IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

 

 

MICHAEL HAROLD CHAPEL                  )

GDC 845840                                                  )

                                                                        )           PRISONER HABEAS CORPUS

            Petitioner                                            )           28 U.S.C.   §  2254

                                                                        )

       v.                                                              )          

                                                                        )                      

HUGH SMITH, Warden                               )           CIVIL ACTION NO.

                                                                        )           1: 03-CV-2655-CAP

Georgia State Prison                                     )

                                                                        )

            Respondent                                        )

 

 

MOTION TO CORRECT ANALYSIS OF EYEWITNESS TESTIMONY

 

      

       Comes now Michael Chapel, Petitioner, Pro se in the above styled action and files this motion to correct his analysis of eyewitness testimony in of his Supplemental Petition for Habeas Corpus by stating and showing the following:

(1)

       In Petitioner’s previously submitted Supplemental Petition for Writ of Habeas Corpus, an analysis was proffered of a deck of photographs of police officers who were assigned to the Northside Precinct on the date of the murder of Emogene Thompson, April 15, 1993. In his testimony, Sergeant Donald Stone identified all of the officers in the photograph deck except one (51).

STONE’S DEFENSE TESTIMONY

It is Sergeant Stone’s testimony for the defense, for his close friend Michael Chapel that is so outrageous. With Mr. Moore questioning him, a portion of that testimony is so extraordinary that it is reproduced here:

 

By Mr. Moore:

Q.        Sergeant Stone, I issued a subpoena to the Gwinnett County police department for the ID photographs of all the officers assigned to the Buford precinct on April 15, 1993, for their photographs.

A.        Yes, sir.

Q.        Pursuant to that, Mr. Danny Porter, the district attorney, delivered to me a series of photographs that -- from the police department and they're numbered on the back D-14 through D-44, and I'm going to ask you to look at these pictures and see if you recognize those people.  And if you would, identify each one by the number on the back.  If you could identify each officer.

A.        D-44 would be Officer Yeager, D-43 would be Officer Hughy, D-42 would be Sergeant Tim Hunter, D-41 would be Officer Mornings, D-40 would be Officer Bridgefarmer, D-39 would be Sergeant Tyson, D-38 would be Corporal Stratameyer, D-37 would be Officer Jack Garner, D-36 would be Lieutenant Greenwood, D-35 would be Corporal Wilhoit, D-34 would be Corporal Byers, D-33 would be Officer Rosa, D-32 would be Sergeant Winderweedle, D-31 would be officer J. P. Morgan, D-30 would be Officer Danny Burke, D-29 would be Officer Geidner, D-38 would be Sergeant Edmunds.

THE COURT:  That's 28?

THE WITNESS:  D-28.

THE COURT:  Okay.

BY MR. MOORE:

A.        [Continuing]  D-27 would be Lieutenant Morgan, D-25 would be -- D-25 would be Officer Drake, D-26 would be Officer Reddy, D-24 would be Officer Yonker, D-23 would be Officer Zimmerman, D-22 would be Officer Pusbach, D-21 Officer Awtry, D-20 would be Sergeant Shell, D-19 is Officer Martin, D-18 is Lieutenant Knight, D-17 is myself, D-16 is Officer Evans, D-15 is Sergeant Staunton, D-14 -- and I don't recognize D-14.

Q.        Even though you don't recognize the name, do you recognize the face?

A.        Yes.

Q.        Okay.

A.        I don't recall his name.

Q.        Okay.  That's fine.  Well, you did very well, I think, to remember all you did.  Now, those pictures, D-14 through D- -- was D-44 the last one?

MS. ROGAN:  Uh-huh.

BY MR. MOORE:

Q.        Okay.  D-44 -- were those the officers that worked the northside precinct during April 1993?

A.        Yes, sir.  It appears to be so.

Q.        Okay.  And you knew all of them personally, and even though you didn't know the name of one of them, you knew that officer by his face and everything?

A.        Yes.

MR. MOORE:  Your Honor, at this time, we would tender Defendant's Exhibit Number 14 through Defendant's Exhibit Number 44.

 

            Now lead defense counsel Johnny Moore stated without exception these photographs were of all the police officer who worked at the Northside Precinct on April 15, 1993, and the district attorney who furnished the photographs in response to Moore’s subpoena did not quarrel with Counsel Moore about the number of photographs furnished. Now who is missing from Stone’s photograph-to-name matches? It is none other than Officer Michael Chapel, Sergeant Stone’s close friend. Who was the officer in D-14, the name of whom escaped Stone, but who knew the officer by his face? By process of elimination, D-14 must be a photograph of Officer Michael Chapel. This becomes critical when eyewitness Karl Kautter’s trial testimony is examined.

 

            Petitioner now recognizes that assuming Photograph D-14 to be a photograph of the Petitioner was unreasonable. Sergeant Stone was not only Petitioner’s supervisor but had been his close friend for many years. If Stone’s remarkable memory deserted him at just that moment, he need only have identified D-14 as “the Defendant” or merely pointed at the defense table as Stone was sitting only a few feet from the Defendant.

 

(2)

KARL KAUTTER’S TRIAL TESTIMONY (GHCP, 5-41-42)

 

            At the hearing of July 7, 1995, Kautter was handed the same deck of photographs that Sergeant Stone was to later identify.  He was unable to pick out Officer Michael Chapel from the deck. He was then asked if any of the officers on the Officer likenesses seemed familiar. Kautter then selected J.P. Morgan, Officer Mornings and Sergeant Stratameyer. It was a mistake that Danny Porter would not repeat at trial.

            At trial, Danny Porter showed Kautter D-38, identified by Stone as Sergeant Stratameyer, and asked him if that was the officer that passed he and Omodt on PIB just north of the muffler shop driveway. Kautter responded that it was not [he could not be sure], but the officer looked like him. Porter then showed Kautter what Porter said was photograph D-31, identified by Stone as Officer J.P. Morgan and asked if that officer is the one that passed he and Omodt that night. Kautter replied: “That is not J.P. Morgan”. Porter then asked Kautter the exact same question, and Kautter started to give the same answer. When Porter realized this, he interrupted Kautter and asked him again whether the officer in photograph D-31 was the officer that passed he and Omodt just north of the muffler shop on PIB on the night of the murder. At that point, all the air seemed to go out of Kautter, and he meekly replied: “To the best of my knowledge, yes”. This exchange was as follows:

 

[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.

 

            This exchange was taken electronically, word for word from the actual trial transcript. It is evidence that the certified trial transcript was edited and otherwise tampered with. Every person present in the courtroom during that exchange remembers that Karl Kautter prefaced his final answer with the words “I will have to live with this the rest of my life.” These words were edited out of the certified transcript. The only way to check for other alterations of the certified trial transcript would be to check the transcript against the videotapes taken by Court TV.

 

(3)

            Sergeant Stone and eyewitness Kautter used the same deck of photographs; and according to Sgt. Stone, Officer Michael Chapel’s photograph was not included in the deck. The question then is: whose photograph in D-31 was Kautter looking at. All we know for sure is that it was not the Petitioner nor was it Officer J.P. Morgan.

 

(4)

 

                           

            Finally:

            In his closing argument, Danny Porter would admonish the jurors to “look very carefully at the D-38 photograph. Was this another of Porter’s “switcheroos”?

Was it meant to confound and confuse the jury? The hallmark of Chapel’s jury was indeed total confusion.

 

CONCLUSION

       Since the jury was never shown the deck of photographs and particularly photograph D-31 at trial, there was no way for them to know whom Karl Kautter identified as the driver of the police vehicle that passed them on Peachtree Industrial Boulevard a few hundred feet north of the Gwinnco Muffler Shop driveway. It could not have been the Petitioner, whose phtograph was not in the deck according to Sgt. Stone, nor could have been Officer J.P. Morgan whose photograph had been identified as D-31 by Sgt. Stone.

           

 

                        Respectively submitted this __25th __ Day of March, 2004,

                                                           

 

                                               

                                                Michael H. Chapel, Pro se

                                                845840

                                                Wayne State Prison

                                                P.O. Box 219

                                                Odum, Georgia 31555