
Detective Cory Boxell (“Detective Boxell”) questioned Preston
regarding the injuries to N.B. Preston told Detective Boxell that
he was the sole adult present when N.B. fell off the couch on
September 7, 2010 and that N.B. had slept most of the day on
September 8, 2010. Preston also said he was the only adult
present with N.B. on September 9, 2010 when, according to him,
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N.B. again fell off the couch, due to his son pulling the blanket
N.B. was wrapped up in at the time.
Preston was charged with Class B felony neglect of a dependent
resulting in serious bodily injury between August 1, 2010 until
September 9, 2010 and was charged with Class B felony battery
resulting in serious bodily injury to a person less than fourteen
years of age and committed by a person of at least eighteen years
of age between September 7, 2010 until September 9, 2010.
On February 27, 2012, the jury trial commenced and continued
until March 1, 2012. During the trial, three physicians testified
that N.B.’s condition was the result of abusive head trauma. On
March 2, 2012, the jury found Preston guilty on both counts. On
May 7, 2012, Preston was sentenced to consecutive eighteen-year
sentences, with three years suspended to probation on each
count. Preston v. State, No. 35A04-1206-CR-291, slip op. at *3-4
(Ind. Ct. App. Feb. 6, 2013).
Preston appealed, arguing errors in the admission of evidence and claiming that
his convictions violated Indiana double-jeopardy provisions. A panel of this
court unanimously affirmed his convictions and sentences. Preston later filed a
petition for post-conviction relief, which he amended to allege ineffective
assistance of trial counsel. PCR App. at 69-71; PCR Tr. Vol. II at 3.
The post-conviction court conducted an evidentiary hearing on the amended
petition on August 2, 2017. PCR Tr. Vol. II at 3. At the hearing, Preston
introduced the deposition of trial counsel, Matthew Grantham (“Grantham) in
lieu of his live testimony. Id. at 4; PCR Ex. 5 & 5A. Preston also presented
testimony from Dr. John Galaznik (“Dr. Galaznik”), a physician who had been
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employed for thirty-seven years treating “active, vigorous college students” at
the University of Alabama Tuscaloosa. PCR Tr. Vol. II at 15. During that
employment, Dr. Galaznik had never treated a younger child, or an infant, for
suspected abuse, abusive head trauma, or significant eye trauma. Id. at 25-27,
29, 30.
Dr. Galaznik was familiar with terms from ophthalmology and neurology and
explained he approached these disciplines by reading reports and seeing “if just
self-learning can match it, uh, against what I see in the imaging . . . I’m fairly, I
think, familiar with the terms and what’s being discussed on everything in the
reports.” Id. at 18. Dr. Galaznik was aware that the American Academy of
Pediatrics had issued a policy statement that expert witnesses should be board
certified in the relevant specialty of their testimony, as well as actively and
meaningfully engaged in clinical practice in that area, but noted that policy
statement was issued after he had begun his “work.” Id. at 33, 41.
Dr. Galaznik was given one of Preston’s accounts of the injury, that N.B. had
fallen from the couch, and said it was possible that a fall from the couch on
September 7, 2010 could have produced her symptoms, either alone or in
conjunction with the second alleged fall on September 9, 2010. Id. at 70-75. He
also testified that it was also possible that the alleged fall on September 7, 2010,
could have produced the seizures observed for N.B. on September 9, 2010. Id.
at 70-75. Dr. Galaznik also said it was possible that an impact injury could
rapidly increase intracranial pressure, citing “experimental research in an
animal model where they took and impacted the head of a sheep model” before
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testing its intracranial pressure. Id. at 59-60. The research, he said, suggested
that an impact injury can produce a dramatic increase in intracranial pressure
within a short time. Id. at 60. He also thought this pressure could produce
retinal hemorrhaging. Id. at 80-81, 87.
Dr. Galaznik had read a 2010 study conducted on piglets whose heads were
attached to a jackhammer and accelerated and decelerated through a 110-
degree arc in less than 15/1000ths of a second. Id. at 83. The authors of the
study had “rushed over and looked” at the piglets’ eyes and did not see “grossly
visible retinal findings.” Id. at 83. Dissection of the piglets found varying
percentages which had sustained hemorrhaging behind the iris or pooling of
blood in front of the iris, but Dr. Galaznik said these areas were not those
associated with retinal hemorrhaging in human eyes. Id. at 85). Dr. Galaznik
also briefly cited another study done using rotational motion with lambs’ heads.
Id. at 86. The lambs had been anesthetized, and a number of smaller lambs had
died from the experiment within several hours. Id. at 164; PCR Ex. E).
The post-conviction court also heard from Dr. Ralph Hicks (“Dr. Hicks”) who
testified for the State, as he had at Preston’s trial, that the conclusion of abusive
head trauma was supported by a thorough examination of N.B.’s condition and
symptoms. PCR Tr. Vol. II at 160-62, 168, 180. He testified that some medical
professionals believe shaking alone can produce head trauma, while others do
not, and that a simple choice between one cause or the other was difficult to
make. Id. at 159. Dr. Hicks explained that, while the precise mechanism of
shaking is not fully understood, the prevailing theory in the medical community
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is that shaking produces forceful acceleration, deceleration, and rotation that
damages the brain. Id. at 182. He also noted that “the majority of infants and
children who have abusive head trauma will have retinal hemorrhages to one
degree or another” and that the massive or severe retinal hemorrhaging found
by Dr. Schroeder is “very highly associated with inflicted head trauma.” Id. at
160-62, 182. Dr. Hicks was skeptical of studies involving animals because “we
know there are differences between different animal models and a living human
infant, uh, but I don’t think we fully understand what those differences might be
and how they might relate to whether injury occurs or does not.” Id. at 164-65.
Dr. Hicks also disagreed with the assertion that N.B.’s subdural hematoma
could have existed from birth. Id. at 168. Subdural hematomas found at birth
generally occur lower in the brain, near the cerebellum, than the subdural
hematoma found in N.B., which was near the top of her head. Id. at 169. After
the conclusion of the evidence, the post-conviction court issued an order
denying Preston’s petition. The court found that Preston did not receive
ineffective assistance of counsel. Preston now appeals.
Discussion and Decision
Post-conviction proceedings do not afford the petitioner an opportunity for a
super appeal, but rather, provide the opportunity to raise issues that were
unknown or unavailable at the time of the original trial or the direct appeal.
Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,
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cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct
appeal and provide only a narrow remedy for subsequent collateral challenges
to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-
conviction relief bears the burden of proving the grounds by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5).
When a petitioner appeals a denial of post-conviction relief, he appeals a
negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. The petitioner must establish that the evidence as a whole
unmistakably and unerringly leads to a conclusion contrary to that of the post-
conviction court. Id. We will disturb a post-conviction court’s decision as
being contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.
denied. The post-conviction court is the sole judge of the weight of the evidence
and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.
App. 2008), trans. denied. We accept the post-conviction court’s findings of fact
unless they are clearly erroneous, and no deference is given to its conclusions of
law. Fisher, 878 N.E.2d at 463.
I. Ineffective Assistance of Counsel
Preston argues that the post-conviction court erred in denying his petition for
post-conviction relief because he received ineffective assistance from his trial
attorney. When evaluating a claim of ineffective assistance of counsel, we
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apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668(1984). Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v.
State, 799 N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied.
First, the defendant must show that counsel’s performance was deficient. Id.This requires a showing that counsel’s representation fell below an objective
standard of reasonableness and that the errors were so serious that they resulted
in a denial of the right to counsel guaranteed to the defendant by the Sixth and
Fourteenth Amendments to the United States Constitution. Id. Second, the
defendant must show that the deficient performance resulted in prejudice. Id.To establish prejudice, a defendant must show that there is a reasonable
probability that but for counsel’s unprofessional errors; the result of the
proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id.Further, counsel’s performance is presumed effective, and a defendant must
offer strong and convincing evidence to overcome this presumption. Williams v.
State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what
may or may not have been an advantageous trial strategy, as counsel should be
given deference in choosing a trial strategy that, at the time and under the
circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,
696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or
bad tactics do not necessarily render representation ineffective. Shanabarger v.
State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs
of the Strickland test are separate and independent inquiries. Manzano v. State,
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12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.
2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.’” Id.(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537
U.S. 839 (2002)).
Preston first contends that his trial counsel deficiently performed by formulating
a defense without the aid of an expert. Preston asserts that this failure
precluded a defense that N.B.’s injuries were consistent with the accidental falls
occurring while she was in his care, as described by Preston. Preston argues
that the State’s argument, that N.B.’s injuries had to be intentionally inflicted
because she had been shaken, was left unchecked. We disagree.
Grantham’s decision to formulate a defense without the aid of an expert did not
constitute deficient performance. Grantham testified in his deposition that his
defense strategy was to try to show N.B. had not been abused and that Preston’s
version of events created reasonable doubt. Moreover, Grantham testified that his
argument was that if N.B. had been abused, it was not by Preston. In preparation
for trial, Grantham testified that he reviewed documents provided by the State in
discovery and consulted with his wife’s brother-in-law, who was in medical school
at the time, and his father-in-law, who was a general practice physician. Grantham
stated that he also reviewed an abusive head trauma article that his wife’s brother-
in-law forwarded to him. Grantham stated that his decision not to consult an
expert was because he believed his best strategy was to focus on the lack of
evidence that his client was the perpetrator, and he believed he could dispute the
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medical evidence on cross-examination. The trial record reflects that Grantham
cross-examined every witness and attempted to establish Preston’s defense that no
one saw Preston injure N.B. and that some of the medical issues N.B. displayed,
such as retinal hemorrhaging and a subdural hematoma, could have been caused
by something other than child abuse. Because Grantham adequately prepared for
trial and developed a trial strategy that he believed was best for Preston’s case, his
performance was not deficient.
Additionally, Preston argues that he was prejudiced by his trial counsel’s failure
to hire an expert, and there is a reasonable probability that had he done so, the
outcome of Preston’s trial would have been different. “While it is undisputed
that effective representation requires adequate pretrial investigation and
preparation, it is well settled that we should resist judging an attorney’s
performance with the benefit of hindsight.” McKnight v. State, 1 N.E.3d 193,
200 (Ind. Ct. App. 2013). Therefore, when deciding a claim of ineffective
assistance for failure to investigate, we apply a great deal of deference to
counsel’s judgments. Id. at 201. Establishing failure to investigate as a ground
for ineffective assistance of counsel requires going beyond the trial record to
show what investigation, if undertaken, would have produced. Woods v. State,
701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied, 550 U.S. 930 (1999). This is
necessary because success on the prejudice prong of an ineffectiveness claim
requires a showing of a reasonable probability of affecting the result. McKnight,
1 N.E.3d at 201. Here, Preston’s arguments amount to the contention that, if
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Grantham had called an expert, there is a reasonable probability the outcome of
his case would have been different. We disagree.
The trial record reflects testimony from multiple medical professionals who all
agreed that N.B.’s injuries were not consistent with a fall from a couch as
Preston had alleged. Katrina Adelman (“Adelman”), Emergency Medical
Technician Paramedic, testified that she “saw what we call decorticate where
she’s pulling her extremities in and then decerebrate posturing which is pushing
them out which is really indicative of a head injury.” Adelman also stated that
this type of posturing is not seen normally when a child falls from a couch.
Dr. Schroeder testified that N.B. had a lot of retinal hemorrhaging which was
consistent with non-accidental shaking trauma. N.B. also had a subdural
hematoma and subdural hemorrhaging which were consistent with findings
about abusive head trauma. Dr. Schroeder indicated that N.B.’s retinal
hemorrhaging was massive; “N.B. had bilateral, severe, retinal hemorrhages
consistent with non-accidental shaking trauma.” Dr. Schroeder stated “Retinal
hemorrhages like this are not found in any other condition except for shaking
injury. There’s just nothing else that causes retinal hemorrhages like that.” Dr.
Bessette testified that it was unusual for a nine-month-old child to have a
subdural hematoma. Dr. Bessette also stated that he has never seen a child
receive a subdural hematoma from a nineteen-inch fall from a couch. Dr. Patel
testified that N.B.’s seizures, subdural hemorrhaging, retinal hemorrhaging,
vomiting, subdural hematoma, unresponsiveness, and gasping respiration
following the incident, and N.B.’s loss of vision over a period of time were all
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consistent with the abusive head trauma diagnosis. Dr. Patel stated that a short
fall from the couch, as Preston alleged, would not explain N.B.’s injuries.
Dr. Hicks testified that N.B.’s altered level of consciousness, including
unresponsiveness and seizure-like activity, the bruises on her forehead, left arm,
and shoulder area, the collection of hemorrhage or blood underneath the dural
membrane that covers the brain and underneath the skull, the extensive retinal
hemorrhaging were all consistent with the findings of abusive head trauma. Dr.
Hicks also indicated that a fall from a couch nineteen inches high off the ground
was not consistent with an abusive head trauma finding because of the type of
injuries N.B. had and the severity of the injuries were not the sort of things you
would expect to see from a fall of this height even on a hardwood floor. Dr.
Hicks stated, “We just don’t see life threatening injuries in otherwise healthy
children from those types of falls.”
A significant and consistent amount of evidence was presented to display that
N.B.’s combined injuries could not have been caused by anything other than
non-accidental trauma. Because Preston is unable to show a reasonable
probability that, but for Grantham’s decision not to hire an expert, the result of
his criminal proceeding would have been different, Preston was not prejudiced.
We find that Preston has failed to show that “the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010).
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II. Newly Discovered Evidence
Preston argues that the State’s medical conclusions about abusive head trauma
and the causal relationship to retinal hemorrhaging have been undermined by
recent studies that were published since Preston’s trial. Newly discovered
evidence mandates a new trial only when a defendant demonstrates that: (1)
the evidence has been discovered since trial; (2) it is material and relevant; (3) it
is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or
incompetent; (6) due diligence was used to discover it in time for trial; (7) it is
worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will
probably produce a different result at trial. Whedon v. State, 900 N.E.2d 498,
504 (Ind. Ct. App. 2009) (citing Taylor v. State, 840 N.E.2d 324, 329-30 (Ind.
2006)), summarily aff’d, 905 N.E.2d 408 (Ind. 2009). “We ‘analyze[ ] these nine
factors with care, as the basis for newly discovered evidence should be received
with great caution and the alleged new evidence carefully scrutinized.’” Id.The petitioner for post-conviction relief bears the burden of showing that all
nine requirements are met. Id. (emphasis in original).
Preston contends that the new evidence is material, relevant, and not
cumulative because it negates the State’s theory that N.B.’s injuries could have
only been caused by shaking. He also claims that the newly discovered
evidence is not privileged or incompetent, is worthy of credit, and can be
produced upon a retrial. Preston alleges that the newly discovered evidence is
not merely impeaching because the information from the newest studies
provides an independent basis for a defense that N.B.’s injuries were consistent
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with Preston’s description of the falls. Preston further contends that the
evidence could not have been discovered with due diligence; the evidence is
worthy of credit; the new evidence will probably produce a different result at
trial because it opens up the possibility that N.B.’s injuries were consistent with
an accidental fall as described by Preston.
In order to establish that newly discovered evidence warrants a new trial, a
petitioner for post-conviction relief must show that all nine requirements are
met. Whedon, 900 N.E.2d at 504. Here, the alleged newly discovered evidence
are studies that Preston believes undermines the State’s medical conclusions
that there is a causal relationship between abusive head trauma and retinal
hemorrhaging. Such evidence would have been merely impeaching. In order
to merit a new trial, the evidence at issue cannot be merely impeaching. Id.However, evidence that destroys or obliterates the testimony upon which a
conviction was obtained is not appropriately considered as merely impeaching
evidence. Bunch v. State, 964 N.E.2d 274, 291 (Ind. Ct. App. 2012) (citing
Wilson v. State, 677 N.E.2d 586, 588 (Ind. Ct. App. 1997)) (quotations omitted),
trans. denied. In Bunch, the newly discovered evidence consisted of testimony
that the defendant did not set multiple incendiary fires in the mobile home and
offered a new, exculpatory explanation for the victim’s death. 964 N.E.2d at
291. In Wilson, one of the State’s witnesses recanted testimony that he and two
children saw the defendant point a firearm at the victim and gave an affidavit,
in which he stated that he and the children were not in a position to see the
incident, and their testimony was fabricated. 677 N.E.2d at 588. In both of
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these cases, the newly discovered evidence was found to warrant a new trial
because it was not merely impeaching, but instead, destroyed or obliterated the
testimony upon which the convictions were obtained.
Such is not the case here. The evidence presented by Dr. Galaznik at the post-
conviction hearing does not destroy or obliterate the testimony upon which
Preston’s convictions were obtained. Dr. Galaznik testified that recent studies
failed to establish a causal relationship between retinal hemorrhaging and
abusive head trauma; however, Dr. Galaznik also conceded that N.B.’s injuries
could have been a non-accidental injury, which is what the jury concluded.
Furthermore, the studies that Dr. Galaznik referred to in his testimony were
studies regarding animals, not humans. The studies also did not consider all of
N.B.’s combined injuries. The evidence that recent studies failed to establish a
causal relationship between abusive head trauma and retinal hemorrhaging was
merely impeaching, and we, therefore, conclude a new trial was not warranted.
The post-conviction court did not err in denying Preston’s petition on this issue.
Affirmed.
Baker, J., and Bradford, J., concur.
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