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Ray v. State

Florida Court of Appeals, Fifth District

August 9, 2019



          3.850 Appeal from the Circuit Court for Marion County, Willard Pope, Judge.

          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.


         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.[1] We deny the majority of Appellant's arguments without discussion but write, however, to address the concerns raised in the dissent.

         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 opinionꟷand by that, I mean her conclusions ...

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