Opinion
Case No. 5D18-1277
08-09-2019
Violet Love RAY, Appellant, v. STATE of Florida, Appellee.
Sonya Rudenstine, of Law Office of Sonya Rudenstine, Gainesville, Stephen G. Foresta, Paul F. Rugani, Leena Charlton and Katherine Kinsey, of Orrick, Herrington & Sutcliffe, LLP, New York, NY, and Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
Sonya Rudenstine, of Law Office of Sonya Rudenstine, Gainesville, Stephen G. Foresta, Paul F. Rugani, Leena Charlton and Katherine Kinsey, of Orrick, Herrington & Sutcliffe, LLP, New York, NY, and Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
ROBERSON, E.C., Associate Judge.
Violet Love Ray was convicted of first-degree murder, aggravated child abuse, and child neglect related to the death of her two-year-old daughter. Her conviction was affirmed on direct appeal. Ray v. State , 149 So. 3d 36 (Fla. 5th DCA 2014). We now affirm the denial of her Florida Rule of Criminal Procedure 3.850 motion for postconviction relief entered after an evidentiary hearing.
On the night in question, Ray was home alone with her six children. Around 9:00 p.m., she called her father. Sensing something was amiss, he and Ray's mother went to the Ray household. He found Ray holding her two-year-old daughter in the kitchen. Ray's five-year-old son secretly called 9-1-1 and left the line open, prompting an officer to respond to the Ray household. The family declined the offer to call an ambulance. Tragically, several hours later, Ray's daughter stopped breathing and was rushed by ambulance to the hospital. By that time, she was brain dead and had noticeable bruises on her back, buttocks, and thighs.
The State's theory was that Ray's daughter died from intentionally inflicted head injuries. Ray was represented by three attorneys with over 40 years of experience. Ray's defense was that her daughter fell in the kitchen after her bath, while Ray was giving her other children a bath.
In her rule 3.850 motion, Ray argues that she received ineffective assistance of counsel because the defense did not engage in a highly scientific, medicolegal, battle of the experts. Ray contends, in hindsight, that there were several experts that potentially could have offered opinions contrary to the State's medical examiner, Dr. Lavezzi. We deny the majority of Appellant's arguments without discussion but write, however, to address the concerns raised in the dissent.
These experts include Dr. Janice Ophoven, a pediatric forensic pathologist; Dr. Michael Freeman, an expert in forensic medicine and epidemiology; and Dr. Roland Auer, a neuropathologist and neuroscientist.
During Dr. Lavezzi's trial testimony, the jury was presented with evidence that there were thirteen subgaleal hemorrhages present on the two-year-old's head and that each hemorrhage came from a separate impact. The defense challenged Dr. Lavezzi on the aging process of those bruises, eliciting that the bruises could have been from three or four days prior. Ray's expert, Dr. Willey, testified that bruises do not always involve trauma and could develop from other medical conditions. Dr. Willey conceded that Dr. Lavezzi's opinion regarding 13 separate impacts was not consistent with a single fall. Instead, Dr. Willey suggested that the bruises were consistent with other medical conditions or an impact, that the bruises could have happened at different times, and that it was difficult to determine the age of the bruises.
At the postconviction hearing, Dr. Willey disagreed with Dr. Lavezzi's trial testimony because he did not "believe that there are thirteen discrete things that indicate thirteen distinct contact injuries." When asked how he would have responded to Dr. Lavezzi's testimony about the victim's head trauma, Dr. Willey stated:
Well, the premise of the question is faulty because the hemorrhages that are described are not necessarily all due to trauma, in fact, it's reasonable to assume most of them are not, they're very small or trivial. The number is overwhelming, there are 20 with various subsets, three to four each. I'm sure that's a substantial number, which is misleading because they're not that many injuries, in fact, most of them are probably not due to injury, they're hemorrhages, which are described. And there are other explanations for hemorrhages than traumatic injury.
But, in fact, Dr. Willey was asked to respond to Dr. Lavezzi's opinions during the trial itself. Specifically, he was asked:
Q. And were you aware of Dr. Lavezzi's opinion–and by that, I mean her conclusions of–subsequent to the autopsy?
A. Yes.
Q. And after review of all of the materials that you've indicated do you agree with her conclusions?
A. Well, I can't disprove her conclusion, but I think that she omits the likelihood that this could actually be an accidental injury.
....
Q. And Dr. Lavezzi concluded in her report that there were 13 points of impact on [the victim's] head. Is that consistent with a single fall?
A. Doesn't sound like it, no.
Q. Okay.
A. The major injury on the head, to my way of thinking, is a big hemorrhage under the galea, which is part of the scalp on the top and back of the head, very close to the top of the head.
Q. So if there were points of hemorrhage that you could count up, would that be consistent with a finding of impact, or abuse, or simply in conjunction with what you've told us already?
A. Well, it could be either. It could be [a medical condition], or it could be impact. And it doesn't have to be impact all at one time. And you can't age bruises effectively, you can't look at one and say how old it is.
A defendant alleging ineffective assistance of counsel must show that counsel's performance was both deficient and prejudicial. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A deficient performance is one that falls below the standard guaranteed by the Sixth Amendment. Id. Prejudice, on the other hand, means that the defendant was deprived of a fair trial. Id. at 689, 104 S.Ct. 2052. Prejudice requires a reasonable probability that "but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. There is a strong presumption that trial counsel's performance was not deficient. See Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ; see also Johnston v. State , 63 So. 3d 730, 737 (Fla. 2011). Indeed, trial counsel's performance is given great deference and the defendant must "overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ " Strickland , 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ). Strategic decisions do not constitute ineffective assistance of counsel, Occhicone v. State , 768 So. 2d 1037, 1048 (Fla. 2000), and counsel is entitled to great latitude in making strategic decisions. Dufour v. State , 905 So. 2d 42, 56 (Fla. 2005).
If a defendant fails to establish one prong of the Strickland standard, there is no need for the court to examine whether she made a showing as to the other prong. See Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ("[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); see also Downs v. State , 740 So. 2d 506, 518 n.19 (Fla. 1999) (finding no need to address prejudice prong where defendant failed to establish deficient performance prong); Kennedy v. State , 547 So. 2d 912, 914 (Fla. 1989) (noting that where defendant fails to establish prejudice prong court need not determine whether counsel's performance was deficient). In this case, Ray failed to establish that trial counsel's performance was deficient. As such, there is no need for this court to analyze Strickland 's prejudice prong.
We hold that trial counsel's performance was not deficient for two reasons. First, the decision to go with a straightforward causation defense, as opposed to a scientific "battle of the experts," was a reasonable trial strategy. In making that decision, Ray's counsel consulted with Dr. Willey and discussed the State's theory of thirteen separate impacts. Specifically, trial counsel recalled that:
Dr. Willey testified that they were trivial, and that they had no connection at all to the fatality. And when I met with him and we discussed this case, his opinion was that those very small indicators really–again, the term he used was trivial, because I remember I was surprised–and that they could have been spontaneous. They didn't need to be a result of trauma, inflicted trauma.
This is a reasonable strategy and one that coincided with the defense's theory at trial.
Second, a defense strategy challenging Dr. Lavezzi's opinion of thirteen separate impacts potentially could have opened the door to some of the most damning testimony imaginable. Although not well developed in the record, during the investigation of this case, another one of Ray's children "describe[d] a period of time where Violet Ray was slamming [the victim's] head into the back of a sink." Counsel cannot be faulted or second-guessed for avoiding the possibility of this testimony being put before the jury.
AFFIRMED.
GROSSHANS, J., concurs.
COHEN, J., dissents with opinion.
COHEN, J., dissenting.
I would reverse the order denying Ray's Florida Rule of Criminal Procedure 3.850 motion for postconviction relief entered after an evidentiary hearing.
Many of Ray's arguments in her first claim revolved around counsel's cross-examination of the medical examiner, Dr. Lavezzi. At trial, Dr. Lavezzi testified that she identified thirteen subgaleal hemorrhages on the victim's head and opined that each hemorrhage demonstrated a separate point of impact. On cross-examination, Dr. Lavezzi reiterated her opinion that the hemorrhages were bruises under the victim's scalp, which occurred from multiple impacts. Counsel questioned Dr. Lavezzi regarding the aging process of the bruises but made little effort to challenge the alleged thirteen separate impacts, which in my view, was critical to the State's case.
Ray's other claims were that trial counsel was ineffective for failing to: present an alternative timeline; offer reverse Williams rule evidence; use one of its expert witnesses effectively; engage the right experts to address the forensic and medical issues; offer evidence of her peaceful and non-violent character; guard against prejudice resulting from a photograph displayed in the courthouse; and object to the introduction of autopsy photographs. I find no error in the court's denial of these claims.
Dr. Willey, the defense's expert in pathology and forensic medicine, testified that a bruise does not necessarily imply trauma. However, when counsel asked Dr. Willey whether Dr. Lavezzi's conclusion regarding the thirteen points of impact on the victim's head was consistent with a single fall, Dr. Willey responded, "Doesn't sound like it, no." In eliciting that answer, counsel effectively eviscerated Ray's own theory of defense.
He then stated that the hemorrhages could have been caused by impact or by the victim's disseminated intravascular coagulation, a condition which affects clotting. However, counsel did not explore this statement further.
Further, Dr. Willey's response contradicted the testimony of the defense's other expert witness, Dr. Lloyd, an expert in ergonomics and biomechanics. Dr. Lloyd presented the results of an experiment, which demonstrated that the victim's fatal injury could have occurred from a single fall.
The evidence submitted at the hearing on Ray's motion for postconviction relief raised serious doubts about Dr. Lavezzi's conclusion that the victim suffered thirteen separate impacts to her head. Additionally, at the hearing, Dr. Willey testified that had counsel asked him during trial, he would have disagreed with Dr. Lavezzi's testimony that the victim suffered thirteen contact injuries.
In my view, the failure to challenge Dr. Lavezzi's testimony constituted ineffective assistance of counsel. I would reverse and remand for a new trial.