GROUND
NINE: EVIDENCE ADMITTED IMPROPERLY
Improperly admitted evidence
requires reversal or a new trial.
A.
Videotaped Interview Of Officer Chapel Improperly Admitted
There was absolutely no reason for the videotaped
interview of Officer Chapel’s interrogation to be admitted to the record or
shown to the jury in this trial. During the interview, Chapel neither confessed
to any wrongdoing, nor did he make any statements that could in any way be
deemed contradictory. Why was this video shown to the jury?
Unless
a suspect incriminates himself or it can be shown that he was caught in a web
of lies, the only thing such a videotape of an interrogation can accomplish is
to get false or incomplete information admitted into evidence through the back
door. The interview contained hearsay statements in the guise of questioning
that could not help influence the jury. Quintessential of this hearsay is the
statement made to Chapel that Officer Brian Reddy denied that he, Chapel, was
not at the firehouse the night of the murder. Lt. Latty heard it from a source
he could not name based on what he only believed to be a written statement by
Reddy. Before the interrogation ended, it was proved that Reddy was lying.
[Lt. John Latty, Trial, Page 4467, Line
16]
By Mr. Moore
Q. Okay. Now, on the tapes, you told Officer Chapel
that Brian Reddy had said he [Chapel] was not at the fire station?
A. That's
right.
Q. And
I believe Brian Reddy gave a written statement to that effect; is that correct?
A. Yes,
sir.
Q. And
that was delivered to you at headquarters, wasn't it?
A. Yes,
sir, it was. During the course of the
interview, yes, sir.
Q. And
who took that statement?
A. I
don't remember. I think a detective
went out and talked to him. There were
a number of interviews going on simultaneously as we had planned. I don't remember who took the
statement. I remember that somebody --
we sent somebody out to take the statement, and as soon as we got it back, we
wanted -- we were wanting to know what they had to say about what was going on
that night at that time.
Q. Okay. And do you know the reason why Brian Reddy
lied?
A. Well,
I don't think he lied. I think he was
confused. He was off duty that night,
and I'm told that he had folks visiting him from New Jersey. It was some of his relatives. And that he had drunk some beer that night,
which Brian has been known to do a time or two, and I think he got confused. I don't think he lied at all. I think I said to Mike on the tape he must have
panicked or something when we approached him with this.
Q. Now,
when did you find out that he had not told you the truth?
A. During
the course of the interview when we got statements from some of the other
officers, and they confirmed that they had been at the firehouse and that
Chapel had been at the firehouse up to a point. Then we realized it was a mistake.
Actually Chapel said very little
during the interrogation. Many times he started to say something and was interrupted
by his interrogators. They did not want to hear anything from him but an
admission of guilt, but he simply continued to maintain his innocence. Most of
the interview consisted of long harangues by Lt. Latte and Investigator
Burnette speaking to Chapel and later his jury, telling him and them about how
guilty he was. Most of the information they imparted was either totally or
partially incorrect or simply hearsay. The only thing that the showing of that
interview to the jury accomplished was to get information to the jury through
this backdoor ploy, and to give the District Attorney a platform on which he
later damned Chapel because of his demeanor.
[Porter,
Trial, Page 6648, Line 23]
And watch his demeanor. Watch his demeanor here. Watch his demeanor on the 23rd. He was calm. He was jovial. A man on
trial for his life sitting here on the witness stand having -- telling you a
few war stories. Relaxed. Until he was faced with the questions he
couldn't answer, the questions that I put to him on cross, the questions of his
plausible explanation for the evidence that the state has produced. And that's when he got jumpy. That's when he got nervous. When he was confronted with the truth was
when he got nervous.
I urge you to think back as part of your
deliberations to the statement of the 23rd.
What was his demeanor then? A
police officer accused of perhaps the worst crime a police officer can commit,
the ultimate betrayal of his trust as a police officer. And most of the time he look amused as Latty
and Burnette suffered through an interview offering him every opportunity to
vindicate himself, their pain so evident that the emotion was just tangible
within the courtroom. And he's sitting
there going, oh, this is the old good cop, bad cop. You can see it in his eyes.
He's critiquing their interview technique. Is that the reaction of a man wrongly accused? Is that the reaction of a man horribly
caught by the circumstances?
If
Chapel’s demeanor throughout the interview is examined closely, it is apparent
that his demeanor was no different when his interrogators insisted that he was
guilty of the murder of Emogene Thompson as it was when he was told that his
friend Brian Reddy had denied that he, Chapel, was not at Fire 14. There were no vehement denials, no 'shock'
that someone would think he had done it, no 'swearing to God' or on anyone's
grave that he didn't do it. Chapel acted as though he were innocent and
knew his town well enough to know that once the police have a suspect, that person
is going to prison.
What the showing of the video also
did was to allow the District Attorney to mislead the jurors by taking Chapel’s
statements about the time he left the fire house.
[Porter, Trial, Page 6648, Line 6]
I want you to contrast the testimony here
and the war stories and jokes about the movie with the statement of the
23rd.
In the statement of the 23rd, we didn't hear anything about any
red Jeep on Pass Court. In the
statement of the 23rd, he said he called her.
Today in court, or the other day in court, he said he went by her house
and that's where all this information about the bands and the serial numbers
came from. In the statement of the 23rd, he said he left [Fire 14] at
nine-thirty. In court, he said ten
o'clock.
Here Porter is misleading the jury. Porter well knew what Chapel had said in his
interrogation of the 23rd. Chapel stated he left Fire 14 at 9:45 PM
and, importantly, related his leaving to a call he received at 9:56 PM.
[Chapel, Interrogation, Page 14, Line 22]
Inv. Burnette: What time did y’all stay at the fire department,
Mike?
Off. Chapel: Until –
[Burnette hears a noise]
Off. Chapel: I don’t hear it. I don’t have my hearing aids. We
stayed till, I guess, a quarter to ten, and I had a call. I had to go to Pebble
– Pebble – some kind of 86 over on Pebble – Pebblebrook. It may have been on
Arden Drive.
[Chapel Interrogation, Page 128, Line 8]
Lt. Latty: Mike, can you
remember, do you have any idea what time you left the fire station that night?
Off. Chapel: Lieutenant –
Lt. Latty: The call [the Arden Drive call] – the call was at nine
fifty-six.
Off Chapel: Okay.
Lt. Latty: Four minutes till ten.
Off. Chapel: I hadn’t been
gone long. I had time to get from the fire station to Lee Street, which is
what, two minutes maximum, [unintelligible] car probably another two minutes,
going to there, backing out, somewhere between nine – nine thirty-five, nine
forty-five, because I hadn’t been gone – well, probably closer to nine-thirty
because I think I was at the gym maybe five minutes max.
This
would then put Chapel leaving Fire 14 at 9:54. At this point, Chapel was
exhausted from a day that started with him working at his gym, putting in a
full shift and enduring an hours long interrogation. This point in the
interrogation was only a few minutes from its conclusion. It was clear that
Chapel was almost in a stupor and rambling. In the context of the time of the
Arden Drive call, it was simply nonsense, but the District Attorney pulled the
time 9:30 out of this and for good measure subtracted another 10 minutes from
it. It is no coincidence that Sgt. Stone changed his time of Chapel’s departure
from Fire 14 from 10:15, in his conversation with Capt. Davis, to between 9:20
and 9:30 after this interview. It is not clear what time Firefighter Pierce
finally came up with after the District Attorney’s manipulation.
[Porter, Trial, Page 6650, Line 24]
So what are we left with?
We're left with the believable credible evidence presented by the
state. We're left with the people who
know that Mike Chapel left the precinct on April the 15th of 1993 between
nine-twenty and nine-thirty. How do we
know that? Donald Stone tells us that,
Pierce tells us that, and the defendant himself tells us that.
B.
Hearsay Statements Of Friends Of The Victim Were Improperly Admitted
Hearsay statements attributed to the
victim by her confidants describing an alleged meeting by the defendant were
improperly admitted. The two prerequisites for the admission of hearsay because
of necessity are: a finding that the hearsay is necessary, and a finding that
the declarant's hearsay statement is surrounded by particularized guarantees of
trustworthiness. Mallory v. State, 261 Ga. 625 (2) (409 SE2d 839)
(1991). The Supreme Court of Georgia recently held in this case, Chapel v.
State, 270 Ga. 151 (4)
(510 SE2d
802) (1998), that the hearsay declarant's death or unavailability, in and of
itself, does not satisfy the "necessary" component. . . . To satisfy
the requirement that the hearsay be "necessary," in addition to
showing the hearsay declarant's unavailability due to death, privilege, or
other reason, the proponent of the hearsay must also 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.”
At the hearing for a new trial held
before trial judge Bishop, appellate counsel, Randy Mott, put forward the
theory that the victim was telling her friends over the telephone in the presence
of her son that she and Chapel were working together to recover the money as an
alternative to the state’s contention. The Supreme Court rejected that
argument.
[Supreme
Court Decision[1]]
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.
There is an alternate theory that
the defense failed to explore. This alterative does not challenge the
trustworthiness of the victim’s statements and, at the same time, denies the theory
put forward by the state. It is quite possible that the victim simply
misunderstood what Chapel was saying when he explained to her how to bluff her
son into returning the missing money.
People under stress tend to hear
what they want to hear. This is especially true of those of advanced age and
limited education. This was not only true of the Emogene Thompson, but was also
the case for the three friends with whom the victim discussed the situation.
Ms. Thompson herself had a relatively limited education and life experience,
and the same is true of Virginia Chance and Marsha Arnold. Delores Burel, who
seemed to be at the center of this issue, showed evidence of functional
illiteracy at trial.
[Delores Burel, Trial, Page 4051[2]
By Ms. Rogan
Q. Ms.
Burel, I'm going to show you what's been marked as Defendant's Exhibit 51 and
Defendant's Exhibit 52. Do you
recognize these documents, ma'am?
A. These
are the ones they gave me last -- when we had a hearing.
Q. Okay.
A. Okay.
Q. Do
you recognize them?
A. They
look -- the first page and all looks okay.
Q. Okay. I'm surely not going to trick you. These are transcripts of tape recorded
interviews --
A. Okay.
Q. --
that the police conducted with you, one on April 16 and one on April 20; is
that correct?
A. Okay.
Q. Okay. Have you had a chance to review these
previously?
A. I've
went over it. I went over some of it,
yeah.
Q. Okay. I'd like you to -- well, my question is
whether you recall telling the police during either of these two interviews
that Ms. Thompson was going to be carrying her money with her that night, the
night she was killed?
A. Do
I recall saying that?
Q. That's
correct. That is my question. Do you recall telling the police that she
was going to be carrying the money with her?
A. She'd
told me she was taking her money with her to compare the bills that she had
with what the officer had, compare the serials numbers together. Yes, she told me that.
Q. I
understand that's what your testimony today is. My question, ma'am, is do you remember telling the police --
A. Do
I remember that?
Q. --
that fact, during either one of these two interviews?
A. No. That's been two years ago. I know she did, and I know I told them that
she was meeting with him to compare the bills and the money together.
Q. I'm
aware that's what your testimony today is, ma'am. That's not my question.
My question is do you remember telling the police that during either of
the two interviews?
A. Yeah. I'm sure I did.
Q. Okay. I'd like you to look through these two
documents, please, and tell me if it refreshes your recollection as to whether
you told the police at that time that she was going to be carrying the money
with her.
A. Are
you wanting me to say that I'm saying that she had the money on her. Is that the words you want me to say that I
said to the officer?
Q. My
question, ma'am, is whether you told them anything about her carrying money
with her that night.
A. Yes. I told them that she was carrying the money
to compare the bills with the bills that Chapel had, yes.
Q. Well,
I'm asking you, then, to please look through the documents and see where it is
you told them that.
A. Okay.
Q. Would
you like me to --
A. Yes,
please do, because I've repeated so much three or four times in my
statements. I don't know what you --
maybe you can show me what you want me to --
Q. If
you could focus on Page 7, in particular, of Exhibit D-51, which is the
statement from April 20, 1993.
THE COURT: Would you approach the bench, please?
[Counsel approached the bench and the
following conference ensued outside hearing of the jury.]
THE COURT: Maybe now's a good time to take a short recess --
MS. ROGAN: All right. I'm sorry this
is taking -- there's no other way I can
do it.
THE COURT: -- and give her an opportunity to go through it and then we'll
come back to it and we'll commence on it.
Chapel spent only a few minutes with
the victim on April 4th, the day after he answered the call about
the theft. During his interrogation on April 23rd, he described his
conversation with the victim on that day.
[Chapel
Interrogation, Page 9, Line 11]
Inv.
Burnette: Tell me – Steve [Cline] asked you about the other night – about the
contact you had with her regarding the hundred dollar bill and the money
wrapper.
Off. Chapel:
When we were – she wanted to know what her options were, and bluffing, I told
her the only – only other recourse she had other than prosecuting Mike
[Thompson] for the – for stealing the money would be just to bluff the boy,
bluff him on some kind of a scam, like telling him that we had fingerprints on
the – on the envelope, or the drawer or the – on the – the money bands or
something, the hundred dollar bill – tell her – I told her that hundred dollar
bills were traceable. Let it be known that that was happening. If any – trying
to get some kind of response out of that boy.
This sort of gambit was typical
Chapel. He had used this sort of ploy often in the past, especially with
teen-agers who had gotten into their first trouble. On the stand, Marsha
Arnold, who was one of the friends in this issue, described how Chapel had used
these tactics with her own daughter.
[Marsha Arnold, Trial, Page 4011[3]]
By Ms. Rogan
Q. And
you knew Officer Chapel, didn't you?
A. Yes,
ma'am.
Q. Okay. He had worked on a case involving your
daughter, hadn't he?
A. Yes,
ma'am.
Q. And
you told Ms. Thompson that he was a good police officer, didn't you?
A. Yes,
ma'am, I did. I told her she could
trust him.
Q. Now,
the situation with your daughter, and I don't mean to embarrass you, but it is
important that I ask you, did it involve the theft of some jewelry from some
people --
A. Yes,
ma'am.
Q. --
who she knew?
A. Yes,
ma'am.
Q. Okay. And she was a teenager at the time?
A. Yes,
ma'am.
Q. Okay. And Officer Chapel was the police officer
who responded to your call, I presume --
A. No,
ma'am.
Q. --
or the victims --
A. Yes,
ma'am.
Q. --
of that particular theft?
A. Yes,
ma'am.
Q. Okay. And he spoke to you about ways in which he could
handle the case with your daughter?
A. Yes,
ma'am.
Q. And
he set something up, didn't he, where he pulled you over on your way home from
church one day --
A. Yes,
ma'am.
Q. --
and had your daughter get in the back seat of his car or in his car and talk,
basically, to try to scare her or bluff her into to giving back the jewelry?
A. Yes,
ma'am.
Q. And
that worked, didn't it? She gave the
jewelry back?
A. Yes,
ma'am.
Q. Okay.
Such a gambit was complex and was related to Ms. Thompson over the
course of a few minutes. There is every possibility that she was confused and
took Chapel to mean that he had or would shortly have the hundred-dollar bill
and the money wrapper and would be testing them for fingerprints and so forth.
Over the course of the next days and in the course of telling and retelling,
the story could have quite possibly have become the precise story that the
state contended. Not only was Ms. Thompson talking to each of the friends, but
also there is evidence that they were talking to each other, especially
Virginia Chance and Delores Burel. Under these circumstances that resembled an
excited conspiracy, the friends saw evidence of the scheme everywhere. Every
police car behind them became Chapel protecting Ms. Thompson, and, since Chapel
was permanently assigned to that area, they may well have seen in driving about
Buford and Sugar Hill.
The problem with the story the
friends related was detail. It lacked the structure of the story that Marsha
Arnold related about her daughter from the witness stand. The friends spoke
only in generalities. There were no dates or times or any other specific
information that would give the type of credence necessary to make it of more
probative value than Chapel’s version that he had no contact with the victim
after the 4th. Indeed, Delores Burel, who put herself forward as Emogene’s best
friend and the person with whom the victim spoke repeatedly over this period
about the issue, did not even know Chapel’s name. After she herself was
questioned by police, Marsha Arnold or Marsha Smith as she was then known, came
to Ms. Burel, and Marsha wrote down the name of Mike Chapel for Ms. Burel so
she would have it when she was questioned.
[Delores Burel, Trial, Page 4040, Line 17]
By Ms. Rogan
Q. Now,
once she had called the police, Officer Chapel responded; is that correct?
A. Yes.
Q. Okay. She told you that?
A. Yes.
Q. And
she told you his name?
A. She
told me his name, but I just let it go in one ear and out the other one. I called him officer. I just kept calling him officer. Even knowing it was Mike Chapel, I just said
officer.
Q. Okay. I think you said that it just went in one
ear and out the other; is that what your answer was?
A. No. I did not use his name at the time. I knew it was Mike Chapel, but I didn't say
Mike Chapel. I said officer.
Q. What
are you referring to, ma'am? I didn't
-- I wasn't asking you if you'd used his name at all. I was asking you if you knew -- if she had told you what his name
was.
A. Yes. Mike Chapel.
Q. Okay. When is it you're saying you didn't use his
name?
A. When
-- like when I was talking to the detectives that came out, I told him his
name, but I still used 'officer' instead of saying his name.
Q. Okay. And that day that the investigator came out
to speak to you, you told him that your memory is bad and you didn't actually
remember his name, Mr. Chapel's name.
A. No. What I said was when he came out that I knew
his name, but I didn't remember it just like that. I had it wrote down.
Marsha wrote it down for me because I kept forgetting his name. I just kept saying officer, but I knew it,
but I just --
Q. You
knew it, but you didn't remember it?
A. Right.
Q. My
question was, you had been told what his name was by Ms. Thompson?
A. Yes.
Q. Okay.
There was no detail in their stories
other than a confused plan that the victim related to her friends about her
contacts with Chapel. Chapel himself was confused about his contacts with the
victim. At his interrogation one week after the murder, he tried to relate
those contacts.
[Chapel
Interrogation, Page 10, Line 1]
Inv.
Burnette: When was this that you told her that [plan to make son return money],
Mike?
Off.
Chapel: I can’t honestly say if it was the initial or the second or on my phone
conversations with her.
Inv.
Burnette: How many phone conversations did you have with Ms. Thompson?
Off.
Chapel: One that I can confirm. Possibly two. I don’t know. I don’t remember
talking to her.
Inv.
Burnette: When were they made?
Off.
Chapel: She called the precinct one day. She called the precinct one day. I
can’t say what day it was, but Rooster [Sgt. Stone] handed me a message to call
her back, and I called her right back. And she may have called me at the gym. I
don’t know.
As it turned out, there were no telephone conversations
between the two. Chapel attempted to return the victim’s call from the precinct
but was unsuccessful. Finding himself in her area that day, Chapel remembered
the call and went to her trailer. This is when he described her options to her
as described above. Telephone records from the victim’s home, Chapel’s home and
his gym and from the precinct were subpoenaed. In charge of organizing and
examining these records was GCPD Lt. Powell.
[M.D. Powell, Trial, Page 5860, Line 12]
By Ms. Rogan
Q.
Okay. And I'll direct your attention to
your report on this, Page 1. From your
analysis of the data that you had, were you able to determine whether or not
Mr. Chapel had ever called Emogene Thompson from the precinct?
A.
From Page 1?
Q.
Page 1 of your report.
A.
No. There was no indication that the
victim was called from the northside precinct.
Q.
Were you able to determine whether there was any indication that Mr. Chapel had
ever called the victim from his home?
A.
Not that I recall, no.
Q.
If you had recalled that, would you have put that in your report?
A.
Yes.
Q.
Is there anything in your report that indicates that he had ever called the
victim from his home, his residence?
A.
No.
Q.
Is there anything in your review of the data as reported in your report that
reflects whether or not there was an indication that Mr. Chapel ever called the
victim from his gym?
A.
Not that I recall, no.
Q.
If there had been such an indication --
A.
It would have been in the report.
Q.
All right.
MS. ROGAN: That's all I have, Lieutenant.
Thank you.
Ms.
Rogan’s examination of Lt. Powell on his report was incomplete.
[M.D. Powell, Summary Report, Undated]
In completing this analysis concern was
placed in the area of discovery of additional evidence in the murder of Emogene
Thompson as well as evidence of any conspiracy. This analysis focuses mainly on
the time period of April 2, 1993, the before Officer Chapel answered the
burglary call at the victims [sic] residence until the day he was arrested.
Analysis of phone calls from and to the
various numbers indicates that Officer Chapel had very few people he called on
a regular bases [sic]. Comparison of the numbers called from his gym, residence
and the Northside precinct indicate he was not using the phone at the Northside
Precinct to make business or pleasure calls, There is still no indication that
he ever called the victim from the North Side Precinct, [sic] his business or
his residence.
The victim did call the Northside Precinct
on Sunday, April 4, 1993. Sgt. Stone advises he gave a message to Officer
Chapel from the victim to call her. The only call to the precinct from the
victim was at 1250 hrs, on Sunday the 4th, which is not a time that
Sgt. Stone would normally have been at the precinct.
Missing from Powell’s report and testimony
were the facts that the victim did not call Chapel’s residence or his gym. The
assumption would have to be that there were no such calls. If there had been,
the prosecution would certainly have brought that issue to court.
There
is absolutely no reliable evidence anywhere of contact between Chapel and the
victim other than the face-to-face meetings on April 3rd and 4th.
If the two had been implementing a conspiracy to bluff the son, some contacts
after the 4th would seem to be essential. There is only the victim’s
misunderstanding of the information related to her on the 4th by
Chapel and perhaps the overly active imaginations of the friends. At trial, the
friends could not give any detail about past or proposed meetings between
Chapel and Ms. Thompson. When
did Chapel call Ms. Thompson? When did she call him? What were any arrangements
for any proposed meeting? On what day? At what time? Where? If Ms. Thompson had
talked to Chapel after the 4th, certainly she would have relayed the
details of that contact to at least one of the friends, but none could give any
such detail. When pressed for information on the stand, Delores Burel, who
professed the most intimacy with the victim, could remember nothing.
Under the concept of misunderstanding,
there is no question as to the veracity or trustworthiness of the declarant.
The question is was there a misunderstanding, and this question could only be
answered by cross-examination of the victim.
Finally, in this case, the Supreme Court
of Georgia judged that the hearsay statements related by the friends to be of
more probative value because:
[Supreme
Court Decision[4]]
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. These additional elements
will help ensure that the necessity exception does not render the rules of
evidence meaningless and all the conduct of trial 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.
That Chapel was the officer seen at
the muffler shop where Thompson was shot is challenged in other grounds of this
petition. If in fact it is found that Chapel was not the officer seen at the
muffler shop, whatever probative value the hearsay evidence may have had is
severely diminished.
C.
Defendant’s Raincoat Improperly Admitted
The defendant’s raincoat was
improperly admitted into evidence since there was compelling evidence of its
accidental contamination with the victim’s blood and its probative value was
outweighed by its emotional value. There is also compelling evidence that
impeaches Kelly Fite’s testimony regarding this raincoat[5].