P R O C E E D I N G S

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Friday, August 25, 1995; STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., Presiding.]

THE COURT: Good morning.

MR. PORTER: Good morning.

MS. ROGAN: Good morning.

THE COURT: Is the state ready?

MR. PORTER: The state's ready, Your Honor. We have one matter to discuss this morning before the jury comes in, which is the -- we anticipate that we are going to play the videotape today, barring unforeseen technical difficulties. We're in the process of preparing everything as we speak. We have filed with the Court, and I have the original with me, and provided defense counsel and the court reporter with a copy of our preliminary request to charge.

THE COURT: That's the cautionary instructions --

MR. PORTER: The cautionary instructions.

THE COURT: -- prior to the video?

MR. PORTER: Yes, sir.

THE COURT: Okay. I'll take a look at that and review it prior to -- in conjunction with the Watson case that we discussed last night.

MR. PORTER: Yes, Your Honor.

THE COURT: And then we'll take that up.

MR. PORTER: There is one other matter I'd like to approach the bench on with counsel.

THE COURT: Yes, sir.

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

MR. PORTER: Your Honor, last night -- do you want to wait for Johnny?

MS. ROGAN: No. Go ahead.

MR. PORTER: Last night, as I was laying awake at two o'clock in the morning, I found myself with a -- I think we've all been commenting on Mr. Ford's demeanor. And, frankly, you know, a man's on trial for his life. The attorneys are busting their butts to make a presentation here; and, very frankly, I have to say I'm a little insulted as the time goes on.

And one suggestion that I thought I would make, and we discussed this yesterday, is Mr. Allen, the head bailiff, seems to be a perfect candidate to perhaps have a little discussion with Mr. Ford about the gravity of this matter and perhaps courtroom demeanor.

I don't find it necessarily distracting, but -- and I don't know whether the Court wants to do it, but I think one thing that concerns me is the woman who's sitting next to him is a juror --

MS. ROGAN: Uh-huh.

MR. PORTER: -- and his fiddling around could be distracting to her. I mean, yesterday I saw him, at one point in the testimony, he was lounging in his chair with his feet up on the jury rail.

THE COURT: Well, yeah. I know. Mr. Moore?

MS. ROGAN: I hadn't noticed anything yesterday. I have in the past few days. We had discussed this, Mr. Porter and I, previously as to whether it was possibly having an impact on the other jurors. I mean, the likelihood of him ever having to make a decision in this case is remote, but he could influence the other jurors just by behaving like he doesn't take this very seriously.

THE COURT: Well, he's nineteen.

MR. MOORE: I was going to say I think that's one of the hazards of having a nineteen-year-old on a jury.

THE COURT: I've got two of them at home, you know, and I know. I share your concerns. I mean, you've got -- and I guess the question is to what extent can you -- can any of us encroach on a juror's right to be very relaxed about it all if they want to.

MR. PORTER: Well, Your Honor, I guess --

THE COURT: I mean, I've had -- I guess it's always a concern of mine when you have a lot of really young folks. We had one last summer, I think out of twelve jurors, ten of them were college kids and one of them went to sleep twice before we got through the first witness. We had to bring him back and tell him, 'Hey, look, now, you've got to stay awake and pay attention to what's going on here,' you know, and that seemed to work with him, but --

MS. ROGAN: We have no objection to Mr. Porter's suggestion that Mr. Allen just speak to him in some manner as to appropriate courtroom decorum.

THE COURT: Yeah. It probably would be good to just pass it on from me, tell him that I have a concern about him paying attention and being distracting.

MS. ROGAN: That's correct.

THE COURT: You know, this is serious business.

MS. ROGAN: That's correct.

MR. MOORE: If you wanted to make that a part of the record, you could give him some written instruction that Mr. Allen would convey to him, you know.

MR. PORTER: Or a note from the Court.

MR. MOORE: That's what I mean, like a note from the Court or something, you know, that it's a serious matter.

MR. PORTER: I've sort of tolerated it for a week, but I mean, everybody here is involved in serious business, and Mr. Ford's playing tiddly winks in the jury box.

THE COURT: Well, he's certainly relaxed.

MR. PORTER: I mean, I want the jurors to be as happy as the next person, but under the circumstances --

THE COURT: What's the defense request?

MR. PORTER: I mean, yesterday, for instance, they caught him trying to communicate with his parents about a telephone call, and the deputies talked to the parents.

THE COURT: Put them out, yeah.

MR. MOORE: What do you think's the best thing, Elizabeth? You have more experience with this than I have.

MS. ROGAN: Mr. Smeal?

MR. SMEAL: What about the possibility of changing the seating?

MR. PORTER: Assigned seating might be the answer.

MS. ROGAN: Well --

MR. SMEAL: Get in between a couple of the older ones, or something like that.

MS. ROGAN: Yeah. Of course, most of our primary jurors are older and more mature people, but --

THE COURT: Yeah. Well, I've already told them they can sit where they want to.

MS. ROGAN: Yeah. I wouldn't want near to the --

THE COURT: On the one hand, I don't -- you know, I'm reluctant to embarrass somebody or that sort of thing when they're here serving involuntarily. On the other hand, and I guess we're sort of in an area we don't have any overt kind of acts, you know. We've got sort of an immaturity --

MS. ROGAN: Apprehension of them.

THE COURT: Kind of, you know, immaturity, I guess.

MS. ROGAN: Yeah.

MR. PORTER: Well, Your Honor, I guess in the sense of overt acts, we do have the diary, we do have the communication with his parents, we do have, and I'll state that I've noticed him -- he talks to Ms. Bolden, he does during the presentation of evidence.

THE COURT: Yeah. Oh, I know.

MR. PORTER: He does -- I mean, he whispers to her, and she is a primary juror. I think we do have enough overt acts to be concerned.

THE COURT: All right. What are you requesting?

MR. PORTER: I'm requesting, and I agree that I don't think that he should be brought in here and put on the witness stand and nailed by the Court, but some communication, and I thought Mr. Allen because Ms. Allen keeps me in line, so I thought Mr. Allen was, as the head bailiff, was the appropriate person to just take him aside and, 'Look, we're involved in a serious business here. People are serious about this.'

THE COURT: Of course, all that's off the record if he just has a conversation telling him that. Is that a problem with anybody?

MR. PORTER: Your Honor, the alternate suggestion by Mr. Moore is, 'The Judge asked me to give you this note.' And a note that says something, 'Mr. Ford, I've noticed that --'

MR. MOORE: I'm a little concerned, Judge, that if there is a conviction here and if there should be a death penalty, somebody's going to be examining all of our decisions. And I have a question whether we can consent to a bailiff giving instructions to a juror.

THE COURT: Well, I sort of have a concern about that.

MR. MOORE: I mean, I have all the greatest trust in Mr. Allen, but I'm not sure what the law is about having a bailiff instruct a juror.

THE COURT: Yeah.

MR. PORTER: Well, that was the first -- I'm not suggesting that as the end-all, be-all. I'm just --

MS. ROGAN: Uh-huh.

MR. PORTER: I think at this point I wanted to bring my concerns to the Court, and I think it's a problem that needs to be resolved.

THE COURT: Well, I guess if everybody consented, what we might do is find us a separate jury room on one of the breaks or something, and I could have a bailiff take him to a jury room, and I can go sit down and just say, basically, you know, 'We've got a very serious case, and your demeanor is that you're not being very serious about it. You're not paying attention, and you're distracting the other jurors, and this is a matter of the utmost gravity, and you need to be attentive. You may have to make decisions in this case.' You know, something along those lines, if y'all consent to it.

MS. ROGAN: That would certainly get the message across if you did it personally.

THE COURT: You know, I guess my concern about doing something like that is I'm not contemplating being a witness in the case, you know, and I guess the question is, you know, when I get back and then if everybody says, 'Well, Judge, what did you tell him? We want to go on the record and you tell us what you told him. Now you swear yourself in and tell us what you said.' You know, and then I get in the middle of it being a witness. That's my concern.

MS. ROGAN: I think we would consent to that.

MR. MOORE: We'd consent, Your Honor.

MR. PORTER: Yeah.

MS. ROGAN: In which case we would avoid the issue and we trust the judge. We trust your discretion.

MR. PORTER: I'm willing to do that, too.

MR. MOORE: And if you want what you tell him as part of the record, I wouldn't object to you privately having the court reporter record what you told him. I don't mean necessarily take her in there while you're talking to him, but while nobody's in the courtroom, you tell her what you told him and have it made part of the record.

MR. PORTER: I'm willing to handle it any way the Court thinks is appropriate, but I think that it needs to be handled at this point.

MS. ROGAN: I think it's a good idea, also.

THE COURT: Well, if we can find another --

MR. PORTER: I don't even care if you bring him into your office.

THE COURT: If we can find another jury room. Well, maybe now would be a good time. Do you want to do it now?

MR. PORTER: That would be great, Your Honor.

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

MS. ROGAN: That's fine with us.

THE COURT: No point putting off bad news.

MR. PORTER: And if he comes in crying, we'll know you talked to him.

THE COURT: All right. All right. We'll just take about five minutes, and I'll do that, then.

MR. PORTER: Yes, sir.

MS. ROGAN: That would be fine.

[Bench conference concluded.]

THE COURT: We'll take five minutes and recommence. Mr. Allen, would you meet me in chambers?

[A brief recess was taken in the proceedings.]

THE COURT: Would you approach the bench.

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

THE COURT: I want to go ahead and get this out of the way. We don't need Ms. Rogan for this, I don't think.

MR. MOORE: No, I don't think so, Your Honor.

THE COURT: The defendant's present in the courtroom. I chatted with Mr. Ford in my best fatherly tone and told him this was a very important matter of the utmost gravity, and he may be a decision-maker in this case. It may be the most important thing he ever participates in in his lifetime, and it's essential that he be attentive and listen to the facts and pay attention to the charge and not distract any other jurors with conversations or that sort of thing, and he said he understood. That was the essence of our conversation. So we'll see if it helps him out.

MR. PORTER: I'm satisfied with that.

MR. MOORE: I'm satisfied, too, Your Honor.

MR. PORTER: Your Honor, Johnny and I have been discussing more or less scheduling today. We have one more witness that Mr. Smeal's going to handle, and then we're going to begin to move into the videotape. I know the Court began to mention something yesterday about visitation day for the kids with the jurors.

THE COURT: That's tonight from 7:30 to 9:30, I think, so --

MR. PORTER: So we're looking at a --

THE COURT: At a regular day.

MR. PORTER: -- a regular day.

THE COURT: Yeah. Yeah.

MR. PORTER: I anticipate that we'll be moving into the videotape sometime this afternoon barring --

THE COURT: Okay.

MR. PORTER: -- and I expect we'll finish it tomorrow.

THE COURT: Okay. Well, I don't hear anybody concerned about splitting it up, so it won't really matter, then, I guess. We'll just find a good break point this afternoon in the video and stop and finish it up in the morning. I contemplate running about nine to five tomorrow as well.

MR. PORTER: We'll be ready to do that.

THE COURT: Okay.

MR. PORTER: Your Honor, I can tell you that going back yesterday and looking at the way I want to present my case, Monday seems to be a much more realistic --

THE COURT: Okay.

MR. PORTER: -- and even possibly into Tuesday is a much more realistic roundup date.

THE COURT: Well, whatever.

MR. PORTER: I think I was dizzy by the pace or perhaps over optimistic.

MS. ROGAN: As were we.

THE COURT: Okay. Anything else?

MR. MOORE: Nothing else, Your Honor.

THE COURT: Okay. All right. We'll bring the jury in.

[Bench conference concluded.]

THE COURT: Bring the jurors in, please.

[The jurors were escorted to the courtroom.]

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

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: Call your next witness, please.

MR. SMEAL: The state calls Kendon Curtis.

[The witness was called to the courtroom.]

THE COURT: Mr. Curtis, if you'll take the stand up here. You can be seated and Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL: Please be seated, Mr. Curtis. Would you raise your right hand, please. 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,

KENDON E. CURTIS

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 if you'd spell your last name for the court reporter.

A. Kendon E. Curtis, C-u-r-t-i-s.

Q. And, Mr. Curtis, do you live in the Atlanta area?

A. I live in Lilburn.

Q. And how are you employed, sir?

A. I own a tree service, A-1 Excel Tree Service and I managed a male review group, and now own the male review group.

Q. I want to direct your attention back to April 18 of 1993, Sunday evening, but ask you if you were at a birthday party at the residence of Kiersten Frazier-Forg?

A. Yes, sir, I was.

Q. And that was in the city of Duluth?

A. Yes.

Q. Okay. Do you remember the exact address?

A. I don't know if it's like city limits, but --

Q. In the Duluth area?

A. Right.

Q. And was that a birthday party for Eren Chapel?

A. Yeah. Eren Chapel's birthday party. That's what I was told.

Q. And why were you there?

A. I was managing a male review group at the time, and one of the guys in the group asked me if I would accompany him to the party. Apparently Eren worked at the Hooter's there on Pleasant Hill.

MS. ROGAN: Your Honor, I'm going to object.

MR. SMEAL: He's not being responsive, Your Honor. I'll follow up.

THE COURT: Okay. Restate your question, please.

MS. ROGAN: Okay.

BY MR. SMEAL:

Q. Would you explain to the jury what you mean by a male review group?

A. Dancers, male dancers.

Q. All right. And --

A. Chippendales type thing.

Q. Who was the dancer that particular evening?

A. Jeffrey Cox. Max Meadows also danced.

Q. How did you get to the party that evening?

A. Max -- we drove to Max's house -- Jeff Cox and I drove to Max's house and we rode with Max and one of his buddies. I'm not even sure of his name.

Q. Okay. So, I'm sorry, who drove?

A. Max Meadows.

Q. All right. And was that in his vehicle?

A. Yes.

Q. And how many persons were in the car on the way to the party?

A. Four of us.

Q. All right. Max Meadows, yourself, Jeff Cox, and some other person?

A. Myself, Max Meadows, Jeff, and a boy -- I'm not sure what his name was, a friend of Max's.

Q. Okay. Do you remember about what time you got to the party?

A. 10:15, 10:20, something like that. Somewhere in the area of ten o'clock.

Q. All right. And how many persons were at this birthday party?

A. I think originally probably thirteen or fourteen, friends of Eren Chapel's that worked up at Hooter's mostly.

Q. All right. And did there come a time during the course of the evening when some difficulties arose?

A. We -- when we got there, they did the show and stuff and, of course, it got a little loud and the police showed up and told everybody to disperse. Kiersten, who was having the party, it was her apartment, she got a little upset with him and she ended up being arrested.

Q. The officer who responded, was that Officer Rudowski?

A. If you mean a uniform police officer that was in here yesterday, yes.

Q. Okay. You saw the police officer that was here yesterday testify?

A. Right.

Q. Is that the officer who responded at the party?

A. Right.

Q. When you say that they did the show, that was essentially a strip act; is that correct?

A. Strip act, right.

Q. And Jeffrey Cox and Max Meadows actually perform the show; is that correct?

A. Right.

MS. ROGAN: Your Honor, I'm going to object to the leading questions by Mr. Smeal.

MR. SMEAL: Your Honor -- all right.

BY MR. SMEAL:

Q. Who performed the show?

A. Jeffrey Cox and Max Meadows. The other kid that was with Max didn't dance. He was just there, as I was.

Q. All right. About what time was Ms. Kiersten Frazier-Forg arrested that evening; do you recall?

A. I'd have to say sometime right before twelve, maybe fifteen to twenty minutes before twelve.

Q. All right. And what happened after that with respect to the party? Did it continue on, did it break up?

A. No. They were -- apparently, had been called out earlier. Of course, we weren't there when that happened, but they were saying that it had to disperse.

Q. All right. And did you, in fact, leave at that time?

A. Yes, sir, we sure did.

Q. Okay. Now, when you left, who did you leave with?

A. Jeffrey Cox, his -- Max Meadows, and his buddy, and Eren Chapel. Max and Eren work at Hooter's together and he was going to give her a ride home.

Q. Okay. And did you leave in Mr. Meadows' vehicle?

A. Yes.

Q. Could you describe the seating arrangement in that vehicle when you left?

A. Max was driving, his buddy was on the passenger side of the front seat, and then it was Eren and myself and Jeffrey Cox in the back.

Q. Okay.

A. Jeff, you know, on my right, and Eren being on my left.

Q. All right. So you were in the middle of the back seat?

A. Yes.

Q. And where did you go at that time?

A. They were going to drop us off -- Jeff and I were going to be dropped off at my house and then Max was going to give Eren and his buddy a ride home.

Q. Okay. Did there come a time when you made a stop in the Pleasant Hill Road area?

A. Yeah. We stopped at a convenience store.

Q. Do you remember --

A. Everybody in the vehicle went in to get something to drink, Cokes.

Q. I'm sorry. Do you remember the specific store where you stopped?

A. You know, RaceTrac is where it is now, but I think it was another store at that time. It's been two years ago.

Q. Okay. I understand.

A. If I'm not mistaken, it was something else.

Q. Did you exit the vehicle?

A. No. I stayed in it.

Q. Did everyone else exit the vehicle?

A. Yes, they did.

Q. Okay. Did Ms. Chapel exit the vehicle?

A. Yes.

Q. When she exited the vehicle, what did she do?

A. She went to the pay phone, which we were parked next to a pay phone, about twenty foot away from it, and she went to the pay phone to get on the phone.

Q. Okay. And what happened next?

A. It was a summer night. The windows were down and stuff and she left her purse in the seat next to me. I picked her purse up and I was like, 'Hey, Eren, what do you keep in these things anyway,' because she, you know, she had stuff hanging out of it. And she was on the phone, and she looked at me and you could -- the intent was to get her attention. And she looked at me, and she saw me messing with her purse, and she tossed the phone down. She didn't hang it up or anything. And she came to the car very quickly and jerked the passenger door open, which, of course, I was still sitting in the middle of the back, pulled her purse away from me and set it in the seat right next to me, and pulled an envelope out of the purse. She took the money that was in the envelope and she kind of fanned through it with her thumb, I mean, a foot, foot and a half from me, fanned through it with her thumb, and then stuck it back in the purse and put it under her arm and went back and got on the phone.

Q. Okay. Would you describe the money that was in the envelope?

A. It was between a quarter- and a half-inch thick. I would say closer to a quarter-inch thick of new hundred dollar bills. I think there was one or two fifties on the end of it, but she fanned through it, you know, real straight right there with her thumb, in front of me, and I did see it very well.

Q. Did you know that the money and envelope were in the purse when you picked it up?

A. No. I had no idea that she -- I was kind of astounded that somebody had that much cash on them. I remember telling my friend Jeff that, you know, that that was --

MS. ROGAN: Objection, Your Honor.

MR. SMEAL: Well, I think he can say what he told to somebody else. That's not hearsay. That's just res gestae of the situation.

THE COURT: Ms. Rogan?

MS. ROGAN: I think it is hearsay, Your Honor, and it's not the first hearsay that this witness has testified to.

THE COURT: Objection's overruled. Go ahead.

BY MR. SMEAL:

Q. Did you make a comment to -- I'm sorry, to whom --

A. Jeffrey Cox.

Q. Okay. What did you say to him?

A. I was very surprised she had that much cash on her. It was a very large amount of money. I own a tree service, and I often cash checks myself when I need the cash and, you know, so I've seen hundred dollar bills in a lump sum together and, you know, if I had to say how much it was, I would say at least $3,000, and it really surprised me that she had that kind of money on her.

Q. What happened after that?

A. We were given a ride home. Jeff was dropped off at my house with me and then they went on about their business.

Q. That essentially was the end of the evening?

A. Right.

MR. SMEAL: No further questions, Your Honor.

THE COURT: Mr. Moore? Ms. Rogan?

CROSS EXAMINATION

BY MS. ROGAN:

Q. Good morning, Mr. Curtis.

A. Good morning.

Q. My name's Elizabeth Rogan, and I'm one of Mike Chapel's attorneys. Do you know Mike Chapel?

A. No.

Q. You know of him though, don't you?

A. Yeah. Now I do.

Q. You've read newspaper articles about this case?

A. I don't really read the newspaper a whole lot, so I haven't read a whole lot about it. I don't get the newspaper.

Q. You've seen it on the TV from time to time?

A. I saw it last night, but I haven't seen it prior to it.

Q. You saw a newspaper article back in January or February of this year, didn't you?

A. Yeah. January, I believe it was.

Q. Okay. And seeing that newspaper article about this case is what prompted you to go to the district attorney's office?

A. I first went to my lawyer. The reason I didn't, you know, it's a male review group, and I own a tree service in this county, and I really didn't want to get involved with this if I could help it. I knew a police officer was being charged with a murder, and I knew that it was Eren's husband. And at the same time, I thought if a police officer's being charged with a murder, surely they wouldn't need me to come forward. And since nobody had approached me, I was very reluctant to come forward and involve my tree service, you know, and with the male review group here in a county that -- you know, a lot of Christians.

Q. You were concerned about your reputation?

A. Right. I was very concerned about it.

Q. Because you didn't want to be associated with male strippers?

A. The male review group. I just didn't want my tree service to be associated with a male review group.

Q. My question is that seeing the newspaper article in the paper is what prompted you --

A. Yeah, because --

Q. -- to go to the district attorney? That was my question, Mr. Curtis.

A. -- it said in the newspaper that the money -- the murder weapon and the money had never been recovered. And at that point in time, I thought, you know, I did a lot of soul-searching. It was going to be more important to come in and let everybody know about the money than it was, you know, to sit back and not say anything about it. Up until that point in time, I assumed the money had been recovered.

Q. Mr. Curtis, if I could just ask you to answer my question. You're certainly allowed to explain the answer, but if you could focus on the questions that I ask you, I would appreciate it.

A. I believe I did.

Q. Okay. My question to you was that seeing the newspaper article is the first time that you went to the district attorney's office --

A. Yes, it was.

Q. Yes or no?

A. Uh-huh [affirmative].

Q. Okay. Yes, it was. And that was in February of this past year; isn't that correct?

A. January, I believe.

Q. 1995?

A. Yeah. Well, yeah, it was '95 because --

Q. It was this year, the year we're still in? It was 1995?

A. Yeah. The reason I know it was very near New Year's --

Q. Okay.

A. -- but it was after the New Year.

Q. And that was almost two years after the events that you have described for us this morning?

A. It was a year after the event. Well, two summers.

Q. That's two years, isn't it?

A. It's this summer.

Q. The incident that you --

A. Was in '93.

Q. -- have described was in April --

A. April of '93.

Q. -- April 18, 1993?

A. Right.

Q. Isn't that what you testified?

A. That's correct.

Q. And January of 1995 would be almost two years after that; is that correct?

A. Almost. A year and a half. Okay. Split the difference.

Q. Now, you've testified that the party was at the home of Kiersten Frazier-Forg?

A. Right.

Q. You did not know Kiersten Frazier-Forg at the time you went to the party? A. Prior to that night, no.

Q. You've learned her name subsequent to the time you went to the party?

A. The night of the party.

Q. Someone told you her name?

A. Yeah, the night of the party.

Q. But you didn't know who she was? You didn't know any of the girls who were there at the party, did you?

A. No. Uh-uh. Prior to it, no.

Q. You did not know Eren Chapel?

A. Not prior to the party, no.

Q. You still don't know Eren Chapel?

A. No.

Q. In fact, you did not know her name at the time?

A. At what time?

Q. At the time of the party?

A. I was introduced to her.

Q. Do you remember giving a statement to the district attorney's office when you did come forward with your story --

A. Yeah, I sure do.

Q. -- in January of this year?

A. Yes.

Q. Okay. And you spoke to Mr. Teatino?

A. Yes, that's correct.

Q. And Investigator Burnette?

A. That is correct.

Q. And you told them that the woman you were referring to, in whose purse you allegedly saw this money, was called Carmen.

A. Right. I was confused with her name. As you said, it was a year, year and a half, two years later. And, as a matter of fact, right after I left Jack Burnette in Glenn Teatino's office, I was like, it wasn't Carmen, it was Eren.

Q. You told them in your statement --

A. Yeah.

Q. -- that she -- her name was Carmen?

A. I did -- I did say Carmen in the statement, though. That's correct.

Q. Who told you, Mr. Curtis, that her name was Eren?

A. I remembered it after I left the office.

Q. Who had told you that her name was Eren?

A. At the party, I was introduced to her by several of the people there. She herself said her name was Eren.

Q. You also said in your statement that it was your understanding that she was Mike Chapel's wife?

A. At the party, they -- I was introduced to her and she said she was Eren Chapel, and she talked about her husband being a police officer in Gwinnett and --

Q. But you didn't know who Mike Chapel was?

A. No.

Q. So at the time of the party that information really had no meaning for you whatsoever?

A. No. Well, Mike -- the name Mike Chapel -- she was introduced to me as Eren Chapel.

Q. That wasn't my question. You didn't know who Mike Chapel was?

A. I didn't know who Mike was, no. I had no -- I'd never met Mike.

Q. So when you told the investigators that it was your understanding that she was Mike Chapel's wife --

A. I was -- she was introduced to me as being Eren Chapel. And, of course, this was a year, year and a half later that I talked to the investigators, so by the time I had talked to the investigators, I had -- I had learned of Mike's first name.

Q. You knew who Mike Chapel was?

A. Right.

Q. Right. Because he was in the newspaper quite a bit being charged with a murder?

A. No.

Q. How else did you know him, Mr. Curtis?

A. Because the people at the party that I've talked to, subsequent to the party, had informed me that Eren's husband, Mike, was being charged with murder and that --

Q. So it was all based on what other people had told you?

MR. SMEAL: Your Honor, I'd ask that he be permitted to finish his answer. I don't believe he's finished.

BY MS. ROGAN:

A. [Continuing] I've talked to several people that know Mike very well and know Eren very well that were at the party the night of the party. And those people --

Q. That's fine.

A. Right.

Q. That's fine. I have -- that's not my question. My question is, you don't know --

A. I have learned subsequent.

Q. -- other than what people have told you?

A. No. Eren was introduced to me as Eren Chapel. Now, Eren Chapel is Eren Chapel. If Eren Chapel was here today, I would say there's Eren Chapel.

Q. Are you aware, Mr. Curtis, as to whether Mr. Mike Chapel has brothers who live in Gwinnett County? Do you know?

A. No, not off hand.

Q. Do you know that one of his brothers is also in law enforcement?

A. No.

Q. Are you aware, Mr. Curtis, that one of his brothers was married to a woman -- also married to a woman named Erin? Do you know that?

A. No, I didn't know that.

Q. What were you doing with that purse, Mr. Curtis? Why were you messing with it?

A. I was teasing her.

Q. Were you going to take something out of it?

A. I think if I were going to do that, I would have had it on the floorboard where she couldn't see it, not holding it up in the air and yelling her name.

Q. You testified that it was a summer night and the windows were down?

A. Uh-huh [affirmative].

Q. It was April --

A. Right.

Q. -- wasn't it, Mr. Curtis?

A. 18th.

Q. April is not the summer, is it?

A. It was -- it was warm that night. Spring.

Q. Now, this was -- it was spring. This was a party that involved a male review?

A. Uh-huh [affirmative].

Q. And you said to us that you were managing the male review?

A. Right. At the time.

Q. Were you one of the dancers?

A. No.

Q. What were you doing there to manage the review?

A. I was asked to go by a friend that was dancing.

Q. Just to be there --

A. Right.

Q. -- to watch it?

A. Well, he asked me to go, he was dancing, and I agreed to go.

Q. Was there --

A. I frequently have gone to the shows. As a manager, I've booked many of the shows, and I'm -- in most circumstances, when I go to a show, you know, there's little things that you need to collate or what have you. This was a private party, and I didn't see that that was going to be an issue, but I didn't have anything to do that night, and so when he asked me to go, I said I would.

Q. So you just went to basically to watch the show, too?

A. I've seen it plenty of times, and I don't feel like it's something I need to be watching. It's not a -- that --

Q. These are actually male strippers?

A. Right. I went with a friend.

Q. Do they take off their clothes?

A. Usually down to the G-string, yeah.

Q. In front of women?

A. Yeah.

Q. For entertainment. Was there a lot of drinking at that party?

A. Yeah. As a matter of fact, when we got there, there were three or four large bottles of wine that were empty, so I would say there was plenty of drinking.

Q. Were you drinking that night?

A. No.

Q. You didn't have a single thing to drink?

A. No. I don't really drink all that much.

Q. You don't drink all that much?

A. No.

Q. But this was a party, wasn't it?

A. Yeah.

Q. And you didn't have anything to drink?

A. No.

Q. You told us about the car that you had arrived at the party in, that contained, at your arrival, four men altogether, including yourself?

A. Right.

Q. And, didn't you in fact describe the car to the investigators to whom you spoke this past January as a little four-door?

A. Yeah. It's a little four door.

Q. And there were five of you in the car --

A. No.

Q. -- after the party?

A. Right. It's a five-seater, small four-door.

Q. You also told the investigators that neither of the people who were your friends, Max or Jeff, had seen what you claimed to have seen that night?

A. No, they didn't. They were in the store, in the convenience store.

Q. In fact, no one else saw what you claimed to have seen that night?

A. Eren.

Q. No one else of the men who you were with saw it?

A. No. To my knowledge, no.

Q. So Eren Chapel's the only other person who can corroborate what you've said?

A. Yeah. I would say that's accurate.

Q. Thank you.

A. As far as what was seen.

THE COURT: Redirect?

MR. SMEAL: Just a couple of questions, Your Honor.

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Mr. Curtis, were you there -- you were there to manage the group that night; is that correct?

A. Yeah. Yeah -- no, not really. Because Jeff Cox is a friend of mine. He's been a friend for a lot of years. He gets kind of nervous when he's doing it, and especially a private party. He asked me to go and I said I would.

Q. And this male review group, is that hired out for the purpose of parties, birthday parties, and other such events?

A. Usually -- usually, it's entertainment in the clubs, ladies night type things.

[Discussion held between counsel off the record.]

MR. SMEAL: May we approach the bench, Your Honor?

THE COURT: Yes, sir.

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

MR. SMEAL: The state wishes to introduce this item as an exhibit and ask him if he recognizes the photograph. The reason that this has been placed over it is to exclude some writing which is on this. Counsel, I understand, is going to object because she raised the issue of identification or possible identification with some other person. I want to ask him whether this is -- whether he recognizes the photograph.

THE COURT: What's the objection?

MS. ROGAN: Well, I think it's improper to put in part of a document, for one thing --

MR. SMEAL: I'll put the whole thing in.

MS. ROGAN: I don't -- I wouldn't consent to the entire document. I don't think that -- they cannot call Eren Chapel --

MR. SMEAL: I agree.

MS. ROGAN: -- and I don't think that they should be allowed to get around that prohibition.

THE COURT: Well, that's an interesting legal point. Why couldn't they?

MS. ROGAN: Because of the spousal privilege.

MR. SMEAL: Well, she has to invoke that.

THE COURT: Well, insofar as testifying as to him, I suppose so. All right. What's your objection?

MS. ROGAN: This witness also -- I don't think he's laid a proper foundation for actually knowing who she was of his own personal knowledge.

THE COURT: I think if he's seen somebody, he's in a position to say, yeah, he can identify them later or he can't.

MR. MOORE: Your Honor, the picture they're trying to use indicates the name of the person on it. I mean --

MR. PORTER: Your Honor, that's why I redacted it.

MR. MOORE: They have the ability down at the DA's office to have copied that thing and made a picture that didn't include all that if they wanted to use it.

MR. SMEAL: Your Honor, I don't suggest that we give him the identifying information, simply the picture, and I had it redacted so that only the picture, photograph is showing.

THE COURT: I suppose is there any reason not to cut it off --

MR. SMEAL: Your Honor, it is from the record's department.

THE COURT: Okay. So that's the problem.

MR. SMEAL: Yeah. It's an official record.

THE COURT: Well --

MR. MOORE: But my point, Your Honor, they've had plenty of time to make a picture of this and make a copy of it if they want to use it without the writing. I mean, they have that capability.

MR. MOORE: Your Honor, we can show it to this witness without the writing. It's very simple. We just cover up the writing.

MS. ROGAN: But we also -- I mean, we object to where they got it from, how they got it, what --

MR. SMEAL: It doesn't make any difference where we got it from. Your Honor, they have raised the issue of identification.

MS. ROGAN: Yes, it does. They can't just introduce a photograph if there's no foundation for it.

MR. MOORE: If you obtained it illegally, it wouldn't be admissible.

MR. PORTER: Your Honor, we can tie up the foundation of how we obtained it.

THE COURT: Yeah. Well, I think my inclination is to -- and I guess the question is, if it comes in, then it's going -- are you going to offer it to the jury and then --

MR. PORTER: Your Honor, at this time, we're prepared to have the witness identify it, but we have to tie it up with another witness.

THE COURT: I know. But I'm saying, if it's admitted, then you've got a --

MR. PORTER: Your Honor, I'll substitute our copy.

THE COURT: You've got it taped up.

MR. SMEAL: We can substitute later on.

THE COURT: Mr. Moore? Ms. Rogan?

MS. ROGAN: We're not going to consent to that.

MR. SMEAL: We're not going to offer to admit it at this time and won't ask to publish it to the jury at this time.

MR. MOORE: Your Honor, I think they have to lay the foundation first. They can't just come in and say, 'We've obtained this.' They may have searched somebody illegally and found that. They've never told us about this before.

MR. PORTER: Your Honor, I state in my place we obtained it from the permits department of the Gwinnett County police department and there's no requirement for a foundation.

THE COURT: Yeah. How it -- I mean, it's like every other photograph that's been offered in. I don't think there's a foundation requirement that you obtained it someplace.

MR. SMEAL: Your Honor, we did not offer this on direct examination. We had it in our possession in the event that identification was being challenged, which it has been challenged.

THE COURT: Okay. My suggestion would be put something over it and staple it so it's not going to come off or fall off or peel off. All right. Do that and let's come back and do that and secure it.

MR. SMEAL: If I could borrow the stapler, I could do it right here, Your Honor.

THE COURT: Any objection?

MS. ROGAN: Yes.

THE COURT: What's your objection?

MS. ROGAN: It's the same objection I've stated previously.

THE COURT: And that is what?

MS. ROGAN: That is that that's a redacted document which we don't think is proper because it's not the whole document. We have no basis for believing at this point that the document was properly obtained, and we object to its being used.

THE COURT: Well, your objection on that ground is overruled. That doesn't put it in yet. And you can use it with the witness if you lay a foundation.

[Bench conference concluded.]

THE COURT: Go ahead, Mr. Smeal.

MR. SMEAL: Your Honor, I'd ask that this item be marked as the state's next exhibit in order.

[State's Exhibit Number 87 was marked for identification by the court reporter.]

BY MR. SMEAL:

Q. Sir, directing your attention back to that evening of April 18, the person that you have described as Eren Chapel, did you see that person that night?

A. Yes. I was introduced to her. I've said that.

Q. All right. And what were the lighting conditions when you met her?

A. Inside an apartment. Good. Lights on.

Q. Were you able to see her face?

A. Yes.

Q. Sir, I'm handing you what's been --

THE COURT: Would you approach the bench, please?

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

THE COURT: I don't mean to run your direct for you, but maybe it would be appropriate to have him describe her first.

MR. SMEAL: That's fine.

MR. MOORE: Your Honor, they're doing something here too that wouldn't normally be allowed. They're doing a one-person showup when they've already --

MR. PORTER: Your Honor --

MR. SMEAL: That's not with respect to witnesses. That's with respect to suspects. Defendants in a case, the showup cases, do not apply to witnesses. And besides that, this is in response to a identification challenge that's been made on a witness, not a defendant.

THE COURT: Yeah.

MS. ROGAN: There wasn't an identification based on what she looked like. It was on the basis of his knowledge of who she was, which is a completely different thing than what she looks like and what her description is.

THE COURT: Well, all right. Go ahead. However you wish. Go ahead.

[Bench conference concluded.]

THE COURT: Go ahead, please.

BY MR. SMEAL:

Q. Mr. Curtis, would you describe the woman that you have described as Eren Chapel or you identified as Eren Chapel?

A. Uh-huh. Probably five-seven. Although I believe she had heels on. I'm saying five-seven because she looked kind of tall to me. Long black hair, brown or black, dark brown or black. Very well-built. Good teeth. She had a distinctive nose, kind of -- it turns up a little or something.

Q. Is there anything else distinguishing that you noticed about her that evening?

A. No.

Q. Sir, at this time, I'm handing you what's been marked as State's Exhibit 87, and I would ask you to take a look at that photograph.

A. Yeah. That's the Eren Chapel that was at the party.

Q. Okay. Does that photograph fairly and accurately depict the person that you saw on the evening of April 18, 1993, who you have described as Eren Chapel?

A. Yes, although her hair was different, and it's really not that good a picture of her, but yeah.

Q. Thank you, Mr. Curtis.

MR. SMEAL: No further questions.

THE COURT: Recross?

MS. ROGAN: No, Your Honor.

THE COURT: Do you wish this witness to remain on call?

MR. PORTER: No, Your Honor. He has his job to go to and we'd ask that he be excused. He's available and can be reached.

THE COURT: All right. Mr. Moore?

MR. MOORE: Your Honor, we'd ask he be on call if we need him.

THE COURT: Well, I guess my question is, how do you -- what's your distinction between on call and can be reached to come back?

MR. PORTER: Well, Your Honor, I don't think the distinction applies to Mr. Curtis as much as it might to government employees because of that payroll function, but with Mr. Curtis, we have his beeper number, his home number --

THE COURT: Okay.

MR. PORTER: -- his work number. And if there was a necessity to bring him back, although the state does not anticipate that, we can get hold of him.

THE COURT: Okay. You'll remain under subpoena, but you are free to go and just be subject to being called back. You can come down.

THE WITNESS: Thank you, sir.

[The witness stepped down from the stand.]

THE COURT: Call your next witness, please.

MR. PORTER: We would recall Officer Ed Byers.

[The witness was called to the courtroom and stepped to the witness stand.]

MR. PORTER: Officer Byers, if you could retake the witness stand, please.

THE COURT: Are you going to swear him again, Mr. Porter?

MR. PORTER: Yes, sir, I'm going to. Officer Byers, you've previously testified, but I'm going to ask you to take the oath again. If you could 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,

C. E. BYERS

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

DIRECT EXAMINATION

BY MR. PORTER:

Q. Okay. And could you put your hand down? And once again, for the record, if you could state your name and spell it, please.

A. Officer C. E. Byers. The spelling of the last name is B-y-e-r-s.

Q. All right. And Officer Byers, you've previously testified about your actions on the morning of April 16, 1993; is that correct?

A. Yes, sir, I did.

Q. Now, after April 16, 1993, did you come into contact with the defendant, Mike Chapel?

A. Yes, sir, I did.

Q. Could you describe for the jury the circumstances of how you came into contact?

A. Yes, sir. It was a couple of days after April 16. I don't recall the specific date. I was on my way to turn my paperwork in. I'd worked the day shift, so it would have been about 3:15 in the afternoon. As I was walking in the back door of the precinct, Officer Chapel, who was working the evening shift, was at the gas pumps, which is directly behind the precinct, gassing his car up. I stopped. I don't recall exactly how the conversation began, but at some point, we discussed the homicide. Officer Chapel was upset that they were -- they being the supervisors -- were going to make him go back and prepare a police incident report based on the burglary complaint that Ms. Thompson had made earlier in the month.

Q. All right. And did he express that -- you termed it as being upset. Did he express that to you?

A. Yes, sir, he did. I don't remember the specific words, but that's -- that was what he conveyed to me.

Q. Thank you.

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

THE COURT: Cross-examination?

MR. MOORE: Your Honor, it's come to my attention that there's a document that we may need that we didn't have in the courtroom here this morning. I wonder if we could take about five minutes and allow me to go down and get it.

THE COURT: Yes, sir. Yes, sir. That'll be fine. You need it with this witness?

MS. ROGAN: Yes.

MR. MOORE: Yes, Your Honor.

THE COURT: All right. We'll take five minutes. If you'll just leave your pens, pads, and notes in your seats, they'll be waiting on you when you return.

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

THE COURT: We'll take five minutes.

MS. ROGAN: Thank you, Your Honor.

[A brief recess was taken in the proceedings.]

THE COURT: Ready, Mr. Moore? Ready, Mr. Porter?

MR. PORTER: Yes, Your Honor.

THE COURT: Bring the jury back, please.

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

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

MR. MOORE: Thank you, Your Honor.

CROSS EXAMINATION

BY MR. MOORE:

Q. Office Byers, you already know me from the other day. How long have you known Mike Chapel?

A. Probably since 1986. I was -- there was three years I was -- had left Gwinnett and was in the military and when I came back, I believe -- I believe Mike was working here then. I'm not specifically sure.

Q. Did y'all ever have occasion to work together on the same shift or anything?

A. No, sir. Well, Mike was on the day shift, it seems like, for about two weeks, and I think he asked to go back to the evening shift, but we were on the shift, but we -- I don't think we ever actually worked right next to each other or answered calls together.

Q. Now, most police officers hate to do paperwork; is that true?

A. We try to avoid it if --

Q. Yeah, just like everybody else. Everybody hates to do paperwork. Do you know if Mike Chapel had a reputation about -- what was his reputation for doing paperwork up at the northside precinct?

A. No, sir. I didn't. Like I say, I didn't -- I never worked with him directly, so I didn't really know what his habits were on how he --

Q. But your reputation can be what you've heard about other people, too. Had you heard anything about his habits or his reputation for doing paperwork up at the northside precinct?

A. In regards specifically to paperwork, no, sir.

Q. You say specifically to paperwork. Is there something else that --

A. No. Just that -- no, no. Not particular, no, sir.

Q. And now, when you met him that afternoon at the gas pump, that would have been what, about the 18th?

A. I don't recall the specific date. I'm just not clear on that. I know it was several days after April 16.

Q. We've got a calendar here that's marked State's Exhibit Number 1. Would that help you figure out what date it was if you looked at the calendar?

A. No, sir. I've tried. I don't recall what day it was.

Q. Well, the 16th would have been the date when you went out to the crime scene?

A. Yes, sir. That's correct.

Q. And do you remember if you worked the next two days or not?

A. I don't recall. No, sir, I don't.

Q. So you don't know whether it was the 18th, the 19th, or 20th or what it was?

A. That's correct. I have no --

Q. Had the road checks already been run at that time?

A. I'm not -- I honestly don't know the dates that they ran the road checks. That was, I think, during the evening shift, which I work the day shift, and so I wasn't aware of that.

Q. And when you met Mike Chapel that afternoon, did y'all stop and talk to each other?

A. In regards to at the gas pumps?

Q. Yes, sir.

A. Yes, sir. Just for a few minutes. Yes, sir.

Q. I mean, was it just a casual thing? Were you filling up your car and he was filling up his?

A. No, sir. I was on my way in to turn my paperwork in for the day, and he was gassing his patrol car up, getting ready to go out on the evening shift, and we just -- we passed by.

Q. Okay. And how long did this conversation last?

A. It was no more than a couple of minutes.

Q. Do you remember what you talked about?

A. No, again, I don't even know who initiated the conversation. The only thing that stands out was the fact that I do remember that we discussed the homicide.

Q. Okay. And that was common topic of discussion up at the northside precinct at that time, wasn't it?

A. There was some discussion about it, yes, sir.

Q. Okay. By that time, had you heard that there was a Gwinnett County police car involved?

A. No, sir.

Q. Okay. So that was probably before the road checks were run, then, where they discovered there was a Gwinnett County police car involved?

A. That's possible. Again, I don't know the dates that the road checks were run. I had no knowledge of a police officer or a car being involved.

Q. Well, when they started doing the road checks and the officers were down there stopping people and everything and people started telling them that it was a police car involved and people were saying it was a Gwinnett County police car, didn't the word spread pretty fast in the precinct about that?

A. I heard about it, yes, sir. I don't recall exactly what day that was.

Q. But this was probably before that, since --

A. I would -- yes, sir, I would say it probably was. Because like -- I felt like it was only a couple of days after the 16th.

Q. And basically what you're saying is is that Officer Chapel was just complaining and bitching about doing paperwork?

A. Yes, sir. He was complaining about having to go back and do the burglary report.

Q. And you didn't think there was anything unusual about that at the time, did you?

A. Unusual?

Q. Yes, sir.

A. That he was upset about it?

Q. Well, that he didn't want to do the paperwork.

A. Well, I guess the thought did pass through my mind if he'd've done it that night, then he wouldn't had to gone back and do it.

Q. Okay. In other words, if he'd been diligent and done it while he was on duty, he wouldn't have had to come back and do it later?

A. Well, I didn't respond to the scene, but that thought passed through my mind.

Q. Okay. Have you seen other occasions where police officers didn't do the paperwork on time?

A. Yes, sir, I have.

Q. Is that a fairly frequent thing?

A. It's not frequent, but it does happen.

Q. Has it ever happened to you?

A. I'm sure it probably has, yes, sir.

Q. I mean, everybody from time to time doesn't get their stuff done on time. I mean, I'm not trying to say there's anything wrong with it, but --

A. Right. Yes, sir.

Q. When were you first interviewed regarding this?

A. The specific date, I don't recall.

Q. Was it that month or that year?

A. It would have been after Chapel's arrest, which I understand was the 24th.

Q. Okay. Do you know if anybody in the precinct up there was interviewed prior to Mike Chapel's arrest?

A. Not to my knowledge.

Q. Okay. Now, after the road checks were run and after you heard about that there was a police car involved, what was the mood up there at the precinct of the police officers, what was the -- were people talking about the homicide?

A. There was conversation about it.

Q. Okay. Was there speculation about if there was a police officer involved, was there apprehension?

A. I would say, yes, sir. That would be true.

Q. Okay. Is it fair to say that everybody was alarmed once they found out that there was a police car involved?

A. Yes, sir. I would say that would be true.

Q. Okay. Were you surprised that nobody came up there and interviewed you or anybody else in the precinct before his arrest?

A. No, sir.

Q. You didn't think that -- you didn't have an opinion that they would want to know where everybody was and what they were doing?

MR. PORTER: Your Honor, this officer isn't competent to comment on the -- have an opinion about the conduct of the investigation, and he's not competent to do it. And, second of all, it's irrelevant what his opinion is as to the competency of the investigation. That's a matter for the jury to decide.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, he's a trained police officer, and he'd be allowed to give his opinion about investigations.

THE COURT: Objection's overruled. Go ahead.

BY MR. MOORE:

Q. Do you find it unusual, if you have an opinion, about what -- the fact that they did not interview anybody else up there at the precinct prior to Mr. Chapel's arrest?

A. No, sir. I wasn't privy to all of the -- the actual investigation, so I didn't know what had been done and what had not been done. I can only say that for myself that to my best recollection I was not interviewed until a time after Officer Chapel was arrested.

Q. Do you know of anybody else that was interviewed?

A. No, sir. Again, I don't know. I don't recall.

Q. Okay. And when were you interviewed; do you remember that?

A. No, sir, I don't.

Q. Was it on duty or at home?

A. I believe it was on duty. I went to police headquarters.

Q. And what did they ask you about?

A. Just simply, you know, any knowledge that I had of Mike, anything that I felt that needed to be said about the -- about the precinct.

Q. Did they ask you anything about where you were or anything? I'm not accusing you of anything. I'm trying to get the investigation out, what was done as far as the investigation. Did anybody ask you where you were on the night of April 15, 16?

A. I don't think they did, no, sir.

Q. Did they inquire about what kind of car you drove or anything?

A. I don't think they inquired, but they -- they would have that information available.

Q. Okay. And what kind of car did you drive at that time?

A. A '94 Ford.

Q. Now, each of the precincts has what's called a spare car; is that correct?

A. Yes, sir.

Q. Okay. And the northside precinct has a spare car, also; is that correct?

A. Yes, sir.

Q. Okay. And that car is there for the purpose if anybody's car breaks down or if they need a car or anything like that, that they can get that car and not have to wait until the next day to be stranded?

A. Yes, sir.

Q. Okay. Now, do you know where the keys to that car was kept at, the spare car?

A. They had them at different locations. Different places within the precinct would be designated.

Q. Where were they back in 1993?

A. There was just a small office off one of the main hallways, and I believe they was up on a bulletin board in that office.

Q. And was this something that if somebody's car was having problems, they could just come in and get the keys and then go back out with the spare car?

A. There was a procedure that you were supposed to follow. You were supposed to, of course, I think check with the supervisor and get the car assigned to you, but I think a great many of the times, if necessary, officers would walk in and get the keys and walk out.

Q. If they needed the car, it was common to go get the car and go on with it?

A. Yes, sir. They were -- again, they were supposed to -- if they were beginning a tour of duty, they were supposed to notify the sergeant that what car they were in, because of our daily log sheet, they would put down what unit that the officer was working in.

Q. Okay. I'm going to show you what's been marked as Defendant's Exhibit Number 55 --

MR. PORTER: Your Honor, if I could take a look at it.

MR. MOORE: I'm sorry. I apologize.

MR. PORTER: I haven't seen it.

[Mr. Moore presenting to Mr. Porter]

BY MR. MOORE:

Q. I'm going to show you Defendant's Exhibit Number 55 and ask you if you can identify the scene in that photograph.

A. Yes, sir. It's like a current photo of the gas pump at the northside precinct.

Q. Okay. Now, the parking lot and the gas pumps there, is that a true and accurate representation of the way it looked in 1993 also?

A. No, sir. This one building back here was not there.

Q. Okay. I'm talking about the gas pumps in the parking lot.

A. Yes, sir. I would say that was good.

Q. That hadn't been changed at the precinct since 1993?

A. No, sir, I don't believe so. Well, actually, there was some change maybe in the gas tanks and some new cement was poured, but it looks about the same.

Q. Okay. And there's a building behind there that's been erected since that time in the background; is that correct?

A. Yes, sir. That's a day care center.

Q. And visible in that photograph are a number of police cars there; is that correct?

A. Yes, sir.

Q. Okay. Can you identify the spare unit in that photograph?

A. I can only guess as to probably what the spare is. The one with the yellow stripe.

Q. The one with the yellow stripe?

A. Yes, sir. But --

Q. That photograph's a small one. I'm going to show you what's been marked as Defendant's Exhibit Number 2 and ask you if you see a larger photograph of the car that you're picking out on the small photograph.

A. Well, I see another Ford with a yellow stripe.

Q. I don't mean necessarily it's the identical car, but a car that's the same type car.

A. Yeah. Right. Number 6.

Q. Same colors and same markings and everything.

A. Number 6.

Q. Number 6?

A. Yes, sir.

Q. Okay. And is there a car on that larger photo lineup there like Mike Chapel drove with the same markings and everything?

A. I want to say that probably 3 and 11. I don't know. I can't tell if there's a difference between those two or not. Other than one -- of course, one's a slick top, so I guess 11 would be more appropriate.

Q. Eleven would be one like Mike drove?

A. Yes, sir.

Q. Okay.

MR. MOORE: Your Honor, I'd tender Defendant's Exhibit Number 55.

MR. PORTER: Your Honor, Officer Byers says that it's not -- that it is an accurate representation of the gas pumps as they are. He has described significant differences from what it looked like in 1993. I think that brings into question the authenticity of the photograph as far as how the gas pumps looked in 1993.

THE COURT: Mr. Moore?

MR. MOORE: Well, Your Honor, we weren't -- it wasn't -- we weren't on the case back in 1993 to photograph at that time. The police did not. We did the best we could to reconstruct what's there as far as the gas pumps and the area where this was supposed to take place.

THE COURT: Defendant's 55 is admitted over objection.

BY MR. MOORE:

Q. When you were interviewed, Officer Byers, who interviewed you?

A. At the time it was Lieutenant Latty. He's now captain. Jack Burnette was present. It seems like there was one other individual, but I don't recall myself.

Q. Okay. And did they take a written statement from you regarding this?

A. I don't believe they did, but I think they were taking notes. I don't recall signing a statement.

Q. Okay. Do you remember working a chop shop case on Hamilton Mill Road with Officer Chapel where his father works as an undercover lookout?

A. I recall working a case with Officer Chapel, yes, in regards to a stolen vehicle.

Q. Okay. Were the vehicles recovered in that operation?

A. We had one vehicle recovered, yes, sir.

Q. And are you aware that Officer Chapel got a letter of commendation for that?

A. I'm sure he did.

Q. Thank you.

MR. MOORE: That's all I have.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. PORTER:

Q. Corporal Byers, at one time during your career with the Gwinnett County police department, were you assigned to the investigative division?

A. Yes, sir, I was.

Q. And what part of that division were you assigned?

A. I worked auto theft.

Q. During the course of your assignment to the investigative division, did you conduct -- or how many investigations did you conduct, just an estimate?

A. In the four years?

Q. Yes, sir. Or how many a month? Let's make it easier. How many a month would you conduct?

A. I would at least get anywhere between thirty and forty new cases a month of stolen vehicles.

Q. And as an investigator, did you follow where the evidence led you in determining a solution to a crime?

A. Yes, sir. If evidence existed, I would pursue it.

Q. All right. As an investigator, did you engage in hypothetical and what-ifs in order to determine who to interview or would you follow the evidence?

A. I would just go with what evidence I had.

Q. And would you say that that is standard police procedure in an investigation?

A. Yes, sir.

Q. Let me also ask you about Defense Exhibit Number 2. In terms of the markings of the vehicle, just the markings, would you look at those and determine which, if any, of the vehicles have the same or similar markings?

A. In regards to markings, photo 3, 6, 11, and 12 have the basic marking configuration.

Q. And in regard to Defense Exhibit Number 2, in 1993, do you recall the markings of the Gwinnett County police car, the standard police-issue patrol car? And if you don't, that's fine, too.

A. I would say probably photo 12 would be a good representation of it.

Q. All right. And can you look at photo 3 and 11 and draw some conclusion from that?

A. Well, I can visibly see that they're different from the photo 12 in the markings.

Q. In terms of their markings?

A. Yes, sir.

Q. Thank you.

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

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. Officer Byers, when you worked as an investigator, if you had a case where you had a description of a suspect and you had a description of the vehicle they drove and you had several people that fit that description, wouldn't you have interviewed all of them before you made a decision?

A. If I had that much information, I would attempt to interview the suspects.

MR. MOORE: That's all I have.

THE COURT: Anything else of this witness?

FURTHER REDIRECT EXAMINATION

BY MR. PORTER:

Q. Officer Byers, in your expert opinion, add one more fact. What if you had a photographic lineup identification of only one of those suspects, which one would you use?

A. I would -- the one I had the photographic lineup.

Q. Thank you.

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

THE COURT: Anything else, Mr. Moore?

FURTHER RECROSS EXAMINATION

BY MR. MOORE:

Q. If you had the information I gave you earlier, that you had a description, you knew what kind of car it was, and you had a group of people that fit that description, would you wait a week or two for a photographic lineup or would you proceed ahead to interview those people?

A. It would depend on the information. Again, I would have to look at that particular case and everything else that I was doing at the time.

Q. Okay. And if these were people that were willing to talk to you, would that make a difference for you to go ahead and try to talk to them?

A. If they were available and I could work it into my schedule, I would I think make a genuine effort. I think I would have to.

Q. Thank you.

MR. MOORE: That's all.

MR. PORTER: I have no other questions for Officer Byers, Your Honor.

THE COURT: All right. You can come down. Is he on call at this point?

MR. PORTER: Your Honor, yes. He can't be released from his subpoena. I believe he's under defense subpoena also, but he's available. He's on duty.

THE COURT: Okay. All right. You can come down at this point. Call your next witness.

[The witness stepped down from the stand.]

MR. PORTER: We call Captain R. L. Davis to the stand.

[The witness was called to the courtroom and stepped to the witness stand.]

THE COURT: If you'll be seated on the witness stand, please. Mr. Porter will administer the oath.

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

THE WITNESS: I do.

Whereupon,

RONALD L. DAVIS

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

DIRECT EXAMINATION

BY MR. PORTER:

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

A. I'm Captain Ronald L. Davis for the Gwinnett County police department.

Q. And Captain Davis, what are your duties with the Gwinnett County police department presently?

A. I'm a captain in charge of facilities maintenance for the police department.

Q. Okay. Let me call your attention to April 1993. What were your duties in April 1993?

A. I was assigned as a captain in investigations. I was over crimes against persons and crimes against property.

Q. And in the course of that assignment, were you involved in a supervisory level into the investigation of the death of Emogene Thompson?

A. Yes, I was.

Q. And were you involved in that investigation throughout the course of the investigation?

A. Through the majority of it. I was on leave for maybe two days during the first part.

Q. Now, I'd like to call your attention to the days between the death of Emogene Thompson on April 16 and the arrest of Michael Chapel on April 22. Were you involved in the interview of witnesses and the gathering of evidence along with the other police investigators?

A. Yes, I was.

Q. In the course of that involvement, did you happen to have a conversation with Mike Chapel at the northside precinct?

A. Yes, I did. This was on the Tuesday night, I believe, the 20th.

Q. All right. And can you describe for the jury the conversation you had with Mike Chapel on the 20th? Where did it take place, first of all?

A. Well, I had gone to the precinct to make a telephone call. And after I had completed the phone call, I came back through the assembly room there and Mike was at what we call the forms cabinet. And he walked on outside the precinct, out to the back there with me, and we had just a general conversation, you know, about his family and about an older truck that he had bought, and how he was getting along. And he brought up the homicide case and asked me how it was going, and I asked him what he thought about it. He said that he thought it or -- it might be some druggers or he'd heard that it might be some druggers or Emogene's son or this Sugar Hill deputy that they had there, Sugar Hill marshal. And I asked him, 'Well, who do you think it might be?' And he says, 'Well, I don't know, but I have an alibi. I was at the precinct there in the fire station with Rooster,' who is Sergeant Donald Stone, 'and Officer Brian Reddy.' And I think he said that he was huddled up with the firemen because it was a rainy night that night and they were watching the weather station and all to see about the weather.

Q. Okay. And did he volunteer this information to you?

A. Yes.

Q. Did you ask him any questions in regard to that?

A. The only question I asked was what do you think about -- you know, who do you think the officer might be.

Q. And by the time that you had this conversation with Mike Chapel, had the information already begun to develop that a police officer might be involved in this murder?

A. Yes, it had.

Q. Now, Captain Davis, I also want to --

MR. PORTER: If I could just take a moment to have these marked, Your Honor.

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

BY MR. PORTER:

Q. Captain Davis, I'd like to show you three video cassettes, and can you examine those, please? Those are marked State's 88, 89, and 90.

A. All right. Do you want me to --

Q. And if you can identify them and refer to them by exhibit, please.

A. This is Tape Number 1 that I can identify and I stuck the tape on the part here as a tape made on 4/23/93, Tape Number 1. It started at 22:27 and 25 seconds. Ended at 00:31 and 15 seconds.

Q. Now, can you translate those numbers into --

A. All right. 22:27:25 is ten o'clock, 10:27 and 25 seconds. The 00:31 is 12:31 at night and 15 seconds.

Q. All right.

A. On the 4/24 that went from 4/23 over to 4/24. I also scratched into the tape here my initials and the Number 1.

Q. All right.

THE COURT: And what Exhibit Number was that?

THE WITNESS: It's S-88.

THE COURT: All right. Go ahead, please.

BY MR. PORTER:

Q. If you could go on to State's Exhibit Number 89, and can you identify that, please.

A. All right. This is a tape with my initials scratched in it with RLD Number 2. It's dated 4/23/93, Tape Number 2, times -- tape started 00:31:50, 4/23/93. Tape ended 4 -- 02:26:21.

Q. So that's two o'clock -- 2:26 in the morning that it ended?

A. Yes.

Q. And do you recognize State's Exhibit Number 89 from the fact that your initials are scratched into it?

A. Yes. And also I had signed on the tape.

Q. And can you look at the next exhibit, State's Exhibit Number, and see if you can identify those, please?

A. All right. I have the RLD scratched in with Number 3 -- Tape Number 3. Started 02:26:41. Ended 03:36 hours, and my signature on the tape here as well.

Q. And if you could just put that back in the box. Let me ask you about the circumstances of the creation of those three videotapes. First of all, were those created on the night that Mike Chapel was arrested?

A. Yes.

Q. And were you responsible that night for the operation of the video equipment that is in the interview room where he was interviewed?

A. Yes, I was.

Q. At that time, were you familiar with the operation of that video equipment?

A. Yes, I was.

Q. And was the video equipment operating correctly that night?

A. Yes, it was.

Q. And did you review the tape during the making of the tape to ensure that it was a true and accurate representation of what happened?

A. Yes. The TV was there, the monitor was on, and I viewed as the tape was being taped.

Q. And have you had the opportunity to review, at some time between now and then, the tape to determine whether or not those exhibits you've just identified are, in fact, the original tapes that you made that night?

A. I have not viewed those.

Q. At the time you were reviewing it as it was happening, were there any malfunctions in any of the machinery?

A. No.

MR. PORTER: Your Honor, at this time, we would move to admit State's Exhibits Number 88, 89, and 90 for the record only.

THE COURT: Mr. Moore?

MR. MOORE: No objection for the record, Your Honor.

THE COURT: They're admitted without objection.

MR. PORTER: That's all the questions I have for Captain Davis, Your Honor.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Captain Davis, you know me, so I don't need to introduce myself. I have a few questions I wanted to ask you about Mike. How long have you known Mike Chapel?

A. I'm not sure. I think he started working around 1985. I really met him probably in '86, '87, the latter part of '86, first part of '87.

Q. Okay. Did you and he ever have occasion to work together?

A. Yes, we did.

Q. And when did you work together?

A. I was district commander for the westside precinct, which included westside and northside. I think I started there in around '89 and the latter part of '88, '89, right in that range, till December '91. And he was assigned to me during that time.

Q. Okay. And would you tell the jury what kind of work he did as a police officer during that period of time?

A. The only time that I had any kind of close association with him -- of course, as a captain, you know, you have other people between you and a patrolman, you have the lieutenants and sergeants and all. As far as direct supervision, I really didn't have that direct supervision where I would review his reports and things of that nature. However, when I worked at Buford, I was the district commander there. We were working real close in the community there to try to get the drugs and all stopped, and I worked closer with him. I was really interested in getting the drugs there stopped and I -- so I was out in that area quite a bit.

Q. Okay. And was he an effective police officer when you worked with him in Buford?

A. In what we were working with at that time, trying to stop the drugs, I feel like we were able to curtail the drugs quite a bit, and he was a large part of that.

Q. Okay. He had a large -- excuse me, he had a large network of informants and people that gave him information regarding the drugs and everything and you were aware of that; is that correct?

A. That's correct. I don't -- don't know the numbers. Of course, you know, it was just traditional. You don't discuss people's informants and things of that nature, so I don't know that he had a large number. I know that he could provide information.

Q. Okay. He was good at getting information is what I'm saying?

A. Yes.

Q. Now, he may have had some unorthodox methods sometimes, but would you say he was good at getting information out of these people and handling the cases?

A. I'm not sure what you mean by unorthodox methods because I didn't tolerate unorthodox methods.

Q. I don't mean anything illegal, but I mean he just didn't always go by the book?

A. When I was around, he went by the book because I think that's one thing that he had an understanding with me that things should be done by the book. I wouldn't use the term unorthodox.

Q. Okay. Well, I guess what I'm saying is there's a lot of things that are written down in the regulations and then there's a lot of things there are gray areas where they're not exactly written down but everybody knows that you can go so far this way or that. And then if you cross some line at some point, you clearly can't do it. And I'm asking was -- about Mike's being in that gray area where there's no written regulation, but it's not against the law either?

A. I'm not familiar with an occasion that that occurred.

Q. Okay. You're not aware of that? Okay. Now, the same day that you talked to Mike up there about -- and he told you he thought it might be some druggers or her son or something like that, you had a conversation with Sergeant Stone too, didn't you?

A. That's correct.

Q. Okay. And Sergeant Stone told you that Mike was with him at the fire station till ten or 10:15 that night, didn't he?

A. That's correct.

Q. And this was on April 20, 1993?

A. That's correct.

Q. That was four days after the crime?

A. It was on Tuesday night, yes.

Q. Okay. The discovery of the crime. So Sergeant Stone's memory would likely have been fresher then than it was later, wouldn't it, four days after the crime?

A. It -- possibly, yes.

Q. Okay. That's the reason you took the statement, wasn't it, because he told you a time and you wrote it down to preserve that -- what he had told you?

A. The reason I wrote the statement, you know, again -- I didn't ask him the question, you know, and we were talking about his family and things of that nature. And he questioned me about -- about the homicide. I asked him, you know, what he thought. When I asked him who he thought the officer might be and he came out with the, 'Well, I have an alibi,' to me that was significant. Also, if you'll notice on the form that I wrote that's a -- it's not a regular supplement sheet that we use. I thought it was so significant at the time that when I left the precinct I immediately pulled over and wrote that down so I could be as clear with it as I could possibly be.

Q. Okay.

A. Because I thought that it was significant that he would offer a statement like that. That's not something that I have heard from other policeman that I have dealt with when you ask them questions to say -- you know, use the terminology that 'I have an alibi.'

Q. Okay. Now, when you talked with Sergeant Stone, did he volunteer the times to you, too, or did you question him?

A. I asked Sergeant Stone about that because when he had said that he was there, I went in to see what Sergeant Stone said because Sergeant Stone was there at the time.

Q. Okay. And you thought what Sergeant Stone told you was significant, too, so you wrote it down also?

A. Yes, I did.

Q. And you --

A. Because he gave a specific time and I felt like that it was necessary that we -- you know, when he gives that time, that I should record it. And then I recorded it as correctly and accurately as I could as quickly as possible.

Q. Right. To make sure your memory didn't fail you to what Sergeant Stone told you?

A. No. I immediately stopped -- you know, when I left the precinct, I pulled right over and wrote that one in the car because I thought it was significant.

Q. Okay. And you knew at that time what time the homicide was believed to have occurred, didn't you?

A. I knew that the -- the approximate times. Now, I did not know of any exact times. I don't know that they have been determined.

Q. Okay. But you knew the time was an important factor at that point --

A. Yes, I did.

Q. -- when you talked to Sergeant Stone?

A. Yes, I did. That's always an important circumstance when people talk about times.

Q. And so you made sure that you were sure of what Sergeant Stone told you when you wrote it down?

A. Yes. I stopped and recorded that just as soon as I left the precinct, as soon as I could get to a place that I could pull over, I wrote that -- that supplement.

Q. Now, Captain Davis, did you ever have occasion to work on any other case that you had reason to believe was related to this case at a later time?

A. Can you be a little bit more specific?

Q. Well, I don't know which you may have worked on. I had received some information, I don't know if it's correct or not, and I'm just trying to determine from you whether or not you worked on a subsequent case where you had reason to believe there might be some evidence connected to this case.

A. In following up, yes, I worked on some more cases that we felt that Mike Chapel was a suspect in some other cases.

Q. Okay. I'm not talking about Mike Chapel. I'm talking about any other cases other than that, connected to the case, involving other people that you investigated?

A. All right. All those cases, the reason that we were doing it was because Mike Chapel was a suspect in those cases, and we were working on it. Is that what you're talking about?

Q. No. I'm talking about different --

A. Everything that we were working on this case was because Mike Chapel was a suspect in the case, and it was leading us on various trails.

Q. Okay. So you didn't work on a subsequent case where somebody else was a suspect that you thought there might be evidence involving this case?

A. No -- oh, that -- the other -- are you asking who we felt like would be a suspect at the first part or what?

Q. Well, other than Mike Chapel, was there anybody else that you felt like might be a suspect in another case that you worked on?

A. Now, we felt like, you know, right at first, that the possible suspect would be Emogene's son. Is that what you're asking?

Q. I'm asking after Mike's arrest, did you work on any other case that -- where you thought there might be a suspect, that somebody else committed the crime other than Mike?

A. On this case?

Q. Subsequent to Mike's arrest. Some other case that you worked on.

A. Subsequent to his arrest?

Q. Yes, sir.

A. And I'm trying to -- I really don't understand your question.

Q. Well, like I say, the information I got was very vague, and I don't know whether it was true or not, and that's why I'm trying to ask you about it.

A. Now, we suspected her son in the case.

Q. But after you arrested Mike, you worked on other cases, I mean, you know --

A. Yes.

Q. You did work on other different cases.

A. Now, you're talking about after we arrested Mike --

Q. After you arrested Mike.

A. -- did I feel like anybody else did that besides Mike?

Q. Did you work on any other case where you thought there was information that might be involved with this case, other than the ones you've told us about already?

A. I have not worked any other case -- I'm trying -- again, I have not suspected anybody else of this crime because of any other case that I've worked. Does that answer it?

Q. Okay. And you never made any statements about you were going to get to the bottom of it or something like that? Was anything like that ever said on any other case?

A. I had a conversation with -- and get to the bottom, I can think of one thing. I had a conversation with Chief White one time, and I said that we needed to turn every rock in Buford, you know, to see what's going on.

Q. Okay. And was that involving any other case other than Mike that you were working on when that was said?

A. Any other case?

Q. Yes, sir.

A. The only thing that I can think of that we were working on at that time was, you know, what would involve Mike, and I think at the time that I made that statement, I think maybe that was about the time that we arrested Bodie Hurst.

Q. Okay. And did you have any part in that investigation of Bodie Hurst?

A. Yes, I did.

Q. Okay. And did you continue on the case or did you -- was the case taken over by somebody else?

MR. PORTER: Your Honor, I'm going to object to this line of questioning. It's not relevant to this issue or there's been no showing of relevance.

THE COURT: Would you approach the bench?

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

THE COURT: Where are we headed?

MR. MOORE: Your Honor, I received some anonymous information that he might have knowledge involving the Bodie Hurst case and maybe the J. P. Morgan case. I purposely did not use the names when I asked him, to try to find out if he did have information. I'm not trying to suggest things to him, you know.

MR. PORTER: Well, Your Honor, he's a witness in the Bodie Hurst case. He does know about the Bodie Hurst case, but there's no -- there's been no showing of a relationship between that case and this case. Now, I think this kind of fishing in front of the jury is prejudicial. I don't --

THE COURT: Well, I guess the question in my mind is I don't know that he is precluded from saying, well, with respect to these -- any of these other cases or any other cases, is this defendant a suspect in those or was there any information in those tending to show somebody else killed Emogene Thompson or was connected with it.

MR. MOORE: Well, Your honor, I asked him if it was connected to this case. I mean, he brought up the Bodie Hurst case. I mean, he volunteered that. I did not suggest that to him.

MR. PORTER: Your Honor, he said that at the same time --

THE COURT: Not exactly volunteered, but anyway.

MR. PORTER: He said at the same time he was working on it.

THE COURT: Yeah. I think it's legitimate. I think your line of questioning is legitimate in that when they did in course of their investigations or other investigations, did they produce any other suspects or any other -- in any of those and if there was anybody else appeared to be connected with the murder of Emogene Thompson. I mean, that strikes me as being legitimate questioning.

MR. PORTER: I don't have any --

THE COURT: But I don't think that opens the door to go in and say, well, tell us everything that happened in these other investigations --

MR. MOORE: No, I don't intend to.

THE COURT: -- that's extraneous to it. So I'll allow you to, you know, follow that line of questioning as far as inquiring whether other investigations -- I don't know there's any prohibition on naming the names. What's the problem on that?

MR. PORTER: I don't think there is, but I think that there's been no showing of any connection. And now we're getting into the facts of a case that are really not relevant to this.

THE COURT: Well, but there were occurrences and other investigations that involved police officers all about the same time. And it seems to me that's enough connection that he ought to be allowed to inquire as to whether anything from those investigations reflected anybody else being in any way -- have any culpability with this offense. I think he ought to be allowed to go that far.

MR. PORTER: I think that -- but that's as far.

MR. MOORE: I don't intend to get into the details unless he says it was connected to this case. And if it was, I think I can get into details.

THE COURT: I think that's a fair area of inquiry.

[Bench conference concluded.]

THE COURT: Go ahead, Mr. Moore.

BY MR. MOORE:

Q. Captain Davis, with regard to the Bodie Hurst case, without saying what the result was, was there an investigation in that case?

A. Yes, there was.

Q. Okay. And without getting into the facts of it, was there an arrest in that case?

A. Yes, there was.

Q. Okay. And did you have reason to believe there was anything in that case that was connected to Mike Chapel's case?

A. No, I did not.

Q. Now, there was another case that occurred about that time that wasn't deemed a criminal case, but there was an officer that committed suicide. Did you have any involvement in that?

A. I had some involvement. I was -- on that particular thing, I was off and I -- you know, I had been called in on it. It was not -- I wasn't involved with it like I was a murder case, you know, a whodunit it type situation, and I did look at the case and review it, yes.

Q. Okay. Some investigation was done in that case that was related to the Chapel case; is that correct? Specifically, I'll tell you what I'm referring to. I'm not trying to trick you. There was a -- his car was checked out with Luminol and that kind of stuff. Are you familiar with that?

A. I'm not familiar with that.

Q. Okay. You didn't work that close on that investigation?

A. No. I don't have that direct knowledge, no.

Q. Okay. And who was in charge of that investigation; do you know?

A. I believe that Investigator Bernie Tkacik was the investigator that was in charge of it.

Q. Was he also in charge of the Bodie Hurst investigation?

A. No.

Q. Who was in charge of the Bodie Hurst investigation?

A. Jack Burnette was the investigator that we had assigned to that, and I had Lieutenant Latty, or Captain Latty now, assigned closely with him on that.

Q. And did Bodie Hurst have any involvement in J. P. Morgan's case?

MR. PORTER: Your Honor, I'm going to object. That's not relevant. That's outside the bounds.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I'm not asking any details. I asked if he had any involvement.

MR. PORTER: Your Honor, by asking the question, he makes the inference that somehow these men were involved when the testimony is no.

THE COURT: Objection's sustained. Go ahead, please.

BY MR. MOORE:

Q. During the investigation of the J. P. Morgan case, was there any conduct by Bodie Hurst that was investigated by the police department?

MR. PORTER: Your Honor, I'm going to object to this. It's irrelevant to this issue.

MR. MOORE: Your Honor, I'm only asking if it was investigated. I've not gone into any details. I can't find out if it's connected if I can't find out whether it was even investigated.

THE COURT: Objection's overruled. Go ahead, please.

BY MR. MOORE:

Q. Do you remember my question, Captain Davis?

A. Ask it one more time.

Q. I think I remember it. Was -- during the investigation of J. P. Morgan's death, was there an investigation involving Bodie Hurst?

A. Are you talking about the initial investigation of J. P. Morgan's death, his -- the suicide?

Q. Right. Yes, sir.

A. No, there was not.

Q. Okay. There was not an investigation --

A. Not during --

Q. -- of anything regarding his conduct in that J. P. Morgan investigation?

A. During the initial investigation, and I believe that's what you asked me, there was not any investigation into Bodie Hurst's conduct at the that time during the initial one.

Q. Okay. Was one initiated later?

A. Yes.

Q. And did that involve misconduct on Bodie Hurst's part?

MR. PORTER: Your Honor, I'm going to object. This is a specific of the investigation there. He's had the answer that he sought. I don't think it's relevant.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I'm trying to show the relevance. And if there is relevance, then I think I'll be able to go into details, but I have to be able to lay some foundation questions to find out if he knows anything first.

THE COURT: Objection's sustained. You can ask questions along the line we laid out at the bench conference.

BY MR. MOORE:

Q. If you know the nature of the subsequent investigation that was done on Bodie Hurst, can you tell us what it was?

MR. PORTER: Your Honor, I'm going to object to this that it's irrelevant and it violates the boundaries set by the Court.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I'm just inquiring into the nature of the investigation. I'm not asking for specifics.

THE COURT: Restate your question.

MR. MOORE: If you know the nature of the investigation involving Bodie Hurst, can you tell us what it was without going into details?

THE COURT: The objection's sustained.

BY MR. MOORE:

Q. Captain Davis, were you in charge of the investigation of Mike Chapel?

A. I was the captain assigned there. I would say that probably Chief White would -- you know, he was in charge of investigations at that time. And a crime of this nature and the way it happened, he was heavily involved with it. I -- it was, you know, one of those share type. He has rank, so he would be the superior officer. I'm the second in command there.

Q. I understand what you're saying, I think, is in a case like this where it involved a police officer, you'd have the higher ups involved also --

A. Yes, it's --

Q. -- not just the people down at the lower levels?

A. It's a little bit different than the normal homicide where I would be the one that would be directly in charge.

Q. Okay. Do you know who made the decision not to interview any of the officers at the northside precinct prior to Mike Chapel's arrest?

A. No. I don't have direct knowledge of that decision being made.

Q. Okay. Is that a correct statement that as far as you know, nobody up -- none of the other officers working the northside precinct up there were interviewed prior to Mike Chapel's arrest?

A. I -- I could not -- I don't have direct knowledge on that. I know -- you know, and to what extent would you consider it an interview, you know. I guess with Sergeant Stone, that was an interview that I had the night that I wrote the statement.

Q. Okay.

A. You know, that is an interview. That is some contact.

Q. Okay. To your knowledge, and I'll make it more specific. To your knowledge, did anybody go up there and ask Sergeant Stone or anybody else before Mike Chapel's arrest where were you on the night of the 15th of April and the morning of the 16th, what were you doing, that sort of thing?

A. The only thing that I'm personally aware of is that one statement. That's it.

Q. Okay.

A. I'm not personally aware of anybody else making direct contact with officers there.

Q. And in a supervisory capacity, you knew what was going on. There were briefings and meetings regularly on this case, weren't there?

A. Yes, but because of the nature of this crime -- you know, it's just like taking the statements and all. We were keeping -- trying to keep the number of people down and all in the department that was working on it. I was taking statements and, in essence, doing jobs that normally an investigator would do because we wanted to limit that. There could have been meetings that occurred that I was not at, so there're possibilities of other meetings being there. I wouldn't necessarily always, in this particular case, have knowledge of all the things. Chief White, more or less, was taking that particular role. In other words, I was one of the cogs in this particular investigation just like some of the other people.

Q. To put it bluntly, the police department was trying to keep this quiet until they could get it solved and get an arrest; isn't that correct?

A. We wanted to limit the number of people in the department that knew about it, yes.

Q. And you didn't want the media finding out about it before you had a chance to investigate?

A. That was not our concern, no. Well, you know --

Q. You wouldn't have been concerned if the headline read that a Gwinnett County police officer killed somebody, and they came to you and interviewed you and you said, 'We don't have any idea who did it'?

A. Our purpose for keeping it quiet was being able to solve an investigation. When you have the possibility of an officer being involved, then we don't need that spread all over the police department. We need to keep it limited to the number of people that knew it, because we didn't want to taint anything. Now, if that includes media, no, we didn't want the media to know it. We didn't want our neighbors to know it. We didn't want some of the, you know, the district commanders to know it. We needed to keep it quiet, because you can't investigate a crime while you go out and tell everybody what's going on. You can't do that.

Q. Okay. But within the police department, the word was out anyway, wasn't it?

A. I think the word got out because of -- on the road block. People were immediately saying that they saw a police car there. And, of course, yes, that would go out immediately, you know, that other policemen would say, 'Well, a police car was seen there.' That probably happened the first night, because I think we got information the first night.

Q. And, so since most of the police officers probably knew within a couple of days that a police officer had done it anyway, was there any reason not to interview the other people that could have been suspects?

A. Yes. We had a limited number of people and we were -- there were other things that we were doing, you know. We had a large number of people that had seen a police car. We were interviewing those people. You know, these are things that you -- that you do in order to start trying to work any kind of case. The way we determine whether people are lying or telling the truth is that we have to collect information, and we have to compare what they say with what other people have said. And you have to get to a point in an investigation to where you have that before you contact your suspects or contact the other -- the other people that possibly are there. I don't think there was any undue length of time that was -- you know, you're counting days, but it takes days to collect this information as well.

Q. Okay. And y'all chose not to call in any outside agency to assist you with this, didn't you?

A. You're making it like it's some kind of decision that we made, an arbitrary decision. There's no arbitrary decision that was made. I'm not aware or privy to any kind of meeting that occurred whether we -- where we discussed it. We started receiving information. We set up road checks, which is customary in this nature of crime. We started receiving information. We started following the trail of information. And we proceeded with the information, and we followed that all the way through till an arrest was made. And during the entire time, I know of no meeting anytime where it was discussed whether or not we should call in an outside agency.

Q. Okay. But one was not called in, is a fact?

A. One was not called in.

Q. Okay. And you just said that y'all did not have enough people to have interviewed everybody was one of the reasons you weren't doing it?

A. No. That's not what I said. I said that we were limiting the number of people on investigating it because we didn't want what we had learned to get out to the general population or the department.

Q. But it was already out with the people at the northside precinct, the people that worked the road blocks, wasn't it?

A. They were familiar of one aspect, that a police car had been seen there. We were not releasing the other information that we had gotten.

Q. Was the police department making any attempts to determine, without interviewing them, where the other people were and what they were doing that night, the other police officers?

A. Yes, we were.

Q. And what were you doing?

A. What were we doing to determine that?

Q. Yes, sir.

A. We were looking at radio logs, we were looking at calls, we were looking at things of that nature.

Q. Okay. Did you have occasion to examine Brian Reddy's?

A. I don't have direct knowledge if we did.

Q. Okay. Now, the night of Mike Chapel's arrest, are you aware that Brian Reddy lied to the police department about where he was?

A. I don't have direct knowledge of that. During the time that he would have been interviewed, I was taping the tapes.

Q. Okay. Now, back at the 20th, when you talked to Mike up at the fire station, up at the precinct, up there at the northside precinct --

A. Yes.

Q. -- you knew at that time he'd had contact with Emogene Thompson, didn't you?

A. Yes, I did.

Q. Okay. He had come forward and voluntarily given that information to D. E. Stone, Sergeant D. E. Stone, who'd passed it on; isn't that correct?

A. That's correct.

Q. And he'd given that information to Sergeant Stone before there was a -- before the murder took place, hadn't he?

A. I'm sorry?

Q. He'd given the information to Sergeant Stone about the fact he'd had contact with Emogene Thompson prior to her being murdered?

A. If he had, I have no direct knowledge of that.

Q. And prior to the identification on the 23rd -- 22nd, 23rd, Mike Chapel was already a suspect in the case, wasn't he?

A. Yes.

Q. Okay. And that was based on his contact with Emogene Thompson?

A. Yes.

Q. Now, after Mike Chapel's arrest, do you know whether or not then the police department moved in and interviewed everybody thoroughly up there at the northside precinct?

A. I don't have direct knowledge that everybody was interviewed. However, I know that there was a lot of interviews that were conducted, and I think that everybody was.

Q. You think that everybody up there was interviewed about where they were and what they were doing and that sort of thing, not just, 'Do you know anything about what Mike Chapel did?'

A. I don't have direct knowledge of that particular aspect of the investigation. I don't know what --

Q. Should there have been as a good investigative technique?

A. Yes.

Q. Do you remember a conversation with, the same time you talked to Mike about his hearing aids?

A. Yes, I do.

Q. Okay. And what did he tell you about that?

A. He said that he had had some hearing problems and that he had gone to the doctor and they said that he had to have hearing aids. And he said that the county would not provide the money for the hearing aids. And I knew that he would -- had been having problems with his -- with money and all and, you know, from previous contact that I'd had with him, and he said that he might end up -- I think he said that he might end up losing his job because he couldn't afford to buy a hearing aid.

Q. Okay. And this was after the murder when he said that, wasn't it?

A. Yes. That would be on the 20th.

Q. Thank you.

MR. MOORE: No further questions.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. PORTER:

Q. Captain Davis, from the date of April 22, 1993, till today, has there ever been any information, to your knowledge, that has developed another suspect other than Mike Chapel in the killing of Emogene Thompson?

A. No, there has not.

Q. Has information been, to your knowledge, pursued since April 22, 1993?

A. On another suspect in --

Q. On the possibility of another suspect?

A. No, there has not. There has not been.

Q. Has there been continued investigation into the death of Emogene Thompson regarding information that may have been received by the police department?

A. Yes, there has been.

Q. And has that information developed another suspect?

A. There has not been another suspect developed.

Q. Now, let me ask you, how long have you been with the Gwinnett County police department?

A. I've been there twenty-five years, you know, twenty-five and a half years, something of that nature.

Q. And have you been involved in all aspects of police work over there?

A. The only thing that I can recall that I haven't done is canine and flying helicopters.

Q. Have you been a supervisor over there?

A. Yes, I have.

Q. And how long have you been a supervisor?

A. Since the latter part of 1972.

Q. Now, let me ask you, is part of being a supervisor manpower allocation and priority setting within an investigation?

A. A large part.

Q. Let me ask you, as an experienced supervisor, if you had an alternative between setting up interviews with three hundred Gwinnett County police officers --

MR. MOORE: Your Honor, Mr. Porter is testifying. These are leading questions here. This is an experienced officer. He can ask him what's a good investigative technique or how he does it, but Mr. Porter doesn't need to tell him how to do it.

MR. PORTER: Your Honor, I'm allowed, based on this officer's -- or this -- Captain Davis' experience to set -- to request him to give an opinion on a hypothetical question, and I'm asking him to give the choice. I have to make -- I have to set up the choice.

THE COURT: Objection's overruled. Go ahead and state your question.

BY MR. PORTER:

Q. Captain Davis, given the choice between interviewing three hundred Gwinnett County police officers, because you have the information that a police officer might be involved, and following up with witnesses who actually saw the police car there, in your opinion as a police commander, which would have been your choice in assigning your investigative priorities?

A. We made the decision -- one decision we made early was limiting the number of people in the police department that was involved in the investigation. Our primary duties at that time, since we had a limited number of people that we were going to use, was interviewing the people, you know, the witnesses on the outside. The reason we made the decision to limit the number was to keep the information going out into the department. If we had interviewed those people prior to that, then that would be totally, you know, totally contradictory to the decision we made at first to limit the number. Does that answer your question?

Q. Well, let me ask you, why did you decide to limit the number?

A. Because -- because of the road block that we had, with the possibility of it being a police officer involved, we needed to keep the numbers down and the information closer in hand. We didn't need the police department to know what we were doing, the other policeman to know what we were doing.

Q. Were you afraid of that information going out?

A. I -- we felt that it could possibly get somebody hurt. You know, if it was a police officer involved, the possibilities were there. We felt we needed to keep it quiet.

Q. Did you believe that if it was a police officer there was the possibility of impeding your investigation?

A. Yes. All those possibilities are there with -- with it being a police officer.

Q. How would you characterize, as a captain in the police department -- at the time that you developed the information that a law enforcement officer might be involved in the murder, how would you characterize your feelings as you pursued this investigation?

A. When you're in that situation, especially when you've worked at a place for a long time, and in my case, when I started with the police department, we had like thirty-two total people in the department, and you've seen it grow from a small rural county to the county that we have now, and you have the pride in seeing it progress, you have several different kinds of emotions. You feel a loss because of the things that you lose, the stigma that you have with that. You feel the loss of a friend and cohort, someone that you've been around for a long period of time that would -- that would do that, and you don't expect it. It's -- it's some bad feelings that you can get with it. However, even though you have those feelings, it's a requirement because of the oath that you take and the responsibilities that you have that you proceed and see that justice is done in that type of crime and situation.

Q. And given the feelings that you've just described, would you want to seek the truth in this matter?

A. You positively want to seek the truth, and the reason is because, number one, you can't hardly believe that it's happening. You don't want to believe that it's happening to you, and before you make decisions and all, you want to get as much information as you can possibly get before you proceed on.

Q. And would you have been in a hurry to arrest one of your own?

A. No. And we weren't in a hurry that night. I know, and, of course, in talking with other officers and knowing what I felt while the tape was being played, you keep -- even at the last moment you want something to come out to show that this person, you know, is not the one. That it's somebody else. And I think that, you know, that's the way I proceeded and that's the way that I felt during the investigation. I kept hoping, but it just didn't materialize.

Q. Thank you.

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

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. Captain Davis, you went out with, I forget which officer, now, but you went out to -- when the interview of Karl Kautter and Paul Omodt took place, didn't you?

A. I was the only -- I was the officer that took the statement from Karl Kautter and Paul Omodt.

Q. And you went back?

A. Later on.

Q. You've answered my question.

A. Yeah.

Q. You went back later, and a photo lineup -- I believe you showed one to Paul Omodt; is that correct?

A. I didn't actually show it. Sergeant -- well, Lieutenant Steve Cline now was the one that had the responsibility of showing it. I did not witness the one with Karl Kautter, but I did witness the lineup with Paul Omodt.

Q. Okay. And the photos that were shown to them was a photo lineup with eight photographs; is that correct?

A. That's correct.

Q. Okay. And the only photograph of anybody that worked at the northside precinct that was included in there was Mike Chapel, wasn't it?

A. Now, I don't know that. I didn't make up the Chapel -- make up the photographic lineup. The only -- I do remember -- you know, what I remember about it, specifically, was when I saw the lineup. There was another officer there that looked, you know, the way the pictures were, to me, he looked just exactly like Chapel in the photos. The way it looked, you know, he looked very similar, and I was thinking that it might be possible that he would be picked out. And that's the only -- and I can remember that officer's name. It was Officer Kelly.

Q. I'm going to show you a photograph that's been marked Defendant's Exhibit D-38. Do you recognize that officer?

A. Yes, I do.

Q. Was his photograph included in the lineup?

A. The only two -- you know, the only two people that I can remember, the only two photographs that I can remember in that lineup, and you could show me, you know, every picture in the department, I remember two. When I looked at it, I saw Officer Kelly, and I saw Officer Chapel's picture, and that's the ones that -- that I recollect. I couldn't tell you -- and, again, you can show me every picture in the department, and I could not -- I could not recall.

Q. Do you know how many officers worked at the northside precinct besides Mike Chapel, male officers?

A. I would -- I don't know the exact number. I'd say that in the neighborhood of thirty-three to thirty-five people worked out of that precinct.

Q. And you went up there with Lieutenant Cline when he showed the photographs to Karl Kautter; is that correct?

A. I was there. He came up after I was -- I was taking a statement from Paul Omodt, and then he came up after I was there. We were in separate vehicles.

Q. To your knowledge, did he have any other photographs that he showed anybody other than the photo lineup?

A. Not to my knowledge. As far as the photographs there, my knowledge on the lineup was what he showed Paul Omodt and -- you know, after I took the statement. I didn't -- I'm not familiar with what else he did there. After he showed that photographic lineup, the folder was closed, and that's all to my knowledge.

Q. I'm going to show you a series of photographs that's marked D-14 through D-44. These were supplied to me pursuant to subpoena to the Gwinnett County police department as being the officers who worked the northside precinct on April 15, 1993. Mr. Porter brought them to me from the police department.

A. Okay.

Q. Would you look at these photographs and see if you recognize those people as working at the northside precinct during that time?

A. In this stack, I know they were. In this stack, I'm not sure.

Q. Okay. Now, in the stack that you said did work up there is Defendant's Exhibit Number 38; is that correct? Look on the back at the number, if you'd like.

A. Yes. Yes.

Q. Okay. Now, if the eyewitness, Mr. Kautter, had seen this photograph and said he couldn't be sure whether or not that was the man driving the car that passed him that night, would you have followed up and interviewed him, the officer in D-38?

A. Ask me one more time, please.

Q. If Mr. Kautter had said -- if he'd seen this picture and he'd said, 'I can't be sure whether that's the man driving the car or not; it's between him and Mike Chapel,' would you have followed up and interviewed Officer Stratameyer?

A. Yes.

MR. MOORE: I don't have any further questions.

THE COURT: Anything else of this witness?

MR. PORTER: I have nothing further for this witness, Your Honor.

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

[The witness stepped down from the stand.]

MR. PORTER: Your Honor, at this time, the state would request a recess until one o'clock, based on the technical situation regarding the videotape.

THE COURT: Would you approach the bench, please?

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

MR. PORTER: Your Honor, we're still in the preparation of the transcript, and I think I have to give them a transcript to review.

MS. ROGAN: Yeah.

MR. PORTER: The tapes are complete and the edits have been made in conformance with the Court's orders, but -- and I'm still printing twenty-five copies of the transcript. It's 137 pages. I've got to give counsel --

THE COURT: Okay. Will an hour and a half do it?

MR. DAVIS: Yes, sir.

MR. PORTER: I would think, Your Honor, in terms of the preparation.

THE COURT: Okay.

MR. MOORE: It depends on how soon we get them, Your Honor. We want a chance to have time to look at them.

MR. DAVIS: I can get a copy of the transcript in the defendant's hands in the next ten or fifteen minutes.

THE COURT: Okay. If we do that, is that sufficient?

MS. ROGAN: That's fine.

MR. MOORE: It should be, Your Honor.

MS. ROGAN: We can look at it over lunch.

THE COURT: I'm sorry?

MS. ROGAN: We can look at it over lunch.

THE COURT: Okay. Okay. If that's the case, then, we'll just recess until one o'clock and then --

MR. PORTER: Your Honor, and then we're going to put up the witness for the -- for the -- who created the edited the videotapes. And then we're going to put up Captain Latty to lay the -- to -- do you want me to just start the tapes or do you want to put up Latty? Because I mean, I can put him up for circumstances of the interview. He doesn't -- he can't identify these tapes.

MS. ROGAN: No.

MR. PORTER: I think I'll start playing the tape right after I put up the chain evidence and then we'll -- Captain Latty after -- for the circumstances of the interview --

MS. ROGAN: After the tapes.

MR. PORTER: -- after the tapes.

MS. ROGAN: I think that would be better.

MR. MOORE: Your Honor, I don't think I can control the order that he calls his witnesses, I mean.

MR. PORTER: Well --

MS. ROGAN: Just in terms of getting to the tapes.

MR. PORTERS: In terms of getting to the tapes.

MS. ROGAN: You know, we have some cross-examination for Officer Latty and I don't want to delay the playing of the tapes.

MR. PORTER: I think it would be better to put the witness up and start playing the tapes.

THE COURT: However you want. It's your case.

MR. PORTER: Yes, sir. I'm going to put Latty up after the tape.

THE COURT: As long as that gets a foundation to get them in. Is anything else required?

MR. PORTER: I don't think there's anything else --

THE COURT: Okay.

MR. PORTER: -- because the Court has already ruled on the evidence in this.

THE COURT: Yeah, they're in. They're in. Okay.

MS. ROGAN: Yeah.

THE COURT: All right. One o'clock then. Is that sufficient for everybody?

MR. PORTER: Yeah.

THE COURT: Okay.

MR. PORTER: I believe so, Your Honor.

THE COURT: I'm sorry?

MR. PORTER: If there's any problem, then we'll notify the Court.

THE COURT: Okay. Let me know. Okay.

[Bench conference concluded.]

THE COURT: While we deal with some evidentiary matters during the course of lunch, we'll just give you a recess during that time, and we'll take a little longer lunch than usual, but we should be ready, hopefully, at one o'clock. If not, it will be shortly thereafter. So we're going to at this point recess until one o'clock.

And if you'll -- again, I'll repeat instructions that you should not discuss the matter. You ought to continue to not make up your own mind. Keep an open mind. Wait, look, and listen to all the evidence and all the case until it's completed and you're in the jury room with your fellow jurors to commence your deliberations to deliberate and discuss the matter. You ought not to discuss the case with anybody else, allow anybody else to discuss the case with you or in your presence.

If you'll leave your pens, pads, and notes in your seats, they'll be waiting on you when you return, and we'll recommence at one o'clock. Mr. Allen, if you'll take the jurors out, please.

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

THE COURT: Mr. Porter, I believe you indicate we have the changes made, redactions made, that we went through last night?

MR. PORTER: Yes, Your Honor. I have the actual tapes. I'm in the process of preparing copies of the transcripts for the jurors as well as defense counsel. We will get a copy of the transcript to defense counsel within the next five to ten minutes, but twenty-three or eighteen for the jury plus the court reporter --

THE COURT: Okay.

MR. PORTER: -- will take a little bit more time.

THE COURT: All right. Well, if there's any problem with one o'clock, we'll just come back to it. But if we can get them ready by one, then we'll recommence at that time.

Do you have a -- at this point, the tape will run about how long, do you think?

MR. PORTER: Your Honor, I think that's a matter that can be discussed with counsel. But as I recall the tapes, there's about ten or fifteen minutes at the beginning that are -- is just a -- the videotape of an empty room, and I would suggest that we cue the tape up to when people enter the room --

THE COURT: Me, too.