IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ATLANTA, GEORGIA
MICHAEL
HAROLD CHAPEL )
GDC
845840 )
Petitioner, Pro se )
Appeal No.
)
04-11939-B
v. )
) CIVIL ACTION NO.
) 1: 03-CV-2655-CAP
HUGH
SMITH, Warden )
Georgia
State Prison )
Respondent )
MOTION
TO CONSIDER PROOF OF POLICE AND PROSECUTION MISCONDUCT
Comes now Michael H. Chapel, Pro se, Appellant and moves this court to consider the evidence and attachments as described and shown in this proffer of proof of police and prosecution misconduct as additional and supplemental to all of the newly presented evidence as submitted to the courts in support of his petitions;
I
In his continuing efforts to investigate the factual predicate of the claims made in his Petition for Habeas Corpus, Appellant has developed additional evidence regarding the so called Shot 2 allegations as made by the prosecution at his trial. [See the attached “The Case in Pictures” attached for a description of Prosecution’s trial claims.]
The prosecution’s Shot 2 allegations were made inconsistent and contradictory during his investigations when Appellant realized that there was no blood evidence on the victim’s automobile front passenger seat to support the bullet hole in that seat. The passenger seat was completely free of any bloodstains except for two small spots, neither of which was close to the bullet hole as shown in the photographic evidence presented by the prosecution.
Appellant has previously attributed the bullet hole to the killers when they realized that there were two sets of wounds in the victim’s head and only one shot had been fired in their attempt to setup the scene to appear that Mrs. Thompson had been shot twice while sitting in her automobile in the Gwinnco Muffler Shop driveway. This appeared to be a part of a plan that included placing a piece of paper on the victim’s knee and a smoking cigarette in the ashtray.
This Shot 2 cover-up action by the killers seems inconsistent with the rest of their behavior that night. The plan apparently went awry, and Shot 1 was administered to the victim before she was placed in her automobile, rendering her dead or at least unconscious. Mrs. Thompson was then placed in the trunk of her car, probably at about 9:40 PM when her automobile was placed in the muffler shop driveway. The killer’s must then have returned to the scene sometime after 2 AM, after the last very heavy rain of the storm; otherwise the blood trail from her retrieval from the trunk and her journey around the front of the automobile to and into the passenger door would have been washed from the very steep driveway at that time. [See Appellant’s “Supplemental Habeas Corpus Petition” for a complete description of this activity.]
If the killers did not fire the cover-up Shot into the passenger seat, only the Gwinnett County police could have been responsible for Shot 2, and a question arises of where did the Gwinnett County police secure the weapon responsible for Shot 2. At trial, Kelly Fite, the GBI ballistics expert, rendered an opinion in his testimony that both projectiles from Shot 1 and Shot 2 were fired from the same gun. If this was true, the murder weapon must have been in the possession of the police, but if not true, the police must have secured another weapon of the same type to fire shot 2.
This circumstance has been suspected for several weeks now as the continuing development of the factual predicate of Appellant’s claims raised new realizations. Officer Brian Reddy, who owned a weapon of the exact type used in the murder at the time, reported this to the district attorney during Appellant’s trial began, in fact only three days before trial testimony began.
This fact, suspicious as it was, seemed more so after the recent realization that the testing and report of Reddy’s weapon by the GBI, again during the trial, was found in testimony by Kelly Fite to have the characteristics of a cover-up when Fite attempted to replace a 2-year-old test-report on a similar weapon with the Reddy weapon report. Reddy’s weapon was excluded by ballistics, but that type of weapon requires only the removal of a small pin that then allows the old barrel to be screwed out and a new one screwed in.
Attempts to prove that the police fired the so called Shot 2 into the passenger seat failed until, just before this submission, it was remembered the passenger seat was photographed by police technicians from outside the vehicle at the crime scene even before the vehicle was unlocked and the victim removed. That photograph, [Attachment “Shot 2-Passenger Seat from Outside of Vehicle”] revealed a hole in the seat. Testing for alterations[1] [Attachment “Shot 2-Passenger Seat From Outside Hue Saturated”], there did not appear to be any. When the hole portion was cropped and enlarged [Attachment “Shot 2-Passenger Seat Hole”] then tested [Attachment “Passenger Seat Hole Hue Saturated”], the photograph showed none of the characteristics of the later photograph of the bullet hole in the passenger seat presented in court, [Attachment “Shot 2-Passenger Seat Bullet hole”], especially when that photograph was tested, [Attachment “Shot 2-Passenger Seat Bullet Hole Hue Saturated”]. Compared to the initially photographed hole in the passenger seat, the bullet hole has a different shape, is larger, more ragged, displays unexploded power around it and black burn marks around the area where the projectile entered.
Now contrast the virginal characteristics of the passenger seat photographs with the photo of the two front seats that with difficulty the bullet hole can be seen [Attachment “Shot 2-Front Passenger Seats”] then tested [Shot 2-Front Passenger Seats Hue Saturated”]. In this area, extensive alterations appear to have been made. The pink and white areas on the driver backrest are of especial interest because the are the bottom area of the extensive blowback or rearward high velocity blood spatter that resulted from Shot 3 and can be seen in another “virginal” photograph of that area taken from outside the vehicle when it was initially photographed at the crime scene [Attachment “Shot 2-Driver Backrest from Outside the Vehicle”].
In the photograph, the leftmost, diagonal red stripe is the blood covered driver seat belt, missing from the “front passenger seats” photograph. The rightmost red stripe appears to be the blood covered inside lining of the left portion of the driver’s window. This photograph may also be considered “virginal”, i.e., unaltered, because when tested there is no significant difference between the two photographs [Attachment “Shot 2-Driver Backrest from Outside Hue Saturated”].
As an aside, if Shot 2 had been administered by the Appellant through the window as claimed by the prosecution, the blowback through the lowered window would have covered his rain jacket as it did the backrest, and would not have left the 6 or 7 miniscule spots of human blood shown circled in blue by Jennifer Wilson, the GBI serologist, that, by the way, were never tested for DNA, [Attachment “BR-Raincoat-1”].
CONCLUSION
The Mr. Thompson’s automobile that was most of the crime scene was returned to her son Michael within weeks of the murder and was never examined by the defendant, or any defense investigator, expert witness or attorney as far as is known by Appellant. The date of that property return does not appear to be in trial testimony or in any other evidence available to Appellant except for the civil trial deposition by Mrs. Thompson’s son Michael who then had a civil action pending against Appellant and Gwinnett County. Michael Thompson testified that the automobile was returned to him in June 93’ and sold later in the year.
Under questioning, Thompson testified he did not know to whom the car was sold, but it was sold for $1,000, this just after he paid off a $5,500.00 note on the car to Lamb’s Automobiles. Paying off this note was extremely untypical for Michael Thompson. He refused, for example, to use any of the $115,000 he received in insurance to pay any of his mother’s funeral expenses or to pay any of the court ordered child support payments, of which he was several thousand dollars in arrears, nor did he ever make any child support payments or dedicate any of the insurance money to his daughter’s future after his mother’s death.
Returning the victim’s automobile to her son so quickly and before Appellant or his defense could examine it was tantamount to the destruction of evidence. After the crime scene automobile disappeared, the case against Appellant was totally and totally and wholly dependant upon the crime scene photographs, which we see here and elsewhere were extensively altered, and the testimony of the crime scene investigators, whose testimony could not be trusted because of their extensive and documented perjurious testimony. [See the attached “Motion for Certificate of Appealability, page 4, for a good example of that behavior.]
I
declare, under penalty of perjury, that the foregoing is true and correct.
Executed
and Respectfully Submitted this 23rd of July 2004.
Michael
Chapel
GDC
845840
Wayne
State Prison
Box 219, Odum, GA 31555