GROUND
TEN: IMPROPER LINEUP PROCEDURES
The construction and presentation of
the photo lineup from which the defendant was identified was in violation of
due process and the concept of a fair trial and information derived there from
should have been excluded.
A. The Defendant Was Unfairly Highlighted In The Lineup
Chapel was the only officer from the
Northside Precinct placed into an 8-photo lineup. Every witness that viewed
that lineup lived and worked in the Buford-Sugar Hill area where Chapel was permanently
assigned and owned and operated a small business. At trial, Lt. John Latty
attempted to defend the construction of the lineup. He maintained that there
was no one in the Northside Precinct that sufficiently resembled Officer
Chapel. How he could have overlooked Officer Brian Reddy indicates the
insincerity of this position. Within the precinct, Chapel and Reddy were known
as the D & D Twins. Doom and Destruction -- six hundred pounds of cops. The
resemblance of the two was such that even their wives could not tell them apart
at a distance unless they moved.
[John Latty, Trial, Page 4457, Line 19]
By Mr. Moore
Q. Now,
are you aware that the photo lineup that was showed to Mr. Kautter only had one
officer from the Northside precinct in it?
A. No,
sir. I don't recall who was in it.
Q. Okay.
A. Other
than Chapel, I don't remember who else was in it.
Q. Do
you know the reason why there was nobody else that worked at the Northside
precinct in that photo lineup?
A. Well,
when you do a photo lineup, what you're after is somebody -- you know, when you
put them in there with your suspect, you want people who look very similar to
him. That's required. In this particular case, we used police
officers, and the police officers we selected were officers that we felt
resembled, and I say we, I think Greg Thompson or somebody put that
together. He selected police officers
that looked similar to Mike Chapel.
There was no thought given to who those officers were, just that they
fit within the photo lineup in an acceptable way.
Q. So
it wasn't because Mike was your suspect that he was included in there and none
of the other Northside precinct officers were?
A. Well,
he was a suspect, but the selection on who went in there with him was made
based on the appearance of the officers, not where they worked or what their
name was or anything.
Q. Weren't
there other officers in the Northside precinct that appeared similar to him?
A. Probably,
but there probably are a number of officers that appear similar to him,
particularly if you're just looking at a shot of his face.
The defendant was the only officer
in the Northside Precinct permanently assigned at the request of city officials
to the Buford-Sugar Hill area in which all of the eyewitnesses, especially the
two who selected Chapel as a possible identification, Brusie and Kautter,
resided and worked.
[Brusie,
Trial, Page 3396, Line 22]
By
Prosecutor Davis.
A. At Equine Medical Center
on Peachtree Industrial.
Q. Now, what do you do there?
A. I'm a staff surgeon
there.
Q. All right. Where did you go to school, Doctor?
A. Michigan State
University.
Q. Okay. How long has the office been in its current
location?
A. Since February 1990.
Q. All right. And have you worked there at the location
the entire time?
A. Yes, sir.
Q. All right. Are you familiar with the Peachtree
Industrial Boulevard area around Sugar Hill?
A. Yes, sir.
Q. All right. And are you familiar with the location of
the Gwinnco Muffler Shop up there on Peachtree Industrial Boulevard?
A. Yes, sir.
[Kautter, Trial, Page 3525, Line 24]
By
Prosecutor Porter.
Q. Mr. Kautter, where do
you work?
A. I'm self-employed.
Q. What type of work do you
do?
A. I have a Mercedes repair
shop.
Q. And is that located in
the Buford-Sugar Hill area in Gwinnett County?
A. Yes, sir.
Q. How long have you owned
that business?
A. Fifteen years.
Q. And have you always been
located in the north end of the county?
A. For the most part, yes,
sir.
Q. Were you located there
in April of 1993?
A. Yes, sir.
Q. And were you employed in
this business in April of 1993?
A. Yes, sir.
Both eyewitnesses who identified Chapel at trial
later remembered incidents where they had either met Chapel officially, in the
performance of his duties, as was the case with Dr. Brusie, or had seen him in
uniform, as was the case with Witness Kautter.
By.
Ms. Rogan.
Q. Do you recognize him
perhaps from an incident involving a horse that was hit by a car on Bogan Road
out -- back in March of 1992?
A. There were some police
there and there was -- I had forgotten about that. Yeah. Uh-huh
[affirmative].
Q. So you do -- you have
seen him before in his capacity as a police officer?
A. Yes, ma'am.
And Kautter:
[Kautter, Trial, Page 3572, Line 9]
By
Prosecutor Porter.
Q. Okay. Now, when you picked out the photograph of
Mr. Chapel in that photo lineup, did you tell Officer Cline that you knew the
man in the photograph?
A. No.
Q. Did you tell him you'd
ever seen him before?
A. No.
Q. You had in fact seen him
before, hadn't you?
A. Two years prior to that
--
Q. Okay.
A. -- at a fast food
restaurant.
Q. But you didn't tell the
police that?
A. No.
Officer
Chapel also had occasion to place Witness Kautter’s place of business was under
surveillance for several days.
When at a
preliminary hearing witness Kautter was presented with a photo lineup of all 31
of the Northside Precinct’s officers, Chapel was only one of three photos
selected, and the first photo selected by Kautter was that of Officer J.P.
Morgan:
[Kautter, Trial, Page 3572, Line 21]
By Prosecutor Porter.
Q. I've been provided
photographs here marked D-14 through D-44 pursuant to subpoena from the
Gwinnett County police department that these are -- the subpoena requested all
the officers who worked at the Northside precinct. And I'm going to show you three of these that you saw previously
at a hearing and ask you if you remember those. And if you would, use the numbers too when you identify
them. Turn them over and use the
numbers --
A. Okay. To my knowledge, yes, these are the ones
that I picked.
Q. Okay. And you picked some of those as resembling
the people in the photographs that you -- the photographic lineup?
A. One.
Q. Okay. And which one was that?
A. D-38.
Q. And did you -- you said
the other two resembled somebody in the -- or one of them resembled somebody in
the photo lineup, too. Do you recall
that?
A. Yes.
Q. Okay. Do you remember which one it was?
A. D-31, I believe.
Witness Kautter saw the officer in
the patrol car the night of the murder only in profile, and all of the officers
in the 8-photo lineup were shown in full front with no indication of height or
weight. Kautter first selected an officer not Chapel then, with no reaction
from the officer presenting the lineup, remarked: “He is to tall or too thin”
and then selected Chapel.
[Kautter,
Trial, Page 3574, Line 18]
By
Prosecutor Porter.
Q. Now, when you looked at
the photo lineup, did you immediately pick out Officer Chapel?
A. No, sir.
Q. And what did you do
first?
A. I
had looked at another photograph of another individual on the bottom side of
that Manila folder, and I had said at that time that this had looked like the
individual, but he was too tall and skinny.
And then I went back to the top of that Manila folder and picked out the
number three photo.
C. Sgt. Cline’s Presentation Of The Lineup
Sgt. Cline the officer presenting
the 8-photo lineup to Witness Kautter by all indications, including the
affidavit signed by the witness, did not inform Kautter that the suspect may or
may not have been in the lineup because Kautter selected Officer Chapel with
the words: “I’ll have to say …”. When
asked this question, Kautter replied that he could not recall; however Officer
Cline confirmed the witness’ statement:
[Kautter,
Trial, Page 3574, Line 18]
By
Prosecutor Porter.
Q. Okay. And you didn't tell the officer 'I'm sure
that's him,' did you?
A. No, sir.
Q. You said something to
the effect, 'I'll have to say that it's number three,' didn't you?
A. I don't recall.
[Cline, Trial, Page 4700, Line 12]
By Mr.
Moore.
Q. Officer
Cline, my name is Johnny Moore, and I've got a few questions to ask you.
A. Yes, sir.
Q. Now, with reference to
that photo lineup, Mr. Kautter
originally pointed to number seven first, didn't he?
A. What he said to me, sir,
once I presented it to him, he said -- he pointed to number seven and said,
'He's too thin. I'll have to say it's
number three.'
Q. 'I'll have to say it's
number three'?
A. Yes, sir.
Q. That's his exact words?
A. Yes, sir. Those were his exact words, and then he
signed the photo lineup affidavit and signed on it indicating number three.
Q. Okay. And you didn't ask him what he meant by,
'I'll have to say it's number three,' did you?
A. No, sir. It was -- it was just a conversational way
of saying it. In other words, he just
said, 'I'll have to say it's number three.'
It wasn't, 'I have to say it's number three.' He said, 'I'll have to say it's number three,' in that manner.
Q. You didn't ask him if he
was sure about that or anything, did you?
A. No, sir, I did not.