Date: 09-11-2020

Case Style:

Case Number: 2019-CA-00034-COA

Judge: Jack L. Wilson

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
ABBIE EASON KOONCE
ASHLEY SULSER

Defendant's Attorney:

Criminal Defense Lawyer Directory

Description: I. Bryan�s Death
�3. In May 1997, Shelby and her then-fianc� Bryan Thompson III (Thompson) were
living together in Biloxi with their newborn baby, Devon; Shelby�s three-year-old son,
Dakota; and Thompson�s two-and-a-half-year-old son, Bryan. Around 7:30 p.m. on May 29,
Thompson left to go to work. Shelby�s grandmother Honey Schalk and Schalk�s husband,
Don, came to Shelby�s house around 8 p.m. to pick up Dakota for an overnight visit at their
house. The Schalks stayed for about an hour. Honey testified that Bryan played happily
throughout their visit and that she did not notice any marks or bruises on him. According to
Shelby, she gave Bryan a snack and put him to bed after the Schalks left.
�4. Shelby told law enforcement that she was awakened by a �big thump� around 3:30 or
2
4 a.m. According to Shelby, she found Bryan on the floor of his bedroom, and he appeared
to be having a seizure and was not breathing. Shelby called Thompson at work and told him
Bryan was not breathing and that she could not get through to a 911 operator. Thompson
returned home to find Shelby standing in the doorway holding Bryan. Thompson testified
that Bryan appeared �pretty much lifeless and limp and blue as could be.�
�5. Thompson laid his son on the floor and attempted to administer CPR. He then
decided to take Bryan to the hospital. However, when he asked Shelby whether they �should
call the hospital or 911, . . . she said no.� Thompson told Shelby to get Devon so they could
take Bryan to the hospital. Thompson testified that he �bumped [Bryan�s] head slightly on
the door� of the van as he put the child in the van. Thompson told Shelby to continue to try
administer CPR to Bryan on the way to the hospital. On the way to the hospital, a deputy
sheriff stopped Thompson for speeding. Thompson explained to the deputy that Bryan was
not breathing, and the deputy got into the van and administered CPR as Thompson continued
to the hospital.
�6. When they arrived at Biloxi Regional Medical Center, Bryan was rushed to the
emergency room. Dr. Max Odomperformed mouth-to-mouth resuscitation on Bryan, placed
a bag valve mask over his mouth, inserted a breathing tube into his trachea, administered
adrenaline, and eventually �establish[ed] a palpable pulse and blood pressure.� Odom
testified that it was �apparent to [him], without any confirmatory tests, that [Bryan] had
significant brain injury fromblunt trauma.� A head CT scan �[s]howed diffuse subarachnoid
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hemorrhage throughout the subarachnoid space� in Bryan�s skull and a �small subdural
hematoma on the right side� of Bryan�s head. Bryan was transported to the University of
South Alabama Medical Center in Mobile for further treatment, but he was pronounced dead
the next day, May 31, 1997. Dr. Leroy Riddick performed the autopsy and concluded that
the cause of death was �blunt force trauma to the head.� The manner of death was ruled a
homicide.
II. Shelby�s Trial, Conviction, and Appeal
�7. Shelbywas indicted for capital felonymurder for killing Bryan during the commission
of felony child abuse. Her case proceeded to trial in 2000.
�8. Dr. Odom testified that Bryan had multiple bruises in various stages of healing on his
head and under his armpits when he arrived at the emergency room. Some of the bruises
were three to five days old, while others reflected injuries within twenty-four hours. Dr.
Odom also testified that the diffuse hemorrhaging in the subarachnoid space within Bryan�s
skull was caused by ruptures to veins and arteries in that space. These injuries caused
pressure on Bryan�s brain and deprived his brain of oxygen. Dr. Odom testified that
subarachnoid bleeding caused by an aneurysm would be focused in one place. However,
Bryan�s CT scan showed �generalized subarachnoid� hemorrhaging �throughout� the
subarachnoid space, which �suggest[ed] multiple sights of bleeding or torn bridging veins
in the subarachnoid space.� Dr. Odom did not believe that Bryan�s injuries could have been
caused by a fall from Bryan�s bed, which measured only sixteen inches from the top of the
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mattress to the floor.
�9. Thompson testified that he noticed �a red dot close to [Bryan�s] cornea� about two
weeks prior to his death and that Bryan�s eyes appeared �bloodshot� for three to four weeks
before his death. Thompson asked Bryan�s pediatrician about the issue, and he
recommended that Bryan see a neurologist. According to Thompson, Bryan had an
appointment with a neurologist scheduled for about a week after his death. �[O]n occasion,�
Thompson had also noticed that Bryan would �look up� and close his eyes.
�10. Thompson stated that when he left for work on May 29, 1997, Bryan did not have any
of the bruises�either on his head or under his arms�that were clearly visible in the
photographs taken at the hospital. Thompson also testified that none of those injuries could
have occurred when he slightly bumped Bryan�s head on the van�s door as they left for the
hospital. Thompson testified that he had nothing to do with his son�s death.
�11. Honey Schalk testified that Bryan was happy, giggling, and playing while she visited
with him on May 29, 1997. Honey stated that not long before Bryan�s death, Shelby had
complained that �she felt like she was dealing with a retarded child because [Bryan] was very
slow� and �still wasn�t potty trained.� Honey testified that on one occasion about three to
four weeks prior to Bryan�s death, she noticed that the bottom portion of the whites of his
eyes were �blood red.�
�12. Sergeant Warren Newman of the Biloxi Police Department interviewed Shelby soon
after she arrived at Biloxi Regional Medical Center. Newman testified that Shelby �didn�t
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seem very concerned� and was not �that upset� or crying. Shelby told Newman that she was
awakened by �a thump� and found Bryan lying unresponsive on the floor in his bedroom.
Newman testified that Bryan�s bedroom had �shag carpet� and a �padded floor� and that the
top of Bryan�s mattress was only sixteen inches from the floor.
�13. Dr. Leroy Riddick, an expert forensic pathologist, testified that Bryan �died from
blunt force injuries to his head.� Dr. Riddick testified that Bryan had a quarter-inch bruise
on his left forehead, a three-eighths-inch bruise on the outer right side of his face, and a oneeighth-inch bruise on the outer part of his eyebrow. All of these bruises were less than two
days old. Bryan also had a 1.25-inch bruise on his right cheek, a quarter-inch bruise on the
back of his left shoulder blade, a bruise in the midline of his lower back, and another bruise
on the outer part of his left thigh. Dr. Riddick determined these bruises were recent and had
occurred �within the time frame of May the 30th.�
�14. Dr. Riddick found that Bryan experienced significant subdural hemorrhaging and
diffuse subarachnoid hemorrhaging and that �his brain was massively swollen.� These
injuries indicated that Bryan suffered �what is known as diffuse axonal damage.� Dr.
Riddick testified that if �you intentionally shake a baby really hard and bang its head,� you
will tear the tiny axons (projections of nerve cells), which is �known as diffuse axonal
damage.� According to Dr. Riddick, that was �the injury that killed [Bryan].� Dr. Riddick
further testified that the bruises on the back and front of Bryan�s head �indicate[d] that his
head impacted something with enough force to tear the veins inside the arachnoid space and
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also to tear . . . a large number of the [axons] in his brain.� Dr. Riddick opined that a fall
from sixteen inches to a carpeted floor could not have caused all the contusions on Bryan�s
head or the internal brain injuries that he suffered. Dr. Riddick further testified that Bryan�s
extensive brain injuries could not have been the result of an accident. Finally, Dr. Riddick
opined that the shaking and impact that caused Bryan�s injuries occurred no more than two
to three hours before he arrived at the hospital.
�15. On cross-examination, Dr. Riddick reiterated that the cause of Bryan�s brain injuries
and death was �multiple blunt force injuries� to Bryan�s head. Defense counsel asked,
�[T]hat�s kind of a medical term for . . . shaken baby syndrome; is that correct?� Dr. Riddick
answered, �No, it is not the same. Blunt force injuries are bruises, abrasions, scrapes,
hematomas, or tears, or lacerations, and fractures. Those are blunt force injuries. . . . I think
there probably was shaking . . . , but it was shaking and impact.� That is, Bryan�s head was
forcefully �banged� against something, causing blunt force injuries.
�16. Dr. Riddick also was cross-examined about scientific articles that concluded that
children could suffer fatal head injuries from even short falls or minor impacts. Dr. Riddick
stated that he was aware of such literature and that some doctors held that opinion, but he
said that in his �own experience� he had never seen a fatal injury caused by a short fall. He
also questioned some of the articles� reliance on �unwitnessed events.� Dr. Riddick testified
on redirect examination that �[t]heoretically� a short fall could generate enough force to
cause a fatal head injury. However, the practical experience of most doctors is that children
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�do not sustain lethal injuries from short falls.� Dr. Riddick stated, �It may happen. It is an
extraordinary rarity if it does.� Finally, on re-cross-examination, Dr. Riddick again stated
that he was �not saying� that a short fall could not cause a fatal head injury.
�17. After the State rested, Shelby recalled Thompson. Thompson was asked if he was
alone with Bryan for two to three hours just before he went to work on May 29, 1997.
Thompson testified that he could not recall and therefore could not deny it.
�18. Dr. Anthony Ioppolo, a board certified neurosurgeon, testified for the defense that he
believed that the most likely cause of death was �herniation of the brain��i.e., swelling of
the brain caused by �a combination of a subarachnoid hemorrhage . . . and seizure activity�
caused by a subarachnoid hemorrhage. Dr. Ioppolo explained that �[s]eizures can cause
greatly increased blood flow into the brain.� Dr. Ioppolo believed that Bryan had a seizure,
which �tip[ped] the scales� and caused the herniation or severe swelling. Dr. Ioppolo
thought it was likely that Bryan died from �shaken baby syndrome.� But he also believed
that reports of Bryan�s eyes �rolling back� in his head and blood in Bryan�s eyes in the weeks
prior to his death indicated that Bryan had been shaken violently on prior occasions, which
caused bleeding around his brain and seizures. Dr. Ioppolo believed that Bryan�s condition
gradually worsened over a period of time until he had a seizure in the early morning hours
of May 30, 1997, which �was the final event that the brain couldn�t compensate for any
longer that caused the herniation and [Bryan�s] death.� In Dr. Ioppolo�s opinion, Bryan did
not necessarily suffer any external injury immediately before his death and could have been
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conscious and ambulatory for twelve hours or �a lot longer� after he was last abused.
�19. Dr. Ioppolo also testified that the relevant medical literature described �a number of
cases� in which children suffered fatal injuries as a result of short falls. He stated such
deaths were not common, �but it does happen.� Thus, while such a fall was a possible cause
of Bryan�s death, it was �the less likely cause.�
�20. The jury found Shelby guilty of capital felony murder. In the sentencing phase of the
trial, the jury found that Shelby should be sentenced to life imprisonment without parole, and
the trial court imposed that sentence. The trial court also denied Shelby�s motion for
judgment notwithstanding the verdict or a new trial. This Court affirmed Shelby�s conviction
and sentence, holding that there was sufficient evidence to support the conviction and that
the jury�s verdict was not against the overwhelming weight of the evidence. Shelby v. State,
812 So. 2d 1144 (Miss. Ct. App. 2002).
III. Post-Conviction Proceedings
�21. In 2005, Shelbyfiled her first application for leave to file a motion for post-conviction
relief (PCR) in the trial court, alleging ineffective assistance of counsel at trial. A panel of
the Mississippi Supreme Court denied her application. Shelby v. State, No. 2005-M-00615
(Miss. Apr. 28, 2005).
�22. In 2015, Shelby filed a second application for leave to file a PCR motion, alleging that
her conviction should be set aside based on new scientific evidence related to �shaken baby
syndrome.� Shelby�s application relied on affidavits from new expert witnesses, and she
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later submitted an affidavit from Dr. Riddick. Dr. Riddick stated that he had only recently
�learned� that Bryan �had a seizure disorder and was having multiple seizures in the days
before his death.� Dr. Riddick stated it was �likely that [his original] conclusions might have
been different� if he had been aware of that information at the time of Shelby�s trial. A panel
of the Mississippi Supreme Court granted Shelby leave to file a PCR motion in the trial court.
Shelby v. State, No. 2015-M-01145 (Miss. Aug. 8, 2016). Shelby filed her motion in the trial
court, and the court held a three-day evidentiary hearing on the motion in 2018.
�23. At the hearing, one of Shelby�s trial attorneys, Michael Cox, testified that because
Shelby�s own expert, Dr. Ioppolo, thought that Bryan�s injuries were caused at least in part
by violent shaking, their primary �trial strategy was to try to enlarge the time period in which
[Bryan] could have . . . received . . . injuries from shaking.� In other words, they wanted to
present evidence that it was possible that Bryan received his injuries when he was in the care
of someone other than Shelby.
�24. Dr. Kenneth Monson testified for Shelby as an expert in the field of biomechanical
engineering. Dr. Monson testified that �literature shows . . . that children are very seldom
injured seriously from a household fall, but there are some cases that have been well
documented where a child has, in fact, even died from a household fall.� Dr. Monson opined
that if Bryan could have suffered a fatal brain injury if he were �standing on his bed and he
somehow fell off his bed to the floor in a way where he was unable to protect his head� so
that his head �absorb[ed] the full energy of that fall.� Dr. Monson wanted �to be clear� that
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he was �specifically talking about a fall from a standing height.� His opinion assumed that
Bryan did not brace himself with an arm or any other part of his body but rather fell from a
full standing position directly onto his head. Dr. Monson testified that if a child simply rolled
off a low bed onto the floor, he �would not expect that fall� to generate enough force to cause
fatal injuries. Dr. Monson also �want[ed] to be clear� that �certainly [a] fall from a bed
[would not] create bruises in multiple locations on the head.� Thus, if Bryan had such
bruises�which Dr. Monson understood was �disputed��then some of his bruises �would
just have to have other explanations.�
�25. Dr. Monson stated that since Shelby�s trial in 2000, there had not �been a change, per
se,� �in the generally accepted scientific position� as to whether short falls can cause fatal
injuries in children. Dr. Monson testified that �in the biomechanical community� there had
�historically been an appreciation that a relatively short fall has the potential to create high
accelerations,� so there had not been �a significant change� in that respect. However, since
2000 there have �been additional contributions [to the literature] that shed greater light on
the potential severity of the short fall.� Dr. Monson relied on a number of articles. When
he was asked whether �most� of those articles were published after 2000, he stated,
�Certainly many of them. I don�t know about most.�
�26. Dr. Monson also opined that a person could not inflict fatal injuries on a child Bryan�s
size through �shaking� alone. However, he agreed that Bryan�s fatal blunt force injuries
could have been inflicted by slamming Bryan�s head against a hard object.
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�27. Dr. Julie Mack testified for Shelby as an expert in diagnostic radiology. Dr. Mack
opined that the bleeding observed on Bryan�s CT scan was the result of bleeding in smaller
veins within the dura, not torn bridging veins in the subarachnoid space, as Dr. Riddick had
testified at trial. Dr. Mack testified that in 2000, doctors believed that a subdural hemorrhage
could only be caused by ruptured bridging veins, which in turn indicated severe trauma.
According to Dr. Mack, several post-2000 articles, including some she had authored, show
that a slow bleed in the dura can result in subdural hemorrhaging and that bleeding in the
dura can be caused by a short fall rather than by severe trauma.
�28. Dr. Riddick, who had retired in 2000, testified that he changed his opinion about
Shelby�s case in 2015 after the Innocence Project sent him some materials. He testified that
the Innocence Project provided �information about a long family history of seizure
disorder[s],�1 which he now believes is �an adequate explanation for the swelling of the brain
which ultimately is what caused [Bryan�s] death.� Dr. Riddick�s current opinion is that a
seizure and a short fall are a �better explanation� for Bryan�s death than �some form of
intentional abuse.� Dr. Riddick stated that he now feels that �this case was, in a way, [the]
1 Dr. Riddick cited a social worker�s handwritten notes in Bryan�s records from the
University of South Alabama Medical Center (USAMC). According to the notes, Bryan�s
paternal grandmother told the social worker that �others in [their] family� had a �history of
seizure disorders,� and the grandmother �wonder[ed]� �in retrospect� whether Bryan had
been having seizures recently when he had been �staring into space.� Dr. Riddick testified
at Shelby�s trial that he had reviewed Bryan�s USAMC records, but he did not mention the
social worker�s notes in his trial testimony. At trial, Thompson testified that his mother did
have seizures, but he believed they were caused by �work conditions.� Thompson denied
that there was any other family history of seizures.
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once in a million� case in which a short fall could have been fatal.
�29. Dr. Riddick�s current opinion is that Bryan �died from massive cerebral edema
secondary to seizure disorder with asthma and blunt force injuries as contributory, and the
manner of death is accident.� He now believes that Bryan suffered blunt force injuries when
he �somehow fell off the bed.� Dr. Riddick said he does not know whether Bryan �was
standing up and fell backwards or whatever�; but he believes that Bryan hit the back of his
head when he fell, �and that . . . could [have] cause[d] the bruise on the back of his scalp.�
According to Dr. Riddick, Thompson�s trial testimony that he bumped Bryan�s head on the
van�s door �would account for . . . some of the [other] injuries.� Dr. Riddick stated that he
had changed his opinion about the case because at the time of trial �there was no firm
diagnosis of a seizure disorder.� He also testified that at the time of trial, he did not believe
a short fall could cause a fatal injury, but he now believes it is possible. At the PCR hearing,
Dr. Riddick stated, �It�s rare, but it does happen . . . . [I]t is uncommon, but it does occur.�
�30. On cross-examination, Dr. Riddick acknowledged that there was nothing in Bryan�s
medical records to indicate that any doctor had observed a seizure or diagnosed a seizure
disorder. Dr. Riddick also acknowledged that Bryan�s pediatrician�s records did not reflect
any complaints about seizures. Dr. Riddick agreed that when he testified at trial, he
identified the cause of Bryan�s death as �blunt force injuries,� not �shaken baby syndrome.�
At trial, the latter term was first mentioned by defense counsel, at which point Dr. Riddick
made clear that blunt force injuries and shaken baby syndrome are not the same. Dr. Riddick
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still agrees with that part of his trial testimony.
�31. Dr. Riddick also admitted that he signed his affidavit in support of Shelby�s PCR
application without reviewing his own trial testimony or files. In addition, in a December
2017 deposition, Dr. Riddick asserted that Bryan was in an auto �accident on the way to the
hospital, which would account for the injuries on the front of his head as well as the injury
to the back of the head.� Dr. Riddick further claimed that EMTs responded to the wreck and
�extricated� Bryan from the vehicle. In his deposition, Dr. Riddick opined that this alleged
auto accident �was an alternative� explanation for some of Bryan�s injuries. However, at the
PCR hearing, Dr. Riddick admitted that he �was wrong� about all of that�there was no auto
accident en route to the hospital. The trial court noted these issues with Dr. Riddick�s
testimony in the court�s final order denying Shelby�s PCR motion.
�32. Dr. Janice Ophoven testified for Shelby as an expert in forensic pathology. She
opined that Bryan died from diffuse brain damage caused by a lack of oxygen to his brain.
She also felt that Bryan had an undiagnosed seizure disorder and that seizures contributed
to his death. She concluded that the manner of Bryan�s death was �undetermined� because
there is more than one �plausible� explanation for his death. According to Dr. Ophoven,
Bryan�s death could have been caused by an accident, intentional abuse, or a �constellation
of natural causes.�2
2 On cross-examination, Dr. Ophoven stated that Bryan�s short fall from the bed to
the floor may have been the cause of death, a contributing cause, or only �a consequence of
. . . his fatal process.� She stated that intentional abuse was a �possible� cause of Bryan�s
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�33. Dr. Ophoven also testified that beginning around 2001 or 2002 there had been a
�shift� in the scientific community�s views regarding shaken baby syndrome. Dr. Ophoven
stated, �[F]or the last ten years, it�s been pretty well established [among forensic
pathologists] that the mechanism of shaking is not sound, and unless there�s evidence of
blunt force trauma, it is not a reasonable or legitimate conclusion as to the mechanism of
injury in a child who has no marks on their head or body.�
3 Dr. Ophoven went on to describe
several post-2000 studies and articles on shaken baby syndrome that she said reflected a shift
in scientific opinion. She also gave testimony that essentially mirrored Dr. Mack�s opinions
regarding the source of the blood around Bryan�s brain. Like Dr. Mack, she stated that Dr.
Riddick�s trial testimony was not supported by current scientific evidence, although it was
consistent with prevailing views at the time of trial. Dr. Ophoven also testified that short
falls can cause fatal injuries in children.
�34. On cross-examination, Dr. Ophoven conceded that even today �there is voluminous
literature supporting either side of [the] debate� regarding the effects of violently shaking a
child. She stated that even now �there is a wide difference of opinion� regarding shaken
death, �but there is insufficient evidence in this case to conclude that the only explanation
is the child was the victim of violence.�
3 As was pointed out on cross-examination, this testimony did not fit the facts of this
case. Here, there is clear evidence of bluntforce trauma, andBryan did have marks (bruises)
on his head and body.
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baby syndrome or abusive head trauma.4 She acknowledged that numerous individuals had
confessed to causing a child�s death by violent shaking, but she said that an �elocution� in
court �is not the same thing as scientific evidence verifying� that the event occurred. Dr.
Ophoven also readily agreed that a blunt force injury (an impact) that occurs during shaking
could cause serious brain injury and death in a child. She also agreed that it is extraordinarily
rare for a child to die as a result of a short fall.
�35. The State�s only witness at the PCR hearing was Dr. Scott Benton, a professor of
pediatric medicine at the University of Mississippi Medical Center. The circuit court
accepted Dr. Benton as an expert in the fields of child abuse pediatrics and pediatric forensic
medicine. Dr. Benton concluded that Bryan �died of blunt force trauma to the head with
additional acceleration/deceleration involved in that trauma mechanism.� Dr. Benton
concluded that Bryan�s injuries occurred sometime after 9 p.m. on May 29, 1997. He further
concluded that �seizures did not play a role in the cause of death.� He noted there is no
medical evidence that Bryan had a seizure disorder, and, moreover, there is no medical
literature that shows that a seizure disorder causes intra-cranial bleeding. Dr. Benton also
concluded that death could not have been caused by a sixteen-inch fall to the floor�which,
he noted, was consistent with the opinions of Shelby�s experts, who posited that Bryan was
standing up in bed before he fell or that other factors contributed.
4
Dr. Ophoven asserted that today the �vast majority of pathologists� do not accept
shaken baby syndrome as a valid diagnosis, although she acknowledged that a survey shows
that the vast majority of practicing physicians accept the diagnosis.
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�36. Dr. Benton acknowledged that there had �been challenges to the concept� of shaken
baby syndrome5
and that there had �been some evolution [in the scientific community�s]
understanding of it.� But he testified that there was a �general acceptance� of the diagnosis
among physicians, emergency physicians, and neurosurgeons. Dr. Benton cited various
studies and articles in support of his position. He further testified that there was general
agreement that an impact causing a blunt force injury �certainly� could be fatal. He stated
that there was �no controversy� on that point.
�37. Dr. Benton testified that the conclusions of the original autopsy report and Dr.
Riddick�s testimony at Shelby�s trial were still sound and correctly identified the cause and
manner of death. He testified that the medical literature did not support Dr. Mack�s theory
that bleeding in the dura could account for Bryan�s significant intra-cranial bleeding. He also
testified that a short fall could not account for the multiple bruises in different locations on
Bryan�s head.
�38. The circuit court subsequently denied Shelby�s PCR motion. In a detailed, twentyseven page order, the court found that Shelby was not entitled to relief because she failed to
demonstrate that her new evidence �would probably produce a different result� in a new trial.
Shelby filed a notice of appeal.
ANALYSIS
5 Dr. Benton testified that the �controversy� concerning the diagnosis and articles
challenging it actually dated back to 1987. Dr. Riddick testified that the controversy
regarding the diagnosis began in the 1970s.
17
�39. On issues of law, our standard of review is de novo. Kidd v. State, 221 So. 3d 1041,
1043 (�8) (Miss. Ct. App. 2016), cert. denied, 220 So. 3d 977 (Miss. 2017). However, �the
trial court sits as finder of fact in a [PCR] proceeding� in which �the evidence on a critical
point is in conflict.� Henderson v. State, 769 So. 2d 210, 213 (�8) (Miss. Ct. App. 2000).
In such a case, we will not reverse a trial court�s finding of fact, including �a finding of
ultimate fact,� �unless it is clearly erroneous.� Merritt v. State, 517 So. 2d 517, 520 (Miss.
1987). Moreover, �[w]hen conflicting evidence capable of more than one reasonable
interpretation is presented to the court, the trial judge, as with any finder of fact, is entitled
to determine the credibility of the witnesses and the weight to afford their testimony.�
Dickerson v. State, 291 So. 3d 344, 353 (�36) (Miss. 2020).
�40. Under the Uniform Post-Conviction and Collateral Relief Act (UPCCRA), a PCR
motion generally must be filed within three years after the prisoner�s conviction is affirmed
on appeal. Miss. Code Ann. � 99-39-5(2) (Rev. 2015). The UPCCRA also generally bars
second or successive PCR motions. Id. � 99-39-23(6) (Rev. 2015). However, the statute of
limitations and the successive-writ bar both make an exception for cases in which
the petitioner can show the existence of . . . �evidence, not reasonably
discoverable at the time of trial, which is of such nature that it would be
practically conclusive that, if it had been introduced at trial, it would have
caused a different result in the conviction or sentence.�
Kidd, 221 So. 3d at 1044 (�14) (quoting Miss. Code Ann. � 99-39-23(6)); see also Miss.
Code Ann. � 99-39-5(2)(a)(i) (same). A movant seeking post-conviction relief under these
provisions must show that
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(1) the new evidence was discovered after the trial; (2) it could not by due
diligence have been discovered prior to trial; (3) it is material to the issue and
not merely cumulative or impeaching; and (4) it will probably produce a
different result or verdict in the new trial.[6]
Kidd, 221 So. 3d at 1043 (�9) (brackets omitted) (quoting Van Norman v. State, 114 So. 3d
799, 801 (�11) (Miss. Ct. App. 2013)). �Relief must be denied if the movant fails to meet
any one of these four elements.� Id. (quoting Van Norman, 114 So. 3d at 801 (�11)).
�41. As a threshold matter, the State argues that Shelby�s new evidence does not qualify
as �newly discovered evidence� under the UPCCRA. For example, as discussed above, Dr.
Riddick�s new opinions are based in large part on his new belief that Bryan had a seizure
disorder. However, the defense argued at the trial in 2000 that seizures contributed to
Bryan�s death, and no new facts have been discovered on this issue. Then and now, there is
no diagnosis or objective evidence of a seizure disorder but only a vague and disputed
account of a �family history� and two lay witnesses who described behaviors that Shelby
argues were seizures. Similarly, the State argues that Shelby�s various experts did not
present new evidence but only more recent studies and articles addressing the same issues
that were raised during Shelby�s trial.
6 The �probably produce� standard seems somewhat less exacting than the statutes�
actual language�i.e., �practically conclusive.� However, the Supreme Court has used this
language and four-part test when applying these statutory exceptions. Brown v. State, No.
2018-DR-01256-SCT, 2020 WL 2079088, at *16 (�95) (Miss. Apr. 30, 2020). In addition,
even before the UPCCRA was enacted, the Supreme Court seemed to equate �practically
conclusive� with �probably produce� for purposes of newly-discovered-evidence claims.
Lang v. State, 232 Miss. 616, 620-24, 100 So. 2d 138, 140-42 (1958).
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�42. Regardless of whether some or all of Shelby�s evidence is �new,� the trial court
considered all of the evidence and found that it would not �probably produce a different
result� in a new trial. The trial court�s findings of fact on this issue are not clearly erroneous.
Therefore, the judgment denying Shelby�s PCR motion must be affirmed on that ground. See
Witherspoon v. State, 767 So. 2d 1065, 1068 (�15) (Miss. Ct. App. 2000) (�Since we have
concluded that the trial judge did not abuse his discretion in finding that the newly discovered
evidence would not likely have produced a different result had it been presented to the jury
during the trial, it is not necessary for us to discuss the remaining prongs of the test for
granting a new trial on the basis of newly discovered evidence.�).
�43. We first address Shelby�s contention that she is entitled to a new trial based on Dr.
Riddick�s changed opinion. The trial court found that Dr. Riddick�s change of mind would
not probably produce a different result at trial, and we cannot say that the trial court clearly
erred in this finding. To begin with, the mere fact that Dr. Riddick changed his opinion does
not require a new trial. Howell v. State, 989 So. 2d 372, 384 (�33) (Miss. 2008) (�The fact
that a witness changes his testimony after the trial does not necessarily entitle the petitioner
to a new trial.�).7 A witness, whether expert or lay, does not have the power to nullify a
criminal conviction by simply recanting prior testimony. Indeed, �[a]s a general rule,
7 Cf. Turner v. State, 771 So. 2d 973, 976 (�9) (Miss. Ct. App. 2000) (�Afficionados
of television lawyer dramas may be under the impression that a new trial is automatically
required when the sole eyewitness to a crime recants condemning testimony. Under
Mississippi law, however, this is not so and for good reason.�).
20
recanted testimony is exceedingly unreliable, and is regarded with suspicion� and
�skepticism.� Howell, 989 So. 2d at 384 (�33) (quotation marks omitted).
�44. In addition, the trial court found that the reasons that Dr. Riddick gave for his changed
opinions were not persuasive. As noted above, the primary reasons that Dr. Riddick gave for
changing his mind were a supposed �long family history of seizure disorder[s]� and the fact
that Bryan allegedly experienced �multiple seizures in the days before his death.� However,
there is little evidence to support any such family history, and what evidence does exist is the
same disputed, inconclusive evidence that was readily available and used in Shelby�s trial.
Nor is there anything else to substantiate that Bryan suffered seizures in the days leading up
to his death. In addition, the trial court noted other significant errors and inconsistencies in
Dr. Riddick�s opinions during the PCR proceedings. See supra �31. Put simply, the trial
court did not clearly err by finding that the reasons for Dr. Riddick�s changed opinions were
unreliable and unpersuasive.
�45. With respect to whether short falls can cause fatal injuries, the testimony at the PCR
hearing was not materially different from the trial testimony. At trial, Dr. Riddick testified,
�It may happen. It is an extraordinary rarity if it does.�8 At the PCR hearing eighteen years
later, he similarly testified, �It�s rare, but it does happen . . . . [I]t is uncommon, but it does
occur.� Dr. Monson and Dr. Ophoven also testified that it is extremely rare for a short fall
8
In addition, Dr. Ioppolo testified that it was uncommon for a short fall to cause a
fatal injury, �but it does happen.�
21
to result in death. Indeed, Dr. Monson made clear that a simple fall from a low bed would
not produce fatal injuries. Rather, he posited that if Bryan was standing up on his bed and
somehow fell directly onto his head, then that could have caused fatal injuries. Thus, in
substance, the testimony at the PCR hearing on this issue was similar to the testimony at trial.
We cannot say that the trial court clearly erred by finding that the new-but-similar testimony
would not probably produce a different verdict.
�46. The trial court also made findings to support its conclusion that Shelby�s experts�
criticisms of �shaken baby syndrome� (SBS) did not warrant a new trial. As the trial court
noted, Dr. Riddick testified at trial that Bryan died as a result of blunt force injuries to his
head caused by an actual impact with some object. At trial, Dr. Riddick was first asked about
SBS on cross-examination, and he testified that blunt force trauma and SBS were �not the
same.� He testified that Bryan �probably� was shaken but that his blunt force injuries were
inflicted when his head was �banged� against something. In addition, Bryan had multiple
bruises in different locations on his head, which were caused by impacts, not shaking alone.
Thus, this case does not involve a victim with no external injuries suggestive of abuse or an
accusation of shaking based solely on internal injuries. No expert who testified at trial or at
the PCR hearing disputed that forcefully banging a child�s head against a hard object can
cause serious brain injury and death.9
9
For this and other reasons, the dissent�s reliance on Clark v. State, No. 2017-KA00411-COA, 2019 WL 5566234 (Miss. Ct. App. Oct. 29, 2019), cert. granted, 293 So. 3d
832 & 833 (Miss. 2020), is misplaced. In Clark, a direct appeal, we held that an expert�s
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�47. In addition, the evidence at the PCR hearing indicated that a majority of practicing
physicians continue to accept SBS or abusive head trauma (AHT) as valid diagnoses. Dr.
Ophoven acknowledged that �there is voluminous literature supporting either side of [the]
debate� regarding the effects of violently shaking a child. She also agreed that �there is a
wide difference of opinion� regarding diagnoses of SBS and AHT. Moreover, the �debate�
and �difference of opinion� regarding SBS and AHT existed at the time of Shelby�s trial.
The weight of opinion may have shifted by a matter of degree in the intervening years, but
as the trial court found, SBS or AHT has not been �debunked� as a diagnosis. To the extent
these issues are relevant in this case�which, again, involves blunt force injuries caused by
an impact, not shaking alone�we cannot say that the trial court clearly erred by finding that
the testimony of Shelby�s experts would not probably produce a different result.
�48. Ultimately, the PCR hearing was a battle of experts. Dr. Benton testified that the
conclusions reflected in the autopsy and Dr. Riddick�s testimony at trial�i.e., that Bryan
died of blunt force injuries caused by intentional abuse�remained correct. Dr. Benton also
testified at the PCR hearing that the multiple bruises on Bryan�s head and Bryan�s fatal
testimony regarding SBS and the timing of the fatal injury was unreliable and should have
been excluded under MississippiRule of Evidence 702. Id. at *10-11 (��46-49). The victim
in Clark allegedly died of injuries caused by shaking alone and �had no external head injury
evidencing an impact.� Id. at *8 (�41). Here, in contrast, Bryan suffered blunt force injuries
from an actual impact, not just shaking. More important, though, in this PCR case we
review the findings of fact and decision rendered by a trial court based on conflicting but
properly admitted expert testimony regarding the cause of the child�s death. The only issue
in this appeal is whether the trial court�s findings and decision are clearly erroneous.
23
injuries were inconsistent with a short fall. In addition, Dr. Benton testified that the allegedbut-undocumented seizure disorder could not account for Bryan�s significant intra-cranial
bleeding. Dr. Benton was a qualified expert witness, and he responded to each of the points
raised by Shelby�s experts.
�49. The trial court considered Dr. Riddick�s new testimony but found that the reasons for
his change of mind were not supported by the evidence. The trial court also considered the
testimony of Shelby�s other experts, but the court found that Dr. Benton persuasively
addressed their contentions and that their testimony as a whole did not undermine the
evidence that supported the conviction. The trial court also found that Dr. Monson�s new
theory of a possible cause of Bryan�s injuries�that Bryan stood straight up in bed in the
middle of the night before falling head-first and unprotected to the floor�would not
probably produce a different result in a new trial.
�50. �When the evidence on a critical point is in conflict, the trial court sits as finder of fact
in a post-conviction relief proceeding.� Henderson, 769 So. 2d at 213 (�8). �When
conflicting evidence capable of more than one reasonable interpretation is presented to the
court, the trial judge, as with any finder of fact, is entitled to determine the credibility of the
witnesses and the weight to afford their testimony.� Dickerson, 291 So. 3d at 353 (�36).
And we will not reverse the trial court�s �finding of ultimate fact� in a PCR case �unless it
is clearly erroneous.� Merritt, 517 So. 2d at 520. Here, the trial court did not commit any
clear error in finding that Shelby�s new evidence would not probably produce a different
24
result in a new trial.

Outcome: Accordingly, the judgment of the trial court denying Shelby�s PCR
motion is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: