P R O C E E D I N G S
[In the Superior Court of Gwinnett County,
Lawrenceville,
Georgia; 9:00 a.m., Tuesday, August 22,
1995; STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury
Trial, Judge Fred A. Bishop, Jr., Presiding.]
THE
COURT: Is Mr. Moore here?
MR.
DAVIS: He's right outside, sir.
THE
COURT: Okay. Are the jurors ready, Mr. Allen?
THE
BAILIFF, MR. ALLEN: Ready, Your Honor.
MS.
ROGAN: Your Honor?
THE
COURT: Yes.
MS.
ROGAN: I have one small matter to take up before we begin.
THE
COURT: Yes.
MS.
ROGAN: Mr. Chapel would like to wear his wedding ring; and it's, of course,
against the jail regulation for him to have jewelry with him, but I was
wondering if he could wear it while he's in the courtroom.
THE
COURT: Mr. Porter?
MR.
PORTER: The state has no position on that, Your Honor.
THE
COURT: Who has it?
MS.
ROGAN: I do.
THE
COURT: Sure. That's fine.
MS.
ROGAN: Thank you.
THE
COURT: Although at the conclusion of the
day --
MS.
ROGAN: I'll take it back and give it to him each day. That's fine.
THE
COURT: -- that's the jail regulations and he'll need to comply with them.
MS.
ROGAN: That's no problem.
THE
COURT: All right.
MR.
MOORE: Your Honor, may we approach on one matter?
THE
COURT: Yes, sir.
[Counsel
approached and the following conference ensued at the bench.]
MR.
MOORE: Your Honor, Ms. Renee Morgan, J.P. Morgan's wife was here this morning,
and the sheriff's department had not been able to serve her with a subpoena. We
served her just a few minutes ago. We don't know whether she'll testify or not,
but the official police report, if it does become an issue, does not include
things that took place out there that she would be the witness to, and she
wants to stay in the courtroom, and I told her I would advise you, but I was
going to have to invoke the rule of sequestration and ask that she not be
allowed to enter the courtroom, you know.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, the only reason that I could conceive of calling her is as
a rebuttal witness. She is not a witness in my case in chief.
THE
COURT: You don't know if you're going to use her or not? I mean, do you have
her subpoenaed?
MR.
MOORE: I've got her subpoenaed, Your Honor. I don't know whether we're going to
use her or not.
THE
COURT: Okay. Well, I think if you've got her subpoenaed and the rule is invoked
and she's a potential witness for you, I think then -- well --
MR.
MOORE: She's in the back of the courtroom in a black dress on the left corner
back there.
THE
COURT: I'm inclined if we're going to invoke the rule and we've got potential
witnesses, then everybody out on both sides. I just think that's a --
MR.
MOORE: Well, I told her that I thought I was going to have to object --
THE
COURT: Yeah.
MR.
MOORE: -- but I told her I'd give you an opportunity to know she was here and
--
THE
COURT: Yeah. Yeah. Let's invoke it and enforce it all the way around. If we've
got any potential witnesses that have been called or been subpoenaed either
way, then put them out.
MR.
MOORE: Except for the family members.
MR.
PORTER: Your Honor, the family members are here and they're --
THE
COURT: Yeah, I was trying to remember. What was the stipulation as far as the
--
MR.
PORTER: The defendant's family, his wife, mother, and father.
MR.
MOORE: Yeah. And a friend that we --
THE
COURT: Okay.
MR.
PORTER: And Ms. Lutz, who is not under subpoena.
THE
COURT: Okay. Are they going to testify?
MR.
MOORE: Probably.
THE
COURT: Well, whether they testify or not --
MR.
PORTER: Then on the state's side there's a brother and two sisters: Calvin
Ashworth, Helen Barrett, and Geraldine Johnson. Your Honor, there is an
investigator, Tracey Barnhart, who's seated behind my table. I'm going to use
her. She's on the witness list. She has not been served with a subpoena. I don't
anticipate using her as a witness.
THE
COURT: Okay.
MR.
PORTER: She's just one of the investigators in my office. She may --
THE
COURT: Okay. But those family members of the victim, the stipulation is they
remain in whether they testify or not.
MS.
ROGAN: Well, and our investigator, also.
MR.
MOORE: And we're going to ask our investigator to be allowed to remain in, too,
Your Honor.
THE
COURT: All right. Is he going to testify?
MS.
ROGAN: Possibly.
MR.
MOORE: Very possible, Your Honor.
THE
COURT: Okay. Is there any objection to that?
MR.
PORTER: No, sir.
THE
COURT: All right. He stays in, too.
MR.
PORTER: So we have one investigator and three family members on each side.
THE
COURT: All right. So stipulated. Do you want to -- I guess somebody needs to tell
Ms. Morgan that she's outside, so -- whose witness is she? Your witness?
MR.
MOORE: She's our witness, Your Honor.
THE
COURT: If you want to tell her that, tell her that's going to be the rule and
she needs to step outside or I'll tell her if she has a problem with it.
MR.
MOORE: Well, I just told her I'd tell you that she didn't want to because she
was unhappy about it.
THE
COURT: All right. Do you want me to tell her?
MR.
MOORE: Judge, I'll tell her, but I mean the question is that I think she wanted
to maybe speak to you.
MS.
ROGAN: She might want a higher authority.
THE
COURT: Okay. Why don't you tell her. If she's got a problem with it, then I'll
tell her that's the rule.
MR.
PORTER: Did Johnny tell you I'm going to use the aerial in my opening?
MS.
ROGAN: That's fine.
THE
COURT: That you're going to what?
MR.
PORTER: I'm going to use the aerial photograph that we've previously stipulated
during my opening statement.
THE
COURT: Okay.
MR.
PORTER: The stipulation is right there on your desk.
THE
COURT: Okay. Well, before the jurors come in, I want to go on the record with
some of the stipulations and just sort of sort out a few things and that won't
take long.
MR.
PORTER: Okay.
THE
COURT: Okay. Mr. Moore, everybody squared away on that?
MR.
MOORE: Yes. I told her and the deputies already told her that she had to stay
outside.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: We'll call to trial the case
93-B-1818-6, State of Georgia v. Michael Harold Chapel. Is the state
ready?
MR.
PORTER: The state's ready, Your Honor, and issue has been jointed.
THE
COURT: Is the defendant ready?
MR.
MOORE: Your Honor, the defendant's ready, and we have entered our plea of not
guilty.
THE
COURT: All right. Are our jurors here? Are they ready?
THE
BAILIFF, MR. ALLEN: Ready, Judge.
THE
COURT: Okay. I believe the rule of sequestration has been invoked by the state
and the defendant and -- with the exception of the stipulated members of the
defendant's family and members of the decedent's family, Ms. Thompson's family,
and I believe the defendant's investigator and the state's investigator; is
that correct?
MR.
PORTER: That's correct, Your Honor.
THE
COURT: All right. All other witnesses of both sides will have to remain outside
during the course of the trial of the case and, Mr. Porter and Mr. Moore, I'll
ask your assistance in ensuring that your witnesses do not enter the courtroom
unbeknownst to the rest of us.
Do
we have any other stipulations, any other issues we need to resolve before the
jurors come in, Mr. Porter?
MR.
PORTER: Your Honor, yesterday after meeting with counsel on Sunday, the state
and the defense entered into five stipulations that will be read to the jury at
the appropriate time or mentioned at the appropriate time to the jury.
The
first stipulation is that State's Exhibit Number 1, which is a calendar for the
month of April 1993, is a true and correct or accurate calendar for that month.
State's
Exhibit Number 2, which is a diagram of the Gwinnco Muffler Shop, its parking
lot and driveway at the intersection of Peachtree Industrial Boulevard, is to
scale with the exception of the vehicles that are attached to the diagram. And,
Your Honor, that's a note that was not placed into stipulation, but is agreed
to by counsel.
Number
3, State's Exhibit Number 3 is an accurate diagram of the portion of Peachtree
Industrial Boulevard and its intersecting roads and is to scale, which is
mentioned in the stipulation.
State's
Exhibit Number 4, which is leaning against the witness stand, is an aerial map
that truly and accurately depicts the area contained therein.
And
State's Exhibit, Your Honor, it has not been numbered yet, but it is a Polaroid
photograph which fairly and accurately depicts the condition of locker number
34 of the Gwinnett County police department, northside precinct, when that
locker was opened pursuant to a search warrant on April 24, 1993.
Your
Honor, there is one additional stipulation, which is the admission of a
Gwinnett County pay stub of Michael Chapel, which has been examined by the
defense and the defendant, and the stipulation has been entered into in regard
to that.
THE
COURT: What is the date of that?
MR.
PORTER: Your Honor, I believe it is the paycheck which was received in April of
1993 in the week before the homicide, so it would have been the week of April
15th of 1993.
THE
COURT: Has it been marked?
MR.
PORTER: It has not been marked at this time, Your Honor. Your Honor, I have it
in front of me. It is for the pay period ending April 8th of 1993, and it was
the paycheck immediately prior to the homicide. And it is just the stub, not
the check.
THE
COURT: All right. Anything else with respect to that stipulation?
MR.
PORTER: I believe that is the only stipulation as to the state's exhibits. The state
stands prepared to meet with counsel if there are necessary stipulations as to
any defense exhibit.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, Mr. Porter accurately stated what we've stipulated to and we
will, at some point, ask him to review some of ours and see if we can expedite
things and have him stipulate to some things also.
THE
COURT: All right. But insofar as the stipulation on the pay stub is stipulation
number 6?
MR.
PORTER: Yes, sir.
THE
COURT: And for the record, those other stipulations as announced from the
state, is that the stipulation, Mr. Moore?
MR.
MOORE: Yes, Your Honor.
THE
COURT: So stipulated. Are there any other stipulations, Mr. Porter?
MR.
PORTER: Not at this time, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: What about the redacted video statement? Where does that stand?
MR.
PORTER: Your Honor, I have provided it to defense counsel, and the state
intends to introduce what's described as Draft Number 2 as the evidence in the
case.
MS.
ROGAN: Your Honor, we got yesterday the newly corrected version --
THE
COURT: The redacted redacted?
MS.
ROGAN: -- of the redacted video. I've gotten through about half of it last
night and intend to do the rest of it tonight. Unfortunately, we're going to
have to have another hearing before that video can be played because the tenor
of the hearing we had last time was about various of our objections to things
that mostly Lieutenant Latty was saying, which Your Honor reserved ruling on
pending how the evidence actually came into the trial. And in most cases, the
ruling was deferred until the trial to see whether the evidence supported some
of the things that Lieutenant Latty was saying. We can't determine that until
those witnesses who he's referring to have testified.
And
I've made another list of the items that we find objectionable. The state has
redacted those that Your Honor did make a ruling on, but there really weren't
very many that were clearly able to be ruled upon at that point. So I'm not
sure that we're in a position -- we're certainly still objecting to everything
that we can -- that we objected to at the time, and those objectionable
portions, in our mind, are still in the video.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, it is my intention to present the case in such a way that
by the time the video is played we expect that the evidence that will have been
produced in the courtroom will mirror the statements made by Investigator
Latty; and, therefore, the Court's initial ruling regarding the fact that it
was an interrogative technique to confront the defendant with the evidence will
be -- it will merely be a repetition of evidence that has already been
presented. We have anticipated that problem.
THE
COURT: My suggestion, I think, would be for the defense to review it so that
you know what's on the proposed version at this point, and then either maybe
tomorrow night -- what's today, Tuesday? Tomorrow night or Thursday night,
after the jurors leave, then let's stay over and take those up. And that
presupposes that -- if you're not ready to offer evidence at that point -- when
do you contemplate offering it in?
MR.
PORTER: Your Honor, I have a dozen witnesses today lined up and ready to
testify. The statement, we plan to bring in probably Thursday or Friday, I
would guess -- is my best -- and of course, I can't judge until I know how we
do today.
THE
COURT: Well, the difficulty, it seems to me, would be if it's going to be
Thursday or so -- today's Tuesday and it hasn't been reviewed totally by the
defendant, then that leaves us Wednesday night probably to look at it or
discuss it or hear any motions on it. And then somebody's got to -- if there
are any changes to it, then that's going to have to be done which makes
Thursday look a little unlikely, it seems to me.
MR.
PORTER: Your Honor, in terms of playing the tape, I'm somewhat flexible in the
presentation of the case, and it can be moved around --
THE
COURT: Okay.
MR.
PORTER: -- depending on the --
THE
COURT: Can you finish up your review of it by tomorrow morning so we know what
the defendant's response is?
MS.
ROGAN: I will certainly try. I was going to mention also, now that we have a
transcript, I think we can make our arguments based on the transcript without
reviewing the whole tape, which can be a much more time-consuming process.
THE
COURT: All right. Okay.
MS.
ROGAN: And it would be easier, in fact, to see exactly what is objectionable or
not in terms of the written transcript, so I can at the very least go through the
transcript and highlight and have -- Ms. Atkinson's previous transcript has our
objections keyed to an hour and minute --
THE
COURT: Okay.
MS.
ROGAN: -- point on the tape, so it shouldn't be that hard to nail down exactly
what we're objecting to tomorrow.
THE
COURT: All right. If you can do that then so that the issues are focused, I
might take a preliminary look at them myself and then maybe we'll all be in a
-- can expedite the hearing on it or argument on it or ruling on it or
whatever.
MR.
PORTER: Your Honor, I think that since it is the certified transcript of the
videotape and the redactions were removals from that, we can safely argue from
the transcript --
THE
COURT: All right.
MR.
PORTER: -- without having to play the tapes in court.
MS.
ROGAN: I'd agree.
THE
COURT: All right. Let's take that up tomorrow morning, then.
MS.
ROGAN: All right.
THE
COURT: Okay.
MS.
ROGAN: All right.
THE
COURT: All right. Any other motions or issues we need to address, Mr. Porter,
before the jurors come in?
MR.
PORTER: Your Honor, only to place upon the record that I have notified counsel
that it is my intention to use State's Exhibit Number 4 during my opening
statement and that it has previously been stipulated to.
THE
COURT: All right. Any objection, Mr. Moore?
MR.
MOORE: Your Honor, Mr. Porter advised me of that, and that's the aerial map
which is going to be seen by the jurors during the course of this trial anyway,
so I don't think it matters when it's presented to them.
THE
COURT: I believe so. We'll need pad and pen, clean pad and pen, for each of the
jurors to take notes if they wish during the course of trial. We need to secure
those and make sure those are secured during the course of any recesses,
overnight, or that sort of thing, and they'll be destroyed at the conclusion of
the case.
MR.
MOORE: Your Honor, I realize the Court's already ruled on it, but just for the
record, we would renew our objection to the jurors' notes being destroyed. We
would ask they be sealed and made a part of the record.
THE
COURT: Yes, sir. It was, I suppose, a fortuitous Supreme Court case directly on
point, after your motion was made, I noted. All right. Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: We're ready, Your Honor.
THE
COURT: Ask the jurors to come in, please.
We'll start with the preliminary charge, and then we'll go directly into
opening.
MR.
PORTER: Yes, sir.
[The
jurors were escorted to the courtroom.]
THE
COURT: Good morning, ladies and gentlemen.
[Jurors
respond]
THE
COURT: I hope everybody had a good evening. Did everybody get settled in okay?
Served supper, breakfast?
[Pause]
THE
COURT: Okay. If you have anything you need, make it known to the bailiffs, and
we'll try to provide whatever you need during the course of the next few weeks.
We're
going to commence this morning -- I want to ask you to raise your right hand
and take the final oath and give me an 'I will' in response, please.
You
should well and truly try the issue formed upon this indictment between the
State of Georgia and Michael Harold Chapel, who is charged with the offenses of
Count 1, murder, Count 2, felony murder, Count 3, armed robbery, and Count 4,
possession of a firearm during the commission of a crime, and a true verdict
give according to evidence, so help you God.
[Jurors
respond]
THE
COURT: Now, this is Case Number 93-B-1818-6, styled as the State of Georgia
versus Michael Harold Chapel, in which the indictment is as follows:
Count
1, the grand jurors selected, chosen and sworn for the County of Gwinnett in
the name and behalf of the citizens of Georgia, charge and accuse Michael
Harold Chapel with the offense of murder in that the said accused, in the State
of Georgia and County of Gwinnett, on the 15th day of April, 1993, did then and
there unlawfully and with malice aforethought cause the death of Emogene
Thompson, a human being, by shooting her in the head with a firearm, contrary
to the laws of said state, the good order, peace and dignity thereof.
Count
2 of the indictment is as follows: And the grand jurors, aforesaid, in the name
and behalf of the citizens of Georgia, further charge and accuse Michael Harold
Chapel with the offense of felony murder in that the said accused, in the State
of Georgia and County of Gwinnett, on the 15th day of April, 1993, did then and
there unlawfully while in the commission of a felony, to wit, armed robbery,
cause the death of Emogene Thompson, a human being, by shooting her in the head
with a firearm, contrary to the laws of said state, the good order, peace and
dignity thereof.
Count
3 of the indictment is as follows: And the grand jurors, aforesaid, in the name
and behalf of the citizens of Georgia further charge and accuse Michael Harold
Chapel with the offense of armed robbery in that the said accused, in the State
of Georgia and County of Gwinnett, on the 15th day of April, 1993, did then and
there unlawfully with the intent to commit theft, take United States currency,
the property of Emogene Thompson, from the immediate presence of Emogene Thompson
by use of an offensive weapon, to wit, a firearm, contrary to the laws of said
state, the good order, peace and dignity thereof.
And
finally, Count 4 of the indictment is as follows: And the grand jurors,
aforesaid, in the name and behalf of the citizens of Georgia further charge and
accuse Michael Harold Chapel with the offense of possession of a firearm during
the commission of a crime in that the said accused, in the State of Georgia and
County of Gwinnett, on the 15th day of April, 1993, did then and there
unlawfully have on his person a firearm during the commission of a felony, to
wit, murder, which is a crime against a person of another, contrary to the laws
of said state, the good order, peace and dignity thereof.
Now,
ladies and gentlemen, a criminal trial is the result when a person accused of a
crime in an indictment returned by the grand jury enters a plea of not guilty,
thereby denying each and every essential allegation in the indictment. This
forms what is called the issue which a trial jury is impaneled to try and
determine.
The
fact that the defendant on trial has been indicted by a grand jury does not
constitute any evidence nor inference of guilt. It is merely the manner in
which a specific charge is brought before the Court for trial on its merits,
and that is whether or not the defendant is guilty of the charges made in the
indictment.
In
all cases the defendant or the accused enters upon the trial presumed to be
innocent. This presumption remains with the defendant until and unless this
presumption is overcome by evidence presented at the trial sufficient to
satisfy the minds of the jury trying the case of the defendant's guilt beyond a
reasonable doubt. This is what is called the burden of proof.
The
burden of proof rests with the state to prove each essential element of the
offense charged in an indictment beyond a reasonable doubt. However, the state
is not required to prove the guilt of the defendant on trial beyond all doubt.
A
reasonable doubt means just what it says. It is a doubt of a fair-minded,
impartial juror honestly seeking the truth. It is not an arbitrary or
capricious doubt. It is a doubt arising from the evidence, the lack of
evidence, or a conflict in the evidence. A reasonable doubt is a doubt based
upon reason.
If
after considering all the facts and circumstances in a given case the minds of
the jurors are wavering, unsettled, and unsatisfied, then that is a doubt of
law, and the jury should acquit the defendant. But if that doubt does not exist
in the minds of the jurors as to the guilt of the defendant, then the jury
would be authorized to convict.
In
our system it is the duty and responsibility of the trial judge to ascertain
the law applicable to the case and instruct the jury on the law. It is the duty
and responsibility of the jury to ascertain the truth of the case from a
factual standpoint from all of the evidence presented during the trial. Then it
is the jury's duty and responsibility to apply the law to the facts and by this
application of the law to fact and the fact to law to arrive at a verdict.
In
discharging your responsibility in determining the facts of the case, I point
out that the jury must determine the credibility of the witnesses who appear
and testify. Credibility also means believability.
In
passing upon the credibility or believability of a given witness and in
determining the weight that a jury will give a witness's testimony, the jury
may consider all the facts and circumstances of the case, the witness's manner
of testifying, their intelligence, their means and opportunity for knowing the
facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and their personal credibility
so far as that may legitimately appear from the trial.
As
to all witnesses the jury should apply the same standards and measures and
tests which the jury thinks would be appropriate and meaningful in determining
the weight the jury should give the testimony of every witness.
It
is the foundation of our criminal system of justice that everyone accused of
crime is entitled to a trial by jurors who are totally impartial between the
state and the accused, and to enter upon the trial of a case without having
previously formed and expressed any opinion as to the guilt or innocence of the
accused.
Now,
the attorneys on both sides will at the beginning of the case, if they choose,
outline their contentions to you. They will then question witnesses sworn in
the case. At the conclusion of the presentation of evidence, they will sum up
their contentions and make their arguments to the jury.
You
are not bound by what any attorney says are the facts or the law during the
trial. You take the facts from the witnesses and the other evidence presented
in the case. You take the law from the Court as given you in the charge as may
be pronounced during the trial. By applying one to the other, you make your
judgment as a jury as to the truth of the case.
Now,
this case will be bifurcated in this matter. That is, the state will be seeking
to have the accused found guilty beyond a reasonable doubt of the offense of
murder. Now, in the event the jury returns a verdict of guilty, the state will
be seeking to have the death penalty imposed in this bifurcated, two-part
trial.
The
Court will, of course, be giving complete jury instructions after you've heard
the evidence. If the jury finds the defendant not guilty, then that will end
the trial.
Now,
you have heard the indications of what this case is about during the course of the
voir dire; however, you've not had the opportunity to hear the opening
statements on behalf of the state or the defendant, which they will have the
opportunity to tell you what they expect the facts in the case to be.
You
have not yet had the opportunity to hear the evidence in the case, which will
come to you by way of witnesses testifying under oath and exhibits admitted for
your consideration.
You've
not yet had the opportunity to hear the closing argument on behalf of the state
and the defendant, when the attorneys will have the opportunity to tell you
what they contend the evidence to have been.
And
you have not yet had an opportunity to hear the charge from the Court as to the
applicable law in the case.
Now,
until you've seen and heard all of that, you ought to keep an open mind and
wait until then to make your decision in the case.
I
instruct you that until the trial is finished and you are in the jury room to
commence your deliberations, it would be improper for you to commence your
deliberations amongst yourselves or discuss the case with anyone else or allow
anybody else to discuss the case with you or in your presence.
Now,
you've been furnished pad and pen to take notes, if you wish, during the course
of the trial. If you do not wish to take notes, then that's fine as well.
I
instruct you that any notes taken should not be used as a weapon during jury
deliberations. Notes alone do not entitle a juror's opinion any greater weight
than the opinion of another juror who did not take notes during the course of
the trial.
Now,
those notes will be secured during the course of the trial of the case. They
will not be reviewed by anybody else, and they will be destroyed at the
conclusion of the case.
Now,
during the course of the trial, it is essential that you see and hear what's
going on in the courtroom. If at any time you cannot hear the testimony of
witnesses, if you cannot hear questions posed by the attorneys, if you cannot
hear what I'm saying, if you cannot see exhibits that are being used or the blackboard
being used, then raise your hand or otherwise make it known, and we'll address
the problem however need be.
Now,
I'm sure you've all noticed that this case is being televised, and I would
point out -- I would note to you that there will be no cameras pointed at
jurors. There will be no photographs taken of jurors during the course of the
trial of the case.
I
would also instruct you that should any person attempt to influence any juror
in this case, the juror should promptly report that to the Court. I do not
anticipate that, but if that should occur, that would be your instruction in
that event.
I
also instruct you that no juror should read, listen to or view any news report
concerning this case, and remind you that the evidence comes from witnesses and
exhibits in the courtroom and from no other source unless authorized or
directed by the Court.
Mr.
Porter, do you wish to make an opening statement?
MR.
PORTER: Yes, Your Honor. Thank you.
STATE'S
OPENING STATEMENT
MR.
PORTER: Good morning.
[Jurors
respond]
MR.
PORTER: As the judge previously introduced to you, my name is Danny Porter, and
I'm the district attorney, and I represent the people of the State of Georgia
in the case of the State v. Michael Harold Chapel.
The
burden rests on the state to prove that the defendant is guilty beyond a
reasonable doubt of the charges of malice murder, felony murder, armed robbery,
and possession of a firearm during the commission of a felony. And we intend to
present evidence to you over the next few days that will in fact prove that
Michael Harold Chapel is guilty.
I'd
like you to take a moment to orient yourself as to where these incidents that
we'll be describing occurred. This is an aerial photograph of the northern end
of Gwinnett County or at least a portion of it that involves Peachtree
Industrial Boulevard as it runs from Duluth at this end to Buford at this end.
It's intersected here by Georgia 20, which runs from Lawrenceville all the way
to Cumming. This is the intersection of Peachtree Industrial Boulevard and
Georgia 20.
The
incident itself occurred at the Gwinnco Muffler Shop, which is located here on
Peachtree Industrial Boulevard right south of where the road goes from a
four-lane to a two-lane. There are roads that intersect here and here and here that
will all be referred to in the testimony. And this is the area which we'll be
dealing with over the next few weeks.
Now,
on the morning of April 16, 1993, at the Gwinnco Muffler Shop, two men came in
about ten minutes of eight. The first was Theron Smith. He was going there to
have a car repaired. And about ten minutes after he arrived, the owner of the
store, Joe Byars, arrived to open up. Gwinnco Muffler opens at eight and people
get there early just like everybody else does in a service center.
They
both noticed, as they drove in, parked in the driveway, a brown Lincoln
Continental with a person slumped over the wheel, slumped actually into the
passenger side. The window was down, even though the morning was cold, and the
left front tire was flat.
Neither
man really thought much about it one way or the other and went on about their
business until just right at eight o'clock. They thought the person might need
some assistance, so they both walked down and made the discovery of the body of
Emogene Thompson, a person they had previously thought was asleep or might be
in trouble. The way they made that discovery is because of the blood splatter
on the front seat of the car and the dash and on the passenger side and on her
face and hands.
The
car -- once they made that discovery, immediately the police were called. The
police began to seal the scene and process it. It was discovered that the car
was there with the window down, it had power windows, the doors were locked,
the ignition was on, and the left front tire had been punctured.
Ms.
Emogene had been shot twice. As a later autopsy revealed, the first shot
entered her head here and exited somewhere around her right eye. The second
shot went into her neck here at her hairline and exited to the right upper portion
of her skull. Both wounds were fatal, although the evidence will show that
between the first and second shot, Emogene Thompson was alive.
The
scene was then processed and photographed, and you'll see those photographs and
the videotape of the crime scene as it was that morning. And that -- as I said,
the autopsy was performed by the Gwinnett County medical examiner. Blood was
drawn from Ms. Thompson for later testing, and we'll talk about that in just a
minute.
So
the police were left at this point with a body, a car, and an investigation.
And that investigation began right away. And it began on several fronts. The
first that you'll hear about is that the police began to run roadblocks in
front of the Gwinnco Muffler. They ran them for four nights in the hope that
someone who had been driving by the night of April 15 or the early morning
hours of the 16th had seen something. And, in fact, there were people who drove
by that had seen something.
The
witnesses' picture began to emerge that at approximately 9:30 on April 15,
witnesses saw a Gwinnett County police car parked in the Gwinnco Muffler
driveway facing towards Peachtree Industrial Boulevard. Some of those witnesses
saw the car with the headlights on, some of them saw the car with the dome
lights on, and some of them even saw a large white male with brown hair seated
behind the driver's side of the police car. And that was at about 9:30 on April
15.
Other
witnesses who came along a little later, between 9:30 and 9:45, saw what they
described as a person getting a ticket. They saw a police car, they saw a
dark-colored car pulled face first into the driveway of Gwinnco, a police car
behind it with its blue lights on.
And
then at 9:45, give or take five minutes, a witness saw, as they crested the hill south of the muffler shop,
they saw someone in the driveway, a dark-colored car and a police car with its blue
lights on. And as any other person, they started to slow down. They thought
they might be speeding. They thought they might get a ticket.
And
as they went by the muffler
shop, they saw a dark-colored car, a large white male wearing a rain
slicker, a police hat with a rain cover and carrying a flashlight, standing
beside the dark-colored car. Behind that dark-colored car was a police car
where the blue lights had been on. As they crested the hill, the blue lights
were then off. As they passed, they observed what I've just described.
And
as they went on past, proceeding down towards the intersection of Georgia 20,
as the road four-lanes, which is about here, a car came up behind the two men,
moving rapidly, and pulled up beside them as soon as the car -- as soon as the
road four-laned. The passenger in the car, who you will hear testify, looked
over and realized it was a Gwinnett County police car, and he presumed that it
was the same car that he had just passed. He looked at that car, the car
remained beside them all the way down Peachtree Industrial Boulevard, a
distance that you'll see from here [indicating] to the Gwinnco is seven-tenths
of a mile. And from this intersection here [indicating] to where the police car
eventually turned off is eight-tenths of a mile from the muffler shop. And the
car -- the police car remained beside the witnesses' car the entire time.
The
passenger looked over to see the person driving the car. He looked at him the
entire time. He was paying attention. And in the light of the street lights and
in the light of the dome lights of the car, or the dashboard lights, he saw a
person that he's identified as the defendant, Michael Chapel.
And
on another front, the first thing that the police began to do was to try and
reconstruct the events of the last night of Emogene Thompson's life. The first
thing they did was contact her son. She lived on Craig Drive which is off of
Hillcrest here with her son, Michael. Michael told them that she had eaten
dinner with him the night before, and the last time that he saw her was about
8:30.
But
he told them one other thing, that she had had a theft on April 3 and she had
reported it to the Gwinnett County police department. And she'd had a theft of
approximately $7,000. And since that theft, she had been carrying the balance
of her money with her, never letting it leave her side. So all of a sudden,
there was a connection, and they began to look for who was connected to the
victim.
Who
was connected to Emogene Thompson? And it was discovered that the defendant on
April 3 had responded to a burglary call at Emogene Thompson's house; that he
had gone to her house; that he had taken the report of the burglary and the
theft of the $7,000; that he had seen the remainder of the money which was
approximately $7,000, and had counted it out with the victim. And during that
time, he said that it appeared to him that her son had taken the money.
The
key there is he never filed an incident report. He never logged it on his daily
activity sheet that he'd ever been in contact with Emogene Thompson. It wasn't
until her body was discovered, and he was told of the fact, that he came
forward.
The
police also discovered that at least one call was made from the victim to the
defendant at the northside precinct, a call that he supposedly returned or was
instructed to return.
Now,
in the course of this, given the fact that that theft was the motivation for
the killing or robbery was the motivation for the killing, the police began to
look into the finances of Emogene Thompson.
What
they discovered was that due to the death of her boyfriend, she'd received an
insurance settlement of $25,000, that she received some of it in November of
1992. And in March of 1993, she received an additional $10,000. They also
showed that on March 2, 1993, Emogene Thompson received almost $10,000 --
excuse me, $6,300 in cash from the People's Bank of Buford, that cash being in
predominantly $100 bills. They also discovered that on March 12, Emogene
Thompson made a split deposit of her last insurance check and received almost
$10,000 in cash, again, most of it in $100 bills. So the story of the cash is
true. The police found and accounted for the money that was stolen.
They
began to look at the defendant's finances. They discovered that in January of
1993, he had asked for and gotten a loan from a friend of approximately $1,500
that had never been repaid. They discovered that he had received in April of
1993 a notice of what's called a zero-base audit, which would have allowed --
could have disallowed approximately $4,000 in deductions that he had made on
his 1992 taxes. And also discovered that he had had to -- he had failed to make
the payments on his truck, and he had returned it rather than having it
repossessed; and, basically, what they discovered was the defendant was in
financial straits at the time of the homicide.
The
key, then, began into the investigation of what was his financial status after
the murder. And the state will present evidence that in the week after the
murder, in the week of April 16th through the 23rd, the defendant made
purchases and deposits into various bank accounts that account for $2,500 in
currency for which there is no legitimate source. The state will show that he
paid $600 for T-shirts for the gym that he owned and paid for them with six
$100 bills.
The
state will show that on the morning of
April 16, 1993, while Emogene Thompson's body was being removed and
transported to the morgue and her car was being processed, he was having his
car washed here in Lawrenceville and having it detailed, and he paid for it
with a $100 bill, for a $20 car wash.
The
state will also show that in a briefcase that was removed from the defendant's
car, in a ledger book, there were four brand new crisp $100 bills tucked behind
the notebook. And the state will show that the serial numbers on those bills
indicated that they were delivered to the People's Bank and Trust from the
Federal Reserve on March 11, the day before Emogene Thompson withdrew $10,000
in cash.
With
this evidence in hand, the defendant was then brought into Gwinnett County
police headquarters, and he was interviewed, and you'll see that interview.
You'll see the videotape. And what do you think the defendant said? 'I didn't
do it.'
But
I want you to listen to the tape, because in the denials I want you to watch
for statements like, 'If I thought I needed an alibi, I would have gotten one.'
Statements like, 'If I had as much evidence as you guys have, I'd think I was
guilty, too.' Statements like, 'I'm really insulted that you think I could be
that sloppy as to shoot someone on the side of the road.' And watch his
demeanor. Watch the demeanor of a man who is accused of murdering and robbing a
woman at night while on duty as a police officer.
After
his arrest, physical evidence was then gathered by the Gwinnett County police
department. The tire had already been removed from the vehicle. It had been
determined that it was punctured by a single-edge sharp instrument, which is
scientific talk for a knife. It was determined that two bullets that were
recovered from Emogene Thompson's car were fired from either an RG or Charter
Arms .38 or .357.
A
rain jacket which was recovered from a locker at the northside precinct, to which
the defendant had sole access, was discovered to have high velocity blood
spatter of human origin. You will hear that the source or one of the only
sources of high velocity blood spatter is to be standing within 18 inches of
someone when a bullet impacts their body.
And
finally, the state recovered the seat of the defendant's patrol car. Right
before the patrol car was going to be released back into service, and the
defendant was already in custody, it was decided, based on a number of factors,
to run one more test on the car. And the police here ran what's called a
Luminol test.
Luminol
is a substance that's sprayed on surfaces and then a fluorescent light is used,
and in the presence of blood, it will luminesce or shine. And when the Luminol
process was applied to the seat on the armrest and the edge of the passenger's
seat, it luminesced in the presence of blood.
The
seat was removed and sent to the crime lab. The crime lab determined that the
stain on the seat was of human origin. And then a swatch was cut out and it was
run through DNA forensic testing.
Now,
y'all indicated when we selected you as a jury that you had some familiarity
with DNA. But let me take a moment to explain what the testing is.
In
DNA testing, unknown body substances are compared to known body substances. The
first step in the process is that through the use, basically, of a centrifuge,
the DNA is removed from in this case the blood. And the DNA material is in fact
removed mechanically. The DNA is then examined to determine whether or not
there is enough DNA in the sample to make comparisons.
You'll
learn that DNA is essentially the cornerstone of life. It is a cellular matrix
consisting basically of four parts which are joined like the links of a puzzle
and can only join one way. Each of us are different because they join in
different sequences. And that's what makes me me and you you. And it is this
sequence that is then tested.
It's
tested first by once the DNA material is removed, it's cut chemically through
the use of an enzyme called a restriction enzyme. And what that does is take
the strands of DNA and separate it along certain points into strands of varying
lengths. Those lengths are then placed in a gel, and through a process called
electrophoresis, they are chemically and electrically excited and then moved
through the gel for a certain distance depending on their length. Then they are
locked in place through a process called Southern bonding, which is the use of
a nylon membrane that locks the question sample into place. Then once the
question sample has been locked onto the membrane, it's compared against what
are called probes.
Probes
are nothing more or less than genetic yardsticks. They measure the length of
the genetic material that's been cut previously. As each probe is put against
the question material and the known material, comparisons are made. The more
probes that are compared, the narrower the chances become of what's called a
random match. And these terms will all be explained to you.
In
this case, six probes were compared to both the blood of Michael Chapel and the
blood of Emogene Thompson, six yardsticks against the DNA material that was
found on the seat. The results of those tests were that each of the six probes
matched the blood of Emogene Thompson.
Once
the match is made or determined by trained technicians who are experienced in
this matter, it's reviewed by a computer. And the computer makes a second
comparison under the control of the technicians. The control of the -- the
computer in this case confirmed the results of the technicians. And again, the
six-probe match was found from the seat of Michael Chapel's patrol car to the
blood of Emogene Thompson.
Once
the examination is made, there is what's called a population frequency estimate
done, which is basically done by multiplying the likelihood of the occurrence
of each probe, because the probes, they don't measure hair color or eye color
or anything else. They are just places on the DNA, and they occur with certain
frequency in populations. And when you take all the six probes and you multiply
the frequency of the occurrence of each probe, you end up in this case with
scientific conclusion that the likelihood that the blood on the seat is not
Emogene Thompson is one in excess of ten billion, which is more than twice the
population of the planet. In fact, the numbers that you will hear is that the
chance that it is not Emogene's blood is in excess of one in forty billion.
Now,
in this case, the murder weapon has never been recovered, but the state will
present evidence that Michael Chapel owned a Charter Arms .38. He was seen in
possession of it. In this case, Emogene Thompson's purse has never been
recovered, but the state will present evidence that on the night of the murder
she was in possession of $7,000.
And
when this case is concluded, you will see that the strands of evidence that the
defendant wasn't able to dispose of, couldn't dispose of, bind him inextricably
to Emogene Thompson as if they were chained together. And it is that chain
which will lead you to the verdict that speaks the truth.
The
verdict that speaks the truth in this case is that Michael Thompson-- or, excuse me, Michael Chapel
is guilty of malice murder, felony murder, armed robbery, and possession of a
firearm during the commission of a felony. And when the case is ended, I will
ask you to return that verdict that speaks the truth which you have sworn to
do. Thank you.
THE
COURT: Mr. Moore, do you wish to make an opening statement on behalf of the
defendant?
MR.
MOORE: Yes, Your Honor, I do.
MR.
MOORE: Good morning, ladies and gentlemen.
[Jurors
respond]
MR.
MOORE: This part of the trial, what I say is not evidence, what Mr. Porter said
to you is not evidence. We're merely telling you what we believe the evidence
will show, what the witnesses will testify to.
As
the judge told you, the bill of indictment, too, that you have has been read to
you, is not evidence in the case. You'll have the original out with you to
examine, and I'd ask you to note on there that only one witness appeared before
the Grand Jury. The defendant does not get to appear, we do not have an
opportunity to present any evidence or know what's done there. The grand jury
merely decides whether to send the case --
MR.
PORTER: Your Honor, I hate to interrupt
Mr. Moore's argument, but that is not a proper argument to explain that
no inference can be drawn from the fact that that is the technique in which an
indictment is made.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I believe that's what the Court instructed the jury, that
it's not evidence, it's not -- the jury's not to draw any inference from it of
guilt.
THE
COURT: I've instructed them that is the law. I believe this is the time to tell
them what the facts are and what you expect the evidence to be, Mr. Moore.
Objection's sustained.
MR.
MOORE: Ladies and gentlemen, this is a case where the state wants you to
believe that they've got all this solid, ironclad evidence, the way Mr. Porter describes
it. The truth is this case was built from the beginning on probabilities,
suspicion, thinks, and guesses, and gossip. Mr. Porter's going to present
gossip to you, too, to try to convince you that Mike Chapel is guilty.
Mike
Chapel had the misfortune as a dedicated police officer to answer a call to Ms.
Thompson's residence on April 3, 1993. He found a mother, a distraught mother,
who wanted desperately to believe that her son had not taken her money. She
took him to the back door and she pointed and said, 'Here's where somebody cut
the screen.' He talked to her. She showed him her money, and she showed him
that she only had $7,000 left. She told him there was $14,000 to begin with.
Officer
Chapel told her, 'Ma'am, you don't have a burglar. Burglars don't take half
your money. Your son, who has problems, took your money. If you wish for me to
prosecute, I'll do so. That's my job as a police officer.' She did not wish to
prosecute. Officer Chapel did not write a report. He felt the incident didn't deserve
a report, that nobody wanted to prosecute, the mother didn't want him to. He
mentioned the call though to his sergeant, Sergeant Stone. And I believe the
evidence will show that Sergeant Stone recommended that he write a report. He
never did.
She
called him back once or twice about the money, the evidence is going to show.
And he attempted to do some things to perhaps make her son own up and say he
that took the money. Everybody knew, including the mother, she didn't want to
believe it, that no burglar takes half your money when you've got $14,000 in
cash. Everybody knows that.
After
the murder, the -- immediately, Mike Chapel went forward to his supervisor,
Sergeant Stone, and reminded him that 'I was out there on that call.' He did
not attempt to hide it. He in no way attempted at any time to hide the fact
that he was out there on a call.
Now,
the police on the other hand, the evidence is going to show that on the night
of Ms. Thompson's murder, the police were doing what they shouldn't have been
doing, including Mike Chapel. They were not doing what they're paid to do.
There was thunderstorms that night, bad storms, so they decided to all go up to
the fire station up at the northside precinct and sit at the fire station and
watch TV.
And
Mike Chapel, Sergeant Stone, and Brian Reddy, a police officer, were all
sitting up there at the fire station watching TV that night until about ten
o'clock. They left about ten o'clock, and the evidence will show that Mike
Chapel got a call. He responded to that call in a timely manner. In the period
of time between the time he responded to that call and the time that the state
says Ms. Thompson was killed, the state contends that he drove down, stopped
Ms. Thompson, killed her, and then went to his call, all in a timely manner.
Now,
the Gwinnett County police department made a serious error of judgment, I
think, in this case. They elected to investigate this case themselves. They
knew, as Mr. Porter said, by the second day that a Gwinnett County police car
was involved. There were too many witnesses that had seen a police car parked
out there on Peachtree Industrial Boulevard. Instead of calling in an outside,
independent agency, they undertook to investigate themselves. They in fact put
people in there that were friends. They put people in there that perhaps was
the person who committed the crime to conduct the investigation.
The
evidence is going to show, like Mr. Porter says, that Ms. Thompson was shot
twice, and the death was instantaneous from either shot. The medical examiner's
going to say either one. After the police set up these roadblocks and started
finding people who said that, yes, we saw a police car out there, then the
police department at that point had a real problem. If the media got hold of
it, if they told you, the public, that we've got a police officer out here on
the streets who has killed somebody and we don't know who he is yet, there
would have been panic.
At
that point, the police were in a rush to solve this thing as quickly as possible,
make an arrest, assure you, the public, that everything was okay, they've
caught the person that did it.
So
they had a suspicious circumstance. Mike Chapel had made the call at Ms.
Thompson's. Let me tell you how they went about investigating it.
The
evidence is going to show they didn't go up to the northside precinct where
they suspected an officer up there may have done it, although there's no
assurance it couldn't have been any Gwinnett County police officer in uniform.
They don't necessarily had to have been on duty. The evidence is going to show
they take their cars home. The Gwinnett County police officers all take their
cars home. They have their uniforms available. There were probably two hundred
police officers at that point that could have been the suspect in the case.
Now,
let me tell you how the police went about conducting their investigation. They
did a photo lineup. They had some witnesses that said they might be able to
identify somebody, so they did a photo lineup, an eight-person photo lineup.
There are thirty officers, male officers, at the northside precinct, not
counting all the others that worked at the other precincts or headquarters. But
there are thirty that worked up there.
Out
of those thirty officers that worked the northside precinct who would have been
your most primary suspects, they placed in the photo lineup exactly one
photograph of somebody from the northside precinct, and that was Mike Chapel.
His was the only photograph that was placed in that eight-person photo lineup.
Not any of the others.
Then
they proceeded to take this photo lineup which would suggest, the evidence will
show, was suggestive because of the fact it didn't include any of the other
suspects. They took that and they showed it to a Mr. Kautter, who you will hear
testify. A man Mr. Porter referred to that drove by and said the police car
passed him. The evidence is going to show that he examined those photo lineups
-- this photo lineup for about two minutes. He looked it over, he looked at
number 7, which was not Mr. Chapel, and said, 'That's like him, but it's too
skinny.' Then he proceeded to pick Mr. Chapel. And I want you to listen very
carefully to the evidence when it comes in the court here. His exact words, and
I'll quote what Mr. Kautter said was, 'I'll have to say that it's number 3.
I'll have to say that it's number 3.'
During
pre-trial hearings when the evidence will come out to you, I questioned the
officer showing him that photo lineup. 'Did you inquire -- was he sure about
it? What did he mean by that?' And the officer said, 'No, he signed the
affidavit, and that was good enough for me.' He didn't ask him what he meant
by, 'I'll have to say that's number 3.'
At
the pre-trial hearings we had, I took the photographs of the other twenty-nine
police officers, male police officers, that worked that precinct and showed
them to Mr. Kautter. Mr. Kautter will testify --
MR.
PORTER: Your Honor, I'm going to object to this, Mr. Moore's testifying, unless
he intends to take the stand as to that matter, and, of course, he can't as
counsel.
MR.
MOORE: Your Honor, there's transcripts of those. I believe I can go into what's
been testified to by witnesses I expect to be proved.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: It seems to me the distinction is between state what transpired at the
hearing as opposed to what they're going to say when they get here. It seems to
me if you know -- if what they've said is what you expect them to say here,
you're entitled to say what they're going to say and what the statements are
going to be and what the evidence is. I don't think the issue is what have they
said at some other time at some other hearing, it seems to me; but, in fact,
what they are going to say, what the evidence is going to be. It seems to me
you're entitled to say about what the evidence will be. Is that a fair
statement?
MR.
PORTER: That and Mr. Moore saying, 'I did this and I did this.'
THE
COURT: Well, I'm inclined to agree. I think if you know that's what they're
going to say when they get here, if you know what they're going to say, that's
what the evidence is going to be, I think you're entitled to say that.
MR.
MOORE: Okay.
THE
COURT: Okay? All right.
[Bench
conference concluded.]
THE
COURT: Go ahead, please.
MR.
MOORE: I'll rephrase that a little differently. I expect the evidence to show
that Mr. Kautter will testify that
there's a photo in that photo lineup that is similar to one of the other
officers at the northside precinct. That photograph that he picked out is of
Officer J. P. Morgan, who committed suicide May 10, 1993, shortly after Mr.
Chapel's arrest.
At
that time, the police conducted a minimal investigation of Officer Morgan. They
Luminoled his car, they did some checking of weapons and everything after he
committed suicide, and that was the end of it.
Now,
let me talk to you about this rush to arrest somebody, to solve this case
quickly. At the time that Mike Chapel was called in on April 22, the night of
April 22, the morning of April 23, late in the evening, early morning hours, at
that time, the police department had not interviewed the other officers at the
northside precinct. They didn't go up there and isolate everybody and ask every
officer up there, 'What were you doing, where were you on the night of April
15?' They called Mike Chapel into headquarters. He came, like a police officer
dutifully would when he's ordered to come in.
The
evidence will show the decision had already been made to arrest Mike Chapel at
that point based on the photo ID by Mr. Kautter. The evidence will show that
after they got Mike Chapel to headquarters, when the decision had already been
made to arrest him, in a frantic flurry then, they went out and started
interviewing people.
They
interviewed Brian Reddy who was working that night with Mike Chapel. For some
unexplained reason Brian Reddy lied to them and said that Officer Chapel was
not at the fire station that night. All of the evidence subsequently shows that
Mr. Chapel was there: the firemen, Sergeant Stone, the other officers.
That
didn't seem to bother the police very much. They proceeded on. They took
minimal statements from every other officer accepting whatever they said without
really checking into it. The decision had already been made to arrest Mike.
There wasn't any reason to check any further.
Now,
the videotape that's going to be played, they did videotape the statement of
Officer Chapel. I would ask you to watch that very carefully, too. Mike Chapel
is a police officer. He understands how things work, and he understands when
the police department doesn't investigate and turns on him and starts to put
all these things to try to show that he did it, that it's an uphill battle.
He's against the whole police department at that point. He realized, and you'll
notice it on that videotape, they didn't tell him, but he knew they were
probably going to arrest him at that point.
Now,
the state wants to make much of a lot of little things here and say that all of
these show that he's guilty. They talk about the money that he had. The
evidence is going to show that Mike Chapel -- it's a small town up at Buford --
that Mike banked at the same bank, the People's Bank, that Ms. Thompson did.
It's going to show that he owned a business called Iron World, a gym up there,
which generated cash, mostly cash fees from people going there and working out
and everything. His wife worked at a restaurant, a place called Hooter's, some
of you may have heard of it, and she received cash tips there. They didn't have
credit cards. They dealt and paid their bills and everything with cash and with
his police department paycheck.
The
state wants to make a lot about his financial circumstances. Mike Chapel didn't
have a lot of money. He was a police officer. The citizens don't pay their
police officers very much. He had side jobs. Nearly all of the police officers
work second jobs. The evidence will show that he worked a second job.
He
had a wife and two children. The state wants to go in, too, to what Ms.
Thompson's friends may have said, gossip, about what was going on prior to this
happening, and we'd ask you to take that for what it's worth.
They
left the car out at the police department, where Mr. Chapel drove in and parked
it, basically unsecured for several days out there with a number of sets of
keys to it around different places that people had access to it. It was parked
in a parking lot there where the public pretty much has access to it. There's a
gate there, but that gate's never closed, or at least on rare occasions, if it
is.
The
DNA in this case, and I know you've all heard a lot about it from television,
and we all asked you questions about it during voir dire, first of all, in this
case there was a very small, very poor quality sample to begin with.
In
forensics, when you have a problem with a test, you only have the one small
sample. You cannot go back and retest it. In diagnostics, such as paternity, if
you had a test that showed there might be a problem, and you were concerned
about it, the scientists will testify they would go back and rerun that test.
They wouldn't accept the results.
We
expect the evidence is going to show that there are problems here with the test
that was run in this case. The crime lab does things that's called bio-imaging
that Mr. Porter referred to. That's a computer that takes this thing, like an
autorad, it's like an x-ray, and it finds the darkest spots. There's spots on
there that match up or don't match up of DNA. It finds the darkest spot which
it believes to be the center and it centers on that to make measurements then
to determine whether or not there's a match with the computer.
Well,
that's all a nice, sophisticated piece of equipment, but it's not a lot different
than a ruler or yardstick. If you -- it's more sophisticated in that it
measures smaller amounts, but if you have something here and you place it in
the center with a ruler to measure it, then depending on where you decide the
center is, you'll get different results in the measurement.
That
fancy machine that they've got, if they don't like the way it places the dots
in the center there, they have the ability to manipulate it. In other words,
they visually say, 'Well, I look at this and it doesn't look to me like that's
the center,' so they eyeball it and they put it where they think the center is.
They don't rely on the machine. You're going to hear the testimony of that.
They
were under a court order -- that last probe that was run, they were under a
court order, the evidence is going to show, to preserve that, that bio-image,
so it could be examined by other expert witnesses. They, this crime lab,
accidentally erased that and destroyed it. When they were searching for it,
after they had erased it and destroyed it, they discovered that they had one of
the bio-images from the original five probes that they had told us had been
erased.
When
we examined that, when the expert witness examined that, it appeared that they
had in fact manipulated the points where the machine picked up things on that
probe that they had preserved. In other words, they had not relied on the
machine. They had gone back in and made changes. Now, they didn't keep any
records of the others, whether they had manipulated any of the others or not,
so we don't know, and they don't know. What they're saying is, 'I'm a
scientist, trust me.' And we think the evidence is going to show that other
scientists disagree with them.
We
expect there's going to be evidence to show that there may have been
contamination from a mixed sample here. And when you have that, then the
results are no good in the DNA test. They can't do a mixing experiment here. If
it was a diagnostics situation, like paternity, they can do what's called a
mixing experiment to determine whether or not there's been a mixed sample. They
can't do that here. And the reason they can't, they don't have a large enough
sample. The sample that's located is not large enough. It would be a simple
accepted test in a paternity case for child support to determine whether that
happened or not, but they can't do it here.
There's
one probe that you're going to see that it matches the car seat, it matches Ms.
Thompson, and it matches Mike Chapel's blood. Now, they included that in their
results even though it's a match for all three. And they explain away, 'Well,
that can happen. Those things happen.'
The
standards, we expect the evidence to show, should be the same for all DNA.
There should not be lower standards simply because the evidence that they have
available is not of good quality or is not enough to do the right test or
enough to do what should be done.
The
examples that I gave you about the 'probably,' the suspicion, they focused on
Mike Chapel from the beginning. They arrested him when they didn't have any of
this DNA evidence. They had not talked to the other witnesses. That rush to
judgment. Then they proceed to get the eyewitness identification, which is
tentative at best, and we don't expect there to be any evidence that he tried to
find out whether or not Mr. Kautter was sure about that.
Getting
back to the crime lab with the DNA evidence, Mr. Porter talked to you about the
Luminol. We expect the evidence is going to show that Keith Goff from the crime
lab, who performed the test on the DNA, he's the one that did the actual work,
asked his boss, George Herrin, Dr. George Herrin, about the Luminol, whether it
would affect the test or not. Dr. Herrin's scientific answer was, 'I don't
think so.'
Ladies
and gentlemen, the state -- we contend the evidence here, and the state never
started at the police department with an open mind, in their rush to make an
arrest, to assure the public everything was okay, they immediately went after
Mike Chapel because he had the misfortune to make that call out there to Ms.
Thompson's. After you listen to all the evidence in this case, we believe that
you're going to return a verdict of not guilty in this case, and that verdict
speaks the truth. Thank you.
THE
COURT: Would you approach the bench, please?
JUROR:
Your Honor, could we take a brief recess?
THE
COURT: We're just about to, yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: I was thinking like maybe fifteen minutes and everybody -- you can get
your witnesses together, and I may let the jurors maybe get a cup of coffee or
something.
MR.
PORTER: Your Honor, one thing that occurred to me is you might want to check
with the bailiffs and see how many smokers you've got because that's going to
determine --
THE
COURT: Yeah, I had asked them earlier. I don't know whether we got any or not.
MR.
PORTER: -- that's going to determine some of your breaks.
THE
COURT: Maybe we'll help them stop for a few minutes.
MR.
PORTER: Maybe we won't.
THE
COURT: We'll take fifteen minutes.
MS.
ROGAN: Okay. That's fine.
[Bench
conference concluded]
THE
COURT: Mr. Allen, would you approach the bench, please.
[The
bailiff, Mr. Allen, approached the bench.]
THE
COURT: We're going to take fifteen minutes.
THE
BAILIFF, MR. ALLEN: Okay.
THE
COURT: You can take them to get a cup of coffee or something.
THE
BAILIFF, MR. ALLEN: Dorothy came up a while ago and asked me about what time. I
told her about 10:30, and she's going to set some stuff up down there.
THE
COURT: Okay.
THE
BAILIFF, MR. ALLEN: Let me ask one more question. Are they going to get a
deputy in here at all times? Can we leave the pads and things over the break?
THE
COURT: Yeah. That would be fine.
[Bench
conference concluded.]
THE
COURT: Ladies and gentlemen, we're going to take a fifteen-minute recess at
this point. Leave your pens, pads, notes in your seats. They'll be waiting on
you when you return. If we have any smokers, the bailiffs will try to
accommodate the smokers as well. We're going to give you an opportunity during
this recess to get a cup of coffee or a Coke or something, if you wish. We'll
take fifteen minutes.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Anything else at this point,
Mr. Porter?
MR.
PORTER: Your Honor, I intend to use the easel and some diagrams, and I realized
from my opening statement the back was to the Court. I expect that this might
be the best area, but I'm not sure.
THE
COURT: Well, that will be fine. But if it's a choice between the jury seeing it
and me seeing it, the jurors are going to decide it, so place it where the
jurors can see it. That's fine.
MR.
PORTER: Yes, sir.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll be in recess fifteen minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Ready, Your Honor.
THE
COURT: Ask the jurors to come back in, please.
MR.
MOORE: Your Honor, could we approach the bench?
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
MOORE: We had mentioned during the pre-trial hearings perhaps not letting
people come and go and have the doors banging and everything. And with the jury
here, we think it would probably be a better idea for the people not to come
and go. I mean, we realize it's in your discretion, whatever you want to do, I
mean --
MS.
ROGAN: During opening, the door was opening and literally every juror, their
eyes just went to the door, and we're worried about them not -- you know, about
them getting distracted during the testimony.
THE
COURT: Well --
MR.
PORTER: Your Honor, a certain amount of in-and-out is necessary. I mean, your
guys -- a lot of people are going to have to go in and out.
THE
COURT: Yeah, we may be -- I guess my concern is that we have, you know, hour
and a half stretches, you know, where it may be a problem with somebody -- I
think my inclination at this time, let's see how it goes.
MS.
ROGAN: Okay.
THE
COURT: I think the witnesses -- I'll do that for closing, and if it's a problem
with the witnesses coming in in examination of witnesses, then everybody just
kind of keep an eye on it and see how it's going.
MS.
ROGAN: Okay.
MR.
DAVIS: The jury will get used to it.
THE
COURT: And if you think it's getting to be a problem or you want to renew your
request, then I'll reconsider it.
MR.
MOORE: Okay.
THE
COURT: Okay.
[Bench
conference concluded.]
SERGEANT
PARR: Ready, Your Honor?
THE
COURT: Yes, sir.
[The
jury returned to the courtroom and proceedings continued, as follows.]
THE
COURT: Let's first take care of a couple of housekeeping matters. One is,
jurors oftentimes are concerned about if it matters where they sit. And it's
not. I, it's first come, first served in the jury box, wherever you see and
hear best on a first come, first served basis.
The
other is, Mr. -- well, on a juror who had a conflict, that matter's been taken
care of in DeKalb County and -- that matter's been taken care of, so no need to
be concerned about that. That will be done later when you're through with this.
Okay? Call your first witness, Mr. Porter.
MR.
PORTER: The state would call Theron Smith to the stand. Theron Smith.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Smith, if you'll take the stand up here and, Mr. Porter, I'll ask
you to administer the oath.
MR.
PORTER: Thank you, Your Honor.
MR.
PORTER: Mr. Smith, if you could have a seat right up there.
THE
WITNESS: Thank you.
[The
witness stepped to the stand.]
MR.
PORTER: If you could you raise your right hand. Do you solemnly swear the
testimony you're about to give in this matter now pending, shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. You can put your hand down, and could you
state your name.
A. My name?
Q. Yes, please.
A. Theron S. Smith.
Q. Now, Mr. Smith, where do you live?
A. 11845 Findley Road, Alpharetta.
Q. And how are you employed?
A. I'm retired.
Q. Now, let me ask you, do you do work on the
side or do you do automotive work for friends?
A. Yes, sir. I work on a few cars, you know, for
my friends or something, you know, there at home. We used to run a garage and
we run -- we, you know, do a little now, but not as much as we used to.
Q. Now, let me call your attention to April 16,
1993, at about 7:40 in the morning. Did you have an occasion to be at the
Gwinnco Muffler Shop on Peachtree Industrial Boulevard?
A. Yes, sir.
Q. Is that in Gwinnett County?
A. I beg your pardon?
Q. Is that in Gwinnett County?
A. Yes, sir, on Peachtree Industrial.
Q. Could you tell the jury why you were there
that morning.
A. I took a friend of mine's Jeep Cherokee up
there to have a muffler put on it and --
Q. Why did you go to Gwinnco? Why did you go to
Gwinnco?
A. Oh, that's where I take all the cars, you
know, to have a muffler put on is at Gwinnco. I know Joe real good and I always
just take them up there and have it done.
Q. And what time did you arrive on the morning
of the 16th?
A. Approximately about twenty till eight.
Q. Can you describe what the weather was like?
A. That morning -- at the best I can remember,
it was a little cool because I had on a coat, and I think it had been raining
maybe the night before. I'm almost positive of that. But I know it was cool and
I did have a jacket on.
Q. When you drove into the driveway, did you
notice another vehicle in the driveway of the Gwinnco?
A. Yes, sir.
Q. Could you describe what that car looked like?
A. It was a brown Lincoln Continental.
Q. Did you notice whether or not any of the
windows were open?
A. Yeah. The left front window was down,
because, see, you know, I was sitting kind of, you know, up in that Jeep and it
was -- it had the road partially blocked so, you know, I had to get over a
pretty good bit to get by it, and the left window was down on it, and I could
see someone, you know, just a glimpse of them laying over in there as I, you
know, as I just eased by.
Q. Did you notice anything else about the car as
it sat there in the driveway?
A. The left front tire was flat.
Q. Was there any indication to you, based on
your experience, that the car had been driven on that flat?
MS.
ROGAN: Objection.
THE
WITNESS: Well, I couldn't tell --
THE
COURT: Just a moment.
THE
WITNESS: -- that it had because --
MR.
PORTER: Just a second, Mr. --
THE
COURT: Just a moment, please. What is your objection?
MS.
ROGAN: The objection is that I'm not sure this witness is qualified to render
an opinion on that issue.
THE
COURT: Restate the question, Mr. Porter, I'm not sure I heard it.
MR.
PORTER: Your Honor, I asked him based upon his experience was there any
indication to him that the car had been driven on the flat.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. PORTER:
Q. Mr. Smith, let me ask you the question again.
Based on your experience, was there any indication to you that the car had been
driven on the flat tire?
A. The best that I could tell it hadn't, because
normally, you know, if a tire's flat on a car, it would leave a kind of black
or wide mark, you know, where it runs in or if, you know, it's been run much
down there, it will be loose from the rim.
Q. And did you notice any of that about the
brown Lincoln that was parked in the driveway?
A. No, it was still on the wheel.
Q. So when you passed this car, and noticing
what you just noticed, what did you do then?
A. I went on by the car and pulled on up and
backed up and pulled in front of the door, you know, where he puts the exhaust
system on that, and I just pulled up in front of the car, you know, and I sat
there a few minutes and then I got out and, you know, kind of walked around a
little bit there in the yard --
Q. All right.
A. -- waiting on Joe to come in and which he
came in approximately, I'd say, ten minutes later or something like that.
Q. When Mr. Byars -- you're talking about Joe
Byars, aren't you?
A. Yes, sir.
Q. When Mr. Byars arrived, did y'all decide to
go back down to the Lincoln?
A. In a short period of time, he went ahead and,
you know, and raised the stall doors and all and put that Jeep on the rack, you
know, up there, had to go and put the muffler on it. And I was standing there
talking to him, and I told Joe, I said, 'You know, it looks like to me
whoever's in that car would be getting kind of cold down there with the window
down, you know, and the engine not running.' And we talked a few minutes there
about that and he said, 'Well, I think I'll go down there, you know, and see if
I can get them to move the car -- or if I can help them, you know, or get them
to move the car a little bit up, you know, out of the driveway where people can
kind of get by.' So I decided, you know, I'd go with him. And he had a portable
phone in his hand, and we walked off down to the car. And I was behind him
approximately three foot, and he walked up to the door of the car. And he kind
of jumped back and told me, said they was blood all in that car.
Q. All right. Did you look in the car?
A. Yes, sir.
Q. And what did you see?
A. I saw blood all in it, too. There was a pair
of glasses laying down kind of in the seat that had blood all over them, and
then the lady that was in there was, you know, was leaned over kind of to the
right. And I couldn't see her breathing, so I told Joe -- I walked around in
front of the car and looked in on the other side and I couldn't see her -- you
know, she made no movements, so I came back around and we looked again, you
know, real good. And so we decided then, you know, that she was dead and Joe
called the police.
Q. All right. Mr. Smith, I'm going to show you
what I've had previously marked as State's Exhibit Number 5. Can you take a
look at that please, sir?
A. Yes, sir.
Q. And can you describe for the jury what that
is?
A. That's a Lincoln Town -- Lincoln-Continental.
Q. Is that a photograph of a
Lincoln-Continental?
A. Yes, sir, it sure is.
Q. All right. Does that photograph accurately
depict the car you saw in the driveway on April 16, 1993?
A. Yes, sir.
Q. And let me show you State's Exhibit Number 6.
Can you look at that please, sir? Can you describe what that State's Exhibit Number
6 is?
A. It is that lady that was inside that car.
Q. All right. Is that a photograph of the lady?
A. Yes, sir. It looks just to me just like it.
It sure does.
Q. So does that photograph accurately depict
what you saw on April 16, 1993?
A. Yes, sir.
Q. And let me show you State's Exhibit Number 7.
Can you look at that please, sir? And can you describe that for the jury?
A. Yeah, this is that lady that was -- excuse
me, that was in the car. And like I say, you can see the -- the blood and all,
you know, that's up in here on her hands and all. That is definitely her.
That's the way she was dressed.
Q. All right. Does that photograph accurately
depict what you saw on April 16, 1993?
A. Yes, sir.
MR.
PORTER: All right. Your Honor, at this time, the state would move for admission
of State's Exhibit Number 5 and Number 6 and Number 7 and ask that we take a
moment and publish them to the jury.
THE
COURT: Any objection, Mr. Moore?
MR.
MOORE: Ms. Rogan's handling this witness, Your Honor.
THE
COURT: All right.
MS.
ROGAN: If I could just see them one more time. I don't think I have an
objection to them.
[Mr.
Porter presenting to Ms. Rogan]
MR.
PORTER: Your Honor --
MS.
ROGAN: No objection, Your Honor.
MR.
PORTER: Your Honor, at this time, I'll take a brief moment from Mr. Smith's
testimony and publish these photographs.
THE
COURT: All right. Just a moment. Any objection, Ms. Rogan?
MS.
ROGAN: No. No objection, Your Honor.
THE
COURT: State's 5, 6, and 7 are admitted without objection. You can publish
them.
[Mr.
Porter presenting to jury]
THE
COURT: Why don't you continue direct examination while they're looking?
MR.
PORTER: Your Honor, if I might, they're almost finished, and I would want the
jury to at least concentrate on Mr. Smith's testimony --
THE
COURT: All right.
[Pause]
MR.
PORTER: Thank you, Your Honor.
BY
MR. PORTER:
Q. Mr. Smith, let me ask you, did you touch the
vehicle or the lady in the car?
A. No, sir.
Q. Did you observe Mr. Byars touch anything?
A. No, he did not touch it.
Q. I'm going to ask you once last thing, if I
might. If you could step down off the witness stand and stand over here by the
podium or by the --
[The
witness stepped down from the stand.]
MR.
PORTER: Your Honor, the witness will be referring to State's Exhibit Number 2,
which has been previously marked and stipulated into evidence as to -- as an
accurate diagram of the Gwinnco Muffler Shop.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, Ms. Rogan's handling this witness.
THE
COURT: Ms. Rogan?
MR.
PORTER: Mr. Smith, if you could show us --
THE
COURT: Just a moment, Mr. Porter. Ms. Rogan, any issue with respect to State's
2?
MS.
ROGAN: No, Your Honor.
THE
COURT: All right. Go ahead, please.
BY
MR. PORTER:
Q. Mr. Smith, if you could show us, using this
vehicle, where you saw the brown Lincoln in the driveway of the muffler shop.
And it will just stick to the map, so you can --
A. Approximately where it was at?
Q. Approximately where it was at.
A. Right along in there like -- I would say
somewhere right along in there, right in that vicinity.
Q. Okay. And if you could have a seat back on
the witness stand, please, sir.
A. All right, sir.
[The
witness returned to the stand.]
MR.
PORTER: Your Honor, by agreement of the parties, State's Exhibit Number 2
represents an accurate representation of the Gwinnco Muffler Shop parking lot
and intersection with Peachtree Industrial Boulevard and is to scale. The
vehicles which are used for demonstrative purposes are not to scale in relation
to the muffler shop or driveway, and that is the stipulation.
MS.
ROGAN: That's correct.
THE
COURT: All right. So stipulated.
MR.
PORTER: Your Honor, that completes my questioning of Mr. Smith. Ms. Rogan,
where would you like the podium?
MS.
ROGAN: A little further up. This is good actually. Thanks.
BY
MS. ROGAN:
Q. Good morning, Mr. Smith.
A. Good morning.
Q. My name's Elizabeth Rogan, and I'm one of
Mike Chapel's attorneys. You've told us about discovering the body in the car
on the morning of April 16, 1993.
A. Yes, ma'am.
Q. Okay. And you spoke to the police that
morning and gave them a statement?
A. Yes.
Q. On April 16?
A. Uh-huh, I sure did.
Q. And that was a little bit later in the
morning from the time that you had discovered the body, the car with the body in
it?
A. Yes, ma'am.
Q. Your statement was around 10:15 in the
morning?
A. Well, I didn't really pay that much -- I
guess somewhere around that. I know --
Q. Was it a couple of hours later?
A. I know it was a while later.
Q. Did you stay at the Gwinnco Muffler Shop that
entire time that morning?
A. Yes, ma'am. With the exceptions of when I was
sitting in one of those police cars, you know, when I gave them a statement
about what I saw. That was the only time I wasn't down there at the -- you
know, at the shop.
Q. Near where -- were you near the shop up here
or were you more down near where the car was?
A. You mean -- most of the time I stayed then
until after we discovered that. Yeah, the biggest majority of the time I was up
there close to the shop.
Q. Was the business open that morning?
A. When I got there?
Q. No, during -- after the time Mr. Byars
arrived and after the time you called the police?
A. Oh, yeah, sure.
Q. Okay. So the business opened up as usual
throughout that morning?
A. That's right. Uh-huh.
Q. Okay. How long did you stay there altogether
that morning; do you remember?
A. They probably let me go somewhere around --
I'm not really sure of the time, but somewhere around lunch.
Q. Okay. And so they had asked you to stay through
the morning. The police, are you saying -- is it the police who you said they
let you go around lunchtime?
A. Yeah. Yeah, the police. They didn't let me go
until that time. See, I was -- I asked them if I could leave -- you know, if I
could leave once they came. And they told me no, just stick around a while and
that's what I did.
Q. Okay.
A. And then two detectives told me I could
leave, you know, later on.
Q. Okay. Did one of those detectives take your
statement from you?
A. No.
Q. It was some other police officer who took
your statement?
A. It was another policeman who took the -- it
that morning. Yeah, the two that let me go was the -- well, I didn't know them,
but they was in another police car on down, you know, the road there a little
bit further.
Q. Okay. And when you made your statement, you
actually got in the back of a police car --
A. I got in the front of it.
Q. -- and talked -- in the front of it?
A. Yeah. It wasn't -- well, I guess it was a
detective, you know. It wasn't a regular police car, you know. It's just an
automobile.
Q. Like an unmarked car?
A. Uh-huh. I'm sure I'm right.
Q. Okay. Do you remember how long it was after
you and Mr. Byars discovered that there was a body in that car that the police
arrived?
A. It was very shortly. Maybe just -- I can't
say exactly, but it -- I know it was real quick anyway.
Q. Okay.
A. I'd say probably maybe ten minutes or
somewhere around there, maybe less, you know, somewhere in the vicinity of that
anyway. I know they got there real quick.
Q. Okay. And throughout the morning, a lot more
officers kept arriving?
A. Yes, ma'am.
Q. Do you remember were there maybe twenty
people altogether who ultimately arrived at the scene?
A. You talking about police?
Q. Police and investigators.
A. They was a good -- a good many. I didn't, you
know, I didn't try to keep up with how many of them were there, but they was
several there, yes, ma'am.
Q. Okay. Do you remember seeing Mr. Porter
there?
A. I didn't really look around that much that
morning. Let's see, which one is Mr. Porter?
Q. Mr. Porter is the one who was just asking you
the questions.
A. Oh, yeah, the DA. Oh, I'm sorry. I'm not
really sure who I saw up there that morning.
Q. Okay. But there were a fair number of police investigators
and officers at the scene?
A. Oh, yes. Yes, ma'am.
Q. Okay. Were you there, Mr. Smith --
MS.
ROGAN: May I approach the witness?
THE
COURT: Yes.
BY
MS. ROGAN:
Q. -- when the police put the tape around the
car?
A. Was I there -- was I there then?
Q. Yes.
A. I'm sure I was, yes.
Q. Okay. Now, do you remember telling the
police, and you've told us, in fact, this morning, that you saw the woman's
glasses on the front seat of the car?
A. That's true. Uh-huh.
Q. Okay. Do you remember where they were in
relation to her on the front seat?
A. Best I can remember, like she was -- you
know, she was laying over this way. Uh-huh. The glasses were down here kind of,
you know, like the seat or -- her legs down there. They -- the reason I know
that there was blood all over the lens, you know, they was completely --
Q. They were near her lap area?
A. Yes, ma'am. Uh-huh.
Q. On the seat?
A. Yeah. Down -- uh-huh.
Q. Okay. I just have one last question for
you, Mr. Smith. You testified that it
was cool that morning and you were concerned because the window was down and it
was a cool morning?
A. Yeah, it sure was.
Q. And it wasn't raining at that time?
A. I was trying to think if it was misting. I'm
not really sure. I don't think it was, but I do know that it was real cool that
morning because I had on a jacket.
Q. And it had been raining the night before. You
said you remembered that?
A. Uh-huh. Yeah, I think it rained.
Q. It had been raining pretty hard the night
before, hadn't it?
A. I'm pretty sure. Yeah, I think it rained. I
know it did the night before.
Q. That's all I have. Thank you, Mr. Smith.
A. Thank you.
THE
COURT: Redirect?
MR.
PORTER: I don't have any other questions for Mr. Smith, Your Honor. We'd ask
that he be excused.
THE
COURT: Do you want him --
MR.
PORTER: He can be placed on call. He's available.
THE
COURT: All right. You can come down. Thank you.
THE
WITNESS: Thank you.
[The
witness stepped down.]
THE
COURT: Call your next witness, please.
MR.
PORTER: I call Joe Byars to the stand.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Byars, if you'll be seated up here on the witness stand, please. Mr.
Porter, if you'll administer the oath.
MR.
PORTER: Yes, sir.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: Are you going to be requesting to publish all these photos as they come
in?
MR.
PORTER: Your Honor, I think based on the last experience, there may be some
photographs I want to publish, but what I'll do is wait until the end of the
witness's testimony and ask that they be published.
THE
COURT: Well, my concern is if we've got a lot of them, we're going to have some
long pauses while they're passing through. My inclination is if you want to
publish them, unless it's -- you know, I don't have any problem with that, but
I think they can keep up with what's going on, to look at them and pass them
around. They'll have them at the conclusion of the case anyway in the jury
room. So my inclination is if y'all want to, either side, you want to publish
them when you offer them in, then publish them and let's proceed on with the
witness's testimony as opposed to waiting until everybody looks at them.
MR.
PORTER: Your Honor, it might be worth it to do it for all of us the way medical
examiner's office does, is just bring a witness down off the stand and I'll
hold them and do it that way.
THE
COURT: I don't have a problem with that. I don't have a problem with that, you
know, if they want to testify about it, point out to them. But I think we're
going to have a lot of long pauses if we wait while all eighteen of them go
through the exhibits when we're looking at them.
MR.
PORTER: Yes, sir.
THE
COURT: What I'd like to do is either go on and publish them and let them pass
them around and look at them while we continue on with that witness, fine, or
bring them down and let them testify and they can -- after they're admitted,
and then the jury can look at them while you're talking to them.
MR.
PORTER: Yes, sir.
THE
COURT: I think that would help us time wise a little bit. Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Porter. Has he administered the oath?
MR.
PORTER: Not yet, Your Honor.
THE
COURT: Okay.
MR.
PORTER: Ms. Atkinson is still marking the State's Exhibits for this witness.
THE
COURT: Okay.
MR.
PORTER: Could you raise your right hand please, sir? Do you solemnly swear the
testimony you're about to give in this matter now pending, shall be the truth, the
whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. You can put your hand down. Sit back and
relax. This will only take a minute. Could you state your name, please?
A. Joe Byars.
Q. And Mr. Byars, how are you employed?
A. I'm the owner of Gwinnco Muffler.
Q. And how long have you owned that business?
A. Approximately eleven years.
THE
COURT: Can all the jurors hear? Can you hear? Okay.
JUROR:
Barely.
THE
COURT: Speak up a little bit, Mr. Byars, so everybody can hear you. Thank you.
Go ahead.
BY
MR. PORTER:
Q. You've owned Gwinnco for about eleven years?
A. Yes, sir.
Q. Mr. Byars, let me call your -- well, did you
own the business on April 16, 1993?
A. Yes, I did.
Q. And let me call your attention to that
morning at approximately ten minutes of eight. Did you arrive for work at about
that time on that morning?
A. Yes. Yes, I did.
Q. Could you describe for the jury what, if
anything, you saw parked in the driveway?
A. As I drove into the driveway, I see this tan
and brown Lincoln approximately thirty feet up the driveway. And at that point,
I see other vehicles in the parking lot, so at that point, my -- I shifted
toward the shop itself.
Q. Okay. And what -- did you have a customer
waiting?
A. Yes.
Q. Who was that customer?
A. Sanford Smith.
Q. Is that Theron Smith, Mr. Theron S. Smith?
A. I don't know his first name, just Sanford
Smith.
Q. Now, once you had gotten his business
handled, did you decide to go back down and look at the car?
A. No. When -- after I opened up the shop,
another lady came by, and then Sanford told me that there was a lady that -- in
the car, but he -- we just felt like that either she was waiting to get the --
she had a flat on her left front tire -- felt like she was either getting --
waiting on someone to come to fix the flat or possibly was asleep.
Q. Did you eventually at some point in the
morning go down to the car to determine whether or not the lady was asleep?
A. At approximately ten minutes after eight,
yes.
Q. And what, if anything, did you carry with
you?
A. As the lady that -- that had called me and
asked me would I go down and take a look at the lady in the car, because she
had dropped off a vehicle earlier. And when she went by it, she seen someone in
the car. And when she called me back, she asked me would I go check on the lady
in the vehicle. So with the phone in hand, I walked down to the car at that
point.
Q. All right. And what did you observe about the
Lincoln Continental when you got to it?
A. The window was about, I don't know, probably
about halfway down, and as I walked to the vehicle, I seen someone was slumped
over in the seat and I also, at that time, seen blood on the -- on the right --
right arm and hand.
Q. Was the person in the car moving?
A. No.
Q. Was anybody with you when you saw this?
A. No.
Q. Was Mr. Smith with you?
A. He was probably about thirty or forty feet
from the vehicle.
Q. Did he come up to the vehicle at the same
time you were standing there?
A. Not at that time, no.
Q. And then what happened once you observed the
blood on the person's hand in the car?
A. I called 9-1-1.
Q. And about how long did it take for the police
to arrive?
A. Probably about two or three minutes.
Q. When you said there were other vehicles in
the parking lot, do you remember any of those other vehicles that might have
been there?
A. One of them was Mr. Smith's, one was a
vehicle that had been left for several days that was still in the driveway that
hadn't been picked up.
Q. All right. Do you remember what kind of car
-- what kind of vehicle that was?
A. It was a S-10 -- white S-10 pickup truck.
Q. Now, Mr. Byars, I'm going to ask you to step
down here with me, and we're going to look at some Exhibits, if you can.
[The
witness stepped down.]
BY
MR. PORTER:
Q. If you can just have -- you can just stand
right there for just a second, please. First, Mr. Byars, I believe -- you can
just stand here and I'll hold these as I question you about them. If you could
look at them and see if you can identify them. I'm going to show you what's
been marked as State's Exhibit Number 8. Can you take a look at that and
identify it?
THE
COURT: Mr. Porter, you haven't identified those and admitted them prior to the
jury seeing them.
MR.
PORTER: Yes, sir. I apologize for that.
BY
MR. PORTER:
Q. Mr. Byars, perhaps it would be easier if we
did this from the witness stand.
THE
COURT: Or there if you wish, just so they're -- I think they ought to be
identified and admitted before --
MR.
PORTER: Yes, sir.
BY
MR. PORTER:
Q. Mr. Byars, I'm going to show you the pictures
here, and we'll see if you recognize them, and then we'll show them to the
jury. If you could take a look at State's Exhibit Number 8. Can you identify
that, please?
A. That's the Gwinnco Muffler.
Q. All right. Does that photograph accurately
depict the muffler shop as it was on April 16?
A. Yes.
Q. All right. And let me show you State's
Exhibit Number 9. Can you identify that, please?
A. That's also the Gwinnco Muffler.
Q. All right. Is that a picture of the front of
the business?
A. Yes.
Q. And does it accurately depict the business as
it was on April 16?
A. Yes.
Q. And let me show you State's Exhibit --
THE
COURT: You might have him indicate a year as well, Mr. Porter, so you won't
have him confused.
BY
MR. PORTER:
Q. It was April 16, 1993?
A. Yes, that's correct.
Q. Let me show you what has been marked as
State's Exhibit Number 10. Can you identify that please, sir?
A. Yes, sir. It's a sign of the Gwinnco Muffler
plus the front of the S-10 Blazer -- or S-10 pickup that has been at the
parking lot.
Q. All right. And does that picture accurately
reflect the sign and the parking lot as it was on April 16, 1993?
A. Well, no, there was one more vehicle there
when I got there that morning.
Q. All right. Which vehicle was that?
A. I don't remember, but it was Sanford Smith's
vehicle.
Q. All right. And did you later move that
vehicle into the bay?
A. Oh, yeah.
Q. All right.
A. As soon as I opened up shop; and, in fact,
before I went down to the lady, his vehicle was in the shop.
Q. And let me show you State's Exhibit Number
11. Can you identify that please, sir?
A. That's the vehicle that I seen as I pulled in
the driveway.
Q. And does that photograph accurately depict
the vehicle as you saw it on April 16, 1993, with the exception of the crime
scene tape that's on the ground?
A. Yes.
Q. And let me show you State's Exhibit Number
12. Can you identify that please, sir?
A. Yes. That shows the lady that was slumped
over to the right side of the car.
Q. And does that photograph accurately depict
what you saw on April 16, 1993?
A. No, not -- I was on the -- her side of the
vehicle the first time I seen her.
Q. Let me show you a photograph that we've had
previously marked as State's Exhibit Number 7. Can you take a look at that
please, sir? Does that accurately reflect what you saw on April 16?
A. Yes, sir.
Q. Now, Mr. Byars, let's try it again. Let's
step down. If you could stand here, we'll try and go through these photographs.
[The
witness stepped down.]
THE
COURT: Are you going to offer them, Mr. Porter?
MR.
PORTER: Your Honor, we would tender State's Exhibit Number 8, 9, 10, and 11 into
evidence as having been properly identified by Mr. Byars.
THE
COURT: Any objection?
MR.
MOORE: No objection, Your Honor.
THE
COURT: State's 8, 9, 10, and 11 are admitted without objection. Go ahead,
please.
MR.
PORTER: Your Honor, at this time, we would withhold State's Exhibit Number 12
as not having been properly identified by Mr. Byars.
THE
COURT: Yes, sir. That would be fine.
BY
MR. PORTER:
Q. Mr. Byars, let me show you again, and I'll be
your easel, State's Exhibit Number 8, which has been previously admitted. Can
you describe for the jury what that is?
A. That's the Gwinnco Muffler Shop.
Q. And let me show you State's Exhibit Number 9.
A. A closer up view of the Gwinnco Muffler.
Q. And is that you in the corner?
A. Yes, it is.
Q. Let me show you State's Exhibit Number, and
can you describe what that is?
A. That's a sign of the Gwinnco Muffler parking
lot plus the S-10 pickup.
Q. And let me show you State's Exhibit Number
11, and can you identify that, please?
A. That was the vehicle that was in the driveway
when I got there that morning.
Q. And I have one other thing for you to look
at. This has already been admitted as a diagram of the muffler shop. Does that
truly -- does that accurately depict where the brown Lincoln was when you
arrived on the morning of April 16? And if it doesn't, if you could move the
vehicle -- this just sticks, so --
A. Yeah. Okay. I'll move it down.
Q. Thank you. And you can return to the witness
stand.
[The
witness returned to the stand.]
MR.
PORTER: That's all the questions I have for this witness.
THE
COURT: Ms. Rogan, Mr. Moore?
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Mr. Byars, my name is Johnny Moore. I
represent Mr. Chapel along with Ms. Rogan. I have a few questions I'd like to
ask you. Now, did this shut your business down when this happened -- the crime
scene, when the police got there?
A. No, it did not.
Q. Okay. So your customers were allowed to
continue to go and come past the vehicle?
A. Not past the vehicle, no.
Q. Okay. How did they get in and out?
A. They came from the -- down on this end, they
came off the emergency lane and went up on this end of the building.
Q. Could you come down and show us? I'm not sure
I understand what you're telling us.
A. [The witness stepping down] Right at the end
of the emergency lane, they came -- you can get off there and come up to the
parking area.
Q. Okay. So there's not a driveway there?
A. No, no. Not a driveway.
Q. Okay. Now, how far did the police cordon off
or how far did they mark off there? Could you show the jury?
A. Well, it was immediately probably within five
feet around the vehicle itself. But they -- no one was allowed in --
THE
COURT: Just a moment, please. Are you having trouble seeing?
JUROR:
We can't see it.
THE
COURT: All right. Mr. Moore --
MR.
MOORE: Yeah?
THE
COURT: -- you're in the view of the witnesses.
MR.
MOORE: I'm sorry.
THE
WITNESS: This whole driveway was blocked off. Nobody was allowed in or out.
BY
MR. MOORE:
Q. Uh-huh.
A. And the tape itself was probably within five,
seven feet all the way around the vehicle.
Q. Okay. You can go back up to the stand.
[The
witness returned to the stand.]
BY
MR. MOORE:
Q. Do you remember who the first policeman to
arrive was?
A. Officer Byers.
Q. Did you know him?
A. No.
Q. Now, Ms. Wood, when did she call you? How
long before you went down and checked on this vehicle?
A. She called right at ten after eight.
Q. Okay. Now, at night, what kind of lights are
around your business there?
A. The only light I have is right at the edge of
the -- where it shows the parking lot. It shines directly on the front of the
shop.
Q. Okay. What kind of light is it?
A. I don't know.
Q. I mean is it -- does it light up the driveway
or just the --
A. All it lights is the Gwinnco Muffler Shop
section itself, just the Gwinnco part of it, the office part itself.
Q. Have you had occasion to be at your shop at
night at anytime?
A. Uh-huh [affirmative].
Q. Is the driveway lighted at all at night?
A. No.
Q. Okay. Are there any street lights down at
Peachtree Industrial Boulevard in front of your business there?
A. No, sir.
Q. Mr. Byars, out at the crime scene, there was
some -- was there anything holding up this tape or was it just laying on the
ground, the crime scene tape?
A. We furnished some stands that held the tape
up.
Q. Okay. So they put kind of like a fence around
the premises there?
A. Yes. Uh-huh [affirmative].
Q. Okay. And you provided those. That's all I
have. Thank you.
THE
COURT: Redirect?
MR.
PORTER: No redirect, Your Honor. We would ask that Mr. Byars be allowed to
leave and go back to his business.
THE
COURT: All right. Do you wish to keep him on call?
MR.
PORTER: Your Honor, he knows to remain on call given the nature of this case.
THE
COURT: Okay. You can come down, Mr. Byars. Thank you. Call your next witness,
please.
[The
witness stepped down.]
MR.
PORTER: I call Officer Ed Byers to the stand.
[The
witness was called to the courtroom.]
MR.
PORTER: Officer Byers, if you could take the stand please, sir.
THE
WITNESS: Yes, sir.
MR.
PORTER: Could you raise your right hand? Do you solemnly swear the testimony
you're about to give in this matter now pending, shall be the truth, the whole
truth, and nothing but the truth, so help you God?
THE
WITNESS: Yes, I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. Could you state your name, please.
A. Officer C. E. Byers.
Q. And how are you employed?
A. I'm a police officer for Gwinnett County
police department.
Q. How long have you been employed there?
A. Thirteen years.
Q. Let me call your attention to the morning of
April 16, 1993. Were you employed with the Gwinnett County police department on
that day?
A. Yes, sir, I was.
Q. What were your duties on that day?
A. Just routine patrol in the Buford, Sugar Hill
area.
Q. All right. And is that part of the northside
precinct?
A. Yes, sir, it is.
Q. Let me ask you, did you respond to a call at
approximately ten minutes after eight at the Gwinnco Muffler Shop on Peachtree
Industrial Boulevard?
A. Yes, sir, I did.
Q. Is that in Gwinnett County?
A. Yes, sir, it is.
Q. Could you describe for the jury what did you
observe when you first arrived at the scene?
A. When I first arrived, the fire department
personnel were there on the scene. I met with them briefly and I observed a
dark-colored Lincoln Continental in the driveway of the muffler shop. I
approached the vehicle. I initially noticed that the left front tire was flat.
Also, the driver's window was open. I observed a key in the ignition which
appeared to be either in the on or one of the accessory positions. I observed
the victim who was seated in the driver's seat. The upper portion of the body,
or the upper torso, was leaning over towards the passenger side of the vehicle.
I observed a wound on the top part of the head that appeared to me to be from a
gunshot.
Q. Based upon what you observed there at the
scene, what did you do?
A. I notified my supervisor by my police radio,
advising him that it appeared we had a homicide and, at that point, secured the
scene, which was basically keeping people back away from the vehicle to
preserve any possible evidence.
Q. Officer Byers -- just a second. Officer
Byers, I'm going to show you what's been marked, previously marked, as State's
Exhibit Number 12. Can you look at that and identify it please, sir?
A. This appears to be the vehicle that I saw
that morning, the brown Lincoln Continental, with the victim still seated in
the driver's seat.
Q. Does that photograph accurately depict what
you observed on April 16, 1993?
A. Yes, sir, it does.
Q. And let me show you what I've had previously
marked as State's Exhibit Number 13, can you take a look at that and identify
it please, sir?
A. Yes, sir. Again, this appears to be the front
-- left front portion of the Lincoln Continental with the flat tire, left front
tire.
Q. Does that photograph accurately depict what
you saw on April 16, 1993?
A. Yes, sir, it does.
Q. Now, Officer Byers, how long did you remain
on the scene? How long were you responsible for the scene?
A. I was there several hours. I don't recall
exactly. It was still my duties to preserve the scene even after identification
personnel and detectives were on the scene.
Q. And did you remain until the car was towed
away?
A. Yes, sir. I'm actually the one that completed
the impound form and supervised the vehicle being impounded.
Q. During that time, did you observe anyone who
was identified to you as the son of Emogene Thompson?
A. Yes, sir, I did.
Q. Could you describe what his emotional state
was like?
A. Well, I was -- I was the one that told him
that his mother was dead, and he immediately --
MR.
MOORE: Your Honor, I'm going to object to him going into hearsay on what the
son may have told him. The son can testify if he wants to, but I object to the
police officer going into what he may have told him.
THE
COURT: Mr. Porter?
BY
MR. PORTER:
Q. Officer Byers, without going into the
specific words, what was his emotional reaction to that?
A. He was crying hysterically.
Q. Thank you. That's all the questions I have.
THE
COURT: Mr. Moore?
MR. PORTER: Your Honor, if I may, we would move for admission of
State's Exhibit Number 12 and Number 13 as
photographs which have been identified by Officer Byers.
THE COURT: Any objection?
MR. MOORE: No objection, Your Honor.
THE COURT: State's 12 and 13 are admitted without objection. Go
ahead, please.
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Now, were you the first police officer to arrive,
Officer Byers?
A. Actually, Officer Robertson, who was at the
time was the Sugar Hill city marshal, pulled up about a minute prior to my
arrival.
Q. Okay. And what -- do you know what, if
anything, did you observe anything that he did?
A. No, sir. He was just standing there.
Q. So how do you know how long he was there when
you got there?
A. I honestly don't know how long I was there. I
was there a good part of the day because --
Q. No, I'm talking about Officer Robertson. You
said he was there about a minute before you. How do you know that?
A. I observed his vehicle in front of mine
traveling down Peachtree Industrial, and he pulled up probably less than a
minute actually when I got there.
Q. Now, if you would, come down from the stand
and show the jury how much of the scene was secured here using this diagram, if
you could.
[The
witness stepped down from the stand.]
BY
MR. MOORE:
Q. Just kind of stand to the side here. We're
blocking their view over there --
A. Okay.
Q. -- so the jurors can see.
A. Well, basically, my concern was this vehicle.
The business, of course, was up in this area, and I basically maintained
protection of the car, keeping people back away from it so that they wouldn't
touch it, and just basically generally stood in this area here to prevent
anyone that would -- might stop by and walk up to the car.
Q. Okay. What about the areas like over here and
around here; were those secured?
A. Secured only by the fact that I didn't
observe anyone in that area. My scope again was -- basically around the vehicle
was what I was concerned with.
Q. Did you see any people driving up across
here?
A. No, sir, I didn't see any, no, sir.
Q. You can go back to the stand.
[The
witness returned to the stand.]
BY
MR. MOORE:
Q. Now, during the time you were at the scene,
was there any search outside the evidence tape? Now, I'm talking about outside
of it. Was there any search for weapons or a pocketbook or anything like that?
A. To my knowledge, no, sir.
Q. What time did you come on duty that morning,
Officer Byers?
A. Zero 630 hours, at 6:30 a.m.
Q. Okay. And you worked the northside precinct
during that period of time; is that correct?
A. Yes, sir.
Q. Okay. Were you ever interviewed with regard
to Ms. Thompson's murder?
A. Interviewed?
Q. Yes, sir.
A. I've spoken with the assistant DA's.
Q. Were you ever interviewed before Mike
Chapel's arrest?
A. I don't believe so, no, sir.
MR.
MOORE: That's all I have.
THE
COURT: Redirect?
MR.
PORTER: Your Honor, we have no other questions at this time for Officer Byers.
We would in another portion of the case reserve him for recall. We would ask
that he receive instruction regarding discussion of his testimony and the rule
of sequestration.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
PORTER: Chapel made a statement to him that the gas bomb's outside, regarding
the incident report. I think in the orderly presentation of the case, to get
into that now messes up the orderly presentation of the case, and so I was
going to recall him for that purpose. And, of course, going to be subject to
cross-examination.
THE
COURT: Mr. Moore, any objection?
MR.
MOORE: Well, Your Honor, we can get into a problem here where if everybody did
that with every witness, we could be playing jack in the boxes here.
THE
COURT: Well, you know, I don't want every witness who testifies --
MR.
PORTER: Your Honor, I can tell you that I'm not planning -- I intend to do it
with two witnesses. One -- and there's an orderly break. Officer Byers was the
first officer on the scene and he's testified to that. He'll testify to a later
statement that Chapel made. And Dr. Frist, and
we're calling him for the purpose of the autopsy. We're also calling him as an
expert in blood spatter pattern analysis regarding the raincoat. And those are
the only two witnesses I intend to do it, and they're discrete in facts.
THE
COURT: Okay.
MR.
MOORE: We might want to do it with somebody, too, Your Honor.
MR.
PORTER: I don't have a --
THE
COURT: Yeah, okay. It might --
MR.
PORTER: I think it gives the jury an orderly presentation of the case and it
doesn't --
THE
COURT: Okay. My concern is the same as
Mr. Moore's.
MR.
PORTER: No, no.
THE
COURT: I mean, I don't want all of our witnesses coming and going on the case
in chief for each side.
MR.
PORTER: No, Your Honor. I only intend to do it with those two witnesses.
THE
COURT: All right. Okay.
[Bench
conference concluded.]
THE
COURT: Mr. Byers, the state's indicated it intends to recall you on the case in
chief. The instruction of the Court will be that until such time as you are
recalled or, for that matter, discharged as a witness in this case, that you
should not discuss with any other person your testimony. You should not discuss
any examination which -- on direct or cross, you've undergone this morning, and
you should not otherwise discuss your testimony or what's transpired in the
courtroom with any other witness until this matter is concluded. Do you have
any question?
THE
WITNESS: No, sir, I don't.
THE
COURT: All right. You can come down. Call your next witness, please.
[The
witness stepped down from the stand and exited the courtroom.]
MR.
PORTER: Your Honor, Mr. Smeal will be handling this for the state, but the
state will call Judy Graham to the stand.
[The
witness was called to the courtroom.]
THE
COURT: Ms. Graham, if you'll take the stand up here and you can go ahead and be
seated. Mr. Smeal, if you'll administer the oath, please.
[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,
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 and occupation.
A. My name is Judy Graham. I'm a crime scene technician
with the Gwinnett County police department.
Q. How long have you been so employed?
A. I've been with the department for twenty-one
years. I've been a crime scene technician for four years.
Q. For four years?
A. Yes.
Q. Okay. What are your duties as a crime scene
technician?
A. They include responding to crime scenes,
various different types of crime scenes, and collecting evidence, taking
photographs, anything documenting the evidence.
Q. Okay. Have you had training and experience in
that area?
A. Yes, I have.
Q. Okay. Would you briefly describe that for the
jury, please?
A. I've had several specialized classes ranging
from fingerprint identification to crime scene sketches, everything. Oh, we
also do marijuana tests and we've -- I've probably had eight or ten different
forty-hour classes of which are required by the department and also on-the-job
training.
Q. Ms. Graham, I want to direct your attention
to the morning of April 16, 1993, did you have occasion to respond to the
Gwinnco Muffler on Peachtree Industrial Boulevard on that date?
A. Yes, I did.
Q. Okay. Do you recall approximately what time
you arrived at that scene?
A. About 9:55 a.m.
Q. Okay. And what was your purpose in going
there?
A. We were going to investigate what we were
told was a homicide at this location.
Q. And what did you observe upon arriving at
that scene?
A. About approximately halfway up the driveway
from the Gwinnco Muffler company from Peachtree Industrial, there was a tan
over brown Lincoln Continental. It was a 1986 model. There was crime scene tape
-- barrier tape around the base of the vehicle and there was a victim inside
the vehicle.
Q. Were there any other ID technicians who were
assisting you that day?
A. Yes. Technician Mary Ann White was with me.
Q. Okay. And does she perform essentially the
same type of duties that you perform?
A. Essentially the same type duties, but she's
also a supervisor.
Q. Okay. Do you know who placed the yellow tape
around the vehicle?
A. I assumed that the first officer on the scene
did, but I don't know for sure.
Q. But the scene was secure when you arrived --
A. Yes, sir.
Q. -- at that location?
A. Yes, it was.
Q. Okay. And did you divide responsibilities
with Mary Ann White at that time?
A. Yes. Mary Ann did the videotape at the scene
and I did 35 millimeter still photographs of the scene.
Q. Did you examine the vehicle?
A. Yes.
Q. Did you notice the status of the windows of
the vehicle at that time?
A. All the windows, with the exception of the driver's
window, were up and the driver's window was approximately halfway up.
Q. Did you observe a key in the ignition?
A. Yes. The key was in the ignition.
Q. Okay. Do you recall what position the key was
in?
A. It was in the on position.
Q. Do you recall whether or not the doors were
locked or unlocked?
A. All the doors were locked.
Q. Did you observe anything unusual about any of
the tires?
A. The left front tire was flat. The other tires
were in good condition.
Q. Ms. Graham, I'd like you to examine some
photographs. [Pause] Ms. Graham, I'm handing you what has been marked as
State's Exhibit 14 -- I'm handing you what's been previously marked as State's
Exhibit 14. I'd ask you if you can identify this photograph.
A. Yes, sir. This is the picture of the victim's
vehicle at the scene.
Q. Okay.
A. This is a photograph that I took that
morning.
Q. All right. Does that fairly and accurately
depict what the appearance of the vehicle was at that time?
A. Yes.
Q. I'm handing you what's been previously marked
as State's Exhibit 15. Can you identify that photograph?
A. Yes, sir. This is a picture of the -- I'm
sorry, the victim inside the car that was taken from the driver's side.
Q. Okay. Does that fairly and accurately depict
the -- that angle of the car as you saw it on that morning?
A. Yes, it does.
Q. Okay. What is depicted in this photograph?
A. Noticeably, the window is open, and the
victim is in the front seat with her -- the seat belt was on, and she's leaning
toward the passenger side.
Q. Okay. To your knowledge and information, had
she been moved at that point?
A. No.
Q. I'm handing you what's been previously been
marked as State's Exhibit 16. Can you identify that photograph, please?
A. Yes, sir. This is a photograph that was taken
from the passenger side. It shows the floorboard -- excuse me, in front of the
console. Of note is a cigarette that's burned to its base in the ashtray and
also the victim's glasses, which were laying on the floorboard.
Q. Okay. And we'll get to this in a minute, but did
you collect those glasses --
A. Yes, I did.
Q. -- on that morning? Okay. Does that
photograph fairly and accurately depict that scene as it appeared to you that
morning?
A. Yes.
Q. I'm handing you what's
been previously marked as State's Exhibit 17. Can
you identify that photograph, please?
A. Yes, sir. This is a
photograph of the driver's side
door from the inside -- the inside of the driver's side door. The door was
open.
Q. And what do those marks
appear to be on that door?
A. These appear to be blood
spatter and maybe also some flesh up here in the corner.
Q. Does that fairly and
accurately depict how that door appeared to you that day?
A. Yes.
Q. I'm handing you what's
been previously been marked as State's Exhibit 18. Can you identify that
photograph, please?
A. Yes. This is another
picture of the same door.
Q. I'm sorry. Which door is
that?
A. This is the driver's side
door.
Q. Okay. And does that
fairly and accurately depict how the driver's side door appeared to you that day?
A. Yes. [Go to presentation of these
photographs to the jury.]
Q. I'm handing you what's been previously marked
as State's Exhibit 19. Can you identify that photograph, please?
A. Yes. This is the picture of the floorboard in
the rear of the vehicle directly behind the driver's seat. There's some blood
here and just paper and stuff that was in the back of the vehicle.
Q. Okay. There appears to be some debris
depicted in that photograph --
A. Yes.
Q. -- can you identify what that debris is?
A. I'm not sure what debris you're speaking of.
Q. Okay. This item here in the -- right behind
the seat.
A. Okay. This is a cigarette package, a Now cigarette
package. There's a Dairy Queen cup here and a Marlboro -- a couple of Marlboro
packages over --
Q. Does that fairly and accurately depict how
the rear floorboard appeared to you that day?
A. Yes, sir.
Q. Okay. I'm handing you what's been marked, previously
marked, as State's Exhibit 20. Can
you identify this photograph, please?
A. This is a photograph of the passenger side
front seat. This would appear to be a bullet hole in the cushion of the front seat.
There's also some type of tissue matter on the seat and
it also shows the glasses -- I'm sorry, not on the seat. The tissue's on the
floorboard.
Q. Okay. When you say tissue, what type of
tissue are you referring to?
A. Probably brain tissue.
Q. Does that fairly and accurately depict the
condition of that seat as you observed it on that day?
A. Yes, sir.
Q. I'm handing you what's been previously marked
as State's Exhibit 21. Can you identify that photograph,
please?
A. Yes, sir. This is the projectile that was
located in the floorboard in front of the passenger side seat in the vehicle.
It was on the floor mat directly in front of the seat.
Q. Okay. There appears to be some type of small
measuring scale on the floorboard.
A. Yes, sir. This is --
Q. Who had placed that there?
A. I did.
Q. Okay. What was the purpose of that?
A. Just to show the size of the projectile so
that we could take it up to one-to-one size if we needed to.
Q. And does that fairly and
accurately depict how that floorboard appeared to you on the day of April 16?
A. Yes, it does.
Q. And finally, I'm handing you what's been
previously marked as State's Exhibit 22.
Can you identify that photograph, please?
A. Yes, sir. This is a photograph, after the
victim was moved, of the driver's seat and the console. It shows -- she had a
-- there was a cigarette case in the console and there was quite a bit of blood
and matter in the console itself and on the seat.
Q. You actually took all of these photographs;
is that correct?
A. Yes, sir.
Q. With respect to that last item, does that
fairly and accurately depict the condition of that seat as you saw it on the
day of April 16?
A. Yes, it does.
MR.
SMEAL: Your Honor, at this time, the state would move to admit State's Exhibits
14, 15, 16, 17, 18, 19, 20, 21, and 22.
MS.
ROGAN: No objection, Your Honor.
THE
COURT: State's Exhibits 14, 15, 16, 17, 18, 19, 20, 21, and 22 are admitted
without objection.
MR.
SMEAL: Your Honor, at this time, the state would ask permission to publish
these to the jury and rather than passing them around, if I could just be
permitted to hold them up for the jury sequentially.
THE
COURT: Any objection, Mr. Moore?
MS.
ROGAN: We have no objection, Your Honor.
THE
COURT: Go ahead, please.
JUROR: Your Honor, may we also see State's 12 and 13?
THE COURT: You'll see all exhibits when they're admitted into
evidence. [Of course, they had already been admitted
into evidence.]
JUROR: Okay. They weren't passed around.
THE COURT: Not necessarily now.
JUROR: Okay. Thank you, Your Honor.
THE COURT: All right. Go ahead.
MR.
SMEAL: State's Exhibit 15.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 16.
MR. SMEAL: The next photograph is State's Exhibit 17.
[Presenting to the jury]
MR. SMEAL: This was identified as the
passenger side door. [No it was not, and these
photographs were identified as driver side door photos in the trial index.]
THE
COURT: You're just stating the Exhibit Number, Mr. Smeal.
MR.
SMEAL: That was State's Exhibit 17. The next photograph is State's Exhibit 18.
[Presenting
to the jury]
MR. MOORE: Your Honor, one thing, I noticed the cameras over here.
I hope the camera's not getting the jury with Mr. Smeal being so close.
[At the time of the habeas preparation we felt that Mr.
Moore was not paying attention or he would have straighten out the
misidentification of the door, but in reality he was colluding with the
prosecution trying to get the juror’s attention away from the photographs. He
succeeded. There were no further interruptions but the jury.]
THE
COURT: Yes, sir. I hope not as well.
MR.
SMEAL: The next photograph is State's Exhibit 19.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 20.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 21.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 22.
JUROR: Excuse me, would you put number 15 back up there again of the
photograph? She's wearing the seat belt. She's having --
THE COURT: If you have any question from any juror, write it down
and pass it to the bailiff, please. Would you approach the bench, please?
[Counsel approached the bench and the following conference ensued
outside hearing of the jury.]
THE
COURT: We're going to have problems with these photos. I think what we need to
do with these photos is as they're admitted to go on and pass them and give
them to them and let them pass them around while we continue on. I just think
if we do it like we're doing it, we're going to get repeated questions and
we're going to have -- we'll have talk with the jurors or questions posed. It's
just going to be unavoidable. I think if you want to publish them after they've
been admitted, hand them to them and let them pass them down the line while we
proceed on.
MR.
SMEAL: We've tried it both ways and, you know, the problem is it seems to be so
time-consuming for them to do it, but whatever the Court wishes.
THE
COURT: I think let them look at it for whatever they're worth and they can
listen and continue on if you want or have the witness come down for the
specifics and have them identified. But I think the pauses -- I think they're
too time-consuming and I think if we pass them out, we've got some jurors on
here who are just a little too active. We're going to have conversation which I
don't think is appropriate.
MR.
PORTER: It might be during the lunch break, we can work up a board with some
clear plastic on it and we just drop them in and identify them.
THE
COURT: I just don't think it's a problem if you want to pass them around, let
them look at them for whatever they're worth. You can talk about them in closing.
You can have other witnesses on direct or any of these witnesses if you want to
with the specifics of them that you want to point out to them during the course
of examination, but I don't think walking by is going to work, and I think
pauses --
MR.
SMEAL: Well, I was trying to speed things up, but I --
THE
COURT: Yeah, I know. I know. Well, let's do it the other way. If you want them
to see them, publish them, and pass them to them, and let them look through
them while we continue on.
MR.
SMEAL: Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Smeal.
MR.
SMEAL: Thank you, Your Honor.
THE
BAILIFF, MR. BYRD: Your Honor?
THE
COURT: Yes, sir. Just a moment, please.
[The
bailiff presenting to the Court]
THE
COURT: Thank you. Go ahead please, Mr.
Smeal.
BY
MR. SMEAL:
Q. Ms. Graham, I'm handing you what has
previously been marked as State's Exhibit 23. Can you identify that item,
please?
A. Yes, sir. These are the glasses that were
taken from the front of the vehicle. They were on the -- on the floorboard
directly in front of the console.
Q. And did you collect that item?
A. Yes, I did.
Q. Okay. And looking that item today, does it
appear today to be in the same condition that you observed it to be back on
April 16, 1993?
A. Yes, basically.
Q. To your knowledge, Ms. Graham, there were no
scientific tests done on this item; is that correct?
A. That's correct.
MR.
SMEAL: Your Honor, at this time, the state would move to admit State's Exhibit
23.
THE
COURT: Any objection?
MS.
ROGAN: No objection, Your Honor.
THE
COURT: State's 23 is admitted without objection.
MR.
SMEAL: I'd also ask, Your Honor, that the state be allowed to publish this item
to the jury.
THE
COURT: Any objection?
MS.
ROGAN: No, Your Honor.
THE
COURT: Go ahead, please. Just do not remove them from the cellophane, please.
BY
MR. SMEAL:
Q. Ms. Graham, following the processing of the
scene at the Gwinnco Muffler shop, are you aware of whether or not the victim's
vehicle was moved?
A. Yes, it was.
Q. Okay. And where was it moved to?
A. It was moved to the helicopter hangar at
Briscoe Field, the police helicopter hangar.
Q. Okay. And did you proceed to that location?
A. Yes, we followed the vehicle.
Q. Okay. And what was the purpose in proceeding
to that second location?
A. We needed a place where we could process it
for fingerprints and to collect evidence out of it.
Q. Okay. And was that done at that second
location?
A. Yes, it was.
Q. Okay. Who processed the vehicle for
fingerprints?
A. Technician White and I did.
Q. And you have previously
identified in State's Exhibit, I believe it's 21, you have previously
identified a projectile; is that correct?
A. Yes, sir.
Q. Okay. And when and where
was that item found?
A. It was found in the front
of the vehicle after we got it to the hangar, when we opened the doors.
Q. Okay. And was that item collected?
A. Yes.
Q. Okay. Who collected that item?
A. Technician White collected it.
Q. Was anything done with respect to the flat
tire at the hangar, at the second location?
A. Yes, sir. We had someone from the county shop
come over and take the tire off, and then we transported it to headquarters and
sealed it up in a holding cell, and then we packaged it and sent it away to the
crime lab.
Q. And was that tire removed in your presence?
A. Yes.
Q. Was Mary Ann White also present when the tire
was removed?
A. Yes, she was.
Q. And after the tire was removed, what did you
do with it, if anything?
A. We took it -- we had a crime scene vehicle
with us, and we put it in the vehicle and took it over to headquarters and
locked it up in a holding cell which is the old cells that we used to use. Now,
they're used for our evidence. We put it in there until we could package it for
the crime lab.
Q. And did you place it in that cell at the police
department?
A. Yes.
Q. Okay. And did you subsequently have occasion
to move it to some other location?
A. Yes. After it was packaged and the paperwork
done for the crime lab, we took it to the holding -- to the locker, an after
hours locker in the evidence room.
Q. Okay. Do you recall what date you did that
on?
A. It was on the 16th, I believe.
Q. So the 16th, it was placed into the cell?
A. Oh, the 16th -- it was on the 19th, I'm
sorry.
Q. All right. So it was placed into the cell on
the 16th --
A. Yes.
Q. -- and moved to the locker on the 19th?
A. Yes, sir.
Q. When was it packaged up for the crime lab?
A. Well, it was packaged, ready to go to the
crime lab on the 19th, but I don't think they took it then.
Q. Do you recall what type of tire it was?
A. It's a Hallmark steel-belted radial was the
identifying mark on it.
MR.
SMEAL: Your Honor, at this time, I would ask that this item be marked as
State's Exhibit 24, I believe.
[State's
Exhibit Number 24 was marked for identification by the court reporter.]
BY
MR. SMEAL:
Q. Ms. Graham, if you could perhaps just step
down here and I'd ask you to take a look at what's been previously been marked
as State's Exhibit 24. Can you identify that item?
A. [The witness stepped down] Yes, sir. This
appears to be the same tire that we took off the car and sent to the crime lab.
Q. Is that your packaging material that the tire
is in at this point?
A. No, ours -- we use brown kraft paper. This
was put on by the crime lab when they sent it back.
Q. Was there -- there appears to be a rather
large hole in the tire at this point. Was that in the tire when you packaged it
up between the 16th and the 19th of April 1993?
A. Not that hole. There was a hole, but it was
more like a cut, not anything like that. You couldn't see air through it.
Q. Okay. With the exception of that alteration,
the large hole, does that tire appear to be in the same condition today as it
was back in April 1993, when you packaged it?
A. Yes, it does.
[The
witness returned to the stand.]
MR.
SMEAL: I have no further questions at this time.
THE
COURT: Mr. Porter -- I mean, Mr. Moore,
Ms. Rogan?
MS.
ROGAN: I'm going to handle it.
CROSS
EXAMINATION
BY
MS. ROGAN:
Q. Good afternoon.
A. Hi.
Q. Is it Investigator Graham or Officer?
A. Technician.
Q. Technician?
A. Uh-huh.
Q. My name is Elizabeth Rogan and I'm one of
Mike Chapel's attorneys. I have just a few questions for you. What time did you
arrive at the scene on April 16?
A. 9:55.
Q. Okay. And so the securing of the scene and
the arrival of the rest of the investigative officers had likely already
occurred by then?
A. Yes.
Q. Okay. Is it fair to say you were one of the
last people to arrive?
A. Probably, yes.
Q. And during the course of that morning, there were
quite a number of investigators and police officers who were present?
A. Yes.
Q. Probably up to around twenty people?
A. Maybe that many.
Q. I think you told us, and forgive me for not
remembering correctly, but the car itself had already been secured by the time
you arrived?
A. Yes. There was barrier tape around the car
itself.
Q. Okay. So you didn't participate in taping
that yourself?
A. No.
Q. And you don't know, in fact, who did tape it?
A. No, I don't.
Q. The day before this, April 15, had been a
Thursday?
A. Yes.
Q. There was another murder in Gwinnett County
that day, wasn't there?
A. Yes.
Q. It involved a woman at a pet shop?
A. Yes.
Q. And you were present at that --
A. No.
Q. -- crime scene also?
A. No.
Q. You didn't have any involvement in that
investigation?
A. No.
Q. Was the manner in which the car was secured
at the crime scene at Gwinnco Muffler standard procedure?
A. Yes. In fact, there were -- the tape was
actually tied around some post type things that had weights on them, but they'd
been blown over by the wind. Other than that, the taping was normal.
Q. Okay. I think that's apparent in a few of
these pictures -- a few of them. I'll show you State's Exhibit Number 14. Is
this what you were referring to?
A. Yes. These type things. There was also one
here and you can see the base of it is turned over on the back.
Q. Okay.
A. And there's another one there.
Q. Okay. And while I'm at it, you'll see in this
picture the windshield wipers appear to be --
A. They were in the on position.
Q. On position?
A. Yes.
Q. Okay. Indicating that it had rained --
A. Yes.
Q. -- when the car was stopped. Now, you
testified on direct examination that the window was halfway up when you arrived
at the scene?
A. I believe I said approximately halfway up.
Q. Okay. A couple of pictures that show -- is
this what you're referring to, in State's Exhibit 7 and 15, to the windows
being halfway up?
A. Yeah. Yeah, that's what I was referring to.
It appears to be more like a quarter of the way up.
Q. Okay. So the windows, to your knowledge, had
not been moved --
A. Rig
