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 )
AFFIDAVIT IN SUPPORT OF MOTION OF APPEALABILITY
Notice is hereby given that Michael H. Chapel, Petitioner in the above case, hereby appeals to the United States Court of Appeals for the 11th Circuit from the final judgment entered in this action on the 16th day of March 2004.
Michael H. Chapel, Pro se
845840
Wayne State Prison
P.O. Box 219
Odum, Georgia 31555
Respectively submitted this __9th __ Day of April, 2004
During the night of April 15, 1993 and into the early morning hours of the 16th, the Atlanta area experienced one of worst storms of several years, suffering all of the features of spring storms with especially heavy rain with only short periods of light rain or drizzle. Especially hard hit, the usual pattern for storms in Atlanta[1], were the north and northwest portions of the area, including Sandy Springs, Roswell, Norcross, Duluth, Sugar Hill and Buford. Drivers in these areas on Georgia 400 and Peachtree Industrial Boulevard (PIB) would describe extremely heavy rain that most of the time restricted their driving to a crawl. Driving time for those coming south on PIB had to be longer because of the distances and the extremely heavy rain, yet almost without fail they gave the gave their normal driving times. Drivers passing Gwinnco from the north on the other hand because most of the drivers lived in the area and were on time dependent schedules. The southbound drivers were more likely to get the time they passed PIB correctly.
The money Chapel spent in the week after the murder was accounted for by a business loan of at least $1400 from a part time employer and friend of Chapel’s for advertising for his small business “IronWorld” gym in late March 1993.
During the period from 9:00 to 9:30 PM, drivers, passing the Gwinnco Muffler Shop on Peachtree Industrial Boulevard one-half mile south of Georgia 20, reported seeing a police vehicle pointed out toward the street in the driveway of the muffler shop. The only problem here is that Chapel was at Fire 14 during that period. Who was the officer in the driveway? An analysis of the period between 9:30 and 10:00 PM that considers the weather and what the driver witnesses saw shows the following sequence of events: 9:35, driveway empty (Burnette’s notes); 9:40, the victim’s and most probably her son’s automobiles in the driveway back to back (Burnette’s Preliminary Hearing testimony); 9:45 through 9:55, the victim’s car in the driveway alone (three observations); 9:57 through 10:05, police car behind victim’s with blue lights at first then no lights and officer dismounted and checking victim’s car then officer remounted (about five observations); 10:06 and later, victim’s car alone again in driveway; 4:45 AM, two white males seen running from Gwinnco Muffler Shop on PIB. From 9:57 through about 10:15 PM, Chapel en route or at the Arden Drive address responding to call.
Of the remaining photos, most showed some alterations to the images. The crime scene photos of the interior of the victim’s automobile do not support the Prosecution’s contention that two shots were fired into the head of the victim when Officer Chapel supposedly shot her through the partially open driver’s window. The bloodstains in the interior of the victim’s car do however support an alternative, vastly different scenario.
First there were three shots fired by the killers, not two. The first shot (shown as (2) on the diagram) was fired into the head of the victim while not in her vehicle. Just a day or two after the murder Weldon Seay, Keith Seay’s father, the owner of the next-door trailer where Amy Parker and Keith Seay lived found a .38 bullet casing of the type used by the murder weapon in the grass behind and between the two trailers when, in the dark, the killers reloaded their weapon.
The photographs of the exterior of the victim’s car also do not support the prosecution’s contentions about the shots fired into the victim. The first officer on the scene placed yellow plastic tape immediately around the victim’s automobile on cones borrowed from the muffler shop. In the strong, after-storm winds that morning, these supports were soon blown over, and the tape around the car began to pick up red substances that could only be blood. As the heavy winds continued, the now bloody yellow tap began to distribute additional bloodstains onto the body of the automobile. Clumsy attempts were made to disguise these stains with a “black” color. These photos not presented or hidden from the jury described a trail of blood where the killers moved the dead or unconscious victim from her car trunk to first the driver’s door that they found to exposed to oncoming traffic on PIB. They then moved Mrs. Thompson around the front of the car to the less-exposed passenger door, where she was then lifted across the passenger seat and placed into the driver’s seat. Then the second shot (Shown as (1) on the diagram) was fired into her neck from the left rear passenger area causing high velocity blood spatter on the passenger side front window and rearward spatter on the top of the driver’s backrest. The photos of these areas were effectively hidden from the jury.
When the killers realized they had to account for the second set of wounds in the head of the victim, they simply fired a third shot into the passenger seat of the victim’s car. A photo of that seat showed burns around the inside of the bullet hole and gunpowder residue around the bullet hole but absolutely no blood spatter, of any type, anywhere near the bullet hole.
Remember, the last period of very heavy rain from the storm was about 2:00 AM. This would mean that the killers, after leaving the victim’s car with her in the trunk at 9:40 PM, must have returned to the driveway to set the scene indicating she was shot in her car in the driveway after 2:00 AM; otherwise the blood trail would have been washed away.
At the American Inn near the crime scene on Georgia 20, a loaded .38 pistol with two shots expended was found months later behind a large garbage container when it was moved. It was carefully given to police immediately, but Lieutenant John Latty would testify that the weapon could not be tested and was destroyed. There is evidence however that Chief Investigator Burnette kept the weapon and had it tested by Kelly Fite at the GBI lab in November 1994. A cover-up of that report was attempted when that test report was replaced by Kelly Fite with a report on a weapon of the type used in the murder owned by Officer Brian Reddy at the time of the murder that was turned in to the district attorney just before Chapel’s trial.
Officer Michael Chapel’s zone included all of the city of Buford and portions of Sugar Hill. Officer Brian Reddy’s zone included the rest of Sugar Hill, including the crime scene. The pair were both body builders and both were about 6’4” and 300 pounds with their equipment. They called themselves “Doom and Destruction, 600 pounds of cop”. At a distance their wives could not tell them apart until they moved. In their police units the two looked very much alike especially during the evening hours, and at that time of the year civil twilight began about 6 PM. During the evening then, if someone were driving in the Buford-Sugar Hill area on most nights and saw a police car, the driver was very likely Chapel or Reddy. It is not surprising then that the Emogene and her friends seemed to see Chapel everywhere during this period the friends believed Emogene to be working with Chapel, especially with their romantic notions about Emogene.
Two of the friends were straightforward in their statements and testimony about what they thought Emogene had told them. Indeed, one of the two had been similarly helped by Chapel when her daughter had stolen some jewelry. In a sham arrest, Chapel put the handcuffed girl in the back seat of his police car and read the riot act to her telling her what she could expect in the courts and in prison. The daughter was thrilled to immediately return the jewelry, and the incident then was forgotten by everyone.
Delores Burel on the other hand had two lengthy interviews with the police. Before her first police interview she did not even know Chapel’s name, and when another of the friends visited her prior to the interview, Delores asked her to write down the name of Officer Chapel for her to use during her interview. Delores was illiterate and could only drive a school bus or something similar to make a living. She wanted to stretch her fifteen minutes of fame as far out as possible. With the cunning and memory of many illiterates, although she complained of a poor memory and never seemed to have her glasses with her, Delores would prattle on until she saw the interviewer show some interest and would then begin to elaborate on the detail in such a way as to bolster her naturally low self-esteem. During a “hearsay” hearing on July 15, 1995, Mrs. Burel slipped and began to use the word “pretend” while describing Emogene’s description of her relationship with Chapel.
Mrs. Burel claimed to be “best friends” with Emogene Thompson and claimed to be constantly on the telephone with her, including the day of her murder; and, she said, that Emogene told her of a proposed meeting with Chapel that night. Delores kept calling that night to find out if Chapel had called Emogene about the meeting.
The Telephone Records
As will be seen
below, The Bell South telephone records obtained by the police for Emogene,
Chapel and the police and fire station were destroyed after they came into the
custody of the district attorney. There is evidence in the form of a memo from
Lt. Thompson, the custodian of these records, that they included both outgoing
and incoming calls. Evidence from incoming calls to Emogene that night would
have either confirmed or invalidated these claims indirectly much of the
testimony of Emogene’s son Michael.
The Phantom Witnesses
Throughout the trial, the district attorney continued to allude to prosecution witnesses that did not exist. First there “Fireman Peters as the only fireman who said that Chapel left the firehouse at 9:30 PM, and then there were the Guthries who along with the Hutchins as persons who heard shots fired that night. With all the witnesses, the jury just assumed they had forgotten the witnesses and their testimony. With all of the lawyers in that courtroom, someone should have straightened out the district attorney and explained the problem to the jury.
Emogene Thompson’s Phantom “Bloody” Purse
Petitioner cites the critical evidence of the phantom “bloody purse” never presented before the jury, yet illegally and with extreme prejudice flaunted by the Prosecution before the jury to bolster their failing case. The District Attorney even named the purse as the instrument of transfer for the blood in Emogene Thompson’s vehicle into Petitioner’s Patrol car. “How else”, he demanded of Petitioner during cross-examination, “How else could the victim’s blood got into his patrol car?”
When eighteen months later, the victim’s purse was found buried in the woods behind her trailer home by a child playing in the woods, The purse, made of natural fiber, was processed for fingerprints using standard tests and for blood using “luminal” by both the Gwinnett County Police Department (GCPD) and by the Georgia Bureau of Investigation (GBI) Crime Lab and neither of these organizations could find any latent fingerprint nor any trace of blood of any kind on or inside or on the contents of the purse.
The district attorney then used the “phantom purse” as a form of bogeyman evidence, rendering its use by the Prosecution during Petitioner’s trial as both illegal and morally wrong in context and content. Petitioner’s constitutional rights were thus violated, and the jury should have been cautioned to disregard any reference to the purse during the trial. This is an element of proof of Petitioner’s “actual innocence.”
A perfunctory police search of the woods behind the Thompson trailer home was conducted on April 1, 1994. Using the testimony of Lieutenant John Latty at the motion for new trial hearing that such a search was conducted, the Georgia Supreme Court dismissed the exonerating value that the purse. The police search in 1994 was conducted by only two officers in a densely wooded area consisting of at least five acres and in the dark. The treatment of the purse evidence because of this “police search” by the Georgia Supreme Court is another element that establishes Petitioner’s “actual innocence”.
The American Inn Pistol and the .38 Caliber Shell Casing
A loaded .38 caliber pistol with two rounds expended and of the make and caliber for which the police were searching was found several months after the murder in the tall grass behind a dumpster at the American Inn. When found, it was apparent the weapon had been exposed to the elements for several months. The employee that had moved the dumpster and found the weapon picked up using a pencil in the barrel and carefully placed the weapon in a plastic bag before calling the police. When the police retrieved the weapon, that employee watched as the police officers took the pistol out of its plastic bag and a rag from the car trunk and carefully wiped the weapon clean. That weapon immediately disappeared after coming into police custody without any kind of ballistics testing.
GCPD Lt. John Latty testified at trial that the weapon was too damaged by the elements to be tested. GBI ballistics expert Kelly Fite on the other hand testified at trial that Chief Investigator Burnette showed up at his lab with just such an elements-exposed weapon of that type in November 1994. Fite further testified that he tested the weapon and filed a report.
Just before Petitioner’s trial, Officer Brian Reddy brought his own weapon of that make and caliber to the district attorney claiming he had forgotten that he had it at the time of the murder. That weapon was again brought to Kelly Fite who tested it and prepared a report that he then substituted in his files for the report on the weapon he tested in November 1994. Certainly an attempt to cover-up the first report. On the stand, Kelly Fite blurted out the facts about the two weapons and claimed that the substitution was a simple clerical error. Fite even put the serial number of the American Inn gun into his testimony.
Within days after the murder, Weldon Seay found a .38 caliber shell casing in the grass between the trailer home he owned in which his son Keith and Amy Parker lived. He immediately called the police, and they arrived and picked up the shell casing. This item of evidence as well disappeared as soon as it was in police custody.
The Weldon Seay Found Spent .38 Caliber Casing
Keith Seay lived in a trailer home next to the Thompson’s. The Keith Seay trailer was owned by Weldon Seay, Keith’s father who lived across the street from both. While walking in the grass between the two trailer homes. Weldon call the police, and they retrieved the casing from Seay. Once in police custody however, the shell casing disappeared.
The crime scene was almost totally ignored at trial. Only 18 of the 77 photographs taken of the scene were listed in the transcript index of evidence the jury, and most them showed some alteration. Two of the photographs indicating a bullet trajectory were hidden from the jury and two photographs of the front interior doors were misidentified, all because they were incompatible with the Prosecution’s theory of how the shots were fired by Chapel. Of the 14 remaining photographs listed, 2 were of the victim after extraction from the vehicle; 3 were of the outside of the vehicle; 1 was of a projectile; 1 was of the flat tire; and 3 were of the muffler shop buildings. Of the 5 remaining in the index, 2 were of the front and rear floorboards and 1 was of the victim through the front windshield of the victim’s car. Of the remaining 2 photographs listed, 1 was through the open front passenger door showing the passenger seat and the floor, and the last photo was through the driver’s door finally showing the victim in her driver’s seat. None of these listed photos in any way supported the Prosecution’s theory that Mrs. Thompson was shot through the partially open driver’s window by Officer Chapel.
The Misidentified Photographs
(S-17, S-18)
The two photographs that were misidentified were of low velocity blood spatter on that door and window. On the stand, the crime scene technician identified the photos as of the driver’s door to Prosecutor Smeal as they were listed in the index, but the legend at the bottom read “Passenger Door” as they in fact were. A juror spoiled this ploy to establish a foundation for the blood found on Chapel’s raincoat when he read aloud the legend on one of the photos as “passenger door”. Dr. Brian Frist, the medical examiner and one of the two next witnesses, was scheduled that day to testify about high velocity blood spatter on Chapel’s raincoat, but because of the jury’s reaction to the misidentified photos, the district attorney was unsure how much the jury knew and did not solicit that testimony then. He waited until the end of his presentation, days later, and then recalled Dr. Frist and called the state witness, Kelly Fite, to give testimony about blood spatter inside the victim’s car and on Chapel’s raincoat. Remember though, these two used the very same photos that the jury had discredited when they were introduced.
The Hidden Photographs (S-12, S-13)
Of the two photographs that were effectively hidden from the jury, one was of the victim in the driver’s seat but taken through the windshield from the passenger side showing high velocity blood spatter on the inside of the passenger side windshield and a small nick that probably is where the bullet hit the windshield. The other was of the driver’s side of the victim’s car showing bloodstains on the top of the driver’s backrest. The trajectory then indicated that this shot (Shot 2) was from the rear left passenger seat by a shooter who was probably left-handed since the shooter could have fired from either side but chose the more uncomfortable left side.
The remaining Crime Scene
Photographs (Not on the List of Exhibits)
Most of these crime scene photos of the interior of the victim’s automobile do not support the Prosecution’s contention that two shots were fired into the head of the victim when Officer Chapel supposedly shot her through the partially open driver’s window. They do however support a vastly different scenario.
First there were three shots fired by the killers, not two. The first shot (Shot 1) was fired into the head of the victim while not in her vehicle. Just a day or two after the murder Weldon Seay, Keith Seay’s father, the owner of the next-door trailer where Amy Parker and Keith Seay lived found a .38 bullet casing of the type used by the murder weapon in the grass behind and between the two trailers when, in the dark, the killers reloaded their weapon.
The first officer on the scene placed yellow plastic tape immediately around the victim’s automobile on cones borrowed from the muffler shop. In the strong, after-storm winds that morning, these supports were soon blown over, and the tape around the car began to pick up red substances that could only be blood. As the heavy winds continued, the now bloody yellow tap began to distribute additional bloodstains onto the body of the automobile. Clumsy attempts were made to disguise these stains with a “black” color. These photos not presented or hidden from the jury described a trail of blood where the killers moved the dead or unconscious victim from her car trunk to first the driver’s door that they found to exposed to oncoming traffic on PIB. They then moved Mrs. Thompson around the front of the car to the less-exposed passenger door, where she was then lifted across the passenger seat and placed into the driver’s seat. Then the second shot (Shot 2) was fired into her neck from the left rear passenger area causing high velocity blood spatter on the passenger side front window and rearward spatter on the top of the driver’s backrest. The photos of these areas were effectively hidden from the jury.
When the killers realized they had to account for the second set of wounds in the head of the victim, they simply fired a third shot into the passenger seat of the victim’s car. A photo of that seat showed burns around the inside of the bullet hole and gunpowder residue around the bullet hole but absolutely no blood spatter, of any type, anywhere near the bullet hole.
Remember, the last period of very heavy rain from the storm was about 2:00 AM. This would mean that the killers, after leaving the victim’s car with her in the trunk at 9:40 PM, must have returned to the driveway to set the scene indicating she was shot in her car in the driveway after 2:00 AM; otherwise the blood trail would have been washed away.
At the American Inn near the crime scene on Georgia 20, a loaded .38 pistol with two shots expended was found months later behind a large garbage container when it was moved. It was carefully given to police immediately, but Lieutenant John Latty would testify that the weapon could not be tested and was destroyed. There is evidence however that Chief Investigator Burnette kept the weapon and had it tested by Kelly Fite at the GBI lab in November 1994. A cover-up of that report was attempted when that test report was replaced by Kelly Fite with a report on a weapon of the type used in the murder owned by Officer Brian Reddy at the time of the murder that was turned in to the district attorney just before Chapel’s trial.
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 thirty-one officers in the photograph deck except one (D-14). He testified that the officer looked familiar, but that he could not remember his name. These photos were of all the officers at the Northside Precinct during the month of the murder. Sergeant Stone, nicknamed “Rooster”, had been for many years a very close friend of Officer Michael Chapel’s. It is ludicrous to think that the D-14 photo was of Chapel, however during Stones recitation of the names of the photos, he mentioned every police office except 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.
At a 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 officer’s likenesses seemed familiar. Kautter then selected Offficer 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 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”. Now how could Kautter identify an Officer everyone assumed was Michael Chapel that Sergeant Stone said was not in the deck of photos from a photograph the only thing Kautter could testified to was that it was not J.P. Morgan. None of the jurors saw that photograph, and the defense never asked to see it. It follows then that the eyewitness did not identify the Defendant from the stand, therefore there was no eyewitness.
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.
Collusion between the Prosecution and Defense
Most of the collusion was on the part of Johnny Moore, no doubt prearranged. First he did not cross-examine many of the witnesses when they offered such weak testimony. Then he failed to challenge the CST Judy Graham and Prosecutor Scott Smeal on Exhibits 17 and 18 when they attempted to set the foundation for the blood on the rain jacket. Then he attempted elicit testimony prejudicial to the Defendant from Capt. Davis. The he and Mrs. Rogan pledged not to interrupt the district attorney during his scurrilous closing argument that was filled with lies and venom. It is a long list.
The Bloodstain in Chapel’s Police Unit
There is little doubt that the origin of DNA from that stain was Emogene Thompson, but there is absolutely no evidence to show the origin itself. The only way to disprove a negative is to prove that there is no supporting evidence for the proposition. In this case there is absolutely no reliable evidence that Chapel put it there himself. There is no supporting evidence: no confession, no eyewitness, no bloody purse, no bloody raincoat, no valid hearsay testimony, no crime scene evidence to support the Prosecution’s theories – in short nothing.
Conclusions
I, Michael Harold Chapel, Petitioner do declare under penalty of perjury that the forgoing is true and correct.
Executed this 9th Day of April, 2004
Michael H. Chapel, Pro se
845840