P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Wednesday, August 23, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; criminal jury trial, Judge Fred A. Bishop, Jr., presiding.]

THE COURT:  Are our jurors ready, Mr. Allen?

THE BAILIFF, MR. ALLEN:  Yes, sir.

MS. ROGAN:  Judge, can we approach on something?

THE COURT:  Yes.

[Counsel approached the bench and the following conference ensued.]

MS. ROGAN:  Judge, one of audience members came up to us after the court day yesterday and said that one of our alternate jurors, Mr. Ford, was signaling and smiling and winking, I think, at one of the audience members who he believed was an employee of the district attorney, one of the victim witness people.

MR. PORTER:  It's one of the high school -- she's a former high school volunteer with the victim witness.  She's seated on the back row in the black dress.

MS. ROGAN:  It appeared that he recognized her.

MR. PORTER:  He knows her.

MS. ROGAN:  Okay.

MR. PORTER:  He knows her.  I don't know what the relationship is.

MS. ROGAN:  Did he -- I don't remember if he mentioned that he knew her --

MR. PORTER:  No, he didn't.

MS. ROGAN:  -- during our questioning.  I'm    just --

THE COURT:  We've got so many folks like that.

MS. ROGAN:  No, I understand that.  I just --

THE COURT:  If you asked me did I know somebody I probably, -- may be the people I know, but I didn't recognize the name or whatever.

MR. PORTER:  Apparently, they went to school together, went to high school together, because they're both recent graduates.

THE COURT:  Is that the fellow sitting on the front row?

MR. PORTER:  Yeah.

MS. ROGAN:  Yes.

MR. PORTER:  The guy's having a great time.

MS. ROGAN:  He's wearing a gold chain.

THE COURT:  Yeah.

MS. ROGAN:  He's an alternate.  I think he might even be the fourth alternate.

MR. PORTER:  He's the fourth alternate.

THE COURT:  Is he?

MS. ROGAN:  But I'm concerned.  I wanted to bring it to the Court's attention that he did seem to know somebody from the DA's office and to say that we didn't know that before.  I don't know if it will have any effect on him or whether it's going to matter.

THE COURT:  Well, I think folks during voir dire, they do the best they can.  If you say, well, do you know anybody on this staff or that staff -- you know, if you asked me half the time about various staffs of other judges' offices, you know, likely as not there'd be somebody I'd know that I wouldn't think about.  I don't find that unusual and I think that's about as good as you can do if it's an honest -- nobody's trying to conceal anything, but I think it's just part of the trial.  What are you requesting?

MS. ROGAN:  Well --

MR. PORTER:  Your Honor, it might be worth it to bring him in and give him some instruction.  Either that or allow the defense to question him.

MS. ROGAN:  I would like to ascertain that it's not going to affect his impartiality in the case.  He may not have been aware that his friend was --

THE COURT:  Well, I don't contemplate another voir dire, and I don't contemplate questions from the counsel.  If you have something you want me to ask him, then I'll consider that.

MS. ROGAN:  That would be fine.  If you would ask him if he recognized someone in the audience yesterday.  I want to ask even if he knows she works in the DA's office, because if he doesn't know that, it's really irrelevant.

MR. PORTER:  I'm not sure he does know that.  She doesn't -- she doesn't anymore.

MS. ROGAN:  If she doesn't work in the DA's office, it doesn't concern us.

MR. PORTER:  I mean, I have a volunteer program in joint association with the school system and they send kids like for extra credit, and Brooke was one of the ones that came.  She graduated, she's done, and she hasn't been here since school.

MS. ROGAN:  Perhaps simply if we could just find out if he did recognize anyone in the audience and whether the fact that he is acquainted with this person will have any effect on his ability to be fair and impartial in this case without --

THE COURT:  Is she here today?

MS. ROGAN:  -- directing his attention to the  fact --

MR. PORTER:  Yes.  She's seated between Stan Hall and the man in the white shirt.  She's in a black dress.

THE COURT:  Is she just here --

MR. PORTER:  She's just watching.

THE COURT:  Well, what do you think, Mr. Moore?

MR. MOORE:  Your Honor, I think what Ms. Rogan said, if the Court would inquire if it would affect his impartiality.  I think at this point that's about all we could do.

THE COURT:  Well, I think the questions were 'do you know somebody in the district attorney's office,' and if she's not in the district attorney's office when we voir dire --I mean, the question's not 'do you know anybody who's ever worked in the district attorney's office,' and I think you've got a responsive answer, you know, if that's the -- and that was the question, I think, as I recall it.  And I guess even, in fact, he knows somebody who used to work in the DA's office, that's not a matter totally for voir dire, and I don't think -- and I guess my question is it proper to go back and voir dire.  I'm not sure it is.  I mean, is this like saying, are you related to any of the witnesses, and if they're divorced from somebody that they would have been related to before they got divorced, but now they're divorced, and said, well, you know, my ex-brother-in-law is -- you know, and you didn't ask him that.

MS. ROGAN:  Uh-huh.

THE COURT:  I don't think that's --

MS. ROGAN:  Well, we wanted to bring it to the Court's attention.

THE COURT:  -- I don't know.  I just don't that that reopens it.  If she's a distraction, we might --

MR. PORTER:  Your Honor, with Mr. Ford, it's hard to tell what is a distraction.

THE COURT:  Well, I agree with you.

MR. PORTER:  I think Ms. Bolden is more of a distraction than Ms. Clark.

THE COURT:  I don't know that I have any authority to tell them to sit on opposite ends of the jury box.

MS. ROGAN:  He had a new one today.  Wait and see.

THE COURT:  Well, I'm inclined to -- I don't hear from what you're saying that there's been any failure to respond to a voir dire question.  It seems to me it's just an error that didn't get covered in voir dire.

MS. ROGAN:  I didn't recall what his answer was, and there were several people who knew other employees and said it wouldn't affect them.

THE COURT:  Well, from what I'm hearing Mr. Porter say, she's not an employee.

MS. ROGAN:  Right.

THE COURT:  And if she's a former employee, the question wasn't 'do you know anybody who's ever worked at the DA's office.'

MS. ROGAN:  Right.

THE COURT:  The question was 'do you know anybody who works in the DA's office.'

MR. PORTER:  She was never even an employee in the technical sense.

THE COURT:  Yeah.

MR. PORTER:  She was a volunteer intern.

THE COURT:  I'm just not inclined to go back into it.  I don't --

MS. ROGAN:  Whatever you decide.  We just wanted you to know about it and not --

THE COURT:  And if there's something else develops and you want to reinquire into it, then fine.

MS. ROGAN:  Okay.

THE COURT:  But I think everybody had their chance on voir dire, and I think if there's some acquaintance of some kind that didn't get covered on voir dire, I guess every voir dire's that way.  Nobody ever asks all the questions maybe as it turns out you should have or wish you had or could have or whatever.  I'm inclined to just leave it as it is and if we need to revisit it, why,  then make it known.

MR. PORTER:  If I might note just for the record, at the defense request, we have told all the people involved in the victim witness program to remove the badges that they have.  She's not wearing any insignia --

THE COURT:  Also, if we get the victim side in, one of my concerns was victim witness escorts --

MR. PORTER:  I'm not going to --

THE COURT:  -- you know, they tend to hover over them and pat them on the back, and if they're not crying, they invoke some tears, you know.

MR. PORTER:  I've had three victim witness people in here with the family the entire time, at least one at any given time, and I don't think the Court has observed any of that, and I certainly haven't.

THE COURT:  I haven't really looked for it, but I know in the past, you know, they get some -- you know, it's sort of like everybody's okay until you get an escort patting them on the back and caressing their hand, and then everybody gets worked up and starts crying when, you know, we don't have a problem to start with.  I don't think that's appropriate.

MR. PORTER:  Your Honor, they're not doing -- the victim witness people are bringing them outside.

THE COURT:  Okay.

MR. PORTER:  The bailiffs are calling for them.  As a matter of fact yesterday, they were throwing them at us before I could even call them.  And so I got them to stop because they -- when you tell me to call your next witness, you're talking to me, and I'll turn to them and get my next witness.

THE COURT:  Okay.

MR. PORTER:  Then I think we've got that worked out.  Your Honor, I don't think you have to worry about that.

THE COURT:  Okay.  Anything else?

MR. PORTER:  No.

MS. ROGAN:  I don't think so.

MR. PORTER:  Unless you want to revisit the issue of the tape.

THE COURT:  Yeah, I was going to raise that.  Well, maybe now's a good time to talk about that.

MS. ROGAN:  Okay.  I got through everything last night and we're ready to have our hearing whenever the Court's ready.  There was one problem in that the tapes that I got, and I don't know if there was a problem from the DA's office or from our photocopy -- I mean, copy of the tapes.  They were both blank, 2 and 3 were blank, so I couldn't watch the redacted tapes, but what I did was watch the original tapes and follow the transcript and I could figure out, based on the Court's previous rulings whether it was redacted. 

THE COURT:  Okay.  Why don't we plan on, when we recess for the afternoon and send the jurors home, let's just stay over this afternoon and sort of -- you can make known what your observations were, your notes were, on that.

MS. ROGAN:  That would be fine.

THE COURT:  And if we can't resolve it this afternoon, at least everybody will know at this point where we apparently stand, and we'll expedite it however need be tonight or in the morning or whatever.

MS. ROGAN:  Okay.  The one issue that I couldn't resolve from what I had to do last night was at the very end when Mr. Chapel's getting undressed --

MR. PORTER:  It's audio only.

MS. ROGAN:  It's audio only.  I figured that it was, but I had no way to tell, so --

MR. PORTER:  Is that on the copy that we provided you?  Did you have the copies or did you make copies of the copies?

MS. ROGAN:  We made copies of the copies, and I don't know if I got the original of the copies.

MR. MOORE:  We made copies and I hadn't look at mine, so I don't know if mine was okay or not.

MR. PORTER:  I'll go get somebody to just check them.  If they're blank, we'll get you another copy.

MS. ROGAN:  Yeah.  It was just the ones I had.  It said channel 2 and it was a blue screen and that's all.

MR. PORTER:  That doesn't sound right.

MS. ROGAN:  If we could get a copy, that's okay.

MR. PORTER:  But if there's a problem, let me know, and we'll get you another copy.

MS. ROGAN:  Okay.

THE COURT:  Okay.

MS. ROGAN:  So you -- I mean, my only concern was I don't know when that video turns off.  Is he handed the jail clothes or --

MR. PORTER:  No, not on the video.  It's before that.

MS. ROGAN:  Before that point.

MR. PORTER: It's at some point where it says this terminates the interview or this ends the interview or there's a cutting off point verbally --

MS. ROGAN:  Okay.

MR. PORTER:  -- and from then on it's just blank.

MS. ROGAN:  And then it's just audio, and everything that's in the transcript you hear is on the audio.

MR. PORTER:  Is on the audio.

THE COURT:  Okay.  Has everybody got everything they need as far as the case goes, Mr. Moore, you and Ms. Rogan?  Is the space working out okay?

MR. MOORE:  Yes, Your Honor.  We've been transporting stuff up there, and I've made two trips down there this morning to get stuff.

MS. ROGAN:  Yes, it's very convenient.

THE COURT:  Okay.  Everybody got what they need?

MR. MOORE:  We believe so, Your Honor.

THE COURT:  Mr. Porter?

MR. PORTER:  Yes, sir, as far as I know.

THE COURT:  Okay.  All right.  Let's crank it up.

[Bench conference concluded.]

THE COURT:  Is the state ready?

MR. PORTER:  The state's ready, Your Honor.

THE COURT:  Ready, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Bring the jurors in, please.

[The jurors were escorted to the courtroom.]

THE COURT:  Good morning, ladies and gentlemen.  Everybody doing okay?

[Jurors respond]

THE COURT:  Good.  Good.  If you need anything, make it known to the bailiffs and we'll assist you as best we can. 

Mr. Porter and Mr. Moore, do we have the exhibits available okay?  Those were secured last night, and those exhibits are in the courtroom and they're available?

MR. PORTER:  Your Honor, they're here.

MR. MOORE:  Yes, Your Honor. 

THE COURT:  All right.  Okay.  Call your next witness, Mr. Porter.

MR. PORTER:  Your Honor, the state calls Allen Robertson.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Robertson, if you could take the witness stand up here, please.

[The witness stepped to the stand.]

THE COURT:  If you'll administer the oath,      Mr. Porter.

MR. PORTER:  Are you all settled?

THE WITNESS:  I think so.

MR. PORTER:  Mr. Robertson, if you could raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     ALLEN ROBERTSON

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   You can put your hand down and just settle back.  Could you tell us your name, please.

A.   Let me get my breath.

Q.   I'll wait for a second.  Would you like a glass of water?

A.   No.  I apologize to the Court.  I've been sick.

THE COURT:  Take your time.  If you need to pause or need a glass of water, why, we'll provide it.

BY MR. PORTER:

A.   My name is Allen Robertson, R-o-b-e-r-t-s-o-n.

Q.   And Mr. Robertson, can you tell us how you're employed?

A.   I'm self-employed.

Q.   And what type of work you do?

A.   I have a carpet cleaning service.

Q.   Do you have any background in law enforcement?

A.   I was a deputy sheriff at the Gwinnett County sheriff's department in 1972 for a short time.

Q.   Let me ask you, did you have occasion to be on Peachtree Industrial Boulevard in the evening hours of     April 15, 1993?

A.   Yes, sir, I did.

Q.   I'd like to go back earlier in the evening.  Where were you earlier in the evening about eight o'clock?

A.   I was over at the hospital, North Fulton, visiting a friend that -- well, my very best friend at the time.  He was in the hospital.  He had a brain tumor.  I was visiting him.

Q.   And was that the first time you had visited him over there?

A.   Yes.

Q.   About what time or let me ask you this:  About what time of day or night were you there?

A.   At the time when I was over there, I didn't really, you know, have a -- you know, I didn't really look at the time.  I'm just approximating the time that I was over there was sometime around -- I'd say around 7:30, eight o'clock.  It was somewhere in that neighborhood was when I got there.

Q.   Okay.  Now --

A.   It was before dark.

Q.   All right.  Now, let me ask you, did you hear them announce the closing hours, the end of visiting hours?

A.   No, sir, I didn't.

Q.   Okay.  Did you discuss with anyone the possibility of you staying after visiting hours had ended?

A.   Well, I talked with my friend's wife.  I said, 'If you don't care, I'd just like to' -- in fact, she asked me, she said, 'You're welcome to stay on a little while if you want to, you know, after hours.  I'm sure they won't say anything.'  And I said, 'Well, I'd just like to stay just a little while.'

Q.   All right.  Did you in fact stay a little while after visiting hours -- after visiting hours ended?

A.   Yes, sir.

Q.   About how long, do you think?

A.   I'd say somewhere around thirty minutes, thirty, forty minutes, something like that.

Q.   Now, once -- and did you leave at that time?

A.   Right after that, yes, sir, I left for home.

Q.   Okay.  Now, when you drove -- had you driven the route between North Fulton Hospital and your home before that night?

A.   No, sir.

Q.   Have you driven it since?

A.   No, sir.

Q.   Can you give us an estimate of about how long it took you to drive from North Fulton Hospital to Peachtree Industrial Boulevard at approximately the Gwinnco Muffler?  Are you familiar with that location?

A.   Yes, sir.  I'd say approximately forty -- forty, forty-five minutes.

Q.   And were you paying attention to the time at that point?

A.   Not really.  I was -- it was kind of rainy that night and I was just, you know, just easing along.  I, you know, I didn't -- I wasn't looking at my watch or, you know, I didn't have any certain place or time to be at, you know, so I wasn't really paying any attention to the time.  I was just heading towards the house.

Q.   Okay.  Now, you have to go by the Gwinnco Muffler to get to your house; is that correct?

A.   Well, the way I went, that was my best way to go, so that's the way I went.

Q.   Now, let me ask you, as you passed the Gwinnco Muffler, did you notice anything?

A.   Yes, sir, I did.

Q.   Can you tell the jury what you saw?

A.   Well, as I was driving -- that would be heading north.  At that time, I was heading towards home.  And as I went by, me being kind of, I guess, nosy, I don't know, but anyway I was just driving, and I just sort of glanced over to the left, and I saw two vehicles, and one of the vehicles was a police car.

Q.   How did you know it was a police car?

A.   Well, to the best of my knowledge I saw that kind of like a gold stripe down the side, and I recall the lights being on, the blue lights.

Q.   Well, that would be pretty obvious it was a police car.

A.   Yes, sir.

Q.   Was there any other vehicle there?

A.   Yes, sir.  There was one in front of it.

Q.   Can you describe that car?

A.   It was a -- like a brown, just a regular, you know, regular -- it looked like a intermediate -- well, a little bit bigger than an intermediate-sized car, brown car.

Q.   All right.

A.   Four door.

Q.   And did you notice anything else about the car, about the brown car?

A.   I believe it was a four door.  Did I notice what, sir, I'm sorry?

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.  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.

Q.   Do you happen to know what type of car the Continental kit was on?

A.   Well, I don't know what that particular -- but I know back in those days that it was on like the Lincoln, the Lincoln-Mercury type car, I believe it was now.  I'm not no expert on cars, but I believe I'm somewhere right there in that.

Q.   And did you think anything about what you saw?  Did it strike you as unusual?

A.   No, sir.  I just thought that it was a, you know, just a regular -- just like I might see any other time, you know, somebody getting pulled over for DUI or traffic -- some kind of traffic violation or something.

Q.   When did it occur to you that it might be important, that what you'd seen might be important?

A.   When I heard it on the news there'd been a happening at the Gwinnco Muffler.

Q.   All right.  And did you contact the police or -- did you contact the police with your information?

A.   No, sir, I didn't.

Q.   All right.  Did they contact you?

A.   Yes, sir.

Q.   Now, Mr. Robertson, I'm going to show you what we've had previously marked as a diagram of the Gwinnco Muffler, and I'm going to stand over here so that you can reach it.

A.   All right.

Q.   Sort of turn it so we can let the jury see it.  And these cars are magnetized.  They are not to scale, but this drawing is to scale.

A.   All right, sir.

Q.   Could you take the vehicles, the two vehicles that I've placed on the counter and put them where you believe you saw the police car and the brown car with the Continental kit?  And I'll hold the board.

A.   I'll give you an approximate --

Q.   You say about there?

A.   Somewhere in there in that neighborhood.  Now, I'm going to be -- this might be here.  I was thinking it was in the deceleration lane.  I guess that's what you call that, I'm not sure, like when you want to slow down and go into there.  Is this supposed to be the highway part here going on down   the --

Q.   Yes, sir, this is the highway here.

A.   -- and then this is like the turning-off lane.  That's -- to the best of my knowledge, that's what I thought it was at.  Yes, sir.

Q.   All right.  And I'm going to put this right here.  Did you see any other vehicles in the parking lot of the Gwinnco as you drove by or did you notice any other vehicle?

A.   Yes, sir.  I saw a S-10 Chevrolet, one of those small pickup trucks, parked -- I couldn't tell because it kind of rises there a little bit, but it was close to like where they have a little parking part there, and then I think in front of where the parking -- concrete or whatever it is, asphalt drops off, I think there's some gravel or used to be.  It was parked in that area there like where people push their cars out right after they worked on them or something.

Q.   All right.  Now, let me ask you, when you drove by were you able to identify the agency that the police car came from?  Could you tell what agency it was, what police agency?

A.   I didn't read anything on the side of the vehicle, but by what I've seen in Gwinnett County, I -- going by what I've seen in the past, it was a Gwinnett County police car.

Q.   All right.

A.   I know it wasn't a State Patrol car or a detective car.  It was like a --

Q.   What you've seen as a uniform police car?

A.   Yes, sir.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Robertson, my name is Johnny Moore.  I represent Mr. Chapel, and I have a few questions I'd like to ask you.  Now, what time did you leave the hospital, do you believe?

A.   Well, at the time that I made my statement, I did not know what time the hospital closed, visiting hours, so at that time I said somewhere around -- let's see, I think I said somewhere around 9:15, but I believe I left around a quarter till nine, somewhere in that neighborhood.

Q.   Okay.  The visiting hours ended at what time?

A.   I was told 8:30.  I did not know that.

Q.   Okay.  And when you got home, did you watch anything on TV or watch the news or anything when you got home?

A.   No, sir.  I had a satellite dish at that time and I was just bumping them through, just, you know -- my wife gets on to me about that.

Q.   That's a common problem, I think.  But you don't remember anything you watched then or anything?

A.   Well, no, not really.  I was just, you know, I had just visited with my friend, and he was in bad shape, and I was really just trying to -- I was really upset the shape he was in.  He died of a brain tumor, and I just -- you know, at that time, I was really upset.

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.

MR. MOORE:  Your Honor, since he has difficulty getting off the stand, I propose to publish this to the jury and pass it around.  I won't stop questioning him or anything and delay the proceedings.

THE COURT:  That would be fine.  Go ahead.

[Mr. Moore publishing to the jury]

BY MR. MOORE:

Q.   Now, you talked to our investigator, Mr. Miller, back in August of this year; do you recall that?

A.   Yes, sir.

Q.   And you had told him that you were traveling Peachtree Industrial Boulevard to Gwinnco Muffler at approximately ten to 10:15; do you remember that?

A.   I was going by what I had put on my statement at that time back two years ago.  I mean, until I reviewed the -- you know, what I had said, I didn't even remember.  I just had to go by what -- but after I realized the place had closed at 8:30, I must have went by a little earlier.

Q.   Okay.  But back in April 1993 --

MR. MOORE:  Can I get you to mark that?

[Defendant's exhibit was marked for identification by the court reporter.]

BY MR. MOORE:

Q.   Mr. Robertson, I'm going to show you what's been marked as Defendant's Exhibit Number 9 and ask you if you can identify that?

A.   Yes, sir.

Q.   And what is it?

A.   It's a -- it's one of the statements that I gave back in '93 of what the time and just what happened, what I recalled.

Q.   Okay.  And if you would, read that, if you --

A.   All right.

MR. PORTER:  Your Honor --

BY MR. MOORE:

Q.   I don't mean to read it out loud.  Just read it to refresh your memory.

A.   Oh, okay.

MR. PORTER:  I was going to make sure, Your Honor.  I don't believe Mr. Robertson can do that.

THE WITNESS:  All right.

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 10:15; is that correct?

A.   When I went by Gwinnco, yes, sir.

Q.   Okay.

A.   That was, you know, my guesstimate.

Q.   Okay.  And is it likely -- isn't it likely that your memory would have been fresher back then than it is now about the times?

A.   As far as guessing the time?

Q.   Yes.

A.   Yes, sir.  It would be -- it would be just as, you know, about as good now as then or then as now.

Q.   Okay.  Now, you changed the time today.  Did someone tell you to do something different about when the hospital closed or something since that time?

A.   No, sir.  Nobody told me to, but when I found out  the times was 8:30, I'm just going by how long it took me to get home in my own mind.  I was thinking the closing time were around nine o'clock.

Q.   Okay.  And who told you what time the closing time was?

A.   I don't know whether it was your investigating people or the prosecution.  I don't -- I say, it might have been the lady outside a while ago.  I heard something about 8:30.

Q.   Okay.  Is she the lady that works for the DA's office?

A.   No.  I mean -- no, not the lady, but the gentlemen there.  I can't even think of his name.  It's on the -- the attorneys, one of the attorneys there.  I can't think of his name.

Q.   Mr. Porter?  Is he in the courtroom?

A.   Is that Mr. Porter?

Q.   Is he in the courtroom?

MR. PORTER:  Your Honor, I'll stipulate that after our interview with Mr. Robertson, the state inquired and is prepared to present evidence regarding the closing time of North Fulton Hospital.  We informed Mr. Robertson of that.

THE WITNESS:  Yes.

MR. PORTER:  This was prior to the rule of sequestration being invoked by the defense or the state, and I'll stipulate that my office provided him with that information.

THE COURT:  Okay.  Mr. Moore?

MR. MOORE:  Your Honor, I'd ask what date that was because the rule of sequestration was invoked when you started selecting the jury and that was almost three weeks ago now.

THE COURT:  But what does the rule say about talking to your own witnesses?

MR. MOORE:  Well, Your Honor, I think you can talk to them and ask them what they may have heard or anything, but to suggest to them what they should testify to or tell them what somebody else is going to testify to is a clear violation of the rule of sequestration, and we'd ask the Court to instruct the jury about that.

MR. PORTER:  Your Honor, there has been no violation.

THE WITNESS:  I --

THE COURT:  Just a moment.

MR. PORTER:  The state in this case interviewed Mr. Robertson in preparation for trial.  As Mr. Moore knows, we sat in here eight hours a day after the rule had been invoked.  I personally went to Mr. Robertson's house.  At that time, we examined and decided after talking to him that we would look into the North Fulton closing time.  This had to be prior to jury selection, and we informed him of that and let him draw his own conclusions.  And for Mr. Moore to insinuate that there's been any violation of the rule of sequestration is unfounded and without basis.

THE COURT:  All right.  Mr. Moore, anything else?

MR. MOORE:  Your Honor, I still ask Mr. Porter to state what date it was.

MR. PORTER:  Your Honor, I can't recall the exact date.  I interviewed a hundred and some odd witnesses in this case.  Mr. Robertson may remember.  I went to his house.

THE COURT:  That was prior to yesterday?

MR. PORTER:  It was prior to the beginning of jury selection, Your Honor.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  I'll accept that if Mr. Porter says it's prior to jury selection.

THE COURT:  All right.  Go ahead, Mr. Moore.

BY MR. MOORE:

Q.   Now, Mr. Robertson, tell us about the lighting conditions out there that night when you drove by the Gwinnco Muffler Shop.

A.   Well, the lighting is -- it's not like driving in the middle of Las Vegas or nothing, but it's just regular moonlight, I guess you'd call it.  It was -- it was where you can see, but not -- it's not anything illuminated real bright or anything.  It's just -- the light that I could really tell out there was really the one that shines off of -- on the Gwinnco Muffler building.

Q.   Okay.  Was it light enough for anybody to see any details about anybody in the car or anything?

A.   I'd say if you were going down south on the other side -- like I was going north.  On my side, you'd have to slow down and really just have to kind of eyeball it real good just to really -- if you wanted to look, you'd have to just really be kind of slowing down to look.

Q.   Okay.

A.   But on the other side, I'd say you could see better because you'd be closer.

Q.   Okay.  There wasn't any moon on that particular night, was there?  Wasn't it raining that night?

A.   Yes, sir.  It was, you know, inclement weather.  It was raining and spot showers and that kind of stuff.

Q.   Okay.  Was it raining when you passed the Gwinnco Muffler Shop?

A.   It was just kind of like a drizzle, a mist.  It wasn't any -- it wasn't a full blown rain or nothing like that.  It was just kind of misty.

Q.   Okay.  And most of what you'd see was from the headlights on your car, wasn't it?

A.   Yes, sir.  I'd have to say that would be true.  You could see it was -- if you -- like I said, if you slowed down, which I didn't do, I just kind of went on, but if you wanted to look real good, I could say -- I could say you could see, you know, if you wanted to let down your window and just look.

Q.   Okay.  If somebody was really trying to look?

A.   Yes.

Q.   Now, how fast were you driving; do you remember?

A.   I'm just going to guess.  I'd say forty, forty-five.

Q.   Mr. Robertson, whatever the closing time was at the hospital, you said you'd stayed about a half an hour after the closing time; is that correct?

A.   I'd say it was between -- you know, I can't pinpoint it, but I'm just going by fifteen to thirty minutes, somewhere in that neighborhood.

Q.   Okay.  Was the man's wife still there when you left?

A.   Yes, sir.

Q.   And she stayed after you left?

A.   Yes.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 3, and I know you have trouble walking, so I'm going to bring this up to you --

A.   All right, sir.

Q.   -- and ask you to look at it and see if you can recognize that area of that map.

A.   Yes, sir.  The only thing I see that might be wrong is these arrows might be backwards.

Q.   Okay.  But if this were on the left-hand side of the road and you were going north, would it be in the right place, if the Gwinnco Muffler Shop was on the left-hand side and you were going --

A.   And I was going north?

Q.   Yes, sir.

A.   Yes, sir.  That would be -- that would be it right.

Q.   Yeah.  I believe you're correct that the arrows are going the wrong way.

A.   Yes, sir.

Q.   Because the Gwinnco Muffler Shop is on the left-hand side when you're going north.

A.   Yes, sir.

Q.   Okay.  If you would, on that plastic overlay, would you draw where the two cars were and put an arrow pointing which way they were going, the police car and the -- and tell us which one is which.

A.   I'll put a P for police and then --

Q.   Okay.

A.   I don't know what to put there.

Q.   Just leave -- you can leave the other one blank if you want to.  If they know which one's the police car, they'll know the other one.

A.   All right.  Then I'll just put a arrow like --

Q.   If you would, too, mark those arrows that you discovered that are wrong where the road is there, which way.

A.   I'm right shaky.

Q.   Thank you, Mr. Robertson.

A.   Yes, sir.

MR. MOORE:  Your Honor, I would tender -- I need to get it marked first, I'm sorry, Defendant's Exhibit Number 10, which is the markings on the plastic overlay over D-3.  I would tender that at this time.

[Defendant's exhibit was marked for identification by the court reporter.]

MR. PORTER:  Your Honor, I would assume that this Court is going to make the same ruling if the state has the same objection.

THE COURT:  All right.  It's admitted over objection.  We'll revisit that when it goes out.

MR. MOORE:  Your Honor, because of his difficulty getting down, I would ask to pass this around to the jury, also, to allow them to look at it.

THE COURT:  Any objection?

MR. PORTER:  Your Honor, we would object at this point.  I think it can be displayed, but I think that passing it around, the Court has restricted --

MR. MOORE:  I think it's big enough they can see it, Your Honor.  I won't make an issue of it.

THE COURT:  All right.

MR. MOORE:  I'll just display it for the jury so everybody can see it.

[The exhibit was displayed before the jury.]

BY MR. MOORE:

Q.   Mr. Robertson, you had said earlier you were paying attention.  Was that because of your training as a -- perhaps as a deputy sheriff that you watch more closely than the other people might?

A.   Well, no, sir.  I don't think that would have anything to do with it, but I used to travel a lot back in my earlier days, and I just always was a observer to watch everything on the highway.

Q.   Okay.  And that truck that you saw at the muffler shop, do you remember what color it was?

A.   I believe it was white.

Q.   You mentioned earlier that the police contacted you.  Do you know how they knew to contact you?

A.   They didn't -- they didn't really tell me.  They just -- I don't guess I do.

MR. MOORE:  No further questions.

THE WITNESS:  All right.

THE COURT:  Redirect?

     REDIRECT EXAMINATION

BY MR. PORTER:

Q.   Mr. Robertson, I just had one other question, and I'd ask you to look at that statement, the defense exhibit that you were shown.

A.   Yes, sir.

Q.   Down at the bottom you indicated the time in your statement of April 23; is that correct?

A.   Yes, sir.

Q.   What is the following sentence after you wrote the time?

A.   'I'm not sure.'

Q.   Thank you.  That's all the questions I have.

THE COURT:  Recross?

MR. MOORE:  No more questions, Your Honor.  But while he's on the stand, I would tender Defendant's Exhibit Number 9, which is the statement he gave to the police back in April 1993.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, the state has no objection for the record only.  It's admissible for the record only.

MR. MOORE:  Your Honor, we believe it's admissible as an exhibit because it shows the different time than what he's testified to here.

MR. PORTER:  Your Honor, that's been brought up through the testimony of the witness and explained.  Under the rules of evidence, the witness's statement may not go out with the jury.  It can be tendered for the record only.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I'll let the Court rule on that.

THE COURT:  I believe you can use it for impeachment purposes, but insofar as going out, it's refused.

MR. MOORE:  Will it be admitted for the record?

THE COURT:  Yes, sir.

MR. MOORE:  That's all the questions I have.

THE COURT:  All right.  Anything else of this witness, Mr. Porter?

MR. PORTER:  No, Your Honor, nothing else from this witness.  Your Honor, we would ask that           Mr. Robertson be allowed to be excused today.  He's available.  He lives in the north end of the county and we'd ask that he be excused and allowed to go home.

THE COURT:  All right.  Do you want him on call?

MR. PORTER:  Your Honor, the state does not foresee recalling Mr. Robertson, but I know he's under defense subpoena, too, and I can't --

MR. MOORE:  Your Honor, I don't foresee recalling him either, but I would ask that you just keep him on call just in case.  I don't think he'll have to be called.

THE COURT:  All right.  You'll be subject to being recalled, Mr. Robinson.  You can come down.  Thank you.

THE WITNESS:  Thank you, sir.

THE COURT:  You need some assistance?

THE WITNESS:  No, sir.  If I fall, y'all can help me up.

THE COURT:  Take your time.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. PORTER:  We call Joan Shattuck to the stand.

[The witness was called to the courtroom.]

MR. PORTER:  Ms. Shattuck, can you take the witness stand right here.

THE WITNESS:  Okay.

[The witness stepped to the stand.]

MR. PORTER:  Can you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     JOAN SHATTUCK

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Could you state your name, please.

A.   Joan Shattuck.

Q.   And how are you --

THE COURT:  Would you spell it for us, please?

THE WITNESS:  S, like Sam, h-a-t-t-u-c-k.

THE COURT:  Thank you.

THE WITNESS:  Uh-huh.

BY MR. PORTER:

Q.   Can you tell us how you're employed, please.

A.   I'm employed at North Fulton Regional Hospital in Roswell, Georgia.  I'm the manager of patient relations and volunteer services.

Q.   And what are your duties in patient relations and volunteer services?

A.   I'm actually in, as far as the patient relations are concerned, I'm the patient advocate at the hospital, the patient representative.  I act as liaison between the patients and the various departments in the hospital.

Q.   And how long have you worked at North Fulton Hospital?

A.   Ten years.

Q.   I'm going to call it North Fulton Hospital.  That's how I'm used to it.  During that time, and let me call your attention specifically to April 1993.

A.   Uh-huh.

Q.   Are you aware of the ending of visiting hours or the time of the ending of visiting hours?

A.   Yes.

Q.   And can you tell us what time that is?

A.   8:30.

Q.   Is that strictly enforced?

A.   No.  Not all the time.  Uh-uh [negative].

Q.   And people are allowed to stay afterwards generally?

A.   Oh, yes.  Uh-huh.

Q.   And let me ask you, on April 15, 1993, were the closing hours or the end of visiting hours 8:30?

A.   I would assume they are -- they were because they've always been -- they've been 8:30 for as long as I can remember.

Q.   All right.

A.   Uh-huh.

Q.   Now, are the ending of visiting hours announced?

A.   Yes.  At 8:15, the visiting hours are -- or the operator says that the visiting hours will be over within fifteen minutes.  And then at 8:30, the operator announces that visiting hours are now over.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE WITNESS:  Uh-huh.

THE COURT:  Mr. Moore?

MR. MOORE:  Ms. Rogan will handle it.

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good morning, Ms. Shattuck.

A.   Good morning.

Q.   Did you see Mr. Robertson, the man who was just leaving the courtroom --

A.   Uh-huh [affirmative].

Q.   -- as you were coming in?

A.   Uh-huh [affirmative].

Q.   Did you see him prior to coming in while you were waiting for Court to begin today?

A.   I saw him in the waiting room, uh-huh [affirmative].

Q.   Okay.  Did you speak to him at all this morning?

A.   Just said hello.

Q.   Did you mention to him anything about the visiting hours at North Fulton Hospital?

A.   No.  No.

Q.   Had you ever seen Mr. Robertson prior to this morning?

A.   Not that I recall, no.

Q.   So you never saw him at North Fulton Hospital?

A.   No.

Q.   In fact, you probably work during the daytime hours, don't you?

A.   Yes, I do.

Q.   So you wouldn't have been there during the evening that we were just discussing?

A.   Not normally, no.  Occasionally, but not normally.

Q.   You told us on direct examination that you assumed that visiting hours were the same in April 1993 as they are now?

A.   Well, they were the same in April.  They have been the same for as long as I can remember, uh-huh [affirmative].

Q.   And you mentioned that an announcement is made over the intercom, but no one goes around from room to room and forces people to leave unless it's an intensive care situation or someone whose visiting has to be restricted?

A.   That's correct.

Q.   Is that correct?

A.   That's correct.

Q.   And so you have actually no personal knowledge at all as to what time Mr. Robertson may have left the hospital that night?

A.   No, I do not.

Q.   Or how long after the visiting hours were over he may have stayed?

A.   No.

Q.   Okay. 

MS. ROGAN:  Thank you.

THE WITNESS:  Uh-huh [affirmative].

THE COURT:  Redirect?

MR. PORTER:  I have no redirect, Your Honor.  We would ask that Ms. Shattuck be allowed to return to North Fulton and her work.

THE COURT:  All right.  Any objection, Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  You can come down.  Thank you.

THE WITNESS:  Thank you.

[The witness stepped down from the stand and was excused.]

THE COURT:  Call your next witness, please.

MR. PORTER:  We would call Raymond Daniel Gravitt.  Raymond Daniel Gravitt.

[The witness was called to the courtroom.]

MR. PORTER:  If you could take the witness stand here, please. 

[The witness stepped to the stand.]

MR. PORTER:  Please raise your right hand.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     RAYMOND DANIEL GRAVITT

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   You can put your hand down, and could you state your name.

A.   Raymond Gravitt.

Q.   All right.  Mr. Gravitt, you're going to have to speak up just a little bit --

A.   Okay.

Q.   -- so these folks back here can here you.

A.   All right.

Q.   All right.  And if you need to, you can lean -- slide the chair up a little bit and lean into the microphone.  Mr. Gravitt, where are you employed?

A.   Beers Construction.

Q.   And what type of work do you do?

A.   Carpenter work, general construction.

Q.   All right.  Do you live in Gwinnett County?

A.   Yes.

Q.   And do you live in the north end of the county?

A.   Over on Dolphin Lane over by the lake, yes.

Q.   How long have you lived there?

A.   Late '70's, in that area.

Q.   I'd like to call -- did you live there in April 1993 --

A.   Yes.

Q.   -- on Dolphin Lane?

A.   Yes.

Q.   I'd like to call your attention to the evening hours of April 15, 1993.  Did you have an occasion on that day to be on Peachtree Industrial Boulevard traveling southbound near the Gwinnco Muffler?

A.   Yes.

Q.   Could you tell us what you were doing on Peachtree Industrial Boulevard?

A.   I was going to pick my daughter up.  She was babysitting.

Q.   All right.  And where were you going to pick her up?

A.   Down by North Gwinnett.

Q.   Is that north or south of the Gwinnco Muffler?

A.   It would be south.

Q.   Towards Duluth?

A.   Right.  Uh-huh [affirmative].

Q.   And about what time of day or night were you going by the Gwinnco Muffler?

A.   It was between, I'd say, 9:40 and ten minutes till ten.

Q.   And did you see anything when you went by the Gwinnco Muffler?

A.   I'd see blue lights flashing, you know, like somebody -- they had a car pulled over or something.

Q.   All right.  Could you see what kind of car it was that was pulled over?

A.   No, sir.

Q.   Could you tell what kind of car was under the blue lights?

A.   No, sir.  I sure couldn't.  I'd say it was up in the driveway of the muffler shop there, and it was sort of storming and, you know, thundering and lightning, and everything, and I was just more or less paying attention to the road but, you know, with the blue lights flashing, they reflected everywhere.

Q.   Now, did you go on and pick up your daughter down there by North Gwinnett?

A.   Right.  Sure did.  And I got back about five after ten or so, and when we come back, I didn't notice the blue lights over there.

Q.   All right.  Did you notice anything in the driveway?

A.   No, sir.

Q.   Mr. Gravitt, I'm going to ask you to step down off the stand for a second and I'm going to ask you to look at a diagram if you could.

A.   [Witness complies]

Q.   This is a diagram that has been previously identified.  It's a scale drawing of the Gwinnco Muffler Shop, and you're going to have to sort of stand here because there's folks behind you.

A.   Okay.

Q.   And it's magnetized, as you can see.  This is to scale, but the cars are not.

A.   Uh-huh [affirmative].

Q.   This is northbound towards Buford, towards me, and southbound is towards you as we stand and look at the document.  Could you, to the best of your recollection, place the vehicles here as you saw them the night of April 15?

A.   The only thing I seen -- I was driving down the road, and blue lights, you know, flashing up in here and reflecting.  I couldn't tell you where the cars were.

Q.   Okay.  Can you say whether or not the police car or any other car was in the acceleration lane?

A.   Oh.  It was not out in here.  It was up in the parking lot.

Q.   Thank you.  That's all the questions.  You can take the stand again.

A.   Uh-huh [affirmative].

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.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Gravitt, you told us you couldn't tell what kind of car it was at all?

A.   No.

Q.   Could you describe it at all?  What color it was or --

A.   No.  I sure can't.  I said all I seen was the blue lights, and it was sort of storming at the time, thundering and lightning, and I was more or less paying attention to the road.  If it had been on the side of the road, I would have probably noticed but, like I say, it was up in the parking lot there,  so --

Q.   Okay.  So the only thing you really saw was the blue light, then?

A.   Right.

Q.   What was the lighting like out there that night?

A.   Oh, it was terrible.  I say it was cloudy and storming.

Q.   Okay.  Where that car was pulled up in the driveway, could you see anything at all, any details --

A.   No.  I didn't, you know, I really didn't look for it.

Q.   Could you tell if there was anybody out of the cars or in the cars?

A.   No, I sure couldn't.

Q.   Okay.  Was that because it was so dark or because you didn't look?

A.   Probably because I didn't look and -- both probably, but --

Q.   And where was your daughter, now?  At a friend's house?

A.   Yes, sir.  Down at Eddie Robinson's house.  They live down there right next to North Gwinnett.

Q.   Okay.  And had y'all arranged ahead of time for you to pick her up at a certain time?

A.   Right.  Uh-huh [affirmative].

Q.   And what time were you picking her up?

A.   At ten o'clock.

Q.   Okay.  And that's how far from the muffler shop there?

A.   Three or four miles down there.

Q.   Okay.  So what's the speed limit along there; do you know?

A.   About 45, I think.

Q.   So it probably took you how long to drive from the muffler shop going south to pick up your daughter, to get there at ten?

A.   Yeah.  I probably got there probably five minutes till.

Q.   Okay.  And then you turned around and came back?

A.   Yes.  Just as soon as they came in and she left.

Q.   Okay.  And how long do you think it took you to get back to the muffler shop?

A.   I don't know.  Five minutes again, I guess.

Q.   So around ten o'clock when you came back by?

A.   Yeah.  Well, it was -- it would have been a little after ten.  I sat there and waited till they got there.

Q.   And you do know whether or not your daughter observed anything?

A.   No.

Q.   She didn't or you don't know?

A.   She didn't.  Like I say, when we come back by, I didn't notice the blue lights over there, so we wouldn't have paid it any attention.

Q.   You described the blue light in your statement -- do you remember how you described it?

A.   I just told them I'd seen the blue lights flashing.

Q.   Do you know whether it was the bar type or the round type or --

A.   Like I said, I can't tell.

Q.   Okay.

A.   I didn't remember anyway, you know.

Q.   How did the police find you?  Did you drive by again in the roadblock?

A.   No.  My wife had gone to pick her up later, a couple of weeks later, and they, you know, had the license -- or stops out there asking anybody if they'd seen anything.

Q.   Yes, sir.

A.   And she'd told them, because after I heard about this, you know, I said I seen the blue lights down there, and she told them, and so then they called me, and I told them what I knew.

Q.   Mr. Gravitt, I'm going to show you what's been marked as Defendant's Exhibit Number 11, and ask you if you can identify that?

A.   Yeah.

Q.   Okay.  And what is it?

A.   That's the statement that I give to the policemen, yes.

Q.   Okay.  And look over it.  Don't read it out loud.

A.   Okay.

Q.   But look over it and see if you can refresh your memory as to what kind of blue light it was.

A.   It says the same thing I'm telling you now.  It says, 'I think it was a round, revolving blue light, but I'm not sure,' you know.

Q.   Okay.  But that's the statement you gave the police that it was a round, revolving blue light?

A.   Yes.  Right.  Uh-huh [affirmative].

Q.   Okay.

MR. MOORE:  Your Honor, I'd tender D-11.

MR. PORTER:  Your Honor, I believe it's admissible only for the record, and we have no objection to that.  I don't believe the witness has been impeached because the statement is not inconsistent.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, we'd tender it for whatever's available.

THE COURT:  It's part of the record, but it's refused as far as an exhibit that'll be going out.

MR. MOORE:  No further questions, Your Honor.

THE COURT:  Redirect?

MR. PORTER:  Your Honor, we have no other questions for Mr. Gravitt.  We would as that he be allowed to leave and go to work.  He's available and can be reached.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Your Honor, as long as he's on call, I don't have any problem with that.

THE COURT:  All right.  You can come down.  Thank you.  Call your next witness.

[The witness stepped down from the stand.]

MR. PORTER:  We'd call William Hutchins to the stand.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Hutchins, if you could take the witness stand here, please, right up here on the witness stand. 

[The witness stepped to the stand.]

MR. PORTER:  Good morning.

THE WITNESS:  Morning.

MR. PORTER:  If you could raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     WILLIAM HUTCHINS

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. 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.

THE COURT:  Thank you.

BY MR. PORTER:

Q.   Mr. Hutchins, can you tell us where you live, please, and I don't need the specific address, but just the street.

A.   4846 Second Avenue, Sugar Hill.

Q.   And is that in Gwinnett County?

A.   That's right.

Q.   And can you tell us how you're employed?

A.   City of Sugar Hill.

Q.   And what type of work do you do for them?

A.   Utility superintendent.

Q.   Now, how long have you lived at that residence?

A.   Thirty-four years.

Q.   Were you -- then I guess you were living there on April 15, 1993?

A.   That's right.

Q.   Can you describe for us what you remember about that night in terms of what the weather was like and the temperature?

A.   Well, it was thundering and lightning that particular night.

Q.   All right.  Did you have your windows open or closed?

A.   They was open.

Q.   And what were you doing that night between about nine and ten?

A.   Sitting watching TV, and I was looking out the utility window watching the lightning south of Peachtree.

Q.   At any time during that night, did you hear anything?

A.   Well, I heard two shots.

Q.   Now, let me ask you, was there any time between the shots?

A.   They were staggered just a little bit between them.

Q.   All right.  By clapping your hands, could you demonstrate the time period between them, the distance between them in time.

A.   Say the first shot and then probably a couple of hand claps [demonstrating].

Q.   So they were spaced about as fast as you just clapped your hands?

A.   That's right.

Q.   Did you make any comment when you heard the shots?

A.   Yeah, I sure did.

Q.   And can you tell us what that was?

A.   Well, after the first shot, I said, 'Shoot'em again,' and --

Q.   And then there was a second shot?

A.   -- there was a second shot.  Yeah.  I had time to say that.  But it just come out of my mouth.

Q.   And at that time, you didn't realize anything might be going on?

A.   No, sir, I didn't.

Q.   Now, let me also ask you, how do you know they were shots?

A.   They were loud enough.  I knew that they were shots.  They wasn't backfiring.

Q.   Are you familiar with firearms?

A.   Well, I've hunted all my life.

Q.   Are you familiar with the sounds of different types of gunfire?

A.   Oh, well, there's a difference between shotguns and rifles and pistols.

Q.   Do you have any opinion as to the source or what kind of gun those gunshots came from?

A.   It sounded like a large handgun.

Q.   Did you have any idea about how far away they came from?

A.   They were pretty close.

Q.   How close do you live to the Gwinnco Muffler?

A.   Probably a half mile.

Q.   Is that by road or as a crow flies?

A.   By road.

Q.   All right.  Can I ask you to step down here for a second and -- I'm going to see if I can find my pointer --

A.   [Witness complies]

Q.   This is an aerial photograph, and I'll ask you just to stand where I'm standing so that we don't block the jury's view, but let me describe it to you.

A.   All right.

Q.   This is an aerial photograph, that's already been admitted, of the Sugar Hill area, and the areas are labeled First Avenue, Second Avenue.  Can you point out for the jury, with this being Gwinnco Muffler Shop --

A.   That's right.

Q.   -- can you point out where your residence is?

A.   It's Second Avenue just about right along here.

Q.   Is it on the Buford side of -- this is Georgia 20 here?

A.   Yes.  Yes, it's right here in this corner, Second Avenue.

Q.   All right.

A.   And then south.

Q.   Okay.  You can take the stand, please.

A.   All right.  [Complies]

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.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE WITNESS:  Okay.

THE COURT:  Mr. Moore?  Just a moment, Mr. Hutchins.  Mr. Moore has some questions.

MR. PORTER:  Mr. Moore gets to ask some questions.

THE WITNESS:  Oh.  Okay.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   I'll try to brief, Mr. Hutchins, so you don't stay too long.

A.   All right.

Q.   My name's Johnny Moore.  I do want to ask you a few questions.  Did it storm that night and rain that night that you're talking about?

A.   There was no rain as I know of, just thunder and lightning.

Q.   It never did rain at your house?

A.   Uh-uh [negative].

Q.   Okay.  What time did you go to bed that night?

A.   Probably a little after ten.

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.

Q.   Do you remember what you were watching on TV when you heard the shots?

A.   No, sir, I don't.

Q.   Okay.  But you said you had time to talk to your wife between the first shot and the second shot?

A.   That's right.

Q.   Okay.  And you said a large handgun.  You're a hunter.  What kind of handgun are you talking about when you say a large handgun?

A.   Well, it was larger than a .22.

Q.   Okay.

A.   .25.

Q.   Like a .25 caliber or something?

A.   That's right.

Q.   Okay.

A.   They're larger.

Q.   How much experience have you had with handguns?

A.   Well, I used to own a few of them, but I didn't keep them long.  Well, I got a little old magnum now.

Q.   Okay.

A.   A .22.

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.

Q.   Do you hunt with handguns, sir?

A.   Uh-uh [negative].  Sure don't.

Q.   Have you had any experience with anybody that did?

A.   Well, there's a few of them that deer hunt with handguns.

Q.   And they use what kind of calibers, like .44s or something?

A.   .44s.

Q.   And compared to that, how did this sound?

A.   It was something like the sound of a .44.  It was loud.

Q.   And those .44s are magnums generally that they deer hunt with, aren't they?

A.   That's right.

Q.   Have you heard any shots in your neighborhood before then or since then?

A.   Well, they used to practice some down -- further down on Peachtree right before deer season.  There's a little range they shoot at.

Q.   My question is, though, when you're at your home there, have you heard gunshots since that time?

A.   No, sure hadn't.

Q.   And did these gunshots sound like they were nearby or what distance away did they sound like they were?

A.   They was close.

Q.   They were close to your house?

A.   But I didn't pay that much attention to them.

Q.   And I believe -- could you show us again where your house was?  Come down and show us -- Mr. Porter -- you showed Mr. Porter, but I couldn't see it very well.

A.   All right.  [Complies]  Right in the corner of Peachtree and Second Avenue.

Q.   So right here?

A.   Right in here.  Uh-huh [affirmative].

Q.   Okay.

[The witness returned to the stand.]

BY MR. MOORE:

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 12 and ask if you can identify that, sir?

A.   Without my glasses, I can't see too hot.  This is a -- that's what I read before.

Q.   Okay.  Can you read that without your glasses?  I'm not trying to embarrass you.  I'm getting to where I've got to have them, too.

A.   No.  Everything's blurred to me.

Q.   Okay.

A.   This is what -- that was -- this is what I had before, wasn't it?

MR. PORTER:  Well, Your Honor, I can state that that is a true and correct copy of the transcript of the statement given by Mr. Hutchins to the Gwinnett County police department.  I don't know whether that suffices as sufficient identification, but that's what it is.

MR. MOORE:  Okay.

BY MR. MOORE:

Q.   Now, on the last page there, Officer Cline, when he interviewed you, he asked you what the weather was like right then; do you recall that?

A.   It was just thundering and lightning at the time.

Q.   Do you recall that you replied to him that it was mild weather, everything was clear outside?

A.   Well, it couldn't have been clear if it was thundering and lightning.

Q.   So do you remember whether or not you told Officer Cline that?

A.   No, not offhand, I don't.  But I stated it was thundering and lightning at the time.

MR. MOORE:  Your Honor, I would tender Defendant's Exhibit Number 12 at this time.

MR. PORTER:  Your Honor, again, it can only be admitted for the record.  I'll stipulate to the identity of it since the witness has not been able to identify it but, Your Honor, I don't believe that Mr. Hutchins has made an inconsistent statement.

THE COURT:  Well, you can use it for the purposes of impeachment, but insofar as it going out with the jury, then that's -- the rules of evidence don't allow it.  It's refused for that purpose, but it's a part of the record.

BY MR. MOORE:

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.

MR. MOORE:  No further questions.  Thank you.

THE WITNESS:  All right.

THE COURT:  Redirect?

MR. PORTER:  I have no redirect, Your Honor.  We would ask Mr. Hutchins to be placed on call.  His wife is the next witness, so he can't leave yet, but --

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  We don't have any problems with him being on call, Your Honor.

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.]

MR. PORTER:  We'd call Sara Hutchins to the stand.

[The witness was called to the courtroom.]

MR. MOORE:  Your Honor, could we take a short break?

THE COURT:  Okay.  Would you approach the bench, please.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT:  Is our next witness going to be about like the last one?

MR. PORTER:  Yes, sir.

THE COURT:  You want to --

MS. ROGAN:  I'll try and hold out.  I can't do her.

THE COURT:  Well, we can recess now if you'd like.

MS. ROGAN:  Okay.

MR. SMEAL:  I think a couple of jurors I saw were nodding.

THE COURT:  We'll take fifteen minutes and give them an opportunity to get a cup of coffee or something.  They've been grousing about that, so we'll give them an opportunity to do that.

MS. ROGAN:  Okay.

THE COURT:  Okay.

[Bench conference concluded.]

MR. PORTER:  Ms. Hutchins, we're going to ask you to step back outside.  We're going to take a recess.

MS. HUTCHINS:  Oh, okay.

MR. PORTER:  But we'll call you in just a second.

THE COURT:  Ms. Hutchins, we'll be back with you in just a moment.

[Ms. Hutchins exited the courtroom.]

THE COURT:  We're going to take fifteen minutes at this point.  We'll give the jurors an opportunity, while we take this recess, to get a cup of coffee or something, if you wish.  But we'll take fifteen minutes and recommence.

[The jury was excused from the courtroom for the recess.]

THE COURT:  Anything else, Mr. Porter?

MR. PORTER:  Your Honor, if we could have just a moment and it might require a bench conference.

THE COURT:  All right.

[Pause]

MR. PORTER:  Your Honor, nothing from the state.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Nothing from the defense, Your Honor.

THE COURT:  We'll be in recess fifteen minutes.

[Break taken]

THE COURT:  All right.  Mr. Moore, you want to approach the bench?  Mr. Porter?

[Counsel approached the bench and the following conference ensued.]

MR. PORTER:  Your Honor, I've been sort of thinking about the family members of the jurors who are in here.

MS. ROGAN:  He may not be aware of that.

MR. PORTER:  If you're not aware of it, but the person that Mr. Ford is waving to today are his folks.

THE COURT:  Yeah.  Somebody had said they thought his parents were here.

MR. PORTER:  And I believe Ms. Bolden's parents are here, too.

THE COURT:  Okay.  Everybody's got there fan club here today.

MR. PORTER:  I think it might be, without singling anyone out, it might be worth it to do an instruction, particularly since those people may have contact with the jurors, that they should not discuss -- if they happen to have contact with the jurors, they should not discuss the case or discuss anything about what --

THE COURT:  Well, we may have -- both of them -- I mean, if they don't have spouses or significant other coming over on Sunday, then they might have a parent coming over on Sunday.  Yeah, so that's a good idea.

MR. MOORE:  We agree with that, too, Your Honor.  We discussed it.

THE COURT:  Yeah.  I'll do that.

MR. PORTER:  And I don't think we have to single them out.  I think you can just make --

THE COURT:  Yeah.  I'll do it in a general way.  The other thing, we'll just do it at the bench, I was going to ask about when we get in -- when are we going to get into those witnesses about the -- with the hearsay, about the exceptions to the hearsay?  I mean, that's -- we're not --

MR. PORTER:  Tomorrow, Your Honor.

THE COURT:  Okay.

MR. PORTER:  I expect it tomorrow.

THE COURT:  We're going to need a few minutes and maybe tonight would be a good time to do that as well.  Take a look at what you intend to offer in and take a look at narrowing what it is, hear the objections, and go ahead and get that into place as to what's coming in.

MR. PORTER:  Your Honor, I would also say, just for the scheduling of the next two witnesses are going to Omodt and Kautter.

THE COURT:  I'm sorry?

MR. PORTER:  Are going to be Omodt and Kautter, the guy and the eyewitness.

THE COURT:  I'm sorry.  I didn't understand you.

MS. ROGAN:  The next two witnesses.

MR. PORTER:  We're going to have -- the next two witnesses are going to be the guy who was driving the eyewitness and the eyewitness.

MR. MOORE:  You mean after Ms. Hutchins?

MR. PORTER:  After Ms. Hutchins.

THE COURT:  Okay.

MR. PORTER:  And so I don't know which -- we had about what, Johnny, two hours on the hearing --

MR. MOORE:  Uh-huh.

MR. PORTER:  I can put Omodt -- I can put       Ms. Hutchins up.  She's going to take about as long as Mr. Hutchins.

THE COURT:  Well, let's just go until we get to a good point and then -- everybody's had a break here and  we'll go until 12:30 or something or whatever and we'll just push on and find a good stopping point.

MR. PORTER:  All I'm saying is between Omodt and Kautter might be the breaking point you want to look at.

THE COURT:  Okay.  Okay.

MR. MOORE:  I need you to look at the diagram, too, like we want to use before the jury comes in.

THE COURT:  Okay.  All right.

[Bench conference concluded.]

THE COURT:  Before the jury comes back, let me caution some of the members of our audience.  I think we have some friends and family or whatever of some of the jurors, and let me caution anybody who's in the audience insofar as knowing any jurors, let me suggest there ought not to be any displays in the courtroom insofar as knowing folks and that sort of thing.

          And the other thing that's more of a concern is that there will be on Sunday some visits.  That will be the opportunity for the jurors to have a visit with a family member, and they've been -- the jurors have been instructed in this respect, and family members ought to be aware as well.  And there should be no discussion with respect to anything that's transpired in this case or anything any of the family members have seen or heard or read or anything else.  That is not anything that should be discussed.  It ought to be specifically excluded from any discussion or conversation if there is a family member who visits with a juror on Sunday.  And, of course, all that will be supervised and in the presence of the bailiffs who will be with the jurors during the sequestration, but any family member or friend who might be visiting should be aware of that and make a particular effort to abide by that rule.

Is the state ready?

MR. PORTER:  The state's ready, Your Honor.         [The witness was called to the courtroom and stepped to the witness stand.]

MR. PORTER:  Ms. Hutchins, if I could ask you to take the witness stand this time.

[The witness stepped to the stand.]

THE COURT:  Is the defendant ready?

MS. ROGAN:  Yes, Your Honor.

MR. MOORE:  Yes, Your Honor.

THE COURT:  Bring the jury back, please.

[The jury returned to the courtroom and proceedings resumed, as follows.]

THE COURT:  Mr. Porter, when you ask the witnesses their name, would you also ask them to spell their name if it hasn't already been done if it's not Mr. Jones or something?

MR. PORTER:  Yes, sir.

THE COURT:  Go ahead when you're ready,         Mr. Porter.

MR. PORTER:  Thank you, Your Honor.  Could you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     SARA HUTCHINS

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Would you state your name, and if you'd slide up a little bit and speak --

A.   Okay.

Q.   -- just a little bit louder so everybody all the way to the back row can hear you.

A.   Sara Hutchins.

Q.   Ms. Hutchins, could you spell your name, please.

A.   S-a-r-a, H-u-t-c-h-i-n-s.

Q.   All right.  Ms. Hutchins, where do you live?

A.   I live at 4846 Second Avenue in Sugar Hill.

Q.   And is that in Gwinnett County?

A.   Yes, it is.

Q.   How long have you lived there?

A.   Fifty-eight years.

Q.   Are you married to the last witness we talked to, Mr. William Hutchins?

A.   I am.

Q.   And how long did you say you've lived at that residence on Second Avenue?

A.   Fifty-eight years.

Q.   Let me ask you, were you living there on April 15, 1993?

A.   Yes, sir.

Q.   On that night, were you at home?

A.   I was.

Q.   Can you describe what the weather was that night?

A.   To the south, down Peachtree Industrial, it was a dark, black cloud.

Q.   Was there any thunder and lightning?

A.   No, I don't think so.

Q.   Now, I want to call your attention specifically between the hours of nine and ten.  Were the windows open in your house that night?

A.   Yes.

Q.   All right.  Is it your husband's custom to leave the window open?

A.   Right.

Q.   And where were you in the house on that night?

A.   Well, our kitchen runs into -- it's just like a great room that runs into the den.  He had asked me to look at the cloud, which I did, and I was sitting in a rocking chair doing needlepoint.  He was looking at TV.

Q.   Were you waiting for anything that night?

A.   My son.

Q.   What -- can you tell us about why you were waiting for him?  Does he live with you?

A.   Well, he was only sixteen at the time.  He had a job after school and, you know, just being a mother.

Q.   All right.  What time did you expect him in?  What time did he get off his job?

A.   Well, he normally got off at eight o'clock, but that didn't mean that he was through, you know.  The store closed at eight, and then sometimes they had to clean up or -- but he had a curfew of eleven o'clock.

Q.   Even though his job ended at eight o'clock, did he get home --

A.   No, he did not.

Q.   -- at eight?  Did he get home about 8:30?

A.   No.

Q.   Was he home by nine o'clock?

A.   No.

Q.   Were you starting to get a little nervous?

A.   Right.

Q.   Did he 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.

Q.   All right.  Are you familiar with firearms?

A.   Well, I deer hunt.

Q.   And are you sure that you heard a shot?

A.   Yes, I am very sure, because I made the statement to my husband, I said, 'Well, that --'  We hear cars backfire in that intersection and sometimes when I'm not sure, I'll say, you know, 'Was that a gun?'  And that night, I believe I made the statement that, 'Well, make no mistake about that.  That was a gun, hon.'  And he said, 'Yes.'

Q.   How many shots did you hear?

A.   Two.

Q.   About how far apart were they?

A.   Well, my husband -- after the first shot, my husband said, 'Shoot'em again.'  And then it said bang.

Q.   Let me ask you, if you could, to step down off the witness stand.

A.   Okay.  [Witness complies]

Q.   Take a look at this aerial photograph that we've already had identified.

A.   Okay.

Q.   All right.  And if you could sort of stand to the side so the jurors can see and point out where your house is.

A.   Okay.  Let me look at it a minute.

Q.   All right.  This is Peachtree Industrial Boulevard, if it helps you.

A.   Okay.  This is Peachtree.  This is 20; right?

Q.   Yes, ma'am.

A.   Okay.  So you come around --

Q.   And you don't have to pick the exact house, but just the approximate area, although your exact house, the roof will be --

A.   Well, it's probably here.  This one right here, because this is probably Mother's.

Q.   You haven't ever seen it from that view, have you?

A.   No.

Q.   Thank you.  You can have a seat.

A.   [The witness returned to the stand.]

Q.   Based on what you looked at in the photograph, and based on your experience, how far away from the Gwinnco Muffler Shop do you think you are?

A.   I believe it's approximately a half a mile.

Q.   And can you tell anything about the shots, about how close they were or how far?

A.   How close from one shot to the other?

Q.   When you -- well, no, how close they were to you?

A.   Well, they -- it sounded like they might have come from just behind us, which my son had come down First Avenue where it dead-ended in there, and he had to come down First Avenue and around in a circle, you know, back to our house.

Q.   So did the gunshots concern you?

A.   Yes, they did.

Q.   Other than that they concerned you, did you think anything about them that night?

A.   No.  I just thought it was somebody shooting.

Q.   When did you realize that what you had heard on the night of April 15 might be important to the police?

A.   The next morning.

Q.   And is that when you discovered that Emogene Thompson had been murdered?

A.   Yes.

Q.   And did you come forward to the police?

A.   No, I did not.

Q.   Did the police locate you?

A.   No, sir.

Q.   How did the police get in contact with you?

A.   Well, my -- when my husband heard it the next day at work, he said, 'Well, that must have been the two shots we heard,' and then they contacted us.

Q.   And can you tell us, Ms. Hutchins, about what time, to your best estimate, did you hear those two shots?

A.   I would have thought it would have been 9:20 -- between the time of 9:20 and twenty minutes till ten.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Ms. Hutchins, I have just a few questions for you.

A.   Oh, okay.

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.

Q.   Now, you said that back at that time when you talked to Sergeant Cline, you said that 9:30 was about what you thought it was, the time; is that correct?

A.   Uh-huh [affirmative].  Between the time of 9:20 and twenty till ten.

Q.   Okay.  Did you ever tell Sergeant Cline twenty till ten?

A.   I don't know if I did or not.

Q.   Has anybody suggested to you that it should be closer to ten o'clock?

A.   No, sir.

Q.   Have you been interviewed by anybody from the district attorney's office or anybody else about what time it was?

A.   No.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 13 and ask you if you can identify that, first of all?

A.   Okay.  Meaning the paragraph after --

Q.   Can you recognize the document, what that is?

A.   Oh, okay.

Q.   Do you remember that document?

A.   Yes, I do.

Q.   Is that a transcript of a statement you gave to Sergeant Cline?

A.   Yes.

Q.   Okay.  Was that recorded, tape recorded, that statement?

A.   Yes, it was.

Q.   Looking over to page 4, if you would --

A.   Okay.

Q.   -- down at the middle of the page, would you look at that and --

A.   Middle of the page?

Q.   Yes, ma'am, about the times.

A.   Right.

Q.   Okay.  And what time did you tell Sergeant Cline that you heard the shots?

A.   9:30.

Q.   Now, did you at any time see a police car?

A.   Yes, I did.

Q.   Okay.  And could you describe that car that you saw?

A.   Not really.  The window that I'm looking out of, I see it for just maybe two car lengths.

Q.   Do you know what color it was?

A.   No, sir.  It was dark.

Q.   You couldn't tell what color it was?

A.   No, sir.

Q.   Are you saying it was a dark car or dark out in the night?

A.   Well, no.  I can't be that -- I ID'd it as a county car.

Q.   Okay.  Do you remember telling them what color it was?

A.   What color?

Q.   Yes, ma'am.

A.   No.

Q.   I'm not trying to --

A.   I'm sure, but no.

Q.   I'm not trying to trick you.  I'll let you look at page 4 of your statement here, if you would, 4 and 5 there, if you'd read that.

A.   Well, I think anything at that time of night would have been black or white --

Q.   Okay.

A.   -- for the brief time I saw it.

Q.   Okay.  Could you tell what kind of blue lights it had or anything like that?

A.   No, I could not.

Q.   Were the blue lights on or was it --

A.   No, there was no lights on it.

Q.   Was there anything unusual about the car that you noticed?

A.   Nothing unusual.

Q.   Okay.  Was it traveling at a high rate of speed or anything?

A.   No, sir.

Q.   Did you see any other cars near it?

A.   I think there were cars in the intersection at that time, but I was just looking at that one particular car.

Q.   Okay.  What was the weather like when you were looking out the window there?

A.   Well, like I had said before, it was a dark cloud back what I thought might have been around Alpharetta somewhere where my brother lives.

Q.   Had it been raining?

A.   No.

Q.   Now, the car that you saw, could you tell what direction it was going in?

A.   Yes, I could.  It was going north on Peachtree.

Q.   Your house is located at what intersection, now?

A.   It's 20 and Peachtree, but there's also a little street behind me that's First Avenue.

Q.   Do you mind coming down again and show us where you're talking about?

A.   [Witness complies]

Q.   I think I know what you're saying, but I'm not absolutely sure.

A.   Right.

Q.   I believe the streets and everything are labeled here.

A.   Okay.  This is a little cabinet shop, so we're -- this is First Avenue.  We're -- a dead-end here, so we come in here --

THE COURT:  Ms. Hutchins, would you move to the side and point to it so the jurors can see, please.

THE WITNESS:  This is Second Avenue, and we're the only house in the intersection so -- is this made before this house -- there was a house here at one time.

MR. MOORE:  Do you know the date of this,       Mr. Porter, this aerial photograph?

MR. PORTER:  I believe it was made in 1992.

THE WITNESS:  1992?

MR. PORTER:  Yes, ma'am, I believe.

THE WITNESS:  So the house would have been gone.  We're the first house, so my mother's sits right there.  I guess we're here.

BY MR. MOORE:

Q.   Okay.  So you're right near the intersection of 20 and Peachtree Industrial?

A.   Right.  Yes.

Q.   Is that very far?  You can't tell on the scale.  Is that like a block or --

A.   Probably.  Probably a block.

Q.   You can go back up.

[The witness returned to the stand.]

MR. MOORE:  Nothing further.

THE COURT:  Redirect?  Just a moment,           Ms. Hutchins.

     REDIRECT EXAMINATION

BY MR. PORTER:

Q.   Ms. Hutchins, how long was it between the shots and the time you saw the police car on Peachtree Industrial Boulevard?

A.   Probably about fifteen or twenty minutes.

Q.   You think it was that long between the shots and the police car?

A.   [Nodding affirmatively]

Q.   All right. 

MR. PORTER:  Thank you.

THE COURT:  Recross?

MR. MOORE:  Nothing further, Your Honor.

THE COURT:  Do you wish her to remain on call?

MR. PORTER:  No, Your Honor, we've already excused Mr. Hutchins.  They live where she's described and she's available.  We can reach her.

THE COURT:  Okay.  But you want her to remain on call in case you want to bring her about here?

MR. PORTER:  Yes, Your Honor.

THE COURT:  Okay.  Mr. Moore?

MR. MOORE:  That would be fine, Your Honor.

THE COURT:  All right.  You can come down.  You'll remain on call in case anybody wants to ask you to come back in for any further testimony.  Thank you.

THE WITNESS:  Okay.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. PORTER:  I call Paul Omodt to the stand, and, Your Honor, I'll have him spell his last name.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Omodt, could you take the witness stand right up here, please.

[The witness stepped to the stand.]

MR. PORTER:  Could you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth and nothing but the truth, so help you God?

THE WITNESS:  Yes, sir, I do.

Whereupon,

     PAUL NORMAN OMODT

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Could you state your name, please.

A.   My name is Paul Norman Omodt.

Q.   Mr. Omodt.  I'm sorry.  I mispronounced your name.  Could you spell it for the record.

A.   It's spelled O-m-o-d-t.

Q.   And where are you employed, Mr. Omodt?

A.   Presently I'm employed at a place called Eco-Grooving in Suwanee, Georgia.

Q.   And what type of work do you do for them?

A.   We do bridge deck grinding and come back and safety groove afterwards.

Q.   I'd like to call your attention to April of 1993.  Where were you employed on that date or in April of 1993?

A.   At that time I was employed with a company called SP&B, which is a Mercedes repair shop located at 5400 Shadburn Ferry Road.

Q.   And what type of work did you do for them?

A.   We did Mercedes service.

Q.   How long did you work there?

A.   Start to finish, about six years.

Q.   Now, Mr. Omodt, let me call your attention specifically to the evening of April 15 of 1993.  Did you have occasion on that night between the hours of nine and ten to be on Peachtree Industrial Boulevard in the area of Gwinnco Muffler?

A.   Yes, sir.  A Mercedes dealership by the name of RBM had an open house for all the companies they well parts wholesale to, which took us down to Sandy Springs on Roswell Road.

Q.   About what time did you arrive at RBM in Sandy Springs?

A.   It had been early in the evening after work, six-thirty, maybe seven o'clock.

Q.   Who went with you?

A.   At that time my boss, Karl Kautter.

Q.   And about what time did you leave the meeting at RBM?

A.   In between probably eight forty-five and maybe ten till nine.

Q.   Now, let me ask you, during this meeting, was it a -- you said it was a business meeting.  Was there any alcohol served or consumed?

A.   No, sir.  No, sir.  It was an open house.  There was barbecue, punch, things like that.

Q.   Did you consume any alcohol?

A.   No, sir, I did not.

Q.   All right.  When you began to come back -- tell me again what time you left RBM?

A.   About eight forty-five, eight fifty, maybe.

Q.   Have you ever driven from RBM to the area of Peachtree Industrial Boulevard near Gwinnco before?

A.   Occasionally.  Most of the time RBM brings their parts to us.

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.   And by the time you reached Peachtree Industrial Boulevard, about how long had it taken you to get from Sandy Springs to Gwinnco, do you think?

A.   At least forty-five minutes, maybe fifty.

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.

Q.   And again, who was in the car at the time you got to Gwinnco Muffler?

A.   Myself -- I was driving -- and my boss, Karl Kautter.

Q.   Could you describe for the jury what the terrain looks like there as you're traveling northbound on Peachtree Industrial Boulevard from south of the muffler shop?

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.

Q.   What did you do?

A.   As any normal driver, I immediately looked at my speedometer to make sure I wasn't proceeding at an accelerated rate, and, of course, with the rain we were going slower than normal, and pretty much just checked to make sure everything was -- was kosher with the car.

Q.   All right.  At that point, from the crest of the hill, could you tell what kind of car was underneath the blue lights?

A.   No, sir, not at the point.  It's -- you're about a quarter mile away.

Q.   And did you proceed on northbound past Gwinnco Muffler?  

A.   We were proceeding to Little Mill, which is another mile and a half, two miles on the other side of Gwinnco Muffler.

Q.   And as you came alongside the Gwinnco Muffler, did you observe anything about the cars -- or car or cars that might have been there?

A.   We had the occasion to notice that there were two cars in the Gwinnco Muffler parking lot.  One had pulled thirty to forty feet into the driveway with a Gwinnett County squad car right behind them.

Q.   All right.  Can you describe the first car that was thirty or forty feet up into the driveway?

A.   It at that time looked to be a dark brown, maybe black, domestic car.  It was a big, square-bodied car.  Pretty obviously not an import of any type.

Q.   And can you describe the patrol car?

A.   It looked to be a white rounded car, the Chevy Caprice or maybe the Ford Crown Victoria squad car.

Q.   Were the blue lights on on the vehicle by the time you came alongside the Gwinnco Muffler?

A.   No, sir.

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.

Q.   Okay.  And can you describe what the officer looked like?

A.   From what I could see, Caucasian male.  Of course, he was wearing a rain suit and rain hat.  Pretty good size gentleman, six feet maybe.

Q.   How tall are you?

A.   Five-eleven.

Q.   Was he about your size or bigger?

A.   He'd probably been about my size, my build.

Q.   Could you tell anything about his hair color or anything else?

A.   No, sir.  He --

Q.   Did he have anything in his hand?

A.   Just a flashlight.

Q.   Now, did you just continue on from that point?

A.   Yes, sir, we sure did.

Q.   As you passed the Gwinnco Muffler and moved on to the area of Peachtree Industrial Boulevard where it four-lanes -- well, first of all, let me ask you, as you passed the Gwinnco Muffler, were there any other police cars --

A.   No, sir. 

Q    -- there?

A.   No, sir.

Q.   Were there any cars behind you?

A.   Not that I know of.

Q.   Were there any cars in front of you?

A.   I believe we came up behind a little white Honda.

Q.   And does that stick in your mind for any reason?

A.   I've had Hondas and I've always enjoyed Hondas, so I'm sure I'd made a comment about it.

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.

Q.   All right.  Let me show you -- if I could ask you just for a second.  Let me move this.  I had a pointer here somewhere.  Mr. Omodt, if you can just give me a second.  I had a pointer here somewhere.

A.   This one, sir?

Q.   Yes, sir.  You're more observant than I am.

THE COURT:  What exhibit number is that, Mr. Porter?

MR. PORTER:  Your Honor, this is State's Exhibit Number 3, which has previously been stipulated to by counsel as a scale drawing of the area of Peachtree Industrial Boulevard from where it four-lanes on the south, through its intersection with R. H. Smith Boulevard on the north.

THE COURT:  All right.  Go ahead, please.

MR. PORTER:  All right.

BY MR. PORTER:

Q.   Mr. Omodt, if you could come down for a second.  You heard me describe to the jury what this exhibit is, and if you could just take a look at it for a second.

A.   [Witness steps to the exhibit before the jury box.]

Q.   And is that a true and accurate representation to the best of your knowledge of the area of Peachtree Industrial Boulevard that we've been discussing after you passed the Gwinnco Muffler?

A.   To the best of my knowledge, yes, sir.

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.

Q.   And at any -- when you got to this light, what happened then?

A.   From the driving I do, which is quite a bit, from what I could tell he -- whoever was in the squad car acted like he wanted to turn on First Avenue, didn't, hesitated, didn't, went on to the next intersection, being Highway 20, and acted the same way, like he wanted to turn right but didn't, and continued on to the very next intersection and turned right there.

Q.   And are you discussing the intersection with R. H. Smith?

A.   Yes, sir.

Q.   All right.  At the time that you observed these hesitations, where was your vehicle in relation to the patrol car?

A.   Behind and to the left.

Q.   Could you see as the drive -- and you can take the stand again. 

[The witness steps back to the stand.]

[A brief discussion ensued off the record between Ms. Rogan and Mr. Porter.]

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.  That's the first intersection he was referring to.

THE COURT:  Ms. Rogan, Mr. Moore?

MS. ROGAN:  That's fine.  I just wanted the record to be clear.

THE COURT:  Go ahead, please.

BY MR. PORTER:

Q.   As you said that your car was behind -- you described the position of your car in relation to the patrol car?

A.   Yes, sir.  Yes, sir.

Q.   And I believe you said it was behind and to what direction?

A.   To the left.  I was in the left --

Q.   Could you see, as the driver, were you close enough to see into the passenger compartment of the vehicle?

A.   I was more focused on driving, so I didn't have the opportunity to look into the squad car clearly when he went by.

Q.   Were you shown a photographic array by the Gwinnett County police?

A.   Yes, sir, I was.

Q.   Were you able to identify anyone from that photograph?

A.   No, sir, I was not.

Q.   Thank you.

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good morning, Mr. Omodt.  How are you?

A.   Good morning, ma'am.

Q.   My name is Elizabeth Rogan, and I'm one of Mr. Chapel's attorneys.  I just have a few questions for you.

A.   Yes, ma'am.

Q.   You used to work with Karl Kautter --

A.   Yes, ma'am.

Q.   -- who was the passenger in your car that night --

A.   Yes, ma'am.

Q.   -- and you've identified as your boss.  You were outside with Mr. Kautter earlier this morning waiting to testify?

A.   Yes, ma'am.

Q.   Okay.  Did you and he discuss anything about this case --

A.   No, ma'am.

Q.   -- while you were waiting out there?

A.   No, ma'am.

Q.   All right.  You described for us how you were following a Honda as you were proceeding on up Peachtree Industrial Boulevard, and you made note of that fact because you like Hondas.  Do you recall Mr. Kautter thinking he recognized the car, that it was a friend of his?

A.   In the white Honda?

Q.   Yes.

A.   I don't remember.  No, ma'am.

Q.   Okay.  And you've told us that it was raining incredibly hard, I think were your words, as you were proceeding up Georgia 400.

A.   Yes, ma'am.

Q.   And that by the time you got to Peachtree Industrial, it wasn't raining quite so hard, but it was still drizzling and it was raining.

A.   Yes, ma'am.

Q.   In fact, the officer you saw by the side of the road had a raincoat on.

A.   Yes, ma'am.

Q.   Do you recall if he had a rain hat on as well?

A.   I believe, also, yes, ma'am.

Q.   And you were driving somewhat slower than normal, you said, because of the weather but you also checked your speed --

A.   Very definitely.

Q.   -- when you saw the police car's lights illuminated.

A.   Yes, ma'am.

Q.   Do you know what speed you were traveling at?

A.   The posted speed is fifty-five coming down Peachtree Industrial, and where it four-lanes it drops down to forty-five.  I probably was doing fifty to fifty-five in the previous area and the drop would have been forty to forty-five.

Q.   Okay.  So you dropped down to about forty-five miles per hour --

A.   If not slower, yes, ma'am.

Q.   -- when you --

A.   Got to the four-lane.

Q.   Okay.  In fact, maybe we could use this.

MS. ROGAN:  Does this have the four lane to two lane?   [Examining exhibits]

BY MS. ROGAN:

Q.   Would you mind coming down for a second --

A.   Sure.  [Stepping down from the witness stand.]

Q.   -- and let me just clarify something on our aerial diagram here.  Can you use this pointer for us, please and --

A.   Sure.

Q.   -- you'll see on that map where the Gwinnco Muffler Shop is and this is Peachtree Industrial.  This is the direction you were headed?

A.   Yes, ma'am.

Q.   Okay.  So where is it on this map, if you can tell us, that the street narrows from four lane to two lane?

A.   It's very hard to tell on here.  I think it    goes  --

Q.   Is it beyond where we are on this map?  Is it further up in that direction?

A.   I think it's still two lane out in through here, and it starts the four lane in through this area.

Q.   Okay.  Where does the change in speed limit occur, if you know?

A.   It's the very same area.

Q.   Okay.  So --

A.   Where it comes into a four-lane.

Q.   So if you could point on -- with the map where it is where --

A.   Through here.

Q.   -- you slowed down.

A.   I'm sure.

Q.   Okay.  So you would have still been going fifty, fifty-five past Gwinnco and then once you saw the sign -- is there a sign posted somewhere up in this area?

A.   In that area, yes, ma'am.

Q.   And that's when you would have slowed down to forty, forty-five?

A.   Actually you drop -- you start slowing before you get to the sign.

Q.   Okay.

A.   It's a patrolled area.

Q.   Okay.  And you saw a police car there --

A.   Yes, ma'am.

Q.   -- and didn't want to be speeding?

A.   Yes, ma'am.

Q.   So you were conscious of your speed?

A.   Very definitely.

Q.   And you maintained that speed throughout -- you can resume the stand.  You maintained that speed throughout the rest of your travels --

A.   Yes.  [Returning to the witness stand.]

Q.   -- on Peachtree Industrial?

A.   Yes, ma'am.

Q.   Okay.  At least during the time before the police officer passed you and turned off.

A.   It's -- it's still a patrolled area pretty heavily, so you pretty much mind your P's and Q's.

Q.   Did you see any other police cars --

A.   No, ma'am, I did not.