P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Monday, August 28, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]

THE COURT:  Mr. Porter?

MR. PORTER:  Yes, sir.

          THE COURT:  Mr. Moore?  Everybody doing okay this morning?

MR. PORTER:  Yes, sir.

MR. MOORE:  Good morning, Judge.

THE COURT:  Everybody ready?  Ms. Rogan?

MS. ROGAN:  Yes.

THE COURT:  Do we have anything to take up before we bring the jurors in?

MR. MOORE:  Your Honor, might we approach the bench?

THE COURT:  Yes, sir.

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

MR. MOORE:  Your Honor, there are two matters.  One, we would ask the Court to instruct the jury about the rule of sequestration.  It's apparent that Captain Latty had talked to somebody about the gun.  He knew about it and everything on Friday when he testified.  And we request a --

MS. ROGAN:  Saturday.

MR. MOORE:  Saturday, I'm sorry.  We did work Saturday.  I've lost track of the days here.  And the other matter, Your Honor, is I don't know whether the state intends to introduce any scientific evidence regarding that gun or not, but we've not been provided any reports or anything, and we object to any scientific evidence.  We haven't had an opportunity to -- we saw it for the first time on Saturday.

THE COURT:  That's the RG?

MR. MOORE:  Yes, sir.  And we haven't had a chance to get an independent expert or --

THE COURT:  RG, that's the name brand?

MR. MOORE:  Name of the brand -- brand name -- name brand.

THE COURT:  Like Ruger or something?

MR. MOORE:  Yes, sir.

THE COURT:  Okay.  Mr. Porter?

MR. PORTER:  Your Honor, first of all, there's been no establishment of violation of the rule of sequestration sufficient to justify an instruction to the jury.  I would explain to the jury how Captain Latty came into that information, and I don't believe that there's been a showing of --

THE COURT:  Well, I'm inclined to agree.  You know, as I recall it he said, well, he heard somebody else talking about it or whatever.  He wasn't sure who it is, but he said, as I recall it, he said he had not had a conversation with Burnette, and I don't think there was any indication or conversation with anybody else in violation of the rule.  That's my recollection.

MS. ROGAN:  That's precisely what his testimony was that he had had a conversation with Burnette about it.

MR. PORTER:  No, Your Honor, that's not precisely the testimony.

MR. MOORE:  Well, he was very evasive, Your Honor.  He said he couldn't remember.

THE COURT:  Well, I think if you've got a violation of the rule where somebody's testified -- or discussed the testimony with somebody else or discussed the matter with one of the other witnesses, you know, I'll be happy to give them an instruction as to the weight and credibility of the testimony in violation of the rule.  But if there is no rule violation, I'm not inclined to give it absent that, and I don't think there has been at this point.  It's not in my recollection of the evidence that there was one.

MS. ROGAN:  He knew all about the gun, and there's no way he could have known about it without talking to other witnesses because this all developed since the rule was invoked on August 4th.

THE COURT:  Well, what other witnesses?

MS. ROGAN:  Investigator Burnette, among others.

MR. PORTER:  Your Honor, they can question Investigator Burnette about that, but I'll state in my place that I turned around and saw two police -- two Gwinnett County police officers here, plain clothes, here Saturday.  There have been police officers from various jurisdictions in here almost every day.  They are not witnesses in the case.  I think Mr. Moore's familiar from his experience that when they walk out of here, word spreads like wildfire through the police department.  I've got officers who are unrelated to this case call me at home and say, 'I heard this happened,' or 'I heard that happened.'  They're following this case very closely.

THE COURT:  Well, you'll have Burnette on, and you can inquire of Burnette, and if there has been a violation of the rule, I'll be glad to give them -- what instruction are you asking for, that goes to the weight and credit of their testimony, if there's been a violation?

MR. MOORE:  Yes, sir.  Yes, sir.

THE COURT:  If you can establish a violation, I'll be happy to give them one, but I don't recall one in the testimony at this point.  What was the other issue?

MR. PORTER:  Scientific.

MR. MOORE:  The other issue is scientific evidence that the DA intends to introduce, any scientific evidence.  We haven't had an opportunity to get an expert and we haven't -- we only found out about it Saturday.

MS. ROGAN:  And Mr. Porter --

THE COURT:  Well, the evidence thus far is somebody brought a rusty pistol.

MR. PORTER:  No, Your Honor.

MS. ROGAN:  No, this is about --

MR. PORTER:  This is about Brian Reddy's RG, and we do intend to introduce --

THE COURT:  Oh, okay.  I'm thinking about a different gun.  Okay.

MR. PORTER:  We do intend to introduce the testimony of Kelly Fite that excludes that weapon as the murder weapon.  And we have made that available to the defense.  We continue to make it available to the defense.  It is a test that can be run in five minutes, because, in fact, the test was run in five minutes.  There is not --

THE COURT:  Well, what does the rule say about that?

MR. PORTER:  Well, the law requires that we provide some -- written scientific reports ten days prior to trial, but this was information that came up the Friday before trial was when I first learned of it.  I received notice of the results sometime last week, and I don't recall specifically, and I disclosed it as fast as it occurred to me, and I disclosed it.

MR. SMEAL:  Also, the state has not yet received a copy of a written scientific report.  The results of that test were transmitted orally by Kelly Fite.

THE COURT:  Well, but you can't evade the issue by --

MR. SMEAL:  No, I understand that, but there's no document that we haven't disclosed.

THE COURT:  Yeah.  I mean, they can't just keep it an oral report and say, well, we don't have to furnish that.

MR. MOORE:  What date was the test run?

MR. PORTER:  I don't know that.

MR. MOORE:  When did you learn about it?

MR. PORTER:  Last week sometime, and I can't say specifically.

THE COURT:  What is the rule?  Are you aware of any cases that talk about -- I mean, what if you're in the middle of a trial and the day the state's getting to rest, you know, lo and behold, here's some new evidence that's just come in.

MS. ROGAN:  They can't introduce it.  And I looked for the case this morning.  This occurred to me late last night.  And I had pulled a case in preparation for one of our other hearings that specifically says and it was held to be reversible error to allow the state to introduce evidence of a scientific nature that they had not provided to the defense ten days before the trial.

MR. PORTER:  Your Honor, that's physically --

THE COURT:  Well, yeah, but what -- I understand that, but --

MS. ROGAN:  No.  This was a scientific report.  It was --

THE COURT:  No, I know, but that's assuming you've got it ten days.  I mean, what if the day the state's getting ready to rest --

MS. ROGAN:  No.  This had just developed, Your Honor.  This was late-breaking evidence, but the rule --

THE COURT:  I can't imagine that being the law.

MS. ROGAN:  I will look for that case.

MR. MOORE:  Your Honor, the testimony was they learned of this on the 18th.  We weren't advised of it until the -- Saturday was the 25th.

MS. ROGAN:  25th -- 26th. 

MR. MOORE:  26th.  We think the state has to make a timely and complete disclosure as soon as they know about it if they want to take advantage of any exception.

THE COURT:  All right.  You may be right.  When's Kelly Fite testifying?

MR. PORTER:  We anticipate today because he has to leave to go to South Georgia to testify in a death penalty case tomorrow.

THE COURT:  Is that going to be this morning or this afternoon or when?

MR. PORTER:  This afternoon, Your Honor, as early in the afternoon as we can get him because he has to drive to South Georgia.

MR. SMEAL:  Your Honor, there might be one other point that bears mentioning, and that is that as far as the state was concerned there was nothing exculpatory about that scientific test.  I mean, the state did not know that that was going to be a material and relevant issue at trial until the defense, during trial, has focused attention on Brian Reddy.

MR. PORTER:  Your Honor, I'm not sure I was  under --

MR. SMEAL:  But that's the way the issue --

MR. PORTER:  I'm not sure I was under an initial duty to even reveal the evidence.  I'm not sure I was under any initial duty.

MR. MOORE:  He may not have been, but if he wants to use it, he is.

MS. ROGAN:  I think evidence that one of the other officers, whose whereabouts they clearly did not check very carefully, had a .38 at the time, is --

MR. PORTER:  But we don't know that.

MS. ROGAN:  -- is relevant to this -- the issues in this case.  I don't see how the state can say that in good faith that it has no bearing on this case --

MR. PORTER:  Your Honor, I'm not saying that it had no bearing.

MS. ROGAN:  -- and not something they needed to disclose to us.

MR. PORTER:  Your Honor, I don't know how long he's had the .38.  I know that as of the day he told me, which was a week ago Friday, he had a .38, we immediately took it down and had it tested.  I didn't receive notice of the results of the test, and I received them verbally sometime last week, and I cannot say with specificity.  Within a day or two, I disclosed it to the defense.  They made use of it that day, and I think at this point to deny the state the opportunity to exclude that weapon, given the inference that's been given through the cross-examination, on a    technicality --

THE COURT:  Well, that's an interesting point.  Really, we've got a kind of a reverse situation here.  It's sort of exclusive kind of testimony rather than inclusive as to the defendant.  I mean, really the test is not to show something relevant to what's -- to prove the allegations of an indictment, but it's really to show that some other --

MS. ROGAN:  Somebody else could have done it.

THE COURT:  -- collateral is not involved.  And then we have the situation here -- that's an interesting point Mr. Porter raises is that it's an issue because it's raised by the defense on cross-examination, 'well, what about this gun and did you test the gun.'  And I guess the question is, does that line of questioning open up for the state, then, when it calls its witnesses and say, 'well, you know, in fact, did you test it, and what were the results?'  I mean, you've asked the question on cross-examination.  How can you now complain if the state discusses it?

MR. MOORE:  Your Honor, I asked a witness in reference to his violation of the rule of sequestration whether he knew about it or not, and he denies knowing anything about any results, the witness.

MR. PORTER:  Your Honor, the results are there.

MR. MOORE:  Your Honor, the point I'm still making is that when the district attorney learns of something like that, if it's during the trial, my position is he has to tell us the day he learns of it if he wants to take advantage of any exception to the rule, the ten-day rule.

THE COURT:  Well, your argument would be more persuasive, it seems to me, if the state were going to put it in where it had not been made and there was no issue prior to the state saying, 'Okay, now, tell us about the test results,' and there had been no issue made. 

But my question is, if you raise the issue on cross-examination about wasn't there another gun found and wasn't that an RG and wasn't that another police officer and what have you done about the inquiring as to that officer, it seems to me then you have -- how can you complain if the state then says, 'well, in fact, we do have the gun; in fact, we have tested it; and, in fact, this is the results.'  I mean, when you raise the issue, I don't think you're in a position to complain if they come back with another witness that testifies about it.

MR. MOORE:  Your Honor, when they didn't give us an opportunity to know about it and to get an independent test if we wanted it, we feel like that they've violated the ten-day rule.

MR. PORTER:  Your Honor, we have not denied them that opportunity.  The gun is available.  And as I said, it's my understanding --

THE COURT:  Well, it's going to be probably the first of next week before you start your evidence and --

MS. ROGAN:  The first -- no, it's going to be Wednesday.

MR. PORTER:  No, sir.  It will probably be unlikely tomorrow, but will be Wednesday most likely.

THE COURT:  Oh, that's right.  Yeah.  Okay.  Okay.

MR. PORTER:  Your Honor, it's a test that can be performed --

THE COURT:  Well, that's going to be this afternoon; right?

MR. PORTER:  The soonest will be this afternoon.

THE COURT:  When Kelly Fite comes on?

MR. PORTER:  Yes, sir.

          THE COURT:  I'll start my law clerk on it and see what --

MS. ROGAN:  I wish I could remember the name of the case, Your Honor.  I pulled it, and it clearly said that an eleventh hour disclosure of a scientific report that they've just found out about is too late.

THE COURT:  I just can't imagine that being the law.  I mean, if you have material, relevant evidence that clearly nobody's trying to conceal or sandbag the other side, you know, and at the last second you make this discovery that is absolutely material to the issues of the case, what if the defendant discovered it, what if the state discovered it?

          I just can't imagine that if you have something as critical to the case and you say, 'Well, gee whiz, we've got this rule here that says you've got to have ten days, and if you haven't got ten days, then it doesn't come in.  It doesn't matter whether that's an astounding piece of evidence or not because we've got this rule that says ten days.'  I mean, I can't imagine that, but maybe it is.  But I can't imagine that being the law.

MS. ROGAN:  It was in the context of DNA.  That was where I was pulling cases and --

THE COURT:  Well, it just seems to me that would just be so fundamental to the denial of justice in a  case.

MS. ROGAN:  Well, the issue is giving the defense a right to an independent test.  That's the purpose of the rule.

THE COURT:  Yeah.  Well, I mean, I can see --

          MS. ROGAN:  And given the timing here, we're up against the wall.

THE COURT:  -- maybe perhaps a continuance or making some provision so everybody has an opportunity to fairly examine the witnesses and to inquire and rebut and all that, but I just can't imagine a rule that says arbitrarily that's not coming in even if it is absolutely critical to the case.

MS. ROGAN:  Well, I think the judge in that case had declined a continuance motion and that was error.

THE COURT:  Yeah, well, that makes a little more sense.

MR. PORTER:  I think that's another point.  The logistics that are controlling is that the gun is available.  We will make it available.  That is not a problem.  I am not going to quibble about providing --

THE COURT:  Well, why don't you talk to your folks, and if you want to make some arrangements for an independent test, you know, make -- if they've got to send somebody up there at midnight to be available to do it at the crime lab, do it.

MR. PORTER:  Your Honor, I can make our police range available.  I can -- it requires a box, one round, and a stereoscopic microscope.  That's what the test consists of.

THE COURT:  Yeah.  I mean, I'm prepared to see that the defendant has a right to an independent test of it and the time to evaluate it and put up any witness or secure a witness, put up the evidence you want in that regard; but it just seems to me that now where the issue is raised -- I mean, I don't know whether the state planned to put it in or not at all.

MR. PORTER:  Your Honor, I'll state in my place until it was raised, I made the disclosure for whatever the defense wished to use in this, and I'm not sure it was initially disclosed, but I made that choice in light of Mr. Moore's statements the day before, and I chose to disclose it.

THE COURT:  I mean, you may have -- every officer on the department may have a .38, and the fact that they've been tested and excluded, you know, is that exculpatory material, discoverable material, admissible?  MR. MOORE:  Well, Your Honor --

THE COURT:  I don't know.

MR. MOORE:  -- our position is that the district attorney's under a duty to disclose that as soon as he knows about it if he intends to use it.  The district attorney knew about this before the opening statements in this case.

THE COURT:  I understand what you're saying, but if, in fact, he doesn't intend to use it and it's raised by the defendant on cross-examination, 'well, what about this gun; well, did you test it; well, what does it say; it's the same brand, and what about that?'  It seems to me if you inquire to that, then you have opened the door with or without a test for the state to come back and address that issue.  It seems to me that's a different case.

          Well, we'll see about getting some legal research done before Kelly Fite testifies and see if we can get a handle on it.  If you want to arrange for somebody to test the gun, you know, I will ensure that it's done and expedited and that will give you the opportunity to test it.  If you've got a witness you want to secure to put up, I'll give you that opportunity and assist you however need be.  Tell me what you want.

MS. ROGAN:  Well, we have an expert.  We'll have to make arrangements.  He's --

MR. MOORE:  He won't be in town until the 30th.

MS. ROGAN:  He'll be in tomorrow night.  Yeah.  Wednesday's the first time he'll be available to us.

MR. MOORE:  And, Your Honor, our position is the state has withheld this information when they knew about it, allowed us to go forward with our case, and then suddenly reveals it to us, actually, when they're almost through with their case, and it puts us in a position where we're not fairly allowed to cross-examine witnesses, we're not allowed to present our case, and just an independent test doesn't cure that.

THE COURT:  Well, what else would you want to ask on cross?

MR. MOORE:  Huh?

THE COURT:  What else would you want to ask on cross?  I mean, either the gun matches the bullet or it doesn't.  I mean, aside from that, what --

MR. MOORE:  Your Honor, could I consult my client for a minute about this?

THE COURT:  Yes, sir.

[Pause in proceedings]

MR. MOORE:  You asked what remedy we wanted, Your Honor.  We'd demand the Court grant a mistrial in the case and allow us to start over again with a level playing field where we know about the evidence and we  have an opportunity to cross-examine our witnesses with that knowledge.  Otherwise, we're not granted a right to a fair trial.

THE COURT:  Mr. Porter?

          MR. PORTER:  Your Honor, the defendant is only entitled to a mistrial if evidence is so prejudicial that it would outweigh any probative value that has been introduced.  In this case, the defendant has chosen a methodology of defense that implicates other people.  It is not evidence that the state has brought in or intended to bring in.  It was developed in the course of preparation for trial, and it's the defendant who has opened the door.  Another key point here is this is not inculpatory evidence except in the most indirect way.  It excludes one more suspect which they have brought to the jury's attention.

Your Honor, I think that at this point, there's no evidence that the state has been dilatory, and I'll state in my place we have not been dilatory.  We have provided the information as soon as I became aware of it.  We have acted upon the information that we received in a timely manner.  And we have produced that information, information, which I stress, we are under no obligation at this point to provide.  And I don't think you can say, 'Well, you made the decision to disclose it.'  Mr. Moore is the one who complains that I have somehow violated my self-imposed policy, but the important point is that it is self-imposed.

THE COURT:  Anything else, Mr. Moore?

MR. MOORE:  Your Honor, the ten-day rule is not self-imposed, and even if the Court has an opportunity to, in its discretion, to shorten that time, the district attorney, if he wants to take advantage of any exception, we believe, has to disclose it as soon as he finds out about it.  He can't wait a week into the trial and let us make our opening statements, let us cross-examine the witnesses, and then come in and say, when the trial's almost over, his part of it, and say, 'Oh, by the way --'  And that's my position, Your Honor.

THE COURT:  Your motion is denied.  What about the -- are you making any specific request as to the test or the gun being made available or that sort of thing?

MR. MOORE:  Your Honor, we would demand that the state not be allowed to put theirs in until we have an opportunity to have those tests done.

THE COURT:  Well, let's revisit the issue before Kelly Fite.  I've got my clerk working on what the law is.  We'll see if we can -- you might, if you have an opportunity, take a look at the law as well, and we'll revisit all that prior to Kelly Fite testifying and see if we can sort out and see if we can find some controlling law and then we'll go from there.  Okay.  Anything else, Mr. Porter?

MR. PORTER:  Your Honor, the only thing is is that there is one more videotape that we want to show this morning.  It has no sound.  A copy of it's been provided to the defense.  It will require wheeling a television in, plug it in, playing it, and wheeling it out.  It's two minutes long.

THE COURT:  What is it of?

MR. PORTER:  It's of the crime scene.  We don't intend to hook it up to the feed.  The TV's going to have to just -- they're going to have to eat this one.

THE COURT:  Mr. Moore, have you seen it?

MR. MOORE:  Which one are you talking about?

MS. ROGAN:  Yes.  It's the one of the scene --

MR. PORTER:  The one that Mary Ann White did at the scene.

MS. ROGAN:  -- the car and her in the car.

THE COURT:  Okay.  It just shows the exterior and her in the car?

MR. PORTER:  The whole --

THE COURT:  Yeah, I recall seeing that on the in camera.  Any objection to that?

MR. PORTER:  Well, I don't -- we'll lay the foundation, but we're going to do it in the midst of Mary Ann's testimony.  I'm not going to worry about the TV.  They're just going to have to bite it and then we're going to --

THE COURT:  Yeah.  Mr. Moore?

MR. PORTER:  In terms of the defendant seeing it, I'll concede that we can step away from our table and stand in the aisle and you guys can sit at our table if that's what you want to do.

THE COURT:  Mr. Moore?

          MR. PORTER:  That way, there's -- we just step away.  You can sit there.

MR. MOORE:  Your Honor, the DA can put up whatever evidence he wants to.

THE COURT:  I'm not asking your consent.

MR. PORTER:  I understand I can put up any evidence I want.  What I'm --

THE COURT:  Well, I just wondered if there was any objection to the tape coming in at this point or the method we're going to do it before he gets to hooking it up.

MR. PORTER:  I'm just asking about the logistics of it in terms of dealing with where you sit.

THE COURT:  All right.  Now, this tape -- that's where it's got a two-minute clip all by itself.  We don't have anything before or after.  And that's the one that just shows her in the car and the exterior of the car.

MR. PORTER:  That's correct.

THE COURT:  Okay.  All right.  Anything --

MR. PORTER:  You can object to the evidence, but I'm asking you about the seating arrangements.

MR. MOORE:  I don't have any problem with the seating arrangements.

MR. PORTER:  All right.

THE COURT:  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MS. ROGAN:  I presume there will be a break before all this so that when Mr. Chapel gets moved over, there isn't, you know, six deputies on him in front of the jury.  That's a concern to me.

THE COURT:  Well, I hate to yo-yo them in and out.

MS. ROGAN:  Well, if the deputies would agree   to --

MR. PORTER:  Your Honor, I think we could bring Sergeant Parr over and instruct him and just say allow him to walk over and sit at the defense.  Get yourself ready.  It's during the testimony of Mary Ann White.

THE COURT:  Okay.

MR. PORTER:  They'll have plenty of warning.

MS. ROGAN:  Okay.  I mean, I just don't want there to be a big show of security concern because he's standing up and moving around.

THE COURT:  Okay.  All right.  Anything else,   Mr. Porter?

MR. PORTER:  No, sir.

          THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  All right.

[Bench conference concluded.]

THE COURT:  How long do you think we'll be,     Mr. Porter, until you bring that video in and need to set the equipment up?

MR. PORTER:  Your Honor, I have one brief witness and then it will begin with the testimony of the witness who will lay the foundation and identify the video.  It is in the first portion of her testimony, so I would suspect -- my first witness is brief, and I would say within thirty minutes of the commencement of that witness.

THE COURT:  All right.  If we're not at a point and we need to take a recess anyway, then what I'd like to do is just bring the equipment in if it can be expedited.  Bring it in, set it up, and play the tape and bring it out if the foundation's laid and it's admissible and all that.

MR. PORTER:  Your Honor, the equipment is here.  We'll wheel it out, plug it into the floor jack, and play it.

THE COURT:  All right.  For our officers in the courtroom, the district attorney's going to vacate that table and Mr. Chapel will just shift over to the district attorney's table during the course of the view without any massive movement of deputies.  All right.  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  Bring the jurors back in, please.

[The jurors were escorted to the courtroom.]

THE COURT:  Good morning, ladies and gentlemen. Everybody have a good day off?  Good.  Everybody find their pens, pads?

All right.  Mr. Porter, call your next witness, please.

MR. PORTER:  The state would call Eddie Ballew to the stand.

[The witness was called to the courtroom.]

THE COURT:  Mr. Ballew, if you'll take the stand, Mr. Porter will administer the oath.

[The witness stepped to the stand.]

MR. PORTER:  Could you raise your 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.

Whereupon,

     EDDIE BALLEW

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 and spell it for the record, please.

A.   Eddie Ballew, B-a-l-l-e-w.

Q.   Mr. Ballew, how are you employed?

A.   I'm an investigator with the Gwinnett County district attorney's office.

Q.   I'd like to call your attention to April 1993.  How were you employed during that month?

A.   Investigator with the district attorney's office.

Q.   And, specifically, in the early morning hours of April 23, were you requested in the course of your duties to come to the Gwinnett County police department?

A.   Yes, sir.

Q.   Could you describe how you were notified?

A.   By telephone.

Q.   And about what time of day or night was it?

A.   Somewhere around 1:15 a.m.

Q.   All right.  Prior to that, had you had any involvement into the investigation of the death of Emogene Thompson?

A.   No, sir.

Q.   Why did you go to the Gwinnett County police department?

A.   For security purposes.

Q.   All right.  Were you involved in the transport of the defendant, Michael Chapel, from the Gwinnett County police department to the Lilburn city jail on a temporary basis?

A.   Yes, sir.

Q.   And, in fact, is it your voice that's heard at the end of the videotape, you were described in the transcript as 'an officer enters'?

A.   Yes, sir, I think so.

Q.   How long did it take you to get from the Gwinnett County police department to the Lilburn city jail?

A.   I'd say probably no more than fifteen minutes.

Q.   And do you recall about what time of day or night it was when you were doing this transport?

A.   I'm going to say sometime after 2:30 a.m.

Q.   When you got to the jail, the Lilburn city jail, what did the defendant do?

A.   After we put him in the cell, he laid down on the bunk and went to sleep.

Q.   At any time during that time, did he wake up?

A.   Yes, sir, once.

Q.   And what happened then?

A.   He got a blanket, laid back down, and went to sleep again.

Q.   Did you remain awake during that time?

A.   Yes, sir.

Q.   Now, Investigator Ballew, did you work on Thursday, April 22?

A.   Yes, sir, I did.

Q.   Did you put in a full day?

A.   Yes, sir.

Q.   Were you awake when you got the call at two o'clock?

A.   No, sir, I wasn't.

Q.   How long had you been asleep?

A.   Probably an hour to an hour and a half.

Q.   Did you remain awake during the time that you had custody of the defendant?

A.   Yes, sir.

Q.   And what time did you deliver him to the Gwinnett county jail the next morning?

A.   I didn't take him back to the jail, sir.  I left the Lilburn police department probably about 8:30 in the morning.

Q.   Okay.  Thank you.

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

THE COURT:  Mr. Moore?

MR. MOORE:  Ms. Rogan's going to examine this witness, Your Honor.

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good morning, Mr. Ballew.

A.   Good morning.

Q.   You work for the district attorney's office; isn't that correct?

A.   Yes, ma'am.

Q.   Okay.  Are you a certified law enforcement officer?

A.   Yes, ma'am.

Q.   Do you have arrest powers?

A.   Yes, ma'am.

Q.   We listened to the tape and watched it on Friday and Saturday.  Are you familiar with the videotape of       Mr. Chapel's interrogation?

A.   No, ma'am, I'm not.

Q.   Well, at the very end, you've identified yourself as the person who comes in and actually puts handcuffs on       Mr. Chapel and takes him out of the room?

A.   I put the handcuffs on.  I haven't seen the tape, so I assume that I was on the tape.

Q.   Okay.  Are you the person who came in and put the handcuffs on him?

A.   Yes, ma'am.

Q.   Okay.  Now, that portion of the tape was blanked out in terms of the video but the audio was evident.  Did you have some trouble getting the handcuffs on Mr. Chapel in terms of getting them around his wrists?

A.   The size of his wrists, yes, ma'am.  I didn't want to pinch him when I was locking the handcuffs on.

Q.   And that's because he's an extremely large man, isn't he?

A.   He's a large man, yes, ma'am.

Q.   Okay.  He was very cooperative, though, in terms of allowing you to put the handcuffs on him?

A.   Yes, ma'am.

Q.   Okay.  How tall are you, Mr. Ballew?

A.   Five-ten.

Q.   You're not nearly as big as Mr. Chapel is?

A.   No, ma'am.

Q.   How large would you say Mr. Chapel is?

A.   Six-seven.

Q.   And he didn't -- and how much would you say he weighed at the time?

A.   290, probably.

Q.   Mr. Chapel didn't give you any trouble when you were transporting him to the jail, did he?

A.   No, ma'am.

Q.   Okay.  And, I believe, you were accompanied by Mr. -- is it Hinson?

A.   Yes, ma'am.

Q.   Okay.  And does he also work for the district attorney's office?

A.   Yes, ma'am.

Q.   Is he a certified law enforcement officer?

A.   Yes, ma'am.

Q.   Mr. Porter asked you on direct examination if you had worked a full day that day?

A.   Yes, ma'am.

Q.   What time did your day start, Mr. Ballew?

A.   My work hours or the time I got up in the morning?

Q.   Well, your work hours first.

A.   8:30 to five.

Q.   8:30 to five?

A.   Yes, ma'am.

Q.   Okay.  And then you had -- you indicated you had been asleep for some portion of the evening before you were awoken?

A.   Probably an hour to an hour and a half.

Q.   And you were summoned, then, in the early hours of the morning, Saturday, April 24 --

A.   Yes, ma'am.

Q.   -- to the police department?

A.   Yes, ma'am.

Q.   Okay.  You had not just undergone five hours of interrogation, had you, Mr. Ballew?

A.   No, ma'am.

Q.   Okay.  You indicated it was about 2:30 when you left with Mr. Chapel to go to the Lilburn city jail?

A.   Somewhere around 2:30.  I'm not really sure of the exact time.

Q.   Okay.  Is it possible that it was really more like 3:30?

A.   It could have been.  I'm not sure.

Q.   Okay.  I think you've said you didn't see the videotape?

A.   No, ma'am.

Q.   Okay.  If the videotape had a time frame on each time specified for each frame and it started at 10:30 a.m. and it ended about 3:15 a.m., does that seem to correspond with your memory of what the time frame was?

A.   I haven't seen the tape, ma'am.  I couldn't tell you what time it was.  I said it was somewhere around 2:30, I think.

Q.   It was in the early morning hours?

A.   Yes, ma'am.

Q.   Okay.  Are you aware at all, Mr. Ballew, of what Mr. Chapel's schedule had been that day?

A.   No, ma'am.

Q.   So you wouldn't know what time he got up that morning?

A.   No, ma'am.

Q.   And you don't know what time he started his shift?

A.   No, ma'am.

Q.   Okay.  Or what his duties were that day in terms of fulfilling his job as a police officer?

A.   From being an ex-police officer, I would assume that I know about what his duties during the day would be.

Q.   Okay.  And most police officers have an eight-hour shift of driving around, patrolling, and responding to calls --

A.   Yes, ma'am.

Q.   -- and protecting the public?

A.   Yes, ma'am.

Q.   And then you don't know at what point in his shift he was summoned to the police department for interrogation?

A.   No, ma'am.

Q.   But you are aware that he had been questioned for approximately five hours that night?

A.   I knew that he'd been questioned, but the exact amount of time, no, ma'am, I didn't know it was five hours.

Q.   And do you know whether or not that had come at the end of his eight-hour shift?

A.   No, ma'am, I don't know.

MS. ROGAN:  That's all my questions.  Thank you.

THE COURT:  Redirect?

MR. PORTER:  I have no redirect.  Your Honor, this witness is available and we would ask that he be put on call.

THE COURT:  All right.  You can come down.  Call your next witness, please.

THE WITNESS:  Thank you, sir.

[The witness stepped down from the stand.]

MR. PORTER:  Your Honor, Mr. Smeal is going to be handling the next portion of the state's case.  I have a matter that I must attend downstairs, if I could be excused.

THE COURT:  Yes, sir.

MR. SMEAL:  The state calls Mary Ann White.

[The witness was called to the courtroom.]

THE COURT:  Ms. White, if you'll take the stand and be seated, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

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

THE WITNESS:  I do.

Whereupon,

     MARY ANN WHITE

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

     DIRECT EXAMINATION

BY MR. SMEAL:

Q.   Please state your full name.

A.   Mary Ann White.

Q.   How are you employed, Ms. White?

A.   I'm a senior crime scene technician with Gwinnett County police department.

Q.   How long have you been so employed?

A.   I've been with the department for almost twenty years.  I've been in crime scenes for about fifteen.

Q.   What are your duties in the area of crime scene technician?

A.   Part of my duties involve going to crime scenes, usually with other technicians to assist them.  I supervise a shift, and we do photography, color lab work, fingerprints, and -- and crime scenes.

Q.   Okay.  Have you had training in that area?

A.   Yes, I have.

Q.   Would you briefly describe for the jury what your training has been in the area of crime scene technology?

A.   Well, in addition to the 196 hours that was required for me to be certified by the state of Georgia, I've attended other schools in crime scenes and fingerprints, including administrative latent fingerprint school at the FBI Academy in Quantico, Virginia, in 1984.  I also attended a forensic photography school also at the FBI Academy and a school regarding detecting blood at the crime scene at Valencia Junior College in Orlando, Florida.

Q.   How many crime scenes have you responded to during your career?

A.   Thousands.  I couldn't even give you a number.

Q.   Okay.  Have you collected and analyzed fingerprints during the course of your employment?

A.   Yes, I have.

Q.   On how many occasions?

A.   Again, I couldn't even give you an estimate, I mean, it would be in the thousands.

Q.   All right.  Are you familiar with the various techniques to examine -- to collect and examine fingerprints?

A.   Yes, I am.

Q.   Technician White, directing your attention to April 16, 1993, did you respond to the Gwinnco Muffler Shop on Peachtree Industrial Boulevard with respect to a reported homicide?

A.   Yes, I did.

Q.   Okay.  Do you recall what time you arrived there?

A.   I believe it was around 9:55 in the morning.

Q.   Okay.  And were there any other crime scene technicians there at that time?

A.   Yes.  Technician Judy Graham was with me.

Q.   Okay.  Did you go to the scene together?

A.   Yes, we did.

Q.   And what were your duties that morning?

A.   I was there to assist Technician Graham, and I videotaped the scene and assisted her in taking measurements of where the car was located.

Q.   Okay.  Would you describe generally the scene as you arrived?

A.   When we arrived, I observed a Lincoln Continental, brown, in the driveway of the muffler shop.  The left front tire was flat.  The driver's window was partly down.  The windshield wipers were not -- they were in an up position.  In the front seat, there was the body of a white female wearing a red, white, and blue wind suit, and she was slumped over towards her right.

Q.   Were there other officers already on the scene?

A.   Yes.

Q.   Had the car been secured at that point?

A.   Yes, it had.  It had been roped off with crime scene tape.

Q.   Okay.  Do you know who put the crime scene tape there?

A.   No, I don't.

Q.   Did you divide responsibilities with Technician Graham?  I believe you said you did some things, she did other things.

A.   That's right.  I did the videotape and she took 35 millimeter photos.  And the rest of the time, we pretty much worked together.

Q.   With respect to the video, had you operated that video machine before?

A.   Yes, I had.

Q.   Are you trained to operate that type of machine?

A.   Yes, I am.

Q.   What type of machine was it that day?

A.   It was an RCA camcorder.

Q.   Okay.  Is that RCA camcorder, or was it that day, capable of recording video images?

A.   Yes, it was.

Q.   Okay.  Did the machine appear to be operating correctly?

A.   Yes.

Q.   Technician White, I am handing you what's been previously marked for identification purposes as State's Exhibit 101.  Can you identify that item, that bag and the contents of that bag?

THE COURT:  Let me ask a moment.  I show 101 as having been previously used.  101 was the pawn agreement, I show.

MR. SMEAL:  Your Honor, I believe that the Court is correct.  I would ask that this be marked at this time as State's 102.

THE COURT:  All right.  Go ahead, please.

          [State's Exhibit Number 102 was marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Let's start over.  I'm handing you what's been marked as State's Exhibit 102.  Can you identify that item, please?

A.   Yes.  This is the videotape that I took that day.  I marked it with my initials and the date.

Q.   Okay.  Are those your initials that appear on this cassette?

A.   Yes.

Q.   With the date of 4/16/93?

A.   Yes.  And the victim's name.

Q.   Okay.  And the bag that item was in, is that also marked in your handwriting?

A.   No.  That's Judy Graham's handwriting.

Q.   It indicates that you recovered it, however?

A.   That's right.

Q.   Have you had a chance to review that videotape prior to today?

A.   Yes, I've watched it.

Q.   Okay.  And do the video images recorded on that tape fairly and accurately depict what you saw at the scene on the morning of April 16?

A.   Yes, they do.

Q.   All right.  Does the tape appear to have been altered or edited in any fashion?

A.   No.

MR. SMEAL:  Your Honor, at this time, we would move to admit State's 102 and would ask permission to show that videotape to the jury.  It is approximately two minutes in length.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I believe the state's laid a proper foundation for the tape.  We wouldn't object to it.

THE COURT:  I believe so.  It's admitted without objection.  Go ahead and set it up, please.

[Pause in proceedings during setup of equipment]

MR. MOORE:  Your Honor, with the Court's permission, the state has agreed to let us sit at their table where we can see it.

THE COURT:  Yes, sir.  Go ahead, please.  Can you see the screen, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

[Whereupon, the videotape was played.]

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

MR. SMEAL:  Thank you, Your Honor.

[Pause]

MR. MOORE:  I'm ready, Your Honor.  I was just asking if they'd keep that just in case the -- the witness didn't look at it.  In case she didn't remember anything and we need to show it again for her to refresh her memory.

THE COURT:  Well, I've been thinking about it myself, Mr. Moore.  If you want to use it on cross-examination, we'll set it back up and replay it again.

          MR. MOORE:  She's going to keep it outside.

THE COURT:  All right.  Yes, sir.

BY MR. SMEAL:

Q.   Technician White, was the victim's car moved that day?

A.   Yes, it was.

Q.   And where was it moved to?

A.   It was moved to the airport to a hangar where we could get it inside to process it.

Q.   Do you recall approximately what time it was moved?

A.   I don't remember exactly what time the wrecker got there.  I believe we arrived at the hangar at around 11:30.

Q.   All right.  Would you describe the condition, if you can, of the left front tire of that vehicle?

A.   Well, it was completely flat and it appeared to have a cut in it.

Q.   What was the purpose of moving the victim's car at that time?

A.   Well, it was -- it had been raining quite hard the night before and it was very windy out and we needed to get it indoors where we could process it for fingerprints.

Q.   And was it processed at that second location, the hangar?

A.   Yes, it was.

Q.   Okay.  What was done to the vehicle at that point?

A.   We processed the outside of the vehicle with black fingerprint powder and the inside was done with super glue fuming.

Q.   Describe that process for the jury, please.

A.   What we do is -- it's super glue that contains cyanoacrylate, and it's heated, and the vehicle is sealed up and we put it in a can on a light bulb and the fumes fume and it smokes and it leaves a white residue wherever there's fingerprints.

Q.   Was the tire removed at that time?

A.   Yes, it was.

Q.   Was that done in your presence?

A.   Yes, it was.

Q.   Was Judy Graham also present?

A.   Yes, she was.

Q.   What was done with the tire after its removal?

A.   Technician Graham and I loaded it into the crime scene vehicle so that we could take it to headquarters and secure it.

Q.   Okay.  And was it taken to headquarters?

A.   Yes, it was.

Q.   And was it secured?

A.   Yes, it was.

Q.   Where was it secured; do you recall?

A.   It was secured in rooms that we used to use as holding cells.  It was locked and sealed with evidence tape.

Q.   Were there any latent fingerprints recovered from the inside of the victim's vehicle?

A.   Yes, there were.

Q.   And have you examined those fingerprints?

A.   Yes, I have.

MR. SMEAL:  Your Honor, at this time, the state would be offering Technician White in the area of fingerprint collection and examination to offer an opinion as to whether the latent prints could be compared to any other prints.

THE COURT:  Okay.  Are you offering her as an expert?

MR. SMEAL:  In that area, yes, sir.

THE COURT:  Did you want to voir dire the witness, Mr. Moore?

MR. MOORE:  Your Honor, we'd allow the Court to make that determination.

THE COURT:  The Court finds her qualified.  Go ahead, please.

BY MR. SMEAL:

Q.   Did you collect the latent fingerprints that were recovered inside the vehicle?

A.   I collected three of them and Technician Graham collected one.

Q.   And where were they recovered from in terms of the interior of the car?

A.   Three of them were on the inside of the passenger door behind the driver's door, and the other one, I believe, was from the front passenger -- inside the front passenger door.

Q.   Okay.  And have you examined those latent fingerprints?

A.   Yes, I have.

Q.   If you could digress for a moment, Technician White, and explain to the jury what is necessary for there to be a comparison of latent fingerprints.

A.   The skin on the palms of your hands and the soles of your feet is different from what's on the rest of your body.  It has ridges.  And these ridges contain small sweat pores.  And when you touch an item, especially a smooth item, it leaves the impression, from the moisture of your hand, it leaves the impression of those ridges.  The ridges that run through your fingers are not continuous.  They're broken and sometimes they abruptly end or they -- one ridge may divide into two and then even go back together and make one ridge again.  Where they divide or where they abruptly end are called points.  And when you look at a fingerprint, I need a certain number of those points --

MR. MOORE:  Your Honor, we have an objection at this point.  Might we approach the bench?

THE COURT:  Yes, sir.

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

MR. MOORE:  Your Honor, we've got the same problem with this.  She's provided us with no information about any examinations she's done with these prints or anything.  If she's about to testify and give opinions about them, the DA's not provided us with any reports regarding what she's going to testify to either.

THE COURT:  Mr. Smeal?

MR. SMEAL:  Your Honor, first of all, the defense, I believe, was given an opportunity to examine those fingerprints.  And, second of all, she's going to basically be testifying that they were not usable prints, so there is no evidence linking these prints to anybody including the defendant.  It's not inculpatory information.  It's not exculpatory information.  It's just something that they were not able to be processed.  There was no written report as to that.  I believe the defense has been aware of that and they were allowed to examine the prints.  In fact, they had a fingerprint expert, I believe, examine them.

MR. MOORE:  Not these.  No, we had to -- the money is the one we examined.

MR. SMEAL:  I thought they did both.

THE COURT:  Have these prints been furnished?

MR. MOORE:  We had the prints, Your Honor.  We knew about them.

THE COURT:  These prints?

MR. MOORE:  When did we get a copy of these?

MS. ROGAN:  It was like on Thursday.

MR. MOORE:  Thursday of last week we received a copy of them.

MS. ROGAN:  All we got was a report that said that there were prints lifted but never tested.  That was the report.

          THE COURT:  Mr. Smeal?

MR. SMEAL:  Well, Your Honor, the state takes the position that they have been provided and they are    not --

THE COURT:  If they're provided, I think that's equivalent to a report itself.  Well, you say, okay, here's the prints, here's the whatever.

MR. MOORE:  Your Honor, they weren't provided --

THE COURT:  And that in itself may be tantamount to a report, but I guess we've got a ten -- you're saying they've got a ten-day problem no matter what.

MR. MOORE:  Yes, sir, Your Honor, they didn't provide them until after the trial had started, to the middle of the trial, and there's no reason in this case whatsoever for them not to provide them earlier if they intended to use them.

MR. SMEAL:  Your Honor, what she's testifying is that it wasn't -- they weren't able to do any testing at all, so there was not a test done.  No comparison was ever made.

THE COURT:  Okay.

MR. SMEAL:  It is the same type of testimony that a gun was recovered, but it was so rusty, we couldn't process the gun.

THE COURT:  Okay.  So her testimony is going to be saying they didn't get enough points to make a test.

MR. SMEAL:  A test.

MR. MOORE:  She's going to give her expert opinion, Your Honor, that there's not enough there to make a determination, and we weren't notified they were going to introduce scientific evidence of that nature.

MR. SMEAL:  It's not a scientific test, Your Honor.

THE COURT:  What does the rule say constitutes a scientific report?

MS. ROGAN:  I have the section of the statute --

THE COURT:  I don't have that section handy.  Do you have the Code?

MS. ROGAN:  It's not just a regular report.  It's testimony as well, I believe.

THE COURT:  Well, I understand it doesn't have to be in writing, but -- all right.  So what are you saying now, Mr. Moore?

MR. MOORE:  Your Honor, we were not provided any scientific reports or any indication the DA intended to use the report.

THE COURT:  I don't think that's a -- it seems to me that's a non-report.  It says we've looked at it and we could not evaluate it to make a determination and that's just what we did.

MR. MOORE:  Your Honor, that's her expert opinion -- I mean, evaluation, negative or positive.  You qualified her as an expert.  She could not testify if she wasn't an expert.

MR. SMEAL:  Your Honor, the expert opinion is not the same as whether a test was done.  Her expert opinion is that she looked at this and they couldn't do anything with it.  It's not a test.  It's not a report.

          THE COURT:  Okay.  So her testimony is just going to be 'we looked at it and we could draw no conclusions'?

MR. SMEAL:  Right.

MR. MOORE:  Your Honor, that's not what the report said.  The report says she drew the conclusion it was a child's fingerprints.

MR. SMEAL:  Well, she can be cross-examined on that --

MS. ROGAN:  The report just says that there was no test ever done.  There clearly was some examination done.

MR. MOORE:  Maybe they told us that when you asked about it that they said it was a child's fingerprints on it.

THE COURT:  I remember it being an issue.

MS. ROGAN:  That was testified to.

THE COURT:  Was there ever any conclusions?

MR. SMEAL:  No, Your Honor.

THE COURT:  Well, what was it about the child's fingerprints?  I remember that.

MR. SMEAL:  Judy Graham testified that she believed that the prints were small and may have been a child's fingerprints.

MR. DAVIS:  Which is not a scientific test.

MR. SMEAL:  Which is not a scientific test or conclusion.  That's just an observation of some physical evidence.

MR. MOORE:  When an expert wants to give their opinions, they cannot be --

THE COURT:  Well, does that say every observation by an expert is a report?

MR. MOORE:  Your Honor, if the state wants to use -- from our position, they have to put us on notice if they want to use their experts.

MR. SMEAL:  Your Honor, it's equivalent to someone picking up the rusty gun and saying it was so rusty we could not process it --

MR. MOORE:  That was not an expert.  That was not an expert.

THE COURT:  Yeah, well, even so, if you have an expert that says, well, we don't have any conclusions, you know, we didn't have enough evidence to decide, is that a scientific report?

MR. MOORE:  Our position is that it is, Your Honor.  Whether it's negative or positive, it is.

THE COURT:  I don't think it is.  I don't think it is.  If that's her testimony, if she's going to testify they looked at them and they couldn't draw any -- they didn't have enough material to work with to identify the fingerprints, I'll allow it.  I don't think that's objectionable, Mr. Moore.  Objection's overruled.  Go ahead, please.

[Bench conference concluded.]

THE COURT:  Just a moment, Mr. Smeal.  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, I believe when we stopped, you were explaining how a certain number of points are necessary on a latent fingerprint in order to do a comparison; is that correct?

A.   That's right.  I personally prefer at least eight points and --

Q.   And with respect to the latent fingerprints that were recovered from the interior of Emogene Thompson's car, were there enough points present to make a fingerprint comparison?

A.   No, there weren't.

MR. SMEAL:  Your Honor, I would ask that this item be marked as the next state's exhibit.  I believe that's 103.

[State's Exhibit Number 103 was marked for identification by the court reporter.]

THE COURT:  Is the bag being marked as a separate exhibit or is this all together one exhibit?

          MR. SMEAL:  It's all together, Your Honor.

THE COURT:  Okay.

MR. SMEAL:  There are contents in the bag.

BY MR. SMEAL:

Q.   Technician White, were there any projectiles recovered from the vehicle at the hangar that day?

A.   Yes, there was one.

Q.   Okay.  And who recovered that?

A.   I did.

Q.   Who found the item; do you recall?

A.   I believe Technician Graham found it.

Q.   And where was that located inside the vehicle?

A.   It was on the passenger floorboard in the front.

Q.   I'm handing you what's been marked as State's Exhibit 103 and would ask you if you can identify this item and the contents therein.

A.   Yes.  This is the projectile that I recovered on the -- 4/16.

Q.   Was that --

THE COURT:  Mr. Smeal, why don't you mark that or its container as a separate exhibit so that if it's examined, passed around, or whatever, if it gets lost out of the bag, we'll all going to wonder where it goes.

MR. SMEAL:  Yes, sir.

MS. ROGAN:  We'd appreciate the opportunity to see those.

THE COURT:  All right.  Show it to defense counsel, please.

MR. SMEAL:  Your Honor, I'd ask the record to reflect that State's Exhibit 103 was a paper bag.  I would ask at this time that a second paper bag contained therein be marked as State's Exhibit 104, that a plastic bag contained therein be marked as State's Exhibit 105, and that a canister containing a projectile be identified as State's 106.

[State's Exhibit Numbers 104, 105, and 106 were marked for identification by the court reporter.]

THE COURT:  All right.  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, once again, I'm handing you what's been marked now as State's Exhibit 106.  Can you identify that item?

A.   Yes.  This is the projectile that I recovered on 4/16/93.

Q.   That appears to be contained in some type of small, plastic container; is that correct?

A.   Yes.  Right.

Q.   And can you identify State's Exhibit 105?

A.   This is a plastic evidence bag.  It has my handwriting on it and this is what I had put the canister down in prior to transporting it to the crime lab.

Q.   All right.  When did you transport that item to the crime lab, ma'am?

A.   I took it down there on 4/19/93.

Q.   And between the recovery date of 4/16/93 and the time you transported it to the crime lab on 4/19/93, where was that item kept, if you know?

A.   It was locked and sealed in a -- in one of our holding cells.

Q.   Was that a holding cell that the crime scene technician unit utilizes?

A.   Yes.  There's six of them.

Q.   And did you yourself transport that item to the crime lab?

A.   Yes, I did.

Q.   And do you recall who you turned that item over to at the crime lab?

A.   I gave it to Kelly Fite.

Q.   During the time that projectile was in your custody and control, did you do anything to it to alter its condition?

A.   No, I didn't.

Q.   Directing your attention to 4/20/93, 1993, did you again have occasion to examine the victim, Emogene Thompson's, vehicle?

A.   Yes, I did.

Q.   What was the purpose of that examination?

A.   We needed -- we were looking for another projectile.

Q.   Had you discussed the case with the lead investigator, Jack Burnette, at that time?

A.   Yes, I had.

Q.   And did he instruct you to look for a second projectile?

A.   Yes, he did.

MR. SMEAL:  Your Honor, at this time, I would ask that a brown paper bag be marked as the next state's exhibit, that's 107, that a second paper bag be marked as State's 108, that a third brown paper bag with writing on it be marked as State's 109, and that a container, plastic container, be marked as State's 110.

[State's Exhibit Numbers 107, 108, 109, and 110 were marked for identification by the court reporter.]

THE COURT:  All right.  Has defense counsel seen them?

[Mr. Smeal presenting]

BY MR. SMEAL:

Q.   Technician White, I'm handing you what's been previously marked for identification purposes as State's Exhibit 110.  Can you identify that item, please?

A.   Yes.  This is the projectile that I recovered from Ms. Thompson's vehicle on 4/20/93.

Q.   Okay.  Does it have your writing on it?

A.   Yes, it does.

Q.   And is that projectile also contained within a small plastic container?

A.   Yes, it is.

Q.   I'm showing you what's been marked as State's 109.  Can you identify that item, please?

A.   Yes.  This is the paper bag that I put the canister in, and this is my handwriting.

Q.   Where was that item found, ma'am?

A.   It was found underneath the front passenger seat.  I actually had to remove the seat in order to find it.

Q.   How did you remove the seat?

A.   I used ratchets and undid all the bolts and things and we pulled it out.  When I flipped it over -- the seat has a small lip on the front, and when I flipped it over, the projectile was laying there.

Q.   And you recovered that item at that time?

A.   Yes, I did.

Q.   And what did you do with it?

A.   I took it up to the crime scene unit, bagged it, and took it to the property room.

Q.   During the time that item, that projectile, was in your possession, did you do anything to alter its condition?

A.   No, I didn't.

Q.   Directing your attention, ma'am, to April 29, 1993, did you have an occasion to examine a Gwinnett County police vehicle, Number 197?

A.   Yes, I did.

Q.   I'm showing you what's been previously marked and admitted as State's Exhibit 75.  Can you identify that photograph?

A.   This is a photograph of Gwinnett County Unit 197.  I took this photograph myself.

Q.   What was the purpose in examining police vehicle 197 that day?

A.   We were asked to do some presumptive blood tests and to look for a car wash receipt.

Q.   And where was that vehicle when you first saw it on April 29?

A.   It was parked out at the side of the building in the detective division parking lot.

Q.   And do you know whether or not it was locked at that time?

A.   It was locked.

Q.   And did someone have to obtain a set of keys to open the vehicle?

A.   Yes.

Q.   And who did that?  Was it yourself or someone else?

A.   No, it was someone else.

Q.   Who was it?

A.   Technician Nancy Jenkins.

Q.   Okay.  Were you present when she obtained the keys and opened the vehicle?

A.   I was present when she opened the vehicle, but not when she obtained the keys.

Q.   And after the vehicle was opened, what happened next?

A.   Well, we just did a brief search looking for the car wash receipt.

Q.   And was that found?

A.   No, it wasn't.

Q.   Was anything found at that time?

A.   I found a note on a yellow piece of paper from Sergeant Winderweedle to Officer Chapel asking him to call Emogene Thompson.

Q.   Ma'am, I'm handing you what's been -- previously been marked as State's Exhibit 74.  Can you identify that item?

A.   Yes.  This is the note that I found that afternoon.

THE COURT:  What Exhibit Number is that?

MR. SMEAL:  74, Your Honor.  I believe it's been previously been marked and identified.

BY MR. SMEAL:

Q.   And where was that note found in the car, ma'am?

A.   It was in the pursuit pack, which is a forms holder that fits over the front seat.  It has hooks that hook over the seat and it was found in one of the bottom compartments.

Q.   All right.  Did you find that item?

A.   Yes, we did.

Q.   Does that item today appear to be in the same condition that it was on the 29th of April 1993?

A.   Yes, it does.

MR. SMEAL:  I don't believe that item has been previously been admitted, Your Honor.  At this time, we would move to admit State's 74.

THE COURT:  I show it as being identified, but not admitted or offered.  Any -- are you offering it at this time?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  Any objection?

MR. MOORE:  No objection, Your Honor.

THE COURT:  State's 74 is admitted without objection.  Go ahead, please.

          MR. SMEAL:  Your Honor, I would ask permission to publish this to the jury.  It's just a single item.  I don't think it would take long and I'll continue my questions.

THE COURT:  Any objection, Mr. Moore?

MR. MOORE:  Your Honor, as long as we don't slow the trial down and we have the same rules for everybody.

THE COURT:  All right.  Go ahead, please.

[Mr. Smeal presenting to the jury]

BY MR. SMEAL:

Q.   Technician White, what was done next with respect to the vehicle?

A.   Technician Jenkins pulled the vehicle around to our old -- it was an ambulance shop at that time and secured it inside, and I went home because the presumptive test that we were going to do has to be done in total darkness.

Q.   All right.  What time of day was it when you found the note and when Ms. Jenkins moved the car around?  Do you recall approximately what time of day it was?

A.   Yes.  I found the note a little after five p.m. and about 5:30, Technician Jenkins pulled the car around back.

Q.   And you've indicated that you left at that time and came back later that day?

A.   That's correct.

Q.   Approximately what time did you return to that scene?

A.   We went back down to the ambulance shop around 19:50 hours, which is 7:50 p.m.

Q.   And describe what you saw when you returned?

A.   This vehicle was pulled inside.  We unlocked the door to the shop, went in, and unlocked the vehicle.

Q.   Who had the keys at that time?

A.   Technician Jenkins.

Q.   She was with you?

A.   Yes, she was.

Q.   Were there any other persons present at that time?

A.   No.

Q.   Did you find anything else inside the vehicle at that time?

A.   There was a large number of personal items which we removed after I photographed -- well, I photographed the vehicle and we removed the items.

Q.   Okay.  Just generally, what type of items were removed at that time?  Were there any papers that were in those items?

A.   Yes, there were.  Yes.

Q.   All right.  What did you do with respect to those items?

A.   All of the blank forms were separated out.  Anything that had any writing on it was put together and put it into a bag.

Q.   And what was done with that bag?

A.   Later that evening it was secured up in the -- in a holding cell and then later put in the property room.

Q.   Did you inventory those papers and items at that time?

A.   I didn't individually inventory the papers.

Q.   What happened next with respect to the vehicle, ma'am?

A.   After I photographed it, I began mixing Luminol, which is a presumptive blood test.  It needs to mix for a little while.  And after we mixed it, we turned out the lights and I began spraying the inside of the patrol car.  And as soon as I had something glowing, we stopped, and Ms. Jenkins got her -- got the camera set up so that we could photograph what we were seeing.

Q.   Okay.  If we could digress for just a minute.  Would you explain to the members of the jury what Luminol is and what it is used for in the crime scene context?

A.   Luminol is a presumptive blood test.  It glows in the dark in the presence of blood.  It's fairly sensitive in that it will react with one part blood to one million parts or up to a million parts of another substance.

Q.   Okay.  And is that a liquid?

A.   Yes, it is.  It's mixed with distilled water.

Q.   And you mixed the item that day?

A.   Yes, I did.

Q.   And where was it applied inside the vehicle?

A.   In the -- in the front seat of the patrol car.

Q.   And did you do that?

A.   Yes, I did.

Q.   How did you do it?

A.   I sprayed it on with a spray bottle.

Q.   And at that point were the lights on or off?

A.   They were off.

Q.   Was it -- describe the darkness.  Was it totally dark at that time?

A.   Yes, it was.

Q.   And where was Technician Jenkins at that time?

A.   She had the camera on a tripod in the passenger door of the patrol car and I was spraying from the driver's door.

[Presenting pictures to the defense]

MR. SMEAL:  Your Honor, I'd ask that this photograph be marked as the state's next exhibit.  That would be Number 111.

[State's Exhibit Number 111 was marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Ma'am, I'm handing you what's been marked as State's Exhibit 111.  Can you identify that photograph?

A.   Yes.  This is a photograph that Technician Jenkins took that night and it shows the glowing pattern of the Luminol spray.

Q.   Okay.  Does that fairly and accurately depict the interior of the car, specifically that car seat area as you saw it that night?

A.   Yes.

Q.   Okay.

MR. SMEAL:  Your Honor, at this time, we would move to admit State's 111.

THE COURT:  Any objection, Mr. Moore?

MR. MOORE:  Which was that, 111?  I mean, what was that?

THE COURT:  That was the photo of the Luminol test, I believe.

MR. SMEAL:  That was the Luminol inside the car.  I'll show you.

MR. MOORE:  We'd have no objection.

THE COURT:  May I see it, Mr. Smeal?

[Presenting to the Court]

          THE COURT:  State's 111 is admitted without objection.  What was the date that was taken?

MR. SMEAL:  April 29.

THE WITNESS:  4/29.  That's correct.

MR. SMEAL:  Your Honor, I would ask permission to have Technician White come down before the jury and just explain the photograph.

THE COURT:  Go ahead, please.

[The witness stepped to the jury box.]

BY MR. SMEAL:

Q.   Technician White, let me hold the photograph and if you could explain what is depicted on this photograph.  First of all, what was the position of the camera when this photograph was taken?

A.   Okay.  If this were the patrol car, this would be the passenger front door and Technician Jenkins had set the camera up here.  I was on the other side, from the driver's door, spraying inside the car.  And she was holding -- I was trying to hold the light shut-off with my foot and she was holding it on this side with her foot.

Q.   So the camera was located at the passenger door area?

A.   Right.

Q.   And please continue, and try, if you can, to explain what this photograph depicts.

A.   It's very faint, but this is the armrest.  It has a double armrest that comes down.

Q.   You need to back up so those jurors there can see as well.

A.   I'm sorry.  All right.  It has double armrests, one for the passenger's side and one for the driver's side.  And they were down and this is what's glowing.  And there's a little bit glowing right here on the back of the passenger's seat, just on the edge of it.

Q.   All right.  There appears to be another area glowing off to the edge of this photograph.  Can you explain that if you can?

A.   We're not sure what that is.  Luminol does react occasionally to metals and there was something metal in there, but I don't recall having sprayed over that far, but we don't really know what that is.

Q.   Please be seated.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   Technician White, as a result of that Luminol test, what was done next?

A.   Next, I did another presumptive blood test called phenolphthalein.  It's done as a three-step test.  I don't have to touch the article with the chemicals.  I used a piece of filter paper, you fold it, and just wipe it across where I had seen the glowing, and then you put one drop of alcohol, one drop of phenolphthalein, and one drop of hydrogen peroxide.  If it turns to a pink color within about three to five seconds, that's considered positive for blood.

Q.   Does that test for species of blood or any type of blood?

A.   Any type.

Q.   And did it, in fact, turn pink?

A.   Yes, it did.

Q.   What did you do next?

A.   Next, I removed the passenger's seat with the armrest attached.  I removed the armrest from the driver's side seat, and we loaded them up -- we had pulled a vehicle down and loaded them up into a crime scene vehicle to be transported up to the ID section.

Q.   Okay.  And was the car seat and armrest, in fact, transported --

A.   Yes.

Q.   -- to ID?

A.   Yes, and secured in a holding cell.

Q.   Okay.  Were they secured in the same holding cell that you've previously described?

A.   Yes.

Q.   All right.  At any time when the car seat and armrest were in your possession and control, did you do anything to alter the condition of those apart from the two tests that you've described, the Luminol test and the phenolphthalein?

A.   No.

MR. SMEAL:  Your Honor, I would ask that these photographs be identified as the state's next exhibits.

[State's exhibits were marked for identification by the court reporter.]

THE COURT:  Mr. Moore, have you seen them?

MR. SMEAL:  Yes, sir.

MR. MOORE:  Yes, Your Honor.

THE COURT:  Okay.  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, I'm showing you what's been marked as State's Exhibit 112.  Can you identify that photograph?

A.   This is a photograph of the front seat of Officer Chapel's car, Unit 197.  It was taken after I had removed the pursuit pack and personal items, but before we did any testing.

Q.   I'm showing you -- does that photograph, 112, fairly and accurately depict that scene as you saw it on   April 29?

A.   Yes, it does.

Q.   I'm showing you what's been marked as State's Exhibit 113.  Can you identify that photograph, please?

A.   This is a photograph of the passenger's seat after I had removed it, and this was taken the next day on 4/30.  This is after the application of the Luminol.

Q.   Does that fairly and accurately depict how that car seat appeared on that day?

A.   Yes, it does.

Q.   I'm showing you what's been marked as State's Exhibit 114.  Can you identify that item?

A.   This is also a photograph of that same passenger's seat with the armrest attached taken up in the ID lab on 4/30.

Q.   Does that fairly and accurately depict how that car seat appeared on 4/30/93?

A.   Yes, it does.

Q.   I'm showing you what's been marked as State's Exhibit 115.  Can you identify that photograph, please?

A.   This is a close-up of the armrest with the -- it was also taken the very next day, on 4/30, up in the ID lab.

Q.   Does that fairly and accurately depict how that section of the armrest appeared on 4/30/93?

A.   Yes, it does.

MR. SMEAL:  Your Honor, there are several items here that I would ask to have marked at this time.

THE COURT:  Go ahead, please.

[State's exhibits were marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Technician White, if you could please come down from the stand.

A.   [Witness complies]

Q.   I'm showing you what's been marked as State's Exhibit 116.  Can you identify that item?

A.   Yes.  This is the car seat, passenger's side seat, with the armrest that I removed from Unit 197.

Q.   Is that the seat that you removed on April 29, 1993?

A.   That's correct.

Q.   Is that the car seat that you did the Luminol test on?

A.   Yes, it is.

Q.   Is that in the same condition today as it was back on April 29, 1993, and I would direct your attention specifically to the left armrest of that seat?

A.   No.  There's been some cuttings taken out of it.

Q.   Were those cuttings present when you examined the seat on April 29, 1993?

A.   No.

Q.   Okay.  Apart from those cuttings, is the seat in the same condition that you saw it that day?

A.   It appears to be.

THE COURT:  Let me ask, when you say passenger's side car seat, that's the seat -- the front seat where the passenger would be sitting in the vehicle if you had a passenger --

THE WITNESS:  That's right.

THE COURT:  -- as opposed to the driver's --

THE WITNESS:  Yeah.  It had a split seat.

THE COURT:  Okay.  Thank you.  Go ahead, please.

BY MR. SMEAL:

Q.   I'm showing you what's been marked as State's Exhibit 119.  Can you identify that item?

A.   This is the armrest from the driver's side.

THE COURT:  What number is that, Mr. Smeal?

MR. SMEAL:  That is 119, Your Honor.

THE COURT:  Thank you.

BY MR. SMEAL:

Q.   Is that -- is that in the same condition it was at the time you removed it on April 29, 1993?

A.   It appears to be, yes.

Q.   I'm handing you what's been marked as State's Exhibit 120.  Can you identify that item, please?

A.   This is the bag that I had put the armrest in.  This has my handwriting on it.

Q.   Is that the bag that you secured that item in that day?

A.   Yes.

Q.   There are two other items, ma'am, and I don't believe you'll be able to identify them.  Can you identify State's Exhibit 117?

A.   No.  I'm sorry.

Q.   Okay.  And can you identify State's Exhibit 118?

A.   No.

Q.   What was the seat wrapped in that day?

A.   I wrapped it in brown kraft paper, like the white paper except it was brown.

Q.   And where was that item secured?

A.   When we got done that night, I secured it in a holding cell, and on the 30th I took it out, we photographed and wrapped it, and took it to the property room.

Q.   Ma'am, with respect to the photograph that you've previously identified as State's Exhibit 111, in which you described the glowing Luminol on the car seat, what area of the car seat would that depict?

A.   It's this area right in here.

Q.   Okay.  You can be seated.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   Did you have any further contact with respect to this car seat?  Did you do anything other than what you've described to that car seat after April 29, 1993?

A.   No, except to take it to the property room on the 30th.

Q.   And the photographs that you have described were taken the following day on April 30?

A.   That's correct.

MR. SMEAL:  Your Honor, I would ask that this be marked as the state's next exhibit and if we could mark them A, B, C, and D.

[State's exhibits were marked for identification by the court reporter.]

THE COURT:  This is 117; is that correct?

MR. SMEAL:  Your Honor, this is 121A, B, C, and D.

THE COURT:  Oh.  Okay.  Thank you.

MR. MOORE:  Your Honor, may we approach for a moment?

          THE COURT:  Yes, sir.

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

MR. MOORE:  Your Honor, Mr. Smeal's about to offer more expert testimony regarding fingerprints that we were not provided any reports, that they were going to introduce that prior to trial.  We have not gone into it, we have not cross-examined about it or anything, and we would object to any expert testimony regarding the fingerprints on these bills.

          MR. SMEAL:  Your Honor, we're in the same position with the bills as we are with respect to the latents.  These bills were first discovered, I believe, on July 28.  They were examined by this witness and she was not able to do any test on them because there are no latent fingerprints on the bills.  Counsel was present, actually, when the bills were discovered that day or a few minutes after they were discovered.  They were shown these bills.  I believe they had an expert examine the bills prior to today, so our position is that we are not offering any report or scientific report.  It's simply an opinion that it could not be processed for fingerprints.

THE COURT:  Okay.  What is she going to say?

MR. SMEAL:  She's going to say that she examined these dollar bills and there were no latent fingerprints present so no tests could be done.

THE COURT:  Okay.  She checked them for prints and found none.

MR. SMEAL:  Yes.  That's right.

THE COURT:  And your objection is that's a  report --

MR. MOORE:  Our objection is the same, that whether it's negative or positive the state can't go into it.  We may decide to go into it, but they can't go into it, and they didn't provide us with a report.

THE COURT:  Was a test done and was a formal, official test done and whatever process and they looked for prints?

MR. SMEAL:  They looked for prints and couldn't find any.  So, therefore, no comparison was done.  Your Honor, I would reiterate, once again, this item first arose on July 28, 1995, at the police station when the evidence had been laid out for the defense to view.

THE COURT:  When was the test done?

MR. SMEAL:  That same day.  It was examined the same day and they determined no prints could be obtained.  And we made this available immediately to the defense expert.

THE COURT:  Well, I guess what comes to mind is an analogy.  For example, you do a blood test for drugs, and, for example, it comes back clean, no this, no that.  Is that a scientific report that can be offered without the ten-day notice?  It seems to me to similar kind of circumstance and I'm not so sure.

MR. SMEAL:  Well, Your Honor, it's more analogous to someone looking at some blood and saying we can't test it, there's nothing to compare, there's nothing   to --

MR. MOORE:  Your Honor, it's not when an expert gives their expert opinion about it.  That's different than a lay person looking at it.

THE COURT:  Well, or perhaps even an expert.  You know, it seems to me if you've got somebody looking at a crime scene and they say, well, you know, I was looking at the marks on the door, I was looking at the blood droppings or I was looking at this and looking at this, and this is my observations.  You know, it seems to me that whether it is or it isn't something to be determined from that -- that that, you know, that that would strike me as not being a report as opposed to  circumstances, well, let's take this to the lab and let's do this kind of procedure and do this kind of evaluation to see what kind of results we'll get here.

MR. MOORE:  Your Honor, she didn't just look at these.  They put them in some kind of material and soaked them.

THE COURT:  Well, that's the point I'm making.  That's the point I'm making.

MR. SMEAL:  Your Honor, the day this item was discovered, I believe there was a conversation between Mr. Moore and Mr. Porter, in which Mr. Moore indicated that if there were any latent prints discovered, that would have to be -- that he should be told about it immediately.  Your Honor, I believe it was examined and no prints were recovered.

THE COURT:  So how does that comply?  Is there a written report?

MR. SMEAL:  No, Your Honor.

THE COURT:  If there is an evaluation, there is no written report and the defendant is notified, look, we examined it, we looked for fingerprints, and there are none, is that a notice sufficient to comply with the rule?

MS. ROGAN:  We got notice Tuesday morning,    August 1.  The jury started August 4.

THE COURT:  That's the first time you were aware of any check for fingerprints?

MS. ROGAN:  That's the first time we had the results.  We learned of the check on the 28th.

          MR. SMEAL:  They knew they were being checked the day they were found.

THE COURT:  Okay.  But the defendant was notified when as to there being no prints?

MS. ROGAN:  Tuesday morning.

THE COURT:  And that was on what day?

          MS. ROGAN:  August 1.

THE COURT:  And we started the trial when?

MS. ROGAN:  August 4.

THE COURT:  August --

MR. DAVIS:  We started jury selection on the 6th or so.

MS. ROGAN:  No, it was the 4th.  That was the day that we began in court.

THE COURT:  Well, I guess that's another issue is when is the trial in this case.  Issue wasn't joined until later on when we were striking the jury, everybody stipulate that we don't have -- issue is not joined at this point, we were going to see if we can get a jury, and if we can't, then we've got a venue problem; if we can, then we join issue and proceed on.  When is the trial in this case?

MS. ROGAN:  We invoked the rule of sequestration as of the 4th.

THE COURT:  I don't think the rule of sequestration is connected with anything.

MR. DAVIS:  We invoked the rule of sequestration for all sorts of evidentiary hearings going back a year.

MR. SMEAL:  Your Honor, I would just reiterate that obviously the ten-day rule could not have been complied with, assuming that we had a scientific report here.  The very day the evidence was discovered they were on notice that they were being checked for latents.

THE COURT:  Okay.  All right.  Notice was given when?

MR. MOORE:  They gave us notice on August 1.

THE COURT:  Okay.  And when was issue joined in this case?

MR. DAVIS:  One week ago today, I think.

THE COURT:  The 21st?

MS. ROGAN:  Yes.

MR. SMEAL:  So that's a twenty-day period, and I would reiterate that their expert has examined this item.

MR. MOORE:  Your Honor, we contend the trial began when we started selecting a jury, because we were in court every day from that time on, and I don't   think --

THE COURT:  Well, I understand, but -- I don't know.  It's an interesting legal question.

MR. MOORE:  Part of the ten-day rule is to give time to examine into whatever needs to be done, and if you say the trial doesn't start until you're halfway through it because jury selection was half of it, then that doesn't -- I don't think that was the intent of the rule, and everybody agreed that the reason the issue wasn't being joined, the only reason, was in case we couldn't get a jury.

MR. SMEAL:  Your Honor --

THE COURT:  But the issue being we may have a trial and we may not.  If we can get a jury, then we're going to have a trial.  If we can't get a jury because of the publicity, then we don't have a trial, and we're going to have to go somewhere else.

MR. MOORE:  Well, Your Honor, we did not intentionally waive any right that we may have had by trying to --

THE COURT:  Oh, I understand that, but, you know, I think the question is when -- legally when does the ten days operate in this case?

MR. SMEAL:  Your Honor, it's always discretionary with the Court to deal with newly-found evidence with respect to which the ten-day rule cannot be complied with.  The state would submit that the exercise of that that discretion should at least in part find no prejudice to the defendant.

THE COURT:  Okay.  But you knew on -- the state knew on the 1st; right?  The state knew on the 28th.

MR. SMEAL:  Some time between the 28th and the 1st, I believe we were informed of the results.

THE COURT:  Okay.  And the defendant was notified on the 1st.

MR. MOORE:  On the 1st, Your Honor.

THE COURT:  Objection's overruled.  Go ahead.

[Bench conference concluded.]

THE COURT:  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, I'm handing you what's been marked as State's Exhibit 121A, B, C, and D.  Can you identify those items?

A.   Yes.  These are four one hundred dollar bills, and I received these from Sergeant Lee on July 28 of this year and was asked to process them in an attempt to obtain fingerprints.

Q.   And prior to processing those items and, I'm not asking you to testify to what anyone told you, but did you consult with other agencies prior to examining those bills?

A.   Yes, I did.

Q.   Which agencies did you consult with?

A.   I called the Georgia State crime lab and the FBI.

Q.   And did you process those items in an attempt to see whether there were any latent fingerprints present?

A.   Yes, I did.

Q.   And how did you do that?

A.   In the first process that I used is called DFO and it -- it's used with -- it's a chemical process, first of all, and it reacts with an amino acid that's left behind in perspiration.  After I had used the DFO on them, we looked at them under the luma light which is an alternate light source.  I used two different lenses.  The 470 nanometer lens and the 570 nanometer lens to see if any fingerprints would fluoresce and none did.

The next process that I used is called ninhydrin, and it also reacts with amino acids.  It -- the prints would come up and turn purple, but you don't have -- you can see it in just regular room light.  And I processed it with that and steamed the bills because moisture helps, helps bring up the prints, and got nothing.  So I then hung them in my locker for the weekend because occasionally with ninhydrin, especially, you'll find the prints will come up a day or two later.  And by Monday morning, I still had nothing.  So I used one last chemical process called physical developer, and it reacts with the salts in the perspiration, and I still got nothing.

Q.   And do you recall what date you completed that initial examination of those bills?

A.   It would have been July the 31st of this year.

Q.   Did those items, State's Exhibit 121A, B, C, and D, do those appear to be in the same condition today as when you examined them on July 28 through July 31?

A.   Yes, they do.

MR. SMEAL:  Your Honor, I don't believe I have any further questions at this time.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, cross-examination may be a while.  Can we take a short break?  Ms. Rogan's --

THE COURT:  We'll take a recess.  We're due for one.  Let's take fifteen minutes.  If the jurors want to get something to drink, make that available.  We'll take fifteen minutes.  If you'll leave your pens, pads, and notes in your seats, they'll be waiting on you when you return.

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

THE COURT:  You can come down, please.

[The witness stepped down.]

THE COURT:  Anything else at this point,        Mr. Smeal?

MR. SMEAL:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  We'll take fifteen minutes.

[Break taken]

THE COURT:  Is the state ready?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  Is the defendant ready?

MR. MOORE:  Yes, Your Honor.

          THE COURT:  Bring the jury back, please.

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

THE COURT:  Mr. Smeal?

MR. SMEAL:  I believe Mr. Moore --

THE COURT:  All right.  Mr. Moore, go ahead, please.

MR. MOORE:  I believe he's finished his direct examination, Your Honor.

THE COURT:  All right, sir.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Officer White, my name is Johnny Moore.  I have a few questions I'd like to ask you.  Maybe I shouldn't say officer.  Are you a sworn law enforcement officer?

A.   No, I'm not.

Q.   Okay.  Technician White, then, I'm sorry.  Now, you've participated in the securing the crime scene and searching the area where the crime occurred?

A.   I went to the crime scene that morning.  The vehicle was already secured.

Q.   And was it your understanding when you arrived, that when you and Ms. Graham arrived, that nobody had bothered anything, had left it the way they found it?

A.   That was my understanding.

Q.   That's what they're supposed to do, isn't it?  They're supposed to wait until you get there, the evidence technicians, before they move anything or change anything?

A.   Well, unless there's some chance that the person may still be alive.  I mean, of course, they would allow the EMT's in.

Q.   Oh, of course, yeah.  I mean, you couldn't -- other than that, they're supposed to leave the crime scene intact until the technicians get there; is that correct?

A.   That's correct.

Q.   So that you can gather any evidence that might be for future use?

A.   Correct.

Q.   Okay.  Now, there was some crime scene tape around the vehicle there that appeared to be around the tires and around -- was that what was considered the crime scene area?

A.   Yes, sir.

Q.   Okay.  And was anything outside of that outside of the crime scene area?

A.   Yes.  That's correct.

Q.   Okay.  Now, was the area, surrounding area there, the grass, the trees, in the background there where you could see them and everything, was any of that area searched?

A.   Not while I was there.

Q.   Okay.  Did you or Technician Graham search that area for any weapons or any pocketbook or anything like that?

A.   No, we didn't.

Q.   Do you know if anybody else did?

A.   I don't know.

Q.   Okay.  Would that normally be something that you would do as technicians if it was done?

A.   Occasionally.  If it's a large area, usually they get a group together to do the searching.

Q.   Okay.  And did you see any group up there searching this area?

A.   No.

Q.   Now, the video that you shot, when was that taken, at what point in time?

A.   That morning when we arrived on the scene.

Q.   Okay.  Was that before you started collecting your evidence or was that afterwards?

A.   It was before.

Q.   So that was taken before you disturbed anything?

A.   Correct.

Q.   Okay.  Now, looking at the video, it appeared to me that the keys, there was a set of keys lying on the floorboard, somebody -- were you taking the video?

A.   Yes, I did.

Q.   Okay.  You zeroed in on those right toward the end there, some keys; do you recall that?

A.   No, I don't.

Q.   And it appeared that the ignition, the keys were not in the ignition; do you recall that?

A.   No, I don't.

Q.   Now, there are various switches and things on the vehicle.  Do you remember the position of any of them?

A.   The ignition switch was on.  The motor was not started, but it was tilted forward.  You know, just -- like -- just before you would switch it to start.

Q.   Okay.  Were the keys in the ignition?

A.   I thought they were.

Q.   How were the light switches turned, signals, parking brake, anything like that, that you observed?

A.   The lights were not on, I don't believe.  I don't know about the turn signals.

Q.   What about the brakes?

A.   I don't know.

Q.   And do you know anything about the position of the gear shift or anything?

A.   I don't recall.

Q.   Now, you testified about some prints that were found in the car.  Where were those found at?

A.   Three of them were found on the passenger door behind the driver's door.  And the other one, I'm not a hundred percent sure, but I believe it came off of the front passenger door on the opposite side from the driver.

Q.   Okay.  And you've testified that you couldn't identify those prints?

A.   That's correct.

Q.   Were those adult fingerprints?

A.   They appear to be.

Q.   Okay.  Now, what other tests were done on the vehicle that you know of other than what you've described, other than fingerprints?

A.   None.

Q.   Was there any testing done for gunpowder residue or anything on the driver's side?

A.   No.

Q.   Could that be done?

A.   I don't know.

Q.   You're not trained in that?

A.   No.

Q.   Who does do that kind of thing if they're looking for gunpowder residue?

A.   The crime lab.

Q.   Do you know if any requests were made at the crime lab to do that?

A.   No.  I don't believe they were.

Q.   And when you found the crime scene, the driver's window was partially down; is that correct?

A.   That's correct.

Q.   Okay.  Now, who did you say removed the tire from the vehicle?

A.   We called someone from the county shop --

Q.   Okay.

A.   -- to come up --

Q.   Was the tire removed at the scene or was it removed at the police department?

A.   No, it was removed later down at the airport at the hangar.

Q.   At the hangar there?

A.   Uh-huh [affirmative].

Q.   So the vehicle was towed with the tire flat?

A.   That's correct.

Q.   Did you see the vehicle when it was put on the tow truck?

A.   Yes.

Q.   How did they go about doing it?

A.   It was a flatbed truck and they hook a chain to, I guess, the axle underneath and they just pull it up on there.

Q.   Okay.  So the flat tire was still on the vehicle when it was pulled up onto the flatbed truck?

A.   That's correct.

Q.   Okay.  And did you examine the tire yourself at that time?

A.   Well, I mean, I just looked at it.

Q.   Okay.  And what did you observe, if anything, when you looked at it?

A.   That it was flat and it appeared to have a cut of some sort in the side.

Q.   Could you describe that cut for us?

A.   It was just a cut.  I don't even remember how long it was.

Q.   Just a puncture wound?

A.   Right.

Q.   Okay.  It wasn't a big hole like the one you -- you've seen the one here in the courtroom?

A.   No, it wasn't that.

Q.   Somebody else has done that since the time you saw it?

A.   That's right.

Q.   And for the record, I was looking -- you were looking at Defendant's Exhibit Number 24, which is the tire; is that correct?

A.   Correct.

Q.   I mean state's exhibit, I'm sorry.  It's not defendant's exhibit, state's exhibit.  Who all participated in gathering the evidence there at the crime scene besides you and Ms. Graham?

A.   No one.

Q.   Okay.  And where was that -- do you know where that vehicle was stored at when it was taken to the police department?

A.   Yes.  There's a locked area out beside the evidence shed that has an overhang and it was parked under there.

Q.   Okay.  Now, you said that Nancy Jenkins got the keys to Mike Chapel's car; is that correct?

A.   That's correct.

Q.   Okay.  And where was the car parked at that time?

A.   It was parked out beside the detective division.  It was backed up to the fence.

Q.   Okay.  And the keys that she secured, were they on a key ring or --

A.   Yes.

Q.   What kind of key ring was it; do you remember?

A.   No, I don't.

Q.   Okay.  Do you remember if it had anything on the key ring besides the keys or --

A.   I don't remember.  I have an impression of a key ring with more than one key, but I don't remember.

Q.   Did it have any large thing on it -- on the key ring or do you remember that?

A.   I don't remember.

Q.   Do you know where Ms. Jenkins got the keys from or who she got them from?

A.   Yes.

Q.   Okay.  And who did she get them from?

A.   Sergeant Cline.

Q.   Now, had anything been done to secure that vehicle that you could tell prior to the time that you and Ms. Jenkins picked it up?

A.   It was locked.

Q.   Okay.  Was there any evidence tape on it or anything like that to prevent anybody from opening it or going into it?

A.   No, not that I recall.

Q.   Who made the decision to have you to search Unit 197?

A.   I believe it was Sergeant Cline.

Q.   Okay.  And what were you told to look for?

A.   We were told to do the presumptive blood tests and to search for a car wash receipt.

Q.   Okay.  And did you go through all of the papers and et cetera in the car carefully?

A.   I looked through them and separated out the things that had writing on them from the blank forms.

Q.   Okay.  And did you look in Mike Chapel's briefcase?  Was it in the vehicle?

A.   No, it wasn't.

Q.   It was not in the vehicle?

A.   No.

Q.   Do you know where it was?

A.   No.

Q.   I'm going to show you a photograph that's marked State's Exhibit Number 112 and ask you if you can identify that photograph?

A.   This is the photograph of the -- that I took on 4/29/93.  It's a photograph of the interior, the front seat, of Unit 197 after I had removed the pursuit pack and most of the personal items.

Q.   Okay.  Now, other than removing the pursuit pack and personal items, did you do anything to change anything else?

A.   No.

Q.   Okay.  Does that photograph accurately reflect the way that the car looked before you started your search?

A.   Before I started the presumptive tests, yes.

Q.   Yes, ma'am.  Does that photograph accurately reflect the way it looked after you drove it around to -- where did you drive it to, ma'am?

A.   It's an -- it was an ambulance shop at that time.

Q.   Okay.  From the detective division, it was driven around to there?

A.   Right.

Q.   Okay.  And does that accurately reflect the way that it looked at that time?

A.   Yes.

Q.   Okay.  Prior to your search beginning?

A.   Prior to the presumptive blood tests.

Q.   Okay.

A.   Yes.

Q.   I'm not talking about the pursuit packs and things you said you removed.

A.   Okay.  Yes.

Q.   But you didn't change the position of the seats or anything like that before you started?

A.   I didn't.

Q.   Did anyone else, to your knowledge?

A.   I don't know.

Q.   Now, what part did Officer Jenkins play in that?

A.   She was originally handed the keys and the request was made to her and she assisted me.  She went out with me that afternoon and then she pulled the vehicle around.

Q.   Did you see her pull the vehicle around?

A.   No.

Q.   Okay.  What was the position of the armrest there before you started your test?

A.   They were up.

Q.   And had anybody moved those, to your knowledge, prior to you beginning your test?

A.   I don't know.

Q.   Now, when you did your Luminol test, did you do the underside first?

A.   Yes.

Q.   And then you pulled them down to do the -- to spray the topside?

A.   That's correct.

Q.   Okay.  Now, you'd indicated in your testimony on direct, I believe, that -- maybe if you'd come down here and show the jury, if you could.

A.   [Witness complies]

Q.   You'd indicated that there were several areas where the Luminol showed up.  Could you show us exactly where now?

A.   Well, it was basically right across here, and there was a little bit of blood right in here.

Q.   Okay.  And it's apparent that nobody's tested any of this in here?

A.   That's correct.

Q.   Nobody's cut it out or anything?

A.   No.

Q.   Did you mark that in any way so that it could be determined at a later time where you had --

A.   I can't remember whether I drew an arrow or anything or whether I just indicated on the crime lab request.

Q.   Okay.

     A.   But --

Q.   You can go back up.

A.   [Witness complies]

Q.   Now, after you finished your test and everything, where was Unit 197 secured at?

A.   In the fenced area back behind headquarters.

Q.   Do you know why it wasn't placed in the fenced area prior to your test?

A.   No, I don't.

Q.   Do you have any knowledge as to who, if anybody, had been in the vehicle prior to the time that you did your test?

A.   No, I don't.

Q.   Does the police department maintain extra sets of keys for the vehicles at the police department?

A.   I believe they do.

Q.   Okay.  In the event somebody loses theirs or something like that?

A.   I think the shop may have an extra set.

Q.   Okay.  Do you have a car issued to you?

A.   No, I don't.

Q.   Do you know whether or not when the cars are taken in for repairs and everything that the people at the shop have an extra set of keys to all the cars?

A.   They have access to a set.

Q.   One thing I overlooked, back up at the crime scene when you did your original crime scene search up at the Gwinnco Muffler, when was the scene released, what time?  Do you know?

A.   I don't.

Q.   Who released the scene?  Was that you or        Ms. Graham?

A.   I don't know.  We left following the vehicle back to headquarters.

Q.   Okay.  And who removed Ms. Thompson's body from the vehicle?

A.   The medical examiner's office.

Q.   Were you present when that took place?

A.   I was there.  I don't specifically remember them picking her out of the car.

Q.   Did they put her on a stretcher, on the ground, or --

A.   On a sheet, I believe.

Q.   On the ground?

A.   [Witness nods head affirmatively.]

Q.   Okay.  And then later, did they put her on a stretcher or something; do you know?

A.   [Witness nods head affirmatively.]

THE COURT:  You'll need to speak up with a yes or no when you respond.

THE WITNESS:  Oh, I'm sorry.

THE COURT:  Go ahead, Mr. Moore.

BY MR. MOORE:

Q.   In that search you did of Mike Chapel's vehicle, you didn't have any knowledge about what might be there, you were just following orders, is that correct, that you looked for?

A.   That's correct.

Q.   Did you inventory the personal property of Mike Chapel that was still in the car?

A.   Yes.

Q.   Okay.  Had there been another murder in Gwinnett County, like the day before or the night before?

A.   Yes, there had.

Q.   Had you worked on that also?

A.   Yes.

Q.   Who all worked on that?  Who were the officers that worked on that?

A.   I can tell you technicians.  Myself, Todd Sartain, and Lisa Washburn.

Q.   Okay.  And what time of day or night did that occur?

A.   We got the call around 3:20 in the afternoon.

Q.   Okay.  And what time was the crime scene finished up in that case?

A.   Well, it wasn't really finished.  We left that night around 12:30.

Q.   Okay.  And so you'd just been home a short time when you got called out again on this one?

A.   This one was the next one.

Q.   Okay.  Do you know who the lead investigator was on the other case?

A.   I believe it's Investigator Davis.

Q.   Was Investigator Burnette there or do you recall?

A.   I don't recall.

Q.   Are the crime scene procedures and everything still the same now as they were in 1993?

A.   For the most part.  Some things have changed.

Q.   Okay.  Now, up at the crime scene there, were people coming and going outside of the crime scene perimeter there?

A.   Some of the investigators were, yes, and the medical examiner's office.

Q.   What about the business, was it open for business?

A.   It was open, yes.

Q.   How were people getting in and out of it?

A.   No.  I don't believe anyone drove by while I was up there.

Q.   Now, this Luminol that you sprayed, do you know what kind of chemical substance that is?

A.   No.

Q.   You said it had to be mixed.  How do you mix it?

A.   It's a mixture of Luminol, sodium carbonate, sodium perborate, and distilled water.

Q.   Okay.  And does it have directions for how to mix it?

A.   Yes.  We have a formula.  We keep the chemicals already weighed out in separate bottles and just add them to the proper amount of distilled water.

Q.   Okay.  And what kind of container do you use to spray that on there?

A.   A plastic spray bottle.

Q.   Plastic spray bottle?

A.   Uh-huh [affirmative].

Q.   And is that purchased for that purpose for --

A.   Yes.

Q.   Is it used for any other purpose?

A.   No.

Q.   Now, you had occasion to participate in spraying Luminol in another police car a little later, didn't you?

A.   Yes.

Q.   Okay.  And that was J. P. Morgan's car?

A.   Yes.

Q.   Okay.  Tell the jury what you did as far as in J. P. Morgan's car.

A.   Well, I sprayed the Luminol in it and nothing fluoresced.

Q.   Okay.  Did you do the entire --

A.   Excuse me, luminesced is the correct word.  I'm sorry.

Q.   Where did you do his car at?  Did you take it to the hangar at the airport also?

A.   No, not at the airport.  I'm trying to recall where I did it.  It was down in the shop area, I believe.

Q.   Okay.  Why was Officer Chapel's car taken to the airport to do it and Officer Morgan's car was done in the shop?  Is there a reason?

A.   His car wasn't taken to the airport.  It was taken to the ambulance shop, which is attached to our shop.

Q.   Okay.  Now, wait a minute, I got confused.  Which car are you talking about now, Morgan's or Chapel's?

A.   Both.

Q.   Okay.  Go ahead.

A.   What was being used as an ambulance shop at that time was originally a hangar for helicopters.  And the helicopters, the aviation section, moved to the airport, and then they changed that portion of the shop to an ambulance shop, and that's where I did the cars.

Q.   Okay.  I guess I'd misunderstood.  I thought you said you did Mr. Chapel's at the hangar at the airport.

A.   Oh, no, I'm sorry.

Q.   Okay.  So it was there at the old hangar there at the -- in the shop there at the police department?

A.   Yes.  Ms. Thompson's car was done at the airport.

Q.   Okay.  Maybe that's where I got confused.  Now, did you do the entire car, Officer Morgan's car?

A.   I did the interior.

Q.   Okay.  Did you do the trunk or anything?

A.   No.

Q.   Did you do the trunk on Mr. Chapel's car?

A.   No.

Q.   Did you have occasion to check any of the weapons or anything in Officer Morgan's case?

A.   No.

Q.   Do you know if anyone else did?