A jury convicted Michael Chapel of malice murder, armed
robbery, and possession of a firearm in the commission of a felony
in the shooting death of Emogene Thompson.[fn1] The state sought
the death penalty, but the jury returned a verdict of life
imprisonment. Chapel appeals, and raises several enumerations of
error, including that newly discovered evidence warrants a new
trial. Because the new evidence is not so material to have
resulted in a different verdict and there is no reversible error
in the remaining enumerations, we affirm.
The evidence viewed in the light most favorable to the
prosecution shows that on April 3, 1993, Ms. Thompson reported a burglary
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to the Gwinnett County police and Chapel was the officer
who responded to the call. Ms. Thompson told Chapel that she had
$14,000 cash hidden in her trailer home and that someone had
stolen $7,000 of it and returned the remainder to its hiding
place. She also told him that she and her son Michael Thompson
lived alone in the trailer. Chapel told Ms. Thompson he suspected
that her son had stolen the money. Ms. Thompson agreed but did
not want to press charges. Chapel told her that he would try to
retrieve the money. Ms. Thompson told several friends that she
was planning to meet Chapel because he wanted to compare serial
numbers on bills in his possession with serial numbers on her
remaining money. On the evening of April 15, 1993 Ms. Thompson
was shot in the head while she was seated in her parked car at a
muffler shop on Peachtree Industrial Boulevard. Her remaining
money was never recovered.
The state presented (1) DNA evidence showing that a spot of
blood in Chapel's police car matched the blood of the victim, (2)
witnesses who saw two cars, one of which was a Gwinnett County
police car, at the muffler shop between 9:30 and 10:00, (3)
testimony from Officer Stone that Chapel was at the fire station
that evening and that he left between 9:20 and 9:30, (4) a witness
who saw Chapel driving on Peachtree Industrial Boulevard near the
muffler shop around 9:30 or 10:00; (5) evidence that Chapel was
facing an IRS verification audit with the potential of $4000 in
additional tax liability and that he owed a friend $1400, (6)
witnesses who saw Chapel spending $100 bills, (7) a witness who
saw a large sum of money in the purse of Chapel's wife, and (8) a
witness who said that Chapel responded to a call a little after
10:00 the night of the murder, refused to assist the complaining
witness, and left, saying he had problems of his own.
Chapel testified that he was at a fire station with other
officers and fire personnel until around 10:00, when he left to
check on a gym that he owned, and then he responded to a call
around 10:10. Chapel elicited testimony that shortly after the
murder, Officer Stone told his superior officer that Chapel left
the fire station between 10:00 and 10:15 and three fire personnel
testified that he left around 10:00. Additionally, Chapel
contended that the police failed to adequately investigate the
case and tried to suggest that another officer, J.P. Morgan, who
committed suicide shortly after the murder, and Michael Thompson
were involved in illegal drug activities and that the murder and
robbery were related to those activities.[fn2]
1. After reviewing the evidence in the light most favorable
to the
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jury's determination of guilt, we conclude that a rational
trier of fact could have found Chapel guilty of the crime
charged.[fn3]
2. Chapel contends that newly discovered evidence warrants a
new trial. Since the trial a new witness has come forward and the
victim's purse has been recovered. To obtain a new trial on the
basis of newly discovered evidence, Chapel must show among other
factors that the new evidence is so material that it would
probably produce a different result.[fn4]
At the motion for new trial hearing, Chapel called Quint
Rutland who testified that he smuggled cocaine into Gwinnett
County in 1991, paid off Officer Morgan for protection, the
victim's son Michael Thompson worked with Morgan in the drug ring,
and that Rutland's boss mentioned to him that the victim knew of
her son's drug involvement with Morgan. Rutland testified that he
had kept this knowledge to himself because he was in jail and
feared reprisals, but was no longer incarcerated. The testimony
connecting Thompson and Morgan was hearsay and therefore would be
inadmissible. Rutland's testimony that drug dealers were bribing
Morgan does not go to the heart of the state's case and we cannot
conclude that it meets the high materiality requirement to warrant
a new trial.
The victim's purse was found in 1996 near where the victim
and her son lived and in an area that had been searched by police
in 1994 after Chapel's incarceration. The police were unable to
lift any fingerprints from the purse or its contents. This
evidence provides some support for the defense argument that
Michael Thompson was involved in the murder, but it is not so
compelling that one must conclude that a different verdict would
probably have resulted had it been introduced. Therefore, the
trial court did not err in denying the motion for new trial on
this ground.
3. (A) The state contended that Chapel's raincoat showed a
"high velocity blood spatter" pattern. A state's expert marked
spots constituting this pattern. The expert testified that
although the spots had not been tested to determine if they were
human blood, the spots were consistent with human blood and the
pattern of spots was consistent with Chapel shooting Thompson. He
also testified that he did not mark the spatter pattern until May
1995, and that he reported his findings in a crime lab report
dated June 22, 1995. Chapel contends that the trial court erred in
admitting the raincoat because the marks on the coat used and
referred to by the state's expert were not on the coat when
defense counsel viewed it in March 1995. Chapel, however, has not
established that the disclosure to defense counsel
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through the June crime lab report denied counsel a meaningful opportunity to
examine and prepare for this evidence.[fn5] Therefore, we find
no reversible error in the admission of the evidence regarding the
blood spatter pattern on the coat.
(B) Chapel contends that the introduction of his raincoat
was more prejudicial than probative because there was no evidence
that the blood spatters on it were human blood. The raincoat,
however, was not gory or gruesome, and the lack of evidence
connecting it to the victim goes to weight not admissibility.
(C) Chapel sought a continuance in the motion for new trial
hearing in order to present an expert to testify on trajectory and
blood spatter pattern. Chapel represented to the trial court that
the expert would testify that Chapel could not have fired the
fatal shots and that the blood pattern on his raincoat could not
have been made from the victim's wounds. Chapel represented to
the court that the expert would not testify until he had seen the
actual autopsy photographs and that Chapel was as yet unable to
obtain the original photographs from the medical examiner, because
the doctor who performed the autopsy had left his prior
employment. The expert was relevant to Chapel's contention that
trial counsel was ineffective in not presenting an expert on
bullet trajectory. Because the trial court and this court were
able to address the ineffectiveness claim in the absence of the
expert testimony,[fn6] we find no abuse of the trial court's
discretion in denying the continuance.[fn7]
4. Chapel challenges the admission of testimony from three
of Thompson's friends that shortly before her death Thompson had
told each of them that she planned to meet with Chapel to compare
the serial numbers on her remaining money with some money that
Chapel had obtained. Prior to trial, the trial court held a
hearing at which these friends testified that each had known
Thompson for a long time and each spoke with her on a regular and
frequent basis, often several times a day. Each testified that
Thompson was upset and worried that someone stole half of
$14,000.00 in cash she had in her trailer and that she suspected
her son. They also testified about Thompson's statements
regarding the planned meeting with Chapel and its purpose.[fn8]
Prior to the admission of the evidence at trial, the trial court
heard the witnesses again, weighed the testimony's probative
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value against its prejudicial effect, and limited their testimony
substantially.
Under the necessity exception[fn9] to the hearsay rule,
hearsay statements are admissible when the evidence is "necessary"
and when there are "particular guarantees of trustworthiness."[fn10]
We have previously found that the first criteria is met when the declarant
is deceased.[fn11] However, death or unavailability of the
declarant cannot alone satisfy the necessity component without allowing
the exception to swallow the rule. Additionally, the proponent of the
evidence must show that the statement is relevant to a material fact
and that the statement is more probative on that material fact than other
evidence that may be procured and offered.[fn12] These
additional elements will help ensure that the necessity exception
does not render the rules of evidence meaningless and allow the
conduct of trials by hearsay. These factors are met in this case
because the testimony tended to establish that Chapel was the
officer seen at the muffler shop where Thompson was shot and the
state was unable to locate any witnesses to provide that
identification.
In determining whether there are sufficient indicia of
reliability the trial court must examine the totality of the
circumstances surrounding the making of the statements sought to
be introduced.[fn13] The test is whether the "the declarant's
truthfulness is so clear from the surrounding circumstances that
the test of cross-examination would be of marginal
utility."[fn14] Factors that speak to the reliability of the
statements will vary depending on the nature of the statements
sought to be introduced.[fn15] Factors showing the reliability
of Thompson's statements include (1) Thompson was consistent in
relating the plan and purpose for the meeting to her three
friends;[fn16] (2) she lacked a motive to fabricate the
story;[fn17] and (3) there was merely a remote possibility that
the statements were based on Thompson's faulty recollection or
observation because the witnesses testified that recovery of the
money was a matter of great importance to Thompson. Also
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appropriately considered were the nature of the statements and the
relationship between Thompson and the witnesses. We conclude that
the statements satisfied the requirements for admission under the
necessity exception to the hearsay rule.[fn18] Chapel contends
that the statements lack trustworthiness because they may have
been part of Thompson's efforts to bluff her son that she was
pursuing prosecution. Chapel, however, failed to establish a
factual basis for his theory that the statements were made when
Thompson's son had the opportunity to overhear them.n
5. Chapel contends that the admission of DNA evidence was
improper because the "partial digestion" testing method used is
not generally accepted in the scientific community. According to
the state's expert the DNA testing was performed using the
restriction fragment length polymorphism (RFLP) methodology, which
has been accepted in this state.[fn19] During one of the steps
of the testing procedure there was a failure of the restriction
enzyme to completely cut the DNA sample, which is known as
"partial digestion," and it results from a contaminant in the
sample. The state's expert testified regarding the protocols that
the state crime lab follows when dealing with partial digestion.
After reviewing the record, we conclude that the trial court did
not abuse its discretion in holding that the evidence was
admissible under the standards set forth in Harper v.
State.[fn20] The conflicting expert opinions on the test
results go to the weight rather than the admissibility of the
testimony.[fn21]
6. Chapel contends that the failure of the state to inform
the defense of the negative results of a gunshot residue test
constitutes a violation of Brady v. Maryland.[fn22] The record
at the motion for new trial hearing, however, established that no
testing was performed. Therefore, there were no results that were
required to be given to Chapel.
7. Chapel did not request an instruction on alibi, but the
trial court gave one over the his objection. The trial court was
not required to give an instruction on alibi absent a defense
request because alibi was not Chapel's sole defense.[fn23]
Nevertheless, Chapel presented witnesses
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who testified that Chapel was with them around the time of murder and,
therefore, the trial court did not err in giving a charge on alibi.
Chapel also contends that this charge improperly shifted the
burden of proof to him and allowed the state to argue the shifting
of the burden in closing argument.
The charge given by the trial court, taken from the pattern
jury instructions, stated:
I charge you that the defendant contends that he was not
present at the scene of the alleged offense at the time of
its commission. Alibi as a defense involves the
impossibility of the defendant's presence at the scene of the
alleged offense at the time of its commission. The evidence
presented as to time and place must be such as reasonably
excludes the possibility of the presence of the defendant at
the scene of the alleged offense. The presence of the
defendant at the scene of the crime alleged is an essential
element of the crimes set forth in this indictment, and the
burden of proof rests upon the state to prove such beyond a
reasonable doubt.
The third sentence is unfortunate in suggesting that a burden of
proof rests with the defendant and the charge would be correct and
better without it. Nevertheless, the final sentence is clear in
instructing that the burden of proof rests completely with the
state. Therefore, we find no reversible error in the giving of the
charge.
8. During closing arguments, the prosecutor argued that
Chapel had failed to inform his attorney about four one hundred
dollar bills found in Chapel's notebook. The trial court
overruled Chapel's objection. There was no testimony regarding
conversations between Chapel and his trial counsel and the nature
of their relationship was irrelevant to any issue in the trial.
The prosecutor's argument was based on testimony from an
investigator from the district attorney's office who observed
counsel as counsel inspected physical evidence. The investigator
testified that when defense counsel inspected a briefcase and
notebook seized from Chapel, it did not appear to the investigator
that counsel discovered the bills that the investigator left
secreted in the notebook. The inference regarding Chapel's
credibility was thus based on conduct of his counsel. Such an
intrusion into the attorney-client relationship as a means to
attack the defendant's credibility impinges on the defendant's
Sixth Amendment right to counsel and is improper.[fn24]
Nevertheless, we find beyond a reasonable
Page 158
doubt that the improper comment did not contribute to the verdict.
9. Chapel raises six instances that he contends constitutes
ineffective assistance of trial counsel. In order to prevail on a
claim of ineffective assistance of counsel, Chapel must show both
deficient performance and actual prejudice.[fn25] Although one
critical mistake may constitute ineffective assistance of counsel,
we note that the overall record shows that Chapel had two
experienced, very competent, and aggressive trial lawyers. Trial
counsel investigated the case with the assistance of private
investigators, they hired and consulted experts, they were
well-prepared and thoroughly cross-examined state's witnesses,
they presented well-reasoned legal arguments in pre-trial hearings
and during trial, they presented numerous witnesses of their own,
and they had cogent responses to every aspect of the state's case.
Chapel contends his counsel was ineffective in failing to
present a witness who knew the victim's son and who testified at
the motion for new trial hearing that she heard Michael Thompson
say that he knew that Chapel was innocent, but that Chapel had to
be convicted in order for Thompson to succeed in his multi-million
dollar civil suit against Gwinnett County. This evidence is
relevant because it supports the defense theory that persons
involved with Michael Thompson's drug activities were responsible
for the murder and goes to the credibility of Michael Thompson,
who testified for the state. Because he was present and did
testify, the evidence was admissible as impeachment and
substantive evidence.[fn26]
At the motion for new trial hearing, one of the defense
lawyers testified that he did not have any information regarding
that statement, but that if he had been aware of it, he would have
followed up on it. Chapel's other trial counsel did not testify
at the motion for new trial hearing. The witness testified that
she told the defense investigators and counsel of the statement.
Both investigators testified that they knew of the statement and
one testified that he informed counsel of it. The trial court
made no factual findings or credibility determinations to resolve
this conflicting evidence. Assuming that the witness and
investigators made counsel aware of this statement, the fact that
counsel forgot to present this evidence, which strongly supported
the defense theory, would constitute deficient performance.
Even assuming Chapel has satisfied the deficiency prong, he
still must meet the difficult Strickland prejudice requirement and
demonstrate
Page 159
that the result of the trial would likely be different had the evidence
been presented.[fn27] The witness's statement does not go to
the heart of the state's evidence, which centered around DNA evidence
and witnesses who saw a Gwinnett police car at the scene of the murder.
Instead, the evidence focuses on suspicions surrounding Michael Thompson,
who was thoroughly cross-examined and whose credibility was strongly
challenged on several issues. Therefore, when we consider the witness's
single statement in the context of the whole trial, we cannot conclude
that it meets the high Strickland standard.
Chapel also contends his counsel was deficient in failing to
interview alibi witnesses until two years after the murder and
that this prejudiced his defense because the alibi witnesses were
unable to testify with specificity when they saw Chapel the night
of the murder. We recognize that counsel must prioritize his or
her investigation and preparation for trial; therefore, we cannot
conclude that delaying some interviews falls outside the wide
range of reasonable professional assistance. Furthermore, the
record shows that several alibi witnesses gave written statements
within two weeks of the murder and most testified consistently
with their statements.
Chapel challenges his counsel's decision not to seek a
nighttime jury visit to the scene, as recommended by the defense
investigator. The decision not to seek such a visit is clearly a
strategic decision and one that was not unreasonable under all the
circumstances.
Chapel also contends that counsel should have presented an
expert witness who would have rebutted the testimony of the only
witness who placed him near the scene of the murder. Chapel,
however, did not call this witness to testify at the motion for
new trial hearing and, therefore, cannot establish that the
evidence would have been admissible. If the evidence was
inadmissible, counsel cannot be deficient in failing to present it.
Chapel contends that his counsel was ineffective in failing
to elicit testimony from Chapel regarding Officer J.P. Morgan's
connection to drug trafficking. Most of the evidence given by
Chapel at the motion for new trial hearing on this subject was
based on statements of informants and was therefore hearsay.
Accordingly, Chapel has not demonstrated that this evidence was
admissible and counsel cannot be deficient for failing to offer
inadmissible evidence.
Finally, Chapel contends that his trial counsel was deficient
in failing to present an expert on bullet trajectory. Trial
counsel testified at the hearing on the motion for new trial that
he relied on two experts in concluding that any such testimony
would not be conclusive and therefore he decided not to pursue it.
That later counsel does
Page 160
not agree with this assessment does not render the strategic decision
unreasonable.
For these reasons, we conclude that the trial court did not
err in denying the motion for new trial on the basis of
ineffective assistance of trial counsel.
Judgment affirmed. All the Justices concur.
[fn1] The crimes occurred April 15, 1993. The grand jury
indicted Chapel on October 5, 1993. The trial began on August 4,
1995 and the jury returned its guilty verdicts on September 8,
1995. On September 10, 1995, the trial court sentenced Chapel to
life imprisonment for murder, life imprisonment for armed robbery,
and five years imprisonment for possession of a firearm, with all
sentences to run consecutively. Chapel filed his motion for new
trial on October 3, 1995, which the trial court denied on October
9, 1997. Chapel filed his notice of appeal on November 1, 1997
and the case was docketed in this court on March 25, 1998. Oral
arguments were heard on July 13, 1998.
[fn2] The trial court limited the evidence regarding Morgan
to testimony that related to the police investigation into
Thompson's murder.
[fn3] Jackson v. Virginia, 443 U.S. 307 (99 S.C. 2781, 61 L.Ed.2d
560) (1979).
[fn4] Timberlake v. State, 246 Ga. 488, 491 (271 S.E.2d 792)
(1980).
[fn5] See Livingston v. State, 266 Ga. 501, 503
(467 S.E.2d 886) (1996) (counsel is entitled to meaningful opportunity to
examine evidence against client).
[fn6] See division 9, infra.
[fn7] Fair v. Balkcom, 216 Ga. 721, 726 (119 S.E.2d 691)
(1961) (whether to grant continuance is within discretion of trial
court).
[fn8] Boehm v. Abi-Sarkis, 211 Ga. App. 181, 183
(438 S.E.2d 410) (1993) (declarations untrustworthy because of inconsistent
statements made to others).
[fn9] OCGA § 24-3-1 (b).
[fn10] Roper v. State, 263 Ga. 201, 202 (429 S.E.2d 668)
(1993).
[fn11] Id.
[fn12] See State v. Felton, 412 S.E.2d 344, 357-358 (N.C. 1992)
(discussing exception under North Carolina rules of evidence).
[fn13] Id. at 203.
[fn14] Idaho v. Wright, 497 U.S. 805, 820 (110 S.C. 3139, 111
L.Ed.2d 638) (1990).
[fn15] Compare Wright, 497 U.S. at 821-822 (statements of
child abuse victim) with Dutton v. Evans, 400 U.S. 74, 88-89
(91 S.C. 210, 27 L.Ed.2d 213) (1970) (plurality opinion) (statements of
co-conspirator made during concealment phase).
[fn16] Mallory v. State, 261 Ga. 625, 628 (409 S.E.2d 839)
(1991) (statements unreliable when declarant made contradictory
statements to different witnesses).
[fn17] Compare Mallory, 261 Ga. at 628 (fact that a declarant
has no reason to lie is insufficient by itself to establish
"particular guarantees of trustworthiness").
[fn18] The trial court properly excluded other statements by
these witnesses that failed to meet the trustworthiness
requirement.
[fn19] See Caldwell v. State, 260 Ga. 278 (393 S.E.2d 436)
(1990); Redding v. State, 219 Ga. App. 182 (464 S.E.2d 824 (1995).
[fn20] 249 Ga. 519, 525 292 S.E.2d 389) (1982).
[fn21] See State v. Cauthron, 846 P.2d 502, 511-512 (Wash.
1993) (en banc); Fishback v. People, 851 P.2d 884, 887 n. 6, 893
(Colo. 1993); State v. Marcus, 683 A.2d 221, 233 (N.J. Super. Ct.
App. Div. 1996).
[fn22] 373 U.S. 83 (83 S.C. 1194, 10 L.Ed.2d 215) (1963).
[fn23] See Tarvestad v. State, 261 Ga. 605, 606
(409 S.E.2d 513) (1991) (trial court must give charge on sole defense of
justification even when not requested if there is some evidence to
support it).
[fn24] See United States v. McDonald, 620 F.2d 559 (5th Cir.
1980) (arguing that lawyer's presence during execution of search
warrant is inference of guilt is harmful error).
[fn25] Strickland v. Washington, 466 U.S. 668, 687
(104 S.C. 2052, 80 L.Ed.2d 674) (1984); Smith v. Francis, 253 Ga. 782
(325 S.E.2d 362) (1985).
[fn26] Guess v. State, 262 Ga. 487 (422 S.E.2d 178) (1992).
[fn27] Strickland, 466 U.S. at 694.
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