Evidentiary Hearing Day 2, 2011 Killing of Reynaldo Muñoz

Munoz vs.
Davis
December 29, 2014

170
IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 11-037237 CA 23
REYNALDO MUNOZ, SR., as surviving father
and as Personal Representative of the Estate
of REYNALDO MUNOZ, JR., and CARIDAD LOPEZ,
as surviving mother,
Plaintiffs,
vs.
JEFFREY DAVIS, individually and as parent
of minor child, JACK DAVIS, and YASMINE
DAVIS, individually and as parent of minor
child, JACK DAVIS,
Defendants.
____________________________________________/
73 West Flagler Street,
Miami, Florida,
Monday, 1:30 p.m.,
December 29, 2014.
The hearing in the above-entitled cause resume
before The Honorable Stanford Blake, Circuit Court
Judge, after the luncheon recess.
APPEARANCES:
ROBERTS & DURKEE, P.A., by
DAVID DURKEE, Esquire,
and
ALVAREZ RODRIGUEZ, by
JUAN L. ALVAREZ, Esquire,
and
JOEL S. PERWIN, P.A., by
JOEL S. PERWIN, Esquire,
Attorneys for Plaintiffs.
www.taylorjonovic.com
Taylor, Jonovic, White, Gendron & Kircher-Echarte

Florida Realtime Reporting
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1
2
3
APPEARANCES CONTINUED:
LAW OFFICES OF KUBICKI, DRAPER, by
PETER H. MURPHY, Esquire, and
WILLIAM BISSETT, Esquire,
Attorneys for Defendants.
4
5
THE MCGRANE LAW FIRM, by

MILES A. MCGRANE, Esquire,
Attorney for Jack Davis.
ALSO PRESENT:
Yasmine Davis
Jeffrey Davis, Esq.
Jack Davis.
7
8
INDEX
9
10
11
12
WITNESS
CROSS
REDIRECT
Detective Nye-Gonzalez
(By Mr. Murphy)
216
(By Mr. Durkee)
172 (Continued)
RECROSS
221
13
14
15
16
WITNESS
DIRECT
Dr. Julian Munoz-Diaz
(By Mr. Durkee)
228
(By Mr. Murphy)
CROSS
REDIRECT
237
17
18
19
20
WITNESS
Dr. Ronald Wright
(By Mr. Durkee)
(By Mr. Murphy)
DIRECT
CROSS
242
REDIRECT
276
255
21
WITNESS
DIRECT
CROSS
REDIRECT
22
Wayne Williams
23
24
(By Mr. Durkee)

(By Mr. Murphy)
284
295
293
25

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THE COURT:
MR. DURKEE:
THE COURT:
Yes.
DETECTIVE NYE-GONZALEZ
resumed.
CROSS EXAMINATION CONTINUED
7
8
May I proceed, Your Honor?
Thereupon:
5
6
Thank you everyone.
BY MR. DURKEE:
Q.
Good afternoon, Detective.
10
A.
Good afternoon.
11
Q.
First of all, to go back just for a
12
moment, I just want to make sure we are clear
13
because we kind of got caught up with what the exact
14
language was, but at the time that you, quote,
15
"suspected that no crime has been committed" maybe
16
in the first hour or two of your investigation, the
17
only evidence you had was Jasmine's statement,
18
correct?
19
A.
No.
20
Q.
What else did you have?
21
A.
Well, I talked to the officers.
I had
22
been through the back of the residence, several
23
things had transpired.
24
25
Q.
But what specifically were you relying on
to form a conclusion within the first hour or two


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that, quote, "you suspected that no crime had been
committed," other than the statement that we talked
about because I want to list them specifically, not
just walking around the premises?

When you walked around the premises, what
5
6
evidence did you perceive or see that led you to
this conclusion that you suspected that no crime had
been committed?
A.
Well, I was there to conduct a death
10
investigation and that's what I was doing.
11
with the officer who had already spoken to Ms.
12
Davis, took that into consideration.
13
was, at that point what I thought was an armed
14
burglary and a family defending themselves.
15
16
17
Q.
Right.
What I had
So the only thing you had at that
point was Jasmine's statement, correct?

A.
Well, like I said, I walked through.
18
had been to the back.
19
information that I was told at that time.
20
don't know if I can list thing by thing.
21
absorbing information.
22
hearing.
23
I spoke
Q.
I was absorbing all of the

So I
I'm
I am looking around.
I am
I am talking.
Well, other than absorbing things by
24
osmosis, but if you would for the Court, please list
25
any -- and you can list anything.

I don't care if

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you list them all or one or two, but I know we
talked about Jasmine's statement, what else were you
relying on?
specifically that you were relying on to come up
with the conclusion that, quote, unquote, "You
suspected that no crime had been committed"?

A.
Can you tell this Court anything else
Then I guess we are going to have to go
through my report and I can tell you the things I
did and the steps that I took.
10
I'm not sure there
is another way.
11
Q.
Okay.
12
A.
Okay?
So initially I get a phone call, or
13
I am told by another detective who received a phone
14
call what we were responding to.
15
that.
16
absorbed that.
17
So I absorbed
I don't think it was by osmosis, but I
Q.
What about that first conversation or
18
first information that you derived from that that
19
you relied on to come up with a conclusion that,
20
quote, unquote, "You suspected that no crime had
21
been committed"?
22
A.
Well, I was told that a male was stealing
23
a wave runner from the residence and was shot by the
24
homeowner.
25
Q.
Later -So that statement there that is something

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you relied on?
A.
Well, of course, Mr. Durkee.
Q.
Okay.
A.
Everything that I did, all the things that
That's one statement.
I heard, everyone that I talked to, anything that I
saw, I relied upon.
Q.
Of course.
A.
And I still rely upon today.
Q.
Of course.
10
11
figure out.
A.
And that's what I'm trying to
You said within the first --
No, I didn't say within the first
12
anything.
13
first.
14
was conducting a death investigation.
15
was doing.
16
Q.
You are the one that said within the
Now you give a time slot.
When I arrived, I
That's what I
Ma'am, I am not trying to bicker with you.
17
What I am trying to say is you told me -- I think
18
that is how it played out.
19
the premises, Jack left the premises with his
20
father, which I think we've established was within
21
the first hour or so of the investigation, you told
22
this Court that at that time when he left the
23
premises, you didn't think it was that big of a deal
24
because he was a witness at that point, he wasn't a
25
suspect.
I said that when he left

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A.
Well, let's stop right there because I
didn't know that he left until after he left and
came back.
any determinations at that time.

Q.
So I didn't know that.
So I didn't make
I'm not trying to put words in your mouth.
We can go back to the transcript because I marked
it.
didn't create this.
said, "When he left the scene, he was a witness to a
You were the one who volunteered to me.
I didn't talk about this.
10
crime," and you said to us, "No, I don't think he
11
was a witness or a suspect or anything else because
12
at that time I didn't suspect that any crime had
13
been committed."
That is what you said.
14
So what I am
15
trying to find out is when he left the crime scene
16
with his father, unaccompanied by any police
17
officers, and you had formed that belief in your
18
head, not me, that you had suspected that no crime
19
had been committed, what I am trying to figure out
20
is what are the pieces of evidence that you were
21
relying on to form that conclusion so early in the
22
case?
I mean, you understand how an
23
24
investigation goes.
25
evidence.
You go out and you gather
You gather all of the evidence and then

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form conclusions.
You have done that in front of
the Court and you have done that today.

You were the one that told us that when he
3
4
left the premises, that he was a witness or a
suspect because you had said, quote, unquote, "You
suspected that no crime had been committed."

So now I'm trying to find out, at that
7
8
time you made that conclusion, what evidence -- and
you understand evidence, right?
10
A.
Excuse me?
11
Q.
Do you understand evidence?
12
A.
Do I understand evidence?
13
Q.
Do you understand that you're supposed to
14
gather evidence during an investigation?
15
A.
I believe I do, Mr. Durkee.
16
Q.
So I think it's a simple question.
When
17
you made that conclusion that you had suspected that
18
no crime had been committed, what evidence were you
19
relying on to make that conclusion?
20
A.
What I was relying on was the information
21
I had received from the other officers, from the
22
other -- all the other officers on the scene, from
23
the statement that was given to the other officer
24
which was then translated to me, what I saw when I
25
walked around the premises.

That's what I was

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1
2
relying on.
Q.
Let's take each one of those things.
The
statements that had been provided to you up until
that point by the other officers really was that
Jasmine had given a statement and that was
communicated to you, correct?
A.
That's one of the things, Yes.
Q.
You had not reviewed the 911 tape at that
9
10
point, correct?
A.
I don't know what point I reviewed it.
11
can look at my notes and see, but I did review the
12
911 tape.
13
Q.
Right, that was later on.
14
A.
Do you want me to look at that?
15
Q.
That was later on.
16
That was at 5:55 p.m.
It's on Page 6.
But sometime before that is when the folks
17
18
came back and you confronted Mr. Davis about the
19
fact that you guys had suspected that his son was
20
the shooter.
21
A.
Okay.
22
Q.
So if you look at it chronologically, you
That's on Page 4.
23
didn't review the 911 tape at that point.
24
saying is, other than talking to Officer -- because
25
you did write this chronologically.

What I am
I mean, it

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seems like chronologically by the time you
confronted Jeffrey Davis and his son, that you
suspected that his son had been the shooter.
only thing that you really had done is talk to
Officer Zabielinsky and taken the call back at the
office that there was a robbery and somebody got
shot?
8
9
A.
The
Well, Mr. Durkee, if you want to read on
Page 4, it says Sergeant Malott is the one that
10
advised Mr. Davis that there was a suspicion that
11
Jack was the one who shot the firearm.
12
advise him.
13
14
Q.
I didn't
Yes, but he had already gone off the
premises at that point, correct?
15
A.
I believe so.
16
Q.
Right.
17
A.
It was accidentally omitted from my
18
report.
19
time and Sergeant Malott would have to answer to the
20
times.
21
Q.
I don't see it here.
So I don't know the
Right, because it's not mentioned anywhere
22
in your investigative report that you allowed the
23
shooter to go off the premises with his father, a
24
lawyer, and get consulted and came back to the
25
premises.
That's nowhere in your report, right?

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A.
It is not in my report, but Jack and his
father left the scene.
is correct.
allow anyone to do that.
Q.
It's not in my report.
It was accidentally omitted.
That
I didn't
So I am correct to say at that point there
was no physical evidence that you gathered that you
relied on, correct?
8
9
A.
Mr. Durkee, I'm having a difficult time
understanding what it is that you're trying to get
10
from me.
11
went there.
12
I didn't -- I didn't allow Jack to leave.
13
answer to that.
14
15
16
17
18
Q.
I told you that I was dispatched there.

I am conducting a death investigation.
I can't
Right, but you were the lead investigator,
correct?
A.
Under my supervisor, Sergeant Malott, that
is correct.
Q.
And very early in the case, very early in
19
the case you as the lead investigator had come to
20
the conclusion that you told us here in Court that
21
you, quote, unquote, "suspected that no crime had
22
been committed"?
23
A.
That's correct.
24
Q.
What I am trying to find out, and I think
25
it's a legitimate inquiry, is other than the


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statement by Jasmine Davis to Officer Zabielinsky,
what other objective evidence were you relying on to
make that conclusion?
scene and seeing a body that's on the ground, other
than walking around the scene and seeing a wave
runner, other than walking around the scene and
seeing a shotgun on the table, other than walking
around the scene seeing Jasmine sitting out in the
backyard, other than walking the scene and seeing
10
police tape, other than walking around and seeing
11
other police officers walking around, in your mind
12
what were the items of evidence that you were
13
relying on to come up with the conclusion that you
14
suspected that no crime had been committed early on
15
in this investigation?
16
17
A.
Other than walking around the
As I've told you before, all of the
information that I had up until that point.
18
Q.
Where should I cut that cutoff on your
19
report?
20
I find that?
21
A.
When you say, "up to that point," where do
I don't know.
You're the one who is
22
determining there is a point.
I'm not sure.
23
determining there is a point.
You said there was an
24
hour or two hours.
25
really sure what you're -- that there was a time

I'm not really sure.

You're
I'm not
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marker.
death investigation and that's what I did.
3
4
Q.
I responded to this scene to conduct a
You are supposed to follow the evidence,
right?
A.
I conducted a death investigation.
Q.
Wait a minute.
A.
Of course we follow the evidence.
Q.
Now, you told me that Jeffrey Davis and
I'm asking you a question.
his son had gone off the premises and then when they
10
came back, that's when you or, better, Sergeant
11
Malott had confronted Jeffrey and Jack with the
12
information that you suspected Jack was the shooter,
13
correct?
We've established that, right?
14
A.
That we suspected, yes, that is correct.
15
Q.
So I think we now have a time stamp.
We
16
know that when you confronted Jeffrey and Jack with
17
your suspicions, they had already been off the
18
premises, correct?
19
A.
I believe so, yes.
20
Q.
And I think on your report we have that at
21
about -- sometime between 4:45 and 4:50 when the
22
media relations people showed up, right?
23
to your chronology in your report, correct?
According
24
A.
That is correct.
25
Q.
So you arrived on the scene at 4:00,

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correct?
A.
That is correct.
Q.
And after you arrive on the scene -- first
of all, you had gotten a call to advise you what was
going on and to go to the scene.
that happened with you.
Officer Zabielinsky and he told you what Jasmine had
told him.
noted that.
That was something
And then you talked to
There was fire rescue on the scene.
You
You had gone and conducted a
10
walk-through of the rear of the residence.
11
introduce yourself to Jasmine.
You
And then eventually, after 4:45 but before
12
13
4:50, you guys confronted Mr. Davis and Jack that
14
you felt that he had been the shooter.
15
right?
16
A.
That's right.
17
Q.
So that was the extent of your
18
Is that
investigation up to that point, right?
19
A.
20
Q.
Up to that point, yes.

Now, once Mr. Davis was confronted with
21
this information, he told you that from that point
22
forward, his criminal lawyer, Ms. Ratzan, would
23
speak for the family, correct?
24
25
A.
He didn't tell me.
He told Sergeant
Malott that Ms. Ratzan will be representing and


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speaking on their behalf.

Q.
2
3
In your vernacular, that's basically
called lawyering it up, right?
A.
I guess you could say that.
Q.
Have you heard that term before?
A.
I have.
Q.
And that's when a criminal defendant says,
"I'm not talking to you any further.
to my lawyer," right?
10
I want to talk
That's what it means by
lawyering it up, right?

A.
11
I guess you could give it that connotation
12
or you could just say, "I have a lawyer who is going
13
to be representing me."
14
time.
15
Q.
People get lawyers all the
After Mr. Davis, who is a lawyer, told you
16
that, you knew you could not interview Jasmine or
17
Jack until the lawyer got there and you had to talk
18
through the lawyer.
19
20
21
A.
Is that right?
That is correct.
She was going to be
making a statement.
Q.
Now, at that point you had Ms. Davis's
22
statement that she fired a weapon, and you had
23
reasonable suspicion to believe based on the wound
24
to Jack's face, and maybe some other collateral
25
evidence, that Jack was in fact the shooter.


So you
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had two possible scenarios.
You had the fact that
Jasmine may have shot, Mrs. Davis, or you had this
minor child, Jack, who could have fired the weapon.
You had two conflicting versions at that point.
suspected Jack, but you also had this verbal
statement that Jasmine had fired the weapon.

So at that point there are tests to
7
8
determine definitely if somebody shot a weapon.
that true?
A.
10
11
You
Is
Not definitely, but there are gunshot
residue tests that can be administered, yes.

Q.
12
And that's something that's regular course
13
of business, if you want to determine -- that is the
14
test that you try and administer to try to determine
15
who shot the weapon, correct?
16
A.
That is one of the tests, yes.
17
Q.
And you never did that in this case,
18
right?
19
20
21
A.
A gunshot residue test was not conducted,
Q.
And as the lead detective, if you wanted
no.
22
to fight for a gun residue test, you could have
23
fought for that, correct?
24
25
A.
Well, I had an Assistant State Attorney
there and we discussed it and we decided that it was


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1
2
not going to happen.

Q.
Did you feel that was the appropriate
thing to do, not to do a gunshot residue test?
that your decision or did you just defer to the
State Attorney?
A.
Was
I think it was more of a group decision
and the Davis family declined and we accepted that
we aren't going to do gunshot residue.
9
10
Q.
It wasn't that you totally did not
consider it, the family actually refused to do it?
11
A.
They declined, yes.
12
Q.
Who declined that on behalf of the family,
13
wasn't that Jeff Davis?
14
A.
I will have to look at my notes.
15
Q.
Anyway, they refused, correct?
16
A.
Yes.
17
Q.
Now, also you were operating under the
18
belief based on this statement that you had derived
19
from Officer Zabielinsky that Jasmine Davis had
20
proffered to him that there was a gun involved,
21
correct?
22
23
24
25
A.
I'm sorry, you will have to say that
again.
Q.
Based on the statement that you had
gathered from Officer Zabielinsky that came from


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Jasmine Davis, you believed that the person that was
there trying to steal the wave runner possibly had a
gun.
Is that true?
A.
Yes.
Q.
And, in fact, you requested police divers
to the scene, I think it was about 4:55, about an
hour after you got there to start looking for a gun,
correct?
A.
That is correct.
They were called.
10
Q.
And the reason you're looking for a gun
11
that Mr. Reynaldo Munoz, Jr. may or may not have had
12
is that would have been a very important piece of
13
evidence.
14
fellow because he had a gun, you obviously wanted to
15
try and find that gun to see whether you could
16
support their story or not, correct?

A.
17
18
If the family is saying I shot this
Yes, we wanted to find it if we could find
it, yeah.
19
Q.
You never found it, did you?
20
A.
No, we did not find a gun.
21
Q.
In fact, when the statement was proffered
22
through the attorney, there was no proffer that the
23
gun may be inside of the front compartment.
24
true?
25
A.
Is that
I would have to look back at the

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statement.
4
5
I can look at it, though.
No, that is not in the initial statement
2
3
I'm not sure.
from Attorney Ratzan.

Q.
So at that point, nobody really told you
to look in the front compartment for a gun, correct?
A.
At that point, no.
Q.
At this point, based on your analysis of
the evidence and with your experience, you would
agree with me that more likely than not he never had
10
a gun and it was really, if anything, this receiver
11
device that she may have perceived to be a gun.
12
that right?
13
A.
I believe that now, yes.
14
Q.
Now that we are on the proffer, the
Is
15
proffer that was made and that was supposedly coming
16
from Jasmine Davis was the following, that she was
17
inside of the residence with her children.
18
observed a man near a storage closet in the rear of
19
her residence.
20
yelling as she called 911.
She
She approached the man and began

Is that right?
21
A.
That's correct so far.
22
Q.
At that time, she told Jack, her son, to
23
get the gun which is kept under the master bed,
24
right?
25
A.
So far so good?
So far so good.
You're reading it.

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1
2
Q.
Jasmine then told the man that she had a
gun and in response the man said he had a gun, too.

When Jack came outside with the gun, he
3
4
shot the man.
lied about it and at this time -- I'm not reading it
precisely, but eventually she also told you at this
time there was possibly another -- a second man on a
wave runner circling the area, correct?
A.
Jasmine admitted that she originally
You're reading it.
You're leaving out
10
some parts but, yeah, you're reading it.
11
exactly what it says.
12
Q.
That's
In that proffer she never told the police
13
that she thought the man was dropping off a boat,
14
correct?
15
16
17
A.
You just read it.
Nope, it doesn't say
anything about that.

Q.
And you agree with me that, if anything,
18
her fear derived from the fact that the guy said he
19
had a gun, too, correct?
20
A.
No, I wouldn't agree with you on that.
21
Q.
In that proffer does she ever say she saw
22
a gun?
23
A.
I don't believe it says that, no.
24
Q.
And we talked about it, she never stated
25
in that proffer that the perceived gun was inside of


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the front compartment, correct?
about that.
3
4
5
A.
We already talked
Again, Mr. Durkee, you read it and it
didn't say anything about that.

Q.
Ma'am, I am not trying to aggravate you.
You sound like you're getting aggravated.
trying to do my job just like you're trying to do
your job, okay?
9
10
11
12
A.
I am just
I'm just referring back to the fact that
you read it and -Q.
You don't need to be smart with me.
I am
just trying to do my job, okay?
13
A.
Okay.
So am I.
14
Q.
Exactly.
At that time, Attorney Ratzan also advised
15
16
you that the family was not going to cooperate any
17
further because, A, they were to distraught to be
18
interviewed and, B, they needed to study for finals,
19
right?
20
A.
She said that the family is to distraught
21
to be interviewed at that time and the children were
22
preparing for their finals, thus we agreed to meet
23
at a later date.
24
25
Q.
And, in fact, the family and Attorney
Ratzan had agreed to meet with you the following


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Monday, which would have been two days after the
shooting, to come down and give their statements,
correct?
A.
That was the date on the 23rd, yes.
Q.
That was the plan, right?
A.
Yes, that was the plan.
Q.
But that plan didn't get effectuated
8
9
10
11
12
because they never showed up, right?

A.
It was canceled.
I believe they spoke
with Sergeant Malott and it was canceled.

Q.
In fact, you never took Mrs. Davis's
statement until months later.
Is that correct?
13
A.
That's correct.
14
Q.
And you didn't take Jack Davis's statement
15
until November, which was six months after the
16
incident, correct?
17
A.
That's correct.
18
Q.
And one of the reasons you didn't -- I
19
think you said on direct, one of the reasons you
20
didn't push to have Jack give a statement was
21
because the kids had finals and you had to make
22
accommodations, right?
23
A.
I don't recall saying that.
24
Q.
Do you remember back in your deposition
25
you said the two kids had finals and the family was

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distraught or something like that?

A.
2
3
Okay, yes.
That's what it says here.
That's why we didn't interview them that day.

Q.
So you were delaying your homicide
investigation to take the statement of the person
who fired the weapon because these kids had to take
some tests?
A.
8
9
I wasn't delaying a death investigation.
It didn't delay the investigation.
10
take a very long time.
11
time.
12
Sometimes there is a delay.
13
investigation.
14
Investigations
This happens all of the
Things don't happen day after day after day.
Q.
It's a death
On a homicide investigation for a person
15
who lives here in Miami, is not out of town, who is
16
available 24/7, it's typical to wait six months to
17
go and try to interview the alleged shooter?
18
19
20
A.
It's typical that sometimes that happens
that we don't interview them right away, yes.

Q.
What was the compelling necessity other
21
than school tests to wait six months before you
22
tried to take his statement?
23
A.
That's when it worked out, Mr. Durkee.
24
spoke.
There were other dates.
25
canceled.
We
The first date was
I'm not sure if we tried to reschedule.

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I was speaking with the attorneys and those were the
dates we ended up with.
Other things were happening.
Q.
I had several other cases.
Now, another thing you could have done at
the time of the -- the day of the investigation, the
day of the shooting, was to take possession of the
wave runner which was really part of this whole
scenario, correct?
A.
We could have done that, yes.
10
Q.
You could have impounded it, right?
11
A.
We could have, yes.
12
Q.
And you didn't do that?
13
A.
No, we decided not to.
14
Q.
And that's because you didn't feel like it
15
had any evidentiary value at that point, correct?
16
mean, evidence is kept in a very strict chain of
17
custody, et cetera, et cetera.
18
must have discounted the wave runner as having any
19
evidentiary value, correct?
20
A.
At that point you
No, we photographed it and processed it to
21
the best of our ability and all of the pertinent
22
things that we thought we needed from it and we
23
decided not to impound it.
24
25
Q.
Now, eventually several weeks later, they
found this black device inside the guts of the wave


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runner, right?
A.
That's correct.
Q.
And they found that the front compartment
door had been broken down or ripped off.
that was the phrase they used, ripped off.
6
7
8
9
10
11
A.
I'm not sure about the phrase.
I think
It had
been tampered with.

Q.
And once that was brought to your
attention by Mr. Davis, you went to his office and

secured the black device first, right?
A.
I would have to look at my chain of
12
events, but if that's what you say, I went there
13
first, okay.
14
and then subsequently I interviewed the gentleman
15
who found it at the Jet Ski shop.
16
Q.
I know I retrieved the box from him
And then you went to the Jet Ski shop and
17
you took a series of photographs with the front
18
compartment open and you documented the fact that
19
the back panel had been ripped off and you
20
documented these devices with their female and male
21
receptacles of how it worked.
22
A.
Is that right?
The crime scene detective is the one who
23
takes pictures and writes the reports on that, but I
24
was there and I observed it.
25
Q.
Right, that was something that was part of

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your investigation as the lead detective?
A.
Right, I observed that.
Q.
And that was the first time any of that
had been documented as far as black boxes, the
receptors inside the wave runner, the panel being
broken off, and everything else, correct?
A.
I don't think it was obvious that the
panel had been broken when we first took
photographs, but at that point, yes, it was obvious,
10
you know, we saw the black box and that the panel
11
had been tampered with.
12
Q.
You thought that was important to document
13
that, right, because that's why you went out to the
14
wave runner shop and photographed it with crime
15
scene investigators, right?
16
A.
Yes.
17
Q.
Now, prior to the black box being found
18
and, you know, it's chronological in your report,
19
you conducted a canvas of the area, is that right,
20
of the home where the shooting occurred, right?
21
A.
Can you tell me which page we are on?
22
Q.
It is on Page 18.
23
A.
So you're referring to May 24th?
24
Q.
That is correct.
25
A.
The area canvas, yes.

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Q.
And then if you look at the second page on
that same day, at approximately 11:00 a.m., you made
contact with Mr. Davis in front of his residence,
correct?
A.
That's correct.
Q.
And he brought you into his backyard and
showed you that there was a lanyard attached to his
wave runner that was not his, right?
A.
That's correct.
10
Q.
That lanyard had not been retrieved by you
11
or your investigative team on the day of the
12
shooting, correct?
13
A.
That's correct.
14
Q.
And that was a foreign lanyard and
15
Mr. Davis actually took you around the back of the
16
house and made sure you preserved it as evidence,
17
right?
A.
18
Right, but we didn't know it was foreign
19
until then.
20
time.
21
Q.
We didn't know it was foreign at that
Right, Mr. Davis was the one that brought
22
that to your attention on this date a few days later
23
on May 24th, right?
24
A.
That is correct.
25
Q.
Now, at that time, did Mr. Davis ever tell

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you that the front compartment may likely be a place
where the firearm was or the gun?
3
4
5
A.
I don't think he told me that at that
Q.
And then subsequent to that is when you
time.
went to Mr. Davis's office.
I believe it was on
June 2nd.
and continues to the next page all the way down to
4:00 p.m. on that date.
If you go to Page 21, it starts June 2nd,
That's when he provided to
10
you this black box and then eventually you followed
11
up with Wayne Williams, correct?
12
A.
That's correct.
13
Q.
At that time when he gave you the black
14
box, did he tell you that it was likely that may
15
have been what was suspected to be the gun?
16
A.
No.
17
Q.
Now, on July 22, 2011 is when you were
18
19
20
finally able to interview Jasmine Davis, correct?

A.
July 22nd.
It sounds right.
I would have
to look through and verify the date, but --
21
THE COURT:
22
MR. DURKEE:
What was the year?

2011.
July 22, 2011.
23
A.
July 22nd, yes, 2011.
24
Q.
And you would agree with me that
25
chronologically that was after the black box had


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been discovered in the front compartment by
Mr. Davis, correct?
A.
Yes.
That occurred after, yes.
Q.
And it was also after it was discovered
that Reynaldo was deaf and had a profoundly hard
time making noise, correct?
A.
I'm sorry, say that again.
Q.
That was also after it was common
9
10
11
knowledge, newspapers, et cetera, that Reynaldo was

deaf and mute, correct?
A.
I knew that.
I don't know if it was in
12
the newspapers or common knowledge, but I knew that
13
he was -- he was deaf but he could make noises and
14
sounds and words.
15
Q.
This was the first time that anybody had
16
told you that there was something that looked like a
17
gun that had been placed in the front compartment of
18
the wave runner, correct?
19
20
21
A.
I believe so.
From Mrs. Davis's
interview, I believe so.

Q.
And this is the first time anyone told you
22
he was reaching in the front compartment when he was
23
shot, correct?
24
A.
That was her statement, yes.
25
Q.
Now, she told you in her statement that

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she recalled telling the officers that the man had a
gun and to look for a gun, correct?
A.
That is correct.
Q.
Did you ever ask her, "Ma'am, why didn't
5
6
7
you tell us that it was in the front compartment"?

A.
I don't know if I asked her that specific
question, but she explained that in her interview.
Q.
How did she explain that?
A.
Well, she explained that she saw him lean
10
forward putting something in the front compartment,
11
which she believed to be the gun that he was holding
12
in his hands, and then he again leaned in the front
13
compartment, which is why she thought he was going
14
to shoot her.
15
Q.
Right, which it would seem that her, more
16
than anybody else in the whole world, would want
17
somebody to look in that front compartment and look
18
for the gun, right?
19
was causing her the fear to shoot somebody in the
20
head had derived from, was this front compartment
21
that supposedly in her mind contained a gun.
22
I mean, that's the thing that
Now, she told you in her statement that
23
she recalled telling the officers that he had a gun
24
and that they should look for it.
25
you tell her, "Ma'am, why didn't you tell us to look

But why didn't

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in the front compartment?"
A.
Why didn't I say that to her?
Q.
Yes, I mean, that would seem logical.
"Ma'am, you were at the scene.
We are here with the
police officers.
standing right next to you.
statements.
exculpatory, that proves you justified in shooting
this fellow, is the gun."
You have a criminal defense lawyer

You're proffering
The one piece of evidence that is
Why wouldn't she, among all the people
10
11
that were out there, would want to find that gun?
12
You had suba divers looking all around the water
13
looking for it.
14
didn't you tell me the gun was in the front
15
compartment?
I was standing right there."
MR. MURPHY:
16
17
Why didn't you ask her, "Ma'am, why
Objection, Judge,
argumentative.
THE COURT:
18
Overruled.
19
Q.
You don't have an answer to that?
20
A.
No, no, no.
The way you're animated, I
21
don't know, I'm just not like that.
22
why I didn't tell her, ma'am, I can't believe you
23
didn't tell me.
24
25
Q.
So I don't know
That's not how I spoke to her.
Now, also at that point, because we know
Reynaldo was deaf and mute, the story changed a


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little bit from her first statement.
statement was, "I said I had a gun" and he
responded, "I have a gun, too."

Now her statement says he's only saying
4
5
Her first
one word, "gun."

A.
Is that right?
I don't know that her statement ever was
that he stated, "I have a gun, too."
that.
had what she believed was a gun in his hands.
10
I don't know
She told me that he said, "gun," and that he
Q.
Well, in Attorney Ratzan's proffer to you
11
at the scene, she proffered to you on behalf of Ms.
12
Jasmine Davis the following quote, "Jasmine told the
13
man she had a gun and the man said he had a gun,
14
too," right?
15
A.
16
So unless you're quoting from my report, I
didn't use quotations and there is not quote there.
17
Q.
But you --
18
A.
It says, "Jasmine told the man she had a
19
gun and the man said he had a gun, too."
20
reasonable to me that by saying, "gun," having
21
something that looks like gun, could be said he had
22
a gun, too.
23
Q.
It is
But now she tells you in her statement
24
that the only thing she heard was maybe the word,
25
"gun," right?

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A.
I don't know if she said maybe that's what
she heard, but she told me that she heard him say
"gun."
Q.
And, again, in her story that she provided
to you in her statement, she is not saying that he
said gun in response to her command.
solicits -- he just says the word "gun," right when
he is standing next to the wave runner with
something black in his hands, right?

A.
10
11
I don't know.
He just
I would have to look
through and read it again.
12
Q.
Let's see if we can find it together.
13
A.
I'm sorry, what page are we on?
14
Q.
It's on Page 35.
15
A.
Page 38 at the top.
16
Q.
Yes, at the top.
It's on Page 38.
So, I mean, she doesn't say anything about
17
18
the fact that she said she had a gun and then he
19
said he had a gun, too.
20
that she lost track of him for a second, then he
21
popped out from behind the wave runner, which was on
22
the electrical lift in the backyard.
23
came around to the front of the wave runner and she
24
noticed the front of the hood of the wave runner
25
open.
She just basically says
The man then
She heard the man say," quote, unquote -- and

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this one is in quotes, "gun," right?
A.
That's correct.
Q.
So it's no longer in response to her
saying, "I have a gun," and then he says, "I have a
gun, too" or "gun" in response to her, it's just he
goes by the wave runner and says, "gun"?

A.
Right, I don't know that anywhere it says
that his statement was in direct response to hers.
She said she had a gun and he said he had a gun,
10
11
too.
So saying "gun," that fits.

Q.
Right, but if it had been the other way,
12
if it had been the way she originally written down,
13
her saying, "I have a gun," and he said, "I have a
14
gun, too," if it was that way, it really couldn't
15
have happened that way because he was deaf.
16
couldn't have responded to her when she was talking
17
to him, right?
18
A.
Well, he probably didn't form the sentence
19
because he couldn't do that.
20
don't believe that he ever said that.
21
22
23
24
25
Q.
So he
I have a gun, too, I
And he couldn't have responded to her
verbal commands because he couldn't hear, right?

A.
Of course he could respond to her
commands.
Q.
He could read lips.

Okay.

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A.
1
2
So I don't know why -- he could definitely
respond to her.
Q.
So it's your interpretation that in this
moment of anarchy and everything else, he's looking
at her and reading her lips of "I have a gun," and
that's how you sort of rectify this?

A.
I have no issue with that.
He could very
well be reading her lips and hear her say that she
has a gun.
Q.
10
That didn't seem unreasonable to me.

Now, during the statement she also told
11
you that when she walked out the backdoor, she
12
noticed there was a stranger in her yard, number
13
one.
14
and the family's boat was not in the backyard and
15
the east storage closet was open and that's when she
16
became scared, correct?
17
She noticed that the wave runner was uncovered
A.
I don't know if those things happened in
18
the order that you just said, but all of those
19
things did occur.
20
Q.
But that's when she got scared is when she
21
came out the backdoor and noticed those things,
22
right?
23
A.
Well, she wasn't scared when she went out
24
the backdoor.
25
of those things that were happening.

She became scared as a result of all

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Q.
Now, let me ask you if you remember this
question and this answer on Page 57 of your
deposition.
"Q.
So at the time she began to get
scared, she was walking down to the storage area
towards the seawall.
"A.
the backyard.
towards the seawall.
10
Is that right?
It appears as though she walked out

She hadn't walked all the way down or
She just walked out of her
backdoor.
"Q.
11
She just walked out of her backdoor,
12
noticed these things and began to get scared.
Is
13
that what she told you?
14
"A.
15
Do you remember giving that testimony?
Yes."
16
A.
Yes.
17
Q.
So Jasmine told you that as soon as she
18
got out the backdoor, that's when she started to get
19
scared, right?
20
A.
No.
What I said then and what I am saying
21
now is that when she came outside of her backdoor,
22
after all of the things that she observed and the
23
things that were happening, she got scared.
24
25
Q.
That's what you told me in your
deposition, right, what I just read, right?


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1
2
3
A.
Which is the same thing I'm saying right
Q.
Okay.
now.
Now, you finally interviewed Jack Davis on
4
5
November 29, 2011, six months after the shooting.
We talked about that, right?
A.
That is correct.
Q.
And one of the main things he said was he
9
10
shot because his mother told him that the fellow in

the water had a gun, right?
11
A.
Right.
12
Q.
Now, you already told the Court you
13
listened to the 911 tape.
First of all, throughout
14
the 911 tape, Ms. Jasmine Davis is talking in a very
15
excited and in a high, almost screaming on the 911
16
tape, correct?
17
A.
I recall her being very excited, yes.
18
Q.
And you never heard on that 911 tape her
19
20
21
22
say to her son, "He's got a gun"?

A.
I don't recall hearing that.
I haven't
listened to the 911 tape for quite some time.

Q.
Well, isn't that what a lead investigator
23
is supposed to do?
24
already lied to you.
25
from the day this investigation started should be

You got two folks that have

You know their credibility

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diminished because they have already lied to the
police officers and now you got him saying the sole
reason I shot was because my mom told me he had a
gun.
whether you ever heard her tell her son in this
excited voice, "He's got a gun.
got a gun?"
Wouldn't you go back to the 911 tape and see
Wouldn't you at least do that to
8
9
investigate whether his story that he's telling is
10
true or not?
11
A.
As I said, I'm sure I listened to the
12
tape.
13
hearing her say that.
14
15
16
17
18
Be careful, he's
I didn't make a notation.
Q.
I don't recall
I mean, whether she said that to him or
not is crucial to your investigation, isn't it?

A.
That she told him he had a gun?
is it important?
Q.
He is --
It's all important.
Well, I mean, without her telling him he's
19
got a gun, he's got no reasonable fear for his life
20
because there is no gun.
21
gun out there.
22
A.
He didn't know there was a
He never saw a gun.
His fear was from his mother, his mother's
23
reaction to what was going on.
24
of his mother, clearly.
25
Q.
He was reacting off
Clearly, but that doesn't give you a right

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to shoot somebody in the head.
What he said is I
shot because I was in fear for my life because my
mom told me he had a gun.
So that's really the key part of using
deadly force is that he is in fear for his life,
right?
7
8
9
A.
Right.
I believe he was in fear for his
Q.
And the reason he's in fear for his life
life.
10
is because he feels like the fellow in the water has
11
a gun and the way he derives that information,
12
according to his statement, is his mother tells him
13
he's got a gun.
That's what he told you, right?
14
A.
Yes, that's what he said.
15
Q.
So then my question to you is, do you
16
specifically recall after he gave this statement
17
going back to the 911 tape to see whether there was
18
any recording of the mother telling the son he's got
19
a gun?
20
A.
I just told you that I listened to the 911
21
tape and I did not hear her say that.
22
mean she didn't say it.
23
on the 911 tape.
24
25
Q.
It doesn't
I did not hear her say that
Now, something else that he told you in
his statement was that when he took the wave runner


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and started to go out to the bay and leave the
premises, that his mother said in an excited way and
you put quotes on this --
A.
What page?
Q.
It's where he gives his statement, but I
will find it for you.
A.
On Page 47?
Q.
I think that's it.
A.
Okay.
10
Q.
Right.
I will quote it for you.
He told
11
you, "Jack's mother said to him to wait.
12
excited and said," and you wrote this one in quotes,
13
"Wait!
14
feel relief the man was going to leave."
Wait!
Wait!
Very quickly.
She was
They started to
I asked you again, "She said this in an
15
16
excited and loud manner, wait, wait, he's leaving."
17
Did you ever go back to the 911 tape to see whether
18
you could verify whether she in fact really did say
19
that?
20
21
22
23
24
25
A.
I told you that I listened to the 911
Q.
Did you hear Jasmine Davis screaming,
tape.
"Wait, wait, wait"?

A.
I don't recall her screaming, "Wait, wait,
wait."

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Q.
I mean, don't you agree if the 911 tape,
which was recording contemporaneously with this
event happening, doesn't support these statements
that are given six months later, there is some
contradiction here?
A.
I have no issue with it.
have been away from her mouth.
to her mouth when she was talking.
The phone could
Maybe it wasn't next
Q.
But these are folks --
10
A.
I have no issue with that whatsoever.
11
Q.
These folks already have diminished
12
credibility with you.
13
they lied, both of them did, right off the bat,
14
right?
A.
15
You told us that, because
They didn't lie to me.
What I was told by
16
the other officers was not the same thing I was told
17
by Jack and Jasmine.

Q.
18
So they never lied to me.
You knew that these folks, the very first
19
thing they did when talking to police officers after
20
this shooting, was to lie.
21
you?
22
23
24
25
You knew that, didn't
A.
That was the statement that they made,
Q.
And we already talked about that.
yes.
At the
very beginning of my cross examination I said to you


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when people lie to the police, you have to put a
little mark, credibility is a factor and you agreed
with that.
correct?
A.
Credibility has to be looked at,
I would agree with that, but I think you
also take the totality of the circumstances and you
try to understand -- as police officers, we try to
understand why do people lie?
What is their
motivation?
People lie to the
10
11
What's going on?
police all the time.

Q.
Absolutely.
And then you go back and try
12
and pull out objective evidence and compare it to
13
their statements to see if it all jives, right?
14
A.
That's right.
15
Q.
Because that way, you got these people
16
that have some diminished credibility, they lied, we
17
know that, so now we've got to really hold them up
18
to the bright light of objective facts and see
19
whether we can support what's coming out of their
20
mouth.
So it seems like you would go back to the
21
22
911 tape and see whether you could verify these
23
statements that Jack was making on the 911 tape.
24
Did you do that?
25
A.
I just told you that I listened to it and

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I didn't hear, "Wait, wait, wait," nor did I hear
that he had a gun.
asking.
Q.
Well, that's what I was asking.
A.
Well, I answered that twice already.
Q.
Now, the objective evidence other than the
I'm not sure what else you're
statements that were given by Jasmine and Jack was,
number one, you gathered up fingerprints that we
know you weren't able to gather any -- I forget what
10
the criminal court uses, but it's any evidence that
11
was of value for the fingerprints that you guys
12
took.
Is that correct?
13
A.
That is correct.
14
Q.
Then you took DNA all over the scene, not
15
all over the scene, but in certain locations and you
16
were able to gather no evidence that was of value
17
with the DNA testing.
Is that right?
18
A.
That's correct.
19
Q.
And you were hoping to support Ms. Davis's
20
and Jack's statement that he was all the way up by
21
the front of the storage facility because maybe his
22
DNA had transferred onto the door or maybe his
23
fingerprints had transferred in the area that was up
24
by the house, correct?
25
A.
Well, that's the reason we swabbed the

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door and dusted the doors to see if we can find his
fingerprints.
3
4
5
6
7
Q.
And you never found any objective evidence
that supported that he was up by the house?

A.
We had a negative result with the
fingerprints and the DNA.

Q.
So there was no objective evidence to
support the statement of Jasmine that he was up by
the storage facilities, correct?
10
A.
Yeah, that's right.
11
Q.
You also had objective evidence that
12
Reynaldo had been shot from behind and the bullets
13
were coming from the back right to the back part of
14
his head.
15
16
A.
Is that right?
I'm showing on the right side.
Back to
front, right side.
17
Q.
But back to front, correct?
18
A.
I believe that's what the autopsy says.
19
Q.
You obviously went down and talked to the
20
medical examiner to make sure you knew exactly what
21
his finding were and his opinions were as a result
22
of where the shooter was when he got hit with the
23
bullets, right?
24
A.
That was discussed, yes.
25
Q.
And he told you that the shooter was

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1
2
3
behind him right to left, back to front?

A.
It was on the right side.
So back to
front.
Q.
The bullets were coming from behind?
A.
From the right side.
Not from behind.
From the right side and back to front and slightly
downward, I believe.
report, right?
Q.
You have a copy of the autopsy
I do, and we have taken his deposition so
10
the Court will be able to read that, but you
11
remember me asking this question and you giving this
12
answer on Page 58:

"Q.
13
14
from the gun when he was shot.
15
16
So he had to have been facing away

Is that right?
"A.
The back of his head was towards the
"Q.
Okay, and you think that he was
gun, yes.
17
18
facing when he was shot towards the bay or do you
19
think he was facing towards the property?

"A.
20
Well, if they were standing on the
21
seawall and he was shot in the back toward the
22
front, then he would have had to have been facing
23
towards the bay."

Do you remember giving those answers?
24
25
A.
Yes.

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Q.
1
2
today?
A.
3
4
Yes, from right side, back to front, yes,
he would have to be facing the bay.

MR. DURKEE:
5
6
And you agree with that as you sit here
Thank you.
I have no further
questions.
THE COURT:
MR. MURPHY:
Yes.
MR. DURKEE:
Oh, I have one further one,
10
Your Honor.
I'm sorry.
THE COURT:
11
Q.
12
Redirect.
That's okay.
(By Mr. Durkee) I'm going to show you now
13
what has been marked as Plaintiff's 1-L for ID and
14
what was previously marked as 1-K for ID.
15
You instructed or somebody instructed the
16
crime scene investigators to take a picture of Jack
17
and to take a picture of the shirt he had on when he
18
did the shooting.
Is that right?
19
A.
Yes.
20
Q.
By the time the police had gotten there,
21
Jack had already changed his shirt, number one,
22
true?
23
A.
He was wearing a different shirt.
24
Q.
And the shirt that he had on during the
25
shooting had already been placed in a bucket with


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soapy water and had to be retrieved by the police,
correct?
3
4
5
A.
Yes.
The Davis housekeeper was very
efficient.
Q.
To say the least.

Now, you have investigated lots of
6
7
homicides and everything else.
I mean, you
understand that people may try and cover up
evidence, correct?
10
A.
People do that, yes.
11
Q.
Did this raise any suspicion to you that
12
within the first half hour, within the first few
13
minutes after the shooting, that the shooter had
14
already changed shirts and the bloody shirt had been
15
put in something to clean it?
16
suspicion to you at all?
17
A.
19
No.
MR. DURKEE:
18
THE COURT:
21
MR. MURPHY:
25
Thank you.
I have no
Redirect.
Yes.
REDIRECT EXAMINATION
22
24
Okay.
further questions.
20
23
Did that raise any
BY MR. MURPHY:
Q.
Detective Nye, just a few follow-up
questions.
You were posed questions from the

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lawyer, which I think you probably figured out were
going toward the gist of an argument that the crime
scene was somehow contaminated and witnesses were
not being sequestered.
from the questions?
Did you get that impression
A.
Yes.
Q.
Now, considering what was brought up, did
any of that in this investigation ever cause you or
lead you to believe that because of any alleged
10
sequestration problems or crime scene contamination,
11
that the Davises were not in legitimate fear of the
12
threat that they were reporting based upon that
13
alleged contamination and sequestration of witness
14
problems?
15
MR. DURKEE:
16
THE COURT:
Objection, Your Honor.

I'm going to overrule that
17
objection the way it was phrased.
18
answer.
19
20
21
A.
You may
It has no affect on their absolute fear
and terror, none whatsoever.

Q.
Counsel asked you a lot of questions about
22
the first lie that they told you and that the lie,
23
and we talked about it and it has been acknowledged
24
in this case, that is, the fact that Jasmine Davis
25
at the outset said that she was the one that shot

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this weapon and that unfortunately lead to the death
of Mr. Munoz.
We all agree with that, right?
A.
Yes.
Q.
We all agree that that was not true.
can call it a lie.
You
That is correct, isn't it?
A.
That's correct.
Q.
Based upon your experience and based upon
what you were dealing with at that time with this
mom and her son, was there any question in your mind
10
or any reason to know why she wouldn't say something
11
like that?
MR. DURKEE:
12
13
16
He wants her to
speculate on -THE COURT:
14
15
Objection.
Q.
Sustained.
Would you expect, Detective Nye, a mom to
say that to protect her son?
17
MR. DURKEE:
18
THE COURT:
Objection, Your Honor.

Well, I think she already
19
testified to that.
20
unusual for a parent to lie about a 14 year old
21
child.
22
Q.
She didn't think it was
That was her earlier testimony.

Did that initial statement with regard to
23
who shot, Detective Nye, in your mind throughout
24
this investigation when you came to the conclusions
25
that you did, did that ever in your mind affect the

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integrity or creditability of their version of what
happened and the fear and threat that they
experienced?
MR. DURKEE:
THE COURT:
Objection.
Overruled.
A.
No, not at all.
Q.
You were asked some questions about if you
could have -- remember the questions about, wait,
wait, wait?
10
Remember those questions screaming,
wait, wait, wait?
11
A.
Yes.
12
Q.
And you were directed to Page 47 of your
13
report, remember?
14
A.
Yes.
15
Q.
And remember the attorney I think was
16
saying something about -- he said in an excited
17
tone, wait, wait, wait, and he was actually shouting
18
it more than excited.
19
a few minutes ago?
Do you remember that question
20
A.
Yes.
21
Q.
I would like to direct you to Page 47 and
22
I think the passage that we were dealing with that
23
he was referencing appears to be the last sentence
24
in that middle paragraph.
25
A.
Do you see that?
Yes, I do.

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Q.
Could you read that?
And this is a
paraphrasing of the statement that Jack gave to you,
correct?
A.
Yes.
Q.
With regard to that, wait, wait, wait
issue, could you please read what you reported that
Jack said in that statement verbatim, word for word?
8
9
10
11
A.
"Jack's mother said for him to wait.
She
was very excited and said, wait, wait, wait very

quickly."
Q.
Hold on.
Let's take it slowly.
That last
12
sentence, do you see that last sentence that says,
13
"She was excited"?
14
A.
Uh-huh.
15
Q.
Do you see that?
16
A.
Yes.
17
Q.
Read that sentence, if you could, in its
18
entirety and very slowly, please.
19
A.
"She was excited and said" --
20
Q.
First part of it is, "She was excited."
21
We all agree that she was excited, right?
22
A.
Yes.
23
Q.
Next part of it.
24
A.
"She was excited and said, wait, wait,
25
wait very quickly."

That's it.

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Q.
It says, "She was excited and then said,
wait, wait, wait."
It doesn't characterize how she
said it.
It just states that she was excited and then said
wait, wait, wait, very quickly," right?
It doesn't say that she was screaming it.
A.
Yes.
Q.
So that's the description of the wait,
wait, wait, right?
that it was screamed, but that it was said very
10
Not that it was shouted, not
quickly, correct?
11
A.
That's correct.
12
Q.
And that's exactly what that sentence
A.
That's correct.
13
14
said?
15
MR. MURPHY:
That's all I have.
16
MR. DURKEE:
May I have a brief recross?
17
THE COURT:
18
MR. DURKEE:
19
THE COURT:
22
23
One question.
Go ahead.
RECROSS EXAMINATION
20
21
If it's on something new.
BY MR. DURKEE:
Q.
You know what an exclamation point is,
right?
24
A.
I do.
25
Q.
I mean, you're writing a police report on

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a homicide, you want to be as absolutely accurate as
you possibly can be, right?
A.
That's correct.
Q.
What does an exclamation point mean?
A.
An exclamation point is something that
says with emphasis.

Q.
And this is one of the areas in your
report that you actually used quotation marks
because you wanted to capture verbatim what Jack
10
told you, correct?
11
A.
That's correct.
12
Q.
And you wrote in quotation marks, "Wait!
13
Wait!
Wait," so that you accurately and completely
14
capture what Jack told you, correct?
15
A.
That is right, because he said, "wait,
16
wait, wait."
17
MR. DURKEE:
18
THE COURT:
No further questions.
Let me ask a question.
When
19
you took fingerprints to try to lift prints from
20
the doors or any of the DNA, were there any
21
elimination prints or DNA taken from the people
22
who resided in the house?

THE WITNESS:
23
24
see.
25
value.
I would have to look and
I don't recall, but there was nothing of
It was such a mix of DNA, there was

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1
2
nothing that could be extracted of any value.

THE COURT:
Were the fingerprints or were
any sufficient point of identification, were
they of any value, do you now?
5
6
THE WITNESS:
No, there was no value
whatsoever.
THE COURT:
Anything else?
MR. DURKEE:
10
11
THE COURT:
Nye-Gonzalez.
14
15
Thank you.
No, Your Honor.

Thank you, Detective
You may step down.

(Witness excused.)
12
13
All right.
THE COURT:
We have been going for an
hour, what do we have left?

MR. MURPHY:
Judge, from our point of
16
view, we just would admit records into evidence
17
and other than that we would rest.
18
MR. DURKEE:
That's going to take some
19
time because he just wants the whole thing
20
submitted and I don't think all of it should be
21
submitted.
22
MR. MURPHY:
23
THE COURT:
All of what?
That's why we are going to
24
take a break now for 15 minutes and you guys can
25
talk on the break and then I will come out and


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listen to the rest.
15 minutes.
So I will be back in about
(Recess taken.)
THE COURT:
MR. MURPHY:
So Mr. Murphy?
We're just going to move our
exhibits for ID into evidence and then some
other evidence, but I think Mr. Durkee said he
wanted to go through it first.
that we have a disagreement.
10
THE COURT:
11
MR. DURKEE:
I don't know
That's fine.
Just administrative at the
12
end, Your Honor.
13
depositions being submitted to the Court in
14
their entirety.
15
We also agreed to four
And we have both given the Court
16
designations as to what the defendant, or the
17
party with the burden of proof in this hearing,
18
has designated and also what we have designated
19
as to what we feel you should concentrate on.
20
THE COURT:
21
MR. MURPHY:
22
What are the four depositions?

We sent in a binder with
them, plus designations.
23
THE COURT:
24
MR. MURPHY:
25
THE COURT:
Did you?
Yes.
When?

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MR. MURPHY:
THE COURT:
Two weeks ago.

We have to find it, then.
want to make sure.
MR. DURKEE:
THE COURT:
For the record, Your Honor -Check with Patty later because
I have a bunch of stuff.
responses to various witnesses you want to call
and because we are in the middle of packing, I
just want to make sure, designations from both
10
Maybe I have the
sides and -MR. MURPHY:
11
And the depositions
12
themselves, at least from us.
13
plus the designations plus the pages on top.

THE COURT:
14
We gave a binder,
I'm saying the designations
15
were both your designations and the plaintiff's
16
designations?
MR. MURPHY:
17
18
of designations and they gave a separate set.
19
THE COURT:
20
MR. MURPHY:
21
22
23
24
25
Yes, we gave a separate set
Yes.
In the same binder?

No, no, a different one.
No, I got theirs the other day.

THE COURT:
I will check to make sure we
have it somewhere.
MR. DURKEE:
And, Your Honor, just for the
record, those depositions are of Officer


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Zabielinsky, and that's Z-A-B-I-E-L-I-N-S-K-Y,
the medical examiner, Michael Steckbauer, and
that's S-T-E-C-K-B-A-U-E-R, the deposition of
Aura A-U-R-A, Jean, J-E-A-N, Rosello,
R-O-S-E-L-L-O and Myra Sanabria,
S-A-N-A-B-R-I-A.
MR. MURPHY:
You have all of those
depositions in the binder with our designations,
then they sent in their designations the other
10
day.
11
THE COURT:
12
MR. MURPHY:
13
THE COURT:
Hard copies were sent, right?

Yes.
I will make sure I have
14
everything.
I had binders and things and I was
15
going through rereading the notes from our
16
November hearing, et cetera.
17
have that, because I have a big binder on
18
motions in limine and the responses and, et
19
cetera, that I looked over.
20
MR. MURPHY:
21
THE COURT:
22
MR. MURPHY:
I will verify we
That's different materials.

Yes, obviously.
So, Judge, at least for now,
23
I don't believe the plaintiff's lawyer has any
24
objection, we will formerly move into evidence
25
all of our exhibits previously identified as


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exhibits and we will move them into evidence.
We have gone through them over there.
THE COURT:
All right, with the
understanding Mr. Durkee and Mr. Alvarez and
Mr. Perwin will go through those exhibits to see
if there are any objections, do you rest?
MR. MURPHY:
Yes, with the exception also
that we also are going to move into evidence, if
this is not a problem, the school records, the
10
homicide photographs.
11
those, which is fine, and then we will just mark
12
for ID the entire State Attorney's file, which
13
includes the police report, which was objected
14
to, and that we couldn't comment on, just so we
15
can have a copy of it for a Court ID.
16
THE COURT:
17
MR. MURPHY:
They want to go through
Fine.
Also, Judge, we rest.
He
18
didn't have to tell me that, but I knew it.
19
Subject to any rebuttal that we might wish to
20
call that is actually true rebuttal.
21
THE COURT:
22
Mr. Durkee?
23
MR. DURKEE:
Okay, thank you.
Yes, Your Honor.
We call our
24
first witness and that will be Dr. Julian
25
Munoz-Diaz.

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THE COURT:
MR. DURKEE:
THE COURT:
Doctor?
Munoz-Diaz.
How many witnesses are you
going to call, Mr. Durkee?

MR. DURKEE:
Maybe as little as two, maybe
as little as three.
Honor.
THE COURT:
8
9
MR. DURKEE:
11
THE COURT:
17
I promise you.
Please swear in the
(Thereupon, the interpreter was duly

sworn.)
THE COURT:
15
16
I knew you would say
interpreter, please.
13
14
Exactly.
that.
10
12
We will be done today, Your
Please stand up and raise your
right hand, please.

Thereupon:
DR. JULIAN MUNOZ-DIAZ
18
19
was called by the Plaintiff, and after first being
20
duly sworn, was examined and testified through the
21
interpreter as follows:
DIRECT EXAMINATION
22
23
BY MR. DURKEE:
24
Q.
25
record?
Could you please state your name for the

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A.
My name is Julian C. Munoz-Diaz.
Q.
Dr. Diaz, how long have you been
practicing medicine here in the State of Florida?
A.
In this country?
Q.
In the State of Florida in this country?
A.
23 years.
THE COURT:
Let me stop and ask you,
Doctor, do you wish to testify in English and
use the interpreter if you have a problem?
10
Otherwise, we have to do it one way or the
11
other.
We can't do it piecemeal.
THE WITNESS:
12
(Through the interpreter) In
13
that case, I prefer to speak Spanish, Your
14
Honor.
THE COURT:
15
16
Q.
Thank you.
(By Mr. Durkee) In the 23 years that you
17
have practiced medicine, has it been primarily here
18
in Florida or has it been elsewhere?
19
A.
Only here.
20
Q.
And what is your speciality or what type
21
of medicine do you practice?
22
medicine?
Is it general
23
A.
General medicine.
24
Q.
Now, prior to coming to the United States,
25
did you practice medicine in Cuba?


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A.
Yes.
Q.
What was your speciality in Cuba before
coming to the United States?
A.
I was an ENT specialist.
Q.
Now, you are not an ENT specialist here in
the United States, but that's what you did in Cuba?
A.
That's true.
Q.
As a general practitioner here in the
9
10
United States, at some point did you become the

treating physician for Reynaldo Munoz, Jr.?
A.
11
12
I was his general practitioner ever since
he got here from Cuba.

Q.
13
And so prior to the time that he died,
14
about how many years had you treated Reynaldo Munoz,
15
Jr.?
16
A.
Since December 5th of 2000.
17
Q.
So if he died in May of 2011, that would
18
be about 11 years that you treated him.
19
right?
Is that
20
A.
Exactly.
That's exactly right.
21
Q.
During those 11 years that you treated
22
him, did Mr. Reynaldo Munoz, Jr. have a problem with
23
his hearing?
24
A.
Totally.
25
Q.
At some point they attempted, I believe,
He was born a deaf/mute.

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to do some sort of implant with Reynaldo.
true?
3
4
5
6
A.
That's correct.
Is that
It was done at Jackson
Memorial.
Q.
And did he have success with that cochlear
implant?
A.
No, it never was.
Q.
Now, what was the level of Reynaldo's
hearing during the 11 years that you dealt with him?
10
A.
None.
11
Q.
Now, after the cochlear implant was
12
attempted, did that improve or did he still have
13
absolutely no hearing?
14
A.
It didn't.
15
Q.
Now, based on the history -- obviously,
16
you didn't know him from an infant because you
17
started treating him in 2000.
18
history you took from the patient, when did his
19
hearing problem first start?
20
A.
Mine?
21
Q.
No, no, no.
But based on the
Reynaldo, his ability to
22
hear, did you ever take a history from his family or
23
from Reynaldo about when his hearing problem
24
started?
25
A.
Yes, of course.
He always -- he was

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always accompanied by his parents.
Q.
Now, was he born deaf?
A.
Born deaf, yes.
Q.
Now, when somebody does not have the
ability to hear from birth, does that have any
affect, based on your experience and training, to
their ability to talk?
A.
Of course.
Q.
How does it affect a person's ability to
10
speak words if they have never been able to hear
11
from birth?
12
A.
He was never able to say words.
13
only see what people were saying.
14
their lips when he was up close.
15
Q.
He could
He could read
During the entire time that you treated
16
him over the 11 years, did you ever hear him say any
17
word that you could understand?
18
A.
Never.
19
Q.
And based on your medical training and
20
everything else, do you believe he even has the
21
capability of saying a word?
22
A.
No.
23
Q.
Now, Reynaldo also came to your clinic, I
24
believe you told me, on a couple of occasions to do
25
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that.
Is that true?
A.
True.
Q.
And --
A.
With his father.
Q.
And you know his father, correct?
A.
Yes, of course.
Q.
And you guys are somewhat distant
8
9
10
11
12
relatives or something?
A.
I didn't know them until they got here to
this country.
Q.
But do you have some sort of family
relationship with him?
13
A.
A very distant one, just the last name.
14
Q.
Now, the times that he came to your clinic
15
just to help out, or work in the back or whatever,
16
in the parking lot, during those occasions, did you
17
ever hear him say any type of word that you could
18
understand?
19
A.
Never.
20
Q.
And if he ever did make any type of noise,
21
did you ever hear him make a noise, maybe not a
22
word, maybe not saying a word, but did you ever hear
23
him make any type of noise coming out of his mouth
24
basically?
25
A.
"Hum."
That's it.

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THE COURT:
For the record, it was more of
a grunt that was being made by the witness.
don't think that can be taken down any other
way.
Q.
Did it have any type of unusual high pitch
to it?
A.
Low, very low.
Q.
There was actually a diagnosis made of his
condition.
It was very low.
Is that correct?
10
A.
I'm sorry, a diagnosis of what?
11
Q.
His condition with his hearing.
12
A.
Apparently it was a congenital failure
13
because of measles.
14
Q.
And --
15
A.
Rubella.
THE INTERPRETER:
16
17
Rubella.
Interpreter
correction.
18
Q.
The last time you saw him was when?
19
A.
If you allow me, it was February 21st of
21
Q.
So the same year he was killed?
22
A.
Yes, yes.
23
Q.
And in February of 2011, was he still in
20
2011.
24
the same condition as you had seen him in the
25
previous 11 years?

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A.
He never changed.
He was always the same.
Q.
Now, can you explain, if you can, why
somebody that is basically born deaf has a problem
formulating words?
5
6
7
A.
If you never heard a word said, how could
you possibly repeat it?

Q.
It is not possible.
Doctor, you kept a chart on the care and
treatment of Reynaldo Munoz, Jr. during the time
that you cared and treated him?
10
A.
Yes.
11
Q.
And you brought that chart with you today?
12
A.
Yes, and the treatments were based on
13
common ailments, such as a common cold, pains, but
14
not having anything to do with his hearing.
15
Q.
But, I mean, every time you saw him, you
16
interacted with him and noted at least in your own
17
mind about his disability, right?
18
A.
Yes, but he had a very close relationship
19
with the audiology department at the University of
20
Miami.
21
Q.
I didn't have anything to do with audiology.

And you did have records periodically come
22
to you that was from the testing and things like
23
that for the care and treatment for his hearing.
24
that right?
25
A.
Is
Yes, occasionally the University of Miami

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1
2
would send me the test results which I have here.

Q.
And you kept that chart in the normal
course of business of treating Reynaldo.
correct?
5
6
A.
Is that
Yes, I keep it like this for all of my
patients.
MR. DURKEE:
You know, I would like to
move the original file into evidence, Your
Honor, if the Doctor will allow it.

THE COURT:
10
11
copies of it.
12
objection.
Let me see if there is any
13
MR. MURPHY:
14
THE COURT:
15
16
Well, you can ultimately make
No objection.
I mean, unless he wants to
give up the original copy.

Q.
As a representative of the family, they
17
have authorized me to accept it and put it into
18
evidence, if you allow me to take the chart and move
19
it into evidence.
Yes, sure.
That's not a problem.
21
THE COURT:
Okay.
22
MR. DURKEE:
23
THE COURT:
20
24
25
A.
Thank you, Your Honor.

This will be admitted as
Plaintiff's Exhibit what number?

THE CLERK:
Plaintiff's Exhibit 1

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composite.
MR. DURKEE:
I don't have any further
questions, Your Honor.
THE COURT:
CROSS EXAMINATION
5
6
Cross examination.
BY MR. MURPHY:
Q.
Good afternoon, Doctor.
A.
Good afternoon.
Q.
I wasn't quite sure of the relationship
10
between you and the Munoz family.
11
distant relationship.
12
relationship?
You said it was a
What exactly is the
13
A.
I think it's a third generation.
14
Q.
So the name that you have, Munoz, does it
15
have any relationship to Mr. Munoz?
16
A.
Of course.
17
Q.
You said third generation.
18
Do you know
what the relationship is?

A.
19
Yes, it's third generation because we are
20
from Spain and the Munoz last name is from Spain.
21
My grandfather went to Cuba and he formed a family
22
there and he's from the third generation.
23
24
25
Q.
You have seen Reynaldo since the year
A.
Yes.
2000?

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Q.
And while he was in school, do you know
whether he was receiving speech therapy to help him
pronounce words and make sounds?
A.
Yes, Reynaldo's mother explained to me
that he was getting some sort of attention at school
in order to speak.
Q.
Was it speech therapy?
A.
Yes, of course.
Q.
Do you know if you ever discussed that any
10
further with her as to what they were trying to
11
achieve in terms of trying to get him to speak?
12
A.
Everything in medicine is always to try
13
and to try and not necessarily to win.
14
continue trying to do more.
15
Q.
We always
I suppose when he gave to you the history
16
that was given on any given visit, it was provided
17
by his mother or father?
18
A.
Yes, by his mother.
19
Q.
Now, did I understand you to say, and I
20
think you said "nunca," and I remember I think
21
that's never.
22
A.
Never.
23
Q.
Did I hear you say that you never heard
24
25
him say any words?

A.
That is exactly right.
That is correct.

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Q.
In the 11 years you saw him, not one
single word ever came out of his mouth that you
could understand?
A.
That is exactly right.
Q.
Not even small words?
A.
Never.
Q.
Not even little, bitty, tiny words?
A.
Nothing.
Q.
I think "nunca" or "nada"?
10
A.
Nothing, nothing.
11
Q.
He could read lips.
12
couldn't he?
13
A.
Yes, but up close, very close.
14
Q.
Did you see him or did you ever know of
He could do that,
15
him to ever utter any what appeared to be one- to
16
two-syllable words?
17
A.
None, no.
18
Q.
How about did you ever notice him in your
19
visits ever say up to one- or two-word combinations?
20
A.
No, never.
21
Q.
Could he -- do you know what phonemes are?
22
A.
A phoneme?
23
Q.
Yes.
24
A.
No, I don't know what you're trying to
25
tell me.

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Q.
I was just asking you.
tell you anything.
what they were.
I'm not trying to
I just asked you if you knew
A.
Sounds.
Q.
Could Mr. Munoz vocalize sounds that
6
7
8
9
It's a sound.
appeared like words?

A.
No, I don't think so.
A sound like a dog,
maybe.
Q.
I think you said you think he could just
10
grunt and make a grunting sound and nothing else,
11
right?
12
A.
MR. MURPHY:
13
14
Yes.
I have.
15
THE WITNESS:
16
THE COURT:
17
MR. DURKEE:
18
19
22
23
24
25
Okay, thank you.

One minute, please.
No further questions, Your
Honor.
THE COURT:
You may be excused, Doctor.

(Witness excused.)
20
21
That's all the questions that
THE COURT:
Mr. Durkee, next witness,
please.
MR. DURKEE:
Yes, Your Honor.
We call Dr.
Ronald Wright.
THE COURT:
By the way, I did find,

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because I remember seeing something, I did see
Officer Zabielinsky's designations by the
defense and then there was the Rosello and
Sanabria.
being used, Gregory Donis.

MR. DURKEE:
6
7
That was for the motion in
limine, I believe.
THE COURT:
8
9
Also I received, which I guess is not
That's what I was going to
say.
10
MR. DURKEE:
11
THE COURT:
That is correct.
I do have yours.
I don't have
12
any designations -- I don't think I have
13
anything from the plaintiff that you designated.
14
15
16
MR. DURKEE:
We filed it with the Court,
but we will get you a copy, Your Honor.

THE COURT:
17
reading it today.
18
MR. MURPHY:
That's all.
I will not be
Judge, can we preserve any
19
objections we previously argued in the motion in
20
limine with regard to the expert opinions that
21
we argued?
22
THE COURT:
Correct, those are preserved,
23
the outstanding objections of Dr. Wright's
24
testimony.
25
MR. MURPHY:
Okay.

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THE COURT:
forward, please.
here.
be sworn in.
The witness stand is over
Please stand and raise your right hand to
THE WITNESS:
THE COURT:
Dr. Wright, if you will come
I will do that, Your Honor.

Thank you.
Thereupon:
DR. RONALD WRIGHT
8
9
was called by the Plaintiff and, after first being
10
duly sworn, was examined and testified as follows:

THE COURT:
11
12
You may
have a seat.
13
THE WITNESS:
14
THE COURT:
15
MR. DURKEE:
Thank you.
Mr. Durkee, you may proceed.
DIRECT EXAMINATION
16
17
Thank you, Doctor.
BY MR. DURKEE:
18
Q.
Could you please state your name for the
19
record?
20
A.
Dr. Ronald Keith Wright.
21
Q.
Dr. Wright, could you give us just very
22
briefly your basic educational background and work
23
experience?
24
25
A.
Sure.
I graduated from college in what is
now called Missouri State University in 1967, went


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to medical school, St. Louis University, graduated
in 1971.
in Vermont in 1971 to '74.
in pathology coming to Miami, now the Miami-Dade
County ME Office in '74, and became board certified
in anatomic clinical and forensic pathology in '74
and '75.
of Miami-Dade, '74 to 1980 and the Chief Medical
Examiner of Broward County, 1980 to 1994, and
I did a pathology internship and residency

I continued my training
I became the Deputy Chief Medical Examiner
10
somewhere during that period, I also went to law
11
school, graduating from the University of Miami, and
12
that's pretty much it for my education, training,
13
and experience.
Q.
14
15
Prior to this case, you and I worked
together, correct?
16
A.
Yes.
17
Q.
On how many occasions, a handful?
18
A.
A few.
19
Q.
And I asked you to consult with me in this
20
case.
Is that correct?
21
A.
Correct.
22
Q.
And I paid you for your time and your
23
travel, correct?
24
A.
Yes.
25
Q.
As of today, approximately how many hours
Well, not entirely, but --

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and what is the total that you have charged us at
this point?
A.
4, $5,000, I think.
Q.
And do you have any idea what that sort of
translates hours-wise?
A.
No.
Q.
Is it safe to say you spent several hours
on this case?
A.
Yes.
10
Q.
Did you review the medical examiner's
11
report in this case?
12
A.
I did.
13
Q.
Were there objective findings that you
14
derived from that report and that you independently
15
reviewed the information and tried to verify?
16
A.
Yes.
17
Q.
And let's just talk really about the
18
mortal wounds that Reynaldo suffered and let's just
19
concentrate on that.
20
that was identified on the body, was there any other
21
really significant evidentiary findings on the body?
22
A.
Not really.
Other than the mortal wounds
He drowned.
I mean, he had
23
findings of drowning, but that followed his being
24
shot and falling off the wave runner.
25
Q.
And the wound to the head, was it a mortal

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wound?
A.
Yes.
Q.
So, I mean, whether he sucked in some
water after he was shot or not, in your opinion, he
was going to pass away from the gunshot wound?
A.
Yes.
Q.
Let's talk about that now.
Where were
either of the pellets that struck Reynaldo, where
were the entry wounds?
10
11
12
A.
In the back of the head on the right-hand
Q.
So if someone were to categorize that they
side.
13
were on the side of the head, would that be a
14
correct assessment?
15
A.
No.
16
Q.
They were in the back of the head?
17
A.
Yes.
THE COURT:
18
19
it was, Doctor?
20
so --
21
Can you point to exactly where

You have four fingers there
THE WITNESS:
I will use two, how is that?
22
They were basically right here.
23
called the parietal bone.
24
THE COURT:
25
toward the back?

The bone is
One is slightly past the ear

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THE WITNESS:
1
2
Yes, past the ear toward the
back.
THE COURT:
According to your two fingers,
the entry wounds would be slightly past the ear
on the right side?
THE WITNESS:
THE COURT:
And one would be further back
of the head?
THE WITNESS:
9
10
Right.
Q.
Correct.
(By Mr. Durkee) Now, Dr. Wright, it may be
11
more helpful at this point, have you created any
12
type of demonstrative exhibit that may assist us in
13
understanding where the wounds were on the skull?
14
A.
I did.
15
Q.
And can you show us that demonstrative
16
17
exhibit?
A.
I don't have it.
Maybe you do.
I left it
18
with you because TSA gave me a lot of grief when I
19
brought it on the airplane.
20
Q.
I did not realize I had it.
21
A.
Thank you.
22
Q.
Tell us, before you show us this, tell us
23
the rationale behind how you created this
24
demonstrative exhibit.
25
A.
I used the measurements the Dr. Steckbauer

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recorded in his autopsy report.

Q.
2
3
And besides the holes that you drilled,
how did you determine the size?

A.
Basically I used a drill that would fit
the wooden dowels that I am using to demonstrate the
projectile, the course of the projectile.
approximately the size of the shot that he was shot
with.
Q.
They're
So you basically tried to, number one,
10
drill the holes in the locations that were
11
identified in the autopsy report?
12
A.
Correct.
13
Q.
And then, number two, you also tried to
14
drill the holes in the directionality of where the
15
bullets were coming into the skull from?
16
17
18
A.
Into and where the projectiles ended up,
Q.
So now, if you would, please show us the
yes.
19
demonstrative exhibit that you were able to create
20
based on those findings.
21
A.
Here.
The ear canal is right here
22
(indicating).
23
bit behind it.
24
it and if I could get the dowels here, it's hard to
25
get them to stay, it's sort of like using

As you can see, this one is a little

This one is a little bit in front of

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chopsticks.
It's hard to do it, but basically the
2
3
projectiles in the head go this direction, which is
right, back to front, right to left and downward.
So let's pull that one up a little bit.
head is in the regular location that heads are in,
that is the direction that the pellets went inside
the brain with them ending up here toward the
left-hand side of the skull (indicating).
10
11
12
Q.
So if your
And the pathway of the pellets -- first of
all, how many pellets struck him?

A.
Two.
The one -- the entrance wound is
13
actually something which we call a keyhole shot,
14
which basically means that it had both an exit wound
15
and also the part of the pellet goes in and that is
16
what happened here with one of them.
17
entrance and an exit both, but the main part of the
18
pellet went into the brain.
19
Q.
There was an
And I'm going to interpret what you said
20
to make sure we all got it right.
21
pellet went in and part of the pellet went further
22
into the brain and the other part of the pellet
23
splits off and the other part of the pellet created
24
an exit wound?
25
A.
Basically one
Correct.

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Q.
And then there is another pellet that went
in and did not have any destruction and stayed in
the brain?
A.
Correct.
Q.
Now, the holes that you drilled and the
davits that you are demonstrating that you just
showed the Court, do you believe, based on a
reasonable degree of medical examiner certainty or
medical certainty, that that is, in your opinion,
10
the pathway of the bullets as they struck the skull?
11
A.
Yes.
12
Q.
Now, would the skull had to have been
13
facing away, in that basic direction away from the
14
firearm at the time it was fired?
15
A.
Yes.
16
Q.
So am I correct to say that the -- if you
17
let me use the demonstrative exhibit for a second.
18
A.
Sure.
19
Q.
That if this was the skull and it was
20
situated in this manner --
21
A.
Correct.
22
Q.
-- with me holding it like this, the gun
23
would have to be over there in that corner of the
24
courtroom?
25
A.
Correct.

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1
2
Q.
So these holes and the directionality of
these -- you called them davits?

THE COURT:
The dowels.
A.
Wooden dowels.
Q.
Dowels?
A.
Yes.
Q.
Those wooden dowels are supposed to
demonstrate the approximate pathway of the bullets
as they traveled into the skull?
10
A.
Yes.
11
Q.
I will just put this here.
12
A.
We can put them back if anybody wants us
13
14
to do that.
Q.
Now, again, your conclusions based on this
15
are based on the findings that Dr. Steckbauer did in
16
his autopsy?
17
A.
Yes.
18
Q.
And your underlying objective findings are
19
no different than Dr. Steckbauer.
Is that correct?
20
A.
Correct.
21
Q.
It's just that you had gone a step further
22
to help and create a demonstrative exhibit to
23
translate as to what that really means.
24
correct?
25
A.
Is that
Correct.

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Q.
Now, let me ask you this, is it possible
that -- and I want you to assume these dowels are
back where they were and the gun was pointing from
the corner of the courtroom, sort of like I had it
before.
A.
Yes.
Q.
Let me ask you this, if Reynaldo Munoz,
Jr's. head was facing the gun, is it medically
possible for the gun to go off and then him turn his
10
11
head and then get hit from the back?

A.
No.
I mean, that's 180 degrees of the
12
directionality of these wounds.
Obviously, I only
13
know about what happened a few milliseconds after
14
the gun was fired and the relationship to the head
15
and gun.
However, there are constraints which
16
17
people can move, particularly as they are straddling
18
a wave runner.
19
Q.
I guess the point I am making is, how fast
20
are the bullets traveling, do you know that as part
21
of your experience and training?
22
A.
Oh, sure, I've measured velocity of
23
shotgun pellets repeatedly, but generally speaking,
24
they come out about 1,800 feet per second.
25
that's how far they go every second.

So
They drop off

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252
fairly rapidly, however, and usually if you're
hitting something 40 or 50 feet in front of you,
they're about a 1,000 feet per second.
Q.
Am I correct to say that if the gun was
over in the corner of the courtroom, the head would
have to be approximately in this position at the
moment the gun was fired (indicating)?
A.
Yes.
Q.
Could he have been like this and then
10
turned (indicating)?
11
A.
No.
You can't turn that fast.
12
Q.
You just can't turn that fast, right?
13
A.
No.
It takes about two-tenths of a second
14
to cause muscles to contract so you can move your
15
head, which in relationship to the speed of a
16
projectile from a shotgun is much to slow to do
17
anything like that.
18
Q.
So is it safe to say with medical
19
certainty that if the gun was in the corner of the
20
courtroom, the head had to have been about this
21
position when the gun was fired (indicating)?
22
A.
Yes.
23
Q.
Now, based on your findings, and what your
24
review of the testimony has been, if Reynaldo Munoz
25
hypothetically was on the wave runner straddling it,


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driving it normally and moving away from the
premises, and Jack was to -- Reynaldo is out there
and Jack was to the right of him and behind him when
he fired the weapon, would that be consistent with
the wounds that you saw in the autopsy report?
A.
Yes.
Q.
Let me show you what we previously marked
for identification as 1-F for ID.
A.
Okay.
10
Q.
If Reynaldo was situated in this position,
11
and he had one hand reaching into the wave runner --
12
A.
Yes.
13
Q.
-- and he was looking up at Jack, and I
14
marked for identification 1-F -- 1-I, I'm sorry, for
15
ID.
16
foot of the steps, and Reynaldo was here
17
approximately at the corner of the dock, and he had
18
one hand in the front compartment and he was leaning
19
other like that, like I showed you in that picture,
20
would the wounds be consistent with that scenario?
21
If Jack was standing approximately here at the
A.
No, not really.
He's -- again, these are
22
going from back to front and if he's operating the
23
wave runner toward -- in the direction of the
24
Intracoastal, that's not consistent with that.
25
way you're describing it, he would have to have


The
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1
2
3
front to back pellets.

Q.
Now, again, assuming the corner of the
room was where the bullets are coming from --
A.
Pellets.
Q.
The pellets from a shotgun shell.
A.
Right.
Q.
If he is hunched over or looking at the
shooter or hunched over looking into the front
compartment, are either one of these locations
10
consistent with the bullet holes that are where you
11
have marked them to be?
12
A.
No.
13
Q.
And why not?
14
A.
Well, there is two different things that
15
you're describing.
The first is that he's got his
16
head way down looking towards something in the front
17
of the device.
18
downward direction.
That will produce a much further
19
The other seems to be that it wouldn't
20
even hit the back, it would hit the front first.
21
neither of those work in my opinion.
22
Q.
So
Now, based on everything that you know
23
factually, and the autopsy findings, in your
24
estimation what is the most likely scenario of
25
Reynaldo being shot?


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A.
They come from over there in the corner of
the courtroom slightly above, that gives a downward
projector, plus he had his head down, I think, a
little bit and they go right to left and from back
to front.
Q.
And that would be entirely consistent with
him being on the wave runner trying to flee the
premises?
A.
MR. DURKEE:
10
11
Sure.
Your Honor.
THE COURT:
12
Thank you.
Cross examination.
CROSS EXAMINATION
13
14
I have no further questions,
BY MR. MURPHY:
15
Q.
Good afternoon, Doctor.
16
A.
Hi.
17
Q.
You talked about the fact that you were
18
the Broward County ME?
19
A.
Yes.
20
Q.
What were the circumstances that you were
21
no longer the Broward County ME?
22
A.
The governor didn't reappoint me, Governor
23
Chiles.
24
Q.
Why is that?
25
A.
I don't know.

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Q.
You have no idea?
A.
Well, I have a little idea.
An attorney
by the name of John Krupnick told me in a deposition
that if I didn't change my opinion, he would see
that the governor didn't reappoint me.
if that's what happened, but I have a suspicion.
7
8
9
Q.
I don't know
So he convinced the governor not to allow
you to be reappointed?
A.
Either he or his partner, Mr. Skip
10
Campbell, who was at that time president of the
11
senate, but Mr. Campbell denies any work in that
12
regard, Krupnick doesn't.
13
14
Q.
Is that the last time you ever worked in a
government capacity for --
15
A.
As a medical examiner, yes.
16
Q.
Did you ever make any statement at one
17
point that you thought that the water in Broward
18
County was contaminated?
19
20
A.
I did.
It had chlorobenzene and other
compounds of which they have corrected now.
21
Q.
So what was the form of that?
22
A.
I don't know, but I remember saying that.
23
Q.
Did you give that to the media or was that
24
part of a decision or opinion you gave them in a
25
case or what?

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A.
I don't remember.
Q.
In this case, I'm going to go a little
more specific about your retention and up to this
point, all right?
A.
Okay.
Q.
By the way, before I get into that, do you
know who Greg Donis is?
A.
He's a firearm's guy.
Q.
Have you ever read his deposition?
10
A.
No, I have not.
11
Q.
Have you talked to him?
12
A.
Yes, I have.
13
Q.
When?
14
A.
Today, and the last time I was here.
15
Q.
The last time you were here, does that
16
mean the time of the last hearing?
17
A.
Yes.
18
Q.
Before that had you ever talked to him?
19
A.
I don't think so.
20
Q.
You were retained in the case July 11,
21
2014, correct?
22
A.
Correct.
23
Q.
And you were essentially asked to
24
determine, as I understand it -- and, by the way, I
25
have gone over your deposition so a lot of the


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questions, Doctor, will be along the lines of your
deposition, okay?
A.
Yes.
Q.
Have you had a chance to review it?
A.
I have indeed.
Q.
You were asked to form an opinion as to
I reviewed it today.
the directionality of the shot, correct?
A.
Yes.
Q.
And you arrived at the opinion regarding
10
directionality of the shot that you have expressed
11
here today, correct?
12
A.
Yes.
13
Q.
An orientation from back to front, and I
14
think slightly to the right, and at least one of the
15
wounds --
16
A.
Quite a bit to the right and also down.
17
Q.
And that's your opinion --
18
A.
Yes.
19
Q.
-- in this case, right?
20
A.
Yes.
21
Q.
That's also the opinion of the medical
22
23
examiner, Dr. Steckbauer, isn't it?

A.
As I understand it, and I read his
24
deposition today again, too, and as I understand his
25
testimony, yes.

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Q.
But he said the same thing in terms of
directionality, that it's back to front and no one,
I don't think, is disagreeing with that and then
maybe you have a little more of a right orientation,
right?
A.
Correct.
Q.
Now, were you asked at the time you were
retained to give any more of an opinion than that,
other than the directionality of the wound?
That
10
is, where you asked at that time when you were
11
retained to give more of an opinion as to what this
12
gentleman was doing, where he was, things like that?
13
A.
I might have been.
14
Q.
Do you know that you were withdrawn as a
15
I don't recall.
witness in this case in August of 2014?
16
A.
You told me that.
17
Q.
But you never knew it?
18
A.
No.
19
Q.
So when you got the materials, and let's
20
go over what you got, you got materials in July 2014
21
presumably when you were retained, correct?
22
A.
Correct.
23
Q.
You got the ME report?
24
A.
Yes.
25
Q.
You got the firearm's report by the

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firearm's people, right?
A.
Yes.
Not very helpful, but I got it.
Q.
Autopsy report?
A.
Yes.
Q.
And the deposition of Dr. Steckbauer?
A.
Yes, and the photographs taken at the
autopsy and photographs taken at the scene by Dr.
Steckbauer.
Q.
At the time you were deposed, you had
10
never read or reviewed Jack Davis's deposition,
11
right?
12
A.
I still haven't.
13
Q.
And the same thing with Jasmine Davis.
14
You never reviewed that, nor have you reviewed that
15
now?
16
A.
No.
17
Q.
You didn't receive any information as to
18
the relative position as to where Jack was at the
19
time of the shooting, right?
20
21
22
A.
Other than what's in the police reports,
Q.
And did you get any information as to the
no.
23
angle that existed from any of the materials between
24
where Jack Davis was, who fired the weapon, and the
25
gentleman on the wave runner?


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A.
No.
Q.
How about do you know what the sightline
between -- that is, whether the gentleman on the
wave runner was below Jack's sightline or above it?
A.
I really don't know that.
I know that the
seawall is obviously higher than the waterline,
which would make him lower.
don't know.
9
10
Q.
But other than that, I
Did you get any information about the wave
action at the time or the tides?
11
A.
No, I did not.
12
Q.
Would it be fair to say the only
13
information, the only information that you got
14
regarding the scene or the incident is what the
15
lawyer told you, right?
16
17
18
A.
No, and what Dr. Steckbauer, he went to
the scene and I had the pictures from the scene.

Q.
Dr. Steckbauer didn't know any of the
19
answers to the questions I just asked you either,
20
right?
21
A.
Not that I recall.
22
Q.
What I'm saying in terms of the events
23
leading up to the shot, Dr. Steckbauer certainly
24
wasn't there and he didn't investigate that, did he?
25
A.
He was not there.
He got there some hours

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later.
Q.
So in a determination as to what led up to
the shot, where the parties were, you know, what the
movement of the wave runner was, you didn't get one
shred of information in this case from anybody
except what Mr. Durkee told you, correct?
A.
Correct.
Q.
Now, I told you, you were withdrawn as a
expert, I think, in August of 2014.
When did you
10
ever have another meeting and have anything to do
11
with this case after you were withdrawn in August?

A.
12
I don't really recall.
I can look it up.
13
It was like in October or September or maybe
14
November even.
Q.
15
16
were withdrawn, right?
17
18
19
20
But again, you had never been told you
A.
Hardly anybody ever tells me anything like
Q.
You sure weren't told that you were no
that.
longer being utilized as a witness, right?
21
A.
No.
22
Q.
And as of that point, as of the time you
23
were withdrawn, you have been involved in the case
24
for about three weeks and you've presumably given
25
Mr. Durkee an opinion regarding the directionality


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of the wounds, right?
A.
Yes.
Q.
Which is the same, as we know, as the ME,
correct?
A.
Correct.
Q.
And then I think you said, and this is
just to help you, I think you said you next had a
meeting in October of 2014?
A.
Yes.
Correct.
Thank you.
10
Q.
And that was an in-person meeting?
11
A.
Yes, I believe it was.
12
Q.
And you were not presented with any more
13
information in that meeting other than the attorney
14
telling you what he believed happened leading up to
15
the event, right?

A.
16
Actually, I don't know that he told me
17
that.
18
about where the projectiles were.
19
I just reiterated the opinions that I had
Q.
This was the first case involving an
20
analysis of someone being shot on a wave runner that
21
you've ever dealt with, right?
22
A.
I believe so.
23
Q.
With regard to the movement of a wave
24
25
runner, do you have any knowledge of how it moves?

A.
Yes.

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Q.
Where does that knowledge come from?
A.
From operating wave runners.
necessarily this model.
hour, but earlier models I've operated.
Not
This model goes 70 miles an
Q.
When was that, Doctor?
A.
Well, in the '60's, '70's, '80's.
7
8
9
think I operated any in the '90's.

Q.
I don't
I might have.
Do you know enough from your experience to
know that it doesn't take much at all to move a wave
10
runner?
11
A.
Correct.
12
Q.
You know in idle it can move, it can spin,
13
14
it can actually go forward, right, you know that?

A.
Yeah, the only change in that is that if
15
you're operating a wave runner at a high rate of
16
speed, it takes a big rotation around because other
17
than that, you will pull too many Gs and you will
18
knock yourself off.
19
You have to keep the right hand operating the
20
throttle to keep it moving at a high speed.
21
Q.
It's got a kill switch on it.
With regard to what happened that day, I
22
think when we discussed this before, you told me
23
that what a thief does, a thief, he tries to escape
24
and I think the words were, "he doesn't carry,"
25
right?

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A.
Right, he doesn't carry.
Q.
And it was your belief from talking to a
lawyer, or I'm not sure where you got this.
A.
I got it from the newspaper, too.
Q.
Let me see if the newspaper said that at
the time the shot took place, that this gentleman
had his hand on the throttle for maximum speed.
Didn't you tell me that?
9
10
11
A.
That would be what I would imagine he
would be doing.
Q.
And if this thing goes 70 miles an hour,
12
and at the time you jump on it, and give it the
13
throttle for maximum speed, you're going to take off
14
pretty fast, aren't you?
15
A.
Correct.
16
Q.
And you're not going to get 70 miles an
17
hour right away, but when you hit that throttle, as
18
you believe and were led to believe in this case,
19
he's speeding up very fast, right?
20
A.
Correct.
21
Q.
Now, did the attorney tell you that at
22
that point when he was speeding off and hit the
23
throttle, that that is when the shots took place,
24
when he was taking off on this wave runner with
25
maxed throttle?

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A.
No.
I mean, I could tell a lot more if I
knew exactly where he was when he got shot, but I
don't have those data and it's not in the police
report.
Q.
Have you ever listened -- I think I know
the answer to this, but I think I am going to ask
you any way.
have you?
You never listened to the 911 tape,
A.
No, I haven't.
10
Q.
Do you understand as you sit here today
11
that there was a length of time or duration of time
12
from the time an instruction was given to shoot
13
until the shot took place?
14
as you sit here today?
Do you understand that
15
A.
I believe that's true, yes.
16
Q.
Where did you get that information?
17
A.
I can't remember.
18
Q.
Now, do you have any estimate, even if you
19
don't remember specifically, as to how much time or
20
seconds elapsed from the time the word "shoot"
21
occurred or the instruction "shoot" occurred until
22
the shot was fired?
23
A.
I really don't, because I haven't listened
24
to the tape and obviously both of those events were
25
on the tape and whatever it is it is.


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Q.
I think you agreed with this and I think
you said it.
A.
Sure.
Q.
"The front to back orientation tells us
Let me just read it here.
this.
It tells us the position of the head
vis-a-vis the muzzle when the pellets entered it,"
right?
A.
Yes.
Q.
It doesn't tell us -- it doesn't tell us
10
what the head was doing five seconds before, right?
11
A.
No.
12
Q.
Or three seconds before, right?
13
A.
No.
14
Q.
And it doesn't tell us what position the
15
wave runner was in five seconds before, does it?
16
A.
No.
17
Q.
Or three seconds before, right?
18
A.
No.
19
Q.
And it doesn't tell us, say, in a
20
three-second span from the time an instruction was
21
given to shoot, until the shot occurred, it doesn't
22
tell us in any way what the wave runner did in that
23
period of time, right?
24
25
A.
No.
Other than the position is, again,
he's looking that way towards you actually and the


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shot is coming from the corner of the courtroom.
2
3
4
Q.
Exactly.
Were you going to say something
A.
I was going to say, but that's at the time
else?
the shots were fired.
but individual pellets.
7
8
Q.
We agree.
Well, it was just one shot,
And I think you were talking
about the turning of the head, remember?
A.
Yes.
10
Q.
I think no one would probably disagree.
11
Well, maybe someone would.
We pretty much don't
12
disagree, do we, that from the time the shot was
13
fired, until it enters the skull, that in those
14
milliseconds or hundreds of seconds, that you were
15
saying --
16
A.
Microseconds.
17
Q.
Microseconds, we agree that no one in that
18
time, from the shot until it enters, could ever turn
19
their head in time to change the orientation of the
20
head vis-a-vis the muzzle from the time the shot was
21
fired until they enter, correct?
22
that, right?
23
A.
No, that's impossible.
24
Q.
Now, the normal turning of the head, I
25
No one could do
think you told me there has been a lot of studies


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that says something like a person -- I don't know
whether it's a young person, but the average person
could turn their head from, I guess, 180 degrees, 90
degrees in either direction and it takes about,
what, a second and a half to turn your head?
A.
Yes, the fastest that you can possibly do
that is just over two-tenths of a second.
That's
how long it takes basically for the nerve impulses
to go to the muscles and the muscles to contract.
10
Recognition of whatever the stimulus was that caused
11
you to move your head, well, that takes more time.
12
Q.
Did you ever get or obtain any distance or
13
even an estimated distance from the muzzle from the
14
shotgun to where the wave runner was at the time the
15
shot entered Mr. Munoz?
16
A.
No.
The only thing I know is that it was
17
more than three feet, but that's kind of not very
18
helpful.
19
knew that with some degree of certainty, I could
20
calculate a bunch of other things about how fast you
21
could do this or that, but I don't have that
22
information.
23
Q.
But other than that, I don't know.
If I
Now, were you told by the plaintiff's
24
lawyer that he believed at the time of the incident
25
this gentleman was sitting or standing or straddling


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1
2
on the wave runner?

A.
No, I don't remember him saying that
exactly, but I assumed that he was operating the
wave runner.
Q.
Right, I think actually you said, if
you're going to hit the throttle, and you're going
to take off, you probably better be sitting down,
right?
A.
If you're not, it will put you down.
10
mean, the G-forces are going -- you know, pure
11
inertia, if you accelerate, a wave runner will make
12
you sit down, even if you're standing up.
13
Q.
Did the attorney for the Munoz family tell
14
you any more, other than the fact that your
15
assumption that he was sitting down because he was
16
throttling out into the bay, did he tell you any
17
more about what the evidence was one way or the
18
other with regard to other than sitting, what
19
Mr. Munoz was doing?
20
A.
Not that I recall.
21
Q.
Was he leaned over the wave runner when he
22
23
was struck?
A.
I don't know that with any degree of
24
certainty.
25
up with whatever postures you can assume and there

I just know that you have to line this

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1
2
aren't that many if you're straddling a wave runner.

Q.
When the wave runner is in idle, based on
your prior experience, can it move in circles or
move around?
A.
6
7
8
Yes, it can.
It idles.
It still goes.
It just doesn't go very fast, 1 or 2 miles per hour.

Q.
And it can actually, when it's in idle,
just with very little movement, spin or turn?
A.
Yes.
10
Q.
But, again, in your scenario here, that
11
wasn't occurring.
12
believe is that he was actually hitting the
13
throttle, and I think your words were, to achieve
14
maximum speed to get away, right?
15
A.
As far as you have been led to
I don't know that with any degree of
16
certainty, but that's based upon a lot of other
17
scenarios where people were fleeing with materials
18
they had stolen.
19
car, or running, or in this case, a wave runner.
20
Q.
That's what they do either in a
So, I mean, we agree that the typical
21
person who is stealing something, the typical thief
22
is going to do whatever he can -- well, let's take a
23
boat or wave runner.
24
thief doesn't want to be caught, right?
25
A.
We can agree that the normal
Yes, that's correct.

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Q.
And most thieves, when they try and steal
something, their first inclination is to get away,
away from the scene as fast as they can?
A.
Correct.
Q.
Right so they are not caught or
identified.
And actually, I think you said you have
seen surveillance videos showing people, right?
A.
Yes.
Q.
And they kind of just don't carry and
10
especially, as you said, if someone has a shotgun,
11
you would expect that they would be doing things
12
like speeding up into the bay, right?
13
A.
Exactly.
14
Q.
Did you review any information as to where
15
16
17
Mr. Munoz's body was found after this incident?

A.
No, I didn't.
It's not in the police
reports that I've read.
18
Q.
What police reports have you read?
19
A.
The one of the ME office.
20
Q.
Other than that, other than the ME report,
21
the death investigation report, you haven't reviewed
22
any of the other police reports, have you?
23
A.
No, I have not.
24
Q.
Were you given any information by
25
plaintiff's counsel that you didn't review as to


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where Mr. Munoz's body was found?
A.
No.
Q.
Do you have any information as to how long
after the shooting incident his body was first
observed by law enforcement personnel?
A.
I have no idea.
Q.
Going back to Greg Donis.
You spoke to
him, where, in the parking lot out here at the time
of the last hearing or tell me where you spoke to
10
him.
11
A.
In the law library.
12
Q.
In the law library?
13
A.
Uh-huh.
14
Q.
Was that before you testified, before you
15
were supposed to testify or was that after we
16
adjourned the hearing?
17
A.
Before.
18
Q.
And what were you discussing?
19
A.
Oh, a whole number of matters, nothing
20
about this case specifically.
21
firearm's guy and I always try to learn from firearm
22
guys.
23
24
25
Q.
But, you know, he's a
Is that where you first -- there is
nothing wrong with this, but -A.
Yes.

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Q.
-- is that when you first talked about
possible work that could be available in New
England?
A.
Yes.
Well, I don't know that we talked
about it then, but he sent me an e-mail
subsequently.
Q.
In the law library with regard to this
conference -- well, I don't want to call it a
conference.
You were just talking with him --
10
A.
Yes.
11
Q.
-- waiting in like the green room, I
12
13
14
suppose, right?
A.
Well, I don't it's green, but it has a lot
of really old law books.
15
THE COURT:
16
THE WITNESS:
17
Q.
Lots of mold.
Yes, that's true.
Did you discuss anything about that you
18
can recall anything about this case, about his
19
opinions, your opinions, the opinions of Steckbauer,
20
et cetera?
21
A.
No.
22
Q.
Did you show him anything?
23
Did you
demonstrate anything to him?
24
A.
No.
25
Q.
It was just essentially, what,

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1
2
pleasantries?
A.
Pretty much.
And, you know, we talked
about some other cases, some ones that I had and
some ones that he has had.
Q.
Other than that conversation you had with
him in the law library here, have you had any
conversations with him since that time?
A.
Yes.
Q.
That you recall?
10
A.
Yes, in the law library today.
11
Q.
Anything about the case today?
12
A.
No.
13
Q.
Other than the two law library conferences
14
or conversations, did you ever speak to him again
15
after that last visit in the law library?
16
A.
No, I don't think I spoke to him.
17
have spoken with him, although I think our
18
communication was by e-mail.
I might
19
Q.
Concerning what?
20
A.
He said, "Could I have your CV because I
21
have some cases here that you might be interested
22
in," and I said, "Sure.
23
24
25
Q.
That's the interest about possibly doing
some work in New England, right?

A.
Yes.

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1
2
Q.
And to this day, you still have never read
his deposition, right?
A.
I have not.
Q.
And you don't know as you sit here today
what any of his opinions are, do you?
A.
No, I do not.
Q.
Have you been told at all by plaintiff's
counsel as to -- this is different from have you
read anything, but have you been told at all what
10
11
Mr. Donis's opinions are in this case, if any?

A.
MR. MURPHY:
12
13
Not that I recall.
have.
14
THE COURT:
15
MR. DURKEE:
18
Any redirect?
Short, Your Honor.
16
17
That's all the questions I
BY MR. DURKEE:
Q.
Dr. Write, the questions were posed to you
19
about me leading you to believe.
I mean, wasn't the
20
way I posed the questions to you, sir,
21
hypothetically if this scenario was going forward,
22
is that consistent with the wounds that you saw in
23
the head?
24
A.
That's how you asked questions.
25
Q.
I mean, I never, quote, unquote, "led you

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to believe anything," did I?
A.
No.
Q.
Now, let me ask you about the normal way a
medical examiner's office -- I mean, we took
Dr. Steckbauer's deposition.
reviewed testimony, not reviewed -- I mean, is that
the way a medical examiner's office normally works?
He had also not
A.
Yes.
Q.
Why is that?
10
A.
Well, there is a time constraint to start
12
Q.
But I mean --
13
A.
Nobody has given any statements by the
11
with.
14
time we have the body and we do our work.
So
15
generally speaking -- there are exceptions, but
16
generally speaking, eyewitness testimony and that
17
sort of thing, we don't get.
18
What we are able to do is look at the
19
physical evidence and then somebody else or us,
20
even, if we should find out what the eyewitness
21
testimony is, say, "Yeah, that's consistent," or
22
Wait a minute, that couldn't have happened that
23
way."
24
25
Q.
And isn't it because the medical
examiner's office tries to rely on the pure


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objective evidence and not necessarily testimony,
they want to rely on the objective evidence they
find?
4
5
A.
Absolutely.
That's our huge bias is
towards the objective physical evidence.
Q.
Let me ask you one last question, Doctor.
A.
Sure.
Q.
At the moment I'm peering down a shotgun
and I pull that trigger --
10
A.
Yes.
11
Q.
-- is that skull approximately the
12
13
direction it would be when I fire that weapon?

A.
Give or take.
I would turn it about
14
another 10 degrees to the left, but other than that,
15
it's the same.
16
17
18
Q.
That's what I would see when I pulled the
trigger?
A.
Sure.
19
MR. DURKEE:
I have no further questions.
20
MR. MURPHY:
Obviously, I don't think
21
there is --
22
THE COURT:
23
MR. MURPHY:
24
25
I'm sorry?
I don't think there is any
recross so -THE COURT:

Only if something new comes

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up.
MR. MURPHY:
2
3
up.
THE COURT:
4
5
THE WITNESS:
THE COURT:
Glad to be here.
You have one or two more, Mr.
Durkee?
MR. DURKEE:
10
12
Thank you, Doctor.
(Witness excused.)
11
Okay.
appreciate your being here today.
Nothing new has been brought
I think we have one, Your
Honor.
Your Honor, I have been informed that
13
Louisa Escobar, who is a teacher of Reynaldo
14
Munoz, Jr. in his last year in school, that her
15
father has died, and because of her death in
16
the family, she has called us up and said she
17
can't be here today and I expected her to
18
testify today.
19
told her to mourn her dad --
She is under a subpoena, but I
20
THE COURT:
Exactly.
21
MR. DURKEE:
-- and I didn't force her to
22
be here today.
23
take up any more of the Court's time, that I be
24
allowed to take a quick deposition, within a
25
week or as soon as I can get her out of the

I would propose, so we don't

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mourning stage and proffer that to the Court.

THE COURT:
2
3
with that.
Mr. Murphy, what is your position?
MR. MURPHY:
Well, I don't have a problem
Well, in lieu of that, I
couldn't take any other position.

THE COURT:
All right.
I mean, it doesn't
have to be done in a week because we have other
things that are going to happen in this case and
I have a lot to read.
So let sufficient time go
10
by.
Wait until, you know, whatever is
11
appropriate.
12
of what needs to be provided by the attorneys
13
and what I still need to read, there is not
14
going to be any decision in the coming week,
15
obviously, because things that you all want
16
to -- as far as memorandums and all that is
17
going to take time, you may want this transcript
18
and things like that.
There's not going to be -- because
MR. DURKEE:
19
Absolutely.
20
one last witness, Your Honor.
21
Williams.
THE COURT:
22
23
Mr. Wayne
How long is Mr. Williams going
to be?
MR. MURPHY:
24
25
So we only have
You're not calling Greg
Donis?

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MR. DURKEE:
THE COURT:
No.
I'm sorry you are so
disappointed, Mr. Murphy.

MR. MURPHY:
It took ten hours of my life,
and gray hair, more gray hairs.
all of that?
THE COURT:
I mean, after
With whom we have sitting in
the courtroom, gray hair seems to be the color
of the day.
10
Well, some don't have it.
That's
okay, Mr. Bissett.

MR. MURPHY:
11
Can I just say something,
12
Judge?
Obviously, plaintiff's counsel can call
13
anybody he chooses, but you might remember one
14
of the reasons this was continued the first time
15
is among other reasons is this man was crucial.
16
You might have heard this before.
17
THE COURT:
18
MR. MURPHY:
I have.
That it was crucial with all
19
these target tests.
20
deposition two times and, I mean, I guess he
21
doesn't have to use him.
22
reason why he doesn't have to.
23
THE COURT:
We have taken his
I mean, there is a
He doesn't have to.
I mean,
24
if you wish to call him, you can call him if you
25
think it's rebuttal.


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1
2
3
MR. MURPHY:
You know what, since we are
not ending this today, maybe -THE COURT:
Let me ask you all this, one
thing I don't think I have heard, and I don't
know, I have not read Officer Zabielinsky's
depo -- I guess he was on the scene after 911.
He's the one that came up first.
MR. DURKEE:
yes, Your Honor.
10
THE COURT:
He's the first responder,
I haven't, and it might be in
11
his depo I have not read because I was waiting
12
to see if he was going to be offered as a
13
witness through a deposition, but I haven't
14
heard where the body was found or what the
15
officers said in the depo.
16
photographs or anything like that.
17
MR. MURPHY:
I don't have the
It's in his depo, Judge, and
18
it's also marked as an exhibit, the X's where he
19
found it and that is attached to our
20
designations.
21
THE COURT:
I did see, as I thumbed
22
through the things, as I was going through
23
things a couple of days ago, there was a
24
diagram.
25
I just wanted to make sure.
MR. DURKEE:
That is part of his

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testimony.
MR. MURPHY:
THE COURT:
That's all addressed.

Okay.
I just wanted to make
sure.
Let's bring in Mr. Williams and then we
will talk about scheduling afterwards.

MR. DURKEE:
6
7
him, Your Honor.
THE COURT:
I think they have gone to get
Mr. Williams, hello.
will come forward, please.
If you
This is the witness
10
stand over here, sir.
11
and walk around.
12
step up and after you walk around here, there is
13
a chair.
14
the Clerk will administer the oath and then the
15
attorneys will ask you questions.
Watch out, there is a little
If you will raise your right hand and
You can swear or affirm, whatever you
16
17
If you will come around
want.
18
THE WITNESS:
I affirm.
19
THE COURT:
20
Mr. Durkee, you may proceed.
That is fine.
21
22
23
24
25
Thereupon:

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WAYNE WILLIAMS
1
2
was called by the Plaintiff and, after first being
duly sworn, was examined and testified as follows:

DIRECT EXAMINATION
4
5
6
7
8
BY MR. DURKEE:
Q.
A.
13
No problem.
THE COURT:
State your name for the record
for me.
THE WITNESS:
11
12
Thank you
for coming.
9
10
Good afternoon, Mr. Williams.
Q.
Wayne Williams.
Mr. Williams, what do you basically do for
a living in the last few years?
14
A.
I repair Jet Skis.
15
Q.
And you have done that for a number of
16
years now, correct?
17
A.
Yes.
18
Q.
How many years have you been doing that?
19
A.
I've been in business for about 11 years.
20
Q.
So you are pretty intimately familiar with
21
wave runners and how they operate?
22
A.
Yes.
23
Q.
At some point, you had done work for
24
25
Mr. Davis on his wave runners, correct?

A.
Yes, sir.

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Q.
After this incident happened, he called
you up to come pick up the wave runner to take it to
your shop because his family didn't want to look at
it anymore, basically.
Is that about right?
A.
Yes, sir.
Q.
Now, when you went there to pick it up.
Mr. Davis gave you the lanyard that he normally used
to start the wave runner, right?
A.
Yes, sir.
10
Q.
And he tried to do that and it wouldn't
11
start.
Is that right?
12
A.
Yes, sir.
13
Q.
So at that point, you started to try to
14
figure out why it wasn't starting, right?
15
A.
Yes.
16
Q.
And you opened up the front compartment
17
and you looked into it.
18
it, what did you see?
19
20
21
A.
As soon as you looked into
I saw the receiver sitting inside of the
Jet Ski.
Q.
And I think we talked about this, it's
22
sort of a wall that is at the back of the front
23
compartment that had sort of been forcibly ripped
24
off, at least that's the way it looked to you?
25
A.
Yes, sir.

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Q.
There is some little tabs that are used to
secure that door to the back part of the wave
runner, those had sort of been popped loose.
that right?
Is
A.
Yes, sir.
Q.
And if you do it in a nice, normal, calm
fashion, like you do when you work in the shop, you
can usually remove that panel without breaking those
little devices.
Is that right, sir?
10
A.
Yes, sir.
11
Q.
In this case, there were some of those
12
secured devices that had actually been broken
13
because whoever ripped it off, sort of ripped it off
14
forcibly.
Is that right?
15
A.
Yes, sir.
16
Q.
And that was at least your impression of
17
it when you saw the fasteners broken, someone must
18
have really ripped this off quick in order to break
19
those little secured devices.
Is that right?
20
A.
Yes, sir.
21
Q.
Now, one thing you saw was a -- I think
22
you called it a receiver?
23
A.
Yes.
24
Q.
And that was sort of at the back of
25
where -- it was at the back of the front


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compartment, sort at the entranceway where that
thing was ripped off, the door was ripped off.
that right?
4
5
6
7
A.
It was -- it was right at the door, the
entrance of the door.

Q.
Right at the entrance of the door that is
at the back of the front compartment?

Let me show you a picture and maybe it
8
9
will help.
I want to show you what has been marked
10
as A-11.
11
police got there, correct?
Now, this picture was taken after the
12
A.
Yes, sir.
13
Q.
And these gloved hands are really the
14
Is
police officers, not yours, right?
15
A.
Yes, sir, police officers.
16
Q.
Now, this is the door we are talking about
17
at the back of the front compartment.
18
right?
Is that
19
A.
Yes, sir.
20
Q.
First of all, this black device was
21
connected to this female receiver.
Is that right?
22
A.
Yes, sir.
23
Q.
And where was this black device in
24
25
relationship to this doorway when you first saw it?

A.
It was hanging right -- as soon as you

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open it up, it was hanging right there.
like --
Q.
Point it out for us.
A.
It was just about in this area, by this
So it was
area (indicating).
Q.
So sort of at the bottom of the doorway?
A.
Yes, bottom of the doorway.
Q.
Right at the entranceway?
A.
On the outside.
10
Q.
On the outside of the entranceway?
11
A.
Yes, sir.
12
Q.
So that is where the black device was and
13
that was connected to this device.
Is that right?
14
A.
Yes, sir.
15
Q.
Where was the one that normally existed
16
inside the wave runner?
That was in the
17
compartment, normally inside the front compartment,
18
but it was inside this back compartment.
19
right?
Is that
20
A.
21
corner.
22
Q.
Over here on the other side (indicating)?
23
A.
The other corner.
24
Q.
So if I am looking at the picture, it's to
25
Yes, sir, in the other corner, the right
my right or to the other side?


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A.
Exactly.
Q.
So behind these hands?
A.
Yes.
Q.
So if I am looking at the front of the
wave runner, it would be on the left-hand side of
the wave runner?
A.
Yes, sir.
Q.
And that was secured to the side of the
wave runner like it normally is, right?
10
A.
Yes, sir.
11
Q.
Now, if I'm a thief and I want to put one
12
of these foreign receivers inside of the wave runner
13
in order to make it operate, the steps I would have
14
to take -- the first thing I would have to do is
15
open up the front compartment, right?
16
A.
Yes, sir.
17
Q.
Then I would have to rip off the back door
18
to the guts of the internal part of the wave runner.
19
Is that right?
20
A.
The door, yes.
21
Q.
The door?
22
Is that what we are going to
call it?
23
A.
A partition.
24
Q.
I would then have to disconnect the wires
25
from the existing receiver?


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A.
Yes.
Q.
I would then have to take the new receiver
and I would have to take the female part and the
male part from the receiver and I would have to
stick them together?
A.
Yes.
Q.
And those are the steps that I would have
to do in order to hookup the foreign receiver to the
wave runner.
Is that right?
10
A.
Yes.
11
Q.
Now, if I were to open up the front
12
compartment and take the black device and flip it in
13
quickly, could I connect the female receiver to the
14
male receiver?
15
A.
If you were to throw it in quickly?
16
Q.
Yes.
If I was just standing next to the
17
wave runner and I threw it in the front compartment,
18
could I connect those two by doing that?
19
A.
No, sir.
20
Q.
Now, just the mechanics of the wave
21
runner, the throttle is on the right-hand side.
22
that right?
Is
23
A.
Yes.
24
Q.
So in order to actually operate the wave
25
runner, I would have to have my right hand on the


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handlebars, so that I could use the throttle and
power it.
Is that right?
A.
Yes.
Q.
If I had my right hand in the front
compartment, the wave runner would not at least be
able to be at full throttle, it might move forward
slightly, but it would not be able to be throttled.
Is that right?
A.
That's right.
10
Q.
Unless I use my left hand over on the
11
right hand throttle?
12
A.
Exactly.
13
Q.
Which would be almost impossible if I am
14
leaning over the wave runner with my right hand, it
15
would be pretty hard to grab the throttle with the
16
left.
Is that right?
17
A.
That is correct.
18
Q.
Now, I think we just talked about that, I
19
think we talked about this several times, but I just
20
want to make sure we got it right.
21
on the throttle on a wave runner, it's going to
22
move?
23
A.
Yes.
24
Q.
If it's in the water?
25
A.
If it's in the water, yes.
If I don't push

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Q.
If it's in the water, it's going to move
somewhere on the water even if I don't grab the
throttle?
A.
Once it's started, it will move forward.
Q.
Now, the wave runner, in order for it to
start and then continue to operate, that foreign
receiver -- if I'm a thief stealing it, that foreign
receiver has to be connected to the female part of
that wiring the whole time so the wave runner
10
operates, right?
11
A.
Yes.
12
Q.
If I take that foreign receiver and
13
disconnect it from the wiring, the wave runner goes
14
off, right?
15
A.
Yes.
16
Q.
Let me ask you one last question.
Does
17
the wave runner have the capacity to spin like a
18
circle, like a top?
19
A.
Yes.
Not at fast speed, but pretty much
20
if you -- not like a top, but it goes around in a
21
circle, yes.
22
Q.
23
It would have to go in some sort of a
circumference circle, right?
24
A.
Yes.
25
Q.
It couldn't just sit on the water and spin

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around like a top?
A.
No.
Q.
It couldn't do that, right?
A.
No, no, not -- no, sir.
MR. DURKEE:
THE COURT:
MR. MURPHY:
Cross.
Just a couple of questions.
CROSS EXAMINATION
8
9
BY MR. MURPHY:
10
Q.
Good afternoon, Mr. Williams.
11
A.
Good afternoon, sir.
12
Q.
Just again, you turn this thing on, it's
13
in idle, it moves forward, right?
14
A.
Yes.
15
Q.
It can spin, it can move very quickly,
16
correct?
17
A.
Yes.
18
Q.
When I say, "quickly," it can turn in
19
circles, stuff like that, right?
20
A.
Yes.
21
Q.
And it can be moving forward and you don't
22
even have to be using or activating the throttle,
23
correct?
24
A.
Correct.
25
Q.
If you wanted to direct where it's going,

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even in idle, you can, I guess, make it go straight
if you want to by putting your other hand on the
handlebars and that will help it go in the direction
that you want it to, right?
A.
When you -- yes.
Q.
With regard to this procedure that Mr.
Durkee went over with you in terms of what needs to
be done, that forward compartment, the compartment
that we talked about, we saw the photograph.
10
That
needs to be torn off, right?
11
A.
Yes.
12
Q.
You saw the plastic screws or whatever in
13
the bottom on the floor of the wave runner, right?
14
A.
Yes, in the front.
15
Q.
Once you pull that off, it's just a matter
16
of unplugging one and plugging the other one in,
17
isn't it?
18
A.
Yes.
19
Q.
That's really what we are talking about.
20
We are talking about pulling out one switch and
21
plugging in the other one, right?
22
A.
Yes.
23
Q.
That can be done pretty fast, right?
24
A.
Yes.
25
Q.
Especially if someone has -- if it turns

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out they have done that before, right?

A.
Yes.
MR. MURPHY:
THE COURT:
MR. DURKEE:
Yes, Your Honor.
BY MR. DURKEE:
Q.
8
9
Any redirect?
6
7
That's all that I have.
I would have to reach in with one hand and
grab the wiring, then I have to bring in my other
10
hand with the foreign receiver, because if I don't
11
bring in both hands -- if I try and push the foreign
12
receiver in with one hand, the wire is going to push
13
back.
I can't do it with one hand, right?
14
A.
No, sir.
15
Q.
I have to hold it with one hand and bring
16
the foreign receiver in and I have to connect it.
17
Is that right?
18
A.
Yes, sir.
19
MR. DURKEE:
20
THE COURT:

Thank you, Mr. Williams.
21
appreciate you being here today.
22
and watch your step.
25
Happy New Year
(Witness excused.)
23
24
We
MR. DURKEE:
With the qualification of
Louisa Escobar and the exhibits that we are


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going to go through to make sure what we are
putting into evidence, I have no further
witnesses.
THE COURT:
Any rebuttal?
MR. MURPHY:
But I would like to bring up something
No rebuttal, Judge.
about Mr. Donis.
I realize, I realize that
someone can call a witness and they don't have
to call a witness.
I mean, we know now that
10
he's sitting actually in the law library,
11
according to this witness, but the reason I'm
12
bringing this up is to ask the Court, and maybe
13
we can have a hearing at some point to detail
14
this, to consider the issue of attorney's fees.
15
I mean, we have spent probably six, seven
16
hours deposing this gentleman.
17
with video-conferencing depositions.
18
actually objected to his testimony.
19
in here with a big memorandum to overcome our
20
objections on that and we had a hearing on that
21
and we had to spend time for that and now after
22
all of that, now after all of that, and after
23
three years of being involved here, we are not
24
calling him as a witness.
25
We spent time
And, again, he's got that right.


We
They came
I mean,
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he doesn't have to call him out of the library,
but I just ask if at some point the Court
consider the chronology and consider an
argument regarding attorney's fees because we
spent, I would say, literally thousands of
dollars on this witness who was, you know, held
out to be critical.
as to why we put this off and why the testing
had to be done, we went through all that, and
I mean, a critical witness
10
forget about the costs, just the fees involved
11
and, frankly, it doesn't seem fair.
12
like to ask the Court if we could at some time
13
have a hearing on that and consider it.
14
MR. DURKEE:
I would
Your Honor, I'm sure if they
15
file a motion, the Court will consider it.
16
there is any grounds to sanction me or award
17
attorney's fees or costs or anything else, we
18
will happily pay them within a week and you can
19
put that on the record.
20
If
We made a strategic decision for the best
21
interest for our client.
22
every time I made a strategic decision and
23
didn't call experts, I would be the poorest guy
24
in Miami.
25
MR. MURPHY:
If I got sanctioned
Judge --

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THE COURT:
Save it.
I have to say file
whatever you want to file and I will consider
it.
said, as lawyers, and I practiced for 21 years
before I went on the bench 20 years ago, there
were times that you were sure you were going to
call a witness, then you spoke to them
beforehand and it doesn't feel right.
That being said, I think what Mr. Durkee
I understand we had hearings on it.
10
Listen, I get paid the big bucks for being here
11
for the hearings, so, you know, what I get paid
12
is fine but, you know, people can decide to do
13
it or not do it.
14
free to file whatever you want.
15
any response and decide if it even necessary to
16
have any type of hearing on it.
17
If you wish to file it, feel

I will look at
I can't preclude you from doing it, but I
18
will not do it here on the spot because, you
19
know, there's a lot of strategy that goes into
20
to when people try cases.
21
frustration, the time, the energy, when certain
22
people are considered more important and then
23
ultimately they are not important at all.
24
feel free to do whatever you would like in that
25
regard.
I understand the

But
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As we talked earlier, I know that both
1
2
sides wish to provide a memorandum.
have to do Ms. Escobar's depo.
from you, Mr. Durkee, the designations which I
do have of Zabielinsky, Rosello and Sanabria.
I -MR. DURKEE:
We first
I have to get
I have the designations, Your
Honor, a copy of them.
THE COURT:
Thank you.
I will look at
10
that.
As I have said, just because of
11
scheduling issues that you all have and while I
12
understand the pressure on all sides, what I
13
said earlier today when we were at sidebar, if
14
you all can stay in touch with each other, keep
15
me in the loop of when you think that something
16
will be filed that you can agree to and we will
17
go from there.
18
I'm not putting any time limit because of what
19
is happening and what you want me to do.
Because of the circumstances,
So I know that all families, all sides
20
21
wish to have some ruling, but we will wait to
22
see.
23
MR. MURPHY:
Excuse me, Judge, how about
24
an additional memo?
25
any type of closing arguments or -www.taylorjonovic.com
Are you going to entertain

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THE COURT:
This is what I would suggest,
if both sides want to do a closing, I will be
glad to hear closings.
street looking out to the water, but if you wish
to do it that way, or you wish to do a memo of
law and then submit proposed orders in Word, I
find sometimes as a judge, that's a helpful
template.
that's fine, too.
10
MR. MURPHY:
I will be across the
If you don't wish to do that, then
I am sure we will be filing a
11
memorandum on legal issues, but I for one would
12
like to do a verbal closing argument in this
13
case.
14
15
16
THE COURT:
Fine.
Is that okay with you,
Mr. Durkee?
MR. DURKEE:
I would, Your Honor.
I think
17
it would be appropriate.
18
you may entertain oral argument or a legal
19
memorandum.
20
factual closing at that time and then we do a
21
legal sort of summary of what we feel the
22
evidence shows.
23
24
25
It's my understanding
I would propose that we give a
THE COURT:
That's fine, then if you want
to submit a proposed order, feel free to do so.

What we will have is closing arguments

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just dealing with the factual scenario of what
the Court heard.
Any of the legal information can be
provided at a later time in a memorandum along
with proposed orders.
yourselves, as they say, to decide when that
closing argument wants to be.
8
9
You all can talk amongst
The first part of my schedule, I'm

teaching new judges college the first week in
10
January, but speak to Patty and see how long
11
you all need and we will be able to get
12
something done in the next two three, four
13
weeks, whatever you think is best.
14
would like to have an opportunity to read the
15
designations which are not that long, it will
16
not take me long, you also need to do Ms.
17
Escobar and of course we will go from there.
18
19
20
MR. MURPHY:
Although, I
Do you have any idea in terms
of the time for closing?

THE COURT:
I would think an hour would be
21
more than enough.
22
MR. MURPHY:
It certainly is, sure.
23
MR. DURKEE:
Absolutely, Your Honor.
24
25
THE COURT:
You mean how far off in the

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1
2
3
4
5
6
future?
MR. MURPHY:
Oh, no, I meant how long when
we are trying to get time -THE COURT:
Why don't you ask Patty for a
total of an hour and a half to two hours.

MR. DURKEE:
I really think it would be
appropriate, since we are carving out some time
for the Court, and in using the Court's time,
that we just do it in one session after legal
10
mailings have been proffered to the Court and
11
then we do a factual closing for maybe half an
12
hour, or 45 minutes, and then we do a legal
13
argument on what the law is for a few minutes
14
and then just do it all at one time.
15
THE COURT:
In a way, that kind of makes
16
sense just because of the scheduling issues you
17
all have.
18
took very copious notes and I look forward to
19
reading the other evidence.
20
I don't have a problem with that.
Also, I need you all to decide what
21
evidence is going to be for me to look at
22
because you may have referred to certain
23
things.
24
photographs.
25
don't know what of the State Attorney's file I

I mean, I saw exhibits.
I saw
I saw things of that nature.

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can look at.
MR. MURPHY:
will take care of that.
MR. DURKEE:
time, Your Honor.

THE COURT:
Based on your rulings, we
I think we can do it in short
Well, decide what you are
going to do because Malweena is going to keep
it.
to know what I can look at.
10
11
12
She going to give it to me and then I want
MR. MURPHY:
I'm still a little confused
about the closings and what order -THE COURT:
We are going to have you do
13
the memorandum and then do the closings right
14
afterwards.
15
see what the legal issues are, then you can give
16
your factual closing argument, and touch upon
17
anything that you think is important that you
18
want to stress in the legal part of it, and like
19
I said, you can submit, if you both wish, any
20
proposed orders.
21
Let's do the memorandum first and
MR. MURPHY:
Should we wait, then, until
22
you let us know you have completed that, then
23
you can schedule it?
24
25
THE COURT:
You all talk about the
scheduling issues that I heard about earlier.


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So I will let you all decide that, because there
are some things that are out of my control and
maybe out of the control of others that will
decide when it's going to be.
sidebar earlier.
You were at the
MR. MURPHY:
THE COURT:
touch with each other.
each other, and if you want to put me on an
10
11
Oh, yes, I was, right.

So I will let you all stay in
If you need to, e-mail
e-mail, feel free to do so.

MR. DURKEE:
Your Honor, I did go through
12
the 911 trial transcript and based on the
13
proffer that was made by Ms. Davis, where she
14
took my transcript and made some changes --
15
THE COURT:
16
MR. DURKEE:
Yes.
-- I kind of put the two
17
together and there is really only three lines in
18
the entire transcript that we disagree with.
19
have argued for the plaintiff's version in blue
20
and obviously Ms. Davis has outlined her version
21
in red.
22
of the 911 transcript is stipulated to between
23
the two of us as to the wording of it but the
24
only two or three lines that we have a
25
disagreement as to what it says.

So at least that way, you know that all

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THE COURT:
Because I did read those over.
I did listen to the tape again and I did read
those over.
MR. DURKEE:
So I did make those changes
and I am going to proffer to the Court and mark
it for ID and we will talk about whether we can
submit it as evidence or not.

THE COURT:
8
9
I think it has already been
introduced.
10
MR. MURPHY:
11
THE COURT:
12
been introduced.
13
to the Court to assist me in listening to it and
14
there were, for lack of a better way, an errata
15
sheet that has been suggested by Ms. Davis as to
16
when she listened to it some things.
17
you're down to three lines --
Well, the 911 CD has already

The transcripts were provided
MR. DURKEE:
18
19
Right.
So if
I would like to mark this for
ID.
20
THE CLERK:
This is Plaintiff's 1-N.
21
THE COURT:
And do you have any objection,
22
23
24
25
Mr. Durkee, as to -MR. DURKEE:
We will mark it for ID and we
will talk about it.

THE COURT:
Everyone, thank you, and have

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a Happy New Year.
case by both sides.
3
4
5
6
7
8
9
10
Thank you for a well-prepared
(Thereupon, the Judge retired from the

courtroom and the following proceedings were had:)
MR. DURKEE:
We are going to move
everything that is marked for ID into evidence.

THE CLERK:
You want me to mark this
record?
MR. DURKEE:
As Plaintiff's 1.
That is in
evidence.
11
THE CLERK:
12
MR. DURKEE:
13
THE CLERK:
Okay.
Hold on.
Is this evidence?
I need -- you said something
14
about a State Attorney's -- please, pay
15
attention, one time.
16
cannot come into evidence.
17
State Attorney's documents?
18
MR. DURKEE:
State Attorney's documents

Are any of these
These are the State
19
Attorney's documents that the plaintiff has no
20
objection to and as a result, these State
21
Attorney documents are going into evidence by
22
stipulation of both parties.
23
THE CLERK:
24
MR. MURPHY:
25
course.
Okay.
With our objection, of
In view of the Judge's ruling it's

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1
2
3
4
going into evidence.

THE CLERK:
Start by calling it off and
telling the court reporter.

MR. DURKEE:
Where is the list I gave you
that had them all listed, that way I can
describe a description.
For the record, the next piece of evidence
that has been stipulated to is the medical
examiner's report and that's how it's going to
10
be described on your list.
11
it marked as Plaintiff's 2.
12
THE CLERK:
13
MR. DURKEE:
You've already got

Is that right?
Correct, composite.
Composite 2, yes.
So we got,
14
No. 1 is Dr. Munoz-Diaz's medical file.
15
is the medical examiner's report.
16
No. 2
This is actually a duplicate of
17
Dr. Munoz's original records.
18
duplicative and should not be an exhibit.
19
So this is
So can you just put that as Exhibit 3?
20
What has been marked as Plaintiff's 3 is not in
21
evidence.
22
as not evidence.
23
now of No. 3.
Just make sure that is on your list
24
THE CLERK:
25
MR. DURKEE:
Because No. 1 is duplicative
Do you want to withdraw it?

Yes.
No. 3 is withdrawn.

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THE CLERK:
MR. DURKEE:
THE CLERK:
MR. DURKEE:
Plaintiff's 4 is not going into evidence.
THE CLERK:
MR. DURKEE:
I put it down on my sheet, so
That is being withdrawn.
Plaintiff's 5 is a diagram.
12
describe it?
13
list?
15
Withdrawn.
How did you
How did you describe it on your
THE CLERK:
Drawing, copies of drawing by
Carolina Lopez.
16
MR. DURKEE:
17
No. 6, how did you have it described?
18
THE CLERK:
19
MR. DURKEE:
Yes, that's No. 5.
What this is.

Complaint arrest affidavit,
20
Bates stamp SAO 0076 to 0077.
21
Plaintiff's 6.
22
23
No.
4 is withdrawn.
11
14
Which will be withdrawn.
I am going to have to mark it for ID.
9
10
Julian Diaz records.
This is not going in.
7
8
Okay, No. 3 is copies of --
That was
Plaintiff's 7 is fire rescue report, Bates

stamped SAO 0110 through 00115.
24
Plaintiff's 8 is Miami-Dade Police
25
Department's Specimen Receipt, Bates stamped


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SAO 0116 to 0119.

Plaintiff's No. 9 is an aerial of the
2
3
property, Bates stamped SAO 0120.
We are withdrawing Plaintiff's 10.
These are not the stack of records I had
told you to do, I swear to God.
Plaintiff's 13 is crime scene report,
10
Bates stamp SAO 0364 through 367.

Composite 14 is again another copy of the
11
12
autopsy report.
MR. MURPHY:
13
So we will withdraw that.

These are all the evidence
14
that you put in that evidentiary pile that you
15
are now not using them as evidence, right?

MR. DURKEE:
16
Well, I mean, Jeffrey Davis's
17
statement shouldn't be in evidence, do you
18
think?
MR. MURPHY:
19
What I am saying is all of
20
these is all of the police reports.
21
going to have them marked as ID.
22
putting them in evidence because you objected to
23
them.
24
25
MR. DURKEE:
You were
Now you're not
Because they are full of
hearsay.

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MR. MURPHY:
I got that.
I got that.
MR. DURKEE:
Yes.
Firearm laboratory analysis report is
Plaintiff's 15 and that is SAO 0389 through
0395.
6
7
8
9
10
11
12
13
This is Plaintiff's Exhibit 16.
It's the
crime scene report, Bates stamped SAO 0396.

This is Plaintiff's 17, death scene
investigation report, SAO 397 to 404.
We are withdrawing SAO -- I'm sorry,
Plaintiff's 18, which is SAO 0408.
This is Plaintiff's 19 narrative
continuation, Bates stamped MSPD SAO 0418-0429.
14
15
Next one is Plaintiff's 21 described as
16
narrative of Officer Y. Garcia, Bates stamped
17
SAO 0436-0442.
18
Next one is Plaintiff's 22, supplemental
19
report, Bates stamped SAO 0446 to 0450.
20
Plaintiff's 23, trace evidence lab
21
22
23
24
25
analysis, Bates stamped SAO 0452-0453.

Plaintiff's 24 is sketch of property by
Detective Gonzalez, Bates stamped SAO 530.
Plaintiff's 25 labeled
evaluation/comparison report, Bates stamped SAO

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1
2
3
4
5
6
7
8
9
10
0547 to 0554.
Plaintiff's 26, Miami-Dade Police
Department property receipts, SAO 0894-0928.
That takes us through the non-objected
State Attorney's file.
Now, the next thing I believe is all the
documents we marked for ID.
THE CLERK:
I need you to stipulate on the
record.
MR. MURPHY:
Everything else that you just
11
admitted was the things you agreed to a long
12
time ago other than what you objected to, right?
13
MR. DURKEE:
That's correct.
That's the
14
part of the State Attorney's file that we are
15
not objecting to.
16
MR. MURPHY:
Okay.
17
MR. DURKEE:
And that has been stipulated
That is correct.
18
to, at least those that we marked as actual in
19
evidence, correct?
20
MR. MURPHY:
Right.
21
MR. DURKEE:
Now, let's go through the
22
marked for ID that we did in trial and make sure
23
all of that is moved into evidence.
24
an accounting of everything that we marked for
25
ID during trial?

Do you have
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THE CLERK:
MR. DURKEE:
Right here.
Can we review them with your
list to make sure we have a complete record?
THE CLERK:
MR. DURKEE:
Start with this.

Do you want to put them all
in as defense or do you want me to put them in
as plaintiff?
8
9
10
MR. MURPHY:
You can put them as
plaintiffs.
MR. DURKEE:
So for the record, what was
11
originally marked for ID 1-A, we are now moving
12
that into as plaintiffs next exhibit in
13
evidence.
14
THE CLERK:
15
MR. DURKEE:
Plaintiff's 27.
27, Mr. Murphy by
16
stipulation.
For the rest of these documents
17
that were marked for ID, we can mark them
18
without objection for the record?
19
MR. MURPHY:
That's true.
20
MR. DURKEE:
Just for the record, we got
21
1-A for ID is now going to be known as, what,
22
Evidence 27?
23
THE CLERK:
24
MR. DURKEE:
25
THE CLERK:
That is correct.
Do you want to stamp this 27?
Go ahead.

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MR. DURKEE:
1-B for ID is now going to be
moved into evidence and that's going to be
Plaintiff's 28.
THE CLERK:
4
5
marked for ID.
The next one is
It's one of your blow-ups.
MR. DURKEE:
6
7
Correct.
That's 1-C and that's going
to now be moved into evidence as what number?
THE CLERK:
MR. DURKEE:
Plaintiff's Exhibit 29.

Then we have Plaintiff's 1-D
10
which is going into evidence and that's going to
11
be Plaintiff's 30.
12
THE CLERK:
13
MR. DURKEE:
Correct.
We have Plaintiff's 1-E which
14
will now be moved into evidence as Plaintiff's
15
No. 31.
16
THE CLERK:
17
MR. DURKEE:
18
Correct.
Next one is Plaintiff's for
ID 1-F will now be moved into evidence -MR. MURPHY:
19
We are objecting to that one
20
for the reason we did before.
21
you said you could use it for demonstration
22
purposes, whatever, but we are objecting to that
23
one.
24
25
MR. DURKEE:
You were using --
So we will keep it currently
as 1-F for ID and you have a description of that


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1-F on your chart.
How did you describe that?
THE CLERK:
Scanned photograph of Jet Ski.
MR. MURPHY:
It's demonstrative.
MR. DURKEE:
Plaintiff's Exhibit 1-G for
identification purposes is now being moved into
evidence as Plaintiff's 32.
THE CLERK:
MR. DURKEE:
9
10
Plaintiff's 1-H for ID is now
going in as Plaintiff's 33.

THE CLERK:
11
C will be all 33.
12
MR. DURKEE:
13
32.
Yes, that's Sub A through Sub
You want to put a paperclip
on this?
14
THE CLERK:
15
MR. DURKEE:
And it's composite.

Composite Exhibit No. 33
16
consists of three photographs.
17
accurate?
18
THE CLERK:
19
MR. DURKEE:
20
MR. MURPHY:
22
THE CLERK:
23
MR. DURKEE:
25
Yes.
Now, this is also for
demonstrative?
21
24
Is that
Yes.
No, the blowup one.
So 1-I for ID is now going to
be moved in as Plaintiff's 34.

The next one is for ID purposes only and

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315
that would be 1-J and that will remain for
identification as ID.
Plaintiff's 1-K, now those should be in
3
4
your book of homicide photos, right, this one
also?
6
7
I didn't take anything else
MR. DURKEE:
Do you want to leave those
out.
8
9
MR. MURPHY:
for ID and just do your binder?
10
MR. MURPHY:
11
THE CLERK:
12
You might as well mark them.

First of all, I don't have a
binder.
MR. DURKEE:
13
We will get to that.
This is
14
currently Plaintiff's 1-K for ID and it's being
15
moved into evidence.
16
moved into evidence.
17
THE CLERK:
18
MR. DURKEE:
So 1-K is going to be
As Plaintiff's 35.
Then Plaintiff's 1-L is now
19
being moved into evidence as Plaintiff's Exhibit
20
36.
21
Then for the time being, we are going to
22
leave 1-M marked for ID with pending moving it
23
into evidence once the defense counsel has the
24
time to look at it and whether we are going to
25
stipulate, it is up in the air.


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316
1
2
And these are ones marked for ID and this

stack here is all plaintiffs in evidence.
MR. MURPHY:
What is this new composite?
MR. DURKEE:
The only thing I did is I
took Jasmine's corrected that she did and I
basically adopted everything that Jasmine did.
The only thing I did was where I had to say I
don't think she said that, I think I had my own
interpretation of what she said, I put both
10
lines, then I defined up here is plaintiffs and
11
defendants.
12
are only three lines on the statement that are
13
in contrast between the two of us.
What is the red and blue.
There
14
MR. MURPHY:
Okay.
15
MR. DURKEE:
Those three lines that we
16
have a disagreement as to what we're hearing, I
17
made those three lines, here is the other one,
18
then everything else we agree on.
19
20
21
MR. MURPHY:
And there was one about,
remember, the shooting -MR. DURKEE:
I changed that to whatever
22
yours was.
23
except for these three lines.
24
25
I kept everything on your list
So this will now be moved into evidence as

plaintiff's last exhibit and that will be 37.

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317
We moved 1-M for ID into Plaintiff's 37 in
evidence.
As I said, we are left with three --
3
4
actually only two photographs for ID.
THE CLERK:
MR. MURPHY:
What about your stuff?

I was just thinking, maybe
the Judge -- these boards here, I have them in
smaller versions here.
wants bulky ones, the boards, or whatever he
10
wants --
11
THE CLERK:
12
MR. DURKEE:
13
I don't know whether he
It's up to you guys.

Are you going to keep them
whether or not they are ID or evidence any way?

THE CLERK:
14
The Judge may end up keeping
15
it because I'm not going over to family with
16
him.
17
18
19
20
21
I'm staying here.

MR. MURPHY:
I will leave them the way
they are.
THE CLERK:
This is Defense Exhibit A.
That's already in evidence.

MR. MURPHY:
We are okay with that.
22
then we have A-1 for ID.
23
A-1 for ID into evidence.
24
25
It's your call.
MR. DURKEE:
And
We would like to move
No objection.
The following
board that he's going to move into evidence, I


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318
will have no objection to.

THE CLERK:
2
3
B.
MR. MURPHY:
THE CLERK:
MR. MURPHY:
THE CLERK:
MR. MURPHY:
THE CLERK:
11
MR. MURPHY:
12
THE CLERK:
13
MR. MURPHY:
THE CLERK:
16
MR. MURPHY:
THE CLERK:
19
MR. MURPHY:
Yes.
Then there is 3, A-3 for ID.
That is Defense Exhibit D.

What do we have for five?
Four is a photo.
That is A-4 for ID.
I will
That's Defense Exhibit E.

Defendant's A-5 move into
That's Defense Exhibit F.

We move Defendant's Exhibit
A-6 for ID into evidence.
21
THE CLERK:
22
MR. DURKEE:
23
THE CLERK:
24
MR. DURKEE:
25
In evidence is C, right?
evidence.
18
20
That's Defense Exhibit C.
move that into evidence.
15
17
Next is A-2.
Move that into evidence.
10
14
That will be Defense Exhibit
That's okay?
That's stipulated.
That's G.
I have no objection if you
want to do that, too.


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319
MR. MURPHY:
THE CLERK:
A-7 for ID.

So that will become Defense
Exhibit H.
MR. MURPHY:
MR. BISSETT:
Do we have an 8 somewhere?
Note, for the record, that
particular photo is going to be missing from
these other photos.
Just for the record.
Just so you know.
10
THE CLERK:
That was taken out of here.

It doesn't affect you.
Defense Exhibit I is
11
Defendant's A-8 for ID.
12
MR. MURPHY:
13
THE CLERK:
14
A-10.
15
Defendant's Exhibit K.
MR. MURPHY:
17
THE CLERK:
18
MR. MURPHY:
19
THE CLERK:
20
MR. MURPHY:
21
THE CLERK:
23
24
25
Defense Exhibit J.
Defendant's A-10 for ID becomes
16
22
A-9 into evidence.
A-11.
Okay.
A-11.
Defendant's Exhibit L.
A-12 into evidence.
I need to put it on the record
what it is.
MR. MURPHY:
It's the lanyard, the red
lanyard.
THE CLERK:
Which A-12 for ID becomes

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1
2
3
Defendant's Exhibit M.
MR. MURPHY:
That's it.
And here are the school
records.
MR. DURKEE:
No objection.
MR. MURPHY:
The photos?
MR. DURKEE:
These are all the State
Attorney's photos, right?
composite if you want.
MR. MURPHY:
You can do that as a
These were never marked, but
10
these are labeled State's Attorney's
11
photographs.
12
13
THE CLERK:
composite.
Defendant's N in evidence
There is 558 photos?
14
MR. MURPHY:
15
THE CLERK:
16
MR. MURPHY:
Yes.
Do I need to put it 556?
I think you can just put
17
school records admitted into evidence.
18
you can just put school records.
19
20
21
THE CLERK:
The school records is Defense
Exhibit O composite.
MR. MURPHY:
Now, these are just to be
22
marked for ID only.
23
because they have objected to it.
24
54-page homicide report.
25
I think
THE CLERK:
They are not in evidence

It's a
Defendant's for ID, A-13,

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that's a composite.
MR. MURPHY:
Last for ID only 8 page
narrative continuation.
THE CLERK:
A-14 ID composite.
to mark it separately?
You want
MR. MURPHY:
THE CLERK:
MR. MURPHY:
(Thereupon, at 5:15 p.m. the hearing was
10
Yes.
A-14 for ID composite.
That's it.
adjourned.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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322
CERTIFICATE
1
2
3
4
STATE OF FLORIDA
COUNTY OF DADE
)
)
5
6
7
8
9
I, Jill M. Kircher-Echarte, court reporter

and Notary Public, in and for the State of
Florida at large, do hereby certify that I was
authorized to and did report said hearing in
stenotype; and that the foregoing pages,
numbered 1 to 322, inclusive, are a true and
correct transcription of my shorthand notes of
said hearing.
10
11
12
13
14
15
16
17
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I further certify that said hearing was

taken at the time and place hereinabove set
forth and that the taking of said hearing was
commenced and completed as hereinabove set out.
I further certify that I am not an
attorney or counsel of any of the parties, nor
am I a relative or employee of any attorney or
counsel of party connected with the action, nor
am I financially interested in the action.
The foregoing certification of this
transcript does not apply to any reproduction
of the same by any means unless under the
direct control and/or direction of the
certifying reporter.
IN WITNESS WHEREOF, I have hereunto set my
hand this 8th day of January, 2015.
20
________________________________
Jill Kircher-Echarte
Notary Pubic - State of Florida
Commission No.: EE194663
Expiration: June 18, 2016.
21
22
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24
25

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Evidentiary Hearing Day 2, 2011 Killing of Reynaldo Muñoz

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Evidentiary Hearing Day 2, 2011 Killing of Reynaldo Muñoz

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Munoz vs.

December 29, 2014

IN THE CIRCUIT COURT OF THE 11TH

Taylor, Jonovic, White, Gendron & Kircher-Echarte

Munoz vs. Davis

December 29, 2014

THE MCGRANE LAW FIRM, by

(By Mr. Durkee)

Taylor, Jonovic, White, Gendron & Kircher-Echarte

Munoz vs. Davis

December 29, 2014

May I proceed, Your Honor?

Thank you everyone.

Good afternoon, Detective.

First of all, to go back just for a

moment, I just want to make sure we are clear

because we kind of got caught up with what the exact

language was, but at the time that you, quote,

"suspected that no crime has been committed" maybe

in the first hour or two of your investigation, the

only evidence you had was Jasmine's statement,

What else did you have?

Well, I talked to the officers.

been through the back of the residence, several

things had transpired.

But what specifically were you relying on

to form a conclusion within the first hour or two

Taylor, Jonovic, White, Gendron & Kircher-Echarte

Munoz vs. Davis

December 29, 2014

that, quote, "you suspected that no crime had been

committed," other than the statement that we talked

about because I want to list them specifically, not

just walking around the premises?

evidence did you perceive or see that led you to

this conclusion that you suspected that no crime had

Well, I was there to conduct a death

investigation and that's what I was doing.

with the officer who had already spoken to Ms.

Davis, took that into consideration.

was, at that point what I thought was an armed

burglary and a family defending themselves.

So the only thing you had at that

point was Jasmine's statement, correct?

Well, like I said, I walked through.

had been to the back.

information that I was told at that time.

don't know if I can list thing by thing.

I was absorbing all of the

osmosis, but if you would for the Court, please list

any -- and you can list anything.

Taylor, Jonovic, White, Gendron & Kircher-Echarte

Munoz vs. Davis

December 29, 2014

you list them all or one or two, but I know we

talked about Jasmine's statement, what else were you

specifically that you were relying on to come up

with the conclusion that, quote, unquote, "You

suspected that no crime had been committed"?

Can you tell this Court anything else

Then I guess we are going to have to go

through my report and I can tell you the things I

did and the steps that I took.

I'm not sure there