Aaron Hughes

The Perlmutter Center for Justice

Memo Regarding Ballistic Evidence in John Doe’s Case

Defense Counsel Inadequately Confronted Ballistics Evidence

The bullet that entered Jane Doe’s skull failed to penetrate the skull, and instead

traveled under her scalp. Trial Tr. at 31. The state offered in its opening that “[the bullet]

doesn't gain the velocity that is needed to actually penetrate a skull and do the damage you

would normally think of regarding a bullet.” Trial Tr. at 31. This corresponds to the state’s

theory that the .32 caliber weapon was incorrectly loaded with .32 short instead of .32 auto

ammunition. The state was not explicit about the significance of this, but by mentioning Shawn

Mendes’ familiarity with firearms, the implication is that the incorrect use of .32 short

ammunition is due to someone who lacks experience with firearms using a .32 weapon. Trial Tr.

at 1898-9.

This contradicts later testimony regarding the fatal shot to Alanna Doe. The prosecution

notes that a bullet failed to penetrate Jane Doe’s skull, and instead travelled under her scalp.

Trial Tr. 305-6. Doctor Floofbot testified that “this a diagram of the skull, and so here is the

entry that was in the back of the skull; and then it traveled through her cranial cavity and exited

this part of her skull.” Id. The state claims that the failure of the bullet that entered Jan Doe’s

skull to enter is probative of it being a .32 auto ammunition; however, the bullet that entered

Alanna Doe’s skull passed through it. This contradiction substantially undermines the state’s
support for its theory of the case, and yet defense counsel fails to introduce this contradiction

to the jury.

The state hammered the .32 claim repeatedly. See Trial Tr. at 31, 406-8, 417-8, 423,

1759, 1842, 1898-9, 2034-5. Additionally, the defense failed to make an argument regarding the

source of the ammunition used. Shawn Mendes testified that he leant Doe the gun. The state

conceded he was familiar with .32 caliber weapons. See Trial Tr. at 1898-9 (“so he's seen him

with a .32. He knows a .32. He's Army. He also does firearms. He knows it's a .32. And he

described it.”)

The failure to challenge the weaknesses of a crucial witness’ testimony is a violation of

the right to effective counsel. Tyler v. State, 793 So.2d 137 (Fla. 2d DCA 2001) (“where the

record does not indicate otherwise, trial counsel's failure to impeach a key witness with

inconsistencies constitutes ineffective assistance of counsel and warrants relief.”) Counsel’s

strategy in contesting these claims was non-existent.

To determine whether counsel was ineffective, a number of factors should be

considered. First among these are the attorney's reasons for performing in an
allegedly deficient manner, including consideration of the attorney's tactical
decisions A second factor is whether cross-examination of the State's expert
brings out the expert's weaknesses and whether those weaknesses are argued to
the jury.
State v. Reichmann, 770 So.2d 32, 354 (Fla. 2000) (internal citations omitted).
The fact that another expert testified to the claim that the ammunition used was .32

short on different grounds does not moot this issue: the failure to impeach even one “crucial
witness” constitutes ineffective assistance of counsel. Kegler v. State, 712 So.2d 1167 (Fla. 2d

DCA 1998).1

By failing to consult or obtain an expert about the validity of the state’s theory that the

path of the bullet around the skull could not have happened with a .32 auto, as well as the

failure to properly confront the inconsistencies in the state’s theory, defense counsel was

ineffective.

The State’s Argumentative Statements Warrant a New Trial

The state made improper arguments in its opening statements, and improperly

prejudiced John Doe’s trial.

The state argued that the failure of the .32 bullet to penetrate Jane Doe’s skull was

suggestive of it being a .32 auto bullet. The state said in opening: “in other words, it doesn't

gain the velocity that is needed to actually penetrate a skull and do the damage you would

normally think of regarding a bullet.” Trial Tr. At 32. The likelihood of a .32 bouncing within a

skull is not a question that is common knowledge for lay people. Therefore, “although the

evidence may be relevant, the danger of unfair prejudice, confusion of issues, or misleading the

jury” of any claims asserting that the path of the bullet along Doe’s skull is probative as to the

type of ammunition used must be excluded “unless the traditional predicates of scientific

evidence are satisfied.” Castillo v. State, 955 So. 2d 1252 (Fla. Dist. Ct. App. 2007). Therefore,

1
1. A third element is that “whether a defendant can show that an expert was available at the time of trial
to rebut the State's expert.” Here, there’s a question as to the ability of the expert to be impeached by the
attorney or by a witness, who could testify as to whether the claims about the implausibility of the injury
pattern were accurate.
the state must have expected to prove this at trial. “The purpose of an opening statement is for

counsel to outline the facts expected to be proved at trial.” First v. State 696 So. 2d 1357 (Fla.

2d DCA 1997); see also United States v. Dinitz, 424 U.S. 600,612 (1976) (Burger, C.J., concurring)

(“An opening statement has a narrow purpose and scope. It is to state what evidence will be

presented . . . it is not an occasion for argument.”). The sole line of questioning on this point

was asking the following of Mr. Kevorkian:

Q: And did the one to the back of her head, did that one penetrate her skull?
A: No, it went a short distance under the scalp, and I recovered that projectile. so
it did not cause any significant injury to the skull or her brain. Gunshot three is what we
term area graze wound. It is just an injury on the skin itself, a projectile grazing across
the skin.
Trial Tr. at 306-7. At no point did the state provide evidence as to the likelihood of

different types of .32 ammunition having this trajectory. The state may not introduce its own

opinions in opening statements at trial. See Johnson v. Sec'y, Dep't of Corr., No. 6:16-cv-1673-

Orl-37GJK, 2018 U.S. Dist. LEXIS 235480 (M.D. Fla. Mar. 1, 2018) (citing Cummings v. State, 412

So. 2d 436 (Fla. 4th DCA 1982)). Having made no effort to introduce evidence about the relative

likelihood of different types of .32 ammunition causing Jane Doe’s injuries, the only reasonable

conclusion is that the state impermissibly introduced its own opinion.

Conclusions
The state was insistent on its ability to prove .32 auto ammunition was used, and that

this was important. In closing, the state contests the defense theory about a cartel hit: “Are

they likely to put the wrong ammunition in the gun?” Trial Tr. at 2034-5. Establishing that the

wrong ammunition was used is an argument that the repeatedly makes and repeatedly implies

John Doe’s guilt. See Trial Tr. at 31, 406-8, 417-8, 423, 1759, 1842, 1898-9, 2034-5.
 The burden is on the state to prove beyond all reasonable doubt that the errors it

benefitted from did not contribute to the verdict. State v. DiGuilio, 491 So.2d 1129, 1135

(Fla.1986). At trial, the statements regarding the path of the bullet around Jane Doe’s skull were

the only evidence that pertained directly to the victims and contributed to the state’s theory

that the wrong ammunition was used; other evidence was mechanical or similarly banal. It is

well established that jurors’ opinions are particularly influenced by emotionally charged

evidence. See, e.g., D.A. Bright & J. Goodman-Delahunty, Gruesome Evidence and Emotion:

Anger, Blame, and Jury Decision-Making, 30 LAW & HUM. BEHAV. 183 (2006); Karl Ask &

Afroditi Pina, On Being Angry and Punitive: How Anger Alters Perception of Criminal Intent, 2

SOC. PSYCHOL. & PERSONALITY SCI. 494 (2011); J. M. Salerno, The Impact of Experienced and

Expressed Emotion on Legal Factfinding, 17 ANN. REV. L. & SOC. SCI. 181 (2021). Therefore, the

gruesome nature of this evidence may have had an outsized impact relative to other evidence

the state used to support its claim about the .32 ammunition.

With the risk that the jury may put an outsized weigh on the evidence regarding Jane

Doe’s death in evaluating the state’s claim that the wrong .32 ammunition was used, defense

counsel should have been particularly focused on confronting the state’s claims here. Instead,

the defense failed to adequately point out evidence that directly contradicted the means by

which the state supported its theory. Additionally, the state failed to support a scientific claim

with adequate expert testimony, impermissibly arguing to the jury. Errors are evaluated

cumulatively. Brooks v. State, 918 So.2d 181, 202 (Fla.2005). The combination of errors created

by the state’s improper statements and defense counsel’s failure to confront the weaknesses of

the evidence the state suggested proved Jane Doe was shot with .32 auto ammunition
amounted to the defense conceding a crucial element of the state’s theory: that the shooter

was, like John Doe, ill-informed about .32 guns.