IN THE SUPERIOR COURT OF TATTNAL COUNTY

GROUND FOURTEEN: CRIME SCENE PHOTOGRAPH PRESENTATION TO THE JURY

A. Denying The Jury An Opportunity To Fully Examine Crime Scene Photos

The Chapel murder trial took place at the same time as the O.J. Simpson trial in Los Angeles, and both were simultaneously broadcast on Court TV. The Chapel trial judge, Fred Bishop, apparently had been watching the Simpson trial, and he was determined that his trial would not be bogged down with the kind of detail that Judge Ito was experiencing. He therefore had a tendency to rush the witnesses and the presentation of evidence. This was especially true of the presentation of the crime scene and autopsy evidence.

Prosecutor Porter took the first group of photographs, which were merely snapshots of the still pictures taken by the crime scene technicians of the murder scene, and passed them to the jury to examine. This took a few minutes, and caused a small delay in the examination of Witness Theron Smith then on the stand.

[Prosecutor Porter, Trial, Page 3204, Line 5]

MR. PORTER: All right. Your Honor, at this time, the state would move for admission of State's Exhibit Number 5 and Number 6 and Number 7 and ask that we take a moment and publish them to the jury.

THE COURT: Any objection, Mr. Moore?

MR. MOORE: Ms. Rogan's handling this witness, Your Honor.

THE COURT: All right.

MS. ROGAN: If I could just see them one more time. I don't think I have an objection to them.

[Mr. Porter presenting to Ms. Rogan]

MR. PORTER: Your Honor --

MS. ROGAN: No objection, Your Honor.

MR. PORTER: Your Honor, at this time, I'll take a brief moment from Mr. Smith's testimony and publish these photographs.

THE COURT: All right. Just a moment. Any objection, Ms. Rogan?

MS. ROGAN: No. No objection, Your Honor.

THE COURT: State's 5, 6, and 7 are admitted without objection. You can publish them.

[Mr. Porter presenting to jury]

THE COURT: Why don't you continue direct examination while they're looking?

MR. PORTER: Your Honor, if I might, they're almost finished, and I would want the jury to at least concentrate on Mr. Smith's testimony --

THE COURT: All right.

[Pause]

MR. PORTER: Thank you, Your Honor.

A bench conference then took place:

[Trial, Page 3213, Line 20]

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Are you going to be requesting to publish all these photos as they come in?

MR. PORTER: Your Honor, I think based on the last experience, there may be some photographs I want to publish, but what I'll do is wait until the end of the witness's testimony and ask that they be published.

THE COURT: Well, my concern is if we've got a lot of them, we're going to have some long pauses while they're passing through. My inclination is if you want to publish them, unless it's -- you know, I don't have any problem with that, but I think they can keep up with what's going on, to look at them and pass them around. They'll have them at the conclusion of the case anyway in the jury room. So my inclination is if y'all want to, either side, you want to publish them when you offer them in, then publish them and let's proceed on with the witness's testimony as opposed to waiting until everybody looks at them.

MR. PORTER: Your Honor, it might be worth it to do it for all of us the way medical examiner's office does, is just bring a witness down off the stand and I'll hold them and do it that way.

THE COURT: I don't have a problem with that. I don't have a problem with that, you know, if they want to testify about it, point out to them. But I think we're going to have a lot of long pauses if we wait while all eighteen of them go through the exhibits when we're looking at them.

MR. PORTER: Yes, sir.

THE COURT: What I'd like to do is either go on and publish them and let them pass them around and look at them while we continue on with that witness, fine, or bring them down and let them testify and they can -- after they're admitted, and then the jury can look at them while you're talking to them.

MR. PORTER: Yes, sir.

THE COURT: I think that would help us time wise a little bit. Okay.

[Bench conference concluded.]

These still photos were then shown rapid fire. Prosecutor Smeal stood a few feet from the jury and, without identifying or describing the content of the photos or what each was depicting, showed each of these less-than-postcard sized photos like they were flash cards. Only one or two of the jurors could adequately see the photos, and, disregarding the pleas of the jurors and the remark of Judge Bishop that Mr. Smeal was not describing the photographs, began showing the photos allowing the jurors only a few seconds to see each. At least one of these photographs was misidentified in direct testimony by Technician Judy Graham[1].

[Prosecutor Smeal, Trial, Page 3247, Line 13]

MR. SMEAL: Your Honor, at this time, the state would ask permission to publish these to the jury and rather than passing them around, if I could just be permitted to hold them up for the jury sequentially.

THE COURT: Any objection, Mr. Moore?

MS. ROGAN: We have no objection, Your Honor.

THE COURT: Go ahead, please.

JUROR: Your Honor, may we also see State's 12 and 13?

THE COURT: You'll see all exhibits when they're admitted into evidence.

JUROR: Okay. They weren't passed around.

THE COURT: Not necessarily now.

JUROR: Okay. Thank you, Your Honor.

THE COURT: All right. Go ahead.

MR. SMEAL: State's Exhibit 15.

[Presenting to the jury]

MR. SMEAL: The next photograph is State's Exhibit 16.

[Presenting to the jury]

MR. SMEAL: The next photograph is State's Exhibit 17.

[Presenting to the jury]

JUROR: Passenger side door?

MR. SMEAL: This was identified as the passenger side door.

THE COURT: You're just stating the Exhibit Number, Mr. Smeal.

MR. SMEAL: That was State's Exhibit 17. The next photograph is State's Exhibit 18.

[Presenting to the jury]

MR. MOORE: Your Honor, one thing, I noticed the cameras over here. I hope the camera's not getting the jury with Mr. Smeal being so close[2].

THE COURT: Yes, sir. I hope not as well.

MR. SMEAL: The next photograph is State's Exhibit 19.

[Presenting to the jury]

MR. SMEAL: The next photograph is State's Exhibit 20.

[Presenting to the jury]

MR. SMEAL: The next photograph is State's Exhibit 21.

[Presenting to the jury]

MR. SMEAL: The next photograph is State's Exhibit 22.

[Presenting to the jury]

JUROR: Excuse me, would you put number 15 back up there again of the photograph? She's wearing the seat belt. She's having --

THE COURT: If you have any question from any juror, write it down and pass it to the bailiff, please. Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: We're going to have problems with these photos. I think what we need to do with these photos is as they're admitted to go on and pass them and give them to them and let them pass them around while we continue on. I just think if we do it like we're doing it, we're going to get repeated questions and we're going to have -- we'll have talk with the jurors or questions posed. It's just going to be unavoidable. I think if you want to publish them after they've been admitted, hand them to them and let them pass them down the line while we proceed on.

MR. SMEAL: We've tried it both ways and, you know, the problem is it seems to be so time-consuming for them to do it, but whatever the Court wishes.

THE COURT: I think let them look at it for whatever they're worth and they can listen and continue on if you want or have the witness come down for the specifics and have them identified. But I think the pauses -- I think they're too time-consuming and I think if we pass them out, we've got some jurors on here who are just a little too active. We're going to have conversation which I don't think is appropriate.

The police had ignored this evidence in their investigation, and the prosecution had no interest in presenting it because it did not fit their theory that Chapel was the murderer. The only people that were interested in this evidence seemed to be the jury. The underscored portions of the above were the jurors trying to make sense out of the photos being flashed before them. After several attempts by different jurors were shot down by the judge, they got the idea, simply gave up and watched the show.

It would have been difficult for the jurors to see the kind of detail that shows the blood spatter on the windshield and on the driver’s headrest using the small snapshots that they were looking at. This detail shows up clearly only on enlarged photographs; however there were several sharp-eyed jurors on the Chapel jury, and, most importantly, they were interested in finding the truth, not in merely convicting Chapel.

In any event, adding a few minutes to a thirty-eight day trial does not seem to be much of a cost when a man’s life is in the balance. Judge Bishop’s “need for speed” seems not only unseemly but also highly unfair.

B. The Prosecution Hides Critical Photographs From the Jury

Prosecution Exhibit Number 12 was the photograph taken by the crime scene technicians of the front windshield taken from outside the vehicle of the victim’s automobile showing the high velocity blood spatter on the inside of that front windshield. Using a sham pretext, Prosecutor Porter was able to keep the jury from seeing this photograph.

First Joe Byars, owner of Gwinnco Muffler, identified several photographs, all of which were passed among the jurors except exhibits 12 and 13.

[Joe Byars, Trial, Page 3223, Line 10]

MR. PORTER: Your Honor, we would tender State's Exhibit Number 8, 9, 10, and 11 into evidence as having been properly identified by Mr. Byars.

THE COURT: Any objection?

MR. MOORE: No objection, Your Honor.

THE COURT: State's 8, 9, 10, and 11 are admitted without objection. Go ahead, please.

MR. PORTER: Your Honor, at this time, we would withhold State's Exhibit Number 12[3] as not having been properly identified by Mr. Byars[4].

THE COURT: Yes, sir. That would be fine.

Later Ed Byers, a GCPD police officer and a “safe” witness, was asked to identify exhibits 12 and 13 and describe what was depicted in the photographs.

[Ed Byers, Trial, Page 3230, Line 24]

By Prosecutor Porter

Q. Officer Byers -- just a second. Officer Byers, I'm going to show you what's been marked, previously marked, as State's Exhibit Number 12. Can you look at that and identify it please, sir?

A. This appears to be the vehicle that I saw that morning, the brown Lincoln Continental, with the victim still seated in the driver's seat.

Q. Does that photograph accurately depict what you observed on April 16, 1993?

A. Yes, sir, it does.

Q. And let me show you what I've had previously marked as State's Exhibit Number 13 [5], can you take a look at that and identify it please, sir?

A. Yes, sir. Again, this appears to be the front -- left front portion of the Lincoln Continental with the flat tire, left front tire.

Q. Does that photograph accurately depict what you saw on April 16, 1993?

A. Yes, sir, it does.

First the question is why was Officer Byers asked to identify these photographs and describe what they depicted? Crime Scene Technician Judy Graham took the photographs. She was the next witness, and she was the best witness to ask what she was attempting to depict in the photographs. She was not trying to show the body in the front seat in Exhibit 12. She was trying to show the high velocity blood spatter on the inside of the windshield, and she was not merely depicting a flat tire in State’s exhibit 13 but what appeared to be stains on the driver’s headrest..

Second, Exhibits 12 and 13 were never published to the jury by the prosecution, and District Attorney Porter moved to admit them after Officer Byers had mid-identified them.

[Ed Byers, Trial, Page 3232, Line 20]

MR. PORTER: Your Honor, if I may, we would move for admission of State's Exhibit Number 12 and Number 13 as photographs which have been identified by Officer Byers.

THE COURT: Any objection?

MR. MOORE: No objection, Your Honor.

THE COURT: State's 12 and 13 are admitted without objection. Go ahead, please.

Later State’s exhibits 14 through 22 were admitted into evidence and published to the jury in a hurried procedure. A juror remembering Exhibits 12 and 13 asked that the jury be allowed to examine them as well. The Court responded that the jury would see them at the time they were admitted, which of course had already taken place.

[Judy Graham, Trial, Page 3247, Line 7]

By Prosecutor Smeal

MR. SMEAL: Your Honor, at this time, the state would move to admit State's Exhibits 14, 15, 16, 17, 18, 19, 20, 21, and 22.

MS. ROGAN: No objection, Your Honor.

THE COURT: State's Exhibits 14, 15, 16, 17, 18, 19, 20, 21, and 22 are admitted without objection.

THE COURT: Any objection, Mr. Moore?

MS. ROGAN: We have no objection, Your Honor.

THE COURT: Go ahead, please.

JUROR: Your Honor, may we also see State's 12 and 13?

THE COURT: You'll see all exhibits when they're admitted into evidence.

JUROR: Okay. They weren't passed around.

THE COURT: Not necessarily now.

JUROR: Okay. Thank you, Your Honor[6].

THE COURT: All right. Go ahead.

District Attorney Porter had succeeded in denying the jury the opportunity to see the photographs that would have destroyed his case. Quad erat demonstrandum. Danny Porter and ADA Scott Smeal at that point became guilty of the attempted murder of Michael Chapel.

C. Crime Scene Technician Judy Graham Misidentifies A Photograph

In an attempt to bolster its contention that the shots that killed Emogene Thompson were fired from outside the car, in particular the first shot that the prosecution alleged was fired through the skull of the victim[7], the prosecution apparently had Technician Graham misidentify the picture of the passenger[8] door, State’s 17, as the driver door. This misidentification would have bolstered the prosecution’s allegation by portraying to the jury blood back-spatter on the driver’s door. The only photo of the driver’s side door, State’s 18, did not show any blood spatter. The one spot on the door does not show the distinctive red color of the other blood spots in the automobile[9].

[Judy Graham, Trial, Page 3243, Page 22]

Q. I'm handing you what's been previously marked as State's Exhibit 17. [Note the description at the bottom of the photograph.] Can you identify that photograph, please?

A. Yes, sir. This is a photograph of the driver's side door from the inside -- the inside of the driver's side door. The door was open. [Here is a picture of the inside of the driver’s door, and there is not a speck of blood on it. The dark spot on the driver’s console lacks the distinctive red color of the other bloodstains in the victim’s car.]

Q. And what do those marks appear to be on that door?

A. These appear to be blood spatter and maybe also some flesh up here in the corner.

Q. Does that fairly and accurately depict how that door appeared to you that day?

A. Yes.

Q. I'm handing you what's been previously been marked as State's Exhibit 18. Can you identify that photograph, please?

A. Yes. This is another picture of the same door.

Q. I'm sorry. Which door is that?

A. This is the driver's side door.

Q. Okay. And does that fairly and accurately depict how the driver's side door appeared to you that day?

A. Yes.

The prosecution ploy would have worked had it not been for a sharp eyed juror who recognized State’s 17 to be a photo of the passenger side door.

[Prosecutor Smeal, Trial, Page 3248, Line 8]

MR. SMEAL: The next photograph is State's Exhibit 17.

[Presenting to the jury]

JUROR: Passenger side door?

MR. SMEAL: This was identified as the passenger side door.

THE COURT: You're just stating the Exhibit Number, Mr. Smeal.

MR. SMEAL: That was State's Exhibit 17. The next photograph is State's Exhibit 18.

~~It was straightened out, but in the deluge of evidence to come, the damage to the jury had been done.~~ [Looking at the Index of Exhibits, this witness testified exactly what she was supposed to – Driver’s side door.]

D. The Prosecution Secures Confusing Testimony From Technician Judy Graham

Technician Judy Graham’s testimony regarding the crime scene was confusing and riddled with inconsistencies. The examples below cover State’s Exhibits 19 and 20 and are representative of this witness’ testimony.

[Judy Graham, Trial, Page 3244, Line 17]

By Prosecutor Smeal

Q. I'm handing you what's been previously marked as State's Exhibit 19. Can you identify that photograph, please? [Blue arrows added]

A. Yes. This is the picture of the floorboard in the rear of the vehicle directly behind the driver's seat. There's some blood here and just paper and stuff that was in the back of the vehicle.

Q. Okay. There appears to be some debris depicted in that photograph --

A. Yes.

Q. -- can you identify what that debris is?

A. I'm not sure what debris you're speaking of.

Q. Okay. This item here in the -- right behind the seat.

A. Okay. This is a cigarette package, a Now cigarette package. There's a Dairy Queen cup here and a Marlboro -- a couple of Marlboro packages over --

Q. Does that fairly and accurately depict how the rear floorboard appeared to you that day?

A. Yes, sir.

Technician Graham misidentifies the debris on the floorboards in front of the left read passenger seat. There was a “More” cigarette package among the debris, and she completely ignores the presence of the cufflink in the picture[10].

More important was her description of State’s Exhibit 20 [11]. This information was critical as it pertains to the position of the shooter in the backseat of the victim’s car and the trajectory of the shots.

[Judy Graham, Trial, Page 3245, Line 11]

By Prosecutor Smeal

Q. Okay. I'm handing you what's been marked, previously marked, as State's Exhibit 20. Can you identify this photograph, please?

A. This is a photograph of the passenger side front seat. This would appear to be a bullet hole in the cushion of the front seat. There's also some type of tissue matter on the seat and it also shows the glasses -- I'm sorry, not on the seat. The tissue's on the floorboard. [Even with careful examination of the photograph, the content and position of the tissue is unclear. One thing is for sure; the tissue is not on the passenger seat.]

Q. Okay. When you say tissue, what type of tissue are you referring to?

A. Probably brain tissue.

Q. Does that fairly and accurately depict the condition of that seat as you observed it on that day?

A. Yes, sir.

Were the glasses on the seat or on the floorboard in front of the console? Was there blood and tissue on the passenger seat, or were they on the floorboard in front of the console? State’s 20 shows none of these things[12], and Technician Graham’s attempt to correct her testimony was ineffective and misleading to the jury.

[2] Where was defense counsel’s mind while the prosectution was bamboozling him and the jury?