P R O C E E D I N G
[In the Superior Court of
Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Tuesday, August 29, 1995;
the 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: We have one matter we need to take up this
morning and that is with one of our jurors.
Let the record reflect I had a conversation last night with Mr. Porter and Mr. Moore after receiving a
phone call that one of our jurors had a close relative who had passed away and
had about eleven hours worth of travel time along with the necessity for child
care with the family, and that was our Juror Number 142, Mr. Hogan, who after a
conversation with Mr. Moore and Mr. Porter last night, that juror has been
released from any further service in the jury.
Anything else you wish to add for the record, Mr. Porter?
MR. PORTER: Your Honor, only to state that in
conversation with me the Court did not reveal the name of the juror, and I
consented to the excusal of the juror without any knowledge of who that person
was, and I think the Court intended it that way.
THE COURT: Yes, sir.
Mr. Moore?
MR. MOORE: Your Honor, that's correct. The Court did not advise me who the juror
was either. You advised me that you had
confirmed the person did in fact have a close relative die, and I agreed to not
object to the Court excusing that juror without knowing who it was. The Court didn't want either side trying to
take any advantage of who it might be that was being excused, and so neither
one of us knew.
THE COURT: All right.
Well, it's my concern there not be any kind of tactical issues involved,
just simply a matter of need for this particular juror.
All right. So Mr. Hogan is excused from the trial
altogether, and that will mean our twelfth juror then is Juror Number 155, I
believe, our first alternate.
THE BAILIFF, MR. ALLEN: May I approach?
THE COURT: Yes, sir.
[A bench conference followed.]
THE BAILIFF, MR. ALLEN: Do you want me to take up his books and
secure them?
THE COURT: I'm sorry?
THE BAILIFF, MR. ALLEN: Do you want to take up his books and secure
them?
THE COURT: Which books?
THE BAILIFF, MR. ALLEN: His written pads.
THE COURT: Just let them keep them. They may want to refer to them during the
course of trial or they may want to look back or something during the course of
testimony unless they want them.
THE BAILIFF, MR. ALLEN: That will be fine.
THE COURT: Unless they want them. If they're in the way and they want them to
be secured, while we'll just --
THE BAILIFF, MR. ALLEN: We'll just take them up with the rest of
them then.
THE COURT: Okay.
Yeah.
[Bench conference
concluded.]
THE COURT: Okay.
Is the state ready?
MR. PORTER: The state's ready, Your Honor.
THE COURT: Is the defendant ready?
MR. MOORE: Yes, Your Honor.
THE COURT: Bring the jurors in, please. Let's see.
Mr. Hogan's, the notes that he's taken, I guess we need to be sure that he
isn't in the -- the directions are going to be that all of them will be
destroyed at the conclusion of the case.
I just don't want to destroy somebody else's inadvertently. I guess we can make sure those are Mr.
Hogan's. I think my inclination is just
to seal those up and retain them until the conclusion of the trial and then put
his with the notes he's taken with all the rest of them.
[The jurors were escorted to
the courtroom.]
THE COURT: Mr. Allen, I misunderstood which notes you
were talking about. Are those Mr.
Hogan's notes?
THE BAILIFF, MR. ALLEN: Yes, sir.
THE COURT: Pull those notes. Let's secure those. Let
me have those, and we'll seal those up and mark them or hold them until the end
of trial.
THE BAILIFF, MR. ALLEN: Okay.
THE COURT: And then we'll destroy those along with the
rest of them.
THE BAILIFF, MR. ALLEN: Yes, sir.
THE COURT: Just let me have them up here, Mr. Allen, and then we'll seal them up
shortly. Keep them for the record until
the conclusion of the case. Good
morning, ladies and gentlemen.
[Jurors respond]
THE COURT: Does anybody need another note pad? I saw somebody holding one up. Okay.
Everybody have a good evening last night? Good. Call your next
witness, please, Mr. Porter.
MR. PORTER: The state would call Investigator Wayne
Taylor to the stand.
[The witness was called to
the courtroom.]
MR. PORTER: Investigator Taylor, could you take the
witness stand up here, please.
[The witness stepped to the
stand.]
THE COURT: Go ahead and be seated, and Mr. Porter will
administer the oath.
MR. PORTER: Would 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,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Wayne Taylor.
Q. And how are you employed, Mr. Taylor?
A. Gwinnett County police department.
Q. And what are your duties with the Gwinnett County police
department?
A. I'm a criminal investigator.
Q. All right. How long have
you been employed with the Gwinnett County police department?
A. About eight and a half years.
Q. During that time were you assigned to the northside precinct?
A. Yes, I was.
Q. And could you describe for the jury what your duties were at the
northside precinct?
A. For the first part, it was mostly uniform patrol, and later parts
while I worked at the northside precinct, I was assigned to special units. One unit in particular was the Delta
unit. Myself and Officer Mike Chapel
were assigned to work together on Bona Road, Roberts Street, New Street, and
Roberts Street. This particular area
was high drug sales, and our duty at that time was to curb some of the sales of
purchases.
Q. All right. And during the
time that you were assigned to work with Officer Chapel, did y'all become
friends?
A. Yes, we did.
Q. Did you discuss personal matters?
A. Every now and then we did.
Q. Did you work out together?
A. He worked out. I don't
work out.
Q. All right. Did you ever
have occasion to visit him at his gym?
A. Yes, I did.
Q. About how often would that happen?
A. Generally, if he was there during the day, I probably went by
there maybe twice at the gym when he had it on Main Street and about once when
he had it on Moreno Street.
Q. All right. At any time
when you went to the gym, did you ever notice Officer Chapel in possession of a
handgun?
A. Other than his uniform issue weapon that he had. I stopped by there one day while on
duty. He had went by to check on some
things at the gym while we were on duty, and when I went by he was sitting in
front of the gym in his car, and I stopped and we sat there and started
talking. He told me that -- well, he
showed me a small .38 special that he had.
Q. Could you determine the make of the gun?
A. It was either a Rossi or a Charter Arms .38 special.
Q. Are you familiar with those two types of guns?
A. Yes, I am.
Q. And, in your opinion, based upon your familiarity, was the gun
that Officer Chapel was in possession of either a Rossi or a Charter Arms?
A. It was one of the two.
Q. And what did he say about the gun?
A. He showed it to me. I
asked him where he had gotten from, and he told me that he had taken it off
Austin Stiles.
Q. Did you know who Austin Stiles was?
A. Yes.
Q. Did you handle the weapon?
A. Yes, I did.
Q. And what did you do with it?
A. I looked at it and dry-fired it a couple of times and I handed it
back to him.
Q. Was there anything significant about the weapon other than what
you've described?
A. It didn't look like it was in too good a condition, but other
than that --
Q. And did you return the gun to Officer Chapel?
A. Yes, I did.
Q. Did you ever see the gun after that?
A. No.
Q. Where is Austin Stiles?
A. He's dead.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Taylor, now, this gun that you saw, did you examine the
gun and look at the caliber on the side of it?
A. No, I didn't look at the caliber on the side of it. It was -- apparently, it was a .38 special.
Q. Okay. Did you open up the
cylinder and look at it?
A. Yes, I did.
Q. And how long ago was that now that this occurred?
A. It was probably about -- I'd say about four and a half, maybe
five years ago. Let's see. I've been in CID for three years, so I've
been out of the northside precinct for three years.
Q. And isn't it very common for policeman to have guns and be
looking at guns and comparing them back and forth and everything?
A. Personal guns maybe.
Q. I mean, a lot of policemen like guns is what I'm saying; isn't
that true?
A. Not all policemen like guns.
Q. But a lot of them do?
A. A few of them maybe.
Q. Do you own a personal gun?
A. Yes, I do.
Q. And what kind of personal guns do you own?
A. Shotguns, .45s, .40s.
Q. Do you have a .38?
A. No.
Q. Okay. If you had to give your
opinion, give an estimate based on your eight and a half years of experience,
how many of the Gwinnett County police officers probably own .38s personally?
A. I have no idea.
Q. Would it be a lot of them?
A. I wouldn't even venture to guess.
Q. Would it just be one or two?
A. I wouldn't want to say.
Q. Okay. Now, this Delta
unit you described that you worked with Officer Chapel on, what kind of unit is
that?
A. It began, I believe, with Officer Chapel and Sergeant Rick
Poteet. He was a uniform officer at
that time. It was after a street level
drug investigation had taken place in Buford.
After that was over, he and Officer Chapel were assigned, basically, to
patrol Ingram's mobile home park, Arnold's mobile home part, which is on Forest
Street, New Street, Bona Road, and the Washington Street area, along with
Roberts Street and Brown's Alley.
During that time, I
was working at the westside precinct.
I'd been there for probably a little less than a year when the
department went back to a captain per precinct, and Captain R. L. Davis asked
me to come back to the northside precinct and work with Officer Chapel over in
that area because I was familiar with a lot of the residents there and a lot of
people that generally stood out in the street and sold drugs. I would even know them by name and by face,
so I was transferred back to northside precinct, and at that time myself and
Officer Chapel started working together.
Q. And did you work closely together?
A. Yes, we did.
Q. Okay. And you said you
became friends and everything?
A. Yes.
Q. Were you working with him on April 15, 1993?
A. No, I wasn't.
Q. How long had you not been working with him at that time?
A. Probably -- it was probably a couple of months.
Q. Now, were you familiar with his patrol unit, unit 197?
A. Which one would that be?
Would that be the new LTD or the old one?
Q. That would be the Crown Victoria, the new one he was driving.
A. I wasn't too familiar with it.
I believe he was assigned that vehicle after I left the northside precinct.
Q. And when did you say you left, a couple of months before April
15?
A. It was somewhere about a couple of months, maybe two or three
months prior to that.
Q. Okay. So if he was
assigned that vehicle in 1992, then you would have been working with him when
he had that vehicle, wouldn't you?
A. The last time I worked with Officer Chapel, he had a older model
Ford LTD.
Q. So if there's been testimony here that that vehicle was assigned
to him in 1992, then you're mistaken about the two months, then; correct?
A. I possibly could be, but I know the last time I worked with him
--
Q. He had the old car?
A. -- he had the old car.
Q. He didn't have the newer one?
A. No.
Q. Now, this weapon that you saw about five years ago, how long was
the barrel on that weapon?
A. It was a snub-nose barrel.
Q. Was it nickel plated, was it blue, or how was it -- what kind of
gun?
A. It was blue.
Q. Do you know whatever happened to that gun?
A. No.
Q. Did you ever see Officer Chapel carrying it?
A. No.
Q. Do you know whether or not Officer Chapel liked guns?
A. Yes.
Q. Okay. Was he always
buying and selling guns?
A. I don't know if he was always buying and selling guns. He and I traded guns once.
Q. But you're aware that he did have different guns at different
times?
A. Yes.
Q. Did you ever see a Smith & Wesson .38 that he had, an
undercover gun that he carried?
A. No. I never saw a Smith
& Wesson.
Q. You never saw -- you know what a shroud is, Smith & Wesson,
where the hammer's shrouded?
A. Yes.
Q. Did you ever see one like that?
A. No, I don't recall seeing one of those.
Q. Would that have been unusual for a police officer to carry a
backup gun?
A. No.
Q. In fact, that's a very common practice, isn't it?
A. Yeah -- well, yes, I guess it is.
Q. Okay. In case somebody
gets hold of your service revolver -- or you don't carry revolvers these days,
I guess, they're automatic -- then you'd have your backup gun; is that right?
A. Yes.
Q. What kind of condition was this gun you saw in?
A. I considered it to be not in top condition. You know, not new, but, then again, not torn
up and beat up either.
Q. Okay. Would you have felt
comfortable firing plus P ammunition or high-powered ammunition in it?
A. No.
Q. You'd been afraid of the thing, wouldn't you?
A. I just wouldn't have had it.
Q. But you wouldn't have wanted to fire that thing with high-powered
ammunition in it, would you?
A. No, no, no.
Q. Because you'd have been afraid it might have come apart and
injured you or something?
A. Well, you know, it could have.
MR. MOORE: No further questions of Officer Taylor.
THE COURT: Redirect?
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Officer Taylor, when you dry-fired the gun, was it in operable
condition?
A. Yes, it was.
Q. And when you said you wouldn't have it, could you explain that?
A. Well, you know, if I was going to have one, one of those
particular brands, you know, I'd get a Smith & Wesson or, you know, a
better brand than that one. I wouldn't
generally have that one because, like I said, it was -- it had a few rust spots
on it. The grips were plastic. I believe they were brown plastic, and it --
Q. So is your decision based more on your -- is your statement based
more on your personal preference?
A. Yes.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Recross?
RECROSS EXAMINATION
BY MR. MOORE:
Q. Officer Taylor, you said you opened the cylinder up. Was that a six-round or five-round .38?
A. I believe it was a five-round.
Q. And you say you believe.
Do you remember or are you just guessing?
A. Generally, Rossi and Charter Arms .38 specials are five
rounds. My sister owns one, and I've
cleaned hers several times for her, and hers is a five-round.
Q. Okay. Do you have any
independent memory of whether it was five or six rounds or are you just going
generally?
A. Just going generally what it was.
Q. They do make them that are six rounds, too, don't they?
A. I don't know. I've just
seen hers.
Q. Okay. Like RG's, they
make one with six rounds, don't they?
A. I don't know anything about RG's.
Q. Let me show you what's been marked as State's Exhibit Number
131. Can you identify that?
A. It's stamped, caliber .38 special. It's a black or blue steel, six-shot, RG.
Q. Okay. Could that be the
gun you saw Mike Chapel with?
A. No.
Q. What was different about it?
A. It had -- the one he had had rust spots across here [indicating]
that crossed the back strap. Whenever
you pulled the trigger back, the firing pin looked kind of worn just a
bit. The grips were cracked around the
edges, basically around the edges.
Q. But they do make those two-inch revolvers in six rounds as that
one demonstrates, don't they?
A. I guess so.
Q. And do you -- my question is, do you have any independent memory
of whether the one you looked at was six rounds or five rounds?
A. I can't remember. I'm
just going on general -- I believe it was five.
Q. Thank you.
MR. MOORE: That's all I have.
THE COURT: Anything else of this witness?
MR. PORTER: I have no other questions for this witness.
THE COURT: Is he on call?
MR. PORTER: Yes, Your Honor. He is on duty, I believe.
THE COURT: All right.
You'll be subject to being recalled later. You can come down.
THE WITNESS: Yes, sir.
[The witness stepped
down from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: Call Officer Ray Dunlap to the stand.
[The witness was called to
the courtroom.]
MR. PORTER: Officer Dunlap, if you could take the
witness stand here, please.
[The witness stepped to the
stand.]
MR. PORTER: Could you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending, shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: Yes, I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. You can put your hand down.
Could you state your name, please?
A. Patrolman Raymond Lee Dunlap.
Q. And can you spell your last name for the record?
A. D-u-n-l-a-p.
Q. Patrolman Dunlap, where are you employed?
A. Gwinnett County police department.
Q. And what are your duties with the police department?
A. I'm a motorcycle officer.
Q. How long have you been doing that?
A. I've been on motorcycles for about six and a half years. I've been with the county for eleven and a
half.
Q. Do you know Mike Chapel?
A. Yes, I do.
Q. How do you know him?
A. I have worked with him before in the Buford area, and also I
worked out at one point at his gym in Buford.
Q. All right. Do you recall
when that was that you worked out in his gym?
A. Yes. It was in the early
part of 1993.
Q. Can you be specific as to month?
A. Probably in the February, March, April area, right around there.
Q. Let me call your attention to some time in March of 1993. Did you go to the gym to work out during
that period of time?
A. Yes, I did.
Q. All right. Can you
describe for the jury how you were dressed on the particular day in
question? Do you remember the specific
day?
A. Yes, I do. I was off duty
that day. I was dressed in blue jeans
and a T-shirt and I almost a hundred percent of the time am carrying a weapon,
and I was that day due to the --
Q. What kind of gun were you carrying?
A. I was carrying a Charter Arms .38 five-shot snub-nose.
Q. All right. And how were
you carrying it?
A. I was carrying it open on my waist.
Q. All right. And did you go
to the gym that day?
A. Yes, I did. I went up
there to get a re-supply of a supplement that I was buying off of Mike.
Q. Was Chapel there then?
A. Yes, he was. He was
sitting in his office as I entered the gym.
Q. Did you have any discussion in addition to the discussion about
the supplement?
A. Yes, I did. As I walked
in, Mike observed me and he said, 'Ray Bob, what's the pea shooter you have on
your hip?'
Q. And what did you respond?
A. I said, 'Well, it's a Charter Arms .38.' I said, 'But don't knock
it. It's an accurate shooting little
gun.'
Q. Did he have any response to that?
A. Yes, he did. He said,
'Yes, I know. I have one.'
Q. And was that the extent of your conversation?
A. About the weapon, yes, it was.
And then we went on with discussion about the supplement, which he was
out of.
Q. And did you continue to work out at the gym?
A. No. I was only working
out there for about three weeks while I didn't have a partner to work out at my
usual place, which was Sports Life. I
was starting to get into some heavy weights and you have to have a spotter, and
Mike allowed me to come up there and he spotted for me.
Q. And then did you eventually go back to the other gym?
A. Yes, I did.
Q. When did you come forward with this information regarding your
conversation with Chapel?
A. Probably approximately four to five weeks after the murder of
Emogene Thompson. I heard a rumor that
the police department knew that it was one of two types of weapons, and one of
the weapons mentioned was a Charter Arms.
That immediately brought the conversation back to my memory.
Q. All right. And did you
write a supplemental report for your superiors?
A. Yes, I did.
Q. And did you turn that in?
A. Yes, I did.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Dunlap, is there anything uncommon about police officers
carrying a small .38 as a backup gun?
A. No. I wouldn't say there
was anything uncommon about it, no.
Q. Okay. What percentage of
the Gwinnett County police department would you say probably carries a gun like
that?
A. I have absolutely no idea.
Q. Of the people that you know well, how many of them do?
A. Nobody that I know of right off hand. I don't carry it as a backup.
I carry it off duty.
Q. Okay. How many of them
carry them off duty like that?
A. I don't know. I don't
check with people to see what kind of weapon they carry.
Q. You don't see them carrying them?
A. No. Most of the time we
carry our weapons off duty concealed.
On this particular day, it was a rather warm day, and I didn't bother to
put a jacket on over it.
Q. Do you know anybody else that has a .38 caliber Charter?
A. Not right offhand.
Q. Besides yourself?
A. Not right offhand.
Q. Okay. Now, when you were
having this conversation with Mike Chapel, did he say he had a Charter Arms or
did he just say he had a small gun like that?
A. I said, 'It's a Charter Arms .38, and it's a very accurate
shooting little gun.' And he said,
'Yes, I know. I have one.'
Q. And that gun is not recommended to fire plus P or high-powered
ammunition, then, is it?
A. No, it is not.
Q. In fact, the manufacturer says it's dangerous to fire it, doesn't
it?
A. I don't know if they say it's dangerous, but they don't recommend
you shoot plus P or plus P plus.
Q. Do you know what kind of bullets were used in this case for the
murder?
A. No, I do not.
Q. Now, you were on the way out to Mike Chapel's -- you went in that
day to buy a food supplement called Testron, didn't you?
A. Correct.
Q. And what kind of food supplement is that?
A. It's something that Mike recommended to me because I was working
out with weights. It's a -- I think
it's a synthetic testosterone.
Q. Did you buy any of it from him?
A. He was out of it that day.
Q. And how much did it cost?
A. I don't remember right offhand.
Five, six, ten dollars. I'm not
sure.
Q. Okay. Had you bought it
from him before?
A. Yes, I had.
Q. Did you feel like it was doing any good? Was it working?
A. No. I quit taking it
because I didn't really feel like I was accomplishing anything with it.
Q. Now, did you ever see the .38 Charter Arms you said that Mike
Chapel had?
A. No, I did not.
Q. How well did you know him?
A. I had known Mike probably during his whole employment with the
county.
Q. Have you ever seen him with a small backup gun?
A. I don't check with officers to see if they're carrying a backup
gun. If they do, they're usually
concealed. I wouldn't ask to see it.
Q. Okay. So you don't know
whether he had a small Smith & Wesson he carried or not?
A. No, I do not.
Q. Are Smith & Wesson's more the preferred gun that police
officers carry?
A. I don't know. Sir, as I
said, I don't check with officers to see what they carry.
Q. Okay. Do you have any
.38s besides your Charter Arms?
A. No, I do not.
Q. Has your .38 ever been checked?
A. Yes, it has.
Q. Test-fired -- who did that?
A. It was sent to the crime lab.
Q. And when was that done?
A. Right after I made this report to the department.
Q. Do you know whether or not Brian Reddy had a small undercover
gun?
A. No, sir, I do not.
Q. Do you know whether or not the police department went around to
the officers and asked how many people owned that type of gun after the murder
of Emogene Thompson?
A. I have no idea.
Q. Did anybody come to you or did you come forward?
A. I came forward because I recalled the conversation.
Q. Okay. So as far as you
know, if somebody didn't come forward, nobody was going around and asking who
owned that kind of gun?
A. As far as I know. I don't
have any knowledge of that.
Q. And when was the date that this took place?
A. I don't remember an actual date.
It would have been in March, probably three to four weeks prior to the
murder.
Q. Could it have been February?
A. I don't think so because I started working out there in
February. I only worked out there for
probably two to four weeks and this was towards the end of the time I had been
working out there.
Q. And you never saw any gun?
A. No, I did not see the gun.
Q. So you don't know any other police officer that carries a small
undercover .38?
A. No, sir, I don't. I'm
sure there may be some, but I don't know.
Q. Okay. Who's your close
friends who are police officers?
A. Just the ones I work with.
Q. Do any of them carry one?
A. Not that I know of. I'm
on motorcycles. We -- I'm injured right
now so I'm not in my normal uniform, which is boots. We wear boots that nearly reach our knees, so it would be hard to
carry an off-duty weapon or a backup weapon.
Q. But when you were working like in 1993, when you weren't working
that, who were you working with then?
A. I was on motors then, also.
Q. Okay. And none of the
people you work with carry a .38 when they're off duty?
A. I don't know. I don't --
believe it or not, I don't associate with police officers a lot off duty.
Q. Okay.
A. I'm married and pretty much stay at home.
Q. And you don't talk about things like guns and stuff like that?
A. I'm not a gun fanatic. I
don't talk about them much.
Q. So Mike's the only person you talk to them about?
A. No. He just -- he brought
up the conversation and asked me what the gun was, and I responded with what it
was.
MR. MOORE: That's all I have. Thank you.
THE COURT: Redirect?
MR. PORTER: I have no redirect for this officer, Your
Honor.
THE COURT: Is he on call?
MR. PORTER: He's on duty, Your Honor, but he's
available. We would ask that he be
allowed to return to work.
THE COURT: Okay.
You'll be subject to being recalled later, but you can come down. Thank you.
[The witness stepped down.]
THE COURT: Call your next witness, please.
MR. PORTER: Call Investigator B. J. Tkacik to the stand.
[The witness was called to
the courtroom.] stand.]
MR. PORTER: Mr. Tkacik, would you take the witness stand
here, please.
[The witness stepped to the
stand.]
MR. PORTER: Would you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending, shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a witness
and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. You can put your hand down.
Could you state your name, please?
A. Detective B. J. Tkacik.
That's T-k-a-c-i-k.
Q. And Detective Tkacik, where are you employed?
A. I work as a criminal investigator with the Gwinnett County police
department's violent crimes youth affairs section.
Q. How long have you been so employed?
A. Well, I started with Gwinnett County in 1984 as a uniform
officer, and in '87 I was promoted to detectives. From 1987 to currently, I've always worked in the crimes against
persons unit.
Q. Were you so employed in April of 1993?
A. Yes, I was, sir.
Q. Did you have an involvement into the investigation into the death
of Emogene Thompson?
A. Yes, I did, sir.
Q. Could you describe for the jury what your involvement was,
particularly in regard to the execution of the search warrant?
A. On Saturday, it was the 24th of April, I was asked by
Investigator Burnette to lead a group of uniform officers to a business that is
owned by the defendant. It's called
Iron World The Gym, and it's located just off the square in downtown Buford on
East Moreno Street.
Q. At that time did you have in your possession a search warrant
issued by a magistrate from Gwinnett County?
A. That's correct, sir.
Q. And did that search warrant describe the certain items that were
to be searched for?
A. Yes, sir.
Q. Included in that search warrant, among the items to be looked
for, was there a rain hat, a clear plastic rain hat?
A. Yes, sir.
Q. All right. And did you
execute that search warrant?
A. Yes, I did, sir
Q. And can you describe -- how did you make entry and how did you
conduct the search?
A. We had access to the building through the use of the key. We entered into the building. We had designated specific areas for
officers to go ahead and look for the items listed within the search
warrant. We broke the business down
into quadrants. The specific area that
I was concerned with was an outer greeting area as you come into the building,
which is located to the right, as well as an inner-office area. Myself and another officer had looked in the
inner-office area.
Q. And during the search of that inner-office area, did you in fact
recover a clear plastic rain cover for a police hat?
A. Yes, sir.
Q. And where was that located?
A. There was a gym bag that was located on the floor within the
inner-office area. That cap was inside
the gym bag.
Q. All right. Let me show
you --
MR. PORTER: Let me have this marked as the next state's
exhibit.
[State's Exhibit Number 132
was marked for identification by the court reporter.]
BY MR. PORTER:
Q. Let me show you what has been marked as State's Exhibit Number
132. Can you look at that and identify it,
please?
A. It's an evidence bag that I have labeled containing different
items that were secured during the course of that search.
Q. And did you seal those items in that bag yourself?
A. Yes, I did, sir.
Q. Did you -- included in those items, is there the plastic rain
cap?
A. Yes, sir.
Q. Can you reach into State's Exhibit Number 132 and remove the
contents, please.
MR. PORTER: And let me have that marked.
[State's Exhibit Number 133
was marked for identification by the court reporter.]
BY MR. PORTER:
Q. Let me show you what I've had marked as State's Exhibit Number
133. Can you identify that, please,
sir?
A. Yes, sir. This is the
clear plastic rain cap that I had secured from the gym bag in the inner-office
area of the gymnasium.
Q. At what location did you place the rain cap into the bag that
you've identified as State's Exhibit Number 133?
A. Our property room at the headquarters of our police department.
Q. During the time before it was placed in the evidence bag, did you
maintain custody of it?
A. Yes, I did, sir.
Q. Did you change it in any way or alter it in any way while you had
custody of it?
A. No, sir.
Q. Now, Investigator Tkacik, attached to a search warrant is a
document called a return?
A. That's correct.
Q. Can you describe for the jury what happened with the return in
this case?
A. The return that I had provided to magistrate's court, I had
included all but one item. I had
omitted this rain cap whenever I made my return to magistrate's --
Q. All right. And did you subsequently
file an amended return to the search warrant?
A. Yes, sir. Immediately,
whenever I had been notified of that omission, I'd filed an addendum to
magistrate indicating to them that this item had been recovered on the 24th.
Q. Do you have any explanation for that?
A. My human error. Just an
omission, an oversight on my part, sir.
Q. And let me ask you, did you photograph the items that were
recovered at the gym? Well, first of
all, were there other items recovered?
A. Yes, sir. There were other
items that were photographed. The other
items that were obtained during the course of that search, there was a rifle,
an altered shotgun that was located underneath the desk inside the inner-office
area. There was a Gwinnett County night
scope that was located within a case in the outer office area in a cabinet and
that was the property of the Gwinnett County police department. There was a green bag containing two plastic
bags that had piping and copper wiring on the inside, both bag -- one bag was
marked M-11, one was marked M-10. I
displayed those items to the sergeant that was present and he'd indicated to me
that those were --
MR. MOORE: Your Honor, I'm going to object to him going
into what the sergeant said. That's
hearsay.
MR. PORTER: Investigator Tkacik, you can't go into what
someone else told you.
THE WITNESS: Understood.
THE COURT: Restate your question, please.
BY MR. PORTER:
Q. You've described what was discovered.
A. Understood.
Q. Were there any other items that were actually recovered at the
scene that were taken by you pursuant to the search warrant?
A. All of those items were secured by myself that I've described,
along with a small pocketknife.
Q. And did you photograph those items?
A. Yeah. I had attempted to
go ahead and photograph those items as we were recovering them, and the camera
that I was using, again the counter on it indicated that I'd had film left in
the camera, but it wasn't functioning properly. When it came time for the recovery of both the pocketknife as
well as the rain cap, I didn't have film left to go ahead and document where
those items had been recovered, just the other items that had been recovered
prior to that.
Q. Would it have been a better practice to get some film and
photograph it?
A. Yes. Yes.
Q. All right. What was the
basis of your decision not to do that?
A. Well, I believe the availability of film at that time -- there
were no uniform officers that I know that don't -- that carry film in their
cars if I wanted to call out for film, but, also, the other officers that were
present at the time of recovery, I utilized that as the documentation for the
recovery process.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: What was the year of the search? That was April?
THE WITNESS: '93.
THE COURT: Okay.
Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Tkacik, my name is Johnny Moore, and I believe you know
me.
A. Yes, sir.
Q. Okay. I have a few
questions for you. You were the officer that had occasion to interview Delores
Burel; is that correct?
A. That is correct, sir.
Q. And you interviewed her on two different occasions; is that
correct?
A. That is correct.
Q. And on the second time, Officer Cline was with you; is that
correct?
A. Lieutenant Cline, yes, sir.
Q. Now, you found some pants in the gym there, I believe; is that
correct?
A. Yes, sir.
Q. Do you know what size they were?
A. No, I do not, sir.
Q. Okay. Did you seize
anything out of them?
A. A pocketknife.
Q. Were those pants big enough to fit somebody as big as Mike
Chapel?
A. I had not taken any measurements from the pants at all, sir. I couldn't tell you. I really couldn't tell you whether they'd
fit him or not.
Q. Were they great big pants?
A. I'd say average size blue jean type pants.
Q. Average size? I mean --
A. I'd say large enough to fit an adult. They weren't a child's pair of blue jeans, but I didn't take any
sizes out of them.
Q. How big was Mike Chapel at that time?
A. I believe as tall as he is right now, sir.
Q. And approximately what's that?
A. I'm sorry?
Q. Approximately how tall is that?
A. I'd say about six-one, six-two.
Q. About my height?
A. I'd say comparable.
Q. And how much did he weigh?
A. How much did he weigh? I
couldn't tell you, sir.
Q. Would it have been -- you're a trained police officer. Would it have been 150 pounds, would it have
been 200?
A. I'd say -- I'd say probably as heavy as I am. I'm 220 pounds.
Q. You think at that time you were as big and weighed as much as
Mike Chapel?
A. I believe so, sir.
Q. You were the officer in charge of the investigation into J. P.
Morgan's death, weren't you?
A. Yes, sir.
Q. And did you have occasion to take possession of a yellow rain
jacket there?
A. Yes, sir.
Q. Okay. And did you have
occasion to check what kind of weapons Officer Morgan owned?
A. Yes, sir.
Q. And what kind of weapons did you find?
MR. PORTER: Your Honor, I'm going to object to
this. This is not relevant to whether
or not Michael Chapel is guilty of the murder of Emogene Thompson.
THE COURT: I'm going to let the jury step out for just
a minute while we take this matter up.
If you'll leave your pens, pads, and notes in your seats.
[The jury was excused from
the courtroom and proceedings continued, as follows, with the jury not
present.]
THE COURT: What is your objection, Mr. Porter?
MR. PORTER: Your Honor, the investigation or the facts
of the investigation into the death of J. P. Morgan are not relevant to the
issue of whether or not Michael Chapel murdered Emogene Thompson. The Court has made previous rulings that Mr.
Moore can inquire as to whether or not any information was gathered that led to
J. P. Morgan being dealt with as a suspect, but that's the limitation which the
Court has previously placed. In order
for him to go into what weapons he owned, getting a raincoat, or anything else,
I think it's improper and is irrelevant in this case.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, might I ask the witness a couple
of questions that might clear this up?
THE COURT: Go ahead.
Well, let me ask, first, what line of questioning are we about to embark
on? I guess that's my first question.
MR. MOORE: Your Honor, they were trying to exclude J.
P. Morgan as a suspect in the Emogene Thompson case and that's why they took his
raincoat, that's why they Luminoled his car, that's why they checked his
weapons and everything. And just like
Mr. Porter can show that they excluded people, you've ruled, I think I can show
their investigations into other people that were suspects in the case and how
thorough those investigations were.
THE COURT: What do you want to ask this witness?
MR. MOORE: I was going to ask him --
BY MR. MOORE:
Q. Isn't it true, Officer Tkacik, that you were trying to rule out J.
P. Morgan as a possible person that killed Emogene Thompson?
A. We were trying to exclude him.
MR. MOORE: Your Honor, I think that makes it relevant.
THE COURT: Ask him the questions you want to ask and
let's see where we're going.
MR. MOORE: Okay.
CROSS EXAMINATION - JURY OUT
BY MR. MOORE:
Q. What kind of -- did you check for weapons, what kind of weapons
Officer Morgan had?
A. Smith & Wesson type weapons.
They were .38 caliber handguns that he'd kept at home.
Q. Okay. What did you do to
determine what weapons he had?
A. I spoke to his wife and learned through her the personal weapons
that he'd maintained.
Q. Okay. And during the time
that that scene investigation was being conducted, did another officer, Bodie
Hurst, come into the crime scene?
A. Yes, sir.
Q. And was he authorized to be there?
A. He was invited.
Q. Does his name appear anywhere in your official police report?
A. No, sir.
Q. Okay. And did he -- isn't
it true that he destroyed the hard drives on both computers that Officer Morgan
owned?
A. He's been charged with altering and removing information, yes,
sir.
Q. And whatever information was on there has been destroyed at this
point on his computers; is that correct?
A. Yes, sir.
Q. The police department has no idea what was on those computers?
A. That is correct, sir.
Q. Could you tell us why, since he was charged with a crime out of
that, that his name was not included in the official police report?
A. Because the information that may have been contained within that
-- those computers was not determined to be in any way, shape or form related
to the death of Officer Morgan. There
was hope on my part that information could be placed within the computer by
Officer Morgan himself as to why he may have taken his life, not in line -- not
in line with this investigation as far as Mrs. Thompson was concerned, not --
Q. But you don't know what was on those computers, do you?
A. No, I do not, sir.
Q. You're speculating when you say that, aren't you?
A. We're all speculating, sir.
Q. Okay. And are you aware
that Officer Morgan's wife believes that he left a suicide note on those
computers?
A. I know that I had asked her, and we tried to go ahead and obtain
that information.
Q. And Bodie Hurst destroyed that information, if it existed, didn't
he?
A. I know that it has been removed, yes, sir.
Q. And Bodie Hurst did it, didn't he?
A. He's been charged with that, yes, sir.
Q. He's been charged with that crime. The police department believes he did it?
A. Yes, sir.
MR. MOORE: Your Honor, that's the line of questioning I
want to go into. I mean, there's been
evidence destroyed here in
an investigation of a suspect into the Emogene Thompson case, and I think we're
entitled to bring that out.
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, there's been no connection
between Officer Hurst and pending charges that are facing him and the death of
Emogene Thompson. Mr. Moore says
there's been evidence destroyed in the death of Emogene Thompson, but yet he
makes no connection between the two.
It's irrelevant evidence.
Officer Morgan killed himself.
Mr. Moore can inquire as to whether any suspects or relevant information
was developed. And the answer to that
question is probably going to be no.
But that's as far as he can go.
To go into the
details of that investigation through this officer, number one, are hearsay
and, number two, are irrelevant. And to
allow Mr. Moore to by innuendo and by cross-examination, which is not evidence,
to bring this specter into this courtroom is simply wrong, and it is simply a
violation of the rules of evidence.
The evidence here is to get
to the truth of what happened here.
Your Honor, we believe that this is all irrelevant material and not
properly brought out with this witness.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, when the police believe there
may be a connection and they investigate that connection, we believe we're
entitled to bring that out, whatever they did, to show how thorough it was,
whether they did a good job in their investigation to determine whether or not
J. P. Morgan did have any involvement.
And the fact that
somebody comes into it while they're doing the investigation and destroys
evidence so the police don't know what was there, we think that's relevant
also. It goes to the quality of the
police investigation into it. And
Officer Tkacik has testified himself that they were trying to exclude J. P.
Morgan as a suspect when they were doing this investigation.
MR. PORTER: Your Honor, if I may have one question on
redirect.
THE WITNESS: Yes.
THE COURT: Go ahead.
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Why did you try to exclude Officer Morgan?
A. Investigator Burnette had gotten with me and had obtained
information or learned of some self-serving statements that were offered by the
defendant while he was in custody in Hall County that through the death of J.
P. Morgan -- he'd made statements as if Mr. Morgan was the one responsible for
Emogene Thompson's death. Investigator
Burnette had gotten with me and had indicated that there was a need to go ahead
and try to provide any information that would see if Officer Morgan was
connected with that matter.
Up until that point, I was
trying to look into the reasons why Officer Morgan had passed away, why he had
decided to take his life, and there was absolutely no information that had been
given to me, nothing at all that had been learned at the scene, nothing at all
that had been shared with me verbally.
There were actions that may have been taken, but nothing that would have
said that this was related to the death of Emogene Thompson. Nothing.
MR. PORTER: Your Honor.
This is a smoke screen created by the statements of the defendant. And I will state in my place that on the date
of J. P. Morgan's suicide, Mr. Chapel's prior attorney called me and said, 'Now
we have our first suspect.' This is --
MR. MOORE: Your Honor, what -- what Officer Morgan's
prior attorney did has got nothing to do with this case.
MR. PORTER: Officer Chapel's attorney.
MR. MOORE: Oh, I'm sorry.
MR. PORTER: But, Your Honor, it does have something to
do with it in the sense that it has been a strategy from the very beginning to
make hay out of the suicide of a Gwinnett County police officer.
THE WITNESS: Absolutely.
MR. PORTER: And now we are trying to get to it through a
witness who was the chief investigator in that investigation, and none of this
is relevant material beyond the fact that from that investigation there was no
information that changed the course of the Michael Chapel investigation.
I'll make the appropriate
objections at the appropriate time if Mr. Moore wants to call Investigator --
former Officer Hurst, if he wants to call Renee Morgan, if he wants to do a lot
of things. But, number one, he's attempting
to elicit hearsay from this officer and, number two, the material is not
relevant in any way.
THE COURT: Well, I guess another question, Mr. Moore,
is to what extent the questions you pose and the responses you elicit are
hearsay and this witness cannot testify anyway.
MR. MOORE: Your Honor, I don't believe I asked him what
anybody else told him. He was there at
the crime scene. He was there when
Bodie Hurst came in. They charged Bodie
Hurst. They investigated and charged
him with altering those computers. He
has personal knowledge of that. And the
eyewitness, if the Court will recall, J. P. Morgan's photograph was one of the
three that he identified as being similar to the photo of Mike Chapel in the
photo lineup.
MR. PORTER: Your Honor, that's a misstatement. He identified the photo in the pretrial
hearing as one of the photos that was similar to the photos in the lineup, and
a review of the transcript will reveal that.
The only photo that has been identified as similar to Mike Chapel's is D-38.
MR. MOORE: And, Your Honor, I would submit the rule of
necessity applies here, too, on the hearsay because Bodie Hurst will take the
Fifth Amendment. He is not going to
testify in this case. He's under indictment
by the district attorney's office in at least one case, maybe two, and the district
attorney's office is holding off on prosecuting those cases simply to keep him
from being available as a witness.
MR. PORTER: That's incorrect, Your Honor, and I resent
the misstatement of the facts in this case. Mr. Hurst has gone through two attorneys. The state has not been able to schedule that
trial. And to imply any misconduct on
the part of the state is simply wrong and is simply untrue. Mr. Hurst's case will be dealt with in the
fullness of time and in the schedule that you yourself have since the case is
assigned to you, and the Court will reach it when the Court reaches it.
THE COURT: Is it assigned to this division?
MR. PORTER: It is assigned to this division.
MR. MOORE: When was that case indicted, Mr. Porter?
MR. PORTER: It was indicted almost two years after the
event when an investigation, which began with Officer Hurst stealing money from
an evidence room, blossomed into other areas, and Investigator Hurst faces a
variety of charges, or former Officer Hurst, a variety of charges arising out
of a variety of misconduct.
Excuse me, Your Honor, that
case is not assigned to this division.
It is assigned to Judge Stark's division.
THE COURT: Okay.
MR. MOORE: Your Honor, I would point out to the Court
the district attorney controls when they bring an indictment to the grand
jury. If this crime occurred two and a
half years ago, he could have indicted it two and a half years ago.
THE COURT: If you're allowed to inquire -- Mr. Moore,
are the questions you want to ask basically what you've asked?
MR. MOORE: Basically, what I've asked here, Your Honor.
THE COURT: I want to take a recess here and think about
it just a moment.
MR. MOORE: I didn't write it down, Your Honor. I may need the court reporter to --
THE COURT: Well, I understand. Before making a ruling, if you're allowed to
go through with it, and I haven't decided that yet, I don't contemplate having
a mini-trial on all the other issues like the Morgan case and get off on a
week's worth of trial on another case.
I think if there is appropriate -- if examination of the witnesses as to
those matters is appropriate, and I'm not deciding that yet, then I think an
inquiry is not -- will not be tantamount to a license to a mini-trial to go try
those cases and take a lot of time with them aside from the issues in this
case.
MR. MOORE: Your Honor, if the Court allows it, I don't
anticipate a mini-trial, and if the Court does allow it, I would ask the court
reporter if she could give me the questions so that I can follow what I did
before the Court so that I don't ask anything different than what I've already
told you.
THE COURT: All right.
MR. PORTER: Your Honor, and the state will insist on the
right to redirect into those areas along the lines of what I've asked Investigator
Tkacik.
THE COURT: Well, the question is, what's appropriate on
direct and cross and redirect and recross.
I guess the question is, are they permissible questions?
MR. PORTER: Your Honor, my position is they are not
permissible, either on cross or redirect.
However, I don't think the state again can be limited by the
cross-examination of the defendant into improper areas and not be allowed to
explore those areas as we have with Investigator Tkacik. There is an explanation.
THE COURT: Yeah.
Well, I'm not suggesting you can't, but I'm just saying inquiring into
those areas doesn't mean that you necessarily ask any question in any form you
want.
MR. PORTER: Your Honor, that may be true and that may be
subject to -- but I believe that I would be allowed to explore the issues of
the relevance of that matter to this case.
THE COURT: Sure.
That goes without saying, I think.
Okay. Let's take ten minutes. We'll recommence.
[A brief recess was taken in
the proceedings.]
THE COURT: Anything else, Mr. Moore?
MR. MOORE: Not at this time, Your Honor.
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, only to restate our objection to
the line of questioning.
THE COURT: All right.
What I'm going to do, Mr. -- what the ruling of the Court is going to
be, Mr. Moore, is I'm going to allow a limited inquiry as along the line of the
questions you posed earlier while the jury was out.
On one hand, I suppose, it
has some collateral -- it seems to me, some collateral, minimal kind of
relevance to the case. And let me just
state that pursuant to the pretrial proceedings, the pretrial motions, I had
all the state's files, which I did a review of, in camera of, all of the files
from the Bodie Hurst investigation, all the files from the northside precinct
investigation, all the files in the investigation of Officer Morgan's death,
and I guess over a period of several months, I looked at every piece of paper
and all those -- went through the audio and video recordings.
And the net result of that,
as far as anything that was exculpatory or in any way connected with this case,
was the one document provided which was arguably -- provided or might be used
as an alibi for the defendant in this case.
I very carefully looked at all that with a -- looking for any evidence
or suggestion of any co-defendants in this case, any conspiracy involved in any
of those matters in this case, any co-conspirators, and the net result of all
that review, which I spent nights and weekends doing over a period of time and the
daytimes when I could do it, and -- the stuff was boxed up in my office. I could hardly get through chambers with all
the material that was there boxed up.
The net result was
zero connection from any of that with this case. So because of that, I think that unless there's things that
aren't in that or things I'm not aware of from that, I think it has little or
no relevance, but I'll allow you the limited inquiry until such time as you can
show there is some connection that ought to be -- that there ought to be an
expanded inquiry.
If you'll do that,
then I'll allow it, but otherwise not.
And one of my concerns is I just don't contemplate spending a lot of
time with, like I said earlier, mini-trials on the issue of Hurst, on the issue
of Officer Morgan and the northside precinct, which to date, I think, shows
zero, absolutely zero connection with this case.
MR. PORTER: Your Honor, if I may, then, in light of the
Court's statement, one of the specific limitations which has been placed upon
the defendant, we believe that these questions about checking for weapons, how
that information was learned, whether Bodie Hurst came to the scene, was he
authorized to be there, are all -- all fall beyond the bounds of the limited
area of relevance the Court has described.
THE COURT: Well, I just think there is a -- I think Mr.
Moore has showed the basis of at least some connection to the case and some
relevance on the basis he's indicated.
I think it's a discretionary matter insofar as the extent of the inquiry. And my inclination is to exercise discretion
of the Court, allow Mr. Moore to inquire along the line with the questions he's
posed in a limited manner.
I just think that's
appropriate, and I'm going to allow him to do that, and then you can ask follow-up
questions if you wish, and I just think that's -- it's my feeling that that's
appropriate in the case all things considered.
And I don't think there are any hard and fast lines of this is what you
can ask and this is what you cannot ask throughout the course of the trial.
MR. PORTER: Well, Your Honor, this goes back to the
state's motion in limine. It is
precisely this problem which we wished to address pretrial. It is precisely this area. The Court has made a statement here in open
court for the benefit of counsel and the benefit of the defendant, but the jury
hasn't heard that statement.
And now, in front
of the jury, the fact finders in this case, Mr. Moore is going to be allowed
basically, with the only guidance from the Court to say, 'I'm going to allow
you to ask questions along the lines of what you asked before.'
THE COURT: I believe Mr. Moore's indicated he's going
to ask what he's asked.
MR. MOORE: Your Honor, I'll state for the record, the
court reporter has prepared the transcript for us during the recess, and I
intend to follow that transcript as close as I can to ask exactly the same
questions. And, Your Honor, I would
point out to the Court, too, and Mr. Porter, that I don't doubt the Court has
thoroughly and diligently examined the records you've got that have been
provided to you, but I would also point out to the Court I doubt seriously, if
there was any conspiracy or anything going on in the police department, they'd
write it down and send it to you. It
would only be revealed through cross-examination.
THE COURT: Well --
MR. PORTER: Your Honor, this is the second time today
that Mr. Moore has made a blanket accusation of misconduct on the part of the
state, and specifically the district attorney's office, and it is precisely
this type of innuendo which is going out before this jury which is unreasonable
without strict guidance from the Court.
THE COURT: Well, I think Mr. Moore has the
guidance. He said he's going to ask the
questions he's asked. You'll have the
opportunity for redirect, and I think we have an investigation here which was
at least in part to inquire as to any potential connection between Officer
Morgan's death and this case. And I
think that out of sort of a fundamental interest in fairness, I think Mr. Moore's
entitled to inquire as to the nature of the police inquiry in a limited way.
I don't intend to
try that case here. I don't intend to
try the Hurst case here. I don't intend
to try the northside precinct investigation here, unless you can clearly
establish that that's something that ought to be inquired into on a greater
basis than I've indicated I'm going to allow.
Insofar as this
witness and the questions you can pose, you can pose the questions you've
asked, you can follow up with a redirect, Mr. Porter, but I believe those are
questions that Mr. Moore -- I don't think it's inappropriate to inquire, make
that inquiry in any way, and I'm going to allow it. And that's going to be the ruling of the Court. Anything else, Mr. Porter?
MR. PORTER: No, Your Honor.
THE COURT: Mr. Moore?
MR. MOORE: No, Your Honor.
THE COURT: Bring the jury back, please.
[The jury returned to the
courtroom and proceedings resumed, as follows.]
THE COURT: Proceed when you're ready, Mr. Moore.
CROSS EXAMINATION - RESUMED
BY MR. MOORE:
Q. Officer Tkacik, back in May 10 of 1993, you were in charge of the
investigation into the death of Officer J. P. Morgan; is that correct?
A. Yes, sir.
Q. Now, isn't it true, Officer Tkacik, that you were trying to rule
out J. P. Morgan as a suspect, as a possible person that killed Emogene
Thompson?
A. No, sir. I never listed
Officer Morgan as a suspect in Ms. Thompson's death.
Q. Is it true, Officer Tkacik, that you were trying to rule out J.
P. Morgan as a possible person that killed Emogene Thompson?
A. It is true that I'd been given information that we needed to go
ahead and try to exclude --
Q. Officer Tkacik, I'd ask that you answer my question first. You can explain it, but answer the question
first. Is that what you were trying to
do?
A. Repeat the question again, sir.
Q. Is it true that you were trying to rule out J. P. Morgan as a
possible person that killed Emogene Thompson?
A. Yes, sir.
Q. Now, did you check for what kinds of weapons Officer Morgan may
have had during that investigation?
A. Yes, I did, sir.
Q. Okay. And what type of
weapons did he have?
A. He had several revolvers that he'd kept at home.
Q. And what caliber were they?
A. They were .38 calibers.
They were .38 caliber Smith & Wesson revolvers.
Q. And without going into what anybody told you, any hearsay, how
did you determine what weapons he may have had? Who did you talk to?
A. His spouse.
Q. Now, during the time the investigation was being conducted, did
another officer, Bodie Hurst, come into the crime scene?
A. Yes, sir.
Q. And was he authorized to be there?
A. Yes, sir.
Q. Does his name appear anywhere in your official report?
A. No, sir.
Q. Isn't it true that he destroyed the hard drives of both computers
that Officer Morgan owned?
A. Yes, sir.
Q. He's been charged with altering and removing information from
them, hasn't he?
A. Yes, sir.
Q. And whatever information on there has been destroyed at this
point?
A. That is correct, sir.
Q. And nobody knows what was on there?
A. That is correct, sir.
Q. You were attempting to check those computers for a suicide note;
is that correct?
A. That is correct, sir.
Q. And you were unable to do so?
A. That is correct.
Q. And if that information existed, Bodie Hurst destroyed it, didn't
he?
A. That is correct, sir.
Q. And he's been charged with that crime by the police department?
A. Yes, sir.
MR. MOORE: That's all I have. Thank you.
THE COURT: Mr. Porter?
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Investigator Tkacik, when you responded to the scene of J. P.
Morgan's suicide, at that time was he a suspect in the murder of Emogene
Thompson?
A. No, he was not, sir.
Q. And did you discover any evidence at the scene or at any time
later in your investigation that made J. P. Morgan a suspect in the murder of
Emogene Thompson?
A. No, sir. No, sir.
Q. Why did you decide to pursue the investigative tack to eliminate
J. P. Morgan as a suspect?
A. The lead --
MR. MOORE: Your Honor, I'm going to object if he's
going into hearsay now. He may have a witness
testify --
MR. PORTER: Your Honor, Mr. Moore has opened this door.
THE COURT: Just a moment. What's your objection, Mr. Moore?
MR. MOORE: Your Honor, I believe he's about to go into
hearsay of what people told him. Now, he
might can say he spoke to somebody and then he proceeded to investigate, but I
don't believe he can testify to what somebody told him.
THE COURT: Let's hear the question. What's the question?
BY MR. PORTER:
Q. Why did you decide to try and exclude J. P. Morgan as a suspect
in this murder?
A. A request had been made by me by the lead investigator into the
death of Emogene Thompson.
MR. PORTER: Your Honor, Mr. Moore has raised this
specter in front of this jury. He has
raised the question. The state is now
entitled to produce evidence which will rebut that if it can, and we believe
that we can. And I think now for Mr.
Moore to stand up and say that this is hearsay after the testimony that he's
elicited --
THE COURT: What's your question?
BY MR. PORTER:
Q. Who requested that you exclude J. P. Morgan?
A. The lead investigator, Investigator Jack Burnette.
Q. All right. Did he provide
you with any information upon which he based his request?
A. Yes, he did, sir.
Q. What was the information that he provided you?
A. That self-serving statements had been made by the defendant in
reference to the death --
MR. MOORE: Your Honor, if this witness didn't hear
those statements, I'm going to object.
He cannot testify to --
THE COURT: Just a moment. Would you approach the bench, please?
[Counsel approached the
bench and the following conference ensued outside hearing of the jury.]
THE COURT: What's your question going to be?
MR. PORTER: Well, Your Honor, what information was
provided. And the officer began by saying
that self-serving statements had been made by the defendant, and Mr. Moore
objected.
MR. MOORE: Your Honor, he can call the officer that
heard those statements, but he can't -- this officer didn't hear them. He wasn't present.
MR. PORTER: It's hearsay to explain conduct, Your Honor.
THE COURT: Well, I'm inclined to allow it in on a
limited basis to explain his conduct. I
mean, why is he over there investigating, what prompted him. I think that's a --
MR. MOORE: Your Honor, without saying what he told him,
he can say that he got information which he was investigating, to explain his
conduct. That's been limited in cases
to that.
MS. ROGAN: We also object to the characterization of
self-serving. It's not proper for this
witness to characterize what the statements were, what -- I mean, it's
information. It's not -- characterizing
it as self-serving is putting a spin on it that's not --
THE COURT: Well, ask him what you want to ask and is it
not -- is it information that the defendant had represented that Morgan was
connected with Emogene Thompson's death?
MR. PORTER: They received information that Morgan had
killed himself because of guilt over the murder of Emogene Thompson.
THE COURT: All right.
And that's the reason he was over there looking.
MR. MOORE: Your Honor, that's a jailer at the Hall
County jail that supposedly overheard that, too, and he's available to
testify. We've got him under subpoena,
and the state has him available, and this is about third-hand hearsay to this
officer.
MR. PORTER: Your Honor, it explains conduct. I'm in the process of presenting evidence
which proves my case. I'm not going to
be diverted into every little bush that the defendant raises.
THE COURT: I don't intend to spend a day on this issue,
but I think to show why he was over there, I think you can raise the issue of
your investigation and being over there and Bodie Hurst and all the rest of
it. I'll allow you to -- why don't you
ask him a leading question along those lines that was it because of the --
well, tell me what you would like to ask, and let's see if there's any
objection to it.
MR. MOORE: Your Honor, I object to the characterization
of self-serving. He can say statements
of the defendant if he wants to, but I don't think he's entitled to make
inferences to the jury at this point.
He may can in his closing argument, but not in the evidence.
THE COURT: Tell me the question you want to ask.
MR. PORTER: In a leading form?
THE COURT: It might be a good way to structure it so we
don't wander off.
MR. PORTER: All right.
The only thing I intend to say at this point is that, did you receive
information that the defendant had made statements at the Hall County jail
which indicated that he was going to try and implicate J. P. Morgan.
MS. ROGAN: Not indicate.
MR. MOORE: Not that he was going to. The evidence did, Your Honor. I don't --
MS. ROGAN: You can't -- you don't even know what the
statements are. It's third-hand
hearsay.
MR. PORTER: They don't implicate him. The statements say --
MS. ROGAN: You don't know what Mike said.
MR. PORTER: I know exactly what he said.
THE COURT: Tell me what you want to say.
MR. PORTER: He said that J. P. -- I guess J. P. Morgan
couldn't live with the guilt of what he did.
THE COURT: All right.
Tell me the question you want to pose to this witness.
MR. PORTER: Did you begin your investigation along these
lines based upon statements that the defendant made in the Hall County jail?
THE COURT: Okay.
Mr. Moore?
MR. MOORE: Your Honor, he may be able to ask that
question, but that's not the question he was asking earlier.
THE COURT: All right.
Are you going beyond that with any statements by the defendant? Is that what you want to ask?
MR. PORTER: No.
I'm not going into the defendant's statements.
THE COURT: Okay.
I'll allow that.
[Bench conference
concluded.]
THE COURT: Go ahead, please.
BY MR. PORTER:
Q. Investigator Tkacik, let me rephrase my question to more closely
direct what I want to ask. Did you
begin your investigation into the death of J. P. Morgan as a possible suspect
based on a request from Investigator Burnette?
A. That is correct, sir.
Q. And did Investigator Burnette, to your knowledge -- and did you
begin that investigation along those lines based upon information that you had
gotten about statements made by the defendant while he was in the Hall County
jail?
A. That is correct, sir.
Q. Had it not been for those statements, would you have investigated
or did you at any time consider that there was a connection between J. P. Morgan's
death and Emogene Thompson's?
A. No, sir.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
RECROSS EXAMINATION
BY MR. MOORE:
Q. One thing I wasn't clear about, Officer Tkacik, on the property
sheets. Did you take possession of one
raincoat or two raincoats that Officer Morgan owned?
A. There were two raincoats, sir.
Q. And were both those raincoats tested?
A. The newer raincoat had never been taken out of its original
package. It had never been altered in
any way, shape or form.
Q. Okay.
MR. MOORE: That's all I have. Thank you.
THE COURT: Anything else of this witness, Mr. Porter?
MR. PORTER: I have no other questions for this witness,
Your Honor.
THE COURT: Is he on call?
MR. PORTER: Your Honor, he's available. Officer Tkacik's on duty.
THE COURT: All right.
You'll be subject to being recalled later.
THE WITNESS: Thank you, sir.
THE COURT: You can come down.
THE WITNESS: Thank you.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: The state would call Glenn Teatino to the
stand.
[The witness was called to
the courtroom.]
MR. PORTER: Mr. Teatino, could you take the stand there,
please.
[The witness stepped to the
stand.]
MR. PORTER: Would 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,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name and spell your last name for the
record, please.
A. My name is Glenn Teatino.
It's spelled T-e-a-t-i-n-o.
Q. And, Mr. Teatino, how are you employed?
A. I'm chief investigator with the Gwinnett district attorney's
office.
Q. And could you describe what your duties are as the chief
investigator of the Gwinnett County district attorney's office?
A. Sure. I supervise
investigations, supervise investigators, assist you, of course, on any problem
that we may have, keep up with equipment inventory.
Q. Now, Investigator Teatino, have you been assigned on behalf of
the district attorney's office to supervise the investigation into the death of
Emogene Thompson?
A. Yes, I have.
Q. And in the course of that have you performed duties which include
showing evidence to defense counsel and to the defendant, if necessary?
A. Yes, sir.
Q. And let me call your attention to the 28th of July of 1995. On that date, were arrangements made to show
evidence to Ms. Rogan and Mr. Moore at the Gwinnett County police department?
A. Yes, they were.
Q. Were you a part of that process?
A. I was.
Q. All right. Let me show
you -- Investigator Teatino, let me go back to July 28, 1995. On that date, did you observe that briefcase
that we have had previously marked and identified as State's Exhibit Number 97?
A. Yes, I did.
Q. Could you describe for the jury how did you observe that, where
did you see it?
A. We were at the Gwinnett County police department training room,
where we were in the process of laying out evidence for Mr. Moore to view, and
I laid this particular briefcase out in the training room.
Q. All right. Was it open
when you received it?
A. No. It was unsealed. I opened it up and set it out.
Q. All right. Let me show
you what we have had marked as State's Exhibit Number 135. Can you look at it and tell us if you
recognize that, please?
A. Yes, I can.
Q. And can you identify it, please?
A. This note pad was inside this briefcase and when I opened the
briefcase. I took it out and laid it
out beside the briefcase.
Q. And let me show you what I've had marked as State's Exhibit
Number 134. Can you take a look at that
and identify it, please?
A. Yes. That's a photograph
depicting how the items were laid out beside the briefcase in the training
room.
Q. And is that photograph a true and correct representation of what
it purports to depict on that date?
A. Yes, sir, it is.
Q. All right. Did you
observe while the evidence was examined by the defense counsel and were you
present during that?
A. Yes, I did. Yes, sir, I
was.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Investigator Teatino, do you have any way of knowing what the
contents of that briefcase was at the time that it was taken from Mr. Chapel's
car?
A. No, sir.
Q. No inventory was ever done of it by anybody, was there?
A. Well, inventory was done, and I'd looked in it previously, but as
far as recalling exactly what was in it up until, what, two years later, I
don't recall.
Q. All that inventory said was miscellaneous papers, didn't it?
A. Yes, sir.
Q. It didn't give any details of what was in there?
A. I don't believe so.
Q. Have you watched the video of Officer Chapel when he gave the
statement?
A. Yes, I have.
Q. I'm going to show you Defendant's Exhibit Number 76. Have you ever seen that before?
A. I've seen it before.
Q. Can you identify it?
A. Yeah. It's in the
briefcase.
Q. Okay. And on the video,
Officer Chapel hands that over and lays it on the table with his keys on it in
front of Officer Latty and Officer Burnette.
Do you recall that in the video?
A. I recall him laying some keys, yeah.
Q. With that whatever you call that thing on it attached to it
there?
A. It could have been. I
don't remember.
Q. And somebody had to place that in the briefcase, didn't they?
A. If they'd come out of the briefcase, yeah.
Q. And Officer Chapel didn't do it because he was in custody, did
he?
A. He was in custody; right.
Q. So somebody else placed that in there?
A. They could have.
Q. As chief investigator, can you tell us who did it?
A. No, sir, I couldn't.
Q. Was the briefcase unsealed that morning when you got there at the
police department?
A. When we showed you the evidence?
Q. Yes, sir.
A. No, it was sealed up.
Q. Who unsealed the briefcase?
A. Investigator Jack Burnette.
Q. Did he do that in your presence?
A. Right.
Q. That's all I have. Thank
you.
THE COURT: Redirect?
MR. PORTER: No redirect, Your Honor. We would ask that Investigator Teatino be
allowed to return to his duties.
THE COURT: Yes, sir.
You can come down.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: I call Dick Hinson to the stand. Dick Hinson.
[The witness was called to
the courtroom.]
MR. PORTER: Would you take the stand here, please, sir.
[The witness stepped to the
stand.]
MR. PORTER: Could you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Richard W. Hinson.
Q. And how are you employed?
First of all, could you spell your last name for the --
A. H-i-n-s-o-n.
Q. How are you employed, Mr. Hinson?
A. I'm an investigator with the district attorney's office.
Q. And what are your duties as an investigator with the DA's office?
A. We have varied duties.
Right now, I'm working as an investigator with the white collar crime
unit.
Q. I'd like to call your attention back to April of 1993. Were you employed as an investigator at that
time?
A. Yes, I was.
Q. Did you have any involvement into the investigation of the death
of Emogene Thompson?
A. Very little. I did have
some, yes.
Q. All right. Did you assist
in the transport of Mr. Chapel on the night of his arrest?
A. Yes, I did.
Q. Beyond that, did you have any other involvement?
A. No, sir.
Q. And until approximately June of 1995, did you have any further
involvement in the case of the State of Georgia versus Michael Chapel?
A. None other than beginning preparation for this trial.
Q. And in the course of that trial or in the course of that
preparation, what has been the primary duty that you have had as an
investigator of the DA's office?
A. Locating and contacting witnesses, primarily.
Q. All right. Now, I'd like
to call your attention to the 28th of July of 1995.
A. Yes, sir.
Q. Were you on that date requested to assist in the display of physical
evidence for defense counsel out at the Gwinnett County police department?
A. Yes, I was.
Q. And did you in fact do that?
A. Yes, I did.
Q. Did you yourself examine some of the physical evidence at that
time?
A. Yes, I did.
Q. All right. I'd like to
show you what has been marked as State's Exhibit Number 135. Can you identify that, please?
A. Yes, sir.
Q. And can you tell us what it is?
A. It's a notebook with a small legal -- yellow legal pad.
Q. And have you seen that notebook before?
A. Yes, I have.
Q. And where was that?
A. This was at the police department in the police department
academy training class. It was -- when
I first saw it, it was laying beside a briefcase.
Q. All right. And if you'd
look at State's Exhibit Number 97, is that the briefcase that you saw that day?
A. Yes, sir.
Q. I'd also like you to look at State's Exhibit Number 34, which has
been previously identified, and is that a representation of the condition of
the two items as you saw first them?
A. Yes, sir.
Q. Can you describe for us what you did with the notebook, if
anything?
A. I'm sorry.
Q. If anything, if you did anything with it.
A. Yes. These items depicted
in the photograph were laying where they are in the photograph. I went over after Investigator Teatino had gone
through the briefcase, and I began to follow him in going through the contents
of the briefcase. I picked this
notebook up and flipped through it, looked at -- looking for whatever
information we might could have used in the trial of this case. Before I put it down, I happened to look
behind the notebook or the legal pad in the notebook down in the slot, and I
saw what to me appeared to be the corner of two one hundred dollar bills.
Q. Were you surprised by that?
A. Very surprised, yes.
Q. Let me show you what we have had previously marked as State's
Exhibits Number 121A, B, C, and D. Can
you look at those and identify them, please?
A. Yes, sir. These are one
hundred dollar bills that were later pulled from the slot inside of this
notebook.
Q. All right. And who
removed those?
A. ID Sergeant Bob Lee with the Gwinnett County police department.
Q. All right. Were those
bills replaced back into the notebook on that day?
A. Yes, sir, they were.
Q. And do you know who replaced them?
A. To my knowledge, it was Sergeant Lee.
Q. All right. And were you
present when Mr. Moore and his investigator examined the evidence?
A. Yes, sir, I was.
Q. And did they examine the notebook, State's Exhibit Number 135?
A. Yes, they did. Yeah.
Q. Did they discover the bills behind the notebook?
A. No, sir, they did not, not until they were shown the bills
themselves.
Q. All right. And were the
bills removed for them?
A. I don't recall if they were or not. I do know they were supplied with a photograph of the bills that
Sergeant Lee had taken when he --
Q. Now, Investigator Hinson, I have one other area that I would like
to talk to you about.
A. Okay.
Q. And that is what has been previously marked as State's Exhibit
Number 131. Can you identify that,
please, sir?
A. Yes, sir, I can. This is
a RG revolver that was given to me by Officer Brian Reddy of the Gwinnett
police department.
Q. And do you recall the date of that?
A. August the 18th of this year.
Q. And --
A. 1995.
Q. Excuse me, I'm sorry.
1995?
A. 1995, yes.
Q. And where was that weapon turned over to you?
A. At Officer Reddy's house.
Q. Did he voluntarily turn that weapon over to you?
A. Yes, he did.
Q. And what did you do with it?
A. I immediately transported it to the state crime lab down on Panthersville
Road.
Q. Okay. And what did you do
with it once you got to the crime lab?
A. I turned it over to Kelly Fite with the GBI crime lab.
Q. Do you know what he did with it then?
A. He fired two test rounds from this gun and then compared them to other
evidence in this case.
Q. All right. And what was
the other evidence that he compared it to?
A. Two rounds, I believe, that were found in Ms. Thompson's
automobile.
Q. All right. And was all
this comparison and firing done in your presence?
A. The firing was not. The
testing was, the comparison.
Q. And then what did you do with the gun and the test rounds after
Mr. Fite was done with them?
A. I transported them back to our office and logged them into the
district attorney's evidence room.
MR. PORTER: Thank you.
That's all the questions I have for Investigator Hinson.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Investigator Hinson, I have a few questions to ask you.
The briefcase that's marked State's Exhibit Number 97, was it your
testimony that that was already opened when you got to the police department?
A. When I got to the police department?
Q. Yes, sir.
A. No, sir, it wasn't.
Q. Was it opened in your presence?
A. It was opened -- I was in the same room. I don't recall whether I actually observed
it being opened.
Q. Okay. Do you know who all
has had access to that briefcase during the two years it's been in the police
department?
A. I have no idea --
Q. Did you check the property sheets to see who all may have signed
it out?
A. No, sir, I did not.
Q. Did you see the video that Officer Chapel, where he gave his
statement? Have you seen that?
A. I've seen bits and pieces of it.
I've not seen the entire --
Q. Have you seen it -- were you present down at the police department
watching it on a monitor at the time he was arrested?
A. No, sir, I was not.
Q. Do you know whether or not he had keys with him when he was
arrested? Do you remember that part?
A. I know nothing -- nothing of that.
Q. I show you Defendant's Exhibit 76. Can you identify that?
A. No, sir. I don't -- I
don't think I've ever seen it.
Q. Can you tell us whether it came out of the briefcase or not?
A. I don't recall seeing it in the briefcase.
Q. Okay.
A. I can't say it wasn't in there, but I don't recall seeing it.
Q. And when we arrived at the police department back in July to look
at the evidence, what were your instructions?
To show us all the evidence in the case?
A. Basically, we were there just to lay the evidence out, and then
let you, as far as I know, look at it at your leisure.
Q. And when we arrived there, nobody said to us 'we've discovered
some new evidence,' did they?
A. No, sir.
Q. In fact, the first time we knew about it is when our investigator
picked that notebook up and started to look, and that's when everybody jumped
and said, 'don't touch that,' didn't they?
A. I believe he had looked at the notebook and taken the legal pad
from the slot and was getting ready to replace it back into the slot where the
bills were, and, as I recall it, Investigator Teatino stopped him at that
point.
Q. Okay.
A. That's when the bills were shown.
Q. Had there been any discussion about whether to tell us about it
if we hadn't discovered it?
A. I think the discussion was to put it back like it was and if you
found it, fine. If not, we would show
you what it -- you know, where it was.
Q. If you were going to show it to us, why didn't you just go ahead
and tell us when we got there?
A. I don't know. That wasn't
my decision to make and --
Q. Who made that decision?
A. Apparently, it was either Detective Burnette or Investigator
Teatino. They were the only other two
people in the room with the --
Q. So they were going to wait and see if we found it?
A. Basically, I guess.
Q. You said, I believe, that this notebook was lying beside the
briefcase?
A. Yes, sir.
Q. Do you know of your own personal knowledge whether it was in the
briefcase when it was opened up?
A. I can -- I know when Detective or Investigator Teatino carried it
over to the countertop area that's depicted in the photograph, there was
nothing else there. That's all I can
testify to.
Q. And wasn't this laid out, Defendant's Exhibit Number 76, wasn't
that laid out as coming out of the briefcase, too?
A. It may have been. I don't
recall that particular item.
Q. I want to ask you to examine State's Exhibit Number 134 and see
if you can determine whether or not Defendant's Exhibit 76 is in the briefcase
in that photograph.
A. I see something that possibly could be it. I can't, without a magnifying glass -- it
appears that it -- that possibly something laying in the briefcase that might
be that item.
MR. MOORE: Nothing further.
THE COURT: Redirect?
MR. PORTER: Your Honor, only to have Investigator Hinson
identify one other photograph. If you
could mark this as the next State's Exhibit.
[State's Exhibit Number 136
was marked for identification by the court reporter.]
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Investigator Hinson, I'd like to show you what has been marked as
State's Exhibit Number 136, and can you identify that, please, sir?
A. Yes, sir, I can.
Q. And what is that?
A. This is a photograph of Detective Jack Burnette holding the
notebook, holding the slit open so a photograph can be taken of the hundred
dollar bills down in the slit.
Q. All right. And is that a
true and accurate representation of what you observed on that day?
A. Yes, sir, it is.
Q. Thank you.
MR. PORTER: That's all the questions I have. Your Honor, at this time, the state would
move for admission of State's Exhibit Numbers 134 and 136, which are the
photographs that have been described by Investigator Hinson.
THE COURT: All right.
134 is the --
MR. PORTER: Photograph.
THE COURT: -- photo of 135, which is a notebook and
cover and the contents. Any objection
to 134?
MR. MOORE: Your Honor, we don't believe those would be
admissible until after the exhibits that are photos of themselves have been
admitted. These are the product of
other evidence that's not yet been admitted.
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, these are photographs which have
been identified as true and correct representations of what they depict; and,
therefore, the proper basis has been laid for the admission of these photographs.
THE COURT: State's 134 is admitted over objection. 136 is of Investigator Burnette holding 135
that's the note pad?
MR. PORTER: Yes, sir.
THE COURT: Any objection?
MR. MOORE: Your Honor, the same objection.
THE COURT: It's admitted over objection.
MR. PORTER: Your Honor, also at this time, we neglected
to do this with the last witness, but we would move for admission of 132, which
is the evidence bag, and State's Exhibit 133, which is the rain hat, which was
testified to by Investigator Tkacik.
THE COURT: Any objection?
MR. MOORE: Your Honor, no new objections, subject to
the Court's previous rulings.
THE COURT: Well, is that an objection or not at this
point?
MR. MOORE: Your Honor, we're not consenting to it
because there's been previous rulings that may be appropriate.
THE COURT: All right.
State's 132 and 133 are admitted over objection.
MR. PORTER: And we have no other questions for
Investigator Hinson, Your Honor.
THE COURT: Recross?
MR. MOORE: No, Your Honor.
THE COURT: You can come down. Call your next witness, please.
[The witness stepped
down from the stand.]
MR. PORTER: We call Brian Reddy to the stand. We call -- I called a witness out of
order. We call Sergeant Bob Lee to the
stand.
THE COURT: All right.
[The witness was called to
the courtroom.]
THE COURT: Officer Lee, if you'll take the stand up
here, Mr. Porter will administer the oath.
[The witness stepped to the
stand.]
MR. PORTER: Would you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Robert Lee.
Q. And how are you employed?
A. I'm with the Gwinnett County police department.
Q. All right. And what are
your duties at the Gwinnett County police department?
A. I'm in charge of the crime scene unit.
Q. Now, Sergeant -- you are Sergeant?
A. Yes, sir.
Q. Sergeant Lee, I'd like to call your attention to July 28 of
1995. Were you called in to assist in
the recovery of some evidence by Investigator Jack Burnette?
A. Yes, sir.
Q. I'd like to show you what we have had previously marked as
State's Exhibit Number 135. Can you
look at that and identify it, please?
A. Yes, sir.
Q. And can you tell us what that it is?
A. It's a note -- a yellow -- small yellow legal notebook type
cover. I don't know the official name,
but that's what I call it.
Q. All right. And have you
ever seen that piece of evidence before?
A. Yes, sir, on that date, July 28.
Q. And where did you see it?
A. In the training classroom at the Gwinnett County police
department.
Q. All right. Did you take
possession of that item on that day?
A. Yes, sir.
Q. And what was the purpose of taking possession of it?
A. To take photographs of some contents behind the flap and behind
the notebook inside here.
Q. Now, let me show you what we have had previously marked as
State's Exhibit Number 122 -- excuse me, 121A, B, C, and D. Can you look at those, please, and identify
them?
A. Yes, sir.
Q. And what are they?
A. Those are four one hundred dollar bills that I observed behind
the flap inside this notebook.
Q. All right. Did you remove
those hundred dollar bills from behind the flap?
A. Twice, I did. The first
time was just partially removed them with some tweezers. I pulled out three of the bills just
partially out about two or three inches outside the flap so I could take
photographs of them. I didn't remove
them completely.
Q. All right. And then did
you subsequently remove them completely?
A. Yes, sir, I did.
Q. How did you handle the bills when you removed them from behind
the legal pad the second time?
A. Both times I removed them with some big metal tweezers that we
have in our lab.
Q. All right. And what did
you do with them once you removed them from behind the bills or the pad?
A. I xeroxed them and then photographed them.
Q. And who did you turn those over to?
A. Mary Ann White, a supervisor in my unit.
Q. All right. For what
purpose?
A. For her to process for latent prints.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Lee, my name is Johnny Moore. I believe you know me.
A. Yes, sir.
Q. Were you present when there were any discussions about whether or
not to tell us about finding those bills?
A. No, sir.
Q. Okay. Now, State's
Exhibit Number 135, is that the pad that you removed those bills from?
A. The best I can remember, yes, sir. I didn't initial it like I normally do evidence because this
wasn't my evidence, but normally I would have my name and that on it, but the
best I can remember, it is.
Q. Okay. Did you take
possession of that pad and that folder to see if they could be fingerprinted?
A. No, sir.
MR. MOORE: Nothing further.
THE COURT: Redirect?
MR. PORTER: We have no redirect for Sergeant Lee, Your
Honor. He's working on another matter,
and we'd ask that he be allowed to return to that.
THE COURT: All right.
You can come down.
THE WITNESS: Thank you.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: Your Honor, at this time the state would
call Brian Reddy to the stand.
[The witness was called to
the courtroom.]
MR. PORTER: Could you take the stand right there,
please.
THE WITNESS:
MR. PORTER: Could you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Brian Reddy.
Q. And how are you employed, Mr. Reddy?
A. I'm a Gwinnett County police officer in Gwinnett County.
Q. And what zone do you -- or not zone, but what division do you
work now?
A. I'm uniform patrol.
Q. And what area of the county do you patrol?
A. The Snellville area.
Q. How long have you been a Gwinnett County police officer?
A. Ten years this past July.
Q. And what did you do prior to being a police officer?
A. I was a firefighter in New Jersey.
Q. And is that where you're from?
A. Yes.
Q. How long have you been in Georgia?
A. Ten years.
Q. When you first came to Georgia, what type of work did you do?
A. I came -- I left the fire department and went right to the police
academy.
Q. Now, let me ask you, in April of 1993, were you assigned to the
northside precinct?
A. Yes, I was.
Q. And were you working on April 15 of 1993?
A. Yes, I was.
Q. Can you tell us what you recall about that night?
A. It was a heavy storm that night.
Q. Are you afraid of storms?
A. Yes.
Q. Why?
A. I was struck by lightning in '81.
Q. And what did you do as a result of these storms?
A. I always found a place to go.
Q. And what did you do on April 15?
A. I went to the fire station.
Q. About what time did you go to
the fire station?
A. It was about 8:30.
Q. Prior to that, had you seen Officer Chapel --
A. Yes.
Q. -- on that day?
A. I was with him at the parking lot of the church on Main Street.
Q. And do you recall seeing Officer Chapel again that night?
A. Not after I left the parking lot, no.
Q. Now, let me show you -- let me show you what I've had marked as
State's Exhibit Number 137. Can you
take a look at that, please.
A. Yes.
Q. And can you tell us what it is?
A. It's my daily log sheet for that day.
Q. Is that a copy of it?
A. Yes, it is.
Q. Is that a true and correct copy of it?
A. It looks like one, yes.
Q. All right. Officer Reddy, I'd like you to look
particularly between the hours of 8:30 and approximately ten o'clock, and can
you tell the jury where that log sheet says you were?
A. Well, at 9:45 to 9:50, there was an area check of Shadburn
Ferry. From 20:30 to 20:50, I was at
fire 14. From 21:30 to 21:32, the
Circle K on North Avenue, which is the -- on Highway 20 in Sugar Hill. And 22:00 to -- 22:00 to 22:20, the fire
station.
Q. Where were you really --
A. I was at the fire --
Q. -- from 8:30 on?
A. I was at the fire station.
Q. Why did you put it on the log sheet that you were somewhere else?
A. Well, it was a two-hour time period that I was sitting in the
station during the storm, and an error in judgment, I went ahead and filled in
some area checks to show activity on the sheet instead of not having anything
at all.
Q. What would have happened to you if you had filled in that you'd
sat in the fire station for two hours?
A. I probably would have been written up.
Q. Is that a disciplinary procedure?
A. Yes.
Q. Were you at the Circle K at 9:30?
A. No. No, I never left the
station.
Q. Now, Officer Reddy, on April 15 and the time prior, what was your
relationship with Mike Chapel?
A. We worked together. We
worked out together. We were on the
SWAT team together.
Q. Would you consider yourself friends?
A. Yes.
Q. Would you consider yourself friends today?
A. No.
Q. On April 15, did you have any reason other than the reason that
you've described to falsify the document that you've been talking about? Any reason other than what you've told the
jury?
A. No.
Q. On April 15, did you know that Emogene Thompson was dead?
A. No, I did not.
Q. When did you learn of that?
A. The following day.
Q. And how did you learn about it?
A. At the gym from Mike and Sergeant Stone.
Q. Now, let me ask you, on April 23, 1993, detectives came to your
house --
A. Right.
Q. -- and took a statement from you; is that correct?
A. Yes.
Q. Would you describe your
physical condition, particularly your level of sobriety, when that statement
was given?
A. I wasn't sober when it was given. It was on my off day. I
was with my parents. They'd been down
from Jersey.
Q. And what were y'all doing that day?
A. Well, we went to dinner, and I'd been drinking beer most of the
afternoon and through the evening.
Q. All right. When the
detectives came for the statement, did you see any significance of the
questions that they were asking? Did
you see that they were important in any way?
A. Yeah, they were important.
I guess, yeah.
Q. Did you tell the truth that day, the best you recalled it?
A. Yes.
Q. Do you have any different recollection of the night of the 15th
--
A. No.
Q. -- today?
A. No.
Q. Do you acknowledge that it came to your attention that later in
the investigation information was developed that you were wrong?
A. I was told I was, yes.
Q. And do you have any other -- do you have any other memory of the
night of the 15th?
A. No, only what I told -- I've told everybody what I know.
Q. Now, let me show you what's been marked as
State's Exhibit Number 131. Can you
identify that, please?
A. It's a .38 caliber RG handgun.
Q. How do you recognize that?
A. It looks like the one I gave to the prosecution last week.
Q. Is it the one you gave?
A. If I had a copy of the serial numbers, I'd be able to tell you. It just looks like another gun to me, but
I'm sure it's mine.
Q. All right. Did you in
fact turn over a gun to Investigator Hinson from my office?
A. Yes, I did.
Q. When did you tell my office about the existence of that gun?
A. It was either a Friday or a Monday at an interview with you.
Q. Did you -- had you been
previously asked about your ownership of guns?
A. Yes.
Q. Tell us how -- how did you come into possession of that gun?
A. This gun was given to me about seven or eight years ago by my
wife's uncle as a -- just as a gift. I
didn't purchase it. It was given to me.
Q. And what have you done with it in the intervening time?
A. I took it and put it up in a -- I have a little gun box that I
keep locked and that's where it stayed.
Q. How many times would you say that you've fired it in the seven
years you've owned it?
A. I don't know that I have.
Q. And at the time that you were interviewed by the Gwinnett County
police about your gun ownership, what type of gun did you believe that was?
A. I thought it was a Smith & Wesson.
Q. And did you tell the investigators that you owned a Smith &
Wesson .38?
A. No. They asked me if I
had a Charter Arms and I said, no, I didn't, that I had a Taurus.
Q. And do you in fact have a Taurus?
A. Yes, I do.
Q. And do you have any other firearms?
A. I have a 9 millimeter Beretta and a shotgun. I think it's a Smith & Wesson 3000.
Q. When did you realize or
when did you look to see the make of that weapon?
A. I was called by the prosecution, and they advised me that a
subpoena had been issued to area gun stores to see if I'd purchased any
weapons, so I went upstairs to check on my guns to make sure that it was a
Smith & Wesson and the other one was a Taurus, and I saw that it was an RG. I notified the prosecution that I had a RG
the following day.
Q. Did you turn the weapon over that day?
A. Yes.
Q. During the time that you owned it, has that gun ever been
altered?
A. No.
Q. Has any part been removed from it?
A. No. It's been in the --
I've never touched it. I mean, I've --
I haven't given it to anybody or taken it down out of the locker since I got
it.
Q. Has there been any repair done to it?
A. Not while I've had it.
Q. Has, for instance, the barrel been removed?
A. No.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Reddy, when Officer Cline came out to talk to you that
night, didn't he talk to you and determine that you understood what you were
doing?
A. Excuse me?
Q. When Officer Cline came to your house on the night of the 23rd of
1993 --
A. Uh-huh [affirmative].
Q. -- do you remember that?
A. Yes, sir.
Q. Didn't he talk to you to determine whether or not you knew what
you were doing?
A. Yes, sir.
Q. Are you trying to tell this jury you were so drunk you didn't
know what you were doing?
A. No, sir.
Q. You understood the questions he was asking you, didn't you?
A. Yes, sir.
Q. Okay. And you knew a
couple of days after Emogene Thompson's death that a police officer may have
been involved, didn't you?
A. No, sir. Not until
Sergeant Cline and Investigator Tkacik brought it to my attention.
Q. Okay. You weren't aware
from the road checks that witnesses were saying they saw a police car out
there?
A. No, sir.
Q. You didn't participate in those
road checks?
A. No, sir, I did not.
Q. And nobody told you about them?
A. No, sir.
Q. When did Officer Tkacik and Cline tell you that a police officer
may have been involved?
A. During the interview.
Q. That was on the 23rd; right?
A. Yes, sir.
Q. So you knew at that point they wanted to know where you were on
the 15th?
A. Yes.
Q. And it was important to you to know where you were on the 15th?
A. Yes.
Q. Okay. And you didn't remember on the -- at
that time that Mike Chapel was at the fire station; is that what you're telling
us?
A. Yes, sir.
Q. You don't remember Mike Chapel making fun of you because you
couldn't find Gwinnett County on the map, on the weather map?
A. No, sir.
Q. Now, you mentioned that on your log sheet, you were afraid that
you'd get written up?
A. That's correct.
Q. Who would have written you up?
A. A supervisor, a sergeant or a lieutenant.
Q. Sergeant Stone?
A. Possibly. Maybe
Lieutenant Knight.
Q. Sergeant Stone was present there at the fire station with you,
wasn't he?
A. Yes, he was.
Q. And you don't know exactly what time you left the fire station,
do you?
A. About 10:15, 10:20.
Q. Okay. That makes it
neatly after the crime, doesn't it?
A. It was about 10:15, 10:20.
Q. Okay. Was anybody else
that says you were there that late?
A. There were firemen in there.
Q. Now, in your statements you say that Mike was astonished when he
learned about the news of Emogene Thompson's death?
A. Right.
Q. Is that true?
A. Pretty much surprised, yes.
Q. So did you stay at
the fire station after everybody else left?
Is that your testimony?
A. After Sergeant Stone left, yes.
Q. All right. Would you come
down off the stand, please, and let me show you a map here.
A. [The witness stepped down from the stand.]
Q. Here's Peachtree Industrial Boulevard.
A. Okay.
Q. Are you oriented to that?
A. Yes.
Q. Okay. Is that in your
zone?
A. Yes, it is.
Q. Okay. And in 1993, I
mean, not now, but in 1993, was that --
A. Yeah, 93, 321, yes.
Q. Okay. And show the jury where the Circle K is that you're referring
to.
A. It would be about there.
Q. And where's the Gwinnco Muffler Shop?
A. About right there.
Q. And how far apart is that?
A. A mile and a half, two miles.
Q. You can go back up.
A. [The witness returned to the stand.]
Q. Do you remember your statement telling the -- Officer Cline and
Sergeant -- I mean, Officer Cline and Lieutenant Tkacik that you didn't go into
Sugar Hill that night?
A. Yes, sir.
Q. And that wasn't true, was it?
A. Yes, it was.
Q. Did you tell them that my log sheet's going to show I did, but I
really didn't?
A. Yes, I did.
Q. You told Sergeant Cline and Officer Tkacik that?
A. Yes, I did.
Q. On the 23rd?
A. Yes, sir.
Q. I'll let you look at your statement, if you would, Defendant's
Exhibit Number 70. Do you want to read
it?
A. Sure.
Q. Okay.
A. [Reads document]
Q. Have you had time to read your statement now?
A. Yes, sir.
Q. Okay. Now, nowhere in
that statement did you tell Officer Tkacik or Lieutenant Cline that your log
sheet was going to show you were down there that night but you were not there?
A. They didn't put it in there.
Q. They didn't put it in there?
A. That's correct.
Q. But you told them that?
A. Yes, I did.
Q. You told them that the night of the 23rd that your log sheet was
going to show you were in Sugar Hill?
A. That was the first thing they brought to my attention was my log
sheet.
Q. But they didn't put any of that in your statement?
A. Apparently not, sir, no.
Q. Now, you were prepared to
lie on an official police document on your log sheet back in April 15, 1993,
weren't you?
A. I just -- I didn't look at it as a lie at that time, sir, no.
Q. You don't think it's a lie if you're out here taking the
taxpayers' money and falsifying records?
A. No, sir. I just filled in
some blanks. That's all.
Q. You just filled in some blanks?
You think they pay you just to fill in blanks and falsify records?
A. No, sir.
Q. When the police asked you about the weapon back in 1993, who
asked you about that?
A. I believe it was Investigator Burnette.
Q. And didn't he ask you if you owned an RG or a Charter?
A. I believe it was just Charter that he asked me. I don't know anything about an RG.
Q. Being a police officer, you know a good bit about guns, too,
don't you?
A. No, sir.
Q. You don't receive training with them?
A. Just the ones that I'm issued.
Q. Okay. Were you ever
issued a Smith & Wesson revolver?
A. Yes, sir, a .357.
Q. Back before they had the automatic weapons?
A. Yes, sir.
Q. Smith & Wessons are a much better quality gun than that gun
there in front of you, isn't it?
A. I wouldn't know.
Q. Did you ever drive the spare unit that was up at the precinct?
A. Not that I recall, no.
Q. Did you drive it at any time in 1993?
A. I may have.
Q. Did you drive it around the time of the crime in 1993?
A. No. I was in my car.
Q. Okay. I'm going to show
you what's been marked as Defendant's Exhibit Number 82 and ask you if you
could examine that.
A. Okay.
Q. Is that one of your log sheets?
A. Yes, sir.
Q. And what date is that?
A. That's the 3rd of April.
Q. Okay. Can you tell from
that what vehicle you were driving?
A. 88. That's a spare unit.
Q. That's a spare unit?
A. Yes, sir.
Q. Okay. Was that a yellow
and white car?
A. I don't remember.
Probably.
Q. The old style yellow and white?
A. The old -- yes. Yes.
Q. Are you still at the northside precinct?
A. No, sir.
Q. Now, on the log sheet you've got there in front of you, did you
respond to a call that Officer Chapel did?
A. The one that's marked in yellow?
Q. Did you respond to a call on Powers Road?
A. Yes.
Q. Were you and Officer Chapel backup for one another at that?
A. You'll have to refresh my memory about the type call. It's a -- I'm a backup on a domestic
dispute, and that's in areas that would have been Mike's -- Mike's zone, so,
yeah, I would have been a backup if --
Q. I'm going to show you what's been marked as Defendant's Exhibit
Number 73.
A. Okay.
Q. Can you determine from that Defendant's Exhibit Number 73 whether
that's the same call you responded to on your log sheet?
A. The address on this says Level Creek. This one's Power Avenue. I don't -- oh, okay.
Q. Can you determine from that?
A. I remember the names and Power Avenue. I think so.
Q. It's the same address, isn't it?
A. I think so, yeah.
Q. It's the same address?
A. As the witness, yes.
Q. Okay. I'm going to ask
you to step down again, if you would, Officer Reddy.
A. [The witness stepped down from the stand.]
Q. This is a map of the Gwinnett County police precincts. If you would, just stand a little bit to the
side where the jury can see.
A. Okay.
Q. And if you could, point out to
the jury where your zone was at that time in 1993.
A. Okay. It would be here.
Q. Up here?
A. Yes, sir.
Q. And does that include the Gwinnco Muffler Shop?
A. No.
Q. Your zone did not include that in 1993?
A. Which log sheet are we talking about here? The one that has 321 or 341?
Q. I'm talking about on the 15th, April 15.
A. Oh, okay. That would be
this zone here.
Q. At the time of the murder?
A. Right.
Q. And that includes the Gwinnco Muffler Shop --
A. Yes, it does.
Q. -- is that correct?
A. Yes.
Q. That was in your zone?
A. Yes. [The witness
returned to the stand.]
Q. You and Mike Chapel are
about the same size, aren't you?
A. About, yes.
Q. How tall are you?
A. 6 foot 4.
Q. How much do you weigh?
A. 285.
Q. Did you ever have any contact with Michael Thompson, Ms.
Thompson's son?
A. No.
Q. Do you know where he worked at?
A. No, sir.
Q. Did you know him when you saw him?
A. No. I don't know what he
looks like, no. I've never met him.
Q. I'm going to show you what's been marked as Defendant's Exhibit
Number 83 and ask you if you can identify that.
A. Okay. This would be my
log sheet for April 12.
THE COURT: What year is that?
THE WITNESS: '93, Your Honor.
THE COURT: All right.
Go ahead, please.
BY MR. MOORE:
Q. Okay. On April 12, 1993,
did you have occasion to go to the Subway shop there in Buford?
A. Yes, sir.
Q. Do you recall who was working?
A. No, sir.
MR. MOORE: That's all I have, Your Honor.
THE COURT: Redirect?
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Officer Reddy, had you ever met Emogene Thompson?
A. No, sir.
Q. Have you ever seen Emogene Thompson?
A. No, sir, not before the incident, and only a picture afterwards.
Q. Did you kill Emogene Thompson?
A. No, sir.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Recross?
RECROSS EXAMINATION
BY MR. MOORE:
Q. Officer Reddy, did anyone ever Luminol your car?
A. Excuse me?
Q. Did anybody ever Luminol your car?
A. What is that?
Q. That's a substance used to detect blood in a vehicle?
A. No, sir.
Q. Did anybody ever check your rain gear?