IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ATLANTA, GEORGIA

MICHAEL HAROLD CHAPEL )

GDC 845840 )

Petitioner, Pro se ) Appeal No.

) 04-11939-B

v. )

) CIVIL ACTION NO.

) 1: 03-CV-2655-CAP

HUGH SMITH, Warden )

Georgia State Prison )

Respondent )

MOTION TO CONSIDER PROOF OF POLICE AND PROSECUTION MISCONDUCT

(SUPPLEMENTAL)

Comes now Michael H. Chapel, Pro se, Appellant and moves this court to consider the evidence as described and shown in this proffer of proof of police and prosecution misconduct (supplemental) as additional and supplemental to all of the newly presented evidence as submitted to the courts in support of his petitions;

I

In his continuing efforts to investigate the factual predicate of the claims made in his Petitions for Habeas Corpus, Appellant has developed additional evidence regarding the blood spatter testimony of Dr. Brian Frist.

Among the forgeries involved in the prosecution’s presentation of photographic evidence of the crime scene discussed and presented in Appellant’s “Motion To Consider Proof Of Police And Prosecution Misconduct”, a particularly puzzling scene was presented to researchers when “Shot 2-Front Passenger Seats” (attached again to this supplement) was subjected to only 75 percent hue saturation (see attached “Shot 2-Front Passenger Seats Hue Saturated At 75 percent”).

When the Gwinnett County Medical Examiner -- Dr. Brian Frist’s blood spatter testimony was re-examined however, the purpose of that part of the forgery became clear:

CROSS EXAMINATION

BY MS. ROGAN:

Q. Dr. Frist, did you go to the scene of this incident?

A. No, I did not.

Q. So do you have -- did you examine the car in which the victim was found?

A. No, I did not.

Q. All right. Do you have any idea if there was blood in the car?

A. Yes, I do.

Q. Okay. What's your understanding of blood in the car?

A. My understanding of the car blood was that there was a significant amount of blood in the passenger seat. And in that direction going from the passenger seat out towards the passenger door ... (Continued below.)

Dr. Frist’s blood spatter expert-witness qualifications could at best be described as “fragile” in that he stated his expertise was gained only from autopsy examinations of gunshot victims and not from crime scenes. In testimony he described two “substantial” bloodstains on the passenger seat of the victim’s vehicle. That description sounds very much like the subject of this supplemental motion’s photographic forgery. The attached photographic rendering shows large [blood] stains that appear more pink than red, and is probably only a poor imitation of that presented to the medical examiner.

Such speculation is rendered moot however when it is remembered that the very first photographs of the crime scene were taken at the muffler shop crime scene through the vehicle’s windows, and the photograph “Shot 2-Passenger Seat from Outside of Vehicle” (attached again to this supplement) as verified by hue saturation testing, shows only two extremely small spots of blood on the vehicle’s passenger seat that are explained elsewhere (see “Supplemental Federal Habeas Corpus”).

II

Dr. Frist then goes on to describe bloodstains on the “driver’s” door:

(Continued from above.) ... but there was some blood on the driver's side door on the inside.

Q. On the interior of the door; that's your recollection?

A. That's my recollection.

Q. I mean, you're basing that on looking at pictures perhaps?

A. I was shown photos.

Q. Or someone told you that?

A. I was shown photos.

None of these photos were presented to the jury at this time; however we know from other analysis (The Case In Pictures, Page 4) that door photos referenced by Dr. Frist are State’s Exhibits 17 and 18 (see attached “CS-States-17-18 “). They are listed in the trial index as being photographs of the interior driver’s door (see attached “CS-States Exhibits 1-32”) but in reality were of the passenger door interior. This was determined on the first day of testimony, Police Crime Scene Technician Judy Graham and Prosecutor Scott Smeal attempted to portray these exhibits as photographs of the driver’s door in perjured testimony. They were unsuccessful when a sharp-eyed juror who could read the legend “Passenger Door” at the bottom of the photographs frustrated their attempt to lay this false foundation for later blood spatter testimony.

The apparently “legend-illiterate” and “mechanically-challenged” Dr. Frist ignored these legends and the detail shown in the photographs in determining the photographs were of the “driver’s” interior door.

The only other evidence offered regarding blood spatter was testimony by GBI tool mark and ballistics expert Kelly Fite. Mr. Fite’s ballistics expertise has been called into severe question in that he identified the alleged projectiles from Shot 1 and Shot 2 as from the same weapon. In the original motion-to-consider this was shown to be impossible unless the police were in possession of the murder weapon.

Mr. Fite’s blood spatter testimony is equally outrageous in that he identified dozens of “human” blood spots (black circles) on Appellant’s raincoat (see attached “BS-Raincoat-2”) that GBI Serologist Jennifer Wilson apparently missed (blue circles) in her careful chemical testing of that garment two years before (see attached “BS-Raincoat-1”). Fite simply “eyeballed” the garment to determine conclusively that any spot on a garment that had not been cleaned in eight years was high velocity blood spatter.

Both of these so-called blood spatter experts, Brian Frist and Kelly Fite, were called upon to do their analyses only after the first day of testimony, twenty-two days after the trial began. The District Attorney advised the Court prior to testimony that morning Dr. Frist was scheduled to testify regarding blood spatter just after CST Graham, and he presumably was to use the misidentified State’s Exhibits 17 and 18 to expand on the raincoat blood spatter ploy:

MR. PORTER: Your Honor, I can tell you that I'm not planning -- I intend to do it with two witnesses. One -- and there's an orderly break. Officer Byers was the first officer on the scene and he's testified to that. He'll testify to a later statement that Chapel made. And Dr. Frist, and we're calling him for the purpose of the autopsy. We're also calling him as an expert in blood spatter pattern analysis regarding the raincoat. And those are the only two witnesses I intend to do it, and they're discrete in facts.

THE COURT: Okay.

When the prosecution’s attempt to lay a foundation for blood spatter on Appellant’s rain jacket using Judy Graham and Scott Smeal was frustrated accidentally by the jury, Dr. Frist’s blood spatter testimony was moved to the end of the prosecution’s case, and Kelly Fite was recruited to further confuse the issue by marking up Appellant’s rain jacket in an attempt to bolster Dr. Frist’s testimony.

CONCLUSION

This supplement to Appellant’s previously filed motion further shows the lengths that the Gwinnett County Police and District Attorney went to in order to secure Appellant’s conviction. It also points-up the complexities introduced into their case through the use of such forgeries. Is it then small wonder it took two and one-half years for these criminals to prepare the prosecution’s case-at-trial and more years subsequent to his trial for Appellant to unravel their web of lies and other deceits?

I declare, under penalty of perjury, that the foregoing is true and correct.

Executed and Respectfully Submitted this 27^th day of July 2004.

Michael Chapel

GDC 845840

Wayne State Prison

Box 219, Odum, GA 31555