IN
THE SUPERIOR COURT OF TATTNAL COUNTY
STATE OF GEORGIA
|
Petitioner, Vs. Hilton
Hall, Warden, Georgia
State Prison, Respondent |
Case No: 2000-HC-45 HABEAS CORPUS |
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|
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NOTICE OF APPEAL
Comes
now Michael H Chapel and hereby gives notice of his appeal to the Supreme Court
of Georgia of the decision in the instant case which decision was filed on 20
August 2001.
The
Clerk will please include the entire record on appeal, including Habeas Corpus
Evidentiary hearing Transcript; all documentary evidence admitted and all
pleadings submitted to the court. Nothing should be omitted from the record on
appeal.
MICHAEL H. CHAPEL
EF - 349322
Applicant – Pro se
Georgia State Prison
Reidsville, GA 30499
IN
THE SUPREME COURT OF THE
STATE
OF GEORGIA
|
Michael
Harold Chapel, Applicant, Vs. Hilton
Hall, Warden, Georgia
State Prison, Respondent |
Case No: 2000-HC-45 HABEAS CORPUS |
|
|
|
APPLICATION FOR CERTIFICATE OF PROBABLE
CAUSE
MICHAEL H. CHAPEL
EF - 349322
Applicant – Pro se
Georgia State Prison
Reidsville, GA 30499
The
Habeas Court erred in its identification of Paul Omodt as having identified
Chapel in the driveway of Gwinnco Muffler.
On
April 15th, several witnesses saw the victim’s car parked in the
driveway of a local muffler shop. Some of the witnesses saw a marked patrol
car, variously described, parked beside or behind the victim’s car. Although it
was raining, Paul Omodt, a passenger in a car driving by the muffler shop, was
able to identify the officer in the patrol car as Petitioner, and also
testified that he saw Petitioner drive past him a few minutes later[1].
Witness
Paul Omodt did not testify as described by the Habeas Court. Omodt was the
driver of a vehicle in which another witness, Karl Kautter, was a passenger.
Omodt and Kautter were the only witnesses to see the officer outside of his
patrol car in the driveway[2].
Neither of these witnesses could identify the officer in the driveway, and both
described a much smaller man than Chapel[3].
As a patrol car passed the Omodt/Kautter vehicle, it was Karl Kautter who
identified Chapel, but that identification was never more then tenuous. When
shown the photo lineup although his identification was tentative[4].
Kautter first pointed to another officer then stating that if he had to choose,
Chapel would be his choice. At the preliminary hearing, Kautter was shown
photographs of all 31 officers at the Northside Precinct, and his first
selection was Officer J. P. Morgan[5],
an officer that killed himself a few weeks after Chapel’s arrest. At trial, it
was not clear whom Kautter was identifying[6],
intimating again that the officer in the patrol car that passed them was J. P.
Morgan.
Kautter
and Omodt described the officer in the driveway as either walking toward or
standing next to the victim’s car in the driveway. The Habeas Court describes a
patrol car passing the pair “a few minutes later”. At trial, Witness Kautter
described the point where the patrol car came up behind their vehicle as the
point where Peachtree Industrial Boulevard transitioned from two to four lanes[7],
a point approximately 500 feet north of the Gwinnco Muffler driveway[8].
At the testified-to forty-five (45) miles per hour the witness car was
traveling, the Omodt/Kautter car would have traveled that distance in six (6)
seconds. It would clearly have been impossible for the officer in the driveway
to return to his patrol car, back out onto Peachtree Industrial Boulevard and
catch up with the witness car as they reached the two to four-land transition[9].
The
Habeas Court erred in not noting an analysis that showed that it would have
been physically impossible for Chapel to physically have been present in the
muffler shop driveway at the time the patrol car was seen behind the victim’s
car.
At
trial conflicting evidence was presented regarding Petitioner’s whereabouts
during the time the patrol car was observed beside the victim’s car. There was
also evidence that Petitioner responded to a call at 10:07 P.M…[10]
The
Habeas Court erred in its description of “several drops of blood” found in
Chapel’s patrol car.
DNA
tests of several drops of blood recovered from Petitioner’s patrol car revealed
that the blood came from the victim, although the test’s accuracy and probative
value was hotly disputed. It was also noted that Petitioner’s patrol car was
left unsecured in a police parking lot for a week before being tested for the
presence of blood[11].
The amount of DNA extracted from the stain on
the upper part of the patrol car’s armrest was described as from 50 to no more
than 100 nanograms[12].
Extrapolating the size of the stain from the amount of DNA retrieved, the stain
had to have been less than 0.5 cm[13],
hardly the size of a stain that would have been left by several drops of blood.
The Habeas Court neglects to mention that the blood stain in Chapel’s vehicle
was on the top of the patrol car’s passenger armrest, a place where the blood
could not have been accidentally located because the armrests were always kept
in the “up” position[14].
The reason that the armrests were kept in the “up” position was that they
interfered with access to the pursuit pack on the passenger seat, the vehicle’s
CB Radio, the mobile display terminal (MDT – the patrol car’s computer), and,
as Chapel is right-handed, access to his weapon[15].
Additionally and suspiciously, since the crime scene technicians had searched
Chapel’s patrol car several time previously, the upper part of the armrests was
the only area they had not yet examined.
The
Habeas Court erred its evaluation of the Petitioner’s financial problems and
transactions at or near the time for the murder.
Evidence
was presented that the Petitioner was facing possible financial problems due to
a pending IRS audit, that Petitioner made two purchases with hundred-dollar
bills the next day, and that Petitioner’s wife was seen soon after with an
envelope containing a large number of one-hundred dollar bills[16].
There
was real evidence presented at trial as to the source of the six one
hundred-dollar bills that Chapel used to make a purchase of previously ordered
advertising T-shirts for his gym[17].
Jack Dudley, a Chapel friend and sometime employer had given Chapel $1,400.00
in one hundred-dollar bills weeks before the murder as an investment in
Chapel’s gym[18]. The
testimony of Valerie Heath, who testified at trial that Chapel had used a one
hundred-dollar bill to pay for a car wash, was impeached by a statement she
made at her first police interview that Chapel had paid for the car wash with a
twenty-dollar bill[19].
The testimony of Kendon Curtis should have been countered by Eren Chapel, wife
of the Petitioner, but she was inexplicitly persuaded not to testify by defense
counsel. The monies that Curtis saw while rifling Mrs. Chapel’s purse were her
tips as a waitress and contained no hundred-dollar bills[20].
The
Habeas Court is in error regarding the
possibility for DNA testing of blood on Chapel’s raincoat.
Evidence
was presented that blood, apparently human, was found on the Petitioner’s
raincoat, but that the blood could not be tested for DNA because it had been
contaminated with the victim’s blood while in police custody. A state expert
testified that the blood showed a pattern of “high velocity splatter,”
consistent with having shot someone at close range[21].
There were several small stains on
Chapel’s raincoat discovered and identified by Jennifer Wilson, a GBI
serologist on July 7, 1993[22].
Attempts to retrieve DNA could have been made. After the raincoat’s
contamination with the victim’s blood in the GBI Crime Lab, Kelly Fite, a GBI
tool mark and bullet marking technician, but not a serologist, made his blood
splatter [sic] analysis[23].
It must be noted that Fite made his blood spatter analysis after the raincoat
had been contaminated, reducing if not destroying any probative value of that
analysis because his analysis included stains that resulted from the GBI Crime
Lab contamination.
The
Habeas Court has seen fit to renumber and re-label the grounds and issues as
presented in Petitioner’s amended petition of December 20, 2000; the effect of
this dichotomy is purely technical. For example, the Court’s Ground 4, the
“Brady” gunpowder residue issue is excluded as an attempt to relitigate[24]
and the Ground 4 “Brady” withheld
witness testimony issue is excluded as having been waived[25].
The “Brady” issue of the victim’s purse found months after the trial being
withheld for 8 months could not fall under either of these exclusion issues and
is simply ignored.
Citing
Gunter v. Hickman, the Habeas Court includes as those issues already
litigated, i.e., raised and decided, in the Petitioner’s direct appeal:
Ground 1: Sufficiency
of the evidence. Chapel at 152-53 [Petition Ground 5];
Ground 3: Newly
discovered evidence. Chapel at 153, 154, 159 [Petition Ground 7];
Ground 4: Brady
violation (gunpowder residue, Chapel at 156 [Petition Ground 8];
Ground 5: Improperly
admitted evidence (hearsay and raincoat). Chapel at 154-55 [Petition
Ground 9];
Ground 12: Ineffective
Assistance of Trial Counsel (trial only), Chapel at 158-160 [Petition
Ground 15].
In Gunter v. Hickman,
only the general issue of sufficiency of evidence and the specific issue of
“insufficiency of corroboration of accomplice testimony” was being offered, and
that issue had been raised and decided in direct appeal. In Chapel, there is a
multiplicity of issues most of which were not raised and decided in direct
appeal. Can then Gunter v. Hickman be used to summarily dismiss the
voluminous, wide-ranging and never litigated issues brought by Chapel?
Citing Turpin v.
Lipham[26]
and Black v. Hardin[27],
the habeas Court dismisses the following grounds as having failed to be raised
at trial or on direct appeal:
Ground 2: Conspiracy
by the State [Petition Ground 6];
Ground 4: Brady
violation (allegedly withheld alibi witness testimony [Petition Ground 9);
Ground 5: Admission
of videotape of Petitioner’s interview with police [Petition Ground 9];
Ground 6: Suppressed
telephone and computer records [Petition Ground 8];
Ground 7: Illegal
photo lineup [Petition Ground 10];
Ground 8: Prosecutorial
Misconduct Petition Ground 12];
Ground 9: Judicial
and Jury Misconduct [Petition Grounds 13 and 14];
Ground 10: Speedy
Trial Claim [Petition Ground 3];
Ground 11: Excessive
Bail Claim Petition Ground 4].
Not Listed: Police
Misconduct [Petition Ground 11]
Not Listed: Collusion
[Petition Ground 16].
Turpin
v. Lipham presupposes that a habeas petitioner has an option, i.e., chooses to
not raise an issue at trial or on direct appeal and therefore defaults the
issue on habeas corpus. With the majority of these issues, and for good reason,
Petitioner Chapel was unaware of the existence of these issues, and to waive an
issue, even implicitly, the Petitioner must be aware of the issue and make a
conscious choice not to raise it. It was only after months of analysis during
the period July, 2000 through December, 2000, years after the direct appeal had
been decided and confirmed, that an analyst doing a line by line study of the
transcripts of the hearings and the actual trial came across the information
that led to the raising of these issues, and it was only weeks before the
hearing began that the synthesis of prosecutorial misconduct and ineffective assistance
of counsel issues inevitably led the analyst to the bizarre conclusion that in
fact the District Attorney and the lead defense counsel colluded in bringing
about a guilty verdict in this case. The importance of these issues well meet
the prejudice criteria defined in Turpin v. Todd[28]
of demonstrating actual prejudice that “worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional
dimensions.”
EF – 349322
MICHAEL H. CHAPEL
Petitioner – Pro se
Georgia State Prison
Reidsville, Georgia, 30499
[1] See Habeas Decision, August 20, 2001, p. 4
[2] See Habeas Petition as amended (12/20/00), Ground 5,A,8, “Witness Descriptions Of The Officer In The Gwinnco Driveway”, p. 5-19
[3] Ibid, p. 5-19-20
[4] See Habeas Petition as amended (12/20/00), Ground 5,D,1, “The Original 8-Photo Lineup”, p. 5-41
[5] See Habeas Petition as amended (12/20/00), Ground 5,D,2, “The Preliminary Hearing”, p. 5-41
[6] See Habeas Petition as amended (12/20/00), Ground 5,D,3, “Kautter’s Trial Testimony”, p. 5-41
[7] See Habeas Petition as amended (12/20/00), Ground 16,A,3, “Kautter’s Trial Testimony”, p. 16-4
[8] See Habeas Petition as amended (12/20/00), Photo Exhibit P-06 also Back Cover Photograph
[9] See Habeas Petition as amended (12/20/00), Ground 5,A,9, “A Second Police Car And Officer”, p. 5-20
[10] See Habeas Decision, August 20, 2001, p.4
[11] See Habeas Decision, August 20, 2001, p.4
[12] See Trial, Examination of Dr. Choi, p. 6056 (Approximate)
[13] See DNA Technology in Forensic Science, National Academy Press, Washington, D.C. , 1992, Defense Exhibit D-96, p. 28
[14] See Habeas Petition as amended (12/20/00), Ground 6,I, “Blood Evidence Planted In Chapel’s Patrol Car”, p. 6-27
[15] See Habeas Petition as amended (12/20/00), Photo Exhibit 6-04, “Chapel’s patrol car with the armrests in the ‘down’ position, and a recently discovered photograph showing the area with the armrests in the “up” position with the equipment in their normal positions. Included as Attachment __ of this document.
[16] See habeas Decision, August 20, 2001, p. 4
[17] See Habeas Petition as amended (12/20/00), Ground5,E,2, “Defendant’s Possession Of Money At or Near The Time Of The Murder”, Laurie Pace, p. 6-46
[18] See Habeas Petition as amended (12/20/00), Ground5,E,1, “Defendant’s Possession Of Money At or Near The Time Of The Murder”, Jack Dudley, p. 6-42
[19] See Habeas Petition as amended (12/20/00), Ground5,E,2, “Defendant’s Possession Of Money At or Near The Time Of The Murder”, Valerie Heath, p. 6-45
[20] See Habeas Petition as amended (12/20/00), Document Exhibit 5-08, “Declaration of Eren Chapel”
[21] See Habeas Decision, p. 5
[22] See Habeas Petition as amended (12/20/00), Ground 6,j,1, “Testimony About The Blood Spatter On The Raincoat Was Perjured”, Jennifer Wilson, p. 6-31; see also See Habeas Petition as amended (12/20/00), Photo Exhibit 6-05, “Chapel’s raincoat after testing on July 7, 1993”
[23] See Habeas Petition as amended (12/20/00), Ground 6,j,7, “Testimony About The Blood Spatter On The Raincoat Was Perjured”, Kelly Fite, p. 6-39; see also Habeas Petition as amended (12/20/00), Photo Exhibit 6-08, “Detail of Chapel’s raincoat with markings by Kelly Fite”
[24] Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986).
[25] Turpin v. Lipham, 270 Ga. 208, 209, 510 S.E.2d 32 (1988).
[26] Turpin v. Lipham, 270 Ga. 208, 209, 510 S.E.2d 32 (1988)
[27] Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985)
[28] Turpin v. Todd, 268 Ga. 820, 825, 493 S.E.2d 900 (1997).