GROUND FIVE:
VERDICT NOT SUPPORTED BY THE EVIDENCE
The defendant was deprived of his
constitutional rights in that evidence, much of which was manipulated and some
of which was hidden from the jury by the Prosecution, was insufficient to
convict the Defendant.
A. Eyewitness Testimony Concerning A Police Car
At The Scene Disputes The Verdict
The Prosecution claimed that on the
night of April 15, 1993 Officer Michael Harold Chapel left the Northside Fire
14 in Buford, GA at 9:30 PM, positioned himself in the driveway of the Gwinnco
Muffler shop in Sugar Hill, GA by 9:35, intercepted the victim, Emogene
Thompson, as she drove by the shop on her way to work, ordered her into the
driveway pulling into the driveway after her at which time blue light activity
was seen in the driveway at 9:40, then murdered her, stealing her purse
containing several thousand dollars and then backed out of the driveway and
overtook and passed an automobile driven by Paul Omodt and whose passenger was
Karl Kautter who later identified Chapel as the driver of the patrol car that
passed them.
[Porter, Trial, Page 6664, Line 2]
And how much
time does he have to do it? He arrives
by nine-thirty. The shots happen at
about nine-forty. By nine forty-five
Karl Kautter and Paul Omodt and Allen Robertson are driving by, and they're not
seeing a traffic stop. They're seeing
the cleanup on a murder scene, because Michael Chapel has already killed
Emogene Thompson by nine forty-five.
Until 9:45
became so important to Porter, the District Attorney held a different opinion
of the time of the murder, and he espoused that time just as passionately and,
more importantly, more in line with the facts:
[Porter, Preliminary
Hearing, 4/30/93, Page 82]
So at the
critical time that we know that this murder occurred, which was between 9:50
and 10:00 on the night of April the 15th, the person that we have,
not close to the scene, not within a mile of the scene, but at the scene is
Mike Chapel.
A closer analysis of the complete
testimony of the driver witnesses called by the Prosecution at Chapel’s trial
plus the statements of all of the other driver witnesses that passed the
Gwinnco Muffler Shop that evening present a completely different picture than
the one the Prosecution painted. First, there was almost complete unanimity
among the witnesses that the police patrol car seen in the Gwinnco driveway was
not the type of patrol car Officer Chapel was driving that night; and second,
the times the Prosecution claimed for the sequence of events in the Gwinnco
driveway that night, do not fit the travel circumstances and the bulk of the
testimony of the various witnesses.
The “mystery” patrol car first
appeared as early as 8:45 and no later than 9:17 PM. The Prosecution could
never explain how, if as they maintained Chapel left the Fire 14 at 9:30 PM,
his patrol car could have been seen in the driveway of Gwinnco Muffler at 8:45
PM. The critical time to make the Prosecution’s contentions reasonable is 9:45
PM. This was the time the Prosecution contends that the blue light activity
took place in the Gwinnco driveway. A careful analysis of the testimony of
those witness at trial and the statements of those witnesses who did not
testify at trial shows clearly that the blue light activity in the driveway of
Gwinnco Muffler occurred no earlier than 10 PM, a time that would not have
allowed Chapel to arrive at the Arden Drive address at 10:07, a call he was
assigned by the GCPD dispatcher at 9:57 PM. Further examination of the evidence
proves that the police patrol car in the Gwinnco Muffler driveway could not
have been the same vehicle that overtook and passed the Omodt/Kautter vehicle,
and Kautter was the critical eyewitness of this trial.
Three witnesses first saw the
mystery police car in the Gwinnco driveway as early as 8:45 PM and no later than
9:17. Four witnesses next saw the patrol car again in that driveway with its
dome light on at or just before 9:30 PM. The mystery police car was absent from
the driveway from 9:30 to 10 PM. A witness saw the victim’s car in the driveway
and did not see the police car just before 10 PM. Five witnesses then saw a
police car when it returned to the muffler shop at or shortly after 10 PM The
patrol car apparently saw the victim’s car in the driveway as it passed Gwinnco
Muffler, turned on its blue lights, perhaps to make a U-turn, and entered the
driveway behind the victim’s car to investigate at 10 PM or shortly thereafter.
Finally, witness descriptions of the
police officer in the mystery police car were inconclusive, and the circumstances
witnesses Omodt and Kautter describe argues for a second police car and a
different police officer in the police car that passed them on Peachtree
Industrial Boulevard just after the pair passed Gwinnco Muffler.
1. The Shape And Style Of The Mystery Patrol Car
Most of
the driver witnesses who passed the Gwinnco Muffler crime scene the evening of
April 15th were interviewed at GCPD roadblocks where several types
of GCPD patrol cars and only GCPD patrol cars were present. Since this was the
case, there could be reliability problems with the colors, decals and striping
that would make identification suspect. However, the shape and the general
style of the vehicles would not be affected. Everyone who could and was asked
during these roadblock interviews described the police patrol car sitting in
the shop driveway as an older boxy model. Officer Chapel was driving his
assigned patrol car that evening, a newer more aerodynamic appearing Ford 1992
Crown Victoria. Witnesses Paul Omodt and Karl Kautter were not interviewed in a
roadblock situation.
[Edward
Schmanski, Trial, Page 3349, Line 18]
By Mr.
Moore
Q. ….Was it one of the older style ones
with the square type body style or was it one of the newer ones with the
rounded body styles, more rounded?
A. I would say that it was probably an
older model.
Schmanski later identified police
car model 6, a rectangular boxy model, from Defendant’s Exhibit Number 2.
Mary Ann Johnsa was somewhat
ambivalent, the testimony settled generally on model 6 from Defendant’s Exhibit
Number 2, a rectangular, boxy model, which she had identified as the model on
two previous occasions prior to trial.
[Mary
Ann Johnsa, Trial, Page 3363, Line 29]
By Ms.
Rogan:
Q. And
which one [patrol car] in here resembles that?
A. Number
6. And somehow that got fixed in my
mind, but what I had said in my statement originally, which was taken a week
after I'd seen the car, is that they were trying to ask me if I recognize any cars,
and I told them I said, 'Well, I remember you had some of the older ones with
the gold on it,' and I said, 'But I know it looked more like one of the newer
ones.' So it would have been one of
those with the blue with the gold striping on it. But as to which one it would be actually, I could not tell you.
[Stacey
Janet Turner, Trial, Page 3383, Line 6]
By Mr.
Moore
A. And
I remember the rectangular shape of the car.
Most of the rest of these were rounded.
Q. So
it's number [from the photographic lineup] 6 and number 12?
A. Uh-huh
[affirmative].
[Sean
Charles, Trial, Page 3389, Line 7]
By Mr.
Moore
Q. Mr.
Charles, my name is Johnny Moore. We
just want to ask you a few questions here about what you remember about that
night. Now, you described the car as an
older squared-style; is that correct?
A. Yeah.
Q. Okay. Now, did our investigator, Dennis Miller,
meet with you on August 9, 1995?
A. Yes,
he did.
Q. And
did he show you a group of cars at that time?
A. Yeah.
Q. Mounted
on a board?
A. Uh-huh
[affirmative].
Q. Okay. And were you able to pick a car that was
similar or looked like the one you saw?
A. Yeah. It was a choice between two of them.
Q. Okay. If I showed you what's been marked as Defendant’s
Exhibit Number 2, could you look at it and tell us if you recognize that?
A. You
want me to pick one of them or just tell you which one?
Q. Well,
if you can pick one.
A. Okay.
Q. I'm
not telling you you have to, but if you can pick one, if you'll tell us which
ones, if any of them, look like it.
A. Okay. Number 12.
Dr. Robert Brusie, a veterinarian,
did not describe the shape of the police car during testimony at trial nor was he
shown the defendant’s patrol car photo lineup. He first described the car as a
Gwinnett County Sheriffs car. Later he changed the description to a Gwinnett
County Police car. He was not shown Defendant’s Exhibit 2 for identification.
Mr. Robertson identified the police
car as model number 6, an older boxy model, from Defendant’s Exhibit Number 2.
[Alan
Robertson, Trial, Page 3442, Line 25]
By Mr.
Moore
Q. Okay. I'm going to show you what's been marked as
Defendant's Exhibit Number 2 and ask you if you could look at that, and if any
of those cars there look like the car you saw, if you'd tell us which one and
tell us the number.
A. Well,
to the best of my knowledge, of all these that I'm looking at, this one right
here, number 6, would be close -- the closest to it matching what I thought I
saw that night.
Witness Omodt was the only witness
to vary from describing the older style of police car; however it will be shown
later in this document from Omodt’s testimony that it was physically impossible
for the police car in the Gwinnco driveway and the police car that passed the
Omodt/Kautter car to be the same. A second police car must have come up on and
passed the Omodt/Kautter car, and it is not clear which vehicle Witness Omodt
was describing.
Witness Omodt seems actually to be
describing two different police cars. In his original statement to Captain
Davis on April 23, 1993, Omodt described the car in the driveway as white with
black stripes. This is the color scheme of the patrol car that was driven by
the Sugar Hill City Marshall. At trial, Witness Omodt then described the police
car as one of the new type bubble cars. He had only a brief glimpse of the
patrol car in the muffler shop driveway, but he had a much longer period in
which to study the police car that subsequently passed him on PIB.
[Paul
Omodt, Trial, Page 3520, Line 20]
By Ms.
Rogan
Q. April
23? Okay. Do you remember telling Captain Davis that the car was one of the
bubble cars?
A. Yes,
ma'am.
Q. Okay.
A. Meaning
rounded.
Q. A
rounded light?
A. The
rounded body of the Chevy -- of the Chevy Caprice or the Ford Crown at that
time.
Q. Oh,
I see. You're referring to bubble car
as the shape of the car?
A. Yes. Yes, ma'am.
Witness Kautter had a difficult time
trying to describe the police car he saw in the Gwinnco Muffler driveway.
[Karl
Kautter, Trial, Page 3567, Line 25]
By Mr.
Moore
Q. And the shape of the car, now, was it the
older squared-style shape?
A Meaning?
Q. Okay. You know what I’m talking about.
The older cars before the recent models, they were more square in shape.
A. No, I don’t know what your – what the
meaning of square or round. The rear of the car?
Q. What was the shape of the car?
A. It was a four-door sedan.
Q. What I mean by the shape of the trunk,
is it rounded or does come off square?
A. The shape of the trunk?
Q. Yes, sir, on the police car.
A. I don’t recall. I would think square.
The majority of them are square. Trunks are.
2. First Sighting Of The Mystery Patrol Car, 8:45 –
9:17 PM
(a)
Edward Schmanski
Under questioning by prosecutor
Davis, witness Edward Schmanski placed a police patrol car in the driveway of
Gwinnco Muffler as early as 9:02 PM and no later than 9:17 PM, a time range
wherein Chapel could not have been at the crime scene. Mr. Schmanski and his
sister Jennifer were on their way to a restaurant for dinner and drinks. It was
Jennifer’s birthday, and she was in town visiting the witness. Jennifer lived
in Northern Indiana and was not called as a witness. Her statement to police
however corroborated the testimony of her brother.
[Edward
Schmanski, Trial, Page 3344, Line 17]
By
Prosecutor Davis
Q. Okay. Do you recall about what time it was that
y'all left the house?
A. Nine,
9:15.
Q. Okay. And how long would it take you -- well,
first of all, tell the jury about which route you went to get to PIB and then
down past the muffler shop.
A. I
would have taken Level Creek Road to whatever road the City Hall Sugar Hill is
on to Peachtree Industrial South.
Q. How
long does it take you to get basically from your house down to where Gwinnco
Muffler Shop is?
A. Maybe
two minutes.
(b)
Tony McWaters
Another witness who did not testify at
trial in a statement to Investigator R.W. Taylor, placed the patrol car in the
Gwinnco Muffler driveway as early as 8:45 PM.
[Tony
McWaters[1],
Exhibit E-156]
Mr.
McWaters stated that on 4-15-93 he was returning home from a fishing trip and
was traveling north on PIB and observed a Gwinnett County Police car at the
Gwinnco Muffler shop with the headlights on facing the street. He described the
car as a Ford with [a] large yellow stripe. McWaters state[d] that the time was
between 8:45 and 9:00 PM.
3. Mystery Patrol Car With Dome Light On, 9:20 – 9:30 PM
Between 9:20 and 9:30 PM, four of
the driver eyewitnesses passed the Gwinnco Muffler while the police car in the
driveway, still pointing out toward PIB. The car’s dome light was on and they
caught a fleeting glimpse of the officer inside.
Ms. Johnsa was the driver of an
automobile with two other witnesses as passengers, Stacey Turner and Sean
Charles.
[Maryanne
Johnsa, Trial, Page 3357, Line 4]
By
Prosecutor Davis
Okay. Do
you recall about what time it was you went by the muffler shop?
I got
out of there [a meeting at Kingdom Hall of Jehovah’s Witnesses] quite early
because we had my grandson with me and he was getting tired, so we left about
9:20 or so or 9:25, and I know when I got home it was 9:35. I have a habit of
looking at what time it is when I come in the house. And so when we went past
the Gwinnco Muffler place, it was about 9:30 or somewhere in through there.
(b)
Stacey Turner
Mrs.
Turner was a passenger in the Johnsa car.
[Stacey
Turner, Trial, Page 3379, Line 9]
By
Prosecutor Davis:
All
right. Ms. Turner, I’d like to direct your attention to the evening hours of
Thursday, April 15, 1993. Did you have occasion to go by Gwinnco Muffler Shop
sometime after nine o’clock p.m. that evening?
Yes.
We were leaving this church, what’s known as Kingdom Hall, and we were coming
back, and we were on our way home. My son was not feeling well, so we left a
little bit early. It was probably around ten after nine.
Okay.
Do you recall about what time it was when you went by the muffler shop itself?
Probably
around 9:20, 9:25.
(c)
Sean Charles
Mr.
Charles was a passenger in the Johnsa car.
[Sean
Charles, Trial, Page 3387, Line 18]
By
Prosecutor Davis:
All
right. I want to direct your attention specifically to the evening hours of
Thursday, April 15, 1993. Were you near the Gwinnco Muffler Shop that evening
after nine o’clock.
A.
Yes.
All
right. First of all, I’d like for you to turn and tell the jury what you were
in that area.
It was
about 9:30, and I was headed home with my family from Kingdom Hall. I was not
driving. My mom was driving – or my sister was driving, my mom was a passenger,
and I was in the back seat, heading northbound on Peachtree Industrial.
Dr. Brusie, a veterinarian, was alone in his car as he passed the
Gwinnco Muffler Shop. Dr. Brusie described a white male in the police car
wearing a white tee shirt. If, in fact, the person in the patrol car was wearing
a white tee shirt, he would have been very much out of uniform for any of the
local jurisdictions. A white dress shirt, on the other hand, was the normal
uniform for the Sugar Hill Marshall. Dr. Brusie later selected a picture of
Chapel as one of two possible identifications from the 8-photo lineup; however
at trial he testified that indeed he knew Chapel from an incident with a horse
that had to be put down the previous year.
[Robert
Brusie, Trial, Page 3398, Line 19]
By
Prosecutor Davis:
Q. All right. About what time was it that
you came by the muffler shop?
It’d
have to be around 9:30.
[Dr. Robert Brusie appears to be
the last driver witness where there were no problems with his testimony.
Sometime between 9:30 and 10 PM, the police car left the driveway leaving it
empty until the next vehicle was seen in that driveway.]
4. Mystery Police Car Missing From Driveway, 9:30 – 10 PM
Two driver witnesses passed Gwinnco
Muffler between 9:30 PM and 9:50 PM. Sylvia Sellers drove by at 9:30 PM and
stated that she saw a dark colored automobile in the driveway, but no police
vehicle. Pat Gimothy stated that she passed the muffler shop at 9:45 PM, and
saw a dark colored police vehicle in the driveway at that time. These drivers
may have seen another vehicle or other vehicles who may have pulled into the
driveway to turn around or for other reasons, but, importantly, the mystery
police patrol car which other witnesses established was white in color was not
in the muffler shop driveway during this time period.
Driver
witness, Sylvia Sellers, who was not called to testify at trial, also indicated
that the victim’s car was placed in the Gwinnco driveway after 9:30 and before
10 PM. She was interviewed on April 20, 1993 in the driveway of the Gwinnco
Muffler Shop. She stated that she also passed Gwinnco Muffler about 9:30 PM
returning home from her place of employment in Duluth. These are her responses to the following
questions put to her by Investigator B.J. Tasick: [It
must be remembered that a severe storm was raging in the area traversed by Ms.
Sellers. Driver Paul Omodt and his passenger Karl Kautter would later testify
that the storm, which was clearing from the south, would only let up after they
passed North Price Road a few miles south of the muffler shop driveway. Paul
Omodt would see the police car’s blue lights come on just as they crested the
first hill at a point where the angle of Peachtree Industrial Boulevard changes
to a more northerly direction. Therefore Ms. Gimothy had to drive through the
same weather as all the other northbound drivers, and the violence of that
storm added some 40 to 50 percent to the drive time of all of these drivers.
Instead of her normal 30-minute drive, it would have taken her 40 or more
minutes. By coincidence, Ms. Sellers worked at Ciba Optical. This was the same
firm that employed the victim and the victim’s friend and neighbor Virginia
Chance but on a later shift. After waiting for the weather to clear that night
until 10:16 PM, Ms. Chance left home for Ciba driving in the opposite
direction, i.e., south and in better weather, and she just arrived at 11:00 PM,
the start time for her shift. This was a 44-minute trip, but Ms. Chance stopped
for a few minutes for gas on her way. At best, Ms. Sellers would have passed
the muffler shop driveway between 9:45 and 9:50 PM.
[Sylvia Sellers[2],
Exhibit E-58]
Okay, as you were traveling north, what is it that you Okay, so that
would be north on Peachtree Industrial observed, when you had gotten in the
area of the Gwinnco Muffler Company?
Just a dark looking car, sitting in the park, parkway, parking lot,
facing this way.
Facing in the direction of the company?
Of the company, yes sir.
Now, the car, was it parked in the parking lot directly in front of the
business or was it parked in the driveway?
It was parked in the driveway about where we’re parked right now.
Okay, now was it parked near the building in the driveway or closer to
the road?
No, it was little bit closer back, I’m parked closer to the building, than
it was, it was a little bit closer back, not much.
Okay, now can you describe this vehicle for me?
A. No, all I know is it was
a dark looking car.
Q. And about what time did
you see that vehicle?
A. It was about 9:30.
Witness Gimothy stated to Lt. John Latty that she
passed the muffler shop at 9:45 PM and saw a dark colored police vehicle in the
driveway. There is a problem with her statement however. On the photocopy of
the original, it appears that the 9:45 PM time has been altered[3].
It is included here for completeness. [At the time the
habeas was written, the photocopy of Pat Gimothy’s statement only appeared to
be altered. After viewing several other photocopies of the this document, the
information contained therein appears to be genuine. It must be remembered that
Lt. John Latty interviewed Ms. Gimothy, and Lt. Latty was anxious to obtain
evidence that showed a police car still in the driveway at 9:45 PM. Therefore
the inclusion of the “law enforcement vehicle” language. The remainder of her
description, i.e., brown in color and parked high in the driveway near the
building fits the victim’s vehicle accurately. Ms. Gimothy’s statement then
shows the victim’s car in the driveway as early as 9:45 PM.]
[Pat
Gimothy[4],
Exhibit E-49]
To Lt.
John Latty
041993
1905 Hrs.
My
name is Pat Gimothy and I live at 6719 Summercrest Court, Flowery Branch, GA
30542. My home telephone number is 967-0151 and my work phone number is
442-9944. I am giving this statement to Lt. J.W. Latty of the Gwinnett County
Police Department. On Thursday night, April 15, I was traveling northbound on
P.I.B. I was returning home from a meeting related to my job. It was
approximately 9:45 P.M. when I passed by the muffler shop where the woman was
found shot. As I passed I saw a car parked in the driveway facing the highway
with its lights off. I saw something on the side of the car reflect my
headlights. The car appeared to be some type of law enforcement vehicle. The
car appeared to be dark colored, I think brown. I reacted by looking at my
speedometer and slowing down. I am sure it was some type of law enforcement
vehicle. The vehicle was back near the building, on the driveway. It was
raining at the time. This is true to the best of my knowledge and belief.
/s/
Patricia K. Gimothy Wit. Lt. J.W.
Latty 060
5. Victim’s Car Alone In The Driveway, 9:55 – 10 PM [Because
of the above considerations, this time should read 9:45 – 10 PM]
A key witness, David McGaha, testified
that he saw the victim’s car alone in the driveway at 10 PM; however the rest
of McGaha’s testimony argues for a drive-by time that was just earlier,
probably between 9:55 and 10 PM. Two other witnesses who were not called to
testify by either the prosecution or the defense, Amy Parker[5]
and Keith Seay[6] indicate
that the victim left her trailer home for work at 9:50 PM, her usual time of
departure.
Witness McGaha testified that he
passed the muffler shop at 10 PM and only a civilian vehicle was in the Gwinnco
Muffler driveway. The remainder of his testimony however would indicate a time
a few minutes earlier. Mr. McGaha testified that he left his place of
employment at 9:30 PM and was on his way home at 9:35 PM. His place of employment
was on Peachtree Industrial Boulevard in Duluth, GA approximately 10 to 12
miles south of Gwinnco Muffler. The speed limit over almost all of that
distance is 55 MPH. This would argue for a somewhat earlier arrival at Gwinnco
Muffler than 10 PM. This means that the mystery police car was absent at the
time the civilian automobile was placed in the driveway.
[David
McGaha, Jr., Trial, Page 3582, Line 16]
By
Prosecutor Porter:
Q. Okay. And how were you employed on April -- in
April 1993?
A. I was an assistant
manager with Kmart.
Q. And where was that store
located?
A. It was at Duluth.
Q. Is that on Peachtree
Industrial Boulevard in Duluth?
A. Yes, sir.
Q. How did you normally
travel between your residence in Buford and the store where you worked at?
A. Up Peachtree Industrial
to Highway 23.
Q. Let me call your
attention to April 1993, specifically, April 15, 1993. Were you traveling northbound in the evening
between nine and ten, northbound on Peachtree Industrial Boulevard?
A. Yes, sir.
Q. Could you describe what
time did you leave work that night?
A. 9:30.
Q. And what time did you
get to your car and start your journey north?
A. 9:35.
Q. Are you familiar with
the location of the Gwinnco Muffler Shop on Peachtree Industrial Boulevard?
A. Yes, sir.
Q. And did you pass that
area that night?
A. Yes, sir.
Q. Can you tell us about
what time you went by there?
A. Ten o'clock.
Q. Okay. What if anything did you observe in the
driveway or around the Gwinnco Muffler when you drove by?
A. I just noticed a car, a
single car sitting on the left.
Q. And could you describe
that car?
A. At that time, I really
couldn't. I could tell that it was a
dark -- excuse me, a dark, late model Buick or Oldsmobile.
Q. And where was it in the
Gwinnco Muffler?
A. Just as you turned into
the driveway.
(b) Amy Parker
Amy Parker who with her boyfriend
Keith Seay resided next door to the victim’s trailer, stated to police the day
of the murder that the victim left her trailer home for work at her usual time,
9:50 PM. The Gwinnco Muffler Shop is just a few minutes drive from the victim’s
home. That would have put the victim’s car in the driveway no earlier than 9:55
PM.
[Amy
Parker[7],
Exhibit E-20]
To
Detective A.C. Ervin
I Amy
Parker willfully give this statement to Det. A. Ervin. I have known Michael
Thompson for about 7 years. I only know his mother from the times that I’ve
gone there asking for him. Yesterday Michael Thompson spent most of the day at
my house. Sometime between 8:00 and 9:30 PM, Michael went out [to] get something
to eat to eat and was gone about an hour. Michael worked at Subway and he had
gone there to get something he brought in a glass of ice and some brownies. We
sat here and watched TV. I watched the Simpson’s, Martin and In living Color.
Michael watched some of the Simpson’s then he left. When he returned I was
watching LA Law. Michael said that he was going to check on a job. A guy named
Chris and John were going to help him up with a job. I[t] was about 10:30 PM
when Michael came back. Then he went home before 11:00. I was awake until about
2:00 AM and I did not here [sic] Michael leave the house again. Michael[‘s]
mother always leaves for work at 9:50 PM. I was sitting in the living room with
Keith Allen Seay and I had the blinds open. When I heard her start we looked up
and saw her leaving.
/s/
Det A.C. Ervim, 4/16/93 10:13 /s/ Amy
L. Parker
On April 21, 1994, Keith Allen Seay
was interviewed by defense investigator Dennis Miller. In part, Keith Seay gave
Mr. Miller the following statement:
[Keith
Allen Seay, No Exhibit Number]
To
Dennis Miller
On the
night of April 15, 1993, Seay stated that after arriving home from work and
eating dinner, he and Amy [Parker] and Michael Thompson were sitting in the
living room watching television. At one point during the evening, and Seay
believes this time to be at about 9:30 P.M., Michael Thompson said he had to go
see someone about a job as a mechanic mounting tires on automobiles. Seay
thought this was strange, because he didn’t feel that Thompson was suited for
that type of work. Seay indicated that Thompson was gone “about an hour,” and
estimates the time Thompson returned at being about 10:30 P.M. Seay stated that
after Michael Thompson had left, Amy Parker went to use the telephone at the
Thompson residence. Seay indicated that at one time he did have a phone at his
house, but had had the phone removed shortly before Parker moved into the
trailer in February. Seay indicated that when Thompson returned at
approximately 10:30 P.M., he stayed at the Seay residence for a short period of
time then left, presumably to go home. Seay did not see Thompson again that
night.
On
April 16, 1993, Seay heard about the homicide and stated, “I heard Amy telling
the police that she had seen Mrs. Thompson leave at her normal time to go to
work. Seay could not recall seeing Mrs. Thompson leave; however, he stated
that, “Amy was always looking out the window every time a car drove by”[8].
6. Blue Light Activity In The Driveway, 10 PM And Later
Five witnesses passed Gwinnco
Muffler during the period of blue light activity in the driveway. Careful
analysis of the testimony indicates that this time was 10 PM or later. It has
been established that the victim’s car needed a new muffler, and it may have
been left there for that reason. More likely, since the victim’s left front
tire had been cut, the tire flattened completely as she was passing Gwinnco
Muffler, and she pulled into the driveway for that reason. This means that the
police car returned, turned on the blue lights, possibly to make a U-turn to
investigate the car in the driveway, and all of the blue light activity could
have been perfectly reasonable and quite innocent.
Witness Gravitt is probably the most
reliable witness as to the time the two vehicles were in the muffler shop
driveway. He had a precise time that he had to arrive at a location to pick up
his daughter which he described as five minutes drive from the muffler shop. Although he testified that he passed the
Muffler shop between 9:40 and 9:50 PM, he was not interviewed until 2 weeks
after the murder when the Chapel scenario timeline had been set. His testimony
however indicated that he would have passed the muffler shop later than that
stated time. He was to pick up his daughter at 10 PM, and he estimated a
five-minute drive (3-4 miles in 55 MPH zone) from the muffler shop to her
location. Under questioning by Prosecutor Porter:
[Daniel Gravitt, Trial, Page
3466, Line 5]
By
Prosecutor Porter
Q. And I believe you said you picked up
your daughter and went back?
A. Right.
Q. And about what time was that?
A. I got there a little after ten, so it
would have been five minutes later or so. About 10:15 or so, we came back
through.
Q. All right. And at that point, were you
driving northbound on Peachtree Industrial?
A. Yes.
Q. And did you notice anything in the
Gwinnco Muffler?
A. No.
If his driving time estimates were
correct, Gravitt would have first passed the muffler shop at or shortly after10
PM, arrived at his daughter’s location at 10:05 PM, picked up his daughter,
left the location at 10:10 PM and re-passed the muffler shop at 10:15 PM.
[Alan
Robertson, Trial, Page 3444, Line 25]
By:
Mr. Moore
Q. Okay. Is that the statement you gave the
police officers back in 1993 shortly after the incident occurred?
A. Yes, sir. Yes, sir.
Q. And at the time, you told them ten to
1015; is that correct?
A. When I went by Gwinnco, yes, sir.
Q. Okay.
Witness Omodt could not be specific
about the time that he and Witness Kautter passed the Gwinnco Muffler Shop. He
estimated that they left the party in Sandy Springs, Georgia between 8:45 and
8:50 PM. He estimated normal driving time between Sandy Springs and Gwinnco
Muffler as 35 to 40 minutes. The weather conditions that night slowed their
driving to 45 to 50 minutes. If, in fact, the pair left Sandy Springs at the
time testified to, and if their driving time that night was the time testified
to, they could have passed by the Gwinnco Muffler Shop between 9:35 and 9:40
PM. However all of these conditions would have had to be met. If they left any
later, or if the driving time was somewhat more than estimated or both, they
would have passed Gwinnco Muffler about 10 PM. Witness Kautter, a passenger in
the Omodt vehicle, estimated a later time of departure, and the driving
conditions described by Omodt that night were extraordinarily bad.
[Paul
Omodt, Trial, Page 3505, Line 25]
By
Prosecutor Porter
Q. About how long does it take you to drive
from RBM over in Sandy Springs to the area of the Gwinnco Muffler on Peachtree
Industrial?
A. Most times about thirty-five, forty minutes.
On this occasion, the rain was incredibly hard going up 400, so we were going
very slow. Very slow.
Q. Now, was it raining when you got to
Peachtree Industrial – was it raining there at Peachtree Industrial Boulevard
when you got there?
A Yes, sir. All the way through about
North Price Road, which is on Peachtree. [Price Road is about 2 miles south of
Gwinnco Muffler.]
At trial Witness Kautter was vague
about the time that he and Omodt passed Gwinnco Muffler.
[Karl
Kautter, Trial, Page 3527, Line 2]
By
Prosecutor Porter
Q. How long did you stay at the wholesale
accounts meeting?
A. We left right around nine o’clock.
Q. So if you left the Sandy Springs at
about nine o’clock, were you driving back to the Sugar Hill area?
A. Yes sir.
Q. And did you happen to be on the portion
of Peachtree Industrial Boulevard around the Gwinnco Muffler Shop?
A. Yes sir.
Q. About what time did you arrive in that
area of Peachtree Industrial Boulevard?
Between
nine-thirty and ten o’clock.
A more precise time for the
Omodt/Kautter vehicle to pass Gwinnco Muffler that night can be derived from a
previous hearing. Although Kautter’s testimony at that hearing was that he
passed the shop between 9:30 and 9:45 PM, that fact that he also states that he
arrived home shortly after 10 PM makes nonsense out of this. At the time,
Kautter lived less than five miles from the muffler shop, out Peachtree
Industrial Boulevard, Little Mill Road and Buford Dam Road, all excellent roads
with only one thru-stop sign at Buford Dam Road to slow them down. Other
testimony established the only traffic lights they encountered were green. The
driving time from the muffler shop to Kautter’s residence is estimated at six
to eight minutes. The Defense did not exploit this testimony, nor did they at
trial. Shortly after ten could have meant five or ten or even fifteen minutes
after ten. What it could not have meant was 9:36 or even 9:51 PM as
would have been the case with Kautter’s testimony at trial.
[Karl
Kautter, Motion for closure of Evidentiary Hearings Motion to Suppress
Out-of-Court Identification, And Other Matters, July 10, 1995, Page 75]
By Mr.
Porter.
Q. So at what time of day or night were you
passing the area on Peachtree Industrial Boulevard around the Gwinnco Muffler
shop?
A. I don’t live far from there, and we were
at home at shortly after ten o’clock, so it was – it would be between 9:30 and
quarter to 10:00.
In an unsigned statement given to
Lt. Latty from Harlan Preston, Mr. Preston stated that on April 15, 1993, he
left work from Duluth at 2140 hours. He drove approximately 10 to 15 minutes
before reaching Gwinnco Muffler.
[Harlan Preston[9],
Excerpt from Exhibit E-41]
He asked to meet me in a
public place. At that interview he declined to sign a written statement but
agreed to answer my questions. He stated that he is a meat cutter at Kroger
located on P.I.B. At Pleasant Hill Road in Duluth and that he works the 2 PM to
10 PM shift. On Thursday night, 041593, he stated that he got off work at 9:40
PM and proceeded up P.I.B. toward home. He stated that it took him 10-15
minutes to reach the Gwinnco Muffler location. As he passed by he saw “someone
getting a ticket” at that location. He stated that he could not tell anything
about the patrol car or the car it had stopped. The blue light was on the roof
the patrol car and went across the width of the roof. He did not see anyone and
he could not describe anything else.
/s/ Lt. J.W. Latty
(f) The Weather Becomes A
Clock
Witness Daniel Gravitt[10]
seems to give the most accurate estimate of the time of the blue light activity
because, although he gave an earlier time, he testified that he was on his way
to pick up his babysitting daughter at a location he estimated was a five
minute drive from the muffler shop and he further testified that he arrived at
the babysitting location “shortly after 10 PM”. He waited a few minutes for his
daughter and estimated another five minutes to the muffler shop on his way home
passing the shop at 10:15 PM.
What of the other witnesses to this
blue light activity? Fortunately the weather that night proves that each of the
others passed the location after Mr. Gravitt. When he passed the muffler shop,
he described that there was a terrible storm raging. Indeed the storm was so
bad that he could not see the cars. He saw only the blue lights. In his direct
testimony he described the scene.
Paul Omodt[11],
the driver of the Omodt/Kautter car testified that the storm did not let up
until they reached the intersection of PIB and North Price Road, and that it
was just drizzling when they passed the muffler shop. This means that at the
time Mr. Gravitt was passing the Gwinnco Muffler, Omodt and Kautter were still
south of North Price Road. In Omodt’s words:
[Omodt, Trial, Page 3506]
By Prosecutor Porter
Q. Now,
was it raining when you got to Peachtree Industrial -- was it raining there at
Peachtree Industrial Boulevard when you got there?
A. Yes,
sir. All the way through about North
Price Road, which is on Peachtree.
Q. All
right. Is North Price north or south of
the Gwinnco Muffler?
A. South. South.
Q. So
specifically, by the time you got to Gwinnco was it still pouring down rain?
A. It
wasn't pouring. It was drizzling, but
not pouring as it was on 400.
In addition, Omodt saw the blue lights
from the top of a hill, but by the time he and Kautter passed Gwinnco, the blue
lights had been turned off.
[Omodt, Trial, Page 3507]
By Prosecutor Porter
A. A
little beyond North Price Road you are at the top of a hill, and you proceed
down a long hill, Gwinnco being not quite at the bottom, maybe even on the
other side of the very lowest part of the road.
Q. And
so as a driver did you have a clear field of vision all the way down the hill?
A. Yes,
sir, pretty much.
Q. As
you crested the hill, did you see anything?
A. As
we were coming down the hill, I had the occasion to see blue lights off to my
left. [In his statement to police a few days after the
incident, Omodt said that he saw the blue light come on at that time.]
[Omodt, Trial, Page 3508]
By Prosecutor Porter
Q. Were
the blue lights on the vehicle by the time you came alongside the Gwinnco
Muffler?
A. No,
sir.
Witness Alan Robertson also passed the
muffler after Witness Gravitt; this had to be true because the weather had
cleared sufficiently for him to see a detail on the victim’s automobile in his
rear view mirror at a distance of 500 to 600 feet[12].
Witness Harlan Preston[13],
in an unsigned statement given to then Lt. Latty, stated that he left Duluth,
12½ miles from the crime scene, and reached the muffler shop after only 10 to
15 minutes. At best, that drive might take only fifteen minutes, but on the
night of murder at the time he left Duluth, that drive would have taken at
least five minutes longer. This would have Mr. Preston passing by the crime
scene at 10 PM or later. Witness Preston mentions nothing about rain and was
able see both vehicles clearly. Witness David Mcgaha[14]
left his place of work in Duluth five minutes before Witness Preston who also
worked in Duluth. McGaha had less distance to travel since his place of work
was directly on Peachtree Industrial Boulevard. If his journey to Gwinnco
Muffler, like Preston’s, was about 20 minutes, he would have passed the muffler
shop at 9:55 PM. He does not remember the rain, but he did remember it was
dark.
7. Witness Descriptions Of Police Car Occupant. Dome Light On
[Maryanne
Johnsa, Trial 3358, Line 9]
By
Prosecutor Davis
Q. All right. Did you note – were you in a
position to notice or did you notice whether or not there was anybody inside
that police car as you went by?
A. Yes, there was a person in there.
Q. All right. Could you say whether it was
a male or a female?
A. It appeared to be a male, but I did not
look closely.
Mrs. Turner was a passenger in the
Johnsa car.
[Stacey
Turner, Trial, Page 3380, Line 5]
By
Prosecutor Davis:
Q. Did you notice whether or not the
headlights were on in the vehicle?
A. The headlights were on.
Q. All right. How about the interior car
lights, the dome lights?
A. The dome light was on, too.
Q. All right. Were you able to see an
occupant in the police car?
A. Yes.
Q. All right. If you would, please describe
for the jury what that person looked like?
A. All I could distinguish is that he was
male and darker hair. That’s all that I noticed.
Mr. Charles was a passenger in the
Johnsa car.
[Sean
Charles, Trial, Page 3388, Line 5]
By
Prosecutor Davis:
Okay.
When you came by the Gwinnco Muffler Shop, did you see anything there?
A. Yes. I saw a --
Q. Tell the jury what you saw.
A. I saw a – it was a Gwinnett County
police car. I recognized the emblem. It was an older style. It was more squared
off than – opposed to the new rounded style. The interior light was on in the
car, and I could see that there was a white male with dark-colored hair, and he
was motionless. He was just looking down and not looking at the road.
Dr. Brusie, a veterinarian, was alone in his car as he passed the
Gwinnco Muffler Shop. Dr. Brusie described a white male in the police car
wearing a white tee shirt. If, in fact, the person in the patrol car were
wearing a white tee shirt, he would have been very much out of uniform for any
of the local jurisdictions. A white dress shirt, on the other hand, was the
normal uniform for the Sugar Hill Marshall. Dr. Brusie later selected a picture
of Chapel as one of two possible identifications from the 8-photo lineup;
however at trial he testified that indeed he knew Chapel from an incident with
a horse that had to be put down the previous year.
[Robert Brusie, Trial, Page 3399, Line 3]
By Prosecutor Davis:
Q. All right. Did you see anything when you got to Gwinnco
Muffler Shop?
A. What I'd noticed is a
police car in the driveway.
Q. Okay. Now, if you would describe for the jury in
as much detail as you can what the car looked like and what you saw as you came
by there.
A. I was driving north on
Peachtree Industrial on my way home, and there's a speed zone there where it
goes from 55 to 45, and my lights hit the side of the police car, and I slowed
down to -- so I wasn't breaking the speed limit and --
Q. Did you have to slow
down a good bit?
A. Yes, sir. And my radar detector was on and it did not
go off and --
Q. Okay.
A. -- it was a Gwinnett
County police car and there's a fellow in it wearing a white T-shirt --
Q. Okay. When you say there was a fellow in it, was
it a white male or a black male or what race did it --
A. White male.
Q. White male?
A. Yes, sir.
Q. And what physical
characteristics were you able to notice about this white male?
A. Dark brown hair and
fairly big fellow, big-shouldered fellow, because you could -- I mean, he had a
T-shirt on and --
Q. Okay. You indicated that the car was in the
driveway, I believe?
A. Yes. Heading out towards the road.
Q. All right. Do you recall what the condition of the
lights on the car were?
A. Did not appear to be any
headlights on or there was a dome light on, because I could see --
Q. All right. That's the interior dome light?
A. Yes, sir.
Q. The courtesy light
inside the car?
A. Yes, sir.
Q. How about emergency
lights?
A. No.
Q. Did you see blue lights?
A. No, sir.
8. Witness Descriptions Of the Officer In The
Gwinnco Driveway
Witnesses Paul Omodt and Karl
Kautter, the only witnesses to see the policeman out of his patrol car in the
Gwinnco driveway, both described an officer much different than Michael Chapel.
Officer Chapel is taller than 6’6” and at that time was a well-muscled 300
pounds with his equipment. Both Omodt and Kautter described a much smaller man:
[Paul
Omodt, Trial, Page 3509, Line 3]
By
Prosecutor Porter
Okay.
And can you describe what the officer looked like?
A. From what I could see, a Caucasian male.
Of course, he was wearing a rain suit and rain hat. Pretty good sized
gentleman, six feet maybe.
Q. How tall are you?
A. Five-eleven.
[Karl
Kautter, Trial, Page 3529, Line 19]
By
Prosecutor Porter
Q. And as you approached, did you see
anyone near the vehicles?
A. There was a person walking towards the
vehicle, the vehicle that was in front of the police car.
Q. Could you describe that person?
A. Medium build, over six feet, not a
heavy-set individual, but a medium build. I mean fairly stocky, about my build
but taller than myself.
9. A Second Police Car And Officer
The circumstances described by
Witnesses Paul Omodt and Karl Kautter indicate that it was physically
impossible for the police car they saw in the driveway of Gwinnco Muffler to
have been the same vehicle that subsequently passed them on Peachtree
Industrial Boulevard[15].
Here Porter himself establishes the speed of the
Omodt/Kautter car at 45 MPH.
The testimony of Paul Omodt and Karl
Kautter establishes that the patrol car overtook and passed their vehicle as
they were approaching Roosevelt Circle a distance approximately 2,500 feet from
Gwinnco Muffler on a moderately severe uphill grade. The driver of the patrol
car in the Gwinnco driveway would have had to complete whatever he was doing,
remember Kautter’s trial testimony left him next to or leaning into the window
of the victim’s car, return to his car, and finally back onto PIB before
overcoming a rearward impetus to start after the Omodt/Kautter car. The
Omodt/Kautter car was traveling at 45 MPH. At that speed, an automobile will
travel 2,500 feet in somewhat less than 39 seconds. Assume it took 10-12
seconds to get into position. This would leave 27 to 29 seconds for the patrol
car to overtake the Omodt/Kautter vehicle.
A study prepared by Herman Hill[16], an
expert witness in this field[17],
establishes that based upon the testimony of witnesses[18]
Omodt and Kautter, the physical characteristics of chapel’s patrol car, the
distances involved[19]
and the weather that night establishes to a virtual mathematical certainty that
the police car in the Gwinnco Muffler driveway could not have been the same
patrol car that passed Paul Omodt and Karl Kautter a few seconds after they
drove by Gwinnco Muffler[20].
Witness Karl Kautter testified that
he saw the officer in the driveway walking from the patrol car toward the
victim’s vehicle.
[Karl Kautter, Trial, Page
3529, Line 19]
By Prosecutor Porter
Q. And
as you approached, did you see anyone near the vehicles?
A. There
was a person walking up towards the vehicle, the vehicle that was in front of
the police car.
Investigator Burnette’s testimony in
the preliminary hearing estimated the time necessary to simply walk from the
police car to the victim’s car and return, excluding entering the patrol car
and backing out of driveway onto PIB as ”less than a minute.” Less than a
minute, but certainly more than a few seconds.
[Burnette, Preliminary Hearing, 4/30/93, Page 72]
By Mr. Britt.
How long do you – how long does it take to traverse this whole
distance there?
Probably walk up there, bend over, turn around walk back to the
car, in less than a minute, much less than a minute. At Chapel’s
Preliminary Hearing, Burnette was asked how long it would have taken the officer in the driveway to
walk to the victim’s car then return to his own. In one minute, the second
police car would have passed
the Omodt/Kautter vehicle and been well on its way to wherever.]
Paul Omodt’s testimony had the
officer leaning into the window of the victim’s car.
[Paul Omodt, Trial, Page 3508, Line 23]
By Prosecutor Porter
Q. Did
you see anyone in the dark car that was in the front --
A. No,
sir. I didn't see anybody in that
car. I did have the chance to see an
officer leaning over into the car or leaning over the window.
[Paul Omodt, Trial, Page 3510, Line 8]
By Prosecutor Porter
Q. All right. So as you got onto the four-laned area of
Peachtree Industrial Boulevard north of Gwinnco --
A. Yes, sir.
Q. -- did a car come up behind
you?
A. A car came up behind us
and passed us in the right lane. I was
staying towards the middle or I was in the left lane at that time.
Q. Could you describe that
for the jury?
A. As we approached the
road that goes down toward Little Mill -- not Little Mill, I'm sorry, Petro
[phonetic spelling] Lane, a police squad car passed us on the right as we were
approaching that road.
Q. All right. Did the patrol car pass you or did it remain
alongside of you?
A. Well, it passed us. It passed us.
The only street intersecting
Peachtree Industrial Boulevard between Gwinnco Muffler and the light at First
Avenue was Roosevelt Circle, the approach to which (100 feet) is about 2,600
feet north of Gwinnco Muffler. Omodt’s further testimony:
[Paul Omodt, Trial, Page 3511, Line 25]
By Prosecutor Porter
Q. I'd like you to take the
pointer, if you could, and make sure the jury can see, so you'll have to sort
of stand to the side. Could you
explain, as you were traveling northbound, where the patrol cruiser caught up
with you and what happened after that as you traveled northbound?
A. As I remember, we were
traveling on the inside lane here, the police cruiser would have passed us in
through this area right in through here.
He was well in front of us before we got to this light.
And
later Mr. Porter explains the traffic light referred to by Omodt.
[Porter, Trial, Page 3513, Line 5]
MR. PORTER: Your Honor, for the record, Mr. Omodt has referred to the light
at First Avenue, that is, First Avenue on the south side -- excuse me. First Avenue if you turn to the right, and
it's Alton Tucker Boulevard if you turn to the left.
A
more rational albeit less scientific explanation is apparent from the photo of
Peachtree Industrial Boulevard from Pinecrest to Raymond H. Smith Boulevard[21].
Neither Omodt nor Kautter noticed the second police car come up behind them.
This is probably because their attention was riveted on the scene in the
Gwinnco Muffler driveway. The second police car most likely entered PIB from
Pinecrest Drive just as the two passed and pulled up behind them just past
Gwinnco Muffler when the two both said they first noticed the patrol car. The
police car had to stay behind them until PIB transitioned from 2 to 4 lanes.
The police vehicle began the passing maneuver when PIB fully transitioned to
4-lane. That point is almost equidistant between the Gwinnco Muffler driveway
and Roosevelt Circle. Again, according to Omodt, the police car completed its
passing maneuver just as they approached Roosevelt Circle, and by the time it
reached First Avenue was, in Omodt’s words, well ahead of the Omodt/Kautter
vehicle[22].
This
scenario is exactly the testimony of Karl Kautter:
[Kautter, Trial, Page 3534[23]]
By Prosecutor Porter
Q. All
right. What I'd like you to do, if you
could, is take the pointer so that all the jury can see and describe the
movement of the car that came up behind you and eventually pulled up to your
right, and the travel that you both made northbound.
A. Gwinnco
Muffler would be approximately in here somewhere and there's another building
here.
Q. Well,
Mr. Kautter, it's already been stipulated that Gwinnco Muffler is off the
diagram to the south. [Indicating]
A. Back
that far?
Q. Back
this far.
A. Well,
this is done to scale?
Q. This
is done to scale as far as it goes.
A. Okay. We were -- oh, this is only showing one-half
--
Q. No,
this shows both lanes. This is the
northbound lane; this is the southbound lane.
A. Okay. Here's where it -- that's where it turns
-into your double lanes. We were approximately in this area when this
car came behind us and was in the same lane which we were in. At that point in time the car came to our right-hand
side, and we had followed one another -- next to one another up until First
Avenue. The car hesitated to turn at
First Avenue, but did not. We went up,
and there's a traffic light here First Avenue] and there's one here [Highway
20]. Both lights were green. We didn't have to stop at either light. And the car hesitated to turn right on
Highway 20 as well, but did not. So we
both continued north on Peachtree Industrial.
The car that was to the right-hand side of us, the patrol car, turned right
on R. H. Smith Boulevard, and then we continued straight on Peachtree Industrial,
north on Peachtree.
The
approximate distances from the Gwinnco
Muffler driveway to Roosevelt Circle are as follows:
To
the beginning of the 2 to 4 lane transition 500 feet.
To
the full 4 lane transition 1200
feet.
To
Roosevelt Circle 2600
feet
Some
perspective regarding distances involved can
be gained everyday on our streets and highways where we are warned by signs
that roadwork or lane blockages are first 1500 feet ahead, then 1000 feet and
finally 500 feet ahead. Witness Allen Robertson claimed in testimony that he
was able to identify the “continental kit” on the trunk of the victim’s Lincoln
automobile, in the lights of the police vehicle, in his rearview mirror as he
moved into the right lane as the lanes transitioned.
[Alan Robertson, Trial, Page 3438, Line
12]
By Prosecutor Porter
Q. Did
you notice anything else particularly in the trunk area?
A. As
I was going by, I had my rearview mirror where I just kind of looked like that [indicating]
a little bit, and then my other mirror where, you know, I was just going to --
the highway kind of veered a little bit towards the right as it goes past
Gwinnco, you know.
It's like it splits off where you get in the right lane. I
looked and I -- it seemed like I saw the
trunk. Looked like it was -- like a
Continental kit[24]. That's what I used to call them back in the
'60s.
Q. Okay. Now, by a Continental kit, do you mean a
bump in the trunk?
A. The
middle thing -- yes, sir.
Q. That
looks like a -- that used to carry a spare tire?
A. Yes, sir.
This
explanation makes complete sense and does not stretch the laws of physics, bend
time or otherwise rely on the kind of magic that the District Attorney worked
upon a sophisticated but gullible jury. It also points up how valuable a visit
to the crime scene would have been to that jury.
B. Autopsy And Crime Scene Reports Prove Shots Fired
From Inside Victim’s Car
Another of the grounds in this
petition establishes the impossibility of someone of Chapel’s size firing
either of the shots that killed the victim from the driver’s side window. The
autopsy and crime scene reports and their associated drawings and photographs
prove that the shots that killed Emogene Thompson were fired from within the victim’s
automobile, that the shots were fired from the back seat area and that the
shooter was probably left handed.
[J.D.
Graham, Crime Scene Report, Page 1 – In Part]
The
victim was in the driver’s seat, still belted into her seatbelt. She was
leaning toward the passenger side of the vehicle with both arms extended in
front of her. There was what appeared to be blood in the center console area of
the vehicle. The victim’s glasses were located on the floorboard in front of the
console. The right lens of the glasses was broken. Pieces of Glass were
scattered in the passenger seat and around the console and the floorboard of
the vehicle. There were also blood spatters and small bits of flesh and bone
located in the passenger area and the windshield and the passenger door.* [At the time of
the preparation of this document, I believed that Crime Scene Technician Judy
Graham was the author. The real author of the report was GCPD Investigator Jack
Burnett, and he was lying about any materials on the passenger other than the
high velocity blood spatter on the inside passenger portion of the front
windshield. There were two small drops of blood on the passenger seat and
perhaps one very large drop on the floor in front of the passenger seat but these were
not high velocity blood spatter and came from a different source.]
[Brian
Frist, Autopsy Report, External Exam, Page 3]
The body
is that of a Caucasian female whose general appearance is consistent with the
stated chronological age of 53 years.
The
length of the body is 63 inches with a body weight of 135 pounds (plus or
minus).
[Brian
Frist, Autopsy Report, Page 4]
A
loose contact entry gunshot wound is noted in the left lateral neck. It
measures 56 inches from the bottom of the left heel and 6-1/2 inches from the
midline. The defect is 3/8th’s inch in diameter. It is basically
rounded. There is a circumferential ring of soot with adjacent gunshot powder
residue measuring to a diameter of 1/1 inch. An accompanying exit wound is
noted in the right eye. It measures 60-1/2 inches from the bottom of the right
heel and 2 inches from the midline. The defect measures 1 inch x ¼ inch in
diameter and is irregular.
A
gunshot wound is noted in the left parietal/occipital region measuring 62
inches from the bottom of the left heel and 1-1/2 inches from the midline. The
wound measures 1/4th inch in diameter. Definite gunshot powder
residue is not noted. The area is blood soaked. Hair from this region will be
sent to the Crime Lab for analysis. An accompanying exit wound is noted in the
right temporoparietal region measuring 61-1/2 from the bottom of right heel and
5 inches from the midline. The wound measures 1 inch x 5/8 inch in diameter and
is irregular.
There is a drawing[25]
in the autopsy report showing positions of these wounds.
3. Prosecution Determination Of The Order Of The Shots
In his first testimony at trial on
the 22nd of August, Dr. Frist could not identify the order in which
the shots that created these wounds were fired.
[Brian Frist, Trial, Page 3313, Line 17]
By Prosecutor Porter
Q. Dr.
Frist, based upon your investigation, your overall investigation, have you been
able to form any opinion regarding -- well, first of all, let me ask you, based
upon just the medical evidence, are you able to determine the order in which
the head wounds were inflicted, just the autopsy results?
A. From
the autopsy evidence, no.
Later,
on redirect examination, Dr. Frist attempted that determination by
demonstrating what he believed happened with himself as the shooter and with
Prosecutor Porter as the victim.
[Brian Frist, Trial, Page 3331, Line 12]
By Prosecutor Porter
Q. Now,
well let me ask you in regard to the situation where determining the height of
a person, can you describe the dynamics of how you try and determine the
position of the people from bullet angles and whether or not it's even
possible, like you see on TV?
A. What
I can do is I could tell you the angle of the muzzle to the victim, to the
target. So I could tell you at what
position was the gun when it was fired, when it struck the victim, and the path
of the bullet through the body. And
then from that, we could extrapolate back sometimes the -- if we know where the
victim was, how high or low the gun may or may not have been.
Q. All
right. And did you, based on your
information in this case, reach any conclusions as to the angle of the weapon
when the shots were fired that killed Emogene Thompson?
A. Yes,
I did.
Q. And
could you describe where you believed the weapon to be at the time the shots
were fired?
A. Yes,
I can.
Q. All
right. And could you do that for the
jury or do you want -- do you want to use me as the model?
A. I
could use you. If you would be
seated. Possibly if we can get a chair.
[The witness stepped down from the stand.]
[Mr. Porter seated.]
BY MR. PORTER:
A. [Continuing] I believe that Ms. Thompson was seated in
the driver's seat, so we'll imagine that Mr. Porter here is Ms. Thompson. I believe that she received two shots, and
when I go through these, I could tell you how I could extrapolate back one step
more of what order they were received.
I believe she was shot first in the back of the head [Gunshot #2]. And the reason I believe that is that she
was shot over here, which is right over here on the left side in the back, and
then she's found slumped to the right.
And if you look at the
car, if this person is shot, the victim would be shot, is slumping this way,
the seat is over here, so it is no longer exposing this portion of the head to
anyone who was to shoot her. So I believe
that the victim had to have the back of her head exposed to the shooter. She's seated over here, and the car doors
are over here, so that means the shooter had to be someplace outside over here
or stuck his hand inside the gun -- inside the car in some way. But in any instance, the back of the head
had to be exposed to the shooter.
Now, if she's found down on the side with
the back of the -- against the seat, the back of the head's no longer
exposed. So, therefore, I believe that
she was shot in the back of the head first.
And the way that she was shot in the back of the head, she's shot in the
back right about here, and it comes across and exits about here. So it's going from her left side to her
right side, it's going from the back to the front, and it's pretty much flat,
meaning that the gun probably was not coming at a downward angle, and it was
probably really not at an upward angle.
It was probably pretty much straight across. So the person that shot her the first time I believe was pretty
much holding the gun straight at her at this type of an angle. With this here, the contact here, then she
falls forward so the back of the head is no longer exposed to the shooter, but
the side of her neck is.
Now, I believe that the shooter, at that
point, came and stuck the gun into a loose contact. That means the person stuck his hand inside the gun -- inside the
car and had the barrel of the gun in contact, loosely in contact, with the
skin, and fired, that thick deposition of gunshot fire residue right there,
then the bullet came across -- it came across and it went up, but it went -- it
went up -- you've got to remember it's going up because she's down, and I'm
shooting in this direction, so it looks like it's up even though it's pretty
much straight out.
So it's going from here, and it's
coming up from the left side to the right side, and it comes out on the right
through the right eye. So I think that
I could tell you the angle of the gun, the directionality of the gun, and from
this also I could put together what I believe is an accurate which one came
first, because I don't believe that she could have been shot in the back of the
head second, because it would have to come through the seat and the seat was
intact.
There was no hole in the seat, and the
back of the head is not exposed, so I believe this was the first one and this
is the -- the neck shot was the second one.
And the first one is pretty much going straight across and the other one
is going literally at this type of angle, but you can imagine that she's laying
down, that you get that type of angle.
Well, you pretty just -- someone would stick their -- stick the gun into
the side of her neck. That's what I
believe happened.
In
Prosecutor Porter and Dr. Frist’s courtroom demonstration, several times Dr.
Frist states that an outside shooter would have to reach inside the victim’s
automobile to make the first shot. Of course, the back passenger window was
completely closed, as were all of the windows except the driver’s, and all of
the doors were locked. The convoluted reasoning for determining that gunshot #2
(see above) was the first shot fired would require that there be high velocity
blood back-spatter on the driver’s door and exposed portion of the window, and
there was none, and high velocity blood spatter on the passenger door; and the
blood on the passenger door, according to Dr. Frist's excellent instruction[26],
was unquestionably low velocity blood spatter. This scenario also does not
explain the high velocity blood spatter on the front windshield and many other
features of the scene.
Most
importantly, the scene that Prosecutor Porter and Dr. Frist presented to the
jury was the equivalent of presenting a demonstration of O.J. Simpson’s glove
without the glove. Without a more rational setting, the demonstration before
this jury was at best an amateur production on the order of “Our Town”, calling
for too much imagination on the part of the jury, meaningless and at worst totally
misleading. What was needed was the same kind of automobile driven by the
victim, a mannequin to serve as the victim, a person approximating the size and
build of the defendant and the actual shots fired.
Experts
in the field of crime scene reconstruction Ed Hanson and Kay Sweeney of
Kirkland, Washington performed actual testing of Dr. First’s theory of what he
calls the second shot in a crime scene reenactment. For this study, see under
Newly Discovered Evidence Grounds. A single example from that study with a
closeup is presented here[27].
Under this theory, the victim’s glasses and the other debris could never have
come to rest on the console and this also does not explain the unquestioned
high velocity blood spatter on the front windshield.
There
was never a serious forensic study done on the victim’s automobile. Had there
been, Michael Chapel would never have been arrested. Instead, as is the case
with most of this affair, the state came up with a tortured version of what it
wanted to show. If the autopsy and crime scene reports are looked at carefully,
the order of shots, the position of the victim at the time of the shots and the
position of the shooter can all be determined.
The
shot that caused what the autopsy report specified as gunshot wound #1 must
have been the first shot fired. The position of the victim’s glasses with the
remains of the broken lens on the console in the middle of the front floorboard
area[28]
and the blood spatter on the windshield[29]
attests to this. The blood spatter on the steering wheel indicates the leftmost
limit of the spatter, and those seen against the drivers side armrest indicates
the rightmost limit of the spatter. The spatter that is seen against the light
part of the top of the dashboard indicates the bottommost limit, and the
spatter that can be seen against the lighter part of the drivers seat backrest
may be the uppermost limit of the spatter. The midpoint of the spatter
indicates that the victim was sitting erect looking forward when the shot was
fired from the backseat. This also explains why there is blood running from the
entry wound down the back of the victim’s neck. If this shot had been the
second shot, that blood flow would defy the laws of gravity.
The
entry point for this shot was on the left neck, below the ear and approximately
4-1/2 inches below the associated exit wound at the edge of the right eye
socket. This bullet entered the soft tissue of the neck, traversed the brain,
exited through the thin bone area of the eye socket, continued on to shatter
the victim’s right eyeglass lens driving the glasses from the victim’s head and
coming to rest on the passenger side floorboard. Pieces of the shattered right
lens of the victim’s glasses were found on the console and the floorboard of
the automobile. Technician Judy Graham’s testimony confirms this.
[Judy Graham, Trial, Page 3260, Line 6]
By Ms. Rogan
Q. And
you mentioned also the glasses that were passed around. I believe that's State's Exhibit 23. You found those on the floorboard?
A. Yes.
Q. In
front of the console, I believe you said?
A. Yes.
Q. Okay. Did you ever observe those glasses at any
time on the passenger seat?
A. No.
Q. The
front seat of the vehicle?
A. Uh-uh
[negative].
Q. So
when you arrived, you took the photograph that you have testified you took --
A. Uh-huh
[affirmative].
Q. --
that depicts the interior of the car and the glasses on the floorboard. That was the position in which you found
them?
A. Yes.
If
this shot had been the second shot, the victim would have been slumped to the
right with her head pointed down, and there would have been no blood spatter on
the windshield and her glasses and pieces of her shattered lenses on the
console and the floorboard as described in the crime scene report above.
Additionally, the bullet on the passenger side floorboard was almost pristine[30],
attesting to its passage through relatively soft tissue and the thin bone of
the eye socket, only ricocheting off the windshield to slightly flatten the
tip. The bullet that passed through the passenger seat[31]
and came to rest beneath the passenger seat was severely deformed[32]
having entered on the left skull through the heavy bone 1 inch below the top of
the victim’s head and exited through equally heavy bone 1-1/2 inches below the
top of her head on the right side. This bullet finally slammed into the metal
casing beneath the passenger seat[33]
coming to rest in the frame beneath that seat.
The
most telling evidence is the photograph showing a blood stream running from the
entrance wound below the ear to the back of the neck[34].
If the victim’s head had not been in an upright position, the blood flow would
have been in the other direction, toward the front of the neck, and this would
fly in the face of the laws of physics. A photograph of the inside of the
victim’s jacket[35], confirms
the direction of the blood flow and the upright position of the victim’s head.
The bloodstains in this garment are in the middle and right side of the
garment. Had the head been in the slumped position as maintained by the
prosecution, the bloodstains would have been on the left side of the inside of
the jacket.
Finally,
there was blood on both of the victim’s hands[36]
indicating that she reflexively brought both hands to her right eye as she was
shot. This movement would have been similar to President Kennedy’s when he was
struck by the first shot from the Texas Book Depository. The bullet exited the
front of his neck, and he brought both hands to his throat as the shot exited.
Shot
#1, entering in the victims neck and exiting through her right eye socket,
would simply not have been possible for anyone positioned outside of the
victim’s vehicle. First the wound was a contact wound, and only the driver’s
window was partially open, and all of the doors were locked. The only possible
position for the shooter would have been behind the victim in the left rear
passenger area. Extrapolating from this, a shot from this position would have
been difficult for a right-handed shooter. Thus there is a high probability
that the shooter was left-handed[37].
The
second shot [Gunshot #2 above] also would have been virtually impossible from
outside the victim’s car. In order to achieve the necessary trajectory to pass
through the top of the skull as it did and then the passenger seat cushion, an
outside shooter would have to almost position his weapon in such a way as it
would be necessary to pull the trigger with his thumb.
Finally,
the presence of blood spatter on the windshield and the bloody driver’s side
head rest, including blood back-spatter on the drivers headrest area[38]
and the absence of any blood back-spatter on the driver side door and window[39]
argues eloquently for a shooter that was positioned inside the victim’s vehicle
in the left rear passenger seat area. There appears to be more blood in the
headrest area than could be explained by blood back-spatter; however the
trajectory of the bullet from below the left ear to the right eye socket is
such that the carotid artery and the jugular vein would be closely in its path.
(c)
Blood Spots On Console And Passenger Door
There
was unquestionably blood on the console[40],
the passenger door[41],
the passenger door panel[42]
and the passenger window[43].
The size of the spots on that door though indicates it was low velocity blood
spatter not from a gunshot wound but from another source.
The
state put Dr. Brian Frist forward as a blood spatter expert. While his purpose
was to identify spots on the defendant’s raincoat as high velocity blood
spatter. In any event, Dr. Frist found qualified by the Court as an expert in
blood spatter analysis, and he did lay a foundation in this case for the
identification of blood spatter inside the victim’s vehicle.
[Brian Frist, Trial, Page
5033, Line 17]
By Mr. Porter
THE COURT: Anything else as to his qualifications, Mr.
Porter?
MR. PORTER: No, Your Honor. We would submit Dr. Frist as an expert.
THE COURT: On blood spatter, as well?
MR. PORTER: Yes, sir.
THE COURT: Any objection?
MS. ROGAN: I'm going to object to his qualifications,
but I will leave it to the Court.
THE COURT: The Court finds him qualified. Go ahead, please.
DIRECT EXAMINATION - Resumed
BY MR. PORTER:
Q. Now, Dr. Frist, can you explain, in terms of blood spatter
and the analysis, what do you mean by that when you talk about the analysis of
blood spatter patterns?
A. What that involves is the interpretation of how blood falls
or is sprayed in a free-falling fashion and makes a mark on something that it
hits, whether it be the wall, the floor, some clothing or some object. Depending on the mechanism that the blood
got to that property, meaning the wall, it will leave a distinctive pattern,
and these are the patterns we are trying to interpret, and we could determine
many things from that.
Q. And what factors do you consider in looking at a given blood
spatter pattern in terms of the -- what can you determine from looking at it?
A. What we try to see is, first of all, we'd like to know how
fast was the blood traveling when it left the body and struck an object. We'd like to know how fast it was
traveling. We'd like to know the size
of it. We'd like to know the direction
it was going in. These are the main
characteristics we're looking at.
Q. And do you classify blood spatter pattern in terms of its
velocity?
A. Yes, we do.
Q. And what are the classifications?
A. There's high velocity, medium velocity, and low velocity.
Q. What are the characteristics of low velocity blood spatter?
A. Low velocity spatter patterns, we're talking about something
that's more on a -- that's moving slowly and it's more in a cast-off pattern,
where someone may be bleeding, have blood on their hand, and it may just be
thrown off as they move their arms, and blood may be transferred from their
hand, be airborne, and hit the wall.
These will basically be larger drops of blood, and it's very distinctive
what they look like.
Q. Is there a method of determining the direction of travel of
the blood when it struck the surface in any of the blood spatter?
A. Yes. You could look
at the blood spatter and it will actually make a mark and it will make -- it
will start to fall in a teardrop fashion, per se. You might be able -- you'll see the direction in which it hit the
wall or you may see the direction that it dropped to the floor, whether it came
straight down or at an angle.
Q. Now, and what are the characteristics of low velocity blood
spatter in terms of their source?
A. In terms of their source, just that they're usually heavy in
that they leave a large mark and they'll be more of a very large distinctive
drop -- droplet.
Q. Well, I guess what I'm asking you is, what would be a
characteristic injury that would result -- or a characteristic action which
would result in low velocity blood spatter?
A. Well, someone -- for example, if someone had been cut and
there was blood on the body and if, say, you got cut in your chest area and you
grabbed your chest and you fell back like that [demonstrating], you would be
throwing some blood. There would be
blood coming from your chest onto your hand, and as you went like that, the
blood would leave your hand and it would land some place, obviously, and that's
low velocity. It's not going very
fast. And it's usually a large drop.
Q. Is there also -- what's the next classification of velocity
blood spatter?
A. Medium velocity. And
that would be something that's moving -- I think what we should realize is
there's high velocity, mid-velocity, and low velocity, to put things in
perspective. High velocity is moving at
a hundred feet per second, and medium velocity is moving at between five and
twenty-five feet per second, and low velocity is moving slower than that,
obviously.
And
then you break them down as high velocity would be very small droplets. That will be an aerosol type effect where
the droplet of blood is less than point-one -- is less than, I'm sorry, is less
than one millimeter. And a mid-velocity
would be one millimeter to three to three to four millimeters. And then low velocity would be even greater
than that. So that gives you some idea.
The mid-velocity blood is --
it takes some significant force to cause it to spray, and that gives it this
larger size, but it's not the same as high velocity. High velocity takes a tremendous amount of force to get something
to aerosol and become very small and travel great distances in a very short
period of time.
Q. And what would be a characteristic injury that would result
in high velocity blood spatter?
A. A gunshot wound.
Q. All right. Let me ask
you, have you had the opportunity to examine what has been previously labeled
as State's Exhibit Number 129?
A. Yes, I have.
Q. And were you able to reach any conclusion as to the characteristics
of the spots on the jacket and their consistency with high velocity blood
spatter?
A. Yes. There are --
over the right arm area, right chest area, there are numerous small spatterings
of blood which I consider high velocity.
I think that this jacket was struck by high velocity blood.
Q. Now, did you run tests on the actual individual spots?
A. I did not.
Q. Would there be characteristics -- there has been evidence
presented that the -- and I'm going to hold it back so you can get a perspective
on it. There's been evidence presented
that the circles in blue have actually been tested and found to be blood of
human origin and that the circles in black have been given an opinion by Mr.
Kelly Fite that they are consistent with the circles in blue. Would this pattern be consistent with a high
velocity blood spatter pattern of human origin based upon the placement of the
circles?
A. Yes, they would.
Q. And how do you -- how can you determine that based on your
training and experience?
A. I would -- assuming that that jacket was worn by an
individual, I would believe that if the person wearing -- that individual had
fired a gun that struck someone at very close range, and that's when you get
your high velocity blood spatter patterns, now, at close range, press contact
-- loose contact type wounds, that that jacket would get sprayed with an
aerosol effect of high velocity blood spatter.
And if he was a righty, shooting with his right hand, that the majority
of the blood would come on his right side, hitting his arm and his chest.
According to Dr. Frist, whom the
Court recognized as a qualified expert in this area, the characteristic of high
velocity blood spatter is an aerosol effect where the droplets are small and
travel a great distance. This is clearly not true of the blood spots on the
passenger door as seen in photo exhibits. Indeed there are large drops of blood
at the bottom of the passenger doorframe[44].
Dr. Frist also described low
velocity blood spatter characteristics as, in his words above: “Low velocity
spatter patterns, we're talking about something that's more on a -- that's
moving slowly and it's more in a cast-off pattern, where someone may be
bleeding, have blood on their hand, and it may just be thrown off as they move
their arms, and blood may be transferred from their hand, be airborne, and hit
the wall. These will basically be
larger drops of blood, and it's very distinctive what they look like.”
What Dr. Frist is telling us is that
the blood spots on the door and bottom frame of the passenger door are low
velocity blood spatter. Since there is no other way to explain how those spots
came to be where they were if the victim were alone in the front seat, we can
only conclude that there was a passenger sitting in the front passenger seat,
and, when the victim slumped to right after the first shot, that passenger’s
left arm and hand and perhaps more became covered with the blood that was
gushing from the victim’s right eye. As that passenger then pulled his or her
arm away and lurched to exit the vehicle, the blood droplets were flung, just
as described by Dr. Frist, against the passenger door and its associated well.
An alternative explanation would be
that the front seat passenger was hit by the ricocheting bullet from the front windshield
of the victim’s car and his or her skin was broken but not penetrated. This
would mean that the blood on the passenger side door and window and in the well
below the right front passenger seat was not from the victim but was from one
of her killers. Indeed this explanation makes splendid sense because if the
bullet ricocheting from the front windshield did not hit something relatively
solid it most likely would have remained on the passenger seat. Instead the
bullet first found its way to the floorboards before rolling back under the
victim’s umbrella[45],
because of the vehicles position on a severe incline, where the crime scene
technicians found it. Even if the bullet were completely spent after it hit the
front windshield, it would have dropped straight down and would have wound up
resting on top of the umbrella.
This explanation is further
buttressed by the lack of blood or other matter that would have been expected
to be expelled from an exit wound around the bullet hole in the passenger seat[46].
The only explanation for this phenomenon is that a passenger was sitting in
that seat and his or her clothing absorbed the expelled matter.
(d) Fingerprints Found In The Victim’s Automobile
Now that it is established that the
shooter was in the rear-left passenger seat and that there was a passenger in
the front seat, the only fingerprints found in her automobile make more sense.
Three fingerprints were lifted from the rear left passenger door, and one was
obtained from the front passenger door.
[Mary Ann White, Trial, Page 4583, Line 3]
By Prosecutor Smeal
Q. Did
you collect the latent fingerprints that were recovered inside the vehicle?
A. I
collected three of them and Technician Graham collected one.
Q. And
where were they recovered from in terms of the interior of the car?
A. Three
of them were on the inside of the passenger door behind the driver's door, and
the other one, I believe, was from the front passenger -- inside the front
passenger door.
It seems unusual that there were so
few prints in the victim’s automobile. Clearly the car had not been given a
thorough cleaning since before it was brought to Wade Ford for service. The
repair tag card, number “245”, was still on the floor of the vehicle along with
an apparently empty cigarette pack[47].
On the other hand, if Ms. Thompson was that careless about allowing debris to
pile up in her car, it probably means that the car could have been cleaned
shortly before April 2nd. Then too, in the normal course of usage,
passengers and even drivers do not touch many of the surfaces other than door
handles and locks, if not controlled by the driver, and window controls. It
might have taken something unusual for the passengers in Ms. Thompson’s
automobile to touch other surfaces.
These fingerprints were never
processed to find out to whom they belonged. Because three of them were
recovered from the rear-left seat passenger door where the shooter was and one
of them was recovered from the front passenger door where a passenger was, it
might behoove the Gwinnett County Police Department to process those prints, if
they, like other critical evidence, have not disappeared.
(e)
Out Of Place Cufflink On Left Rear Passenger Floorboard
A crime scene photograph clearly
shows a cufflink, which is never mentioned on any reports, on the floorboard in
front of the left rear passenger seat which from the high velocity blood
spatter cone on the front windshield of the victim’s car had to be the position
of the shooter. The origin of this evidence was never investigated and may have
indeed belonged to the shooter[48].
It is unlikely that such a piece of jewelry belonged to the victim or anyone
she would have been likely to transport in that position.
An examination of the debris
surrounding the cufflink on the floorboards in front of the left rear passenger
seat might even display a clumsy effort on the part of the killers to plant
evidence that would have led police to someone else as the killer. In addition
to the cufflink, there was an empty package of “More” cigarettes, a brand
different than that smoked by the victim[49]
and an empty plastic cup and other packaging that might have contained
fingerprints that were not found by the crime scene technicians. The police of
course were so obsessed with Chapel they completely ignored the evidence at the
crime scene.
C. Evidence Presented Is Insufficient To Precisely Establish The Time
Of Death
Evidence and testimony establishing
the time of death of the victim was tenuous at best and did not establish with
any degree of certainty the Prosecution’s contention that the victim was killed
within 5 minutes of 9:40 PM. The victim’s time of death was established on the
basis of her stomach contents, and on the testimony of William and Sara
Hutchins.
The victim’s son, Michael Thompson
testified that he went to the Waffle House between 7:00 and 8:30 that night and
had steaks.
[Michael Thompson, Trial, Page 3866, Line 12]
By Ms. Rogan]
Q. And she got up around
seven and you went to the Waffle House?
A. Yes.
Q. Okay. And do you remember telling Investigator
Burnette that you had gone to the Waffle House with your mom and you had
steaks?
A. Yes.
Dr. Brian Frist, the Gwinnett County
Medical Examiner, could only give a several hour range for a time of death of
the victim based entirely on his opinion of the stomach contents of the victim.
[Brian
Frist, Trial, Page 3323, Line 5]
By
Prosecutor Porter
Q. Could
you tell anything from the autopsy regarding the time of death?
A. The time of death?
Q. Yes.
A. I could not tell you the
exact time of death, no.
Q. Now, you examined -- I
believe when you did the autopsy, you examined the stomach contents; is that
correct?
A. I believe I did. Let me just check. Yes.
Q. Okay. And what did that tell you?
A. That she had -- had
eaten and had digested vegetable matter within her stomach.
Q. You say vegetable
matter. Was there any indication of
meat or steak or anything like that?
A. There were other
portions of food which I couldn't tell what they were.
Q. Could you tell how long
it had been since she'd eaten by examining the stomach contents?
A. I would say two hours
plus or minus.
Q. So if she died at around
ten o'clock, then she would have eaten around eight o'clock that evening, would
that be --
A. Plus or minus.
Q. Plus or minus how much?
A. An hour or so.
The Prosecution’s contention was
that two shots were fired into the open window of an otherwise completely closed
car, and that the second shot was a contact wound. The Hutchins lived more than
one-half mile from the crime scene on the opposite side of the victim’s open
car window, with questionable line-of-sight to the crime scene and at a point
within yards of two major highways. Canvassing of the neighborhoods much nearer
the crime scene than the Hutchins’ could not corroborate their testimony. Mr.
Hutchins exhibited less than perfect hearing on the stand.
As Mr. Hutchins was being sworn in:
[William Hutchins, Trial, Page 3472, Line 16]
By Prosecutor Porter
Q. Could you state your
name please, sir.
A. William Hutchins.
Q. Now, Mr. Hutchins, where
do you live?
THE COURT: Would you spell it
for us, too, Mr. Hutchins so the
court reporter will know how to spell it.
THE WITNESS: Do what?
THE COURT: Would you spell your
last name for us so the court reporter will know what it is.
THE WITNESS: H-u-t-c-h-i-n-s.
And Later in his
testimony:
[William Hutchins, Trial, Page 3477, Line 24]
By Prosecutor Porter
Q. So if it rained and
stormed, it was after you went to bed, then?
A. Do what?
Q. If it rained or stormed,
it was after you went to bed?
A. I don't remember any
rain.
Again later in his
testimony:
[William Hutchins, Trial 3479, Line 1]
By Prosecutor Porter
Q. And most people don't
hunt with handguns, do they?
A. Do what?
Q. Most people don't hunt
with handguns, do they?
A. Not many.
And as he was being
dismissed by the Court:
[William Hutchins, Trial, Page 3483, Line 2]
THE COURT: All right. You can come down. Thank you.
THE WITNESS: Do what, sir?
THE COURT: You can come
down. Call your next witness, please.
[The witness stepped down from the stand.]
Next, as to the Hutchin’s location vis-à-vis Gwinnco Muffler:
[William Hutchins, Trial, Page 3482, Line 11]
By Prosecutor Porter
Q. Where your house is
located there, Mr. Hutchins, is it up on a hill or down in a hollow or what?
A. It's in the hole --
Q. It's down lower than the
rest of the --
A. -- below Peachtree.
Q. -- rest of the property
around there?
A. Below Peachtree.
Finally as to the time of the
shots allegedly heard by the Hutchin’s:
[William Hutchins, Trial, Page 3476, Line 23]
By Prosecutor Porter
Q. Mr. Hutchins, one last question. We’ve said
between nine and ten. Do you have any closer estimate of what time you heard
those shots on that night?
A. No sir, I don’t It’s just roughly
between nine and ten.
Mrs. Hutchins in her testimony
admitted she was unsure of the time when she heard the noises and that shehad
trouble distinguishing gunshots from backfires.
[Sara Hutchins, Trial, Page 3493, Line 2]
By
Prosecutor Porter
Q. Did he [the Hutchins’ 16 year old son]
get home by about 9:30?
A. No sir.
Q. As the time went on, did you hear
anything through the open windows?
A. I heard a gun shoot.
As to shots and backfires:
[Sara Hutchins, Trial, Page 3496, Line 10]
By Mr. Moore
Q. My name's Johnny
Moore. I represent Mike Chapel. Now, do you remember talking to Sergeant Cline,
Sergeant J.S. Cline, and giving him a statement back in April 1993?
A. Yes, I do.
Q. Okay. Do you remember telling him that you heard
shots around there quiet often?
A. Well, either backfires
or shots.
Q. Okay. Do you remember telling him that they --
that both of them sound just alike to you?
A. Well, normally I go, 'Was that a
gun?' But this time, I did not.
It is difficult to comprehend how
the Medical Examiner’s estimate of the time of death based on something so
controversial as the stomach contents of the victim and the testimony of an
older lady who admits to difficulty in determining the source of sharp noises
and that of an older gentleman who displayed on testimony to at least a
moderate degree of hearing impairment, both of whom lived in a hollow within
yards of two major highways where backfires are frequent and in the middle of a
severe thunderstorm, can be used to support the Prosecution’s contention that
the shots that killed Emogene Thompson were fired into her automobile at
precisely 9:40 PM.
D. Kautter’s Identification Of The Defendant
Witness Karl Kautter’s
identification testimony regarding his selection of the defendant from the
8-photo lineup as the officer he saw that night was always confused and never
more than tenuous.
1. The Original 8-Photo Lineup
In
the original eight-photo lineup, Kautter originally selected another officer.
Interestingly, he then said “but he is too tall or thin”. Chapel is 6’6” tall.
It is hard to believe that Kautter would then select him as the subject, he
finally said: “I would have to say number three” [Chapel].
At
the preliminary hearing for Chapel, Kautter was shown photographs of all 31
officers at the Northside Precinct. His first selection was Officer J.P.
Morgan.
In
his trial testimony, it was not clear whom Kautter was identifying as the
driver of the patrol car that passed them that night. When shown a picture of
Chapel and asked by Porter whether that officer was the person Kautter saw in
the patrol car that overtook them that night, Kautter replied “That is not J.P.
Morgan.” When asked again, he started to give the same reply. Finally when
asked a third time, Kautter replied in the affirmative. Kautter may have been
confused, but nevertheless that was his testimony.
[Kautter, Trial, Page 3579,
Line 5]
By Prosecutor Porter
Q. Let me ask you, the photograph of the person contained in
Defendant's Exhibit Number 38 --
A. Yes.
Q. -- is that the person
who was driving the car that night?
A. A good similarity.
Q. But is it the person?
A. I can't be sure.
Q. Is Defendant's Exhibit
Number 31 the person who was driving the car that night?
A. No. That's not J. P. Morgan.
Q. Is that the person?
A. That's -- no.
Q. Is that the person who
was driving the car that night?
A. To my knowledge, yes.
E.
Defendant’s Spending At Or Near The Time Of The Murder
The prosecution presented several
witnesses who testified that while the Defendant was in need of money he spent
several hundred dollars using one hundred dollar bills at or near the time of
the murder. Their contention of course was that these funds were in Emogene
Thompson’s purse that was in the car with her at the time of the murder.
In
a brilliant stratagem, the Prosecution co-opted, one might say hijacked, one of
the most important of the Defense’s witnesses under the guise of demonstrating
that Chapel needed money. In fact Jack Dudley was the source of the funds that
Chapel was spending near the time of the murder and the source of the four one
hundred dollar bills found in his briefcase. About February 1, 1993, six weeks
before the murder, Jack Dudley, who occasionally employed Chapel as a
bodyguard, loaned the Defendant $1,400.00 for his, Chapel’s, use in his
business. By presenting this witness on the second day of the trial the
District Attorney not only isolated Dudley from an orderly presentation of the
Defense case, but he also insured that Dudley’s testimony, after two weeks and
dozens of other witnesses, would be largely forgotten by the jury.
[Jack Dudley, Trial, Page 3600, Line 10]
By Prosecutor Smeal
Q. All
right. I want to direct your attention back
to January 1993 and ask you if you were involved sometime during that month in
a financial transaction with Mr. Chapel?
A. Yes.
Q. And
what was the nature of that financial transaction?
A. Michael
had asked to borrow some money from me.
At that time he was -- had the gym up in Buford, and I'd went up there
--
Q. Okay. Let me interrupt you for a second. Were you familiar with that gym? In other words, did you know that he was
operating a gym in Buford?
A. Yes.
Q. What
was the name of that gym; do you know?
A. That
I don't remember.
Q. Okay. How much was he interested in borrowing?
A. $2,000.
Q. Okay. And did he say why he needed the money?
A. He
was, at that time, I think was in -- behind on the rent on the gym.
Q. Okay. And do you recall when this conversation
first arose about the loan?
A. Probably
the first of January to the middle of January.
I don't remember the exact dates.
Q. And
how did you respond when he asked you if he could borrow $2,000?
A. I
told him I would see what I could do; if I could help him, I would.
Q. Okay. And did you in fact attempt to help him?
A. Yes.
Q. Okay. And what did you do along those lines to
help him?
A. I
went up, looked at the gym, looked over the books at the gym, and then
approximately, I don't know, two to three weeks later I went back to the gym
and loaned Michael some money.
Q. And
how much did you agree to lend him?
A. $1,400.
Q. Okay. And where and when did you give him that
money, if you recall?
A. I
gave him the money at the gym, somewhere in the end of January, no later than
the first of February. Somewhere right
in that time frame.
Q. Sir,
I'm handing you what has previously been marked as State's Exhibit 33. Can you identify that document?
A. Yes.
Q. What
is that document?
A. That
is a check that I had written to myself to get the cash to give to Michael.
Q. Okay. What is the date on that check?
A. 1st
28, '93.
Q. And
what is the amount of the check?
A. $1,500.
Q. And
who is it made payable to?
A. Myself,
Jack Dudley.
Q. Okay. It's written on an account of Lift Tech
Equipment; is that correct?
A. Yes. Yes, sir.
Q. Is
that your business?
A. Yes,
sir.
Q. And
you are the signer of this check?
A. Yes.
Q. Okay. And you're indicating that you wrote that
check in order to get the money to lend Mr. Chapel?
A. Yes,
sir.
Q. Okay. And I believe you've previously said that
you gave him $1,400?
A. Yes,
sir.
Q. Okay. I assume you kept the balance of $100?
A. I did.
Dudley gave Chapel cash
in one hundred dollar bills.
[Jack
Dudley, Trial, Page 3608, Line 6]
By
Ms. Rogan
Q. You
gave him $1,400?
A. Yes.
Q. And
that was in $100 bills?
A. Yes, ma'am.
The
Prosecution then isolated Dudley’s testimony further from the legitimate
witnesses in this aspect of their case. Before he called the first witness as
to Chapel’s spending one hundred dollar bills, the District Attorney called
thirteen witnesses who were without knowledge about Chapel’s spending of one
hundred dollar bills, over almost two full days of testimony, including several
banking witnesses, the victim’s son, an officer who had taken a message for
Chapel and the Defendant’s supervisor, Sgt. Donald Stone.
Valerie
Heath was employed at a Lawrenceville car wash where Chapel had taken his patrol
car on the day after the murder. Ms. Heath stated at trial in August 1995, that
Chapel had paid for the car wash with a one hundred dollar bill. Ms. Heath
identified what appeared to be a copy of a computer printout she testified
described Chapel’s transaction. Neither customers nor automobiles were
identified on the printout.
[Valerie Heath, Trial, Page 4068, Line 8]
By Prosecutor Smeal
Q. Okay. And do you recall the denomination of
currency that he used for that payment?
A. Yes. He gave me a hundred dollar bill.
Q. All
right. And did you give him the
change? I assume you did.
A. Yes,
I did.
Q. Okay. And does that receipt reflect how much he
received back?
A. Yes,
it does.
Q. And
how much did he receive back?
A. He got -- well, I gave him $2 off of his
car wash because I do that for police officers, and he received $82.05 back.
On cross-examination
however a very different picture appeared. At the time Ms. Heath was first interviewed
by the police on April 28, 1993, she stated that Chapel had paid for the car
wash with a twenty-dollar bill not a one hundred dollar bill.
[Valerie
Heath, Trial, Page 4072, Line 22]
By
Mr. Moore
Q. Okay. I'm going to show you what's been marked as
Defendant's Exhibit Number 53 and ask you if you can identify that
document. If you'd look at it. Would you read this statement, please. I mean, can you identify it first?
A. Yes.
Q. You
recognize the document?
A. Yes.
Q. Okay. Is that a copy of a statement you gave to
the police back on April 28, 1993?
A. Yes,
it is. It's got my signature on it, but
I didn't write it.
Q. Okay. But would you read it and see what it says?
A. Out
loud?
Q. No,
ma'am. Read it to yourself.
A. Okay. [Reads document]
Q. Now,
the date on your receipt is April 16; right?
A. Correct.
Q. Okay. And the date on the statement for the --
that was given the police is April 28?
It's down at the bottom on the front page.
A. Correct.
Q. Okay.
A. Correct.
Q. Now,
on April 28, 1993, you told the police that the police officer gave you a
twenty dollar bill; correct?
A. That's
incorrect.
Q. You
didn't tell them that?
A. I
said he gave me a hundred dollar bill.
Q. Okay. So the police didn't write down what you
told them?
A. That's
correct.
Q. Okay. You signed that, didn't you?
A. That's
correct. I sure did.
Q. Did
you read it when the police gave it to you before you signed it?
A. I
think that I just -- I had just made the statement so I just breezed over it.
Q. So
you didn't read it before you signed it?
A. Probably
not.
Q. Okay. Do you know of any reason why the police
would write down twenty dollars if you told them a hundred dollars?
A. I
have no idea.
Q. You
also told them you gave change, didn't you?
A. He
didn't receive change -- he did receive change.
Q. Are
you telling us you remember it better today than you did twelve days after the
transaction in 1993?
A. No,
I sure don't. But I'm married to a
policeman and we never had hundred dollar bills. I guess that's why it's sticking in my -- why it stuck in my
brain. And at the time, I commented to
the officer about that.
Q. But
he wrote down $20 and $2 change.
A. I
don't -- sir, I'm sorry what this man wrote down. He gave me a hundred dollar bill.
Q. But
you signed that document there?
A. I
sure did. I did.
Laurie
Pace was a part owner in a sign and screen-printing shop. She testified that on
April 19, 1993, Chapel came into her shop and placed an order for $597.99 worth
of T-shirts and jackets advertising his gym.
[Laurie Pace, Trial, Page 4115, Line 15]
By Prosecutor
Q. All
right. What was the total of that
purchase that day?
A. $597.99.
Q. Okay. And was it paid for that day?
A. Yes,
it was.
Q. How
did he pay for it?
A. He
paid for it with six one hundred dollar bills.
Mr.
Curtis is one of the more interesting witnesses. A sometime tree trimmer and
male dance revue (read male stripper) manager, Kendon Curtis came forward in
January 1995, just when the District Attorney felt he needed more evidence of
Chapel’s possession of Emogene Thompson’s allegedly stolen money. Mr. Curtis
testified that while he was apparently rifling through Chapel’s wife Eren’s
purse in a darkened car, he found an envelope. Mrs. Chapel apparently caught
Curtis in this act, grabbed her purse from him and checked on the currency in
that envelope. From this brief glimpse, Mr. Curtis was able to testify that the
envelope contained $3,000.00. Mrs. Chapel had exited the car to make a phone call,
leaving her purse behind.
[Kendon Curtis, Trial, Page 4230, Line 10]
By Prosecutor Smeal
And she looked at me, and she saw me
messing with her purse, and she tossed the phone down. She didn't hang it up or anything. And she came to the car very quickly and
jerked the passenger door open, which, of course, I was still sitting in the
middle of the back, pulled her purse away from me and set it in the seat right
next to me, and pulled an envelope out of the purse. She took the money that was in the envelope and she kind of
fanned through it with her thumb, I mean, a foot, foot and a half from me,
fanned through it with her thumb, and then stuck it back in the purse and put
it under her arm and went back and got on the phone.
Q. Okay. Would you describe the money that was in the
envelope?
A. It
was between a quarter- and a half-inch thick.
I would say closer to a quarter-inch thick of new hundred dollar
bills. I think there was one or two
fifties on the end of it, but she fanned through it, you know, real straight
right there with her thumb, in front of me, and I did see it very well.
Other
than the absurdity of Mrs. Chapel leaving a purse containing $3,000.00 alone in
a car with a stranger, Mrs. Chapel was a waitress at the local Hooters
restaurant and customarily received excellent tips. These she customarily kept
in an envelope in her purse. Chapel also commented on her treatment of these
monies she received.
[Chapel, Trial, Page 6207, Line 15]
By Ms. Rogan
Well, my wife, she -- she was working at the time at a restaurant, and
she made all her money from tips, one dollar bills, five dollar bills, such as
that, and she made quite well. And she
would come in with her daily receipts, and then swap out money out of the gym
-- gym account and exchange for bigger bills because -- see, I didn't carry a
wallet at all. I just -- I always went
-- whenever I got money I got the largest denomination I could, and I carried
around like -- and I've done it for years.
Well, my wife carried her receipts in her purse in an envelope, and I
carried a day's receipts in the money bag, and as we met up she would exchange
out -- well, the point is, I know how certain times an overdraw can be made
when you're exchanging that, and this money was set aside for something special,
and I didn't want to get it lost.
Chapel’s testimony is buttressed by
a declaration of his wife, Eren, which is included as an attachment to this
petition[50].
The friends and relatives of Chapel who together gave many thousands of dollars between the time of his arrest and the beginning of his trial challenge the veiled hints by the prosecution that Chapel used money taken from Emogene Thompson on the night of her murder for his defense[51].
[17] Ibid, Resume included with study
[22] Ibid
[23] Approximate page number
* Emphasis Added
[27] See Photo Exhibit 5-01, Hanson Re-enactment Photo,
and Photo Exhibit 5-02, Hanson Re-enactment
Photo – Closeup.
[29] See Photo Exhibit 5-04, High velocity blood spatter on windshield of victim’s car from outside the vehicle, and excerpt from crime scene report above.
[37] That the police were aware that the shooter may have used his or her left hand to fire the first shot is indicated by the fact that both sets of Chapel’s gloves were returned without the left glove. These gloves were most likely tested for gunpowder residue by the GBI as was his raincoat and found exculpatory.
and Photo Exhibit 5-13, Blood on driver’s side headrest area of victim’s car – closeup.
[40] See Photo Exhibit 5-14, Low velocity blood spatter on console area.
[48] See Photo Exhibit 5-21, Cufflink on GBI evidence table.
and Photo Exhibit 5-22, Cufflink on left rear passenger floorboard.
and Photo Exhibit 5-23, Cufflink on left rear passenger floorboard – closeup.
