P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Wednesday, August 23, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; criminal jury trial, Judge Fred A. Bishop, Jr., presiding.]

THE COURT:  Are our jurors ready, Mr. Allen?

THE BAILIFF, MR. ALLEN:  Yes, sir.

MS. ROGAN:  Judge, can we approach on something?

THE COURT:  Yes.

[Counsel approached the bench and the following conference ensued.]

MS. ROGAN:  Judge, one of audience members came up to us after the court day yesterday and said that one of our alternate jurors, Mr. Ford, was signaling and smiling and winking, I think, at one of the audience members who he believed was an employee of the district attorney, one of the victim witness people.

MR. PORTER:  It's one of the high school -- she's a former high school volunteer with the victim witness.  She's seated on the back row in the black dress.

MS. ROGAN:  It appeared that he recognized her.

MR. PORTER:  He knows her.

MS. ROGAN:  Okay.

MR. PORTER:  He knows her.  I don't know what the relationship is.

MS. ROGAN:  Did he -- I don't remember if he mentioned that he knew her --

MR. PORTER:  No, he didn't.

MS. ROGAN:  -- during our questioning.  I'm    just --

THE COURT:  We've got so many folks like that.

MS. ROGAN:  No, I understand that.  I just --

THE COURT:  If you asked me did I know somebody I probably, -- may be the people I know, but I didn't recognize the name or whatever.

MR. PORTER:  Apparently, they went to school together, went to high school together, because they're both recent graduates.

THE COURT:  Is that the fellow sitting on the front row?

MR. PORTER:  Yeah.

MS. ROGAN:  Yes.

MR. PORTER:  The guy's having a great time.

MS. ROGAN:  He's wearing a gold chain.

THE COURT:  Yeah.

MS. ROGAN:  He's an alternate.  I think he might even be the fourth alternate.

MR. PORTER:  He's the fourth alternate.

THE COURT:  Is he?

MS. ROGAN:  But I'm concerned.  I wanted to bring it to the Court's attention that he did seem to know somebody from the DA's office and to say that we didn't know that before.  I don't know if it will have any effect on him or whether it's going to matter.

THE COURT:  Well, I think folks during voir dire, they do the best they can.  If you say, well, do you know anybody on this staff or that staff -- you know, if you asked me half the time about various staffs of other judges' offices, you know, likely as not there'd be somebody I'd know that I wouldn't think about.  I don't find that unusual and I think that's about as good as you can do if it's an honest -- nobody's trying to conceal anything, but I think it's just part of the trial.  What are you requesting?

MS. ROGAN:  Well --

MR. PORTER:  Your Honor, it might be worth it to bring him in and give him some instruction.  Either that or allow the defense to question him.

MS. ROGAN:  I would like to ascertain that it's not going to affect his impartiality in the case.  He may not have been aware that his friend was --

THE COURT:  Well, I don't contemplate another voir dire, and I don't contemplate questions from the counsel.  If you have something you want me to ask him, then I'll consider that.

MS. ROGAN:  That would be fine.  If you would ask him if he recognized someone in the audience yesterday.  I want to ask even if he knows she works in the DA's office, because if he doesn't know that, it's really irrelevant.

MR. PORTER:  I'm not sure he does know that.  She doesn't -- she doesn't anymore.

MS. ROGAN:  If she doesn't work in the DA's office, it doesn't concern us.

MR. PORTER:  I mean, I have a volunteer program in joint association with the school system and they send kids like for extra credit, and Brooke was one of the ones that came.  She graduated, she's done, and she hasn't been here since school.

MS. ROGAN:  Perhaps simply if we could just find out if he did recognize anyone in the audience and whether the fact that he is acquainted with this person will have any effect on his ability to be fair and impartial in this case without --

THE COURT:  Is she here today?

MS. ROGAN:  -- directing his attention to the  fact --

MR. PORTER:  Yes.  She's seated between Stan Hall and the man in the white shirt.  She's in a black dress.

THE COURT:  Is she just here --

MR. PORTER:  She's just watching.

THE COURT:  Well, what do you think, Mr. Moore?

MR. MOORE:  Your Honor, I think what Ms. Rogan said, if the Court would inquire if it would affect his impartiality.  I think at this point that's about all we could do.

THE COURT:  Well, I think the questions were 'do you know somebody in the district attorney's office,' and if she's not in the district attorney's office when we voir dire --I mean, the question's not 'do you know anybody who's ever worked in the district attorney's office,' and I think you've got a responsive answer, you know, if that's the -- and that was the question, I think, as I recall it.  And I guess even, in fact, he knows somebody who used to work in the DA's office, that's not a matter totally for voir dire, and I don't think -- and I guess my question is it proper to go back and voir dire.  I'm not sure it is.  I mean, is this like saying, are you related to any of the witnesses, and if they're divorced from somebody that they would have been related to before they got divorced, but now they're divorced, and said, well, you know, my ex-brother-in-law is -- you know, and you didn't ask him that.

MS. ROGAN:  Uh-huh.

THE COURT:  I don't think that's --

MS. ROGAN:  Well, we wanted to bring it to the Court's attention.

THE COURT:  -- I don't know.  I just don't that that reopens it.  If she's a distraction, we might --

MR. PORTER:  Your Honor, with Mr. Ford, it's hard to tell what is a distraction.

THE COURT:  Well, I agree with you.

MR. PORTER:  I think Ms. Bolden is more of a distraction than Ms. Clark.

THE COURT:  I don't know that I have any authority to tell them to sit on opposite ends of the jury box.

MS. ROGAN:  He had a new one today.  Wait and see.

THE COURT:  Well, I'm inclined to -- I don't hear from what you're saying that there's been any failure to respond to a voir dire question.  It seems to me it's just an error that didn't get covered in voir dire.

MS. ROGAN:  I didn't recall what his answer was, and there were several people who knew other employees and said it wouldn't affect them.

THE COURT:  Well, from what I'm hearing Mr. Porter say, she's not an employee.

MS. ROGAN:  Right.

THE COURT:  And if she's a former employee, the question wasn't 'do you know anybody who's ever worked at the DA's office.'

MS. ROGAN:  Right.

THE COURT:  The question was 'do you know anybody who works in the DA's office.'

MR. PORTER:  She was never even an employee in the technical sense.

THE COURT:  Yeah.

MR. PORTER:  She was a volunteer intern.

THE COURT:  I'm just not inclined to go back into it.  I don't --

MS. ROGAN:  Whatever you decide.  We just wanted you to know about it and not --

THE COURT:  And if there's something else develops and you want to reinquire into it, then fine.

MS. ROGAN:  Okay.

THE COURT:  But I think everybody had their chance on voir dire, and I think if there's some acquaintance of some kind that didn't get covered on voir dire, I guess every voir dire's that way.  Nobody ever asks all the questions maybe as it turns out you should have or wish you had or could have or whatever.  I'm inclined to just leave it as it is and if we need to revisit it, why,  then make it known.

MR. PORTER:  If I might note just for the record, at the defense request, we have told all the people involved in the victim witness program to remove the badges that they have.  She's not wearing any insignia --

THE COURT:  Also, if we get the victim side in, one of my concerns was victim witness escorts --

MR. PORTER:  I'm not going to --

THE COURT:  -- you know, they tend to hover over them and pat them on the back, and if they're not crying, they invoke some tears, you know.

MR. PORTER:  I've had three victim witness people in here with the family the entire time, at least one at any given time, and I don't think the Court has observed any of that, and I certainly haven't.

THE COURT:  I haven't really looked for it, but I know in the past, you know, they get some -- you know, it's sort of like everybody's okay until you get an escort patting them on the back and caressing their hand, and then everybody gets worked up and starts crying when, you know, we don't have a problem to start with.  I don't think that's appropriate.

MR. PORTER:  Your Honor, they're not doing -- the victim witness people are bringing them outside.

THE COURT:  Okay.

MR. PORTER:  The bailiffs are calling for them.  As a matter of fact yesterday, they were throwing them at us before I could even call them.  And so I got them to stop because they -- when you tell me to call your next witness, you're talking to me, and I'll turn to them and get my next witness.

THE COURT:  Okay.

MR. PORTER:  Then I think we've got that worked out.  Your Honor, I don't think you have to worry about that.

THE COURT:  Okay.  Anything else?

MR. PORTER:  No.

MS. ROGAN:  I don't think so.

MR. PORTER:  Unless you want to revisit the issue of the tape.

THE COURT:  Yeah, I was going to raise that.  Well, maybe now's a good time to talk about that.

MS. ROGAN:  Okay.  I got through everything last night and we're ready to have our hearing whenever the Court's ready.  There was one problem in that the tapes that I got, and I don't know if there was a problem from the DA's office or from our photocopy -- I mean, copy of the tapes.  They were both blank, 2 and 3 were blank, so I couldn't watch the redacted tapes, but what I did was watch the original tapes and follow the transcript and I could figure out, based on the Court's previous rulings whether it was redacted. 

THE COURT:  Okay.  Why don't we plan on, when we recess for the afternoon and send the jurors home, let's just stay over this afternoon and sort of -- you can make known what your observations were, your notes were, on that.

MS. ROGAN:  That would be fine.

THE COURT:  And if we can't resolve it this afternoon, at least everybody will know at this point where we apparently stand, and we'll expedite it however need be tonight or in the morning or whatever.

MS. ROGAN:  Okay.  The one issue that I couldn't resolve from what I had to do last night was at the very end when Mr. Chapel's getting undressed --

MR. PORTER:  It's audio only.

MS. ROGAN:  It's audio only.  I figured that it was, but I had no way to tell, so --

MR. PORTER:  Is that on the copy that we provided you?  Did you have the copies or did you make copies of the copies?

MS. ROGAN:  We made copies of the copies, and I don't know if I got the original of the copies.

MR. MOORE:  We made copies and I hadn't look at mine, so I don't know if mine was okay or not.

MR. PORTER:  I'll go get somebody to just check them.  If they're blank, we'll get you another copy.

MS. ROGAN:  Yeah.  It was just the ones I had.  It said channel 2 and it was a blue screen and that's all.

MR. PORTER:  That doesn't sound right.

MS. ROGAN:  If we could get a copy, that's okay.

MR. PORTER:  But if there's a problem, let me know, and we'll get you another copy.

MS. ROGAN:  Okay.

THE COURT:  Okay.

MS. ROGAN:  So you -- I mean, my only concern was I don't know when that video turns off.  Is he handed the jail clothes or --

MR. PORTER:  No, not on the video.  It's before that.

MS. ROGAN:  Before that point.

MR. PORTER: It's at some point where it says this terminates the interview or this ends the interview or there's a cutting off point verbally --

MS. ROGAN:  Okay.

MR. PORTER:  -- and from then on it's just blank.

MS. ROGAN:  And then it's just audio, and everything that's in the transcript you hear is on the audio.

MR. PORTER:  Is on the audio.

THE COURT:  Okay.  Has everybody got everything they need as far as the case goes, Mr. Moore, you and Ms. Rogan?  Is the space working out okay?

MR. MOORE:  Yes, Your Honor.  We've been transporting stuff up there, and I've made two trips down there this morning to get stuff.

MS. ROGAN:  Yes, it's very convenient.

THE COURT:  Okay.  Everybody got what they need?

MR. MOORE:  We believe so, Your Honor.

THE COURT:  Mr. Porter?

MR. PORTER:  Yes, sir, as far as I know.

THE COURT:  Okay.  All right.  Let's crank it up.

[Bench conference concluded.]

THE COURT:  Is the state ready?

MR. PORTER:  The state's ready, Your Honor.

THE COURT:  Ready, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Bring the jurors in, please.

[The jurors were escorted to the courtroom.]

THE COURT:  Good morning, ladies and gentlemen.  Everybody doing okay?

[Jurors respond]

THE COURT:  Good.  Good.  If you need anything, make it known to the bailiffs and we'll assist you as best we can. 

Mr. Porter and Mr. Moore, do we have the exhibits available okay?  Those were secured last night, and those exhibits are in the courtroom and they're available?

MR. PORTER:  Your Honor, they're here.

MR. MOORE:  Yes, Your Honor. 

THE COURT:  All right.  Okay.  Call your next witness, Mr. Porter.

MR. PORTER:  Your Honor, the state calls Allen Robertson.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Robertson, if you could take the witness stand up here, please.

[The witness stepped to the stand.]

THE COURT:  If you'll administer the oath,      Mr. Porter.

MR. PORTER:  Are you all settled?

THE WITNESS:  I think so.

MR. PORTER:  Mr. Robertson, if you could raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     ALLEN ROBERTSON

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   You can put your hand down and just settle back.  Could you tell us your name, please.

A.   Let me get my breath.

Q.   I'll wait for a second.  Would you like a glass of water?

A.   No.  I apologize to the Court.  I've been sick.

THE COURT:  Take your time.  If you need to pause or need a glass of water, why, we'll provide it.

BY MR. PORTER:

A.   My name is Allen Robertson, R-o-b-e-r-t-s-o-n.

Q.   And Mr. Robertson, can you tell us how you're employed?

A.   I'm self-employed.

Q.   And what type of work you do?

A.   I have a carpet cleaning service.

Q.   Do you have any background in law enforcement?

A.   I was a deputy sheriff at the Gwinnett County sheriff's department in 1972 for a short time.

Q.   Let me ask you, did you have occasion to be on Peachtree Industrial Boulevard in the evening hours of     April 15, 1993?

A.   Yes, sir, I did.

Q.   I'd like to go back earlier in the evening.  Where were you earlier in the evening about eight o'clock?

A.   I was over at the hospital, North Fulton, visiting a friend that -- well, my very best friend at the time.  He was in the hospital.  He had a brain tumor.  I was visiting him.

Q.   And was that the first time you had visited him over there?

A.   Yes.

Q.   About what time or let me ask you this:  About what time of day or night were you there?

A.   At the time when I was over there, I didn't really, you know, have a -- you know, I didn't really look at the time.  I'm just approximating the time that I was over there was sometime around -- I'd say around 7:30, eight o'clock.  It was somewhere in that neighborhood was when I got there.

Q.   Okay.  Now --

A.   It was before dark.

Q.   All right.  Now, let me ask you, did you hear them announce the closing hours, the end of visiting hours?

A.   No, sir, I didn't.

Q.   Okay.  Did you discuss with anyone the possibility of you staying after visiting hours had ended?

A.   Well, I talked with my friend's wife.  I said, 'If you don't care, I'd just like to' -- in fact, she asked me, she said, 'You're welcome to stay on a little while if you want to, you know, after hours.  I'm sure they won't say anything.'  And I said, 'Well, I'd just like to stay just a little while.'

Q.   All right.  Did you in fact stay a little while after visiting hours -- after visiting hours ended?

A.   Yes, sir.

Q.   About how long, do you think?

A.   I'd say somewhere around thirty minutes, thirty, forty minutes, something like that.

Q.   Now, once -- and did you leave at that time?

A.   Right after that, yes, sir, I left for home.

Q.   Okay.  Now, when you drove -- had you driven the route between North Fulton Hospital and your home before that night?

A.   No, sir.

Q.   Have you driven it since?

A.   No, sir.

Q.   Can you give us an estimate of about how long it took you to drive from North Fulton Hospital to Peachtree Industrial Boulevard at approximately the Gwinnco Muffler?  Are you familiar with that location?

A.   Yes, sir.  I'd say approximately forty -- forty, forty-five minutes.

Q.   And were you paying attention to the time at that point?

A.   Not really.  I was -- it was kind of rainy that night and I was just, you know, just easing along.  I, you know, I didn't -- I wasn't looking at my watch or, you know, I didn't have any certain place or time to be at, you know, so I wasn't really paying any attention to the time.  I was just heading towards the house.

Q.   Okay.  Now, you have to go by the Gwinnco Muffler to get to your house; is that correct?

A.   Well, the way I went, that was my best way to go, so that's the way I went.

Q.   Now, let me ask you, as you passed the Gwinnco Muffler, did you notice anything?

A.   Yes, sir, I did.

Q.   Can you tell the jury what you saw?

A.   Well, as I was driving -- that would be heading north.  At that time, I was heading towards home.  And as I went by, me being kind of, I guess, nosy, I don't know, but anyway I was just driving, and I just sort of glanced over to the left, and I saw two vehicles, and one of the vehicles was a police car.

Q.   How did you know it was a police car?

A.   Well, to the best of my knowledge I saw that kind of like a gold stripe down the side, and I recall the lights being on, the blue lights.

Q.   Well, that would be pretty obvious it was a police car.

A.   Yes, sir.

Q.   Was there any other vehicle there?

A.   Yes, sir.  There was one in front of it.

Q.   Can you describe that car?

A.   It was a -- like a brown, just a regular, you know, regular -- it looked like a intermediate -- well, a little bit bigger than an intermediate-sized car, brown car.

Q.   All right.

A.   Four door.

Q.   And did you notice anything else about the car, about the brown car?

A.   I believe it was a four door.  Did I notice what, sir, I'm sorry?

Q.   Did you notice anything else particularly in the trunk area?

A.   As I was going by, I had my rearview mirror where I just kind of looked like that [indicating] a little bit, and then my other mirror where, you know, I was just going to -- the highway kind of veered a little bit towards the right as it goes past Gwinnco, you know.  It's like it splits off where you get in the right lane.  I looked and I -- it seemed like I saw the trunk.  Looked like it was -- like a Continental kit.  That's what I used to call them back in the '60s.

Q.   Okay.  Now, by a Continental kit, do you mean a bump in the trunk?

A.   The middle thing -- yes, sir.

Q.   That looks like a -- that used to carry a spare tire?

A.   Yes, sir.

Q.   Do you happen to know what type of car the Continental kit was on?

A.   Well, I don't know what that particular -- but I know back in those days that it was on like the Lincoln, the Lincoln-Mercury type car, I believe it was now.  I'm not no expert on cars, but I believe I'm somewhere right there in that.

Q.   And did you think anything about what you saw?  Did it strike you as unusual?

A.   No, sir.  I just thought that it was a, you know, just a regular -- just like I might see any other time, you know, somebody getting pulled over for DUI or traffic -- some kind of traffic violation or something.

Q.   When did it occur to you that it might be important, that what you'd seen might be important?

A.   When I heard it on the news there'd been a happening at the Gwinnco Muffler.

Q.   All right.  And did you contact the police or -- did you contact the police with your information?

A.   No, sir, I didn't.

Q.   All right.  Did they contact you?

A.   Yes, sir.

Q.   Now, Mr. Robertson, I'm going to show you what we've had previously marked as a diagram of the Gwinnco Muffler, and I'm going to stand over here so that you can reach it.

A.   All right.

Q.   Sort of turn it so we can let the jury see it.  And these cars are magnetized.  They are not to scale, but this drawing is to scale.

A.   All right, sir.

Q.   Could you take the vehicles, the two vehicles that I've placed on the counter and put them where you believe you saw the police car and the brown car with the Continental kit?  And I'll hold the board.

A.   I'll give you an approximate --

Q.   You say about there?

A.   Somewhere in there in that neighborhood.  Now, I'm going to be -- this might be here.  I was thinking it was in the deceleration lane.  I guess that's what you call that, I'm not sure, like when you want to slow down and go into there.  Is this supposed to be the highway part here going on down   the --

Q.   Yes, sir, this is the highway here.

A.   -- and then this is like the turning-off lane.  That's -- to the best of my knowledge, that's what I thought it was at.  Yes, sir.

Q.   All right.  And I'm going to put this right here.  Did you see any other vehicles in the parking lot of the Gwinnco as you drove by or did you notice any other vehicle?

A.   Yes, sir.  I saw a S-10 Chevrolet, one of those small pickup trucks, parked -- I couldn't tell because it kind of rises there a little bit, but it was close to like where they have a little parking part there, and then I think in front of where the parking -- concrete or whatever it is, asphalt drops off, I think there's some gravel or used to be.  It was parked in that area there like where people push their cars out right after they worked on them or something.

Q.   All right.  Now, let me ask you, when you drove by were you able to identify the agency that the police car came from?  Could you tell what agency it was, what police agency?

A.   I didn't read anything on the side of the vehicle, but by what I've seen in Gwinnett County, I -- going by what I've seen in the past, it was a Gwinnett County police car.

Q.   All right.

A.   I know it wasn't a State Patrol car or a detective car.  It was like a --

Q.   What you've seen as a uniform police car?

A.   Yes, sir.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Robertson, my name is Johnny Moore.  I represent Mr. Chapel, and I have a few questions I'd like to ask you.  Now, what time did you leave the hospital, do you believe?

A.   Well, at the time that I made my statement, I did not know what time the hospital closed, visiting hours, so at that time I said somewhere around -- let's see, I think I said somewhere around 9:15, but I believe I left around a quarter till nine, somewhere in that neighborhood.

Q.   Okay.  The visiting hours ended at what time?

A.   I was told 8:30.  I did not know that.

Q.   Okay.  And when you got home, did you watch anything on TV or watch the news or anything when you got home?

A.   No, sir.  I had a satellite dish at that time and I was just bumping them through, just, you know -- my wife gets on to me about that.

Q.   That's a common problem, I think.  But you don't remember anything you watched then or anything?

A.   Well, no, not really.  I was just, you know, I had just visited with my friend, and he was in bad shape, and I was really just trying to -- I was really upset the shape he was in.  He died of a brain tumor, and I just -- you know, at that time, I was really upset.

Q.   Okay.  I'm going to show you what's been marked as Defendant's Exhibit Number 2 and ask you if you could look at that, and if any of those cars there look like the car you saw, if you'd tell us which one and tell us the number.

A.   Well, to the best of my knowledge, of all these that I'm looking at, this one right here, number 6, would be close -- the closest to it matching what I thought I saw that night.

MR. MOORE:  Your Honor, since he has difficulty getting off the stand, I propose to publish this to the jury and pass it around.  I won't stop questioning him or anything and delay the proceedings.

THE COURT:  That would be fine.  Go ahead.

[Mr. Moore publishing to the jury]

BY MR. MOORE:

Q.   Now, you talked to our investigator, Mr. Miller, back in August of this year; do you recall that?

A.   Yes, sir.

Q.   And you had told him that you were traveling Peachtree Industrial Boulevard to Gwinnco Muffler at approximately ten to 10:15; do you remember that?

A.   I was going by what I had put on my statement at that time back two years ago.  I mean, until I reviewed the -- you know, what I had said, I didn't even remember.  I just had to go by what -- but after I realized the place had closed at 8:30, I must have went by a little earlier.

Q.   Okay.  But back in April 1993 --

MR. MOORE:  Can I get you to mark that?

[Defendant's exhibit was marked for identification by the court reporter.]

BY MR. MOORE:

Q.   Mr. Robertson, I'm going to show you what's been marked as Defendant's Exhibit Number 9 and ask you if you can identify that?

A.   Yes, sir.

Q.   And what is it?

A.   It's a -- it's one of the statements that I gave back in '93 of what the time and just what happened, what I recalled.

Q.   Okay.  And if you would, read that, if you --

A.   All right.

MR. PORTER:  Your Honor --

BY MR. MOORE:

Q.   I don't mean to read it out loud.  Just read it to refresh your memory.

A.   Oh, okay.

MR. PORTER:  I was going to make sure, Your Honor.  I don't believe Mr. Robertson can do that.

THE WITNESS:  All right.

BY MR. MOORE:

Q.   Okay.  Is that the statement you gave the police officers back in 1993 shortly after the incident occurred?

A.   Yes, sir.  Yes, sir.

Q.   And at the time, you told them ten to 10:15; is that correct?

A.   When I went by Gwinnco, yes, sir.

Q.   Okay.

A.   That was, you know, my guesstimate.

Q.   Okay.  And is it likely -- isn't it likely that your memory would have been fresher back then than it is now about the times?

A.   As far as guessing the time?

Q.   Yes.

A.   Yes, sir.  It would be -- it would be just as, you know, about as good now as then or then as now.

Q.   Okay.  Now, you changed the time today.  Did someone tell you to do something different about when the hospital closed or something since that time?

A.   No, sir.  Nobody told me to, but when I found out  the times was 8:30, I'm just going by how long it took me to get home in my own mind.  I was thinking the closing time were around nine o'clock.

Q.   Okay.  And who told you what time the closing time was?

A.   I don't know whether it was your investigating people or the prosecution.  I don't -- I say, it might have been the lady outside a while ago.  I heard something about 8:30.

Q.   Okay.  Is she the lady that works for the DA's office?

A.   No.  I mean -- no, not the lady, but the gentlemen there.  I can't even think of his name.  It's on the -- the attorneys, one of the attorneys there.  I can't think of his name.

Q.   Mr. Porter?  Is he in the courtroom?

A.   Is that Mr. Porter?

Q.   Is he in the courtroom?

MR. PORTER:  Your Honor, I'll stipulate that after our interview with Mr. Robertson, the state inquired and is prepared to present evidence regarding the closing time of North Fulton Hospital.  We informed Mr. Robertson of that.

THE WITNESS:  Yes.

MR. PORTER:  This was prior to the rule of sequestration being invoked by the defense or the state, and I'll stipulate that my office provided him with that information.

THE COURT:  Okay.  Mr. Moore?

MR. MOORE:  Your Honor, I'd ask what date that was because the rule of sequestration was invoked when you started selecting the jury and that was almost three weeks ago now.

THE COURT:  But what does the rule say about talking to your own witnesses?

MR. MOORE:  Well, Your Honor, I think you can talk to them and ask them what they may have heard or anything, but to suggest to them what they should testify to or tell them what somebody else is going to testify to is a clear violation of the rule of sequestration, and we'd ask the Court to instruct the jury about that.

MR. PORTER:  Your Honor, there has been no violation.

THE WITNESS:  I --

THE COURT:  Just a moment.

MR. PORTER:  The state in this case interviewed Mr. Robertson in preparation for trial.  As Mr. Moore knows, we sat in here eight hours a day after the rule had been invoked.  I personally went to Mr. Robertson's house.  At that time, we examined and decided after talking to him that we would look into the North Fulton closing time.  This had to be prior to jury selection, and we informed him of that and let him draw his own conclusions.  And for Mr. Moore to insinuate that there's been any violation of the rule of sequestration is unfounded and without basis.

THE COURT:  All right.  Mr. Moore, anything else?

MR. MOORE:  Your Honor, I still ask Mr. Porter to state what date it was.

MR. PORTER:  Your Honor, I can't recall the exact date.  I interviewed a hundred and some odd witnesses in this case.  Mr. Robertson may remember.  I went to his house.

THE COURT:  That was prior to yesterday?

MR. PORTER:  It was prior to the beginning of jury selection, Your Honor.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  I'll accept that if Mr. Porter says it's prior to jury selection.

THE COURT:  All right.  Go ahead, Mr. Moore.

BY MR. MOORE:

Q.   Now, Mr. Robertson, tell us about the lighting conditions out there that night when you drove by the Gwinnco Muffler Shop.

A.   Well, the lighting is -- it's not like driving in the middle of Las Vegas or nothing, but it's just regular moonlight, I guess you'd call it.  It was -- it was where you can see, but not -- it's not anything illuminated real bright or anything.  It's just -- the light that I could really tell out there was really the one that shines off of -- on the Gwinnco Muffler building.

Q.   Okay.  Was it light enough for anybody to see any details about anybody in the car or anything?

A.   I'd say if you were going down south on the other side -- like I was going north.  On my side, you'd have to slow down and really just have to kind of eyeball it real good just to really -- if you wanted to look, you'd have to just really be kind of slowing down to look.

Q.   Okay.

A.   But on the other side, I'd say you could see better because you'd be closer.

Q.   Okay.  There wasn't any moon on that particular night, was there?  Wasn't it raining that night?

A.   Yes, sir.  It was, you know, inclement weather.  It was raining and spot showers and that kind of stuff.

Q.   Okay.  Was it raining when you passed the Gwinnco Muffler Shop?

A.   It was just kind of like a drizzle, a mist.  It wasn't any -- it wasn't a full blown rain or nothing like that.  It was just kind of misty.

Q.   Okay.  And most of what you'd see was from the headlights on your car, wasn't it?

A.   Yes, sir.  I'd have to say that would be true.  You could see it was -- if you -- like I said, if you slowed down, which I didn't do, I just kind of went on, but if you wanted to look real good, I could say -- I could say you could see, you know, if you wanted to let down your window and just look.

Q.   Okay.  If somebody was really trying to look?

A.   Yes.

Q.   Now, how fast were you driving; do you remember?

A.   I'm just going to guess.  I'd say forty, forty-five.

Q.   Mr. Robertson, whatever the closing time was at the hospital, you said you'd stayed about a half an hour after the closing time; is that correct?

A.   I'd say it was between -- you know, I can't pinpoint it, but I'm just going by fifteen to thirty minutes, somewhere in that neighborhood.

Q.   Okay.  Was the man's wife still there when you left?

A.   Yes, sir.

Q.   And she stayed after you left?

A.   Yes.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 3, and I know you have trouble walking, so I'm going to bring this up to you --

A.   All right, sir.

Q.   -- and ask you to look at it and see if you can recognize that area of that map.

A.   Yes, sir.  The only thing I see that might be wrong is these arrows might be backwards.

Q.   Okay.  But if this were on the left-hand side of the road and you were going north, would it be in the right place, if the Gwinnco Muffler Shop was on the left-hand side and you were going --

A.   And I was going north?

Q.   Yes, sir.

A.   Yes, sir.  That would be -- that would be it right.

Q.   Yeah.  I believe you're correct that the arrows are going the wrong way.

A.   Yes, sir.

Q.   Because the Gwinnco Muffler Shop is on the left-hand side when you're going north.

A.   Yes, sir.

Q.   Okay.  If you would, on that plastic overlay, would you draw where the two cars were and put an arrow pointing which way they were going, the police car and the -- and tell us which one is which.

A.   I'll put a P for police and then --

Q.   Okay.

A.   I don't know what to put there.

Q.   Just leave -- you can leave the other one blank if you want to.  If they know which one's the police car, they'll know the other one.

A.   All right.  Then I'll just put a arrow like --

Q.   If you would, too, mark those arrows that you discovered that are wrong where the road is there, which way.

A.   I'm right shaky.

Q.   Thank you, Mr. Robertson.

A.   Yes, sir.

MR. MOORE:  Your Honor, I would tender -- I need to get it marked first, I'm sorry, Defendant's Exhibit Number 10, which is the markings on the plastic overlay over D-3.  I would tender that at this time.

[Defendant's exhibit was marked for identification by the court reporter.]

MR. PORTER:  Your Honor, I would assume that this Court is going to make the same ruling if the state has the same objection.

THE COURT:  All right.  It's admitted over objection.  We'll revisit that when it goes out.

MR. MOORE:  Your Honor, because of his difficulty getting down, I would ask to pass this around to the jury, also, to allow them to look at it.

THE COURT:  Any objection?

MR. PORTER:  Your Honor, we would object at this point.  I think it can be displayed, but I think that passing it around, the Court has restricted --

MR. MOORE:  I think it's big enough they can see it, Your Honor.  I won't make an issue of it.

THE COURT:  All right.

MR. MOORE:  I'll just display it for the jury so everybody can see it.

[The exhibit was displayed before the jury.]

BY MR. MOORE:

Q.   Mr. Robertson, you had said earlier you were paying attention.  Was that because of your training as a -- perhaps as a deputy sheriff that you watch more closely than the other people might?

A.   Well, no, sir.  I don't think that would have anything to do with it, but I used to travel a lot back in my earlier days, and I just always was a observer to watch everything on the highway.

Q.   Okay.  And that truck that you saw at the muffler shop, do you remember what color it was?

A.   I believe it was white.

Q.   You mentioned earlier that the police contacted you.  Do you know how they knew to contact you?

A.   They didn't -- they didn't really tell me.  They just -- I don't guess I do.

MR. MOORE:  No further questions.

THE WITNESS:  All right.

THE COURT:  Redirect?

     REDIRECT EXAMINATION

BY MR. PORTER:

Q.   Mr. Robertson, I just had one other question, and I'd ask you to look at that statement, the defense exhibit that you were shown.

A.   Yes, sir.

Q.   Down at the bottom you indicated the time in your statement of April 23; is that correct?

A.   Yes, sir.

Q.   What is the following sentence after you wrote the time?

A.   'I'm not sure.'

Q.   Thank you.  That's all the questions I have.

THE COURT:  Recross?

MR. MOORE:  No more questions, Your Honor.  But while he's on the stand, I would tender Defendant's Exhibit Number 9, which is the statement he gave to the police back in April 1993.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, the state has no objection for the record only.  It's admissible for the record only.

MR. MOORE:  Your Honor, we believe it's admissible as an exhibit because it shows the different time than what he's testified to here.

MR. PORTER:  Your Honor, that's been brought up through the testimony of the witness and explained.  Under the rules of evidence, the witness's statement may not go out with the jury.  It can be tendered for the record only.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I'll let the Court rule on that.

THE COURT:  I believe you can use it for impeachment purposes, but insofar as going out, it's refused.

MR. MOORE:  Will it be admitted for the record?

THE COURT:  Yes, sir.

MR. MOORE:  That's all the questions I have.

THE COURT:  All right.  Anything else of this witness, Mr. Porter?

MR. PORTER:  No, Your Honor, nothing else from this witness.  Your Honor, we would ask that           Mr. Robertson be allowed to be excused today.  He's available.  He lives in the north end of the county and we'd ask that he be excused and allowed to go home.

THE COURT:  All right.  Do you want him on call?

MR. PORTER:  Your Honor, the state does not foresee recalling Mr. Robertson, but I know he's under defense subpoena, too, and I can't --

MR. MOORE:  Your Honor, I don't foresee recalling him either, but I would ask that you just keep him on call just in case.  I don't think he'll have to be called.

THE COURT:  All right.  You'll be subject to being recalled, Mr. Robinson.  You can come down.  Thank you.

THE WITNESS:  Thank you, sir.

THE COURT:  You need some assistance?

THE WITNESS:  No, sir.  If I fall, y'all can help me up.

THE COURT:  Take your time.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. PORTER:  We call Joan Shattuck to the stand.

[The witness was called to the courtroom.]

MR. PORTER:  Ms. Shattuck, can you take the witness stand right here.

THE WITNESS:  Okay.

[The witness stepped to the stand.]

MR. PORTER:  Can you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     JOAN SHATTUCK

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Could you state your name, please.

A.   Joan Shattuck.

Q.   And how are you --

THE COURT:  Would you spell it for us, please?

THE WITNESS:  S, like Sam, h-a-t-t-u-c-k.

THE COURT:  Thank you.

THE WITNESS:  Uh-huh.

BY MR. PORTER:

Q.   Can you tell us how you're employed, please.

A.   I'm employed at North Fulton Regional Hospital in Roswell, Georgia.  I'm the manager of patient relations and volunteer services.

Q.   And what are your duties in patient relations and volunteer services?

A.   I'm actually in, as far as the patient relations are concerned, I'm the patient advocate at the hospital, the patient representative.  I act as liaison between the patients and the various departments in the hospital.

Q.   And how long have you worked at North Fulton Hospital?

A.   Ten years.

Q.   I'm going to call it North Fulton Hospital.  That's how I'm used to it.  During that time, and let me call your attention specifically to April 1993.

A.   Uh-huh.

Q.   Are you aware of the ending of visiting hours or the time of the ending of visiting hours?

A.   Yes.

Q.   And can you tell us what time that is?

A.   8:30.

Q.   Is that strictly enforced?

A.   No.  Not all the time.  Uh-uh [negative].

Q.   And people are allowed to stay afterwards generally?

A.   Oh, yes.  Uh-huh.

Q.   And let me ask you, on April 15, 1993, were the closing hours or the end of visiting hours 8:30?

A.   I would assume they are -- they were because they've always been -- they've been 8:30 for as long as I can remember.

Q.   All right.

A.   Uh-huh.

Q.   Now, are the ending of visiting hours announced?

A.   Yes.  At 8:15, the visiting hours are -- or the operator says that the visiting hours will be over within fifteen minutes.  And then at 8:30, the operator announces that visiting hours are now over.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE WITNESS:  Uh-huh.

THE COURT:  Mr. Moore?

MR. MOORE:  Ms. Rogan will handle it.

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good morning, Ms. Shattuck.

A.   Good morning.

Q.   Did you see Mr. Robertson, the man who was just leaving the courtroom --

A.   Uh-huh [affirmative].

Q.   -- as you were coming in?

A.   Uh-huh [affirmative].

Q.   Did you see him prior to coming in while you were waiting for Court to begin today?

A.   I saw him in the waiting room, uh-huh [affirmative].

Q.   Okay.  Did you speak to him at all this morning?

A.   Just said hello.

Q.   Did you mention to him anything about the visiting hours at North Fulton Hospital?

A.   No.  No.

Q.   Had you ever seen Mr. Robertson prior to this morning?

A.   Not that I recall, no.

Q.   So you never saw him at North Fulton Hospital?

A.   No.

Q.   In fact, you probably work during the daytime hours, don't you?

A.   Yes, I do.

Q.   So you wouldn't have been there during the evening that we were just discussing?

A.   Not normally, no.  Occasionally, but not normally.

Q.   You told us on direct examination that you assumed that visiting hours were the same in April 1993 as they are now?

A.   Well, they were the same in April.  They have been the same for as long as I can remember, uh-huh [affirmative].

Q.   And you mentioned that an announcement is made over the intercom, but no one goes around from room to room and forces people to leave unless it's an intensive care situation or someone whose visiting has to be restricted?

A.   That's correct.

Q.   Is that correct?

A.   That's correct.

Q.   And so you have actually no personal knowledge at all as to what time Mr. Robertson may have left the hospital that night?

A.   No, I do not.

Q.   Or how long after the visiting hours were over he may have stayed?

A.   No.

Q.   Okay. 

MS. ROGAN:  Thank you.

THE WITNESS:  Uh-huh [affirmative].

THE COURT:  Redirect?

MR. PORTER:  I have no redirect, Your Honor.  We would ask that Ms. Shattuck be allowed to return to North Fulton and her work.

THE COURT:  All right.  Any objection, Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  You can come down.  Thank you.

THE WITNESS:  Thank you.

[The witness stepped down from the stand and was excused.]

THE COURT:  Call your next witness, please.

MR. PORTER:  We would call Raymond Daniel Gravitt.  Raymond Daniel Gravitt.

[The witness was called to the courtroom.]

MR. PORTER:  If you could take the witness stand here, please. 

[The witness stepped to the stand.]

MR. PORTER:  Please raise your right hand.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     RAYMOND DANIEL GRAVITT

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   You can put your hand down, and could you state your name.

A.   Raymond Gravitt.

Q.   All right.  Mr. Gravitt, you're going to have to speak up just a little bit --

A.   Okay.

Q.   -- so these folks back here can here you.

A.   All right.

Q.   All right.  And if you need to, you can lean -- slide the chair up a little bit and lean into the microphone.  Mr. Gravitt, where are you employed?

A.   Beers Construction.

Q.   And what type of work do you do?

A.   Carpenter work, general construction.

Q.   All right.  Do you live in Gwinnett County?

A.   Yes.

Q.   And do you live in the north end of the county?

A.   Over on Dolphin Lane over by the lake, yes.

Q.   How long have you lived there?

A.   Late '70's, in that area.

Q.   I'd like to call -- did you live there in April 1993 --

A.   Yes.

Q.   -- on Dolphin Lane?

A.   Yes.

Q.   I'd like to call your attention to the evening hours of April 15, 1993.  Did you have an occasion on that day to be on Peachtree Industrial Boulevard traveling southbound near the Gwinnco Muffler?

A.   Yes.

Q.   Could you tell us what you were doing on Peachtree Industrial Boulevard?

A.   I was going to pick my daughter up.  She was babysitting.

Q.   All right.  And where were you going to pick her up?

A.   Down by North Gwinnett.

Q.   Is that north or south of the Gwinnco Muffler?

A.   It would be south.

Q.   Towards Duluth?

A.   Right.  Uh-huh [affirmative].

Q.   And about what time of day or night were you going by the Gwinnco Muffler?

A.   It was between, I'd say, 9:40 and ten minutes till ten.

Q.   And did you see anything when you went by the Gwinnco Muffler?

A.   I'd see blue lights flashing, you know, like somebody -- they had a car pulled over or something.

Q.   All right.  Could you see what kind of car it was that was pulled over?

A.   No, sir.

Q.   Could you tell what kind of car was under the blue lights?

A.   No, sir.  I sure couldn't.  I'd say it was up in the driveway of the muffler shop there, and it was sort of storming and, you know, thundering and lightning, and everything, and I was just more or less paying attention to the road but, you know, with the blue lights flashing, they reflected everywhere.

Q.   Now, did you go on and pick up your daughter down there by North Gwinnett?

A.   Right.  Sure did.  And I got back about five after ten or so, and when we come back, I didn't notice the blue lights over there.

Q.   All right.  Did you notice anything in the driveway?

A.   No, sir.

Q.   Mr. Gravitt, I'm going to ask you to step down off the stand for a second and I'm going to ask you to look at a diagram if you could.

A.   [Witness complies]

Q.   This is a diagram that has been previously identified.  It's a scale drawing of the Gwinnco Muffler Shop, and you're going to have to sort of stand here because there's folks behind you.

A.   Okay.

Q.   And it's magnetized, as you can see.  This is to scale, but the cars are not.

A.   Uh-huh [affirmative].

Q.   This is northbound towards Buford, towards me, and southbound is towards you as we stand and look at the document.  Could you, to the best of your recollection, place the vehicles here as you saw them the night of April 15?

A.   The only thing I seen -- I was driving down the road, and blue lights, you know, flashing up in here and reflecting.  I couldn't tell you where the cars were.

Q.   Okay.  Can you say whether or not the police car or any other car was in the acceleration lane?

A.   Oh.  It was not out in here.  It was up in the parking lot.

Q.   Thank you.  That's all the questions.  You can take the stand again.

A.   Uh-huh [affirmative].

Q.   And I believe you said you picked up your daughter and went back?

A.   Right.

Q.   And about what time was that?

A.   I got there a little after ten, so it would have been five minutes later or so.  About 10:15 or so, we came back through.

Q.   All right.  And at that point, were you driving northbound on Peachtree Industrial?

A.   Yes.

Q.   And did you notice anything in the Gwinnco Muffler?

A.   No.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Gravitt, you told us you couldn't tell what kind of car it was at all?

A.   No.

Q.   Could you describe it at all?  What color it was or --

A.   No.  I sure can't.  I said all I seen was the blue lights, and it was sort of storming at the time, thundering and lightning, and I was more or less paying attention to the road.  If it had been on the side of the road, I would have probably noticed but, like I say, it was up in the parking lot there,  so --

Q.   Okay.  So the only thing you really saw was the blue light, then?

A.   Right.

Q.   What was the lighting like out there that night?

A.   Oh, it was terrible.  I say it was cloudy and storming.

Q.   Okay.  Where that car was pulled up in the driveway, could you see anything at all, any details --

A.   No.  I didn't, you know, I really didn't look for it.

Q.   Could you tell if there was anybody out of the cars or in the cars?

A.   No, I sure couldn't.

Q.   Okay.  Was that because it was so dark or because you didn't look?

A.   Probably because I didn't look and -- both probably, but --

Q.   And where was your daughter, now?  At a friend's house?

A.   Yes, sir.  Down at Eddie Robinson's house.  They live down there right next to North Gwinnett.

Q.   Okay.  And had y'all arranged ahead of time for you to pick her up at a certain time?

A.   Right.  Uh-huh [affirmative].

Q.   And what time were you picking her up?

A.   At ten o'clock.

Q.   Okay.  And that's how far from the muffler shop there?

A.   Three or four miles down there.

Q.   Okay.  So what's the speed limit along there; do you know?

A.   About 45, I think.

Q.   So it probably took you how long to drive from the muffler shop going south to pick up your daughter, to get there at ten?

A.   Yeah.  I probably got there probably five minutes till.

Q.   Okay.  And then you turned around and came back?

A.   Yes.  Just as soon as they came in and she left.

Q.   Okay.  And how long do you think it took you to get back to the muffler shop?

A.   I don't know.  Five minutes again, I guess.

Q.   So around ten o'clock when you came back by?

A.   Yeah.  Well, it was -- it would have been a little after ten.  I sat there and waited till they got there.

Q.   And you do know whether or not your daughter observed anything?

A.   No.

Q.   She didn't or you don't know?

A.   She didn't.  Like I say, when we come back by, I didn't notice the blue lights over there, so we wouldn't have paid it any attention.

Q.   You described the blue light in your statement -- do you remember how you described it?

A.   I just told them I'd seen the blue lights flashing.

Q.   Do you know whether it was the bar type or the round type or --

A.   Like I said, I can't tell.

Q.   Okay.

A.   I didn't remember anyway, you know.

Q.   How did the police find you?  Did you drive by again in the roadblock?

A.   No.  My wife had gone to pick her up later, a couple of weeks later, and they, you know, had the license -- or stops out there asking anybody if they'd seen anything.

Q.   Yes, sir.

A.   And she'd told them, because after I heard about this, you know, I said I seen the blue lights down there, and she told them, and so then they called me, and I told them what I knew.

Q.   Mr. Gravitt, I'm going to show you what's been marked as Defendant's Exhibit Number 11, and ask you if you can identify that?

A.   Yeah.

Q.   Okay.  And what is it?

A.   That's the statement that I give to the policemen, yes.

Q.   Okay.  And look over it.  Don't read it out loud.

A.   Okay.

Q.   But look over it and see if you can refresh your memory as to what kind of blue light it was.

A.   It says the same thing I'm telling you now.  It says, 'I think it was a round, revolving blue light, but I'm not sure,' you know.

Q.   Okay.  But that's the statement you gave the police that it was a round, revolving blue light?

A.   Yes.  Right.  Uh-huh [affirmative].

Q.   Okay.

MR. MOORE:  Your Honor, I'd tender D-11.

MR. PORTER:  Your Honor, I believe it's admissible only for the record, and we have no objection to that.  I don't believe the witness has been impeached because the statement is not inconsistent.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, we'd tender it for whatever's available.

THE COURT:  It's part of the record, but it's refused as far as an exhibit that'll be going out.

MR. MOORE:  No further questions, Your Honor.

THE COURT:  Redirect?

MR. PORTER:  Your Honor, we have no other questions for Mr. Gravitt.  We would as that he be allowed to leave and go to work.  He's available and can be reached.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Your Honor, as long as he's on call, I don't have any problem with that.

THE COURT:  All right.  You can come down.  Thank you.  Call your next witness.

[The witness stepped down from the stand.]

MR. PORTER:  We'd call William Hutchins to the stand.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Hutchins, if you could take the witness stand here, please, right up here on the witness stand. 

[The witness stepped to the stand.]

MR. PORTER:  Good morning.

THE WITNESS:  Morning.

MR. PORTER:  If you could raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     WILLIAM HUTCHINS

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Could you state your name please, sir.

A.   William Hutchins.

Q.   Now, Mr. Hutchins, where do you live?

THE COURT:  Would you spell it for us, too,      Mr. Hutchins so the court reporter will know how to spell it.

THE WITNESS:  Do what?

THE COURT:  Would you spell your last name for us so the court reporter will know what it is.

THE WITNESS:  H-u-t-c-h-i-n-s.

THE COURT:  Thank you.

BY MR. PORTER:

Q.   Mr. Hutchins, can you tell us where you live, please, and I don't need the specific address, but just the street.

A.   4846 Second Avenue, Sugar Hill.

Q.   And is that in Gwinnett County?

A.   That's right.

Q.   And can you tell us how you're employed?

A.   City of Sugar Hill.

Q.   And what type of work do you do for them?

A.   Utility superintendent.

Q.   Now, how long have you lived at that residence?

A.   Thirty-four years.

Q.   Were you -- then I guess you were living there on April 15, 1993?

A.   That's right.

Q.   Can you describe for us what you remember about that night in terms of what the weather was like and the temperature?

A.   Well, it was thundering and lightning that particular night.

Q.   All right.  Did you have your windows open or closed?

A.   They was open.

Q.   And what were you doing that night between about nine and ten?

A.   Sitting watching TV, and I was looking out the utility window watching the lightning south of Peachtree.

Q.   At any time during that night, did you hear anything?

A.   Well, I heard two shots.

Q.   Now, let me ask you, was there any time between the shots?

A.   They were staggered just a little bit between them.

Q.   All right.  By clapping your hands, could you demonstrate the time period between them, the distance between them in time.

A.   Say the first shot and then probably a couple of hand claps [demonstrating].

Q.   So they were spaced about as fast as you just clapped your hands?

A.   That's right.

Q.   Did you make any comment when you heard the shots?

A.   Yeah, I sure did.

Q.   And can you tell us what that was?

A.   Well, after the first shot, I said, 'Shoot'em again,' and --

Q.   And then there was a second shot?

A.   -- there was a second shot.  Yeah.  I had time to say that.  But it just come out of my mouth.

Q.   And at that time, you didn't realize anything might be going on?

A.   No, sir, I didn't.

Q.   Now, let me also ask you, how do you know they were shots?

A.   They were loud enough.  I knew that they were shots.  They wasn't backfiring.

Q.   Are you familiar with firearms?

A.   Well, I've hunted all my life.

Q.   Are you familiar with the sounds of different types of gunfire?

A.   Oh, well, there's a difference between shotguns and rifles and pistols.

Q.   Do you have any opinion as to the source or what kind of gun those gunshots came from?

A.   It sounded like a large handgun.

Q.   Did you have any idea about how far away they came from?

A.   They were pretty close.

Q.   How close do you live to the Gwinnco Muffler?

A.   Probably a half mile.

Q.   Is that by road or as a crow flies?

A.   By road.

Q.   All right.  Can I ask you to step down here for a second and -- I'm going to see if I can find my pointer --

A.   [Witness complies]

Q.   This is an aerial photograph, and I'll ask you just to stand where I'm standing so that we don't block the jury's view, but let me describe it to you.

A.   All right.

Q.   This is an aerial photograph, that's already been admitted, of the Sugar Hill area, and the areas are labeled First Avenue, Second Avenue.  Can you point out for the jury, with this being Gwinnco Muffler Shop --

A.   That's right.

Q.   -- can you point out where your residence is?

A.   It's Second Avenue just about right along here.

Q.   Is it on the Buford side of -- this is Georgia 20 here?

A.   Yes.  Yes, it's right here in this corner, Second Avenue.

Q.   All right.

A.   And then south.

Q.   Okay.  You can take the stand, please.

A.   All right.  [Complies]

Q.   Mr. Hutchins, one last question.  We've said between nine and ten.  Do you have any closer estimate of what time you heard those shots on that night?

A.   No, sir, I don't.  It's just roughly between nine and ten.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE WITNESS:  Okay.

THE COURT:  Mr. Moore?  Just a moment, Mr. Hutchins.  Mr. Moore has some questions.

MR. PORTER:  Mr. Moore gets to ask some questions.

THE WITNESS:  Oh.  Okay.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   I'll try to brief, Mr. Hutchins, so you don't stay too long.

A.   All right.

Q.   My name's Johnny Moore.  I do want to ask you a few questions.  Did it storm that night and rain that night that you're talking about?

A.   There was no rain as I know of, just thunder and lightning.

Q.   It never did rain at your house?

A.   Uh-uh [negative].

Q.   Okay.  What time did you go to bed that night?

A.   Probably a little after ten.

Q.   So if it rained and stormed, it was after you went to bed, then?

A.   Do what?

Q.   If it rained or stormed, it was after you went to bed?

A.   I don't remember any rain.

Q.   Do you remember what you were watching on TV when you heard the shots?

A.   No, sir, I don't.

Q.   Okay.  But you said you had time to talk to your wife between the first shot and the second shot?

A.   That's right.

Q.   Okay.  And you said a large handgun.  You're a hunter.  What kind of handgun are you talking about when you say a large handgun?

A.   Well, it was larger than a .22.

Q.   Okay.

A.   .25.

Q.   Like a .25 caliber or something?

A.   That's right.

Q.   Okay.

A.   They're larger.

Q.   How much experience have you had with handguns?

A.   Well, I used to own a few of them, but I didn't keep them long.  Well, I got a little old magnum now.

Q.   Okay.

A.   A .22.

Q.   And most people don't hunt with handguns, do they?

A.   Do what?

Q.   Most people don't hunt with handguns, do they?

A.   Not many.

Q.   Do you hunt with handguns, sir?

A.   Uh-uh [negative].  Sure don't.

Q.   Have you had any experience with anybody that did?

A.   Well, there's a few of them that deer hunt with handguns.

Q.   And they use what kind of calibers, like .44s or something?

A.   .44s.

Q.   And compared to that, how did this sound?

A.   It was something like the sound of a .44.  It was loud.

Q.   And those .44s are magnums generally that they deer hunt with, aren't they?

A.   That's right.

Q.   Have you heard any shots in your neighborhood before then or since then?

A.   Well, they used to practice some down -- further down on Peachtree right before deer season.  There's a little range they shoot at.

Q.   My question is, though, when you're at your home there, have you heard gunshots since that time?

A.   No, sure hadn't.

Q.   And did these gunshots sound like they were nearby or what distance away did they sound like they were?

A.   They was close.

Q.   They were close to your house?

A.   But I didn't pay that much attention to them.

Q.   And I believe -- could you show us again where your house was?  Come down and show us -- Mr. Porter -- you showed Mr. Porter, but I couldn't see it very well.

A.   All right.  [Complies]  Right in the corner of Peachtree and Second Avenue.

Q.   So right here?

A.   Right in here.  Uh-huh [affirmative].

Q.   Okay.

[The witness returned to the stand.]

BY MR. MOORE:

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 12 and ask if you can identify that, sir?

A.   Without my glasses, I can't see too hot.  This is a -- that's what I read before.

Q.   Okay.  Can you read that without your glasses?  I'm not trying to embarrass you.  I'm getting to where I've got to have them, too.

A.   No.  Everything's blurred to me.

Q.   Okay.

A.   This is what -- that was -- this is what I had before, wasn't it?

MR. PORTER:  Well, Your Honor, I can state that that is a true and correct copy of the transcript of the statement given by Mr. Hutchins to the Gwinnett County police department.  I don't know whether that suffices as sufficient identification, but that's what it is.

MR. MOORE:  Okay.

BY MR. MOORE:

Q.   Now, on the last page there, Officer Cline, when he interviewed you, he asked you what the weather was like right then; do you recall that?

A.   It was just thundering and lightning at the time.

Q.   Do you recall that you replied to him that it was mild weather, everything was clear outside?

A.   Well, it couldn't have been clear if it was thundering and lightning.

Q.   So do you remember whether or not you told Officer Cline that?

A.   No, not offhand, I don't.  But I stated it was thundering and lightning at the time.

MR. MOORE:  Your Honor, I would tender Defendant's Exhibit Number 12 at this time.

MR. PORTER:  Your Honor, again, it can only be admitted for the record.  I'll stipulate to the identity of it since the witness has not been able to identify it but, Your Honor, I don't believe that Mr. Hutchins has made an inconsistent statement.

THE COURT:  Well, you can use it for the purposes of impeachment, but insofar as it going out with the jury, then that's -- the rules of evidence don't allow it.  It's refused for that purpose, but it's a part of the record.

BY MR. MOORE:

Q.   Where your house is located there, Mr. Hutchins, is it up on a hill or down in a hollow or what?

A.   It's in the hole --

Q.   It's down lower than the rest of the --

A.   -- below Peachtree.

Q.   -- rest of the property around there?

A.   Below Peachtree.

MR. MOORE:  No further questions.  Thank you.

THE WITNESS:  All right.

THE COURT:  Redirect?

MR. PORTER:  I have no redirect, Your Honor.  We would ask Mr. Hutchins to be placed on call.  His wife is the next witness, so he can't leave yet, but --

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  We don't have any problems with him being on call, Your Honor.

THE COURT:  All right.  You can come down.  Thank you.

THE WITNESS:  Do what, sir?

THE COURT:  You can come down.  Call your next witness, please.

[The witness stepped down from the stand.]

MR. PORTER:  We'd call Sara Hutchins to the stand.

[The witness was called to the courtroom.]

MR. MOORE:  Your Honor, could we take a short break?

THE COURT:  Okay.  Would you approach the bench, please.

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

THE COURT:  Is our next witness going to be about like the last one?

MR. PORTER:  Yes, sir.

THE COURT:  You want to --

MS. ROGAN:  I'll try and hold out.  I can't do her.

THE COURT:  Well, we can recess now if you'd like.

MS. ROGAN:  Okay.

MR. SMEAL:  I think a couple of jurors I saw were nodding.

THE COURT:  We'll take fifteen minutes and give them an opportunity to get a cup of coffee or something.  They've been grousing about that, so we'll give them an opportunity to do that.

MS. ROGAN:  Okay.

THE COURT:  Okay.

[Bench conference concluded.]

MR. PORTER:  Ms. Hutchins, we're going to ask you to step back outside.  We're going to take a recess.

MS. HUTCHINS:  Oh, okay.

MR. PORTER:  But we'll call you in just a second.

THE COURT:  Ms. Hutchins, we'll be back with you in just a moment.

[Ms. Hutchins exited the courtroom.]

THE COURT:  We're going to take fifteen minutes at this point.  We'll give the jurors an opportunity, while we take this recess, to get a cup of coffee or something, if you wish.  But we'll take fifteen minutes and recommence.

[The jury was excused from the courtroom for the recess.]

THE COURT:  Anything else, Mr. Porter?

MR. PORTER:  Your Honor, if we could have just a moment and it might require a bench conference.

THE COURT:  All right.

[Pause]

MR. PORTER:  Your Honor, nothing from the state.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Nothing from the defense, Your Honor.

THE COURT:  We'll be in recess fifteen minutes.

[Break taken]

THE COURT:  All right.  Mr. Moore, you want to approach the bench?  Mr. Porter?

[Counsel approached the bench and the following conference ensued.]

MR. PORTER:  Your Honor, I've been sort of thinking about the family members of the jurors who are in here.

MS. ROGAN:  He may not be aware of that.

MR. PORTER:  If you're not aware of it, but the person that Mr. Ford is waving to today are his folks.

THE COURT:  Yeah.  Somebody had said they thought his parents were here.

MR. PORTER:  And I believe Ms. Bolden's parents are here, too.

THE COURT:  Okay.  Everybody's got there fan club here today.

MR. PORTER:  I think it might be, without singling anyone out, it might be worth it to do an instruction, particularly since those people may have contact with the jurors, that they should not discuss -- if they happen to have contact with the jurors, they should not discuss the case or discuss anything about what --

THE COURT:  Well, we may have -- both of them -- I mean, if they don't have spouses or significant other coming over on Sunday, then they might have a parent coming over on Sunday.  Yeah, so that's a good idea.

MR. MOORE:  We agree with that, too, Your Honor.  We discussed it.

THE COURT:  Yeah.  I'll do that.

MR. PORTER:  And I don't think we have to single them out.  I think you can just make --

THE COURT:  Yeah.  I'll do it in a general way.  The other thing, we'll just do it at the bench, I was going to ask about when we get in -- when are we going to get into those witnesses about the -- with the hearsay, about the exceptions to the hearsay?  I mean, that's -- we're not --

MR. PORTER:  Tomorrow, Your Honor.

THE COURT:  Okay.

MR. PORTER:  I expect it tomorrow.

THE COURT:  We're going to need a few minutes and maybe tonight would be a good time to do that as well.  Take a look at what you intend to offer in and take a look at narrowing what it is, hear the objections, and go ahead and get that into place as to what's coming in.

MR. PORTER:  Your Honor, I would also say, just for the scheduling of the next two witnesses are going to Omodt and Kautter.

THE COURT:  I'm sorry?

MR. PORTER:  Are going to be Omodt and Kautter, the guy and the eyewitness.

THE COURT:  I'm sorry.  I didn't understand you.

MS. ROGAN:  The next two witnesses.

MR. PORTER:  We're going to have -- the next two witnesses are going to be the guy who was driving the eyewitness and the eyewitness.

MR. MOORE:  You mean after Ms. Hutchins?

MR. PORTER:  After Ms. Hutchins.

THE COURT:  Okay.

MR. PORTER:  And so I don't know which -- we had about what, Johnny, two hours on the hearing --

MR. MOORE:  Uh-huh.

MR. PORTER:  I can put Omodt -- I can put       Ms. Hutchins up.  She's going to take about as long as Mr. Hutchins.

THE COURT:  Well, let's just go until we get to a good point and then -- everybody's had a break here and  we'll go until 12:30 or something or whatever and we'll just push on and find a good stopping point.

MR. PORTER:  All I'm saying is between Omodt and Kautter might be the breaking point you want to look at.

THE COURT:  Okay.  Okay.

MR. MOORE:  I need you to look at the diagram, too, like we want to use before the jury comes in.

THE COURT:  Okay.  All right.

[Bench conference concluded.]

THE COURT:  Before the jury comes back, let me caution some of the members of our audience.  I think we have some friends and family or whatever of some of the jurors, and let me caution anybody who's in the audience insofar as knowing any jurors, let me suggest there ought not to be any displays in the courtroom insofar as knowing folks and that sort of thing.

          And the other thing that's more of a concern is that there will be on Sunday some visits.  That will be the opportunity for the jurors to have a visit with a family member, and they've been -- the jurors have been instructed in this respect, and family members ought to be aware as well.  And there should be no discussion with respect to anything that's transpired in this case or anything any of the family members have seen or heard or read or anything else.  That is not anything that should be discussed.  It ought to be specifically excluded from any discussion or conversation if there is a family member who visits with a juror on Sunday.  And, of course, all that will be supervised and in the presence of the bailiffs who will be with the jurors during the sequestration, but any family member or friend who might be visiting should be aware of that and make a particular effort to abide by that rule.

Is the state ready?

MR. PORTER:  The state's ready, Your Honor.         [The witness was called to the courtroom and stepped to the witness stand.]

MR. PORTER:  Ms. Hutchins, if I could ask you to take the witness stand this time.

[The witness stepped to the stand.]

THE COURT:  Is the defendant ready?

MS. ROGAN:  Yes, Your Honor.

MR. MOORE:  Yes, Your Honor.

THE COURT:  Bring the jury back, please.

[The jury returned to the courtroom and proceedings resumed, as follows.]

THE COURT:  Mr. Porter, when you ask the witnesses their name, would you also ask them to spell their name if it hasn't already been done if it's not Mr. Jones or something?

MR. PORTER:  Yes, sir.

THE COURT:  Go ahead when you're ready,         Mr. Porter.

MR. PORTER:  Thank you, Your Honor.  Could you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     SARA HUTCHINS

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Would you state your name, and if you'd slide up a little bit and speak --

A.   Okay.

Q.   -- just a little bit louder so everybody all the way to the back row can hear you.

A.   Sara Hutchins.

Q.   Ms. Hutchins, could you spell your name, please.

A.   S-a-r-a, H-u-t-c-h-i-n-s.

Q.   All right.  Ms. Hutchins, where do you live?

A.   I live at 4846 Second Avenue in Sugar Hill.

Q.   And is that in Gwinnett County?

A.   Yes, it is.

Q.   How long have you lived there?

A.   Fifty-eight years.

Q.   Are you married to the last witness we talked to, Mr. William Hutchins?

A.   I am.

Q.   And how long did you say you've lived at that residence on Second Avenue?

A.   Fifty-eight years.

Q.   Let me ask you, were you living there on April 15, 1993?

A.   Yes, sir.

Q.   On that night, were you at home?

A.   I was.

Q.   Can you describe what the weather was that night?

A.   To the south, down Peachtree Industrial, it was a dark, black cloud.

Q.   Was there any thunder and lightning?

A.   No, I don't think so.

Q.   Now, I want to call your attention specifically between the hours of nine and ten.  Were the windows open in your house that night?

A.   Yes.

Q.   All right.  Is it your husband's custom to leave the window open?

A.   Right.

Q.   And where were you in the house on that night?

A.   Well, our kitchen runs into -- it's just like a great room that runs into the den.  He had asked me to look at the cloud, which I did, and I was sitting in a rocking chair doing needlepoint.  He was looking at TV.

Q.   Were you waiting for anything that night?

A.   My son.

Q.   What -- can you tell us about why you were waiting for him?  Does he live with you?

A.   Well, he was only sixteen at the time.  He had a job after school and, you know, just being a mother.

Q.   All right.  What time did you expect him in?  What time did he get off his job?

A.   Well, he normally got off at eight o'clock, but that didn't mean that he was through, you know.  The store closed at eight, and then sometimes they had to clean up or -- but he had a curfew of eleven o'clock.

Q.   Even though his job ended at eight o'clock, did he get home --

A.   No, he did not.

Q.   -- at eight?  Did he get home about 8:30?

A.   No.

Q.   Was he home by nine o'clock?

A.   No.

Q.   Were you starting to get a little nervous?

A.   Right.

Q.   Did he get home by about 9:30?

A.   No, sir.

Q.   As the time went on, did you hear anything through the open windows?

A.   I heard a gun shoot.

Q.   All right.  Are you familiar with firearms?

A.   Well, I deer hunt.

Q.   And are you sure that you heard a shot?

A.   Yes, I am very sure, because I made the statement to my husband, I said, 'Well, that --'  We hear cars backfire in that intersection and sometimes when I'm not sure, I'll say, you know, 'Was that a gun?'  And that night, I believe I made the statement that, 'Well, make no mistake about that.  That was a gun, hon.'  And he said, 'Yes.'

Q.   How many shots did you hear?

A.   Two.

Q.   About how far apart were they?

A.   Well, my husband -- after the first shot, my husband said, 'Shoot'em again.'  And then it said bang.

Q.   Let me ask you, if you could, to step down off the witness stand.

A.   Okay.  [Witness complies]

Q.   Take a look at this aerial photograph that we've already had identified.

A.   Okay.

Q.   All right.  And if you could sort of stand to the side so the jurors can see and point out where your house is.

A.   Okay.  Let me look at it a minute.

Q.   All right.  This is Peachtree Industrial Boulevard, if it helps you.

A.   Okay.  This is Peachtree.  This is 20; right?

Q.   Yes, ma'am.

A.   Okay.  So you come around --

Q.   And you don't have to pick the exact house, but just the approximate area, although your exact house, the roof will be --

A.   Well, it's probably here.  This one right here, because this is probably Mother's.

Q.   You haven't ever seen it from that view, have you?

A.   No.

Q.   Thank you.  You can have a seat.

A.   [The witness returned to the stand.]

Q.   Based on what you looked at in the photograph, and based on your experience, how far away from the Gwinnco Muffler Shop do you think you are?

A.   I believe it's approximately a half a mile.

Q.   And can you tell anything about the shots, about how close they were or how far?

A.   How close from one shot to the other?

Q.   When you -- well, no, how close they were to you?

A.   Well, they -- it sounded like they might have come from just behind us, which my son had come down First Avenue where it dead-ended in there, and he had to come down First Avenue and around in a circle, you know, back to our house.

Q.   So did the gunshots concern you?

A.   Yes, they did.

Q.   Other than that they concerned you, did you think anything about them that night?

A.   No.  I just thought it was somebody shooting.

Q.   When did you realize that what you had heard on the night of April 15 might be important to the police?

A.   The next morning.

Q.   And is that when you discovered that Emogene Thompson had been murdered?

A.   Yes.

Q.   And did you come forward to the police?

A.   No, I did not.

Q.   Did the police locate you?

A.   No, sir.

Q.   How did the police get in contact with you?

A.   Well, my -- when my husband heard it the next day at work, he said, 'Well, that must have been the two shots we heard,' and then they contacted us.

Q.   And can you tell us, Ms. Hutchins, about what time, to your best estimate, did you hear those two shots?

A.   I would have thought it would have been 9:20 -- between the time of 9:20 and twenty minutes till ten.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Ms. Hutchins, I have just a few questions for you.

A.   Oh, okay.

Q.   My name's Johnny Moore.  I represent Mike Chapel.  Now, do you remember talking to Sergeant Cline, Sergeant J.S. Cline, and giving him a statement back in April 1993?

A.   Yes, I do.

Q.   Okay.  Do you remember telling him that you heard shots around there quiet often?

A.   Well, either backfires or shots.

Q.   Okay.  Do you remember telling him that they -- that both of them sound just alike to you?

A.   Well, normally I go, 'Was that a gun?'  But this time, I did not.

Q.   Now, you said that back at that time when you talked to Sergeant Cline, you said that 9:30 was about what you thought it was, the time; is that correct?

A.   Uh-huh [affirmative].  Between the time of 9:20 and twenty till ten.

Q.   Okay.  Did you ever tell Sergeant Cline twenty till ten?

A.   I don't know if I did or not.

Q.   Has anybody suggested to you that it should be closer to ten o'clock?

A.   No, sir.

Q.   Have you been interviewed by anybody from the district attorney's office or anybody else about what time it was?

A.   No.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 13 and ask you if you can identify that, first of all?

A.   Okay.  Meaning the paragraph after --

Q.   Can you recognize the document, what that is?

A.   Oh, okay.

Q.   Do you remember that document?

A.   Yes, I do.

Q.   Is that a transcript of a statement you gave to Sergeant Cline?

A.   Yes.

Q.   Okay.  Was that recorded, tape recorded, that statement?

A.   Yes, it was.

Q.   Looking over to page 4, if you would --

A.   Okay.

Q.   -- down at the middle of the page, would you look at that and --

A.   Middle of the page?

Q.   Yes, ma'am, about the times.

A.   Right.

Q.   Okay.  And what time did you tell Sergeant Cline that you heard the shots?

A.   9:30.

Q.   Now, did you at any time see a police car?

A.   Yes, I did.

Q.   Okay.  And could you describe that car that you saw?

A.   Not really.  The window that I'm looking out of, I see it for just maybe two car lengths.

Q.   Do you know what color it was?

A.   No, sir.  It was dark.

Q.   You couldn't tell what color it was?

A.   No, sir.

Q.   Are you saying it was a dark car or dark out in the night?

A.   Well, no.  I can't be that -- I ID'd it as a county car.

Q.   Okay.  Do you remember telling them what color it was?

A.   What color?

Q.   Yes, ma'am.

A.   No.

Q.   I'm not trying to --

A.   I'm sure, but no.

Q.   I'm not trying to trick you.  I'll let you look at page 4 of your statement here, if you would, 4 and 5 there, if you'd read that.

A.   Well, I think anything at that time of night would have been black or white --

Q.   Okay.

A.   -- for the brief time I saw it.

Q.   Okay.  Could you tell what kind of blue lights it had or anything like that?

A.   No, I could not.

Q.   Were the blue lights on or was it --

A.   No, there was no lights on it.

Q.   Was there anything unusual about the car that you noticed?

A.   Nothing unusual.

Q.   Okay.  Was it traveling at a high rate of speed or anything?

A.   No, sir.

Q.   Did you see any other cars near it?

A.   I think there were cars in the intersection at that time, but I was just looking at that one particular car.

Q.   Okay.  What was the weather like when you were looking out the window there?

A.   Well, like I had said before, it was a dark cloud back what I thought might have been around Alpharetta somewhere where my brother lives.

Q.   Had it been raining?

A.   No.

Q.   Now, the car that you saw, could you tell what direction it was going in?

A.   Yes, I could.  It was going north on Peachtree.

Q.   Your house is located at what intersection, now?

A.   It's 20 and Peachtree, but there's also a little street behind me that's First Avenue.

Q.   Do you mind coming down again and show us where you're talking about?

A.   [Witness complies]

Q.   I think I know what you're saying, but I'm not absolutely sure.

A.   Right.

Q.   I believe the streets and everything are labeled here.

A.   Okay.  This is a little cabinet shop, so we're -- this is First Avenue.  We're -- a dead-end here, so we come in here --

THE COURT:  Ms. Hutchins, would you move to the side and point to it so the jurors can see, please.

THE WITNESS:  This is Second Avenue, and we're the only house in the intersection so -- is this made before this house -- there was a house here at one time.

MR. MOORE:  Do you know the date of this,       Mr. Porter, this aerial photograph?

MR. PORTER:  I believe it was made in 1992.

THE WITNESS:  1992?

MR. PORTER:  Yes, ma'am, I believe.

THE WITNESS:  So the house would have been gone.  We're the first house, so my mother's sits right there.  I guess we're here.

BY MR. MOORE:

Q.   Okay.  So you're right near the intersection of 20 and Peachtree Industrial?

A.   Right.  Yes.

Q.   Is that very far?  You can't tell on the scale.  Is that like a block or --

A.   Probably.  Probably a block.

Q.   You can go back up.

[The witness returned to the stand.]

MR. MOORE:  Nothing further.

THE COURT:  Redirect?  Just a moment,           Ms. Hutchins.

     REDIRECT EXAMINATION

BY MR. PORTER:

Q.   Ms. Hutchins, how long was it between the shots and the time you saw the police car on Peachtree Industrial Boulevard?

A.   Probably about fifteen or twenty minutes.

Q.   You think it was that long between the shots and the police car?

A.   [Nodding affirmatively]

Q.   All right. 

MR. PORTER:  Thank you.

THE COURT:  Recross?

MR. MOORE:  Nothing further, Your Honor.

THE COURT:  Do you wish her to remain on call?

MR. PORTER:  No, Your Honor, we've already excused Mr. Hutchins.  They live where she's described and she's available.  We can reach her.

THE COURT:  Okay.  But you want her to remain on call in case you want to bring her about here?

MR. PORTER:  Yes, Your Honor.

THE COURT:  Okay.  Mr. Moore?

MR. MOORE:  That would be fine, Your Honor.

THE COURT:  All right.  You can come down.  You'll remain on call in case anybody wants to ask you to come back in for any further testimony.  Thank you.

THE WITNESS:  Okay.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. PORTER:  I call Paul Omodt to the stand, and, Your Honor, I'll have him spell his last name.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Omodt, could you take the witness stand right up here, please.

[The witness stepped to the stand.]

MR. PORTER:  Could you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth and nothing but the truth, so help you God?

THE WITNESS:  Yes, sir, I do.

Whereupon,

     PAUL NORMAN OMODT

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Could you state your name, please.

A.   My name is Paul Norman Omodt.

Q.   Mr. Omodt.  I'm sorry.  I mispronounced your name.  Could you spell it for the record.

A.   It's spelled O-m-o-d-t.

Q.   And where are you employed, Mr. Omodt?

A.   Presently I'm employed at a place called Eco-Grooving in Suwanee, Georgia.

Q.   And what type of work do you do for them?

A.   We do bridge deck grinding and come back and safety groove afterwards.

Q.   I'd like to call your attention to April of 1993.  Where were you employed on that date or in April of 1993?

A.   At that time I was employed with a company called SP&B, which is a Mercedes repair shop located at 5400 Shadburn Ferry Road.

Q.   And what type of work did you do for them?

A.   We did Mercedes service.

Q.   How long did you work there?

A.   Start to finish, about six years.

Q.   Now, Mr. Omodt, let me call your attention specifically to the evening of April 15 of 1993.  Did you have occasion on that night between the hours of nine and ten to be on Peachtree Industrial Boulevard in the area of Gwinnco Muffler?

A.   Yes, sir.  A Mercedes dealership by the name of RBM had an open house for all the companies they well parts wholesale to, which took us down to Sandy Springs on Roswell Road.

Q.   About what time did you arrive at RBM in Sandy Springs?

A.   It had been early in the evening after work, six-thirty, maybe seven o'clock.

Q.   Who went with you?

A.   At that time my boss, Karl Kautter.

Q.   And about what time did you leave the meeting at RBM?

A.   In between probably eight forty-five and maybe ten till nine.

Q.   Now, let me ask you, during this meeting, was it a -- you said it was a business meeting.  Was there any alcohol served or consumed?

A.   No, sir.  No, sir.  It was an open house.  There was barbecue, punch, things like that.

Q.   Did you consume any alcohol?

A.   No, sir, I did not.

Q.   All right.  When you began to come back -- tell me again what time you left RBM?

A.   About eight forty-five, eight fifty, maybe.

Q.   Have you ever driven from RBM to the area of Peachtree Industrial Boulevard near Gwinnco before?

A.   Occasionally.  Most of the time RBM brings their parts to us.

Q.   About how long does it take you to drive from RBM over in Sandy Springs to the area of the Gwinnco Muffler on Peachtree Industrial?

A.   Most times about thirty-five, forty minutes.  On this occasion the rain was incredibly hard going up 400, so we were going very slow.  Very slow.

Q.   And by the time you reached Peachtree Industrial Boulevard, about how long had it taken you to get from Sandy Springs to Gwinnco, do you think?

A.   At least forty-five minutes, maybe fifty.

Q.   Now, was it raining when you got to Peachtree Industrial -- was it raining there at Peachtree Industrial Boulevard when you got there?

A.   Yes, sir.  All the way through about North Price Road, which is on Peachtree.

Q.   All right.  Is North Price north or south of the Gwinnco Muffler?

A.   South.  South.

Q.   So specifically, by the time you got to Gwinnco was it still pouring down rain?

A.   It wasn't pouring.  It was drizzling, but not pouring as it was on 400.

Q.   And again, who was in the car at the time you got to Gwinnco Muffler?

A.   Myself -- I was driving -- and my boss, Karl Kautter.

Q.   Could you describe for the jury what the terrain looks like there as you're traveling northbound on Peachtree Industrial Boulevard from south of the muffler shop?

A.   A little beyond North Price Road you are at the top of a hill, and you proceed down a long hill, Gwinnco being not quite at the bottom, maybe even on the other side of the very lowest part of the road.

Q.   And so as a driver did you have a clear field of vision all the way down the hill?

A.   Yes, sir, pretty much.

Q.   As you crested the hill, did you see anything?

A.   As we were coming down the hill, I had the occasion to see blue lights off to my left.

Q.   What did you do?

A.   As any normal driver, I immediately looked at my speedometer to make sure I wasn't proceeding at an accelerated rate, and, of course, with the rain we were going slower than normal, and pretty much just checked to make sure everything was -- was kosher with the car.

Q.   All right.  At that point, from the crest of the hill, could you tell what kind of car was underneath the blue lights?

A.   No, sir, not at the point.  It's -- you're about a quarter mile away.

Q.   And did you proceed on northbound past Gwinnco Muffler?  

A.   We were proceeding to Little Mill, which is another mile and a half, two miles on the other side of Gwinnco Muffler.

Q.   And as you came alongside the Gwinnco Muffler, did you observe anything about the cars -- or car or cars that might have been there?

A.   We had the occasion to notice that there were two cars in the Gwinnco Muffler parking lot.  One had pulled thirty to forty feet into the driveway with a Gwinnett County squad car right behind them.

Q.   All right.  Can you describe the first car that was thirty or forty feet up into the driveway?

A.   It at that time looked to be a dark brown, maybe black, domestic car.  It was a big, square-bodied car.  Pretty obviously not an import of any type.

Q.   And can you describe the patrol car?

A.   It looked to be a white rounded car, the Chevy Caprice or maybe the Ford Crown Victoria squad car.

Q.   Were the blue lights on on the vehicle by the time you came alongside the Gwinnco Muffler?

A.   No, sir.

Q.   Did you see anyone in the dark car that was in the front --

A.   No, sir.  I didn't see anybody in that car.  I did have the chance to see an officer leaning over into the car or leaning over the window.

Q.   Okay.  And can you describe what the officer looked like?

A.   From what I could see, Caucasian male.  Of course, he was wearing a rain suit and rain hat.  Pretty good size gentleman, six feet maybe.

Q.   How tall are you?

A.   Five-eleven.

Q.   Was he about your size or bigger?

A.   He'd probably been about my size, my build.

Q.   Could you tell anything about his hair color or anything else?

A.   No, sir.  He --

Q.   Did he have anything in his hand?

A.   Just a flashlight.

Q.   Now, did you just continue on from that point?

A.   Yes, sir, we sure did.

Q.   As you passed the Gwinnco Muffler and moved on to the area of Peachtree Industrial Boulevard where it four-lanes -- well, first of all, let me ask you, as you passed the Gwinnco Muffler, were there any other police cars --

A.   No, sir. 

Q    -- there?

A.   No, sir.

Q.   Were there any cars behind you?

A.   Not that I know of.

Q.   Were there any cars in front of you?

A.   I believe we came up behind a little white Honda.

Q.   And does that stick in your mind for any reason?

A.   I've had Hondas and I've always enjoyed Hondas, so I'm sure I'd made a comment about it.

Q.   All right.  So as you got onto the four-laned area of Peachtree Industrial Boulevard north of Gwinnco --

A.   Yes, sir.

Q.   -- did a car come up behind you?

A.   A car came up behind us and passed us in the right lane.  I was staying towards the middle or I was in the left lane at that time.

Q.   Could you describe that for the jury?

A.   As we approached the road that goes down toward Little Mill -- not Little Mill, I'm sorry, Petro [phonetic spelling] Lane, a police squad car passed us on the right as we were approaching that road.

Q.   All right.  Did the patrol car pass you or did it remain alongside of you?

A.   Well, it passed us.  It passed us.

Q.   All right.  Let me show you -- if I could ask you just for a second.  Let me move this.  I had a pointer here somewhere.  Mr. Omodt, if you can just give me a second.  I had a pointer here somewhere.

A.   This one, sir?

Q.   Yes, sir.  You're more observant than I am.

THE COURT:  What exhibit number is that, Mr. Porter?

MR. PORTER:  Your Honor, this is State's Exhibit Number 3, which has previously been stipulated to by counsel as a scale drawing of the area of Peachtree Industrial Boulevard from where it four-lanes on the south, through its intersection with R. H. Smith Boulevard on the north.

THE COURT:  All right.  Go ahead, please.

MR. PORTER:  All right.

BY MR. PORTER:

Q.   Mr. Omodt, if you could come down for a second.  You heard me describe to the jury what this exhibit is, and if you could just take a look at it for a second.

A.   [Witness steps to the exhibit before the jury box.]

Q.   And is that a true and accurate representation to the best of your knowledge of the area of Peachtree Industrial Boulevard that we've been discussing after you passed the Gwinnco Muffler?

A.   To the best of my knowledge, yes, sir.

Q.   I'd like you to take the pointer, if you could, and make sure the jury can see, so you'll have to sort of stand to the side.  Could you explain, as you were traveling northbound, where the patrol cruiser caught up with you and what happened after that as you traveled northbound?

A.   As I remember, we were traveling on the inside lane here, the police cruiser would have passed us in through this area right in through here.  He was well in front of us before we got to this light.

Q.   And at any -- when you got to this light, what happened then?

A.   From the driving I do, which is quite a bit, from what I could tell he -- whoever was in the squad car acted like he wanted to turn on First Avenue, didn't, hesitated, didn't, went on to the next intersection, being Highway 20, and acted the same way, like he wanted to turn right but didn't, and continued on to the very next intersection and turned right there.

Q.   And are you discussing the intersection with R. H. Smith?

A.   Yes, sir.

Q.   All right.  At the time that you observed these hesitations, where was your vehicle in relation to the patrol car?

A.   Behind and to the left.

Q.   Could you see as the drive -- and you can take the stand again. 

[The witness steps back to the stand.]

[A brief discussion ensued off the record between Ms. Rogan and Mr. Porter.]

MR. PORTER:  Your Honor, for the record, Mr. Omodt has referred to the light at First Avenue, that is, First Avenue on the south side -- excuse me.  First Avenue if you turn to the right, and it's Alton Tucker Boulevard if you turn to the left.  That's the first intersection he was referring to.

THE COURT:  Ms. Rogan, Mr. Moore?

MS. ROGAN:  That's fine.  I just wanted the record to be clear.

THE COURT:  Go ahead, please.

BY MR. PORTER:

Q.   As you said that your car was behind -- you described the position of your car in relation to the patrol car?

A.   Yes, sir.  Yes, sir.

Q.   And I believe you said it was behind and to what direction?

A.   To the left.  I was in the left --

Q.   Could you see, as the driver, were you close enough to see into the passenger compartment of the vehicle?

A.   I was more focused on driving, so I didn't have the opportunity to look into the squad car clearly when he went by.

Q.   Were you shown a photographic array by the Gwinnett County police?

A.   Yes, sir, I was.

Q.   Were you able to identify anyone from that photograph?

A.   No, sir, I was not.

Q.   Thank you.

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good morning, Mr. Omodt.  How are you?

A.   Good morning, ma'am.

Q.   My name is Elizabeth Rogan, and I'm one of Mr. Chapel's attorneys.  I just have a few questions for you.

A.   Yes, ma'am.

Q.   You used to work with Karl Kautter --

A.   Yes, ma'am.

Q.   -- who was the passenger in your car that night --

A.   Yes, ma'am.

Q.   -- and you've identified as your boss.  You were outside with Mr. Kautter earlier this morning waiting to testify?

A.   Yes, ma'am.

Q.   Okay.  Did you and he discuss anything about this case --

A.   No, ma'am.

Q.   -- while you were waiting out there?

A.   No, ma'am.

Q.   All right.  You described for us how you were following a Honda as you were proceeding on up Peachtree Industrial Boulevard, and you made note of that fact because you like Hondas.  Do you recall Mr. Kautter thinking he recognized the car, that it was a friend of his?

A.   In the white Honda?

Q.   Yes.

A.   I don't remember.  No, ma'am.

Q.   Okay.  And you've told us that it was raining incredibly hard, I think were your words, as you were proceeding up Georgia 400.

A.   Yes, ma'am.

Q.   And that by the time you got to Peachtree Industrial, it wasn't raining quite so hard, but it was still drizzling and it was raining.

A.   Yes, ma'am.

Q.   In fact, the officer you saw by the side of the road had a raincoat on.

A.   Yes, ma'am.

Q.   Do you recall if he had a rain hat on as well?

A.   I believe, also, yes, ma'am.

Q.   And you were driving somewhat slower than normal, you said, because of the weather but you also checked your speed --

A.   Very definitely.

Q.   -- when you saw the police car's lights illuminated.

A.   Yes, ma'am.

Q.   Do you know what speed you were traveling at?

A.   The posted speed is fifty-five coming down Peachtree Industrial, and where it four-lanes it drops down to forty-five.  I probably was doing fifty to fifty-five in the previous area and the drop would have been forty to forty-five.

Q.   Okay.  So you dropped down to about forty-five miles per hour --

A.   If not slower, yes, ma'am.

Q.   -- when you --

A.   Got to the four-lane.

Q.   Okay.  In fact, maybe we could use this.

MS. ROGAN:  Does this have the four lane to two lane?   [Examining exhibits]

BY MS. ROGAN:

Q.   Would you mind coming down for a second --

A.   Sure.  [Stepping down from the witness stand.]

Q.   -- and let me just clarify something on our aerial diagram here.  Can you use this pointer for us, please and --

A.   Sure.

Q.   -- you'll see on that map where the Gwinnco Muffler Shop is and this is Peachtree Industrial.  This is the direction you were headed?

A.   Yes, ma'am.

Q.   Okay.  So where is it on this map, if you can tell us, that the street narrows from four lane to two lane?

A.   It's very hard to tell on here.  I think it    goes  --

Q.   Is it beyond where we are on this map?  Is it further up in that direction?

A.   I think it's still two lane out in through here, and it starts the four lane in through this area.

Q.   Okay.  Where does the change in speed limit occur, if you know?

A.   It's the very same area.

Q.   Okay.  So --

A.   Where it comes into a four-lane.

Q.   So if you could point on -- with the map where it is where --

A.   Through here.

Q.   -- you slowed down.

A.   I'm sure.

Q.   Okay.  So you would have still been going fifty, fifty-five past Gwinnco and then once you saw the sign -- is there a sign posted somewhere up in this area?

A.   In that area, yes, ma'am.

Q.   And that's when you would have slowed down to forty, forty-five?

A.   Actually you drop -- you start slowing before you get to the sign.

Q.   Okay.

A.   It's a patrolled area.

Q.   Okay.  And you saw a police car there --

A.   Yes, ma'am.

Q.   -- and didn't want to be speeding?

A.   Yes, ma'am.

Q.   So you were conscious of your speed?

A.   Very definitely.

Q.   And you maintained that speed throughout -- you can resume the stand.  You maintained that speed throughout the rest of your travels --

A.   Yes.  [Returning to the witness stand.]

Q.   -- on Peachtree Industrial?

A.   Yes, ma'am.

Q.   Okay.  At least during the time before the police officer passed you and turned off.

A.   It's -- it's still a patrolled area pretty heavily, so you pretty much mind your P's and Q's.

Q.   Did you see any other police cars --

A.   No, ma'am, I did not.

Q.   -- in that area at that particular time?  Now, you've told us about seeing the police car stopped in the driveway of the muffler shop and seeing actually an officer out of the car with a flashlight in his hand looking and leaning toward the window of the car ahead of him?

A.   Yes, ma'am.

Q.   Can you tell us anything about the flashlight?  Do you remember what it looked like?

A.   I have no idea.

Q.   Okay.  Do you remember whether the officer had anything else in his hand?

A.   Not to my knowledge.

Q.   You described a raincoat that he was wearing.  Can you tell us -- A.   Yellow.

Q.   -- anything more about the raincoat?

A.   It was a yellow, button-up front.

Q.   Okay.  Did it have any kind of insignias or decals or anything on it that you were able to observe?

A.   Not that I would have noticed.

Q.   I don't know if Mr. Porter asked you or not, but I want to ask you, what do you recall about the police car?  I think you did say it was a -- you thought it was a Crown Vic  or --

A.   Crown Vic or maybe a Chevy Caprice.

Q.   -- Chevy Caprice.  Do you remember anything else about the police car?

A.   Not much more than that, no, ma'am.

Q.   Okay.  Do you remember what kind of blue lights it had?

A.   As in --

Q.   Blue lights, the police lights that go around  when --

A.   It would've had the light bar.

Q.   The light bar?

A.   Yes, ma'am.

Q.   Okay.  Do you recall being interviewed by Captain Davis with regard to this case --

A.   Yes, ma'am.

Q.   -- back in April of 1993?

A.   Yes, ma'am.

Q.   April 23?  Okay.  Do you remember telling Captain Davis that the car was one of the bubble cars?

A.   Yes, ma'am.

Q.   Okay.

A.   Meaning rounded.

Q.   A rounded light?

A.   The rounded body of the Chevy -- of the Chevy Caprice or the Ford Crown at that time.

Q.   Oh, I see.  You're referring to bubble car as the shape of the car?

A.   Yes.  Yes, ma'am.

Q.   Okay.

A.   Yes, ma'am.

Q.   And you're clear it had a bar light across --

A.   A light bar.

Q.   -- the top?

A.   Yes, ma'am.

Q.   Okay.  And you've already told us, I believe, that you were asked to identify, if you could --

A.   Yes, ma'am.

Q.   -- the officer who you saw that night and you were unable to do so?

A.   Yes.  We were given multiple pictures to look at and see if we could identify.

Q.   Eight pictures of police officers?

A.   Yes, ma'am.

Q.   And you weren't able to recognize him?

A.   No, ma'am.

Q.   Okay.  That's all I have.  Thank you.

A.   Okay. 

Q.   Oh.  One moment.  One moment. 

[Discussion followed off the record between Ms. Rogan and Mr. Moore.]

BY MS. ROGAN:

Q.   I have one more question.  You've described to us traveling up Peachtree Industrial and passing through several traffic area -- traffic light areas, intersections, where it seemed like the police car was going to hesitate.  Did you get stopped at any of these traffic lights?

A.   Not that I remember, no, ma'am.

Q.   Okay.  So it was green all the way up?

A.   Pretty much, yes, ma'am.

Q.   Okay.  Thank you. 

MS. ROGAN:  That's all I have.

THE COURT:  Redirect?

MR. PORTER:  I don't have any other questions for Mr. Omodt, Your Honor.  We'd ask that he be excused.  He's available, but he travels in his work, so I have to work around his schedule.

THE COURT:  All right.  He'll be on call if needed.  All right.  Mr. Moore?

MR. MOORE:  Your Honor, we have him under subpoena, too, I believe.  It would be fine if he's on call.

THE COURT:  All right.  You can come down. 

THE WITNESS:  Thank you.

THE COURT:  You can come down.  Call your next witness, please.

[The witness stepped down from the stand.]

MR. MOORE:  How much notice would we need to give you, Mr. Omodt, if we did need you back?

THE WITNESS:  A few hours.  A few hours.

MR. MOORE:  Okay.  A day or two's notice would be enough for you?

THE WITNESS:  I travel.  My job takes me down to Florida this week actually.

MR. MOORE:  Okay.  Thank you.

THE COURT:  Call your next witness, please.

MR. PORTER:  Your Honor, may we approach?

THE COURT:  Yes, sir.

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

MR. PORTER:  Your Honor, I'm prepared to go forward with Mr. Kautter.  The eyewitness is the next witness.  I don't know how lengthy that's going to be, and I don't know how the Court wants to schedule it.

THE COURT:  I think I'd rather go ahead and get him out of the way.  It doesn't sound like a real long witness anyway.  We got at least a half hour --

MR. PORTER:  All right.

THE COURT:  -- before noon or so.

MS. ROGAN:  He may be lengthy.

MR. MOORE:  Your Honor, it may be fairly lengthy.  We've got the transcript of what this hearing is about.  I forget exactly now, but it's about that thick of his testimony.

MR. PORTER:  Your Honor, the eyewitness ID hearing was two hours long.

THE COURT:  Do you think we're going to be that long this time around?

MR. MOORE:  It's very possible, Your Honor.

MR. PORTER:  Mr. Moore mentioned his card trick with the photographs in his opening statement and I would expect that.

THE COURT:  How long do you think your direct would be?

MR. PORTER:  Twenty, thirty minutes.

THE COURT:  I think my inclination would be let's get the direct out of the way, and that would put us about noon or so and then take a recess.  We'll recess for lunch, and you can do your cross, and then the rest of it.

MR. PORTER:  That's fine with me, Your Honor.  Like I said, I'm ready to go forward.

THE COURT:  Okay.  I'd rather push on another half hour or so.

MR. PORTER:  Yes, sir.

THE COURT:  Okay.

[Bench conference concluded.]

THE COURT:  Call your next witness, please.

MR. PORTER:  The state would call Mr. Karl Kautter to the stand.

[The witness was called to the courtroom.]

THE COURT:  Sir, if you'll take the stand up here, please.

MR. PORTER:  If you'll take the witness stand right up there. 

[The witness stepped to the witness stand.]

MR. PORTER:  Good morning.

THE WITNESS:  Good morning.

Whereupon,

     KARL HEINZ KAUTTER

having been called as a witness, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   Could you state your name and spell it, please.

A.   Karl Heinz Kautter, K-a-u-t-t-e-r, K-a-r-l,      H-e-i-n-z.

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.

Q.   Let me call your attention specifically to    April 15 of 1993.  On that evening, did you have an occasion to go with Mr. Omodt to RBM of Atlanta in Sandy Springs?

A.   Yes, sir.

Q.   Could you describe why you went over to RBM Mercedes and about what time of the day or night you went?

A.   It was a wholesale accounts meeting that we attended after hours in the evening.

Q.   And what time did you arrive in Sandy Springs, do you believe?

A.   Between six and seven o'clock.

Q.   How long did you stay at the wholesale accounts meeting?

A.   We left right around nine o'clock.

Q.   And how -- was any food or drink served at the meeting?

A.   Yes, sir.

Q.   Was any alcohol served?

A.   No, sir.

Q.   Did you have any alcohol at any time after hours that night?

A.   No, sir.

Q.   So if you left Sandy Springs at about nine o'clock, were you driving back to the Sugar Hill area?

A.   Yes, sir.

Q.   And did you happen to be on the portion of Peachtree Industrial Boulevard around the Gwinnco Muffler Shop?

A.   Yes, sir.

Q.   About what time did you arrive in that area of Peachtree Industrial Boulevard?

A.   Between nine-thirty and ten o'clock.

Q.   When you arrived, could you describe for the jury and -- could you describe for the jury what you saw at the Gwinnco Muffler as you crested the hill just south of Gwinnco Muffler?

A.   There were blue flashing lights that were -- that would be on the south side of Peachtree Industrial.  There's two buildings that are in there.  There's a muffler shop and there's a garden store or fence store or something like that that's south of Gwinnco Muffler, and there was a car with blue lights that was there.

Q.   All right.  Were you driving the car or riding?

A.   No, sir.  I was the passenger.

Q.   And when you saw these blue lights on Peachtree Industrial Boulevard at the Gwinnco Muffler, what did you do?

A.   I told Paul Omodt to watch his speed, for -- for starters.

Q.   All right.  And as you approached the Gwinnco Muffler, were you watching and paying attention to the blue lights?

A.   Yes, sir.

Q.   At any point, as you approached the Gwinnco, did they turn off?

A.   Yes.  The lights were turned off.

Q.   As you approached the Gwinnco Muffler, could you see how many vehicles were there?

A.   Yes.

Q.   Were there in the driveway?

A.   Yes.

Q.   Could you describe for the jury how many vehicles and what they looked like?

A.   There were two vehicles that were in Gwinnco Muffler's driveway, not in their parking lot.  There was a Gwinnett County patrol car behind another car.

Q.   All right.  Can you describe the car that the patrol car was behind?

A.   Not really.

Q.   Do you have any general impression of it, the  size or --

     A.   It was a mid-size automobile.  It was not -- it was not a small automobile like a little Japanese car.  It was not a small car.

Q.   And can you describe the patrol car that you saw?

A.   It was a white Gwinnett County patrol car.

Q.   Do you remember the -- the police call them emergency apparatus -- but do you remember whether it had a light bar on it?

A.   Yes, sir.

Q.   And as you approached, did you see anyone near the vehicles?

A.   There was a person walking up towards the vehicle, the vehicle that was in front of the police car.

Q.   Could you describe that person?

A.   Medium build, over six feet, not a heavy-set individual, but a medium build.  I mean fairly stocky, about my build but taller than myself.

Q.   Could you describe what that person was wearing?

A.   He had rain gear on.  It was -- because it had been raining.  There was rain gear that was on and a big brim hat that was -- that was on.

Q.   Did you notice anything about the hat, other than that it was a big brim?  Did you notice anything else about it?

A.   It had a covering on it, like a plastic covering on the hat.

Q.   And what color was the rain gear; do you remember?

A.   Yellow.

Q.   Could you describe -- when you say rain gear, could you describe -- there's different kinds of rain gear.  Could you describe what you remember about the rain gear?

A.   A rain jacket is about all I can recall.

Q.   Did the person that you saw walking up to the dark-colored car have anything in their hands?

A.   A flashlight.

Q.   Could you tell the sex or race of the person?

A.   No.

Q.   At the time you saw this, did you think anything unusual was happening right there?

A.   Not at the time.

Q.   What did you think was happening?

A.   Just someone being pulled over for a traffic violation or something or speeding.  Something in that nature is what I had thought.

Q.   Were you paying -- were you paying attention?

A.   Briefly, just to acknowledge that the car was there, that it was a police car parked behind another automobile, and that there was an officer there walking up to another automobile.

Q.   And could you describe as you passed the Gwinnco, right as you passed the Gwinnco, what are the lighting conditions like there?

A.   Not that good.

Q.   And the things that you've described, were they in the illumination of your headlights?

A.   Yes, sir.

Q.   Let me ask you, did you continue north then on Peachtree Industrial Boulevard?

A.   Yes, sir.

Q.   And as you passed the Gwinnco, did a car -- well, as you were just passing the Gwinnco, were there any other cars in the area other than the cars you've just described?

A.   There was a small car, I believe a Honda or something, a small Japanese car, that was in front of us, but he was quite a distance in front of us --  Q.   Were you --

A.   -- this other car was.

Q.   Were you aware of any vehicles behind you?

A.   No, sir.

Q.   Were you aware of any other police cars in the area?

A.   No, sir.

Q.   Now, as you passed the Gwinnco and went to the portion of Peachtree Industrial Boulevard where it widens out into a four-lane, did you notice a vehicle come up behind you?

A.   There was a car that came up behind us.  We were in the left lane.

Q.   All right.  Could you describe whether or not it came up -- or what rate of speed it came up?

A.   Not really, other than it -- it happened fairly quick.

Q.   And as the vehicle came up behind you, what happened then?

A.   That vehicle had gotten in the right lane.

Q.   Did the car that got in the right lane pass you?

A.   No, sir.

Q.   What did it do?

A.   It was just alongside us for a -- for a given point in time and had hesitated to turn a couple of times, but never really went anywhere --

Q.   All right.

A.   -- the car didn't.

Q.   Let me ask you for a second to step down from the witness stand, and I'm going to show you a diagram and ask you to describe to the jury what was happening.

[The witness stepped down before the jury box.]

BY MR. PORTER:

Q.   And I have a pointer for you, too.  Now, Mr. Kautter, this is Defense Exhibit -- or, excuse me, State's Exhibit Number 3, which has previously been identified and admitted as a scale drawing of the area from Peachtree Industrial Boulevard where it goes into a four-lane just north of the Gwinnco Muffler, all the way to its intersection with R. H. Smith Boulevard.  This is Georgia 20 or Nelson Brogdon Boulevard.  This is its intersection with Alton Tucker Boulevard and First Avenue.  This is its intersection with Roosevelt Circle.  So does this diagram, based on your knowledge and experience, appear to be a true and correct diagram of the area of Peachtree Industrial Boulevard which we have been discussing in your testimony?

A.   Yes, sir.

Q.   All right.  What I'd like you to do, if you could, is take the pointer so that all the jury can see and describe the movement of the car that came up behind you and eventually pulled up to your right, and the travel that you both made northbound.

A.   Gwinnco Muffler would be approximately in here somewhere and there's another building here.

Q.   Well, Mr. Kautter, it's already been stipulated that Gwinnco Muffler is off the diagram to the south.  [Indicating]

A.   Back that far?

Q.   Back this far.

A.   Well, this is done to scale?

Q.   This is done to scale as far as it goes.

A.   Okay.  We were -- oh, this is only showing one-half --

Q.   No, this shows both lanes.  This is the northbound lane; this is the southbound lane.

A.   Okay.  Here's where it -- that's where it turns into your double lanes.  We were approximately in this area when this car came behind us and was in the same lane which we were in.  At that point in time the car came to our right-hand side, and we had followed one another -- next to one another up until First Avenue.  The car hesitated to turn at First Avenue, but did not.  We went up, and there's a traffic light here and there's one here.  Both lights were green.  We didn't have to stop at either light.  And the car hesitated to turn right on Highway 20 as well, but did not.  So we both continued north on Peachtree Industrial.  The car that was to the right-hand side of us, the patrol car, turned right on R. H. Smith Boulevard, and then we continued straight on Peachtree Industrial, north on Peachtree.

Q.   All right.  If you could take the witness stand, and we'll move this out of our way.

[The witness returned to the witness stand.]

BY MR. PORTER:

Q.   Mr. Kautter, during the time that the patrol car was beside your car, about how far away from you was it?

A.   I would say no more than eight feet.

Q.   And did you look over into the patrol car?

A.   Yes, sir.

Q.   Did you observe anyone in the patrol car?

A.   Yes, sir.

Q.   Could you describe for the jury what are the lighting conditions -- first of all, what were the lights that you could see on in the patrol car?

A.   Just the instrumentation lights, the speedometer light and so on and so forth that's behind the steering wheel.

Q.   And could you describe for the jury what are the lighting conditions at the intersections that you've described?

A.   One intersection has two street lights.  Highway 20 does not have a street light.  R. H. Smith has a street light.

Q.   And were you paying attention to the patrol car next to you?

A.   Yes, sir.

Q.   Could you describe the person who was driving the patrol car?

A.   At the time I was in the car?

Q.   Yes, as the car was beside you.

A.   It was a fairly tall individual.  To my knowledge did not have a mustache.  I couldn't see a mustache at the time.  And a short haircut.

Q.   Now, after the car turned on, did you go on home?

A.   Yes, sir.

Q.   Later on, were you contacted by the Gwinnett County police department?

A.   Yes.

Q.   Did you come forward willingly?

A.   No, sir.

Q.   But when you were talked to by the police department, did they have the occasion at that time to show you some photographs?

A.   The first time they stopped?

Q.   Well, describe the first time they talked to you.

A.   There was a call that my secretary had received that there were some police officers that wanted to stop in and speak to Paul and I.  At that time I basically knew what it was about, so they had come by and took our statements.  Later that day -- that was on a Friday.  Later that day the secretary came to me again and had said that the same officers that were there previously that day on Friday wanted to come back after business hours.  And so I went ahead and got on the phone with them.  They had asked if they could come by, and they wanted us to look at a photo lineup that they had.  And I said, 'Well, that will be fine.  Come by at roughly quitting time, five o'clock,' and we would do that.

Q.   And did you in fact look at that photographic lineup?

A.   Yes, sir.

Q.   Let me show you what we have previously had marked for the purposes of this hearing as State's Exhibit Number 32, and if you could take a look at that, please, and see if you could identify it.

A.   That's the same Manila -- Manila envelope with the pictures in it that I looked at on that Friday.

Q.   And when you looked at that, were you able to identify one of the photographs as the person driving the patrol car on April 15, 1993?

MR. MOORE:  Your Honor, just for the record, we would renew our objection.  We realize the Court has already made rulings on this in the past, but we would renew our objections to the photographic lineup.

THE COURT:  All right.  Your objection is overruled.  Go ahead, please.

BY MR. PORTER:

Q.   Mr. Kautter, the question was when you looked at the photographs, were you able to identify a person from those photographs as the person you saw driving the patrol car on April 15, 1993?

A.   Yes, sir.

Q.   And could you point out or designate by number which photograph it is?

A.   Number three.

Q.   During the time that you were looking at these photographs, did the officers do anything to encourage you to make any particular choice?

A.   No, sir.

Q.   Did they indicate to you after you had made a choice that you had made the correct choice?

A.   No, sir.

Q.   Did they indicate to you in any way your choice was right or wrong?

A.   Paul and I were separated and put in two separate offices.  He was with one individual and I was with another individual, police officers, and he had just said, 'Thank you very much,' and had gotten up and that was it.

Q.   Now, Mr. Kautter, I'm going to ask you to look around the courtroom.  Do you see the man in court today that you identified from the photographic lineup and that you saw driving the patrol car on April 15 of 1993?

A.   Yes, sir.

Q.   Could you point him out for the jury, please?

A.   [Indicating]

Q.   And could you describe what he's wearing?

A.   A greenish-colored sport coat, tie, white shirt, glasses.

MR. PORTER:  Your Honor, if the record could reflect that Mr. Kautter has identified the defendant, Michael Chapel, as the operator of the patrol car.

THE COURT:  It will so reflect.

MR. PORTER:  I have no other questions for      Mr. Kautter.

THE COURT:  Would you approach the bench, please?

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

THE COURT:  Do you think you're going to be a while, Johnny?

MR. MOORE:  Your Honor, I think it will take at least half an hour.  I mean --

MS. ROGAN:  And I think more than that.

MR. MOORE:  Or maybe more. 

THE COURT:  Okay.  Well, we'll just recess at this point for maybe an hour.  Is that sufficient?

MR. PORTER:  Yes, sir.  My problem has been solved.

THE COURT:  Okay.  They're not leaving? 

MR. PORTER:  My group usually starts eating lunch around 11:30, so --

THE COURT:  Okay.  We'll take an hour at this point, and then we'll recommence at one o'clock.

MS. ROGAN:  Should we -- yesterday, I don't know if it was because of our jury or a different jury, but the cafeteria was closed when we went down there, and we had to go out for lunch --

THE COURT:  Oh, did you?

MS. ROGAN:  -- which made us pressed for time.

THE COURT:  Well, an hour is -- well, I didn't know they'd closed the -- they close the cafeteria?

MR. PORTER:  They close it off.  They lock it off.

MR. DAVIS:  To send them through the line.

THE COURT:  Okay.  That's probably just while they're going through the line, though.  They'll re-open it.

MS. ROGAN:  Okay.  Well, we didn't want to take the chance yesterday --

THE COURT:  Yeah.

MS. ROGAN:  -- waiting to see how long it was going to take, so we went out.

MR. PORTER:  It takes them about twenty minutes to get them through.

THE COURT:  Okay.  Well --

MS. ROGAN:  It kind of cuts our lunchtime short.

THE COURT:  Yeah.  Well, I don't have a cure for that.

MS. ROGAN:  We just thought we'd let you know about it.

THE COURT:  Okay.  All right.

THE COURT:  We'll take an hour.  We'll take an hour.

MS. ROGAN:  All right.  Thanks. 

[Bench conference concluded.]

THE COURT:  Are y'all ready for lunch?   I think we're at a good stopping point here to pause for a lunch recess, and that's what we'll do at this point.  We will recommence with the testimony of this witness after lunch.  We're going to take an hour or so.  We'll recommence at one o'clock.

          I remind you to leave your pens, pads, and notes in your seats.  They'll be waiting on you when you return.  I remind you again that you've heard part of the case presented to you at this point, but you've not heard all of it.  I remind you that you ought to continue to keep an open mind in the matter.  There ought not to be any discussions, deliberations, allow anybody else to discuss the case with you or in your presence.  Just wait, look, and listen until you've seen and heard all of the case presented to commence your deliberations in the jury room and make up your own mind at that time.

          We'll take one hour.  We'll recommence at one o'clock.  If you'll go with the bailiff, please.

[The jury was excused from the courtroom for the lunch recess.  A conference was held at the bench between Deputy Mack and the Court.]

MS. ROGAN:  Your Honor, I don't know what you're about to get into, but the witness is still on the witness stand.

THE COURT:  Yeah, well, it's not going to matter.  I'll go ahead and release Mr. Kautter, though.          Mr. Kautter, you need to be back at one o'clock.  So you can come down.

[The witness stepped down from the stand and was excused for the lunch recess.]

THE COURT:  I have a concern with one of the members of the audience, the lady in red in front of the TV camera, what is her connection?

DEPUTY MACK:  That's not her.

THE COURT:  Okay.

DEPUTY MACK:  The one -- the last one, the one with the pink on, the last one --

THE COURT:  Would you point her out, please.

DEPUTY MACK:  She's going to be right there.

DEPUTY SOSEBEE:  In the blue and white stripes beside her.

DEPUTY MACK:  Next --  [Indicating]

THE COURT:  I still don't know who you're talking about.

SERGEANT PARR:  Eddie, just walk up there and point her out to the judge.

DEPUTY MACK:  This young lady right here.

THE COURT:  Okay.  In the red-pink top?

DEPUTY MACK:  Yes, sir.

THE COURT:  Ma'am, what is your connection with the case?

AUDIENCE MEMBER: Friend.

THE COURT:  All right.  I'm going to ask you -- you're a friend of whom?

AUDIENCE MEMBER:  The defendant.

THE COURT:  I'm going to ask you to not be here this afternoon.  I understand that you've been crying during the course of it, and it's a distraction to the jury if we have anybody in the audience who is showing emotion.  It's distracting to the jury.  Anybody can remain in so long as it's not a distraction to the jury, so long as there's not any sort of --

AUDIENCE MEMBER:  I was coughing.

THE COURT:  Okay.  All right.  Well, I'll allow you in this afternoon so long -- with a caution that there is no kind of emotions or directions or demonstrations of any kind with respect to the jury, and that applies to everybody in the courtroom.

MR. PORTER:  Your Honor, we would ask that the spectator be identified.

THE COURT:  And what is your name, ma'am.

AUDIENCE MEMBER:  Aretha.

THE COURT:  I'm sorry?

AUDIENCE MEMBER:  Aretha.

THE COURT:  And what is your last name?

AUDIENCE MEMBER:  Williams.

THE COURT:  All right.  All right.  That will be the direction of the Court and that will apply to everybody in the courtroom, please.  Anything else,    Mr. Porter?

MR. PORTER:  Nothing from the state, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  Nothing from the defense, Your Honor.

THE COURT:  We'll be in recess until one o'clock.

[Lunch recess]

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3421

 

 

      AFTERNOON SESSION

[Proceedings resumed following the lunch recess with all parties present.  The jury was not present.]

[Counsel approached the bench and the following conference ensued.]

MR. MOORE:  Your Honor, I wanted to use some photographs that I had previously used in examining the next witness.  They're part of the transcript, but the question is, I handed them to him as a group last time.  Do we -- are they attached to this?

MS. ROGAN:  Oh, right.

MR. MOORE:  I guess the question is how to use them without messing up the transcript.

THE COURT:  Well, we have copies of the transcript, and I guess --

MR. PORTER:  I don't have any objection to handing them over on the -- attached to the sheet of paper, Your Honor.

MS. ROGAN:  Yeah, I was going to say, detach these.

THE COURT:  On those pages and just --

MS. ROGAN:  And just hand them --

THE COURT:  Well, I guess, you could make a copy of the originals after you get through today or something and replace them back and stipulate the copies for the originals, which I guess we should have done the first time, but nobody thought of it.

MR. PORTER:  I thought we had.

MS. ROGAN:  We had.

MR. PORTER:  I thought we had.

MR. MOORE:  We've got color copies that I could give to --

MS. ROGAN:  But the copies weren't placed --

MR. MOORE:  Right.

MS. ROGAN:  -- into the record.   The originals were.

MR. MOORE:  They weren't -- yeah, they weren't part of it.

THE COURT:  But these photographs are going to be in evidence anyway; right?

MR. MOORE:  Uh-huh.

MS. ROGAN:  Right.

THE COURT:  So they'll be in evidence anyhow and part of the record.  Do you want to just --

MR. PORTER:  Well, the problem is how are you going to get them into evidence?  How are you going to get them into evidence?  This witness can't identify them or lay the foundation for them.

MS. ROGAN:  No.  We have witnesses that can --

MR. MOORE:  If you want me to call the chief or somebody up here to testify to them, I can.  He's under subpoena, when my time comes --

MS. ROGAN:  They don't have to go into evidence with this witness.  They just can be identified.

MR. PORTER:  But he can only identify them as photographs you've shown him.

MS. ROGAN:  Right.

MR. MOORE:  We subpoenaed these from the police department.  You supplied them pursuant to my subpoena.  The subpoena's in here, too, you know, I mean, so if you're saying that you're not going to agree to who they are, then I'm going to have to subpoena the chief or somebody to come and identify these as the officers who worked in the precinct at that time.

MR. PORTER:  Well, all I'm saying is I handed over a packet of photographs that were provided to me by the police department.  I mean, I assumed that --

MS. ROGAN:  Well, whoever testified at this hearing confirmed that these were --

MR. PORTER:  Nobody testified --

MS. ROGAN:  Burnette?

MR. MOORE:  No.

MS. ROGAN:  He wasn't there?  Okay.  I'm mistaken.

MR. MOORE:  They were supplied to Danny. 

MR. PORTER:  They were supplied to me and they were supplied to Johnny.

MS. ROGAN:  But didn't somebody else testify at this hearing?  One of the officers I thought testified at this hearing.

MR. MOORE:  But they didn't know if all the officers worked at the northside precinct.

MS. ROGAN:  Oh, okay.

MR. MOORE:  Well, Judge, I believe I can connect it up.  I'll represent to the Court I can connect it up.  I subpoenaed these from the police department.  They were supplied to me pursuant to the subpoena, which is a part of this transcript of the ID hearing previously.  And unless the police department didn't comply with the subpoena, they are the people at the northside precinct, and I can call the chief or somebody that can testify to that.

MR. PORTER:  Your Honor, all I want to do is I don't want to waive any rights I'm going to have by agreeing -- I don't want to limit Mr. Moore's cross examination of this witness.

THE COURT:  Okay.  To expedite it, you want to just let Mr. Moore represent that that's a response to the subpoena as far as the officers of northside?  And you just simply, if there's any issue about that, it turns out that's not the case, then you've got the right to come back on it in your rebuttal or case in chief or whatever?

MR. PORTER:  Well, Your Honor, I would ask that --

MS. ROGAN:  We'll connect it up during our case.

MR. PORTER:  -- they connect it up during their case.  And if they don't, then I'm allowed to comment on that.

THE COURT:  Comment how?

MR. PORTER:  Well, in my closing argument or to object to the -- I mean I'm just reserving my rights, because it's just like if I say that I'm going to connect something up later down the road and I don't, then that evidence can be excluded.

THE COURT:  Okay.  So you're going to represent that these are pictures of the -- was this all the officers from northside or just --

MR. MOORE:  I subpoenaed all the officers working at the northside precinct in April of 1993.

THE COURT:  Okay.  And this is them?

MR. MOORE:  That's what I was provided by the police department through Mr. Porter.

THE COURT:  Okay.  How many of them are there?

MR. MOORE:  There's --

MR. PORTER:  Thirty-one or thirty-two.

MS. ROGAN:  Thirty-three.  Two of them are women.

MR. MOORE:  They're D-3 through D-33.

THE COURT:  Okay.  And then what you contemplate doing with them?

MR. MOORE:  Showing some of them that this witness picked out before to him.

THE COURT:  Okay.  With the representation that these have been provided by --

MR. MOORE:  By the police department.

THE COURT:  And what other burden do you want to put on him to do that --

MR. PORTER:  Well, Your Honor, I'm not going to necessarily place a burden.  I'm just not going to waive anything at this point.  I don't want to -- I mean I don't want to restrict his cross-examination and interrupt the trial to have an authenticity hearing at this point, but I don't want to waive any rights I might have as far as these particular photographs.

THE COURT:  Okay.  Well, if there's -- I guess my question is, is there an objection or is there a stipulation or is there a what?

MR. PORTER:  There's a stipulation that for the purposes of this witness, I have no objections that the photographs be used in cross-examination and that they, at this point, be considered authentic, but that's based on Mr. Moore's representation that he's going to connect  up --

THE COURT:  Okay.

MR. PORTER:  -- and authenticate the photographs.

THE COURT:  Okay.  And how is he going to do that?

MR. MOORE:  I'm going to call Chief White, Your Honor, and he'll know who worked for him.

THE COURT:  Okay.

MR. MOORE:  If he doesn't, he can bring somebody up here that does.

THE COURT:  Okay.

MR. PORTER:  Or the custodian of records or whoever did it.

MR. MOORE:  I'll call Chief White.

THE COURT:  Okay.

MR. MOORE:  He can find out who did it.

THE COURT:  Or you might have them take a look at them and then you can just stipulate to them.

MR. PORTER:  I mean, Your Honor, I'm just protecting myself --

THE COURT:  Well, I understand.

MR. PORTER:  -- because I was handed an envelope of photographs.  I gave them to Johnny and said, 'This is what I've got.'

THE COURT:  Well, I don't have a problem with that.  My question is just for the record is what are we doing?  That's my concern, so that tomorrow we don't come back and have a big --

MR. PORTER:  For the record, at this point, I'm prepared to agree that Mr. Moore can represent to the jury that those are the Northside officers.  He can cross-examine the witness using them based on --

MS. ROGAN:  Can we take them out of this?

MR. MOORE:  I suppose.

MR. PORTER:  -- based on him telling me that he can connect it up, and I'll reserve any rights I have if that connection doesn't -- isn't made.

THE COURT:  Okay.  Is that satisfactory,        Mr. Moore?

MR. MOORE:  That's fine.  I don't mind calling the chief, Your Honor.

THE COURT:  All right.

MR. MOORE:  Your Honor, we probably ought to put on the record for the benefit of the court reporter that these pictures I'm going to use are the originals that are attached to the Motion for Closure of Evidentiary Hearing and Motion to Suppress Out-of-Court Identification, July 10, 1995.  They're attached as Defendant's Exhibits Number 3 through 33, and we're going to detach them and use them for the purposes of this hearing and then we'll return them to the court reporter to be replaced in the transcript at the end of the hearing or put copies of them in the transcript.

THE COURT:  All right.  Do you want to just have copies of them -- substitute copies for these and make the originals part of the record in this case?  I mean, that doesn't --

MR. PORTER:  Your Honor, we can substitute copies in the transcript of July 10 and use these as part of the trial.

THE COURT:  Yeah.  That's what I'm suggesting and then these -- use these, the originals, as -- okay.  That doesn't mean they go out.  They may or may not go out with the jury, but at any rate that would make them part of the record in the trial.

MR. PORTER:  That's fine with me, Your Honor.

THE COURT:  Okay.  Mr. Moore?

MR. MOORE:  That's fine, Your Honor.

THE COURT:  So stipulated.

MS. ROGAN:  Is it all right for us to remove these pages from the transcript?

MR. MOORE:  I think they're just taped.  I think we can just remove them.

MR. PORTER:  I would suggest --

MR. MOORE:  Take the whole page out.

MR. PORTER:  I would suggest that we take the whole thing and then make copies.

THE COURT:  Yeah.  I guess if they're -- well, to match them back up with the copies that are already on file, they're on page numbers --

MS. ROGAN:  Right.

MR. PORTER:  I would suggest that what we do is remove the original pages --

MS. ROGAN:  Uh-huh.

MR. PORTER:  -- make copies --

MR. MOORE:  And I don't care if they're black and white copies for these.

MR. PORTER:  -- and then you can do what you want with these photographs.

MS. ROGAN:  Okay.

THE COURT:  Well, we already got copies that are in the copies of the transcripts.

MS. ROGAN:  Right.

THE COURT:  I mean, the copies are already in place with our --

MS. ROGAN:  The same picture and the position in the transcript.

THE COURT:  -- page number.

MS. ROGAN:  The photos themselves have the exhibit number on the back, so --

MR. PORTER:  My copy of the transcript doesn't have the exhibits, Your Honor.

THE COURT:  Okay.  It doesn't have the photos?  They're just in there.

THE REPORTER:  They were delivered separately to get the transcript delivered and then the exhibits came later.

THE COURT:  Okay.  So at this point, we've got one set of photos, and that's the originals, and the original transcript and no copies anyplace else.

MR. MOORE:  Your Honor, there's a copy down in our office down there that I can give to Ms. Atkinson if you want me to include it.

THE COURT:  Well, I may have -- I had a --

MS. ROGAN:  You've got a transcript with the copies in them.

THE COURT:  The copies of the photos.  They're just an attachment to the separate attachment to the transcript?

THE REPORTER:  Right.

THE COURT:  Okay.  So everybody's got copies of the photos.

MS. ROGAN:  We have copies.

MR. PORTER:  What I would suggest, Judge, is that one set of the copies just be substituted in this original transcript --

THE COURT:  Yeah.

MR. PORTER:  -- just stuck on there and remove the original.

THE COURT:  Or make a copy of the copies -- well, you can take mine, for that matter, and put my copies in that and make a copy and replace it so I've got the copy of the copy.  I mean I don't care.  That will give the best copy you're going to get is the original transcript.

MR. PORTER:  And then just substitute it on to the end of this transcript of July 10 and remove the documents and give them to Mr. Moore for whatever --

THE COURT:  Yeah.  Well, that's been filed, but I don't think it makes any difference.  On the face of it it's been filed.  We might just do that in court so that those are put back in there and note which pages you -- we've already got the record reflected it's 3 through 33 are coming out.

MR. MOORE:  Right.

MS. ROGAN:  Yes.

THE COURT:  And replace 3 through 33 and do that in everybody's presence in the courtroom so everybody's clear and if anybody's got any objection, they can make it.

MR. MOORE:  How do we want to re-number these today, too, because we've already got, I think, numbers that correspond with these in evidence today, so if we've got them --

THE COURT:  They're just marked on the back or labeled?

MS. ROGAN:  Yes.

MR. PORTER:  They're just labeled on the back.

MS. ROGAN:  -- it's a Defendant's Exhibit, but it's for a hearing as opposed to the trial.  We could put them over --

MR. MOORE:  We could put the label over the label itself.

THE COURT:  Does it make any difference if those be preserved or not?

MR. PORTER:  I think that once the copies are made, Your Honor, it doesn't make any difference.

THE COURT:  Okay.  And we've got the copies made, so you can just put the labels directly over those.

MR. MOORE:  Okay.

THE COURT:  Everybody agree with that?

MR. MOORE:  That would be fine, Your Honor.

THE COURT:  So stipulated.  Okay.

MS. ROGAN:  So we can remove these?

THE COURT:  Just pull them out --

MS. ROGAN:  Okay.

THE COURT:  -- and then relabel them.  Okay.

MR. PORTER:  Relabel them and then we'll just put copies on the back.

MS. ROGAN:  Okay.

THE COURT:  Okay.  Does the order make any difference?  Is there any particular order?

MR. MOORE:  In the same order they are would be fine.  Put the labels on the same numbers they have now.

THE COURT:  Okay.  Mary, just keep them in the same order they are and put the labels on top of them.

[Bench conference concluded.]

[Off the record during labeling of exhibits.]

THE COURT:  Defendant's Number 14 through what? 33, 34?

THE REPORTER:  Forty-four.

THE COURT:  Oh, I'm sorry.  Forty-four.  Through forty-four?

THE REPORTER:  Yes, sir.

THE COURT:  All right.  Is the state ready?

MR. PORTER:  Your Honor, two things.  I believe that because of the bench conference the state's position as to the admissibility of those documents is already on the record; is that correct?

THE COURT:  Say it again, please.

MR. PORTER:  Since the bench conference was recorded, I would assume that the state's position as to the admissibility of the photographs that Mr. Moore has that have been designated as defendant's exhibits is on the record, and it won't be necessary to bring that up in front of the jury.  Or would the Court want to put that on the record at this point?

THE COURT:  Mr. Moore, is everybody satisfied with the stipulation?

MR. MOORE:  Your Honor, I'm satisfied.  I will bring to the Court's attention that the three that I intend to use were marked -- they're now marked Defendant's 31, 38, and Defendant's 41, where at the July 10 hearing, they were marked Defendant's 20, Defendant's 27, and Defendant's 30, if that's of any significance.

THE COURT:  Okay.  Would you say that one more time?

MR. MOORE:  Okay.  The three photographs that I particularly intend to use, those are the ones that    Mr. Kautter picked out at the July 10 hearing.

THE COURT:  All right.

MR. MOORE:  At the July 10 hearing, they were numbered Defendant's Exhibit Number 20, Defendant's Exhibit Number 27, and Defendant's Exhibit Number 30.

THE COURT:  All right.  And they are now what?

MR. MOORE:  They are now Defendant's Number 31, 38, and 41.

THE COURT:  All right.  Insofar as -- I think we stipulated on the record at the bench.  If you want to -- if you think there's any need to re-state it, Mr. Porter, you can.

MR. PORTER:  Your Honor, I'm satisfied that the bench conference was recorded and it's on the record.

THE COURT:  Okay.

MR. PORTER:  And I'll reserve all my options on that.  I don't think there's any further necessity to discuss it.  I just want to make sure the Court was satisfied.

THE COURT:  All right.  Everybody understands your objection is made for the record.  We have a stipulation as to their introduction or at least their being used in the course of this hearing to be connected up later, with the state reserving whatever right you may have if they're not connected up or otherwise.

MR. PORTER:  Yes, Your Honor.

THE COURT:  Is that a fair statement, Mr. Moore, of where we are?

MR. MOORE:  Yes, Your Honor.  And for Mr. Porter's benefit, too, I do intend to state in the presence of the jury these photos were provided to me pursuant to police subpoena.

THE COURT:  Okay.

MR. PORTER:  Your Honor, I understand that.

THE COURT:  Okay.

MR. PORTER:  But I'm going to ask that the foundation be laid for the photographs because there is a concern for the state, particularly since I was only a more or less a chain witness in this.  The subpoena -- the photographs were delivered to me --

THE COURT:  Insofar as a foundation, I'm not sure I understand what you're saying.

MR. PORTER:  Well, for instance, Your Honor, I have no information that those photographs are accurate representations of the way the officers looked in 1993.

THE COURT:  Okay.  But is that a -- my question is is that an objection you intend to make at this point or are you just simply reserving the right to raise that if   Mr. Moore does not lay the foundation during the course of proceedings?

MR. PORTER:  That's correct, Your Honor.

THE COURT:  Okay.  And there's no waiver as to any of that?  You're just simply saying he can put them in now and you won't require him to make a foundation, but you reserve the right if he doesn't do it at some time.

MR. PORTER:  That's correct, Your Honor.  Seek whatever remedy that I feel is appropriate with the Court's instruction.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  That's fine, Your Honor.

THE COURT:  Okay.

MR. PORTER:  Your Honor, there is one other matter, and this is a little embarrassing for me.  I neglected to swear Mr. Kautter in, and I would like to swear him in and ask him just to reaffirm and adopt his previous testimony.

THE COURT:  Well, I didn't note it myself.  Mr. Moore?

MR. MOORE:  Your Honor, we'd agreed to that procedure with Mr. Porter.

THE COURT:  Either that or I guess we can hear it all over again.

MR. PORTER:  We'd prefer to swear him --

THE COURT:  All right.  If that's satisfactory, then, you can -- Mr. Porter can swear him and he can reaffirm all his testimony that he's given as being true and correct.  And that's satisfactory, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

THE COURT:  So stipulated.  Anything else,      Mr. Porter?

MR. PORTER:  Your Honor, I believe that's all -- I believe that's all the mistakes I've made.

THE COURT:  All right.  Is the defendant ready?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Bring the jury back, please.

[The jury returned to the courtroom and proceedings continued, as follows.]

THE COURT:  Mr. Kautter, if you'll go ahead and re-take the stand, please.

[The witness returned to the witness stand.]

THE COURT:  All right.  Mr. Porter?

MR. PORTER:  Thank you, Your Honor.  Mr. Kautter, I apologize.  I was so anxious to hear your testimony that I neglected to swear you in, so if you could raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  Yes, I do.

Whereupon,

     KARL HEINZ KAUTTER

having been previously called as a witness and duly sworn, was examined and testified further, as follows:

     DIRECT EXAMINATION -- Resumed

BY MR. PORTER:

Q.   And is your name Karl Heinz Kautter?

A.   Yes, sir.

Q.   Do you swear and affirm that the testimony that you gave previous -- well, prior to lunch today, is true and correct?

A.   Yes.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Kautter, my name is Johnny Moore.  I represent Mike Chapel, and I have a few questions to ask you.  Now, on the evening of April 15, 1993, you testified that you'd gone to a meeting with friends of yours; is that correct?

A.   Excuse me?

Q.   On April 15, 1993 --

A.   Yes, sir.

Q.   -- you'd attended a meeting at RBM; is that correct?

A.   Yes, sir.

Q.   Okay.  Now, who was at that meeting besides     Mr. Omodt that you remember?

A.   An individual by the name of Joe Sheehan, numerous other individuals, colleagues of mine in the industry.

Q.   Now, after you left there and you were driving home, what were the weather conditions like?

A.   It had been raining.

Q.   And when you approached the Gwinnco, when it came into sight, what was the weather like at that time?

A.   It was raining.

Q.   Okay.  Now, when you came over the hill, you said you saw the blue lights; is that correct?

A.   Yes.

Q.   Now, when you got closer, you could see the police vehicle; is that correct?

A.   Yes.

Q.   Okay.  And the police vehicle that you saw was a white -- one of the older style with a yellow stripe that went over the top; is that correct?

A.   Yes.

Q.   That's the vehicle you observed?

A.   Yes.

Q.   Okay.  And that stripe is about -- could you indicate how wide that stripe is for us?

A.   I don't recall.

Q.   Could you hold up your hands and show us, I    mean --

A.   The stripe on the side of the car?

Q.   Yes, sir.

A.   The entire stripe?

Q.   Yes, sir.

A.   The entire stripe, I believe, is about like this [indicating] as it goes around the roof.

Q.   Okay.  And when it goes down the side, how big is it?

A.   I don't recall.

Q.   But you're definite that it goes over the roof?

A.   As far as I know, yes.

Q.   Okay.  Now, tell us what else you saw besides the vehicle, now, when you saw it there?

A.   Blue lights and a gentleman at the outside of a police car.

Q.   Okay.  And what was he wearing?

A.   Rain gear.

Q.   Was it a -- you say rain gear, was it a raincoat or --

A.   Yes, sir.

Q.   Okay.  What length was it?

A.   I don't recall the approximate length other than it was yellow rain gear.

Q.   Was it knee length or --

A.   I don't recall.

Q.   -- waist length or --

A.   I don't recall.

Q.   Did it have any reflective markings on it?

A.   I don't recall whether it did or not.

Q.   And on the back of it, did it have anything that said like Gwinnett County Police that reflected or that would  reflect in headlights?

A.   I don't recall.

Q.   Okay.  Was the officer walking away from you?

A.   Yes, sir, at a side view.  We were moving at the same time.

Q.   So you've testified that you saw his plastic rain hat from the headlights; right?

A.   That there was a brimmed hat with a plastic cover on it, yes.

Q.   Did you see the plastic?

A.   On top of the hat, yes.

Q.   Okay.  So if there'd been any reflective lettering on the raincoat, you would have seen it, wouldn't you?

A.   It probably would have stuck out, yes.

Q.   Now, describe the car, if you would.  Was it -- the blue lights were on.  Were the doors open?

A.   No, sir.

Q.   Was the dome light on?

A.   No.

Q.   Were the headlights on or off?

A.   I believe the headlights were on.

Q.   Were on?

A.   Yes.

Q.   And the shape of the car, now, was it the older squared-style shape?

A.   Meaning?

Q.   Okay.  You know what I'm talking about.  The older cars before the recent models, they were more square in shape.

A.   No, I don't know what your -- what the meaning of square or round.  The rear of the car?

Q.   What was the shape of the car?

A.   It was a four-door sedan.

Q.   What I mean by the shape of the trunk, is it rounded or does it come off square?

A.   The shape of the trunk?

Q.   Yes, sir, on the police car.

A.   I don't recall.  I would think square.  The majority of them are square.  Trunks are.

Q.   Is your shop a body shop?

A.   Service shop, a service shop, sir.

Q.   Okay.  You work with automobiles, though?

A.   Just Mercedes.

Q.   Would you consider yourself to be fairly observant of automobiles?

A.   On Mercedes, yes.

Q.   Now, the blue light, could you describe it for us and tell us what type it was?

A.   It was just a bar light that went across the roof of the car.  It was not a round light.  The bar-styled lighting system.

Q.   I'm going to show you a transcript of a hearing on July 10 where you testified, and ask you to look at --

A.   Okay.

Q.   -- that part right there.

A.   Yes, sir.

Q.   'Were the head lights on the police car --'

THE COURT:  Which page and which line is it,    Mr. Moore?

MR. MOORE:  101, Your Honor.  Page 101, Line 14.

BY MR. MOORE:

Q.   And I asked you were the headlights on on the police car.

A.   Yes.  And I replied no --

Q.   Okay.

A.   -- and then I replied yes.  It's been two and a half years ago, too, sir.

Q.   Now, could you describe the officer that you saw walking up to the car for us?

A.   A fellow relatively my build, a fairly medium to large build, but much taller than myself.

Q.   He was about my height; is that correct?

A.   Yes, sir.

Q.   And you testified he had a flashlight in his hand.  Do you know which hand he had the flashlight in?

A.   No, sir.

Q.   And in relation to the patrol car, where was he in walking up to the car in front of him?  Was he by the door, was he by the front fender, or where was he?

A.   He was on the left-hand side heading to the other car.

Q.   Okay.  Was he past his car or was he still beside his car?

A.   I don't -- I don't know.

Q.   You couldn't tell whether the car was running or not, could you?

A.   No, sir.

Q.   Okay.  And what kind of car were you driving then?

A.   We were in a rental car.  It was a Japanese rental car.

Q.   Do you know what kind it was?

A.   No, sir.

Q.   Was it a big car, small car?

A.   Small car.  Compact car.

Q.   Okay.  Now, you said that the police car came up behind you and passed you at some point; correct?

A.   Yes, sir.

Q.   Okay.  And how quickly did the police car pass you?

A.   Not very quick.  The car came behind us fairly quick and then had gone into the right lane.  We were in the left lane.

Q.   Okay.  So he came up behind you fast and he got beside you and just remained; is that your testimony?

A.   Yes.

Q.   Do you know whether the headlights on the car you were riding in were on high beam or low beam?

A.   Our lights?

Q.   Yes.

A.   I was a passenger.  I don't know if they were on high beam or low beam.

Q.   Were you meeting oncoming traffic?

A.   No.

Q.   Now, when you were -- the police car came up beside you and you looked inside, you said; correct?

A.   Yes.

Q.   And you said you saw the dash lights?

A.   The lighting of the dashboard inside the car, yes.

Q.   Did you see anything on the dash, on top of it, anything like a blue light like the police have?

A.   No.

Q.   You didn't see anything on top of the dash?

A.   [Shaking head negatively.]

Q.   Would you have noticed it if there was something on top of the dash?

A.   Probably not.

Q.   Did you at any time hear anything unusual?

A.   No.

Q.   Was the radio on in the car you were driving?

A.   No, sir.

Q.   Were the windows up or down in the car you were driving?

A.   The windows were up.

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.

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.

Q.   Now, when you saw the officer, what kind of haircut did he have?

A.   In the car --

Q.   Yes, sir.

A.   -- when I observed him then?

Q.   Yes, sir.

A.   A short haircut.

Q.   And was he wearing glasses?

A.   I don't believe so.

Q.   Did he have a mustache?

A.   No.  I'd said no, or if he did, it was a very light mustache.  It was not a heavy mustache.

Q.   So you're not sure whether he had a mustache or not; is that the answer?

A.   Correct.

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.

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.

Q.   Now, how fast was the car that you were riding in going as you approached -- as you came over the hill and saw the blue lights, how fast were you going at that point in time?

A.   Sixty.  Fifty-five, sixty, I would think.  It had been raining.

Q.   Okay.  And you mentioned that you told Mr. Omodt to watch his speed?

A.   Yes, sir.

Q.   And how fast was he going at that time?

A.   When I had told him to watch his speed?

Q.   Yes, sir.

A.   Oh, I don't know.  I don't know.

Q.   You didn't look over at the speedometer yourself?

A.   No.  It was just instinct.  I saw blue lights and I had said, 'Watch your speed.'

Q.   And did he slow down at that time?

A.   Yes.

Q.   Okay.  And how fast was he going then?

A.   I don't know.  I would think -- I would think forty-five miles an hour.  If it was a forty-five mile an hour speed zone and there were blue lights in front of us, I would think he would have gone forty-five.

Q.   Do you know what the speed limit is there?

A.   It's forty-five.

Q.   Okay.  And did he continue on at that same speed up through the intersection, two intersections, until the officer turned on R. H. Smith?

A.   Yes.

Q.   Did you get caught at any of the traffic lights or anything?

A.   No.  Both lights were green.

Q.   Do you drive that road often?

A.   I used to.  I used to.  I've not in three and a half years.

Q.   Is it unusual to get through both of those lights without getting caught at one?

A.   Well, what's really funny about that road is we run that road periodically to pick up parts from the city, and if you get one red light, you'll get all the red lights.  If you get the green light, for the most part, you'll have the green light.  If you stay at the speed limit, you'll have all green lights going down towards Holcomb Bridge Road.  So, no, it's not uncommon to have green lights or all red lights on that street.

Q.   But that would indicate you were going the speed limit then if you got through all of them, is that correct, at  forty-five miles an hour?

A.   Well, it all depends on where you start, you know.  It can add over thirty minutes to the trip to the city if you get all the red lights.

Q.   Mr. Kautter, you had seen a car in front of you earlier that night that you thought might be a friend of yours; is that correct?

A.   Yes.

Q.   Okay.  And you were mistaken about that, weren't you?

A.   Yes.  It was not a friend of mine.

Q.   Okay.  And you thought it was a friend of yours that has since, unfortunately, died; is that correct?

A.   Yes.

Q.   Now, when you saw the officer in the car, when he passed you, you only saw a side view or profile view; is that correct?

A.   Yes.

Q.   He didn't turn and face you or anything?

A.   No.

Q.   Now, when you passed by and saw this police car there, Mr. Kautter, you didn't think it was anything big at the time.  You just thought it was kind of something that caught your attention a little bit.

A.   Just a routine pull-over, yes, sir.

Q.   On a level of one to ten, you said it was about a five or something; is that correct?

A.   I don't -- meaning what, a five?

Q.   Well, was it ten something -- the district attorney asked you this before at a hearing, and on a level of one to ten, what was your attention span to it when you drove by and --

A.   Oh, okay.  I didn't know what you were referring to on that.  Yeah, I'd say about a five.

Q.   Okay.  Mr. Kautter, you'd admit that there's a possibility you could be mistaken in your identification, wouldn't you?

A.   Well, it could be a possibility, yes, sir.

Q.   Thank you.

THE COURT:  Redirect?

MR. PORTER:  Yes, Your Honor.

     REDIRECT EXAMINATION

BY MR. PORTER:

Q.   Mr. Kautter, are you as certain as you can be that the identification you made in court today is the truth, to the best of your knowledge?

MR. MOORE:  Your Honor, that's a leading question.  I think he ought to ask the witness.  He's leading with a question for the answer he wants, to say yes, and I think  Mr. Porter ought to ask the question so it's not leading.

MR. PORTER:  Your Honor, a leading question suggests an answer.  I've asked this witness if he believes that he's as certain as he can be.  That doesn't suggest yes or no.

THE COURT:  Objection's overruled.  Go ahead, please.

BY MR. PORTER:

Q.   Mr. Kautter, are you as certain as you can be that the identification you made in court today is the truth, to the best of your knowledge?

A.   It's something I have to live with.  Yes.

Q.   Let me ask you, the photograph of the person contained in Defendant's Exhibit Number 38 --

A.   Yes.

Q.   -- is that the person who was driving the car that night?

A.   A good similarity.

Q.   But is it the person?

A.   I can't be sure.

Q.   Is Defendant's Exhibit Number 31 the person who was driving the car that night?

A.   No.  That's not J. P. Morgan.

Q.   Is that the person? 

A.   That's -- no.

Q.   Is that the person who was driving the car that night? 

A.   To my knowledge, yes.

MR. PORTER:  That's all the questions I have.

THE COURT:  Recross?

     RECROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Kautter, do you know the Thompson family?

A.   No, sir.

Q.   Okay.  Were you shaking hands with them outside at lunch today?

A.   No, sir.  The Thompson family?  At lunch?  I didn't eat lunch.  I had no lunch.

Q.   Okay.  I didn't ask you if you ate or not.          Mr. Kautter, would you look around, and is there anybody in the courtroom that you shook hands outside with during lunch?

A.   There's one fellow here that I know, yes.  I don't know his last name.  I don't even know his first name.  I know his son's name.

Q.   And where is he seated?

A.   He's over here [indicating].  Older -- elderly gentleman with glasses.

Q.   Wearing a striped tie?

A.   I can't see from here.  Yes, sir.

Q.   Just so I'm sure, too, which one of the photographs was it that Mr. Porter showed you that -- was that Number D-38 that he asked you --

A.   Yes.

Q.   Okay.

MR. MOORE:  That's all the questions I have.

THE COURT:  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor, we'd ask that this witness be excused to return to work.

THE COURT:  All right.  Do you wish him to remain on call --

MR. PORTER:  Your Honor, he lives and works in Gwinnett County.  I think he can be available.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  On call would be fine, Your Honor.

THE COURT:  All right.  You'll be subject to being recalled as a witness, Mr. Kautter, but you can come down at this time.

THE WITNESS:  Thank you.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. PORTER:  I call David McGaha to the stand.  David McGaha.  David.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. McGaha, if you could come forward please, sir.  And if you could take the witness stand right here, please.

[The witness stepped to the stand.]

THE COURT:  If you'll administer the oath, please.

MR. PORTER:  Yes, sir.  Thank you for reminding me.  If you could raise your right hand.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  Yes, sir.

Whereupon,

     DAVID WAYNE MCGAHA, JR.

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   And could you state your name please, sir?

A.   David Wayne McGaha, Jr.

Q.   And Mr. McGaha, where do you live?

A.   Buford.

Q.   All right.  And where are you employed?

A.   Right now, Michael's.

Q.   And what do you do for them?

A.   I'm a store manager.

Q.   Okay.  And how were you employed on April -- in April 1993?

A.   I was an assistant manager with Kmart.

Q.   And where was that store located?

A.   It was at Duluth.

Q.   Is that on Peachtree Industrial Boulevard in Duluth?

A.   Yes, sir.

Q.   How did you normally travel between your residence in Buford and the store where you worked at?

A.   Up Peachtree Industrial to Highway 23.

Q.   Let me call your attention to April 1993, specifically, April 15, 1993.  Were you traveling northbound in the evening between nine and ten, northbound on Peachtree Industrial Boulevard?

A.   Yes, sir.

Q.   Could you describe what time did you leave work that night?

A.   9:30.

Q.   And what time did you get to your car and start your journey north?

A.   9:35.

Q.   Are you familiar with the location of the Gwinnco Muffler Shop on Peachtree Industrial Boulevard?

A.   Yes, sir.

Q.   And did you pass that area that night?

A.   Yes, sir.

Q.   Can you tell us about what time you went by there?

A.   Ten o'clock.

Q.   Okay.  What if anything did you observe in the driveway or around the Gwinnco Muffler when you drove by?

A.   I just noticed a car, a single car sitting on the left.

Q.   And could you describe that car?

A.   At that time, I really couldn't.  I could tell that it was a dark -- excuse me, a dark, late model Buick or Oldsmobile.

Q.   And where was it in the Gwinnco Muffler?

A.   Just as you turned into the driveway.

Q.   Did you notice anything else about the vehicle?

A.   No.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. McGaha, how much traffic was on the road that night when you were going home?

A.   Very little.

Q.   Were there cars in front of you and cars behind you?

A.   No.

Q.   So you were the only car when you went by?

A.   Yes, sir.

Q.   Okay.  And what were the lighting conditions like at that Gwinnco Muffler place when you went by?

A.   Dark.

Q.   Okay.  When you say dark, could you see anything that wasn't illuminated by your headlights?

A.   No.  I think there was a light at the building itself or on the building, attached to the building.

Q.   And did you notice anything unusual about that car that was parked there?

A.   Just that it was parked away from the building.

Q.   And other than that, you didn't notice anything unusual?

A.   No.

Q.   If you could, I'm going to ask you to step down off the witness stand.

[The witness stepped down from the stand.]

BY MR. MOORE:

Q.   And if you would, to the best of your ability, I'm not expecting you to be an artist, if you would draw where the car you saw was parked and if you know which way it was pointing, put an arrow which way it was pointing.

A.   [Marking diagram]  Right here facing the building.

Q.   Okay.  So you indicated it was nearer to the road here?

A.   Yes, sir.

Q.   Okay.  And would you put your initials and the date on the corner that that's north there on that overlay?

A.   Today's date?

Q.   Yes, sir.  You can take the stand.

[The witness returned to the stand.]

[Defendant's Exhibit Number 45 was marked for identification by the court reporter.]

MR. MOORE:  At this time, Your Honor, I'd tender what's been marked as Defendant's Exhibit Number 45, which is a plastic overlay which was marked by McGaha as to where he saw the car on the night of April 15.

THE COURT:  That's the overlay attached to D-3; is that correct?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Okay.

MR. MOORE:  It is.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, the state makes the same objections as previously.

THE COURT:  It's admitted over objection.  It will be for the record at this point.  Go ahead, please.

BY MR. MOORE:

Q.   You didn't see any people or anything out around the car or anything that night?

A.   No, sir.

Q.   Okay.  Was it raining when you came by?

A.   I don't recall.

Q.   Okay. 

MR. MOORE:  Nothing further.  Thank you.

THE COURT:  Redirect?

MR. PORTER:  No redirect, Your Honor.  We'd ask that this witness be excused.  He has taken a new job out of town and that requires his presence.  It's in Chattanooga.  Mr. McGaha's made a trip here to testify, and I don't anticipate recalling him.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I don't see any need to recall him.  Based on what he's testified to, I don't see any need to.

THE COURT:  All right.  You're released from any further attendance in the trial of this case.  You can come down.

THE WITNESS:  Okay.

[The witness stepped down from the stand and was excused from the proceedings.]

THE COURT:  Call your next witness.

MR. PORTER:  We call Juan Perdomo to the stand.

[The witness was called to the courtroom.]

MR. PORTER:  Mr. Perdomo, could you take the witness stand here please, sir.

[The witness stepped to the stand.]

THE WITNESS:  May I sit down?

MR. PORTER:  No, you can go ahead and sit down, and then I'll administer the oath.

THE WITNESS:  Thanks.

MR. PORTER:  If you could raise your right hand, please.  Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  Yes, I do.

Whereupon,

     JUAN PERDOMO [Chapel’s Time of Arrival at the Arden Drive Home]

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. PORTER:

Q.   And you can put your hand down.  If you could speak up so the jurors can hear.  Could you state your name and spell it, please.

A.   My name is Juan Perdomo, J-u-a-n, P as in Peter, e-r-d-o-m-o.

Q.   And where do you live, Mr. Perdomo, now?

A.   2901 Springdale Road in Brunswick, New -- I used to live in New Jersey -- Georgia.

Q.   Well, let me ask you, have you ever resided in Gwinnett County?

A.   Yes.

Q.   And where did you live in Gwinnett County?

A.   Buford.

Q.   Did you live on Arden Drive in Buford?

A.   Arden Drive.

Q.   Let me call your attention to April 15, 1993.  Did you reside on Arden Drive in Buford at that time?

A.   Yes, I did.

Q.   On that evening, did you make a call to the Gwinnett County police department requesting that an officer come to your house?

A.   Yes, I did.

Q.   Could you tell us why did you make the call?

A.   Well, there was these kids in the areas, a pain in the neck for everybody, all the neighbors.  And they started having problems, just one or two boys peeking out the window to my daughter's window.  And there's been a lot of problem because of that, so I called the police about it.

Q.   And did a police officer arrive?

A.   Yes.

Q.   Did the police officer come?

A.   Yes.  About after ten o'clock there was a police officer came to my house.

Q.   Do you know who that police officer was?

A.   Yes, it was Michael Chapel.

Q.   All right.  Could you describe him when he arrived?  Could you tell us what he looked like?

A.   Well, when he arrived, he identified himself as police officer Michael Chapel and was looking at him, he was a husky guy, and I was interested in looking at him because he resembled Mr. Ernie Ernasto, that's the one -- a guy that was a anchorman for Channel 7 news in New York.  But he's -- this guy was well built up.

Q.   Was the person who identified himself as Michael Chapel, were they in police uniform?

A.   Yes.

Q.   Were they wearing a rain jacket?

A.   None that I recall.

Q.   What did he say to you when he arrived?

A.   Well, he asked me, 'What's the problem,' or 'What happened?'  And I started explaining to him what happened.

Q.   And what did he say to you when you started explaining the problem?

A.   Well, I just said a few words then, the problem, what it was, and then suddenly, he says that -- what I see in him, I don't like to see in anybody.  It's like the person-to-person talking, and you are up in the air.

Q.   What do you mean by that?

A.   Because I was talking to him and he didn't pay real attention or whatever to what I was saying to him.

Q.   How would you describe his emotional state?

A.   Well, he described it in his own word.

Q.   What did he say?

A.   He say he's going to call another policeman from up north because I'm from New Jersey, because he say he's a redneck and the next door neighbors are redneck, so he better off calling somebody else from up north that's a policeman to and handle the case, because he was having a lot of problem.  That's what he says.

Q.   He told you that he was having problems?

A.   Yes, he did.

Q.   Did he say anything else?

A.   Well, the thing is when -- I was kept talking to him and suddenly he broke out of the conversation and he say, 'Well, I got to go.'  Then he left.

Q.   So about how long was he at your house on this call?

A.   No more than ten minutes.

Q.   Thank you. 

MR. PORTER:  That's all the questions I have.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Perdomo, my name's Johnny Moore.

A.   Hi.

Q.   Now, did you call the police or did your wife call the police?

A.   I guess the first man -- I don't exactly recall, but I just wanted to call.  It probably was me that called the police.

Q.   Now, when the policeman arrived, did you talk to him or did your wife talk to him?

A.   No, it was me.  My wife was in the bedroom, and then when I started talking to him, she just came out of the bedroom to the living room.

Q.   Okay.  And did your wife talk to him also?

A.   Not really.  She just was looking at him because  -- and he started looking at her, too.

Q.   Okay.  And what did you tell the officer when he came?

A.   Well, I explained to him the problem about the kids in the --

Q.   Tell us exactly what you said, if you can remember.

A.   Well, let me see if I remember exactly what I said.  Not in exactly the right word, but what I was explaining to him about this kid in the neighborhood, the one next door, as being bothering us, not only us but the other neighbors.  Sometimes they come and peek in the windows, stand in the window and looking at my daughter, one of them, dressing and undressing, or either throwing stone or rocks at the house most of the time.  And either he bothered one of my kids -- I had boys who lives in New Jersey, he came in the springtime for vacation, and they tried to beat him up without even him doing nothing to him.

Q.   Was somebody pecking on the window that night?

A.   Yes.

Q.   Okay.  Did you tell the officer the name of who it was?

A.   Yes.

Q.   And what was their name?

A.   I don't recall his name, but I told him the name of the kid.

Q.   Okay.  What was the name of the kid?

A.   That's what I don't recall his name, but I knew the name.

Q.   Okay.  And the officer stayed there about ten minutes at your place; is that right?

A.   Yes.

Q.   And you weren't satisfied with what he did, were you?

A.   No, not really, because when I was talking to my wife was that a police officer is supposed to come; you call them and then he say, 'I got to go, I've got something else to do' or something like that, and what about us?  If they've got something else to do -- they were sent to solve our problem or at least do something with our problems, and he just left.  Broke up the conversation, poof, gone.

Q.   And you didn't like it that Officer Chapel was towering up over you, as you described it, and not paying attention; isn't that right?

A.   That's right.

Q.   Okay.  Were you ever interviewed by the police in this investigation?

A.   I wasn't home.  I was starting when they called to my house -- I was transferred from Gwinnett County to Glynn County, and my wife was at home, and then there was a detective that came to my house here in Buford and talked to her.

Q.   Okay.  But you never were interviewed yourself?

A.   No, not here.

Q.   Now, Officer Chapel -- you were standing there next to him.  How tall are you?

A.   Five-seven.

Q.   Okay.  How tall would you estimate his height to be?

A.   Over 6 feet.

Q.   Okay.  Was he taller than me?

A.   No, not really.  No.  I think you're taller than him probably, but he was double your size.

Q.   Okay.

A.   I mean --

Q.   Did the police ever do anything about your problem up there?

A.   Well, later on, then, I called and there was another officer to came.  As a matter of fact, I think there were two of them, but they were very pleasant person.  I mean, they handled the problem.

Q.   Okay.  How did they handle them?

A.   Very good.

Q.   Did they arrest somebody?

A.   What?  No.  They -- I remember, I say, 'I don't want this kid to be in jail.  Just why don't you go over there and talk to him.'  He wanted to talk to him, and he told him, 'Next time, I won't come to talk to you.  You're going to answer to the judge.'

Q.   Do you remember the names of the officers that came out and handled the problem?

A.   No, sir.

Q.   Did you remember Officer Chapel's name or did somebody remind you of it?

A.   Well, when he introduced himself as Mr. Michael Chapel, but I'd seen him before around in the patrol car and -- but that was the first time I see right in front of me, he stand to the side of me, he turn to me, until this case.

Q.   Now, the two officers that came out and solved the problem do you remember their names?  They introduced themselves, too, didn't they?

A.   Yes, they did.

Q.   Do you know their names?

A.   Yeah, but they didn't involve in any case like this case.

Q.   But do you know their names?

A.   Huh?

Q.   Do you know the names of the officers that came out and solved the problem?

A.   Well, at that time I knew their name, but now I don't know their name.

Q.   Okay.  Without going into what it was or anything, have you read anything or heard anything about this case?  Just yes or no.

A.   Yes.

Q.   Okay. 

MR. MOORE:  That's all I have.

THE COURT:  Redirect?

MR. PORTER:  I don't have any redirect for      Mr. Perdomo, Your Honor.  We'd ask that he be excused.  He is a resident of Glynn County and is prepared to go back, so if he's excused --

THE COURT:  Okay.  You want him released altogether?

MR. PORTER:  Your Honor, the state does not anticipate recalling him.

MR. MOORE:  Your Honor, we also have him on subpoena and we would ask he remain on call.  I don't have any objection to him going back to Brunswick, because we can notify him at -- a day in advance if we needed him.

THE COURT:  All right.  You'll remain on call and you may be called back pursuant to subpoena, but you can go on back home or you'll be notified in the event that you're requested to come back and testify, Mr. Perdomo.

THE WITNESS:  Okay.

THE COURT:  All right.  You can come down.

THE WITNESS:  Thanks.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. PORTER:  Your Honor, Mr. Smeal will be handling the next section of the case for the state.

THE COURT:  All right.

MR. SMEAL:  The state calls Mr. Jack Dudley.

[The witness was called to the courtroom.]

THE COURT:  If you'll be seated up here, please.

[The witness stepped to the stand.]

THE COURT:  You can go ahead and be seated.  If you'll administer the oath please, Mr. Smeal.

MR. SMEAL:  Please have a seat, Mr. Dudley.  Would you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     JACK M. DUDLEY

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. SMEAL:

Q.   Please state your full name, and if you'd spell your last name for the court reporter.

A.   Jack M. Dudley, D-u-d-l-e-y.

Q.   And Mr. Dudley, do you live in the Atlanta area?

A.   Yes, sir.

Q.   What section of Atlanta do you live in?

A.   I live in Cumming, Georgia.

Q.   What is your occupation, Mr. Dudley?

A.   A sales representative.

Q.   Mr. Dudley, do you know the defendant in this case, Mr. Michael Chapel?

A.   Yes.

Q.   How long have you known him?

A.   Approximately three -- probably three years.

Q.   Okay.  And how do you know him?

A.   I'd met him at Long Horn Steaks.  He was working security there.

Q.   Have you ever employed Mr. Chapel in any capacity?

A.   Yes.

Q.   Okay.  How have you employed him?

A.   He drove for me one night.

Q.   Was that the only occasion upon which you employed him?  One time?

THE COURT:  Would you approach the bench, please?

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

THE COURT:  Where are we headed with his testimony?

MR. SMEAL:  He lent Mr. Chapel money in January 1993, $1,400, and has never repaid it.  We're getting into the section of the case now where the next several witnesses relate to financial information.

THE COURT:  Okay.  Okay.  I just wanted to make sure we weren't getting into something else.  Okay.

MR. MOORE:  Yeah.  I knew where he was going.  That's the reason I didn't object at this point.

THE COURT:  All right.  Fine.

MS. ROGAN:  While we're here, I'm going to need a break in the next ten or fifteen minutes.

THE COURT:  Okay.  We'll do it after this witness.

MS. ROGAN:  Okay.  That's fine.

THE COURT:  Okay.

[Bench conference concluded.]

THE COURT:  Go ahead, please.

BY MR. SMEAL:

Q.   I'm sorry, Mr. Dudley.  I believe you had indicated you had employed him one time and then did you want to add to that?  Was there any other occasion on which you employed Mr. Chapel?

A.   Not that I can remember.  There's a possibility, you know, maybe once more, but I don't recall.

Q.   All right.  I want to direct your attention back to January 1993 and ask you if you were involved sometime during that month in a financial transaction with Mr. Chapel?

A.   Yes.

Q.   And what was the nature of that financial transaction?

A.   Michael had asked to borrow some money from me.  At that time he was -- had the gym up in Buford, and I'd went up there --

Q.   Okay.  Let me interrupt you for a second.  Were you familiar with that gym?  In other words, did you know that he was operating a gym in Buford?

A.   Yes.

Q.   What was the name of that gym; do you know?

A.   That I don't remember.

Q.   Okay.  How much was he interested in borrowing?

A.   $2,000.

Q.   Okay.  And did he say why he needed the money?

A.   He was, at that time, I think was in -- behind on the rent on the gym.

Q.   Okay.  And do you recall when this conversation first arose about the loan?

A.   Probably the first of January to the middle of January.  I don't remember the exact dates.

Q.   And how did you respond when he asked you if he could borrow $2,000?

A.   I told him I would see what I could do; if I could help him, I would.

Q.   Okay.  And did you in fact attempt to help him?

A.   Yes.

Q.   Okay.  And what did you do along those lines to help him?

A.   I went up, looked at the gym, looked over the books at the gym, and then approximately, I don't know, two to three weeks later I went back to the gym and loaned Michael some money.

Q.   And how much did you agree to lend him?

A.   $1,400.

Q.   Okay.  And where and when did you give him that money, if you recall?

A.   I gave him the money at the gym, somewhere in the end of January, no later than the first of February.  Somewhere right in that time frame.

Q.   Sir, I'm handing you what has previously been marked as State's Exhibit 33.  Can you identify that document?

A.   Yes.

Q.   What is that document?

A.   That is a check that I had written to myself to get the cash to give to Michael.

Q.   Okay.  What is the date on that check?

A.   1st 28, '93.

Q.   And what is the amount of the check?

A.   $1,500.

Q.   And who is it made payable to?

A.   Myself, Jack Dudley.

Q.   Okay.  It's written on an account of Lift Tech Equipment; is that correct?

A.   Yes.  Yes, sir.

Q.   Is that your business?

A.   Yes, sir.

Q.   And you are the signer of this check?

A.   Yes.

Q.   Okay.  And you're indicating that you wrote that check in order to get the money to lend Mr. Chapel?

A.   Yes, sir.

Q.   Okay.  And I believe you've previously said that you gave him $1,400?

A.   Yes, sir.

Q.   Okay.  I assume you kept the balance of $100?

A.   I did.

Q.   All right.  Was this loan put in writing?

A.   No, sir.

Q.   Okay.  What were the oral terms of the loan?  When did you expect to get repaid?

A.   Somewhere from 90 to 120 days.

Q.   Okay.  Were you charging him interest on the money?

A.   No.  No.

Q.   Was it going to be periodically paid or was there going to be one lump sum payment at the end?

A.   A lump sum.

Q.   And has he repaid any of that money to date?

A.   No.

Q.   The person that you've been referring to as Michael Chapel, do you see that person in the courtroom today?

A.   Yes.

Q.   Would you point to him, please?

A.   In the green jacket [indicating].

MR. SMEAL:  May the record reflect this witness has identified the defendant. 

Your Honor, at this time, we would move to admit State's Exhibit 33, and we would also ask to substitute a Xerox for the original so we can return this to Mr. Dudley.

MS. ROGAN:  We have no objection.

THE COURT:  All right.  Do you have any objection to the substitution of a copy for the original?

MS. ROGAN:  No.

THE COURT:  All right.  State's 33 is admitted without objection.

MR. SMEAL:  No further questions.

THE COURT:  Let me ask, do you want to -- insofar as -- is it your request to substitute a copy today and make that part of the evidence during the course of trial or when?

MR. SMEAL:  I think at the conclusion of the trial.

THE COURT:  Are you talking about after we're through altogether?

MR. SMEAL:  Yes, sir.

THE COURT:  Just as part of the record once the case is concluded and the verdict's been returned?

MR. PORTER:  Your Honor, it will be the position of the state that we will ask to -- at the conclusion of the case, prior to the final filing with the clerk's office, we'll ask to substitute copies for all of the paper documents.

THE COURT:  Okay.  All right.  State's 33 is admitted without objection.  Insofar as any substitution, we'll just simply defer that.

MR. PORTER:  Yes, sir.

THE COURT:  All right.

MR. SMEAL:  No further questions at this time.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good afternoon, Mr. Dudley.

A.   Hi.

Q.   My name's Elizabeth Rogan, and I'm one of Mike Chapel's attorneys.  You indicated that you had hired Mike to drive you --

A.   Yes, ma'am.

Q.   -- or drive for you.  Was he also functioning sort of as a bodyguard or escort of sorts?

A.   Yes.  Yes.

Q.   Okay.  And Mike's a really large guy --

A.   Yeah.

Q.   -- so he's pretty well-suited for that, isn't he?

A.   Yes, ma'am.

Q.   Do you recall how much money you paid Mike to do that?

A.   $200, I think.  I'm not for sure.

Q.   Okay.  And was that in cash?

A.   Yes.

Q.   Do you remember when that was?

A.   It was right at the first of the year.  I don't remember the exact dates or anything like that.

Q.   The first of '93?

A.   Yes.

Q.   So January of '93?

A.   Yes, ma'am.

Q.   And you indicated that there may have been one other occasion on which you did that, but you're not sure?

A.   There is a possibility.  I don't recall.

Q.   Okay.  And getting to the money that you lent to him in late January, you are -- are you in some sort of equipment business or gym business yourself?  I noticed your check was written on a Life Tech --

A.   Lift Tech.

Q.   Lift Tech, I'm sorry.

A.   That's material handling equipment.

Q.   Okay.  And before you agreed to lend him money, you went to the gym itself and looked at the equipment that he had --

A.   Yes, ma'am.

Q.   -- and looked at his books and --

A.   Yes, ma'am.

Q.   The money was intended in part to help advertise the gym and keep it as a going concern?

A.   That was -- I mean, as far as advertising, then I would say I don't know.  But I think that --

Q.   Did you discuss that with Mike at all that --

A.   Right.  That -- yes, ma'am.

Q.   -- advertising the gym would be a good idea?

A.   I believe that's true.

Q.   Help get business going?

A.   Yes.

Q.   In fact, that time of year, if you know, is -- is January kind of a slump time --

A.   That is --

Q.   -- in the health fitness industry?

A.   I would think so.

Q.   So you were aware that Mike at least had an interest in getting his gym going?

A.   Yes.

Q.   On his feet and operating?

A.   Yes.

Q.   And you lent him money in part for that purpose?

A.   Yes.

Q.   Now, the check that you've identified you wrote to yourself in late January, it was January 28 --

A.   Yes, ma'am.

Q.   -- is that correct?  And you cashed that check?

A.   Yes.

Q.   Okay.  And you gave Mike cash in the loan?

A.   Yes.

Q.   You gave him $1,400?

A.   Yes.

Q.   And that was in $100 bills?

A.   Yes, ma'am.

Q.   Do you remember when it was you gave him that money?

A.   It would have been probably -- it could have been the 28th, it could have been probably no more than three or four days after that.

Q.   Okay.  So it was sometime during that period of late January.

A.   Within that week's time frame?

Q.   At the latest, you know, the 1st of February or the 2nd of February?

A.   Yes, ma'am.

Q.   Okay.  And the agreement was that he would pay you back at some period of time, 90 to 120 days down the road?

A.   Yes, ma'am.

Q.   Okay.  And January is the first month of the year, February is second, March is third, April's fourth.  Between late January and late April is ninety days --

A.   Right.

Q.   -- is that correct?  And you're aware that Mike was arrested on April 24 --

A.   Yes, ma'am.

Q.   -- 1993?

A.   Yes.

Q.   And you're aware that he's been in custody since that time?

A.   Yes.

Q.   Do you believe that Mike would have repaid you had he not been arrested?

A.   Yes.

MS. ROGAN:  That's all I have.  Thank you.

THE COURT:  Redirect?

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Mr. Dudley, after this transaction, this loan transaction in late January or I believe you've indicated it could have been as early as early February 1993, did you at any time after that employ him as a security guard, bodyguard?

A.   No.

Q.   Okay.  And you're not in the gym or health business, are you, sir?

A.   No.

Q.   Had you ever been?

A.   No.

MR. SMEAL:  Nothing further.

THE COURT:  Recross?

MS. ROGAN:  No, Your Honor.

THE COURT:  Do you wish this witness to remain on call?

MR. SMEAL:  Yes, Your Honor.  It's unlikely the state would have to recall him.

THE COURT:  All right.

MR. SMEAL:  He's local.

THE COURT:  All right.  You'll be subject to being recalled, Mr. Dudley.  You can come down.  Thank you.

THE WITNESS:  Thank you.

[The witness stepped down from the stand.]

THE COURT:  Would you approach the bench, please?

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

THE COURT:  Do we want to take a recess now or have you got a short witness we can proceed with?

MR. PORTER:  Your Honor, the next witness we have is Mr. Spearman.  I don't think he'll be that long.

MS. ROGAN:  I'd just as soon recess right now, if we could, because I'm going to be handling him, and I don't want to feel uncomfortable.

THE COURT:  Okay.  That will be fine.  We'll take a recess, then.

MS. ROGAN:  Thank you.

[Bench conference concluded]

THE COURT:  We're going to take a recess at this point.  We'll take ten minutes or so.  You can take the jurors downstairs and if they want a cup of coffee or something, make that available for them.  We'll take ten or fifteen minutes.  Let me know, Mr. Allen, when they're ready, when they've had an opportunity to do that.

Leave your pens, pads, and notes in your seats.  They'll be waiting on you when you return.  You can go with the bailiff, please.

[The jury was excused from the courtroom for the recess.]

THE COURT:  Anything else at this point,        Mr. Porter?

MR. PORTER:  Your Honor, the state would ask that we take about ten or fifteen minutes.  We have about four more witnesses lined up, and I would inform the Court that we've called one, two, three, four, five, six, seven, eight, nine, ten -- and the next witness will be the 11th -- twelve, thirteen, fourteen, fifteen witnesses lined up for today.  Now, if I could have a few moments to contact my investigator, I believe that I can get two or three more witnesses in here.

THE COURT:  Okay.  I'd like to go to five or so anyway.

MR. PORTER:  Your Honor, I understand the Court's desire, but fifteen witnesses in a day in a death penalty case, I can't move them much faster than I'm moving them, Judge.

THE COURT:  All right.

MR. PORTER:  I kind of feel like a baggage handler at Hartsfield, to tell you the truth.

THE COURT:  All right.  Well, let's --

MR. PORTER:  I don't want to waste the Court's time or the jury's time any more than anybody else does, but fifteen witnesses is a lot of witnesses.

THE COURT:  Okay.  Well, let's hear all of them we can today.  Get as far as we can.

MR. PORTER:  Yes, sir.

THE COURT:  And we have the issue on the redacted video.  We also have the other matter on the hearsay exceptions to take up this afternoon, so I don't know.  Maybe that will all fit together anyway.  Okay.  Fifteen minutes; is that enough, Mr. Porter?

MR. PORTER:  Yes, Your Honor, and I'll try and get some witnesses in here and inform the Court.  If not --

THE COURT:  Okay.

MR. PORTER:  -- we'll be prepared to argue the motions when our last witness is finished.

THE COURT:  Okay.  You might -- let's come back to that before we bring the jurors back in.

MR. PORTER:  Yes, sir.

THE COURT:  And if we're going to be finished up early, we need to make some arrangements for them as far as transporting them or having the evening meal prepared or whatever.

MR. PORTER:  Your Honor, it's hard to anticipate.  I can --

THE COURT:  I understand.

MR. PORTER:  -- I can get with counsel and --

THE COURT:  I understand.  Well, you give us the best guess when we get back.  Okay.  Mr. Moore, anything else at this point?

MR. MOORE:  Not at this point, Your Honor.

THE COURT:  We'll take fifteen minutes.

[Break taken]

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, I've consulted with counsel, and we have four witnesses remaining.  We feel relatively certain that given the fact that they are going to be identifying and explaining a fairly substantial number of documents as well as testifying to some financial matters, we feel fairly confident that we can fill the Court's time until 4:30 this afternoon. 

I have an additional problem.  My next sequence of witnesses, one of those folks lives in Griffin, and is not at work today, and a critical piece of evidence cannot come in unless that witness testifies.

THE COURT:  Okay.  But that's a matter -- they'll be here tomorrow?

MR. PORTER:  Yes, sir.  They'll be here at nine o'clock in the morning, and I think I can fill the Court's time until 4:30 with the witnesses we have available.

THE COURT:  All right.  If you would just give me about thirty minutes' notice if you see we're winding down.  At four o'clock -- if it looks like about 4:30, if we have a pause, let me know so we can get the jurors' evening needs taken care of and give us about thirty minutes' notice of that so we can take care of the things we need to for them.

MR. PORTER:  Your Honor, I can tell the Court that our intention is to call John Spearman, then an individual named Larry Henderson, then an individual named LeDoris Chandler, and then an individual named Cindy Evans.  And Ms. Evans was a bank teller.  There are two transactions that are being described, and we would expect that her evidence will take fifteen or twenty minutes.  So sometime during the testimony of Ms. Chandler, we'll wind it down.

THE COURT:  All right.  If you'll just remind me, we'll just pause for a moment before she takes the stand and we'll proceed with the other matters so we'll have that out of the way.

MR. PORTER:  Yeah.

THE COURT:  Okay.  All right.  Anything else,    Mr. Porter?

MR. PORTER:  No, Your Honor.  Thank you for the Court's indulgence.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Nothing at this time.

THE COURT:  Bring the jurors back in, please.

[The jury returned to the courtroom and proceedings resumed, as follows.]

THE COURT:  Call your next witness, Mr. Porter.

MR. SMEAL:  The state calls Mr. John S. Spearman.

THE COURT:  All right.  Mr. Smeal, I had forgotten we had shifted.

MR. SMEAL:  Thank you.

[The witness was called to the courtroom.]

THE COURT:  Sir, if you'll be seated up here in the witness stand, please.  You can come on up and be seated.  Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  Would you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  Yes.

Whereupon,

     JOHN SCOTT SPEARMAN

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. SMEAL:

Q.   Please state your full name.

A.   John Scott Spearman.

Q.   And Mr. Spearman, do you live in the Atlanta area?

A.   Yes.

Q.   What section of Atlanta do you live in?

A.   I live in Dunwoody.

Q.   And what is your occupation, sir?

A.   I'm P.C. coordinator for Home Depot.

Q.   Okay.  And apart from that job, do you do anything else on the side?

A.   I prepare income taxes and do a little bookkeeping work.

Q.   Okay.  Are you a certified public accountant?

A.   No, I am not.

Q.   Okay.  Do you know the defendant in this case,  Mr. Michael Chapel?

A.   Yes, I do.

Q.   How long have you known him?

A.   About four years.

Q.   And how do you know him?

A.   I prepared his taxes and done some accounting and bookkeeping for him.

Q.   Okay.  How long have you been doing his taxes?

A.   Since 1991.

Q.   I want to direct your attention, Mr. Spearman, back to April 10, 1993.  I would ask you if you had contact with Mr. Chapel on that date?

A.   Yes, I did.

Q.   Okay.  And did you see him on that date?

A.   Yes.  I met with him at his home.

Q.   Okay.  How was that arranged?

A.   He notified me that it was time to get his 1990 taxes done and we set up a date and I went up and met him at his house.

Q.   And do you recall about what time of day that meeting took place?

A.   It was about eleven, 11:30.

Q.   And who was present?

A.   Mr. Chapel, his wife, Eren, and their two kids.

Q.   All right.  And did you, in fact -- I assume you did discuss taxes at that time?

A.   Yes, I did.

Q.   Okay.  Were you planning to meet the April 15 deadline or was a decision reached about getting an extension or what was decided that day?

A.   Yes.  What we did was we started taking the preliminary tax information down and decided that he needed some more information concerning his gym, and then I suggested that we go on and file the automatic extension, which we did.

Q.   When you referred to the gym, are you referring to Iron World?

A.   Yes.

Q.   And that is the business that he operated in Buford?

A.   That's correct.

Q.   I assume that you also did his tax work for Iron World?

A.   Yes, I did.

Q.   Did there come a time when Mr. Chapel told you something about receiving a notice from IRS?

A.   Yes.

Q.   And when, during the meeting, did that subject first arise?

A.   That came up about -- after we'd been in the meeting about thirty to forty-five minutes.

Q.   Was his wife, Eren, present for those first thirty to forty-five minutes?

A.   Yes, she was.  She was in and out getting ready to go to work.

Q.   Okay.  Did she in fact go to work?

A.   Yes, she did.

Q.   Okay.  When did the subject about the IRS notice arise in relationship to when Eren left for work?

A.   Right after she left the house.

Q.   Okay.  And what did Mr. Chapel tell you at that time?

A.   He said that he had received this notice from IRS concerning a verification audit and that he went on and would give it to me at that point so as not to worry his wife, Eren.

Q.   Okay.  Mr. Spearman, for the benefit of the jury, would you explain to them what is a verification audit?

A.   A verification audit is an audit that IRS conducts where they literally throw out all of your tax deductions and then you must prove all of your tax deductions with receipts or other proof and get them reinstated.

Q.   And with respect to which year did Mr. Chapel receive this verification audit?

A.   For 1990.

Q.   And did that IRS notice or did Mr. Chapel relate to you what the potential liability was on that problem?

A.   Yes.  As well as I remember, the IRS notice stated that if we could not prove any of the deductions that the extra tax would be approximately $4,000.

Q.   Did you physically see the IRS notice?

A.   Yes, I did.

Q.   Mr. Chapel showed it to you?

A.   Yes.  He removed it from his briefcase and showed it to me, and then I looked at it, and we decided we'd get back together on it, and he replaced it in his briefcase.

Q.   Mr. Spearman, I'm showing you what has previously been marked as State's Exhibit 55.

MR. SMEAL:  And Your Honor, if the Court will bear with the state, all the exhibits will be accounted for at the end of the next several witnesses.

THE COURT:  Yes, sir.  That will be fine.  What was the number?

MR. SMEAL:  Number 55.

THE COURT:  All right.  Go ahead, please.

BY MR. SMEAL:

Q.   Can you identify that document?

A.   That's the check that Mike gave me on the 10th of April.

Q.   And what is the amount of that check?

A.   $50.

Q.   And it's made payable to you, Scott Spearman?

A.   Yes, it is.

Q.   And signed Michael Chapel?

A.   Yes.

Q.   Okay.  Was that $50 payment in exchange for your tax services that day?

A.   That's correct.

Q.   Did he give you that check on that date at that meeting?

A.   Yes.  That's normally the way we work things.

Q.   Did you discuss with Mr. Chapel what to do about that verification audit?

A.   Yes.  I explained to him that since they had thrown out all the deductions, we immediately needed to get receipts and go down and talk to IRS about it.

Q.   And were you able to follow through with that at a subsequent date?

A.   No, I was not.

Q.   And was that due to Mr. Chapel's arrest?

A.   That's correct.

Q.   The individual that you've been referring to as Michael Chapel, is that person in the courtroom today?

A.   Yes, it is.

Q.   Would you point to him, please?

A.   [Indicating defendant]

MR. SMEAL:  May the record reflect this witness has identified the defendant.  Nothing further at this time.

THE COURT:  Mr. Moore, Ms. Rogan?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good afternoon, Mr. Spearman.  My name's Elizabeth Rogan, and I'm one of Mike's attorneys.  You told us on direct examination that you had met Mike in 1991?

A.   That's correct.

Q.   Have you been doing his taxes since then?

A.   Uh-huh [affirmative].

Q.   Do you recall speaking to Mr. Kirk from           Mr. Chapel's investigator's office?

A.   Yes, I do.

Q.   On August 7 of this year?

A.   Yes.

Q.   Did you tell -- do you remember telling him that you had been doing Mr. Chapel's taxes since 1989 or 1990?

A.   I -- okay.  I was confused when I had talked to him.  I had done some work for him back in '88 and '89 which did concern his taxes, but I didn't actually meet Mr. Chapel until '91.

Q.   Okay.  So the first tax year that you did taxes for him was 1990?

A.   That's correct.

Q.   Okay.  And that was the year about which this notice of audit came?

A.   That's correct.

Q.   Now, you told us you are not a CPA?

A.   That's right.

Q.   Okay.  What qualifications or training do you have to prepare taxes?

A.   I have passed the IRS tax preparation course and also I have taken -- I have a tax minor from college.

Q.   Okay.  And you do this just as a side line?  It's not your primary --

A.   That's correct.

Q.   Okay.  If you would explain to me, Mr. Spearman, something that I'm unclear about.  Is it true that when an authorized tax preparer prepares a person's taxes, if there is a problem in terms of tax amount that was determined or the tax amount that was paid, that it's the responsibility of the tax preparer?

A.   No, it is not.  It's the responsibility of the taxpayer.

Q.   Okay.  It's never the responsibility of the tax preparer?

A.   That's correct.

Q.   Now, you prepared the taxes for both Mike's business, the Iron World Gym, and also his personal taxes --

A.   That's correct.

Q.   -- of his family?

A.   Yes.

Q.   Okay.  Were they together on one tax return or were there separate tax returns?

A.   No, they were together on one tax return.  The business was handled as a sole proprietorship under a Schedule C.

Q.   Okay.  So it was just a part of his personal tax return, his and Eren's personal tax return?

A.   That's correct.

Q.   Okay.  Mr. Chapel relied on you to prepare his taxes; isn't that right?

A.   That's correct.

Q.   Okay.  He didn't pretend to know what he was doing in that field; that's why he's consulted --

A.   No.  That's why he had me, yes.

Q.   -- an expert.  All right.  How would you characterize Mr. Chapel's financial situation?

MR. SMEAL:  Your Honor, I would object to that question.  He said that he's a tax preparer.  I'm not sure that he's -- I don't believe he's competent to assess one's financial situation, and the question is objectionable.  I think that it's too general, and this witness has not been demonstrated to be competent to answer that question.

THE COURT:  Ms. Rogan?

MS. ROGAN:  Well, it seems to me, Your Honor, if Mr. Spearman was charged with tabulating the finances year to year for Mr. Chapel, he would have a sense of whether he was chronically in the red in his business or whether he was grossly in debt.  I mean, all of those things are reflected on tax returns.

THE COURT:  How would that relate to what his assets were, which is really the thrust of the question.

MS. ROGAN:  Well, he'd know if he had any assets that were drawing income or any type of property that he owned, mortgage or --

THE COURT:  Unless there's a financial statement involved in it, how would he know?  I don't believe there's been a foundation laid at this point.  The objection is sustained.  If you want to inquire to specifics, go ahead.

BY MS. ROGAN:

Q.   Was there anything unusual about Mr. Chapel's -- Mr. and Mrs. Chapel's tax returns during the period of time that you were preparing taxes for them?

A.   Nothing that struck me as out of the ordinary for the normal person, no.

Q.   Okay.  They were both working people --

A.   Yes.

Q.   -- who drew paychecks and, in both cases, had income from -- cash income from other jobs that they held?

A.   That's correct.

Q.   Okay.  You are aware from preparing Mr. Chapel's taxes that he worked as a bouncer in the off hours at various establishments?

A.   Yes.  He had several extra jobs.

Q.   He had other odd jobs, and he reported that to  you --

A.   That's correct.

Q.   -- so that he could reflect that in his tax returns?

A.   Yes.

Q.   And Mrs. Chapel worked for a time as a waitress and had a 1099 or W-2 form from her job; right?

A.   That's correct.

Q.   That would reflect however little a waitress gets per hour.  And then you were aware as well that she got a certain amount more in tips or --

A.   Yes.

Q.   -- other income, and that was usually in cash, as far as you were aware?

A.   Yes.

Q.   Okay.  Now, in preparing those 1990 taxes, did   Mr. Chapel provide you with the supporting documentation about his income and his wife's income for that year?

A.   The supporting information as far as the W-2's and 1099's, yes.  The actual income from the gym and the other -- the business, he provided off ledgers that he kept.  And normally, he just added up the figure and gave it to me.

Q.   Okay.  You were the one who prepared the documents?

A.   That's correct.

Q.   And you are the one who determined what deductions were appropriate for him to take in his situation?

A.   Yes.  I did that in conjunction with him.  We would have a discussion about it and decide what was appropriate to take and how we should phrase it on the tax return.

Q.   But he didn't tell you what he thought was appropriate?

A.   No.  He gave me all the receipts and everything and told me what he thought his expenses were.  And then we discussed it to make sure that they were true expenses.

Q.   Okay.  So you verified --

A.   Yes.

Q.   -- information that he gave you before you committed it to a tax form to be filed with the government?

A.   That's true.

Q.   Okay.  He didn't suggest, 'Look, Scott.  I think I can make a deduction here, you know; see if we can work this in'?

A.   Well, he did suggest things and then I gave him my opinion and what I thought the possible consequences were of it, and then I let him make the final decision on it.

Q.   But you advised him as to which deductions you thought were supportable --

A.   That's correct.

Q.   -- and which ones weren't?

A.   Yes.

Q.   Okay.  And he was relying on you to give him that advice?

A.   That's correct.

Q.   That's what he hired you for?

A.   Yes.

Q.   Okay.  And he, as you've said, provided you with receipts to verify the things that --

A.   For the most part --

Q.   -- he and you thought were appropriate?

A.   For the most part he did provide me with receipts.  There were some things that he told me off ledgers.

Q.   Okay.  Did you keep copies of the information that he gave you?

A.   No, I do not.  Normally, I just keep copies of the tax return.

Q.   Okay.  So when this notice of intent to audit arrived --

A.   Yes.

Q.   -- you explained to him what that meant?

A.   That's correct.

Q.   As in the same manner, I presume, you've explained to the jury today that it means that the IRS is going to examine your tax return for that year to determine whether they think the deductions you've taken are supportable?

A.   That's right.

Q.   And at that point, you're required to provide receipts to verify those deductions?

A.   That's correct.

Q.   It's not an automatic liability?

A.   No, it is not.

Q.   And there's no indication on the notice, is there, as to how much the IRS believes is not supportable?

A.   Yes, there is.

Q.   There was on that particular notice?

A.   Yes, there is.  On the very front page, it states that all your deductions are being thrown out and that the additional tax you owe is such and such amount.  Then it was approximately $4,000.

Q.   Unless you can demonstrate to the IRS --

A.   Unless you can -- that's correct.

Q.   -- that those deductions are supportable?

A.   Yes.

Q.   So there's sort of a presumption that you're guilty --

A.   That's true.  With IRS, they presume and they're ready to charge you until you can prove that, 'No, I'm due these deductions.'

Q.   Okay.  But as long as you can prove that these deductions are ones that you are entitled to, you're not going to owe any more money?

A.   That's correct.

Q.   Okay.  So even though Mike was presumed to be guilty when he got this intent to audit, that was not the final word on that issue?

A.   No.  That's correct.

Q.   Okay.  And, in fact, the process takes some period of time --

A.   Yes.

Q.   -- doesn't it?  At least six months or so before you actually have to pay the piper?

A.   Well, I have seen it take up to eighteen months, depending.  Normally, you have ninety days to have the first response.  And then if you have problems coming up with the receipts, you can contact IRS and they will normally give you an additional ninety days.

Q.   And this is the tax return that you had prepared and had satisfied yourself was supportable --

A.   That's correct.

Q.   -- by the documentation you had seen?

A.   Yes.

Q.   And, in fact, you told Mike that this was nothing to worry about?

A.   That's correct.  I told him that this was nothing to worry about.  At the same time, we still needed to come up with receipts and that included the items that he gave me from ledgers.

Q.   Right.  And he was prepared to gather the receipts that he needed?

A.   He said he was going to start working on it, yes.

Q.   Okay.  And unfortunately, in the meantime, he got arrested and that was the end of that story?

A.   That's -- that's right.

Q.   Okay. 

MS. ROGAN:  That's all I have.  Thank you.

THE WITNESS:  Okay.

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Mr. Spearman, on the day that you met with him, he did not have those additional documents on hand, did he, to give you?

A.   No, he did not.

Q.   Okay.  He said he was going to start to work on it? 

A.   That's right.

Q.   In terms of an audit, a verification audit throws out all the deductions; is that correct?

A.   That's correct.

Q.   And this is not the IRS simply questioning one line item?

A.   No.  They throw out the entire return with the exception of your dependents.

Q.   And in preparing that tax return, you relied upon whatever information he gave you?

A.   That's correct.

Q.   And that included some information from ledgers that he kept?

A.   That's right.

Q.   When you say -- when you answered before that you independently verified the deductions, to do that you had to rely upon whatever information he was giving you; is that correct?

A.   That's correct.  I assume that the information he was giving me was correct, and when he said it was supported, I assumed that it was supported.

Q.   But on that date, April 10, he faced a potential liability of $4,000?

A.   That's correct.

MR. SMEAL:  Nothing further on that.

THE COURT:  Recross?

MS. ROGAN:  Just briefly, Your Honor.

     RECROSS EXAMINATION

BY MS. ROGAN:

Q.   He only faced that liability if he couldn't come up with the verification --

A.   That's true.

Q.   -- that you had relied on in 1990 in making the deductions in the first place?

A.   That's absolutely correct.

Q.   Okay.  And this notice of verification audit is a random event that happens?

A.   Not normally, it is not.

Q.   How does it happen?

A.   Normally, it is kicked out through ratios that trigger an audit.

Q.   So if somebody's return looks somehow like --

A.   It looks suspicious.  Something appears to be out of line with you.

Q.   Did you have any sense as to why Mr. Chapel's in particular was selected for this?

A.   No.  I had not gotten that far into it with IRS.

Q.   It's not an uncommon occurrence, though?

A.   Well, I wouldn't say it's particularly uncommon.  It's definitely not uncommon, but it's not common either.  I've been doing taxes for eight years, and this is the only second one I've seen.

Q.   It's not uncommon, is it, for people to be on notice that they could be audited by the IRS?

A.   No, that's not uncommon.

Q.   In fact, the rule of thumb is to retain all your records for at least three years because you're not out of the woods in terms of the tax returns you've filed?

A.   That's correct.  I recommend that people save their returns for seven years.

Q.   Seven years.  Okay. 

MS. ROGAN:  Thank you.  That's all.

THE COURT:  Anything else of this witness?

MR. SMEAL:  No, Your Honor.

THE COURT:  Do you wish him to remain on call?

MR. SMEAL:  Your Honor, he can be excused to go back to his place of work.  I don't anticipate the state would have to call him again.  He is local.  We can call him.

THE COURT:  Okay.  But you don't want to release him altogether; is that correct?

MR. SMEAL:  That's correct.

MS. ROGAN:  We would request that he remain on call, Your Honor.

THE COURT:  All right.  You're subject to being recalled, Mr. Spearman.  Mr. Spearman, how do you spell your last name?

THE WITNESS:  S-p-e-a-r-m-a-n.

THE COURT:  All right.  Thank you.  You can come down.  Call your next witness, please.

[The witness stepped down from the stand.]

MR. SMEAL:  LeDoris Chandler.

MR. PORTER:  Your Honor, before Ms. Chandler takes the stand, may I be excused for a moment?  Mr. Smeal and Mr. Davis are going to present the rest of this.

THE COURT:  Yes, sir.

MR. PORTER:  Thank you.

[The witness was called to the courtroom.]

MR. SMEAL:  Ma'am, if you would please go up and take the stand. 

[The witness stepped to the stand.]

MR. SMEAL:  Would you please raise your right hand.  Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  Yes, I do.

Whereupon,

     LEDORIS CHANDLER

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. SMEAL:

Q.   Please state your full name, and if you would spell your last name for the court reporter, please.

A.   My name is LeDoris Chandler, and that's          C-h-a-n-d-l-e-r.

Q.   How do you spell your first name, ma'am?

A.   L-e-D-o-r-i-s.

Q.   LeDoris Chandler.

A.   LeDoris.

Q.   All right.  And, ma'am, what is your occupation?

A.   I am the custodian of records for South Trust Bank.

Q.   How long have you been working for South Trust Bank?

A.   Twenty-three years.

Q.   Do you work at a particular facility here in Atlanta?

A.   Should I explain that?  It wasn't South Trust for twenty-three years.  South Trust, I'm sorry, since May 1 of '92.  Prior to that it was First American Bank and so many other banks prior to that.

Q.   The banks keep --

A.   South Trust purchased --

Q.   The banks keep buying and selling --

A.   Exactly.

Q.   -- each other out; is that correct?

A.   Exactly.

Q.   They keep changing names?

A.   Right.

Q.   I think we're all familiar with that.  What are your duties as a custodian of records for South Trust Bank?

A.   It's just to make sure that the records are kept in the normal banking practice.

Q.   And did you receive a subpoena in this case to produce certain documents regarding bank records relating to an account of Michael and Eren Chapel?

A.   Yes, I did.

Q.   And would you explain to the Court and the jury how are bank records kept?

A.   Bank records are kept as whenever they are coming through the system, they are filmed and they're microfiched, and all of the records are kept on either film or microfiche.

Q.   Okay.  And with respect to customers' accounts, which consists of such documents as statements, checks, and deposit slips, what happens to the originals of those documents?

A.   Those are mailed to the customer at the end of the statement cycle.

Q.   Okay.  And when are copies made and retained by the bank?

A.   When they come through the system, being posted and kept there, that's when they are actually filmed.

Q.   And is that reasonably near in time to the date of the transaction?

A.   Exactly.

Q.   And are those records kept by the bank in the regular course of business?

A.   Yes.

Q.   And the original documents that I have described, such as bank statements, checks, and deposits, the originals get sent to the customer; is that correct?

A.   Yes.  Yes.

Q.   Ma'am, I'd like to show you a series of documents, and I would ask you if you can identify these documents.  First, what's been marked as State's Exhibit 65, can you identify that document, please?

A.   This is a statement for Michael or Eren Chapel.

Q.   And what type of document is that?

A.   A checking account statement.

Q.   Statement dated what date?

A.   January 26, 1993.

Q.   Okay.  I'm showing you State's Exhibit 66, can you identify that document, please?

A.   This is the February 24, 1993, statement for the account of Michael and Eren Chapel.

Q.   Okay.  State's Exhibit 67, can you identify that document?

A.   This is also a statement from Michael and Eren Chapel, their checking account dated 3 -- March 23, 1993.

Q.   State's Exhibit 68, can you identify that document, please?

A.   This is a statement dated April 25, 1993, for the checking account of Michael and Eren Chapel.

Q.   Do all those documents, 65 through 68, relate to the same checking account belonging to Michael and Eren Chapel?

A.   Yes, they do.

Q.   You produced these pursuant to the subpoena you've already described?

A.   Yes.

Q.   And are those records that you've described kept in the regular course of business by South Trust Bank?

A.   Yes.  Yes, they are.

Q.   I'm showing you what's been marked as State's Exhibit 69A and B, can you identify that document, please?

A.   This is a deposit made for the account of Michael Chapel in the amount of $772.72, and that's dated April 12, 1993.

Q.   All right.  And attached -- that is 69B, the deposit slip in that amount --

A.   Uh-huh [affirmative].

Q.   -- and there appears to be a paycheck which is 69A and does that correspond to the deposit amount?

A.   Yes, it does.  It's for the same amount that was deposited.

Q.   State's Exhibit 70A, B, and C, can you identify --

THE COURT:  Let me ask, Mr. Smeal, 69A and B, I'm not sure I understood what A and B were.  A was the deposit -- that was the deposit slip?

MR. SMEAL:  Yes.  69 -- it's actually 69B is the deposit slip and 69A is the check that was deposited into that account on April 12, 1993.

THE COURT:  Okay.

BY MR. SMEAL:

Q.   Ma'am, State's Exhibit 70A, B, and C, now can you first of all, identify 70C at the bottom of the page?

A.   It's the deposit in the amount of $654.49 for the account of Michael and Eren Chapel.

Q.   Okay.  What is the date on that?

A.   The date on this is 4/27/93.

THE COURT:  Just a moment, Mr. Smeal, what is the exhibit number?

MR. SMEAL:  70C she is describing.

THE COURT:  All right.  We have A, B, and C coming on 70?

MR. SMEAL:  Yes.  And they're all on one microfiche.

THE COURT:  All right.  This is 70C.  Okay.  I did not understand.  Would you repeat what 70C is?

MR. SMEAL:  Would you repeat it, ma'am.

THE WITNESS:  That is a deposit in the amount of $654.49 for the account of Michael or Eren Chapel.

THE COURT:  Okay.  Is that a deposit slip?

THE WITNESS:  A deposit slip, yes.

THE COURT:  Okay.  Go ahead, please.  Thank you.

BY MR. SMEAL:

Q.   And that deposit slip, as well as the deposit slip you've previously described as 69B, are into the same checking account that you've previously identified; is that correct?

A.   Yes, they are.

THE COURT:  What was the date on 70C?  I did not understand.

THE WITNESS:  4/27/93.

THE COURT:  All right.  Thank you.  Go ahead.

BY MR. SMEAL:

Q.   And attached to that same sheet is a microfiche check and a cash-out credit.

A.   Right.

Q.   And what are those documents?

A.   Okay.  The check is for $754 --

THE COURT:  Is that A or B?

THE WITNESS:  A.

MR. SMEAL:  The check is A, Your Honor.

THE COURT:  All right.

THE WITNESS:  The check is $754.49.  It's a check payable to Mr. Chapel, and then the $100 is a cash-out, one of our own documents of ours --

THE COURT:  Is that B we're talking about now?

THE WITNESS:  Uh-huh [affirmative].

MR. SMEAL:  Yes, Your Honor.

THE WITNESS:  -- meaning the bank's document which is a cash-out credit, which means that there was $100 that was given back to Mr. Chapel in cash at that time.

BY MR. SMEAL:

Q.   So in other words, the check in the amount of $754.49 was deposited with $100 in cash going back to        Mr. Chapel, making a net deposit on 70C of $654.49?

A.   Yes.

Q.   Is that correct?

A.   That's correct.

Q.   And finally, State's Exhibit 71A, B, C, and D are four documents on a single microfiche sheet.  Can you identify those documents starting, I guess, from A and going through D?

A.   This is A.  A would be checks that were deposited into Mr. Chapel's account and cash.  Then Exhibit B -- well, one of these checks is just $65 payable to Eren Chapel --

Q.   That's 71A; is that correct?

A.   Right.  And one check is for $15 payable to Eren Chapel.

Q.   That is 71B.

A.   Yes.

Q.   All right.  And then 71C, would you identify that, please?

A.   That is a South Trust Bank of Georgia cash-in debit, which means that there was $115 cash that was being deposited into the account, making the grand total of the deposit $611.47.

Q.   Okay.  And 71D, is that the deposit slip?

A.   Yes.

Q.   Okay.  And that's a net deposit of $611.47?

A.   47 cents.  Uh-huh [affirmative].

Q.   Okay.  Of which $115 was in currency?

A.   Yes.

Q.   And that's dated April 22, 1993?

A.   That's correct.

Q.   And, ma'am, all of the documents that you have just described were produced under your direction; is that correct?

A.   That's right.

Q.   And all of these documents were made in the regular course of business at South Trust Bank?

A.   Yes, they are.

MR. SMEAL:  Your Honor, at this time, we would move to admit State's Exhibits 65, 66, 67, 68, 69A and B, 70A, B, C, and 71A, B, C, D.

THE COURT:  Mr. Moore?

MS. ROGAN:  Your Honor, we have no objection to the authenticity of those documents.  I do have a question as to the relevance of Exhibit 71A, B, C, and D; but saving that, I have no objection to their being admitted for -- as authentic.

THE COURT:  Okay.  Well, do you have an objection to their admissibility?

MS. ROGAN:  I do have an objection as the admissibility of 71, yes.

THE COURT:  On the basis that they're -- on the ground they're irrelevant; is that your objection?

MS. ROGAN:  That's correct.

THE COURT:  Mr. Smeal?

MR. SMEAL:  Your Honor, 71 shows a deposit into the bank account of Michael and Eren Chapel, dated 4/22 1993.  That is approximately seven days after the murder of Emogene Thompson.  And as she has indicated, that shows a currency deposit of $115. 

It is the state's contention that Mr. Chapel's financial status during the days following the murder is relevant insofar as both Count 1 and Count 3 of the indictment allege an armed robbery of United States currency.  His possession of currency during this time period is most certainly relevant as an issue in this case with respect to which these documents are relevant.

THE COURT:  All right.  Anything else, Ms. Rogan?

MS. ROGAN:  No, Your Honor.

THE COURT:  State's 65, 66, 67, 68, 69A and B, 70A, B, C, 71A, B, C, and D are admitted over objection.  Go ahead, please.

MR. SMEAL:  Nothing further of this witness, Your Honor.

THE COURT:  Ms. Rogan?

MS. ROGAN:  May I see those, Mr. Smeal.

MR. SMEAL:  Sure.

MS. ROGAN:  Thank you.

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good afternoon, Ms. Chandler.

A.   Good afternoon.

Q.   Do you know Michael Chapel?

A.   No, I do not.

Q.   You've never seen him before in your life?

A.   No, I have not.  Well, I should say I did see him last night on TV.

Q.   Okay.

A.   But other than that, no, I haven't.  I saw his picture.

Q.   With the exception of that, you didn't know him as a bank customer at South Trust Bank?

A.   No, I did not.  No.  No.

Q.   I'd like to just direct your attention, if I could, to State's Exhibit 69A and B and 70A, B, and C, which you have identified as deposit slips that were accompanied by what appeared to be paychecks.

A.   Yes.

Q.   Could you just tell us, please, where those paychecks appear to be from?

A.   Gwinnett County Board of Commissioners.

Q.   Okay.  And they were dated, I believe, April 12?

A.   And April 26, yes.

Q.   And April 26.

A.   April 13 or 12, one of the two.  Yes, and      April 26.

Q.   Okay.  So that would correspond roughly to biweekly paychecks --

A.   Yes.

Q.   -- from a governmental authority.  And the first, April 13, was deposited in full?

A.   Yes.

Q.   And the second one, April 27, was deposited with the exception of $100 which was taken as cash?

A.   Yes.

Q.   Now, you have no personal knowledge, do you, as to who actually made this deposit?

A.   I do not, no.

Q.   Okay.  And you have -- do you have any knowledge as to whether or not Mr. Chapel was at liberty on April 27, 1993?

A.   I have no idea.

Q.   Okay.  And drawing your attention to Exhibit 71A, B, C, and D, this was the deposit slip on April 22, 1993.  There are two checks on that sheet --

A.   Yes.

Q.   -- and one cash-in debit slip?

A.   Yes.

Q.   And the cash-in debit was for the grand total of $115, isn't it?

A.   Yes.

Q.   The total deposit on that date, however, you told us was $611.47?

A.   Yes.

Q.   Now, the two checks you've identified are in the amount of $65 and $15?

A.   Yes.

Q.   My addition is not terrific, but 65 plus 15 plus 115 does not equal $611.47.

A.   But there were other deposits, other checks.  There were other checks that were deposited that he made out.

Q.   Do you know what those --

A.   I don't -- there are not copies of those checks.

Q.   Okay.  Is that because they weren't requested by the district attorney's office?

A.   I thought we gave them.  I don't know whether they received them or not.  They're not attached here.

Q.   Okay.

A.   But they are listed on the back.

Q.   Okay.  So there were other checks that --

A.   There were, yes.

Q.   -- when combined when the --

A.   Made up a total of $496.47 is what the checks did make a total of.

Q.   Okay.

A.   Yes.

Q.   And that additional amount was in the form of checks and not in the form of cash?

A.   Yes, in the form of checks.

Q.   Thank you. 

MS. ROGAN:  That's all I have.

THE WITNESS:  Okay.

MS. ROGAN:  Thank you.

THE COURT:  Redirect?

MR. SMEAL:  Just briefly, Your Honor.

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Ma'am, with respect to that last document you were describing --

A.   Uh-huh.

Q.   -- which is a total deposit of $611.47, $611.47, on the back of that document are listed various checks totaling $496.47; is that correct?

A.   That's right.  Yes.

Q.   And the amounts of the individual checks are listed?

A.   Yes.  Yes.

Q.   Okay.  15, 65, 20, 35, 33, 47.77 --

A.   Right.

Q.   -- 175.70, and 105.

A.   Yes.  That is transferred over to the front of the deposit.

Q.   And then that total of checks is transferred over to the deposit slip and that's listed as $496.47?

A.   Yes.  That's right.

MR. SMEAL:  Nothing further, Your Honor.

THE COURT:  Recross?

MS. ROGAN:  No, Your Honor.

THE COURT:  Do you wish Ms. Chandler to remain on call?

MR. SMEAL:  Yes, Your Honor, we'd like her to remain on call.

THE COURT:  All right.  You'll be subject to being recalled as a witness, Ms. Chandler, but you can come down at this point.  Thank you.

THE WITNESS:  Okay.  Thank you.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  The state calls Larry Henderson.

[The witness was called to the courtroom.]

THE COURT:  Mr. Henderson, if you'll take the stand up here, please.  Come on up and be seated.

MR. SMEAL:  Please have a seat, sir. 

[The witness stepped to the stand.]

MR. SMEAL:  Would you raise your right hand, please.  Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  I do.

Whereupon,

     LARRY R. HENDERSON

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. SMEAL:

Q.   Please state your full name and current occupation.

A.   My name is Larry R. Henderson, and I'm a banker.

Q.   Okay.  And how do you spell your last name, sir?

A.   H-e-n-d-e-r-s-o-n.

Q.   And which bank do you work for?

A.   I'm with People's Bank and Trust in Buford, Georgia.

Q.   Does People's Bank and Trust in Buford, Georgia, have more than one branch?

A.   Yes.  We have one branch on Main Street, old downtown Main Street, Buford, and we have the main headquarters office there at 1899 Buford Highway.

Q.   So the headquarters of the bank is on Buford Highway?

A.   That's correct.

Q.   And then you have a branch on Main Street?

A.   Main Street Downtown, old Buford.

Q.   What are your duties with the bank, sir?

A.   I'm the executive vice president and the corporate secretary of the bank.

Q.   And a little bit more specifically, what are your duties, sir?

A.   I'm the chief operating officer.  I'm in charge of the running of the bank on a daily basis, and I'm also the official keeper of bank records.

Q.   Sir, are you familiar with how your bank keeps bank records?

A.   Yes, I am.

Q.   Okay.  With respect to persons' accounts, including bank statements, deposit slips, and checks, how does the bank keep those records, if it does?

A.   Well, anytime checks are cashed or anything is deposited, it goes up to our proof room, and there it's run through a proof machine where we put micro-encoding on it, and at that time we film or microfiche and put on microfilm copies of all the checks.

Q.   What happens to the originals of those documents?

A.   Those are originally sent down to File Serve, which is our computer company, and they're processed, and the people's accounts are debited, and then those checks are returned back to us the next day, where we film those a second time.

Q.   Okay.  And is the reproduction done at or close to the time of the actual transactions; in other words, when the documents go through the banking system?

A.   Yes, sir.  It's filmed by at least four o'clock of the same day.

Q.   And are those records kept in the regular course of business?

A.   That's correct.

Q.   And the original documents get sent out by the bank to various customers?

A.   That's correct.  Once a month, we'll mail a regular statement to them.

Q.   Did you receive a subpoena duces tecum in this case requesting the production of various bank records belonging to both Emogene Thompson and also to Michael Chapel  doing business as Iron World?

A.   That is correct.  We did.

Q.   And your bank had accounts for both of those persons?

A.   That is correct.

Q.   And in compliance with that subpoena, did you in fact produce documents?

A.   We did.

Q.   Sir, I'm going to ask you to identify a series of documents.

A.   Okay.

Q.   I'm handing you what's been marked as State's Exhibit 34.  Can you identify that document?

A.   This is a copy of a regular checking account statement 001-19-198 of Emogene Thompson's.

Q.   What's the date of that statement?

A.   This statement date is November 17 of 1992.

Q.   Okay.  And is that one of the documents that's kept in the regular course of business?

A.   It is.  It is.

MR. SMEAL:  Your Honor, because the state would like to exact some testimony about the content of that document, I'll go ahead and move to admit that document at this time.

THE COURT:  All right.  Any objection?

MS. ROGAN:  No, Your Honor.

THE COURT:  It's admitted without objection.  And that was State's 34; correct?

MR. SMEAL:  34, yes, Your Honor.

THE COURT:  Go ahead, please.

MR. SMEAL:  That is a statement dated 11/17/92 on the account of Emogene Thompson.

THE COURT:  All right.  Go ahead, please.

BY MR. SMEAL:

Q.   Directing your attention to a deposit line of November 12, 1992, does it show a deposit into her account?

A.   Yes, it does.

Q.   What is the amount of that deposit?

A.   $15,000.

Q.   Sir, I'm next showing you what's been marked as State's Exhibit 35A and 35B, can you identify those two documents?

A.   Yes, I can.  One is a deposit going into Emogene Thompson's account.  The other is an insurance draft in the amount of $15,164.19.  She deposited this check into her account.  We credited her account for $15,000, and she got back in cash $164.19.

Q.   What was the date of that transaction?

A.   This was dated November 12, 1992.

Q.   Okay.  And does this transaction correspond to the deposit you've previously identified on State's Exhibit 34?

A.   Yes, it does.

Q.   Okay.  And is 35A and B, those documents, kept in the regular course of business?

A.   They are.

MR. SMEAL:  We move to admit those documents, Your Honor.

MS. ROGAN:  No objection.

THE COURT:  State's 35A and B are admitted.  Which is 35A and which is B?

MR. SMEAL:  35A is the deposit slip itself and 35B is the check in the amount of $15,164.19 made payable from Liberty National Life Insurance Company to Emogene Thompson.

THE COURT:  All right.  35A and B are admitted without objection.

BY MR. SMEAL:

Q.   Sir, I'm showing you State's Exhibit 36, can you identify that document, please?

A.   Yes, I can.  This is a copy of Ms. Thompson's savings account.  It's got account number 004-65-443.

Q.   Okay.  What is the date of that statement?

A.   This is dated March 31, 1993.

Q.   Okay.  Is that document kept in the regular course of business?

A.   It is.

MR. SMEAL:  The state moves to admit 36, Your Honor.

MS. ROGAN:  No objection.

THE COURT:  State's 36 is admitted without objection.

BY MR. SMEAL:

Q.   Can you tell, sir, from this document when she opened that savings account?

A.   It was opened January 24, 1993.

Q.   And directing your attention to this line, does it show a deposit on January 25 in the amount of $7,000?

A.   It does.

Q.   Was that the initial deposit into this account?

A.   That is correct.

Q.   I'm showing you what's been marked as State's Exhibit 37.  Can you identify that document?

A.   Yes, I can.  This is a savings deposit slip of $7,000 going into Ms. Thompson's account 004-65-443, dated  January 22, 1993.

Q.   Does that deposit of $7,000 -- is that the same deposit that you've previously identified in her savings account on January 22, 1993?

A.   It is.

Q.   Is this document kept in the regular course of business?

A.   It is.

MR. SMEAL:  The state moves to admit that exhibit, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection, Your Honor.

THE COURT:  State's 37 is admitted without objection.

BY MR. SMEAL:

Q.   I'm handing you what's been marked as State's Exhibits 38A, B, C, and D, which appear to be checks written on a single microfiche sheet.  Can you identify those documents in turn?  If you could just identify them by check number.

A.   Yes.  Check number 526 is a check for $7,000 drawn off Ms. Thompson's account 001-19-198, dated January 22, 1993.  The second check is check number 525 for $40 off of Ms. Thompson's account 001-19-198, dated January 22, 1993.  The third check is check number 522 off of Ms. Thompson's account 001-19-198 for $17.86, dated January 21, 1993.  The last check is check number 520 off of her account number 001-19-198 in the amount of $33.95.

Q.   Okay.  Sir, the only check that we're -- well, the check we're primarily interested in today is the check which is identified as 38A.  You've identified that as $7,000 made payable to People's Bank; is that correct?

A.   That's correct.

Q.   Okay.  And that was written on her checking account?

A.   That was written off of her account 001-19-198.

Q.   Does that appear to be how she opened a savings account by writing a $7,000 check on her checking account?

A.   That's correct.  Transferred it from checking into her savings account.

Q.   So on January 22 all she did was take $7,000 from checking and deposited it and opened a savings account?

A.   That's correct.

Q.   I'm showing you what's been marked as --

MR. SMEAL:  I'm sorry, Your Honor.

BY MR. SMEAL:

Q.   38A, B, C, and D, are those documents kept in the regular course of business?

A.   They are.

MR. SMEAL:  The state moves to admit those documents, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection. Your Honor.

THE COURT:  State's 38A, B, C, and D are admitted without objection.

BY MR. SMEAL:

Q.   I'm showing you State's Exhibit 39.  Can you identify that document, please?

A.   This is a savings withdrawal from her savings account number 004-65-443 from Emogene Thompson's account in the amount of $6,375, dated March 2, 1993.

Q.   And is this record kept in the regular course of business?

A.   It is.

MR. SMEAL:  The state moves to admit this document, Your Honor.

MS. ROGAN:  No objection.

THE COURT:  State's 39 is admitted without objection.

BY MR. SMEAL:

Q.   Once again, sir, this document shows a savings withdrawal of $6,375 on March 2, 1993?

A.   That's correct.

Q.   I'm showing you State's Exhibit 40.  Can you identify that document, please?

A.   I can.  This is a teller tape where the teller, when she cashes checks or takes deposits, this is her tape from her calculating machine.

Q.   Okay.  What does that show?

A.   We show what we call a cash out for $6,375.

Q.   Can you tell from looking at this document which teller handled that transaction?

A.   Yes, sir.  It's teller number 008.

Q.   Okay.  And do you know who teller 008 was at that time?

A.   That's correct.  Her first name is Cindy, Cindy Evans.

Q.   Does State's Exhibit 40, that teller tape, appear to involve the same transaction that you've described on State's Exhibit 39?

A.   It does.

Q.   Okay.  It's the same date?

A.   That's right.

Q.   Is that document kept in the regular course of business?

A.   It is.

MR. SMEAL:  The state moves to admit 40, Your Honor, State's Exhibit 40.

THE COURT:  Any objection?

MS. ROGAN:  No, Your Honor.

THE COURT:  State's 40 is admitted without objection.

BY MR. SMEAL:

Q.   I'm showing you what's been marked as State's Exhibit 41, can you identify that document?

A.   This is another statement of Emogene Thompson's regular checking account 001-19-198 dated March 16, 1993.

Q.   Is that document kept in the regular course of bank's business?

A.   It is.

MR. SMEAL:  The state moves to admit State's Exhibit 41, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  Can I -- can you just say again what that exhibit is?

MR. SMEAL:  This is a bank statement dated     March 16, 1993, in the account of Emogene Thompson, her checking account.

MS. ROGAN:  No objection, Your Honor.

THE COURT:  State's 41 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, directing your attention to a deposit on March 12, 1993, would you tell the jury what the amount of deposit was on that date?

A.   That was $500.

Q.   I'm showing you what's been marked on one sheet as State's Exhibits 42A, B, C, D, and E.  Can you identify that series of documents?

A.   Okay.  This first one is a deposit going in -- deposit slip going in to Emogene Thompson's account number 001-19-198 in the amount of $500 dated March 12, 1993.

Q .  What is 42B?

A.   42B is a cash out where Ms. Thompson received $9,845.58 from this check.  Basically, the deposit was for $10,216.18.  She got back in cash $9,845.58.  That left going into the account $500.

Q.   Okay.  And would you identify 42C, D, and E, please?

A.   42C is a check -- okay.  This is a check drawn off of the Citizen's Bank in the amount of $129.40.

Q.   And 42D?

A.   This is a CIBA -- it looks like a CIBA payroll check in the amount of $284.90 payable to Emogene Thompson.

Q.   And 42E?

A.   This is a check payable to Emogene Thompson from Veteran's Life Insurance Company in the amount of $9,932.18.

Q.   Okay.  Were these records kept in the regular course of business?

A.   They were.

MR. SMEAL:  The state moves to admit 42A, B, C, D, and E, Your Honor.

MS. ROGAN:  No objection.

THE COURT:  State's 42A, B, C, D, and E are admitted without objection.

BY MR. SMEAL:

Q.   Sir, going back to the deposit slip on this occasion, March 12, 1993, does this appear to be what we commonly call a split deposit?

A.   It is.

Q.   She presented checks in the amount of $10,000 -- over $10,000, deposited a net amount of $500, and received cash back of the difference?

A.   That is correct.

Q.   And you've previously described that as -- in State's Exhibit 42B as $9,845.58?

A.   That is correct.

Q.   I'm handing you what's been marked as State's Exhibit 43.  Can you identify that document, please?

A.   Okay.  This is a commercial checking account in the name of Mike Chapel doing business as Iron World The Gym, account number 000-14-449.  This is a statement dated January 29, 1993.

Q.   Is this a record that's kept in the regular course of business in your bank?

A.   It is.  It is.

MR. SMEAL:  The state moves to admit State's Exhibit 43, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 43 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, directing your attention to this document, does it show what the balance of this commercial account was on December 31, 1992?

A.   The account was overdrawn 19 cents.

Q.   I'm directing your attention to State's Exhibit 44.  Can you identify that document, please?

A.   Yes.  This is a statement off of a commercial checking account, account number 000-14-449, Mike Chapel doing business as Iron World The Gym.  It's dated 2/26/93.

Q.   Is this a record that's kept in the regular course of business in your bank?

A.   Yes, sir, it is.

MR. SMEAL:  The state moves to admit this document.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 44 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, I'd like you to look at State's Exhibit 45.  Can you identify that document, please?

A.   Again, this is a statement from our commercial checking account number 000-14-449, Mike Chapel doing business as Iron World The Gym, dated March 31, 1993.

Q.   Is this a record kept in the regular course of business in your bank?

A.   Yes, sir, it is.

MR. SMEAL:  The state moves to admit this document, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 45 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, directing your attention to this same document, State's Exhibit 45, what was the balance of this account on March 11, 1993?

A.   It was overdrawn $3.42.

THE COURT:  Which exhibit are you talking about?

MR. SMEAL:  45, Your Honor.

THE COURT:  And what was the date of that statement?

MR. SMEAL:  3/31/93.

THE COURT:  Thank you.  Go ahead, please.

BY MR. SMEAL:

Q.   Sir, I'm showing you what's been marked as State's Exhibit 46.  Can you identify that document, please?

A.   Yes, sir.  This is a actual statement off of our commercial checking account number 000-14-449, Mike Chapel doing business as Iron World The Gym, dated April 30, 1993.

Q.   Okay.  Now, sir, you said that this is the actual statement; is that correct?

A.   That is correct.

Q.   This is not a microfiche or reproduction?

A.   No, sir.  This is the actual statement.

Q.   You've previously testified that in the normal course of business, originals would be sent out to persons; is that correct?

A.   That's correct.

Q.   Okay.  How was it that the bank retained that original document?

A.   We keep statements and checks for thirty days normally.  When we were served with the subpoena that we captured these particular statements and checks, and we gave those to the detective that was investigating that had served us the subpoena.  He had requested these, and we felt like this was covered by the subpoena, so we gave those to him.

Q.   All right.  The subpoena that was received by the bank was for the -- included the April 1993 time period; is that correct?

A.   I'll have to look at the document.

Q.   But these documents were supplied --

A.   I feel like --

Q.   -- pursuant to that subpoena?

A.   That's correct.

Q.   These just happen to be statements that hadn't been mailed out yet?

A.   That's correct.

Q.   All right.  Was this a document that at that time was being kept in the regular course of business by your bank?

A.   They were.

Q.   They just simply hadn't been mailed out yet?

A.   That's correct.

MR. SMEAL:  The state moves to admit State's Exhibit 46, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 46 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, directing your attention to the deposits that are listed on this document, was there a deposit on 4/16/93?

A.   Yes.  There was a deposit of $475.

Q.   Was there a deposit on 4/19/93?

A.   There was a deposit of $335.

Q.   On 4/20/93, was there a deposit?

A.   A deposit was made of $105.

Q.   And on April 23, 1993, was there a deposit?

A.   A deposit of $503.

Q.   Sir, can you identify State's Exhibit 47?

A.   This is an actual deposit ticket going into account number 000-14-449, Iron World The Gym, for $500 -- excuse me, for $507, dated April 7, 1993.

Q.   And once again, was this document captured by the bank prior to it being sent out?

A.   That is correct.  These were pending to be mailed that we were served with a subpoena and this was that month's work that we had and had not mailed to the customer.

Q.   All right.  At that time it was being kept in the regular course of business?

A.   That's correct.

MR. SMEAL:  The state moves to admit 47, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 47 is admitted without objection.

BY MR. SMEAL:

Q.   I'm showing you State's Exhibit 48.  Can you identify that document, sir?

A.   This again is a deposit ticket for $475 going into account number 000-14-449, the gym, dated April 16, 1993.  Again, this is the actual document.

Q.   Was this kept in the regular course of business at that time?

A.   It was.  It is.

MR. SMEAL:  The state moves to admit 48.

THE COURT:  What was the amount?

THE WITNESS:  $475.

THE COURT:  All right.  Any objection?

MS. ROGAN:  No objection.

THE COURT:  It's admitted without objection.

BY MR. SMEAL:

Q.   Sir, directing your attention to that document, which is a deposit slip, you've indicated, for $475, does it break down the deposit between currency and checks?

A.   Yes, it does.  It shows $300 was in currency and $175 in checks.

Q.   Sir, I'm showing you what's been marked as State's Exhibit 49.  Can you identify that document, please?

A.   This is a deposit ticket, an actual deposit ticket, going into account number 000-14-449 of the Iron World The Gym dated April 19, 1993.  It was for $105, of which $80 was in cash or currency and $25 was in coins.

Q.   Was this a document kept in the regular course of business at that time?

A.   It was.

MR. SMEAL:  The state moves to admit State's Exhibit 49, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 49 is admitted without objection.

BY MR. SMEAL:

Q.   I'm showing you State's Exhibit 50.  Can you identify that document, sir?

A.   This is a deposit ticket going into account number 000-14-449, Iron World The Gym, dated April 19, 1993.  The total deposit was $335, of which $285 was cash and $50 was checks.

Q.   All right.  Once again, was this an original document captured prior to distribution?

A.   That is correct.

Q.   Okay.  Was it kept in the regular course of business?

A.   It was.

MR. SMEAL:  The state moves to admit State's Exhibit 50, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 50 is admitted without objection.

BY MR. SMEAL:

Q.   I'm showing you State's Exhibit 51.  Can you identify that document, sir?

A.   This is a deposit ticket going into account number 000-14-449, the gym, dated April 29 of 1993.  The total deposit was $503, $400 of this was cash, and $103 of this deposit was checks.

Q.   Okay.  Was this an original document captured prior to distribution, sir?

A.   It was.

Q.   Was that kept in the regular course of business?

A.   It was.

MR. SMEAL:  The state moves to admit State's Exhibit 51, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 51 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, I'm showing you State's Exhibits 52, 53, and 54, which appear to be checks which we've put in one sleeve.  Can you identify those in turn, please, starting with 52?

A.   Yeah.  These are all actual checks drawn off of People's Bank and drawn off of his account, Iron World The Gym, account number 000-14-449.  These are checks that we'd paid that we had not mailed to the customer, that we had kept those.  The first check is check number 305.  The amount of the check is $200 payable to Southern Bell, dated April 24, 1993.

Q.   Sir, is that March 24, 1993, sir?

A.   March 24, 1993.

Q.   Okay.  State's Exhibit 53, can you identify that document, please?

A.   This is an actual check that we paid off account number 000-14-449.  The date of the check is April 5, 1993.  The amount of the check is $87.36 payable to Atlanta Journal and Constitution.  Check number 307 dated --

Q.   This is State's Exhibit 54.

A.   Okay.  This is an actual check for $90 payable to Mike Brownlee, account number 000-14-449, dated April 9, 1993.

Q.   Okay.  Those three documents 52, 53, and 54, were those essentially captured prior to distribution?

A.   That is correct.

Q.   Were they kept in the regular course of business at that time?

A.   They were.

MR. SMEAL:  The state moves to admit 52, 53, and 54, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 52, 53, and 54 are admitted without objection.

BY MR. SMEAL:

Q.   I'm showing you what's been marked as State's Exhibit 55.  Can you identify that document, sir?

A.   This is an actual check that we paid off account number 000-14-449, dated April 10, 1993, in the amount of $50.

Q.   Who is it payable to?

A.   It was payable to a Scott Spearman.

Q.   And did you save that check prior to distribution?

A.   That is correct.

Q.   So was that kept in the regular course of business?

A.   It was.

MR. SMEAL:  The state moves to admit State's Exhibit 55, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection, Your Honor.

THE COURT:  State's 55 is admitted without objection.

BY MR. SMEAL:

Q.   Sir, I'm showing you State's Exhibits 56 and 57, can you identify those two documents, please?

A.   These are actual checks that we have paid off account number 000-14-449, check number 309, in the amount of $187.77, payable to the City of Lawrenceville, dated April 12, 1993.

Q.   Okay.  And State's Exhibit 57?

A.   This is a check drawn off of 000-14-449, check number 310, in the amount of $30 paid to the order of cash.

Q.   Okay.  And were those documents kept in the regular course of business at that time?

A.   They were.

MR. SMEAL:  The state moves to admit 56 and 57, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 56 and 57 are admitted without objection.

BY MR. SMEAL:

Q.   Sir, I'm showing you State's Exhibits 58, 59, and 60.  Starting with 58, can you identify that document, please?

A.   Yes.  This is a check, actual check, drawn off of 000-14-449, in the amount of $239.16, payable to some lab company -- I can't read the first name -- Labs, dated April 15, 1993.

Q.   Okay.  And State's Exhibit 59, can you identify that document, please?

A.   This is an actual check, check number 312, in the amount of $600, payable to the Gordon Burrell Estate, drawn off account number 000-14-449.  It's dated April 15, 1993.

Q.   Okay.  And State's Exhibit 60, can you identify that document, please?

A.   Again, this is an actual check that we paid off of 000-14-449, check number 313, it's in the amount of $50, and it's payable to John Chapel.

Q.   Those three documents, were they kept in the regular course of business at that time?

A.   They were.

MR. SMEAL:  The state moves to --

THE COURT:  What was the date of State's 60?

THE WITNESS:  That date is April 21, 1993.

MR. SMEAL:  State moves to admit 58, 59, and 60, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No objection.

THE COURT:  State's 58, 59, and 60 are admitted without objection.

BY MR. SMEAL:

Q.   We're getting close to the end here, sir.  I'm asking you to identify State's Exhibits 61 and 62.  Can you identify those documents, please?

A.   These are two actual checks that we paid off of 000-14-449.  Check number 314 was in the amount of $30, paid to the order of cash, dated April 21, 1993.  Check number 315 was in the amount of $355.58, payable to the City of Buford, dated April 22, 1993.

Q.   Were those documents kept in the regular course of business by the bank at that time?

A.   They were.

MR. SMEAL:  The state moves to admit 61 and 62, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No, Your Honor.

THE COURT:  State's 61 and 62 are admitted without objection.

BY MR. SMEAL:

Q.   Sir, I'm showing you what's been marked as State's Exhibits 63A and B.  Starting with 63A, can you identify that document?

A.   This document here is what we call a general ledger credit, where we -- where the bank received cash and coin from the Federal Reserve Bank in the amount of $228,400, dated March 11 of '93.  And this is what we call a money shipment from Fed.  This is where we get our cash from.

Q.   Okay.  And --

THE COURT:  What was the date?

THE WITNESS:  Dated March the 11th of '93.

THE COURT:  All right.  Go ahead, please.

BY MR. SMEAL:

Q.   Is it possible to show from that document which of the two branches received that currency?

A.   Yes, sir.  This $228,400 was received at our headquarters office there at 1899 Buford Highway.

Q.   Is this a document that you keep in the regular course of business?

A.   It is.

Q.   Would the entries on that document have been made at or about the time of the actual transaction?

A.   It would have been made on the same day we received the currency.

MR. SMEAL:  All right.  The state moves to admit 63A, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  I would like to have the opportunity to see that again.  I did not see it until today for the first time.

[Presenting to Ms. Rogan]

MS. ROGAN:  No.  I have no objection.

THE COURT:  State's 63A is admitted without objection.

BY MR. SMEAL:

Q.   And, sir, 63B, can you identify that document, please?

A.   This is a cash -- what we call a cash-in where the teller took the cash in in the amount of $228,400.  This is how she shows that she received this cash from the Federal Reserve Bank.

Q.   So that is a receipt for the amount that was shipped as shown in 63A?

A.   That's correct.

Q.   And finally, sir, I'm showing you what's been marked as State's Exhibit 64.  Can you identify that document, please?

A.   Yes.  Again, this is a general ledger credit.  This is where our branch up on Main Street, Buford, received a money shipment from the Federal Reserve Bank in the amount of $60,000, which we got $20,000 in twenties and $40,000 in large bills.  It's dated March 11, 1993.

Q.   Okay.  Is that a document that's kept in the regular course of the bank's business?

A.   It is.

Q.   Is that document created at or about the time of the transaction?

A.   It was created on March 11, 1993.

MR. SMEAL:  The state moves to admit that document, State's Exhibit 64, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No, Your Honor.

THE COURT:  State's 64 is admitted without objection.  I don't show 63B as being offered.  Was it?

MR. SMEAL:  If I failed to, Your Honor, the state moves to admit 63B at this time.

THE COURT:  All right.  Any objection?

MS. ROGAN:  I have no objection.

THE COURT:  State's 63B is admitted without objection.

BY MR. SMEAL:

Q.   Sir, directing your attention back to State's Exhibit 64, when you said $20,000 in twenties and then $40,000 in large bills, what does large bills normally mean?

A.   That would be either $50 bills or $100 bills.

MR. SMEAL:  No further questions at this time.

THE COURT:  Ms. Rogan?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good afternoon, Mr. Henderson.  My name's Elizabeth Rogan, and I'm one of Mr. Chapel's attorneys.  Do you know Michael Chapel?

A.   I only know him through the bank as a customer.

Q.   Did you know him as a bank customer?

A.   That's correct.

Q.   Okay.  And he had his gym account with you for several years there?

A.   I don't know how long.  I know just it was there -- you know, I know it was there.  I don't know when it was opened exactly.

Q.   Okay.  Is it closed now?

A.   That's correct.

Q.   Did it become closed sometime after he was arrested?

A.   That I don't know.

Q.   I've got a lot of documents here, but I'm not going to take too long.  I'd like to direct your attention first to Mr. Chapel's accounts or account, I should say.     Mr. Smeal asked you on direct examination in identifying the bank statements for Mr. Chapel's gym account, he asked you what the balances were for the end of December 1992, which you indicated had a 19 cent overdraw.  Do you recall that?  Do you want to see Exhibit 43 again?

A.   Please.

Q.   I'm handing you Exhibit Number 43, which was the bank statement for January 1993 for the account for Iron World The Gym.

A.   That's right.  On March 31, 1992, the account started out at an overdrawn balance of 19 cents.

Q.   All right.  Can you tell us, please, what the balance was at the end of that month, the end of January 1993?

A.   On January 29, 1993, it was $595.98.

Q.   All right.  And Mr. Smeal did not ask you anything about the balances for the next month's statement, which is the month of February 1993.  I'm handing you Exhibit Number 44, which is the bank statement, as you identified, for February 1993.  Can you tell us, please, what the balance was at the end of that month?

A.   On February 26, 1993, it was $622.09.

Q.   Okay.  That's $622.09?

A.   That's correct.

Q.   All right.  And then the next month is March 1993, which is Exhibit Number 45.  Could you tell us, please, what the ending balance for the month of March 1993 was?

A.   That balance of March 31, 1993, was $243.55.

Q.   All right.  And then finally, we have April 1993, the bank statement for April.  Can you -- and that's Exhibit Number 46.  Can you tell us, please, what the ending balance for that month was?

A.   April 30, 1993, it was $227.46.

Q.   All right.  So the only month on which the ending balance was overdrawn was in December 1992?

A.   That's correct.

Q.   Okay.  That's right after Christmastime, isn't it?

A.   That's correct.

Q.   And then directing your attention to the deposit slips for Mr. Chapel's accounts, which I know I have here -- by the way, Mr. Henderson, were you personally -- let me rephrase that.  You responded to the subpoena that the district attorney served on you for these various records that you've identified here in Court?

A.   That's correct.

Q.   All right.  Were you subpoenaed for all of these records at the same time?

A.   April -- that's correct.

Q.   April 1993?

A.   I believe was the date of the subpoena, the first one that we got.

Q.   The first one?

A.   Uh-huh [affirmative].

Q.   Okay.  Do you recall what that first subpoena was requesting?

A.   No.  Just copy of records.  I just have to read the subpoena.  I don't recall.

Q.   Did you bring your subpoena with you?

A.   No.  No, I did not.

Q.   Okay.  Do you have it available?

A.   It -- yes, it's on microfilm.

Q.   It's somewhere?

A.   Right.  Yes.

Q.   Okay.  How many subpoenas altogether did you receive?

A.   Originally, one, and then, of course, now two in this matter.

Q.   Okay.

A.   Last week I received two and then back in '93 I received one.

Q.   Okay.  So you received one back in 1993?

A.   Right.

Q.   And you've just indicated you received two more recently --

A.   Right.

Q.   -- regarding this trial --

A.   That's correct.

Q.   -- that is finally happening.  Do you recall what the recent subpoenas were about?

MR. SMEAL:  I'm going to object, Your Honor, to the relevance of this testimony.

THE COURT:  Would you approach the bench?

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

MR. SMEAL:  The state is entitled to subpoena anything it wants to from the witness or a location.  That doesn't automatically make the contents of the subject matter of that subpoena relevant in a trial, and I don't see the possible relevance of the subject matter of the subpoena.

THE COURT:  Ms. Rogan?

MS. ROGAN:  Your Honor --

MR. SMEAL:  If I may just add one other point, Your Honor, the defendant is not permitted to comment or introduce evidence of a witness not called by the state.  Records of that subpoena that aren't used at trial are similarly improper to look into those.

MS. ROGAN:  My thrust is more towards the timing of certain matters.  There has been an issue in this case that's not been developed yet, but I anticipate it will as to some recently discovered evidence by the state --

THE COURT:  What is that?

MS. ROGAN:  It involves currency, four hundred dollar bills.  Mr. Porter alluded to it in his opening statement.  It was allegedly discovered on July 28 when we happened to be making a tour of the Gwinnett County police department.  The supporting documentation to make that money relevant to this case, I believe, was not requested or obtained until after the discovery of that money, and I believe that's an issue that's relevant for us to go into in terms of the investigation of this case which, as you're aware from Mr. Moore's opening, is one of our defense issues.

THE COURT:  How is the content of the subpoena relevant?

MS. ROGAN:  It's the timing of the subpoena --

THE COURT:  And how is that relevant?

MS. ROGAN:  -- and what it's requesting.

THE COURT:  And how is that relevant?

MS. ROGAN:  It's relevant to the issue of when certain evidence, which the state is going to introduce, was discovered.

MR. SMEAL:  Your Honor, at a later time in this trial, the state -- at a later time in this trial, the state will be introducing four hundred dollar bills that were discovered for the first time ever about July 28, 1995, and they'll be able to fully explore that at that time.

THE COURT:  Well, what does it matter if it's -- if it's not exculpatory matter and it's discoverable and it relates to the failure to disclose or something.  If it's inculpatory matter, what does it matter when the state discovers it or when it's made known to the defendant?

MS. ROGAN:  I think it may matter to the jury when it was discovered.  I think that has to go to the thoroughness of the police investigation in this case among other issues that we're going to bringing up as part of the defense case.

THE COURT:  Okay.  What do you want to ask this witness?

MS. ROGAN:  When some of the supporting documentation that he's just introduced today was requested.

THE COURT:  I'll allow him to go into it.  Frankly, I don't -- well, I'm just not inclined to be very tight on cross for either side if we've got some reasonable prospect of being relevant.  I guess I'd rather err on the side of being a little too broad on cross --

MR. SMEAL:  Your Honor, if she wants to ask this witness when he received a subpoena regarding currency transfers and established that that was recently received, I don't have an objection to that.  It's going to come out anyway.

THE COURT:  Okay.  What are you objecting to?

MR. SMEAL:  Well, I didn't know where she was headed.

THE COURT:  Okay.

MR. SMEAL:  I didn't know where she was headed.  It sounded like she was headed towards the contents of certain subpoenas.  It was open-ended.  I didn't know where she was headed.

THE COURT:  Okay.  Is there any objection at this point?

MR. SMEAL:  If it's regarding the subpoena for currency -- documentation on currency transfers, I don't oppose that question.

MS. ROGAN:  Well, it's more than that.  It's supporting documentation.  Your Honor, the state alleged to be an open-file policy with us, and up until about January or so that was the case.  Since then, there have been a number of evidentiary developments in the case which we have not been notified about.

THE COURT:  Okay.  You can cross on it.  I'll allow it.

MS. ROGAN:  Thank you.

THE COURT:  I'll allow it.

[Bench conference concluded.]

THE COURT:  Go ahead, please.

BY MS. ROGAN:

Q.   Do you remember my question?  I don't.

A.   Something about --

THE COURT:  Why don't you restate it for him?

BY MS. ROGAN:

Q.   I was asking you about the subpoenas that you received; and, in particular, the two that you had received recently, as you said.  When exactly was that?  Within the past two weeks or three weeks or --

A.   Well, let's see.  The state -- the last two that we got, the state about two weeks ago, maybe three weeks ago, and then the defense maybe ten days ago.

Q.   Okay.  Oh, so one of the subpoenas you're referring to is a defense subpoena?

A.   That's right.

Q.   Okay.  Did the subpoena that you received from the state, do you recall what material it requested?

A.   From '93?

Q.   No, I'm sorry, the one you received two or three weeks ago from the state.

A.   Okay.  I think that what I'm referring to is a subpoena to appear in court, not a subpoena for documents.

Q.   Okay.  Then let me rephrase.  Have you received another subpoena for documents?

A.   No, we have not.

Q.   Okay.

A.   Excuse me -- yes, I think we have.  Yeah, I think that we were served with another subpoena.  Yes.  The answer's yes.

Q.   Okay.  Do you recall what it was requesting?

A.   Copies of checks, I believe.

Q.   Do you know which checks --

A.   No.

Q.   -- whose accounts?

A.   No.  No.

Q.   Okay.  But those subpoenas are available --

A.   Yes.

Q.   -- somewhere?

A.   Yes.  Yes.

Q.   All right.  Now, I'd like to direct your attention to the deposit slips that you identified from Mr. Chapel's accounts and just clarify for everyone what amounts of money we're talking about here.  I'll put them back in order.  Number 47, you identified as a deposit ticket from April 7; is that correct?

A.   Yes.  The date on the deposit ticket is April 7, 1993.

Q.   1993?

A.   Yeah.

Q.   All right.  And would you tell the jury, please, the amount of cash that was deposited on April 7, 1993?

A.   Okay.  The amount of that was $70.

Q.   Okay.  And Exhibit Number 48 is a deposit ticket from April 16, 1993?

A.   That's correct.  And the currency was $300.

Q.   Okay.  And Exhibit Number 49 is a deposit ticket from April 19?

A.   That shows a currency deposit of $80.

Q.   Okay.  And Number 50 is another deposit ticket from April 19?

A.   That shows a currency deposit of $285.

Q.   Okay.  And April 29 -- or excuse me, Exhibit 51 is a deposit ticket from April 29 and it shows --

A.   That shows a currency deposit of $400.

Q.   All right.  And April 29, of course, is after April 24, 1993; is that correct?

A.   That's correct.

Q.   All right.  And are you aware that Mr. Chapel was arrested on April 24?

A.   No, ma'am, I'm not.

Q.   Okay.  Mr. Henderson, none of these deposits are for $7,000; are they?

A.   No.

Q.   And none of these deposits are for $1,000?

A.   No.

Q.   And none of these deposits are even for $500 in cash?

A.   No.  No.

Q.   I think I just have one more thing on Mr. Chapel's -- another question I have.  Are these documents from his account for the gym the entire bank statement from that month or do you know?

A.   I really don't know.  I do not know.  I'm thinking the answer's yes, but I don't know.

Q.   Okay.  You provided to the district attorney the entire bank statement for that month?

A.   That's correct.

Q.   Okay.  And you can't tell from looking at this whether these checks comprise all of the checks --

A.   No, no.

Q.   -- that were written out of that account that month or whether there might be more or --

A.   No.  I would have to look at the statement and compare the checks that's on the statement with what we've got there to make sure they're all there.

Q.   Okay.  I have just a couple of questions about the checks that you identified as being from Mr. Chapel's account.  The first one I'd like to direct your attention to is Exhibit Number 61, and that is a check that was written on April 21 of 1993, and you've identified that as a check for cash; is that correct?

A.   That's correct.

Q.   And presumably -- and signed by Mr. Chapel.  Presumably, that would be a check he was cashing for himself?

MR. SMEAL:  I'm going to object, Your Honor --

THE WITNESS:  No.

MR. SMEAL:  -- to speculation about who signed it.  He can testify to what the name of the signature is.

THE COURT:  Objection's sustained to the question as posed.

BY MR. ROGAN:

Q.   Can you tell from that check who received the money that was directed?

A.   In our normal -- in our normal banking procedures, when somebody presents a check payable to cash, whoever is getting the cash, we get the people to sign the back of the check to know who got the cash.  In this case here, the check is paid to order of cash.  On the back, there's a signature of Dianna Zenior [phonetic spelling], and we have a driver's license number there, so I'm assuming in our normal teller procedure that the teller got this person to sign the back of the check that got this cash.

Q.   Okay.  Okay.  So that check was made out for someone else's benefit to be paid in cash?

A.   It appears that way.

Q.   It appears to you?

A.   It appears to be.

Q.   Okay.  And what is the amount of that check that was written on April --

A.   That check is $30.

Q.   Okay.  And that was April 21?

A.   That's correct.

Q.   Okay.  I'll take that one back and another -- okay.  And on Exhibit Number 59, there was a check for $600 and that was written on April 15?

A.   That's correct.

Q.   And it was made out to the Gordon Burrell estate?

A.   That's correct.

Q.   And is there any notation in the memo section as to what that check was for?

A.   It says April rent.

Q.   Okay.  And lastly with these checks, Exhibit Number 52 was a check written on March 24, 1993.  Can you tell us who that check is made out to?

A.   This check was payable to Southern Bell.

Q.   Okay.  And what was the amount of that check?

A.   That was $200.

Q.   All right.  And as far as you can tell from that check, it cleared the bank, did it not?

A.   Yes.

Q.   There's no indication on there that it was returned for insufficient funds or anything of that sort?

A.   No.  No.  The check was paid.

Q.   Okay.  Thank you.  All right.  Now, I'd just like to turn briefly to Ms. Thompson's accounts.  We have a number of exhibits here that pertain to her, both checking and savings accounts at your bank.  And I guess in a nutshell what the records will indicate is that she had deposited $15,000 back in November 1992; is that correct?

A.   She deposited $15,000.  I don't know the exact date.  I have to look at that, but --

Q.   Okay.  Let me find that for you, so just bear with me.  Okay.  Here we have Exhibit Number 34, and if you could look on that.

A.   Right.  On November 12, 1992, there was a deposit of $15,000.

Q.   Okay.  And then in January 1992, there was what you termed -- 1993, excuse me, what you termed a cash transfer.  In other words, from these records, she had removed $7,000 from the checking account and moved it into a savings account?

A.   Yes, ma'am.

Q.   And I believe that that's reflected in Exhibits 36 and 37?

A.   That's correct.

Q.   Okay.  And then in March 1993, she withdrew $6,375, Exhibit Number 39, from the savings account?

A.   That's correct.

Q.   Okay.  Now, you have a teller tape here for that withdrawal which indicates that Ms. Evans of your bank handled that transaction?

A.   That's correct.

Q.   And that's State's Exhibit Number 40?

A.   That's correct.

Q.   Is there any way to tell from this, Mr. Henderson, what the denominations were of the money that she received that day?

A.   No.  No, ma'am, none whatsoever.

Q.   Okay.  It just shows the total amount that she received?

A.   Right.  Right.

Q.   And then you further identified in March a deposit, a net deposit, of $500, Exhibit Number 42, which the supporting documentation indicates came from a deposit of somewhere in excess of $10,000 and then a cash back of 9,000 plus dollars?

A.   That's correct.

Q.   Okay.  There is not a corresponding teller tape for that transaction that you have provided, is there?

A.   No.  There is one, but I do not have it.  It's not been provided, but we have a record of that.

Q.   Okay.  But you did not provide a teller tape for that particular transaction?

A.   No.  No.

Q.   All right.  In any event, it too would not show what the denominations of the money --

A.   No, ma'am.

MR. SMEAL:  I'm going to object, Your Honor.  If the document's not here, there's no way of drawing a conclusion.

THE COURT:  Well, I guess the question is, does he know what the document would reflect or not?  If he does, he can answer.  If he doesn't, he can say he doesn't know.  Restate your question.

BY MS. ROGAN:

Q.   Well, I will.  Thank you.  You've indicated that the teller tape does exist?

A.   Yes.

Q.   You just didn't -- so given that the teller tape exists, it would not show what denominations --

A.   No, ma'am.  No, ma'am, it would not.

Q.   All right.  And finally, these documents that you got from -- that reflect money from the Federal Reserve, Exhibit 63A and B reflect that the Buford -- the People's Bank and Trust got $228,400?

A.   That's correct.

Q.   Okay.  And Exhibit 64, I believe you said, was a receipt for money that a particular branch had received?

A.   That's correct.

Q.   Okay.  And that -- is that the branch that we're talking about that Ms. Thompson banked at?

A.   Well, a customer can go to either branch.  I think Ms. Thompson's accounts were opened up at the headquarters branch, but I don't know if she used both branches or not.

Q.   Okay.  So you don't know which branch she might have gone to to make her transactions?

A.   We can determine that from teller tapes which branch -- which tellers.  We can note -- we can find out which branch she used.

Q.   Okay.  But we don't have the teller tape here, so we don't know which branch she used?

A.   In -- as far as what transaction, no.  She might have went to one branch fifty times and our branch fifty times.  I mean, you have to tell which transaction you're looking at as to which branch that she used.

Q.   Let me clarify that for you because I wasn't clear, and I apologize.  The transaction involving the deposit of $10,000 plus and the cash back of $9,000 plus, which we don't have a teller tape for, without a teller tape, we have no way to know which branch that transaction occurred at?

A.   That's correct.  That's correct.

Q.   Okay.  That was my question, and I really didn't make it clear.

A.   That's correct.

Q.   The Exhibit 64 that I showed you indicates a receipt of a quantity of cash by which branch?

A.   Okay.  This was our own -- our Main Street branch in old downtown Buford.

Q.   Okay.  And it reflects that that particular branch received of that shipment of Federal Reserve money, received $20,000 in twenties --

A.   That's correct.

Q.   -- and $40,000 in -- you referred to them as larger bills?

A.   Either fifty dollar bills or one hundred dollar bills.

Q.   Okay.  And there's no indication on that document whether they were all fifties or all hundreds --

A.   No, ma'am.

Q.   -- or a combination or in what quantity they were combined?

A.   No, ma'am.  No, ma'am.

Q.   Okay.  Thank you.  I think that may be all.  I should have brought these in order like Mr. Smeal had them.  We do not have here -- and I'm just going to ask you to look briefly through these again.  We do not have Ms. Thompson's bank statement for March 1993.  I don't see -- if you wouldn't mind just looking through there and telling us if we do have that in evidence.

A.   March 16, 1993?

Q.   Is that when the statement was?  I must have overlooked that.  Thank you.  Okay.  Can you tell us, please, what the ending balance of her account as of March 16, 1993, was?

A.   On March 16, 1993, the balance was $964.70.

Q.   Okay.  Thanks.  Okay.  Just one moment. 

[Pause]

MS. ROGAN:  That's all I have.  Thank you, Mr. Henderson.

THE COURT:  Redirect?

MR. SMEAL:  I don't think I have any, Your Honor, but if I may just look one minute over one document.

[Pause]

MR. SMEAL:  Nothing further at this time.

THE COURT:  Do you wish this witness released altogether or to remain on call?

MR. SMEAL:  Remain on call.

THE COURT:  All right.  You may be recalled later, but you're free to go, and you can come down, please.

THE WITNESS:  Okay.  Thank you.

[The witness stepped down from the stand and exited the courtroom.]

THE COURT:  Would you approach the bench, please?

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

THE COURT:  You've got one more witness?

MR. PORTER:  One more witness, Your Honor.

THE COURT:  How long do you think we're going to be?

MR. SMEAL:  I don't think she'll be very long.  It's a bank teller who handled some transactions.

THE COURT:  Okay.  I think I'm going to give everybody a chance to stretch a minute.  I think we'll take ten minutes and wake everybody up and then we'll crank back up and hear the last witness and dispose of that witness then.

MS. ROGAN:  Wake them up?  Was I that boring?

THE COURT:  I presume they all feel about like I do after all those documents, but we'll take ten minutes.

[Bench conference concluded.]

THE COURT:  We have another witness who I think is going to be relatively short, but before we call that witness, we're going to take a ten-minute recess.  We'll have one more witness and then we'll release -- recess for the day as far as you're concerned and you can go on to dinner and lodging.  We'll take ten minutes at this point and then we'll recommence with the next witness.  If you'll go with the bailiff, please.

[The jury was excused from the courtroom for the recess.]

THE COURT:  We'll take ten minutes.

[Break taken]

THE COURT:  Is the state ready?

MR. PORTER:  Yes, Your Honor.

THE COURT:  Defendant ready?

MR. MOORE:  Yes, Your Honor.

MS. ROGAN:  Yes.

THE COURT:  We'll finish up with this witness and then we'll take about a fifteen-minute recess, and then we'll commence with the other matters we had talked about earlier today.  Bring the jurors back, please.

[The jury returned to the courtroom and proceedings resumed, as follows.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  The state calls Cindy Evans.

[The witness was called to the courtroom.]

THE COURT:  Ms. Evans, if you'll be seated up here, please.  If you'll administer the oath, Mr. Smeal.

[The witness stepped to the stand.]

THE COURT:   Go ahead and be seated.

MR. SMEAL:  Please raise your right hand, ma'am.  Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS:  Yes, I do.

Whereupon,

     CYNTHIA LYNN EVANS

having been called as a witness and duly sworn, was examined and testified, as follows:

     DIRECT EXAMINATION

BY MR. SMEAL:

Q.   Please state your full name, and if you would spell your last name for the court reporter.

A.   Cynthia Lynn Evans, E-v-a-n-s.

Q.   Ma'am, are you working outside of the home at this time?

A.   No.  I'm at home now with my two kids.

Q.   Okay.  Were you working out of the home back in March 1993?

A.   Yes, sir.

Q.   Where were you working?

A.   At People's Bank and Trust in Buford.

Q.   How long did you work for that bank?

A.   A little over six years.

Q.   When did you leave the bank?

A.   Just April 1995.

Q.   Okay.  And that was to take care of your children?

A.   Yes.

Q.   Okay.  What were your duties while employed at the bank?

A.   I was a teller.

Q.   And the People's Bank and Trust in Buford, I understand they have two branches, is that correct, a main --

A.   That's correct.

Q.   -- a headquarters and a branch?

A.   Yeah.  There's one branch, and then I was at the main branch.

Q.   And where is that main branch located?

A.   On Buford Highway.

Q.   And that's where you worked?

A.   Yes.

Q.   Ma'am, I want to direct your attention to State's Exhibit -- what's been marked as State's Exhibit 40, what has previously been admitted as State's 40, and ask you if you can identify that document?

A.   Yes.  This is a teller tape where I went and ordered $6,000 from the head teller, and I cashed a check for $6,375 for Emogene Thompson.

Q.   Okay.  And that was on March 1, 1993?

A.   March 1, 1993.

Q.   Okay.  Did you know Ms. Thompson?

A.   I just knew her from her familiar face from coming in.

Q.   Okay.  Is there a way to tell from these documents that you handled this transaction?

A.   Yes.  I was teller 8 and that's my teller number on the tape.

Q.   Okay.  And directing your attention to State's Exhibit 39, there also appears to be a code on this document.  Can you tell from that code that you handled this transaction?

A.   Yes, I can.  That's my teller number.

Q.   Okay.  Once again, 008?

A.   Right.

Q.   All right.  Would you explain for the members of the jury what several of these figures mean on State's Exhibit 40, starting with the $6,000 followed with a CI, capital CI?  What does that mean?

A.   That means that I put a cash-in ticket in to order from the head teller.  I went and ordered $6,000 from her.

Q.   Okay.  And why did you need to do that?

A.   Because I didn't have enough in my drawer.

Q.   Okay.  And the 6,375.00 capital CC, what does that mean?

A.   Cash check.

Q.   Okay.

A.   So I cashed the check --

Q.   All right.

A.   -- in my machine.

Q.   All right.  And would that be the check that's on State's Exhibit 39 in the amount of $6,375?

A.   That's correct.

Q.   Okay.  Following the $6,375 on State's Exhibit 40, there are three additional figures:  6,000, 300, and then 75 dollars; is that correct?

A.   Yes.  Yes.

Q.   What do those entries mean on that document?

A.   The 6,000, normally, I put like the large amount first.  It would be basically in hundreds and maybe some fifties, and the last two or three hundred, I probably did in twenties.

Q.   Is that the way in which the money was cashed?

A.   That's just the way I entered it in my machine.

Q.   All right.  That would have been the way that it was given back to Ms. Thompson?

A.   Yes, that's correct.

Q.   All right.  And so the first figure, the 6,000, represents larger bills?

A.   Yes.

Q.   I'm going to show you one other document, ma'am, what's been previously admitted as State's Exhibit 42A, B, C, D, and E, and I'm going to ask you if you can identify this document, specifically item 42A, and whether you can tell from this item whether you handled that transaction?

A.   Yes, I can, because it has my teller number on there and that's a deposit ticket.

Q.   Okay.

A.   Okay.

Q.   What was the net amount of that deposit?

A.   Okay.  She deposited $500 in that account, and on my cash-out ticket, which means what I gave her back out, it was 9,845.58.

Q.   Okay.  $9,845.58?

A.   That's correct.

Q.   And that cash-out document also bears your teller number 008?

A.   Yes.

Q.   There is no corresponding teller tape for that entry before you at this time; is that correct?

A.   Right.  Correct.

Q.   What would have been your normal practice in handing out $9,845.58?

A.   I went and spoke to the loan officer and --

Q.   Well, without referring to what somebody else may have --

A.   Okay.

MS. ROGAN:  Your Honor, I have to object to what her normal practice is.

THE COURT:  What was your question again?

MR. SMEAL:  In handing out $9,845, what would be your normal practice in terms of how that currency would be handed out?

THE COURT:  Objection's overruled.  Go ahead, please.

BY MR. SMEAL:

A.   [Continuing] Answer it?  Okay.  Yes.

Q.   How would you normally cash such an amount?

A.   I would basically give out hundreds and fifties, basically hundreds, and then maybe the last couple of hundred, I'd give out in twenties.

Q.   All right. 

MR. SMEAL:  Nothing further at this time, Your Honor.

THE COURT:  Cross?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Hi, Ms. Evans.

A.   Hi.

Q.   My name's Elizabeth Rogan, and I'm one of       Mr. Chapel's attorneys.  Do you know Mr. Chapel?

A.   Just from -- I've seen him in the bank.

Q.   Okay.  He banked at People's Bank also?

A.   Yes.

Q.   Okay.  And you indicated that you knew          Ms. Thompson by face --

A.   Yes.

Q.   -- from seeing her at the bank?

A.   That's correct.

Q.   Okay.  So you handled both of the transactions in which she withdrew large sums of money from the bank?

A.   Yes.

Q.   Okay.  And you described for us what your normal practice would be in terms of giving out the money.

A.   Uh-huh [affirmative].

Q.   Do you have any personal recollection of what denominations of money you gave Ms. Thompson?

A.   According to that, the way I did the tape, the way I put it on my machine, I basically gave out large bills.

Q.   And by large bills you mean either fifties or one hundreds?

A.   Yes.

Q.   Okay.  And there's no way to tell from the tape how much of either quantity of bill you gave out?

A.   Not for sure.

Q.   Okay.  And you don't have any personal memory?

A.   No, ma'am.

Q.   Okay.  And for the early March transaction, we do have a teller tape, which has been identified as State's Exhibit 40, and that, you indicated the $6,000 amount -- is that what you're referring to as being the larger bills?

A.   Yes.

Q.   But we don't have, of course, a teller tape for the second transaction, the one in middle March in excess of $9,000?

A.   Yes.

Q.   So you have no way to tell us what the denominations of the money were that you gave her?

A.   No, ma'am.

Q.   In April 1993, you were interviewed by Captain Davis of the Gwinnett County police department; do you  remember --

A.   Yes.

Q.   -- speaking with him?

A.   Yes, I do.

Q.   And you told him about the transaction involving the $6,375 --

A.   Yes.

Q.   -- which was on March 2?

A.   Yes.

Q.   And you told him that, basically, what you've told us here, that your normal practice would have been to give the majority of that money in hundred dollar bills and fifties and the rest in twenties?

A.   Yes.

Q.   You did not mention to him anything at that time about the subsequent transaction involving $9,835?

A.   I didn't remember it.

Q.   Okay.  And he didn't ask you?

A.   Right.

Q.   Okay. 

MS. ROGAN:  That's all I have.  Thank you.

THE WITNESS:  Okay.

THE COURT:  Redirect?

MR. SMEAL:  None, Your Honor.

THE COURT:  Do you wish her to remain on call?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  All right.  You'll be subject to being recalled as a witness, and you can come down.

THE WITNESS:  Okay.

[The witness stepped down from the stand.]

THE COURT:  Would you approach the bench, please?

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

THE COURT:  Nine o'clock in the morning as far as recommencing with the witnesses?

MR. SMEAL:  Excuse me, Your Honor?

THE COURT:  Recommence at nine o'clock in the morning with the witnesses?

MR. SMEAL:  Yes, sir.

THE COURT:  How do you think we're doing time-wise?

MR. PORTER:  Your Honor, we called eleven witnesses yesterday.  We've called sixteen today -- fifteen today.  I anticipate I'm going to call about sixty-three witnesses.  I've called more witnesses in two days than they have in six months on the O.J. case.

I think it's realistic -- I think we're going to see somewhat of a slowdown.  I think -- the videotapes are about three hours long.  We've had to shift around a little bit, but tomorrow we ought to move pretty quickly through some sections and be ready to play the videotape Friday morning.  We could be moving into the physical evidence by Saturday midday.

THE COURT:  Okay.  You think DNA probably Saturday?

MR. PORTER:  It could very well be Saturday.

THE COURT:  How long do you think that's going to be?  We've been through the earlier portion, a couple of days' worth.

MR. PORTER:  Your Honor, I can only say we took a whole day in the hearing, but, again, we took two hours in the hearing on Mr. Kautter.  We took an hour and a half for him or less on direct, so I don't know.

THE COURT:  You still think there's a possibility of having your case in chief in by Saturday?

MR. PORTER:  It's beginning to look better and better as time goes on.

THE COURT:  Okay.

MR. PORTER:  I think we're going to -- by tomorrow, we'll be moving into the hearsay.  Friday morning, we're looking at roughly playing the videotapes.

THE COURT:  Okay.

MR. PORTER:  And we could be into the DNA pretty easily on Saturday.

THE COURT:  Okay.  Well, if we can get the hearsay resolved tonight and get the first cut of the video and then finish -- let's see.  Today is -- what's today?  Wednesday?

MS. ROGAN:  Wednesday.

MR. MOORE:  Wednesday.

THE COURT:  When's the weekend?  Then if we can get that out of the way, that will give us tomorrow evening as well, if need be, to go back and polish up any disagreements over the video, and then have those out of the way, so while the jury's here in the daytime, just crank it up without having to go through the --

MR. PORTER:  Your Honor, I can't crank it up much further than it's being cranked up.

THE COURT:  Yeah.  But I mean, we won't have to -- at least have all the disagreements out of the way before the jury gets here, and it'll just be a matter of putting it to the jury at that point.

MR. PORTER:  I certainly -- I think there's certain -- I think there's a certain value to pace to allow the jury to absorb the material and to consider the seriousness of it.

THE COURT:  Well, I'm not suggesting we all should talk at double speed or anything, but --

MR. PORTER:  I mean, I'm not unhappy with the pace so far.

THE COURT:  I think they're doing all right.

MR. PORTER:  But I'm not prepared to move a lot faster.

THE COURT:  Okay.  Well, I'm going to -- they ought to have supper ready for them shortly, so I'll turn them loose.  And we'll take fifteen minutes, and let me gather up my notes, and we'll come back to the hearsay and the video, and see what we can do as far as sorting that out.  You think you're going to be into hearsay tomorrow?  Is that when we're going to be hitting that? 

MR. SMEAL:  Towards the end of tomorrow.

MR. PORTER:  Towards the end of tomorrow, Your Honor.

THE COURT:  Okay.  Okay.  Well, maybe we can get that taken care of tonight, then.  Okay.  Good.

[Bench conference concluded.]

THE COURT:  You ready to call it a day?  We've got -- supper ought to be ready shortly if it's not ready, so we're going to -- we have some matters we're going to continue on with after you leave, so we'll be ready to go in the morning at nine o'clock.  But we're going to release you at this point and they can see about feeding you, and then transporting you, and we'll recommence in the morning, then, at nine o'clock.

I'll ask you to leave your pens, pads, and notes in your seats, and they'll be waiting on you in the morning. 

I remind you that you have seen and heard part of the case at this point.  You've not seen and heard all of it.  I remind you you ought to continue to keep an open mind in the matter.  You ought not to make up your own mind at this point.  You ought to not commence any deliberations or discussions amongst yourselves or with anybody else or allow anybody else to discuss the case with you or in your presence.  Just continue to wait, look, and listen with an open mind until you have seen and heard the case presented in its entirety, and then make up your own mind and commence your deliberations and discussions with your fellow jurors.

All right.  I'll ask -- at this point, then, I'll ask the bailiffs to take you on downstairs, and we will see you in the morning, then, at nine o'clock.

[The jury was excused for the evening and retired from the courtroom at 5:15 p.m..  The proceedings resumed, as follows, with the jury not present.]

THE COURT:  I believe we have two issues we need to address tonight if we can.  Perhaps the issue on the hearsay, exceptions to the hearsay.  I guess where we stand at this point is the motion in limine's been denied, but there's been no determination as far as what's coming in, so -- something's coming in, but at this point, it's not been determined.

And I think we've got the transcript of the testimony that came in during the course of the hearing, so what I'd like to do is take a look and see if we can set the boundaries or set the parameters, basically outline what it is that's going to be allowed in so everybody understands.

          And then before those witnesses take the stand, I think we need to have either a bench conference or discuss it outside the presence of the jury before the witnesses take the stand so everybody clearly understands, and especially the witness, what it is that's going to be asked and what it is they're going to be allowed to talk about as to the hearsay.

Does everybody have a transcript of the --

MS. ROGAN:  We even have what the state highlighted for us.

MR. DAVIS:  Your Honor, several weeks ago, we provided both the Court and the defense with a copy of the transcript of the hearing with highlighted portions of hearsay testimony the state would seek to introduce.

THE COURT:  Okay.

MR. DAVIS:  We highlighted for everyone what we thought we would like to introduce.

THE COURT:  Okay.  And you've had an opportunity to review it, Ms. Rogan, Mr. Moore?

MS. ROGAN:  Yes.

THE COURT:  Okay.  Is there any of it we can agree on or to what extent do we -- have we basically got total disagreement or what?

MS. ROGAN:  Yeah.  I think we're in total disagreement, Your Honor.  I'm --

THE COURT:  All right.

MS. ROGAN:  I appreciate the state telling us what they want to introduce, but our objections remain the same.

THE COURT:  All right.

MS. ROGAN:  So we can go over it, but I don't really think we're going to have any stipulations.

MR. DAVIS:  Your Honor, I guess my question is, are we talking about the same objection they made at the time that the Court basically ruled against them on or are we talking specific relevancy objections to the highlighted portions of the transcript?

THE COURT:  Well, I guess in my mind, and I don't know that I've totally decided, but it seems to me that, on the one hand, we've got an obvious exception based on the statute citing the testimony or quoting the testimony of the deceased, but then I don't think that you can take that statute and say that because the declarant is the deceased that, therefore, you can go back and put in by way of hearsay every conversation that the deceased had with respect to this particular topic, going back, whether it's days, hours, days, months, years, or whatever.  I mean, obviously, that doesn't say that you can put in by virtue of hearsay every conversation the deceased ever had.  So the question is, where're the parameters? 

MR. DAVIS:  Yes, sir.

THE COURT:  I mean, it seems to me that's the question.  And I don't know that the case law provides all that much guidance from my perspective.

MR. DAVIS:  Well, my recollection of the case law is, Your Honor, it deals basically with relevancy and materiality.  And if the Court has found that the hearsay exception shall apply, then the issue becomes one of materiality and relevancy.

THE COURT:  Well, I think it's also --

MR. DAVIS:  I think at one point during the earlier hearing Mr. Moore talked in terms of corroboration and talked in terms of evidence that might come in through other sources.

THE COURT:  Well, it seems to me, there's also an issue of probative value versus prejudice.  I mean, it seems to me there's a point at which the sheer weight of hearsay becomes so great, and you can't cross-examine the declarant, that just the sheer weight of the hearsay becomes so prejudicial that even it if falls under the exception that it just ought not be allowed.

MR. DAVIS:  Are you speaking in terms of the number of people she told it to or what she had to say to each individual person?  I guess I can't really frame a response to that unless I know --

THE COURT:  Well, I'm not suggesting a response at this point.  I just want to pull those cases again and let's take a look at what you want to offer in --

MR. DAVIS:  Yes, sir.

THE COURT:  -- and let's just see how it bears.  I guess the one thing that's helpful in this instance is the hearsay that's in issue, it takes place over about a week or ten days, so it's limited in time by virtue of the facts of the case.

MR. DAVIS:  Yes, sir.

THE COURT:  Although it's not so limited in scope or the particular occurrences.  For example, one of them that I find particularly troubling is the driving in the car and go to the car wash or something, and, you know, there's somebody in a police car, and you say, well, you know, you can't really identify, nobody's sure who that is, but then here comes the conversation about the driver of the vehicle, who was never identified for sure, it seems to me.  But it's just that some of that that's just -- I find kind of troubling.

MR. DAVIS:  The driver was -- with regard to that, I don't know if you want to take up that specific incident now or not.  I'm prepared to if --

THE COURT:  Well, let's wait until we get the transcript.  Let's pull the transcripts and pull those cases again and we'll just sort them out and see.  Quite frankly, my inclination is to -- I think the law may say that it's admissible, but I think in the interest of balance and fairness and balancing sort of the prejudice of hearsay that you can't cross-examine against its probative value and taking into the context of the statutes is to allow it in to the extent it's fairly well-focused and fairly narrowly as to the -- it addresses the issues, instead of a very broad -- painting with a broad brush, that, well, they said it relates to the money of the defendant, and, therefore, it comes in no matter when it was, where it was, or exactly under what circumstances.

So I guess what I'm saying is my inclination is to construe the statute and apply it to the facts we've got here of the proposed testimony so that it's fairly well-focused on the issues that it purports to provide evidence for. 

And I don't know that I said that very clearly, but that's about the best I can do at the moment, so let's pull the transcripts and take a look at what you want to offer, and then we'll just take it up, and I guess we've got the rest of the night, however long it takes to get it clear.  I'd like to do it this evening so that we don't lose the time with the jurors here.

MR. PORTER:  Your Honor, if I might, we're sort of in the same boat as to both hearings.  I think the state is proposing, as far as the tape, and I think we basically agree that to argue off the transcripts, the state is proposing draft two, that is our proposal.  The defense is filing objections --

THE COURT:  Well, I think as far as the video goes, I don't think I'm going to be prepared tonight --

MR. PORTER:  Yes, sir.

THE COURT:  -- to make any rulings on that.  What I'd like to do, I guess, tonight as far as the video statement goes is to know -- I mean, it's been a while since we did it, and it's a little vague to me at this point, you know.  It was, what, a half day's worth of tape, and that's been a while, is to let's look at the specifics that are in issue and hear from both sides, and let me go back and sort of refresh my memory as to the tape altogether and to what we've got in issue, and then maybe come back tomorrow evening, and I think we can sort of expedite it tomorrow evening if we take a first cut tonight, and I think I may be in a position to rule on it tomorrow night on an expedited manner and then come Thursday -- Friday, everybody knows what the ruling is, and then we can play the tape and maybe give ample time Friday morning or something to have it redacted if need be.

MS. ROGAN:  I thought Friday was when you wanted to play it.

MR. PORTER:  Your Honor, just in roughing it out, Friday looks like a time that we'd be playing the tape.  I don't know whether it'll be morning or afternoon.

THE COURT:  Well, if you don't get a final ruling on it till Thursday, tomorrow evening, then we're probably talking Friday morning to have it worked on.

MR. PORTER:  It would be Friday afternoon.  Your Honor, I can't suggest any other alternative than what the Court is suggesting, except to say that the state's confident that as to the transcript that it's as accurate as we can make it from the official transcript.

THE COURT:  Okay.

MR. PORTER:  I think that another procedure might be for defense counsel to note their objections by page number and line of the transcript and have the Court review that and give us a chance to respond.

THE COURT:  Okay.  Well, I thought that's what we had -- I thought that's where we were this evening was to be able to do that.

MS. ROGAN:  We're prepared to do that.

THE COURT:  Okay.  I think if we do that tonight, then, I think we can proceed on with it and wrap it up tomorrow evening.

MR. PORTER:  Your Honor, I haven't received any notice of that.  It might be that if they'll let me know, I can review the transcript tonight, too, and can announce some kind of an agreement in the morning.

THE COURT:  Okay.  Well, I think we can all look at it.  We'll listen to what -- I think Ms. Rogan knows what the state's position is and what the tape is.  You can let us know this evening and we'll go through it as to what the defendant's position is, and you'll know that, Mr. Porter, and tomorrow if you want to stipulate to it, fine.  If you don't, then we'll have tomorrow evening.  At least everybody's on notice as to what the issues are, including me, and we'll try to wrap it up tomorrow night, then. 

Okay.  Let's take fifteen minutes then and we'll commence with the hearsay portion.  Anything else, Mr. Moore, before we take a recess?

MR. MOORE:  No, Your Honor.

THE COURT:  Okay.  We'll take fifteen minutes.

[Break taken]

THE COURT:  Let's take a look at the hearsay portion first.  This relates to the OCGA 24-3-1 which says, Part (b), which says, 'Hearsay evidence is admitted only in specified cases from necessity.' 

And then I guess the guidelines as set out in cases such as Jackson v. State at 202 Ga. App. 582.  And the parts that I have looked at that seem to me to be controlling as far as the issues here is in Jackson. The hearsay was admitted on the basis that the necessity part was satisfied by the witness or the deceased and the balance of it was satisfied in that one witness's statement was given shortly after the event, was given during the course of the official investigation, and there was no testimony that the witness retracted the statement.  So that was the basis for finding trustworthiness in that particular case.

And in White v. White at 262 Ga., Page 168, the hearsay was admitted under the same statute where the declarant was deceased, and the declaration was within two weeks of his death, that he had repeated the statement over the years, and had taken some action with respect to the statement by providing a home for the plaintiff in that case.  It was a civil case.

And then in the case of McKissick v. State, 263 Ga. 188, the hearsay was admitted -- the deceased's hearsay was admitted where the three statements were made within hours of being released from the appellant's, the defendant in the trial's car.  And two of the three statements were made during the course of the official investigation, and the declarant never disavowed the statements.

And finally, in the cases I've looked at that seemed to be most on point that I can find is Roper v. State at 263 Ga., Page 201, in which the Court held the deceased's statements met the prerequisites of necessity and particularized guarantees of trustworthiness.  And as to the trustworthiness found that that was satisfied because the declaration of the decedent is admissible when it is coupled with circumstances which attribute veracity to it or verity to it.  And here the statements were made by the victim to a sister in whom she placed great confidence and to whom she turned for help with her problems.

And on the other side of the coin, the Mallory case at 261 Ga. -- well, the statement's at Page 628, in which contradictory statements that the victim made, contradictory hearsay statements, were the basis for the Court finding on appeal that it was not trustworthy.

And also the case of Bowen v. Abi-Sarkis, which is at 211 Ga. App. 181, and the Court found no indicia of trustworthiness because of the inconsistent statements and denials to the other witnesses.

So it seems to me, that's the framework as best I can determine and best that I could find under the cases from the statute.  And so it seems to me, the question is, the motion in limine to keep them out have been denied or overruled, so the question is, within the framework of those cases, what ought to come in?  And I think the issue of trustworthiness has been satisfied based on the hearing insofar as whether they're coming in or not.  So the question remains, at this point, the only question is, well, what specifically is coming in? 

And the portions -- my review is -- what I contemplate allowing in is in the transcript at Page 7.  This is the testimony.  And this presupposes that when the witnesses testify, you lay the foundation again as far as trustworthiness, and I think that foundation, seems to me, ought to be laid.  The fact it's been laid in the hearing I don't suppose alleviates laying the foundation at the trial of the case as far as the trustworthiness goes --

MR. DAVIS:  No, sir.  I agree.

THE COURT:  It seems to me that would be a prerequisite.

MR. DAVIS:  Yes, sir.  Your Honor, if I may make a general statement about that issue --

THE COURT:  Okay.

MR. DAVIS:  -- and about what the transcript contains.

THE COURT:  Okay.

MR. DAVIS:  The highlighted portions of the transcript are the hearsay, what I view to be the hearsay that we would seek to admit.  There are other portions of the transcript, laying the foundations, and asking other things that the witnesses themselves have personal knowledge of, that I had not included for consideration in this hearing.

THE COURT:  I understand.

MR. DAVIS:  Yes, sir.

THE COURT:  Okay.

MR. DAVIS:  I might also note that you have talked a couple of times now tonight in terms of a motion in limine.  With regard to the record, this was an order that granted our motion to determine admissibility of the statements by the --

THE COURT:  Okay.

MR. DAVIS:  We made the motion and brought this issue to the Court's attention.

THE COURT:  Okay.  I recalled it as a motion in limine.  I guess I've got it confused with another motion.  Okay.  So the -- and so what does the order say?  I've not looked at it today.  I don't remember.  Just says it will come in?

MR. DAVIS:  I'll provide it to the Court.  [Presenting]

THE COURT:  Okay.  So the issue of trustworthiness is met so long as you've proven it at the trial of the case or laid the foundation.  That issue's been determined.  Okay.  On the state's motion.  I'm sorry.

          My inclination is as follows:  On Page 7, this is Marsha Smith Arnold's testimony, and that is commencing at Page 7, the question, 'Did you become aware at some point during that month there'd been a theft in Jean Thompson's trailer?'  'Yes, sir.' 

And then Page 8, the testimony on Page 8, I'm inclined to let all of that in.  Page 9, let in the first -- what is designated through the first six lines about telling who the officer was. 

I'm further inclined to let in on Page 10, to allow in the testimony commencing at Line 4 and going through Line 9, that question and the response to that question about putting it in her purse.  And then skipping to Line 19 through 25 and continuing on on the first three lines on the next page, the questions and the testimony -- well, the testimony elicited by those questions, and that is that she was going to -- that Officer Chapel told her he found a hundred dollar bill and a wrapper and wanted to get her to check the serial numbers.  And stop at that point.  Let me make sure of that.  And stop at that point with that witness except for any foundation and other independent evidence.

          That's my inclination.  Maybe now would be a good time to hear from Ms. Rogan, and then we'll give you an opportunity, Mr. Davis.

MR. DAVIS:  Yes, sir.

THE COURT:  Or vice-versa, whichever way.

MS. ROGAN:  Well, Judge, in light of your previous ruling as to the admissibility in general of hearsay through these witnesses because of the necessity exception, we don't have a specific relevance or other objection to those portions, so without waiving our previous objection, I don't have anything further to argue.

THE COURT:  Okay.  Okay.  I think those portions, if they're admissible, if the testimony's admissible, I think those portions are relevant and focused, and I'm inclined to let that in.  And it's obviously a critical issue, you know.  I mean, I think if it's error in the ruling as to whether it comes in or not, the case probably turns on it, so -- but I think it's admissible, and that part I'm inclined to allow in.  Mr. Davis?

MR. DAVIS:  Your Honor, there are a couple of things I'd like to inquire about with regard to Marsha Arnold's testimony. 

First of all, over on Page 17, in Mr. Moore's cross-examination, I've marked some issues there that I would characterize as a reiteration of material that you've already allowed on Page 11.  We're basically fleshing that matter out.

THE COURT:  That's refused.

MR. DAVIS:  All right.  So in response to Mr. Moore's question asking her to -- Mr. Moore's question asking her to further elucidate on what she answered in response to my question, I'm not allowed to ask her to give the more specific version, the more specific version of exactly what it was the victim told her?

THE COURT:  That any of the people next door were involved -- to buy drugs, compare the serial numbers and all that, I don't think so.

MR. DAVIS:  Well, specifically, a hundred dollar bill and a wrapper and wanted to check serial numbers?  I think that's -- well, I think that's virtually the equivalent of Page 11.  I'll withdraw my attempt to get that in based on what it appears the Court's concern is.

THE COURT:  Yeah.  I just -- I think -- as I construe the statute in the cases that have construed it, I think it's admissible, but I don't think that's an open door to just every conversation that they ever had that in any way relates to it.  And I think that part or portion as I've indicated comes in.  I think that's permissible under the statute, at least as I read it from the cases, without expanding it such that the prejudice from it starts outweighing the probative value and goes beyond the scope of what I think the statute's intended to allow.  All right.

MR. DAVIS:  Your Honor, if I might have a moment, I just want to thumb through the rest of that.

THE COURT:  And I think it's a -- I think your witnesses ought to clearly understand what it is you're going to ask them.  You know, what it is they're allowed to say and what it is they're not allowed to say.

MR. DAVIS:  Well, Your Honor, I fully intend to try to do that.  And I understand the significance of what we're talking about.

THE COURT:  I suppose this is an area that we're going to take up again outside the presence of the jury before those witnesses take the stand and make sure all that's -- everybody understands where we are at that point.  And I suppose if anybody turns up any controlling law to the contrary to raise the issue that that's a misconstruction by the Court, a misapplication by the Court, that you can do it before they testify.

MR. DAVIS:  Judge, since you brought that up, I would like to inquire of the Court and mention one thing in this regard.  It seems to me that the Court is applying some sort of a balancing test that I find nowhere in the case law in this area.  The cases deal with whether or not the hearsay is admissible.  In some cases, they don't really talk a lot about what the hearsay even was.

          I have other cases here where the decisions go into some detail about what the hearsay was, but nowhere do I see that part of the hearsay evidence is admitted for some reason and the other parts of it is not.  It seems to me that the parts that are quoted are relevant and if the matter --

THE COURT:  Well, maybe --

MR. DAVIS:  Are we talking a relevancy problem?

THE COURT:  Well, maybe I'm doing a poor job of stating what I'm thinking because I --

MR. DAVIS:  I want to know what I'm trying to respond to.

THE COURT:  Yeah.  I agree with you.  I don't think it's a balancing test insofar as being expressed in the cases.  Maybe relevancy is a better way to phrase it.  I think when we get into some of these -- during the course of some of these that the state offers in, for example, it talks about -- it gets to be a sort of a gossipy kind of conversation about seeing the vehicle and sort of laughing about being followed and some of those kinds of things, and it sort of -- I guess the question is, where do you depart from a statement by the deceased that is relevant to the issues here as opposed to being sort of conversational kind of things that are questionable as to whether or not -- who it is that's being identified or who it is that's been seen or to what extent it really bears on the issues here.  And it starts to be somewhat collateral.  And that's a -- I mean, given the case law and the statute, frankly, I don't find it easy to construe where you separate it out.

MR. DAVIS:  Obviously, I think, as we go though the transcript, a couple of those issues are going to come up, specifically when Ms. Chance and Ms. Thompson are riding together.  Ms. Chance testified that she saw a car, the driver of which she could not identify, come out and follow them.

THE COURT:  That's not coming in.  I'll tell you that now.

MR. DAVIS:  Well, I don't see any -- the fact that Ms. Chance saw a police car pull out and follow her -- follow them, even though she could not identify who it is, there's no hearsay component to that part of it.  The hearsay picks up where Ms. Thompson says, 'Oh, that's Officer Chapel, he's been following me to work,' and that kind of thing.

THE COURT:  Well, but it seems to me that the only way it's relevant is if she says, 'well, the deceased told me that he'd been following her and then we saw this police car,' which she could not identify who it was, as I recall the testimony, and you say, well, based on the hearsay, I think, you know, it sort of connects up, with the inference that, well, it must have been the defendant by virtue of the hearsay and by virtue of seeing a police car.  I just think that that starts to get so diffuse  and so far afield that I don't think the -- I just don't think that's admissible under the statute.  I mean, the question is --

MR. DAVIS:  Are you --

THE COURT:  The question is, how far can you go with it?  Again, I don't think you can say, well, everything that the deceased said in this case over a two-week period or whatever, I don't think that the cases and that statute say every conversation that Ms. Thompson ever had with one of these three people because of trustworthiness, and every conversation ever had that in any way related to the defendant or to the money or to the burglary, comes in under the statute.  I don't think that -- it seems to me it's sort of tantamount, if you do that, to the older cases that construe allowing in hearsay very broadly on the basis of showing motive and design, and all that sort of thing, that the Momon case came in and got rid of most of it, saying you just can't use that as a crutch to just dumping everything in.

MR. DAVIS:  In the first instance, if you examine the transcript of what was highlighted, there are large chunks of conversations between Emogene Thompson and these three ladies that the state did not seek to admit as hearsay.  We scaled back.  There were a lot of things that were gotten into, especially on cross-examination, that the state has no interest in trying to admit. 

I'm not sure whether the Court is saying that you're going to make a blanket ruling that every mention of the fact that she had meetings with the defendant during the intervening time between the burglary and the death or --

THE COURT:  It's not blanket at all.  It's just simply looking at it and saying, well, how does this fit in, is this relevant.  And part of it, it gets to be sort of an intuitive aspect of exercising discretion, I expect, in that -- I mean, there is no bright line.  I mean if it's hearsay that's coming in by virtue of an exception of necessity, where do you draw the line that -- obviously, every conversation that Ms. Thompson had about Mr. Chapel or every conversation she ever had about money or every conversation she ever had in any way connected with this issue, I don't think comes in under that statute.

MR. DAVIS:  Then rather than argue it as a category I'll wait for the Court's rulings as we go through the transcript.

THE COURT:  Okay.

MR. DAVIS:  With regard to one other thing, there were several questions asked to Ms. Arnold by the Court itself at the end of her testimony regarding how many conversations she had with Ms. Thompson on this subject, whether or not those conversations were consistent, were there any discrepancies, and the witness testified that there were none.  We would ask that we be allowed to ask that limited area of the witness as well, because we still have to prove trustworthiness.

THE COURT:  I think those are foundation questions.  I agree.

MR. DAVIS:  Yes, sir.  Okay.  I was speaking primarily of the area of Pages 25 and 26, where the Court took over questioning at one point.  And I'd ask the Court to review those momentarily, if you would.

THE COURT:  Yeah.  I think those are foundation questions about whether they were consistent or not or inconsistent.  I think that goes toward laying a foundation for admissibility of it.

MR. DAVIS:  All right.  Thank you, Your Honor.

THE COURT:  All right.  Anything you want to say, Ms. Rogan, about that witness's testimony at this point?

MS. ROGAN:  Only that on Page 24, Your Honor, when you asked her how many conversations she's had, she said, 'Probably between three and ten, I guess.  I don't remember.'  So in terms just of reliability, I'm not sure that that's admissible.  I mean, if she can't remember, then, we shouldn't really be allowing her to speculate, but --

THE COURT:  Well, I guess the question is what does that mean?  Does that mean 'I don't know' or does that mean 'my best recollection is between three and ten,' you know, as opposed to just flat out not knowing or 'that's my best recollection.'

MS. ROGAN:  Or just guessing.

MR. DAVIS:  I would cite to the Court as the Court's own authority here, you continued to question in that vein.  I think it was --

THE COURT:  Well, of course, the fact that I ask the question doesn't mean it's going to be asked in front of the jury.

MR. DAVIS:  Well, I'm speaking purely with regard to that type of objection.

THE COURT:  I may start objecting to my own questions.  My suggestion is, you know, we kind of went round and round to some extent with these witnesses during the course of the hearing.  What I would suggest is whoever's going to do the direct on these witnesses is sort of sit down and think about precisely what it is that's going to be asked in the context of the rulings we're going to do tonight so that you know what you're going to ask specifically and you know what's going to be coming back from the witness by virtue of this, so -- what I would like to do is do a quick run-through of it before the witness takes the stand as what's going to be asked and maybe, for that matter, on these specific questions.  They don't take long, and it's not a lot of testimony on these specific questions, and let's hear what they're going to say before the jury comes in.  I mean, I don't think it's an issue that -- if they start to give any inconsistent statements to the past and that sort of thing, I don't think in front of the jury's the place to have it.  So I think having a little hearing outside the presence of the jury would be helpful, and I think that's what we need to do.

All right.  Let's look at the examination of       Ms. Burel on Page 27.  The first portion, insofar as the questions you're talking about, what I'm inclined to admit is starting on Page 36 -- 36 and Page 37 through Line 22.

MR. PORTER:  Line 22, Your Honor?

THE COURT:  On Page 37.

MR. PORTER:  And all of Page 36 --

THE COURT:  36 starting with Line 4.  And I don't know that this is a final ruling in that if we get those witnesses ready, what I'd like to know is, at that point, what questions are you going to ask specifically about these issues?  And then let's hear what they're going to say, and if they give a different answer or some inconsistent or some answer that wanders off from what we've got in the transcript, then let's hear it before the jury hears it. 

So the testimony on Page 36, starting with Line 4; the testimony on Page 37 through Line 22; the testimony on Page 38, which is Lines 5 through 10, and 24 and 5; and 39 -- Page 39, the first three lines; and Page 39, Line 13 through 22.

MR. PORTER:  I'm sorry, Your Honor.  Page 39, Lines 1 through 3 and 13 --

THE COURT:  Through 22.  And then on Page 40, Lines 13 through the balance of the -- let's see, no.  Stop there.  That's the end of that one.  That would be the testimony allowed.  Nothing beyond Page 39.  Nothing beyond 39 as to the testimony of Ms. Burel.

MR. DAVIS:  Nothing on Page 40?

THE COURT:  No, sir.

MR. DAVIS:  Your Honor, if I might have just a minute to see what's been left out and whether or not I have a request to make of the Court.

THE COURT:  Okay.  Go ahead.

MR. DAVIS:  Thank you.  [Pause]  Your Honor, with regard to items found on Page 32, 33, and 34, taking them as a general subject, they deal with Ms. Burel learning of the fact that a theft had occurred at Ms. Thompson's house and with how much money -- how much money was missing and approximately how much money was left.

          Now, I am certainly prepared to ask very specific, very limited questions, you know, leading questions, if the defense would prefer and the Court will allow, on those issues to at least set the context for the material that the Court is allowing beginning on Page 36.  I can't think of a good way to ask that witness a coherent question about the matters on Page 36 without at least setting the fact that she knew there had been a theft and that she knew there was money left to hide or to deal with.

THE COURT:  Ms. Rogan?

MS. ROGAN:  Well, I agree with Mr. Davis in terms of it doesn't really make sense otherwise that she would be aware of the money.  I think a question along lines of were you aware that Ms. Thompson had reported a theft of money to the police or something along those lines, I actually don't object to the idea of a leading question that's tailored --

THE COURT:  Well, I mean, as a practical matter, what difference does it make?  Because if the video statement comes in, the statement includes Mr. Chapel's testimony by way of a statement that he took the 9-1-1 call, he visited the defendant, he went over there to see her to investigate the burglary.  I mean, that's on the statement, is it not?

MR. DAVIS:  Yes, sir.  The reason it makes a difference is is that this jury will have to determine the weight and credibility of the testimony that these three ladies give.  And by restricting the state to try and produce some of that testimony in a vacuum and not letting --

THE COURT:  I know, that's what I'm saying.  I'm saying that if you go ahead and talk about the reported burglary by this witness, you know, then my point is, what does that matter if it's not in because the statements -- the ruling is the statement's coming in in some form --

MR. DAVIS:  Yes, sir.

THE COURT:  -- in which case, all that's coming in by virtue of the statement by Mr. Chapel.

MR. DAVIS:  The point that I would seek to illustrate by asking limited questions of this witness on the front end is, did Ms. Thompson think enough of you as a friend to confide in you the fact that she had had some money taken and she reported it to the police.

THE COURT:  All right.  Those are preliminary trustworthiness questions, right, you're talking about?

MR. DAVIS:  Well, it rolls together.  See, not only do I have to satisfy the Court as to trustworthiness, which we apparently have already done, but we've got to somehow fashion this for the jury and help the jury attach some weight and credit to the evidence.

THE COURT:  Okay.

MR. DAVIS:  Mr. Moore stood up in his opening statement and started talking about gossip.  You know --

THE COURT:  And closing, too, I guess.

MR. DAVIS:  Well, one presumes.  We heard the word again from the Court a few minutes ago.  I doubt he had forgotten it, but if not, he's been reminded.  The point is is that the jury is going to have to decide, and Mr. Moore will certainly attack, I think I'm comfortable in saying, the credibility of these witnesses, you know, whether or not they're honestly and accurately reporting what the victim --

THE COURT:  Okay.  So what's the point?

MR. DAVIS:  The point is I would like to be able to ask Ms. Burel if Ms. Thompson told her that she had had some money taken and approximately how much money was left, so that the jury won't come in the middle of that and wonder how it is that she had any knowledge of it at all.

THE COURT:  Well, let's see.  What does she say?

MR. DAVIS:  It's basically a preparatory question for the rest of it.

MS. ROGAN:  See the problem, I think, and the Court seems to be implicitly at least aware of it is that with this witness, in particular, she tends to ramble on and fill in her answers with a lot of, essentially, gossip.

THE COURT:  Well, it's one of the problems with hearsay.  You say, well, what did they tell you?  Well, and here we go with every conversation they ever had, you know, and so I think, frankly, I think the suggestion of doing it by way of leading questions as far as the specifics, I think, might be a good -- might be helpful to everybody.

MR. DAVIS:  Well, I recognize we need to do that with Ms. Burel, as well, based on her prior testimony, but I think it's critical that we be allowed to show that among the things Ms. Thompson told her was about the theft itself.  Ms. Burel, of the three people involved here, was the best and closest friend of the defendant.  I think we should be allowed to show the context, even if by leading questions, which I'm perfectly happy to do and to instruct the witness, you know, in the way she should answer those questions.

THE COURT:  Well, I'm inclined to agree.  I don't think with this kind of testimony, based on hearing from these witnesses that I think we may have a fiasco going pretty quick if you open the door and say, well, what did y'all talk about, what did you say, what did she say, you know.  I mean, I just think that's -- need to give it some structure and, I don't know, maybe leading questions is the best way to do it.  Do you have any objection to that, Ms. Rogan, Mr. Moore?

MS. ROGAN:  No, Your Honor.  I think that would be the best way to streamline it and make sure that the extraneous matter that we're seeking to avoid doesn't come in.

THE COURT:  The other thing is these cases seem to me to suggest that the hearsay that's admitted is like -- focused is about the best word I can think of.  It seems to me that the cases, it's not rambling hearsay statements, but it's a focused issue, you know, like this is what was said about this specific issue, and this is what the hearsay was, and then proceed on with something else, as opposed to a lengthy dissertation or soliloquy or whatever about this conversation, all the ins and outs and all that of the conversations.

MR. DAVIS:  I have searched through the cases for guidance in this area, Your Honor, and I'm not sure whether I agree so much with the Court on that point or whether I think it's the Court of Appeals, basically, you know, reducing the testimony to some sort of summary as they do in many cases.

THE COURT:  Well, may be.  That may be.  I guess we don't know exactly what was said at the trial of the case, but that seems to be, it seems to me.  And the other thing is -- well, I'll just leave it at that. 

All right.  Why don't you take a look at the questions you want to pose between now and the time witnesses are called as far as the leading questions, and then we'll go over those prior to the witness taking the stand, and you can get your witnesses lined up as to what it is -- you know what their testimony is going to be, and we'll all know what's coming before they take the stand in the presence of the jury.

All right.  Let's look at -- I believe that -- let's make sure that concludes Ms. Burel.  That started on Page 27, and I had noted -- all right, Page 36, Page 37, Page 38, and the top of Page 39.  Okay.  And then moving on to --

MR. DAVIS:  Your Honor, you indicated that I'd have the chance to review the remaining portions and make comments as I felt I could.

THE COURT:  Go ahead.

MR. DAVIS:  May I do that, please.

THE COURT:  Yes, sir.  Go ahead.

MR. DAVIS:  Thank you.  Your Honor, as to Page 41, I guess, understanding that it appears to be rambling there, there is discrete information there, and I think it's very important to the state's case, dealing with contacts that Ms. Thompson said that she and the defendant had during the time from the report of the burglary on April 3 up to the time of her death, and with regard to things like on one call she told her that he had found -- that he had four hundred dollar bills and some new bills and the wrapper that goes around those bills, he was going to compare the fingerprints and compare the fingerprints and bills with what she had.  All of these ladies talked in terms, especially Ms. Burel, of continued contact between the defendant and the victim in the intervening time. 

Now, I guess I understand the Court's hesitation to deal with things like, a statement like, 'well, he's got this little hole he hid in and pulled behind me' and laughing when they're talking about it and that sort of thing.  But I think it's important as far as the state's evidence of the planning of this murder and of the scheme that was instituted that we be able to show that Officer -- that the victim was being followed at various points in time and stopped at various points in time by the defendant.  We need to be able to show that he was attempting to learn her route, learn the places that she would drive around town, learn her route to work, and things like that, because those things are central to the issue of where she was stopped, for instance, the time of night that she was killed, and where the contact point between the two of them on the evening of the 15th happened to be.

Now, once again, I'm prepared to limit that to leading questions if need be, such as:  Ms. Thompson -- did Ms. Thompson tell you that she had contact with the defendant between the time she reported the burglary and the time she was killed?  Yes, she did.  How many times did she say?  And limit it to the number based on the witness's testimony at the hearing.  And perhaps a question about where did those take place?  Or ask a leading -- you know, based on the testimony, ask a leading question: Was one of those on the side of the road on Wednesday night, April 13th, as Ms. Burel would testify that Ms. Thompson told her.

THE COURT:  All right.  Ms. Rogan?

MS. ROGAN:  Well, Your Honor, again, I think we're getting into a reliability question.  These ladies were all over the map with their renditions of what         Ms. Thompson told them, and we don't know for sure that Ms. Thompson knew that it was Mr. Chapel following her.  She evidently thought he was, I guess.  That's what she told her friends, but based on Ms. Chance's testimony, in particular on that issue, we don't believe it was even possible for her to have seen who was in the car.  It was simply she saw a police officer and thought it must be Mr. Chapel.  So we're a little concerned about the testimony, particularly in how vague it is, from these witnesses, and Ms. Burel, in particular, is extremely vague about when it is this supposedly happened.  And so I'm concerned on reliability grounds in terms of that  and --

MR. DAVIS:  Reliability has been decided, Your Honor.

MS. ROGAN:  Well, I guess I'm talking about --

MR. DAVIS:  We're rehashing the argument from the last hearing.  Now, you have determined that these statements were reliable and trustworthy.

THE COURT:  Well, determining that the witnesses  -- well, I guess the statements are trustworthy --

MR. DAVIS:  Yes, sir.

THE COURT:  -- but whatever statement comes in, but we've got all these -- we've got a bunch of statements.  It's not one statement.  We've got a stream of statements, I guess -- different times, different phone calls --

MR. DAVIS:  There is a specific point in        Ms. Burel's testimony that she said that Emogene Thompson told her on Thursday, the night that she died, that Officer Chapel had stopped and spoken to Ms. Thompson on Wednesday, the day before, and she was unable -- she said that Ms. Thompson did not tell her or that she could not remember if Ms. Thompson told her whether it was on the way to work, on the way back home, or what time of day it was, but that Ms. Thompson clearly told her that the defendant had stopped her on the side of the road on Wednesday, the day before, sometime during the day before the killing.

THE COURT:  Ms. Rogan?

MR. DAVIS:  That is very specific.

MS. ROGAN:  Well, Your Honor, and maybe this is just an area for cross-examination, but she gave inconsistent statements about that to the police within days of the discovery of her friend's body, so I'm not sure, based on that, how reliable her memory of what    Ms. Thompson told her was, but --

THE COURT:  All right.  It's refused.  Let's look at Virginia Chance on Page 70.

MR. DAVIS:  Your Honor, just -- since I'm the one who's got to try and instruct these people, I want to make sure I understand.  You are telling us that the state may not ask Ms. Burel any question about prior contacts before Thursday, April 15, that she may have had with Officer Chapel or that Ms. Thompson claimed to have had with Officer Chapel?  I mean, she specifically mentioned in the transcript that she told her that he pulled her over on the side of the road.  There is no mistaken identity there.  There's no problem with identity, especially on Wednesday.  She said that when she stopped him -- when he stopped her on Wednesday that it was to let her know that he wanted to meet with her the next day to compare the serial numbers on the bills she still had with the bills that he found.

THE COURT:  Where is that in the transcript?  Which page is that on?

MR. DAVIS:  If I might have just a moment.

[Pause] 

MR. DAVIS:  I know that at the bottom of Page 46, first of all, in this related area, 'She told me the night that she got killed she had the money on her, carrying it on her.  But as far as before that, between the time it was stolen until the time she was killed, I didn't ask her.  She told me Thursday, the night she got killed, was when she actually told me she had the money on her because she was going to compare the bills she had with the bills the officer had.'  That's one point where it's alluded to.  And then over on --

THE COURT:  Well, that's the same thing she said earlier in her testimony which we've allowed in, is it not?

MR. DAVIS:  I'm not sure it is, Your Honor.

THE COURT:  I mean, that's the problem with deciding what comes in.  It's just kind of all over the road.

MR. DAVIS:  Yeah.  That is alluded to in one form or fashion on Page 36.  It is more specifically mentioned there on Page 46 at the bottom and then over on Page 52.

THE COURT:  Well, the ruling is not that she -- that the witness has to testify verbatim what's in the hearing, but as far as a specific issue.  That's what I'm saying.

MR. DAVIS:  All right.

THE COURT:  And if the issue is the same on Page 47 or whatever as it is on Page 36, then it's in by virtue of 36.  That issue -- the testimony as to that issue is admissible in whatever language she puts it in so long as it reasonably tracks what she said on Page 36.

MR. DAVIS:  All right.  I would ask -- I would beg the Court --

THE COURT:  That's the reason I want to hear it before the jury comes in, and let's see what -- I mean, we've got bits and pieces of it, the same subject matter, scattered throughout, and if that issue's coming in, then the issue's coming in, but in what form?  Well, I don't know, you know.  It's in three or four different places at this point, and so in what form is it coming in?  Let's hear from them.  Let them testify beforehand.

          All right.  Let's look at Ms. Chance starting on Page 70.  I'm inclined to let in on Page 72, Line 14, 15, 16, and then Line 22 through 5.  That's on Page 72.  And then skip to Page 76 and allow in Line 3 through 10.  That's the portions I have marked.  Do you request anything beyond that Mr. Davis?

MR. DAVIS:  I think we may be back to the question of what's a foundation question over on Page 77.

THE COURT:  Yeah.  Well, a foundation question -- I'm not -- the ruling's not directed toward the foundation questions, but just toward the issues as to the meeting, the money, -- you know, those issues with the defendant.

MR. DAVIS:  I would ask the Court to look at the last paragraph on Page 77.  I think that may get beyond a foundation question.  It may be covered in some of the earlier matters the Court's allowed.  It seems to me that might be coexistent with part of what's allowed on Page 76.

THE COURT:  I think it is.  I think it is.  And my suggestion is, insofar as the testimony, I think the questions ought to be straightforward and focused, and I think the answers ought to be the same.

MR. DAVIS:  I'll do my best.

THE COURT:  Ms. Rogan, anything with respect to Ms. Chance's testimony?

MS. CHANCE:  No, Your Honor.

MR. DAVIS:  Your Honor, there's one last issue I guess with regard to all three ladies.  At one point in time during all three of their testimonies, I asked a question regarding their assessment of Ms. Thompson's attitude toward Mr. Chapel.  They all indicated that they thought, based on what they saw and what they heard, that she trusted him.  I think that's important once again for the jury to get the context of the hearsay declarant here, who is Ms. Thompson, the fact that she would not bear any animus towards Officer Chapel and would not say things designed to injure him knowingly or, you know, to do ill to his position here in this proceeding.

          Of course, we're not -- Ms. Thompson, obviously, could not make a statement regarding the murder itself, but I think the Court had to assess Ms. Thompson's feelings towards Officer Chapel in order to decide whether those statements were trustworthy, and I think the jury should be afforded the same privilege, Your Honor.

THE COURT:  All right.  Ms. Rogan?

MS. ROGAN:  Well, Your Honor, again, I have a little bit of trouble because the answers that the witnesses gave in response to those questions ran the gamut from she trusted him very much -- that's one issue -- and then that some of them would also say she was very excited, and I think that is a harder emotion to gauge in terms of what that means.

          In terms of not having animus towards him, we concede she didn't appear to, and there would have been no reason for her to, so if the state feels that that's important for them to develop, if it could be done, again, in a focused way, without the ambiguity.  I guess that's one thing that concerns me with regard to some of the responses in terms of being excited.

THE COURT:  Well, I guess in a sense it tells us what you think the victim's state of mind was --

MR. DAVIS:  Yes, sir.  And I'm prepared to focus it very narrowly: Based on your conversations with Emogene Thompson, did she trust -- did she appear to trust Officer Chapel?  I think that's a fair question based on what the answers ultimately turned out to be.  I think it would also avoid them getting in, you know, to a lot of example type testimony and that sort of thing.

THE COURT:  I don't think so.  That's refused.  I just have a -- I guess it's, in a sense, sort of a gut feeling about this kind of testimony that I think it's a hearsay -- the reason hearsay generally is inadmissible is because you can't cross-examine it.  You're just sort of sitting out there and you cannot cross-examine the declarant by virtue of it being hearsay and, generally, it's inadmissible.  So we've got an exception here carved out which allows it in.

          And I think maybe saying a balancing test earlier, in a sense, it's a balancing test, I guess, is that you have an exception, but how far are you going to go with an exception.  The reason it's an exception and the reason it's generally not allowed is because you can't cross-examine it, so simply because of that difficulty by the person on the receiving end of it, it seems to me, it just inherently ought to be limited, and that's what I'm trying to do within the -- so if you say, okay, it's admissible, but it's admissible in a limited kind of scope.  And one of the reasons it ought to be limited, and I think that's implicit in the case, is that because of the -- is you can't cross-examine it.  You know, you've got an exception, but because it's an exception, it ought to be sort of narrowly applied in a sense because it is an exception to a rule, which there's a very good reason for being, and that's because you can't cross-examine it.

MR. DAVIS:  Your Honor, the statement that I've proposed in its abstract form does no injury to Officer Chapel, first of all.  And it's viewed just -- it should be viewed as just as trustworthy as anything else she said, and it's a critical factor in trying to help the jury understand the context in which she made the statements that the Court will allow.  It speaks to her dealings with -- it's the reverse of prior difficulties, I guess.  It shows prior -- you know, it shows prior good feelings on the part of the victim towards the defendant; and, thereby, you know, it helps the jury assess the credibility of the information that the victim imparted that the Court's going to allow.

THE COURT:  It's refused.  Anything else with respect to hearsay?

MR. DAVIS:  I don't believe so, Your Honor.

THE COURT:  Anything else, Ms. Rogan?

MS. ROGAN:  Not from the defense, no.

THE COURT:  All right.  Let's talk about the video.  And I don't want to -- what I'd like to do with the video is just the portions that you have -- you particularly want to make an issue of, Ms. Rogan, that we're going to need to sort out tomorrow night, let's go through them, and you put me and put Mr. Porter and Mr. Smeal and Mr. Davis on notice as to what it is we're going to be arguing about tomorrow night.

MS. ROGAN:  Okay.

THE COURT:  Or look at it, and if we stipulate to it, then we don't have an issue tomorrow night.  Okay?

MS. ROGAN:  All right.  Are you ready?

THE COURT:  Yes.  Yes.

MS. ROGAN:  Your Honor, do you mind if I have my shoes off?

THE COURT:  Suit yourself.

MS. ROGAN:  Okay.  My feet are killing me.  The first one's on Page 26 of the transcript.

THE COURT:  You can be seated if you like.

MS. ROGAN:  Actually, I argue better when I'm on my feet.

THE COURT:  Okay.  All right.  Which page?

MS. ROGAN:  Well, I'm in the wrong transcript.  Twenty-six, and I'll have a line for you in just a moment.  Line 24.

THE COURT:  All right.  This is what's labeled as Draft 2; is that correct?

MS. ROGAN:  That's correct.

THE COURT:  Okay.  Page 26, which line?

MS. ROGAN:  Starting on Line 24 and 25 on that page.

THE COURT:  Okay.

MS. ROGAN:  Page 27, Lines 1, 2, and 3.  That's Lieutenant Latty bolstering the witnesses by referring to the best witnesses who saw the most, said that they saw the car stopped by the officer somewhere between 9:45 and ten o'clock.

THE COURT:  Do you contend that ought to be in, Mr. Porter?  Maybe I should ask who's arguing this.

MR. PORTER:  Your Honor, I'm going to be arguing.  Your Honor, I think in the context of the entire conversation, it's not bolstering the witness.  I think it's characterizing the testimony of the witness.  In terms of the best or the person who saw the most, I don't -- I think if you look at the entire context, it's not bolstering.  We would disagree that it's -- merely the use of the word 'best' doesn't necessarily bolster that witness.

MS. ROGAN:  The other problem I have with Lieutenant Latty's testimony, and this will be a common objection that I raise tonight, is that essentially everything that he says is hearsay.  He does not know if these are the best witnesses.  Presumably, someone has told him what these witnesses have said.

THE COURT:  There's no doubt in their mind that's when she was stopped.  Of course, I guess, in the context of an interview, a taped interview like this, what rules are we operating under?  I mean, it's not like we've got the witness on the stand being cross-examined.

MS. ROGAN:  That's part of my concern.

THE COURT:  I guess, in that sense, such that, you know, maybe the strict rules of evidence apply.  What rules --

MR. PORTER:  Well, Your Honor --

THE COURT:  -- what are we operating under,     Mr. Porter, as far as --

MR. PORTER:  Your Honor, we're not operating under the rules of evidence in an interview.  I don't think the defense can provide any authority to the Court --

THE COURT:  I don't think you can say that anything the officers say, if they say, 'Well, you know, we know you killed ten other people,' you know.  I mean, I don't think that would come in by way of the interview simply because it was --

MR. PORTER:  Your Honor, but that's specifically covered under other reasons why it's inadmissible, but the question that -- I think the question the Court posed to me is what are the rules within the interview.  And the interview -- the Court has already ruled, first of all, that this statement was freely and voluntarily given.

THE COURT:  Right.

MR. PORTER:  Second of all, the Court has already ruled that there are certain references made to high profile cases and that bolster or that confront the witness or say that that's a great idea, that's the best idea I've ever seen, are probably inadmissible or are inadmissible and they have been removed. 

Your Honor, the rest of the context is an interview in which police officers are using confrontational techniques to elicit statements from the defendant.  And the rules of interview techniques are that officers can even lie to defendants and mislead to them in an attempt to get a statement as long as their due process rights are not --

THE COURT:  Okay.  But -- okay.  So that doesn't render the statement itself inadmissible, but does that mean that the question by the officer can then come in in front of the jury along with the statement?

MR. PORTER:  How do you separate them?

THE COURT:  Well, it seems to me -- usually you got it by way of a written statement and everything gets hashed out after you go through all the preliminaries and the hype and any misrepresentations, and the defendant sits down and works up a statement and signs it, you know, okay, here's the statement.  You know, and then if it's not coerced or whatever, then okay, it comes in.  But you don't have tied in with it all maybe  misrepresentations or whatever else may have been used in order to put the defendant in the frame of mind to come forth with the truth or whatever.

MR. PORTER:  But, Your Honor, our position is is that the officer who is there can be cross-examined and say, 'Didn't you lie to the defendant?'

MS. ROGAN:  Well, that's the other prong of my concern.  I have no idea whether the state's intending to call Captain Latty.  If most of what he says on this tape comes in, we would insist on the opportunity to cross-examine him in front of this jury about many of the erroneous things he said to Mr. Chapel, because otherwise, Mr. Chapel's just being deprived of his confrontation rights because --

THE COURT:  Well, it seems to me the difficulty with the video statement, if it kind of comes in altogether in a basically unedited version, is what you've got is Mr. Chapel's statements, and you've also got the statements or misrepresentations or accusations or hyperbole or whatever of the examining witnesses, as well, as part of the, quote, statement.  And that's my question.  What does the law say as to what you can put in and tie it in with a, quote, statement?

MR. PORTER:  Well, Your Honor, I think the Court may be putting too restrictive a definition on the state on what a statement is.  Is the statement of the defendant merely the words that come from his mouth or are they -- or are they --

THE COURT:  No, I don't think so.  I'm not suggesting that.  I mean, if you've got the questions and the answers, I think altogether that constitutes or may constitute the statement, but then if some of the questions are such that they toss in these other issues like, well, you know, we've got three witnesses who are absolutely positive that that was you, you know, and, in fact, there's not or whatever.  You know, does that mean they come in simply because they were asked during an interrogation.

MR. PORTER:  Your Honor, the position of the state is unless they bring other issues, such as -- we conceded that it would be perhaps not legally improper, but it simply wouldn't be right to have the characterization of a identification.  I think that was a question that we just agreed on.  I think we could still debate the legal issue.  I think clearly on the -- bringing up of other high profile cases prejudices the defendant.

          And in the example that was used where the Court said, 'we have evidence that you've killed ten other people,' I think an argument could be made that that brings the defendant's character into issue.  But, Your Honor, I think without some other reason for exclusion, such as bolstering the witness or bringing the defendant's character into evidence improperly --

THE COURT:  Well, that's the rules of evidence which you were saying don't apply because it's --

MR. PORTER:  They don't apply within the interrogation scene.  I think, unless there's another reason outside of --

THE COURT:  Well, it doesn't make it suppressible, but the question is what does it do and what goes in front of the jury.

MR. PORTER:  That's the point, Your Honor, is that I think it goes in and then is subject to the judgment by the jury of its weight and credit.  If Lieutenant Latty lied to Chapel and elicited a statement, which we all know, in fact, did not happen, if he lied to Chapel and elicited a statement and the jury chooses to make its own voluntariness decision based upon that after the Court's preliminary, then that's the price that Latty pays for lying.  And Latty can be brought to the stand and questioned about it, or Burnette, since they were both in there.

          Now, I don't know the procedure that Ms. Rogan's planning on with demanding the right to cross-examine Latty.  The state makes the choice of which witness we'll put up to identify the videotape and authenticate it and play the videotape.  And, in fact, during the playing of the videotape, there was not a witness on the stand.  But in confronting Lieutenant Latty about lies that he told the defendant?  Are you talking -- if the Court's afraid of opening up a hearsay door with Ms. Burel, the key's put in the lock on that when we talk about, 'well, Lieutenant Latty, what did you tell the defendant and where did you get this information and how did you receive that?'

THE COURT:  Ms. Rogan?

MS. ROGAN:  Well, they -- otherwise, Judge, Captain Latty will be testifying essentially.  Everything he says is going to be part of the evidence that this jury is hearing.

THE COURT:  That's the difficulty, it seems to me.  So the perception is, okay, Latty's -- at least, I'm not suggesting he does, but at least it gives him the opportunity to say all kinds of things the witnesses might not even say or it may be an exaggeration of what the witnesses say or it may be a --

MR. PORTER:  But, Your Honor, I think the state has adhered to this standard, and the Court has asked about the standard.  In each of the statements made by Lieutenant Latty, we have produced the evidence.  And if he has misstated it, that can be judged by the jury.  Now, with the Court's ruling on the hearsay objection by the defendant or at least on the state's motion to admit hearsay, that may put a different spin on certain pages and certain lines.

          But, in general, the state contends that Lieutenant Latty has made a correct statement of the evidence against Chapel at the time of his arrest.  At the time of his arrest, the police knew about the response to the call, they knew the fact that he had had contact with the victim, they knew that eyewitnesses had seen the police car at the Gwinnco, they knew he had been identified.  They did not know certain things which are not mentioned in the transcript, but the things that they confront him with, they knew.  And that has been produced in Court.

THE COURT:  Well, let's do this.  I don't hear anybody saying this is what the law allowed or this is a controlling case or if we've got any cases here that tell us what's allowed and what's not.  I mean, that's what I'd like to hear.  And I don't have those in my own hand either from looking at --

MR. PORTER:  Your Honor, I understand that's what the Court would like to hear, but I'm not sure there are any.  I think once the Court --

THE COURT:  It's bound to be more than we've heard tonight.

MR. PORTER:  Well, the cases that I'm aware of only talk in terms of the admissibility of the statement and once the -- I mean, we're engaging in an activity of editing that I'm not aware of any case law on.

THE COURT:  Videotape's not that new.  Surely there are some Georgia cases that talk about it or audio statements.  I mean, audio statements have been even longer.  Surely there's some cases that say -- that relate to what you can allow in on the tape by way of something besides what the accused says.

MS. ROGAN:  I would rely also, Your Honor, on the Sixth Amendment which entitles Mr. Chapel to confront witnesses against him, and Lieutenant Latty is clearly a witness through this videotape as to information that we don't know where he got it, some of it he may have personal knowledge of and some of it he may not, but it's very, very important information that he's conveying to this jury as well.  And unless Mr. Chapel has a right to confront him --

THE COURT:  Well, the problem I have with some of the interview is -- I mean, it seems to me it's pretty straightforward if you have, for example, Captain Latty saying, 'well, where were you on this given night, and what did you do in the precinct, and what days do you work, and where were you at this time when something occurred, and did you ever talk to somebody else over here or see somebody,' those kinds of things, as opposed to just summarizing parts of the evidence, like, 'we've got these two eyewitnesses who no doubt in their mind that thus-and-so happened, and this is what they're saying, I want you to come clean.'  I mean, it's not a matter of asking the question, 'well, what did you do, where were you, what the time was,' or whatever.  But saying, 'okay, here's a summary of the case against you, and what these witnesses know and what the witnesses can say, and now what do you got to say about that?'

MR. PORTER:  Well, Your Honor, the point, though, is is that the jury just heard from the witnesses.

THE COURT:  Well, but it's a characterization, it seems to me, of what the witnesses have said along with 'these are really good witnesses and there's no doubt in their mind --'  It seems to me that's going beyond saying, 'well, we've got two witnesses who saw a police car parked out here.'

MR. PORTER:  Your Honor, I would agree with the characterization, 'these are really good witnesses, there's no doubt in their mind.'  We've removed that.

MS. ROGAN:  It's right here on Line 24.

THE COURT:  On Page 27, it says there's no doubt in their minds that that's when she was stopped there.

MS. ROGAN:  The best witnesses.  I mean --

MR. PORTER:  Your Honor, but I disagree with -- I'm still staying on the best witnesses.

THE COURT:  Yeah.

MR. PORTER:  I don't characterize it the same way.  THE COURT:  Well, I don't think we can resolve this tonight.  What I'd like to do at this point is, I think everybody recognizes the issues we're going to have to resolve before the statement comes in.  So what I'd like to do at this point is let's go through, Ms. Rogan, and you tell us --

MS. ROGAN:  All right.

THE COURT:  -- you tell us the particular parts you've got a problem with.  Everybody's on notice.  If we can stipulate to any of them, fine, and we'll stipulate to them.  If not, then I think everybody's on notice that let's talk some law tomorrow night if there's any controlling cases with respect to what kind of statements, what kind of comments by the interviewer are permissible or not.

          So I think really the question at this point's going to be, what does the law say about this coming in?  And that's what I'd like -- if there's any controlling law, let's talk about that tomorrow night.  I'm not prepared to talk about it tonight either, and I don't think anybody else is, so let's see what we've got to argue about tomorrow night, and then see what law we find in the interim.  All right.  What next, Ms. Rogan?

MS. ROGAN:  All right.  Next, Judge, is on Page 28 and 29 --

THE COURT:  Okay.  Starting where on 28?

MS. ROGAN:  Starting at Line 23, continuing on through Lines 2 through 6 on the next page, 29, and then starting in at Line 12 basically through the end of that.

THE COURT:  All right.  What next?

MS. ROGAN:  Page 31, Lines 5 through 7, and I'll described exactly what my problem with that is.  Again, he's referring to these people who saw you there.  And that recurs several times, and I'll point it out each time it does.  At most, there has been a tentative identification by one person --

THE COURT:  Which lines on Page 31?

MS. ROGAN:  Lines 5 through 7.

THE COURT:  Well, really it's 2 through 7, is it not:  You've been identified with a flashlight standing by the driver's door of that car, looking inside the car.

MS. ROGAN:  Yes.  It's Line 5 is where my objection begins --

THE COURT:  Okay.

MS. ROGAN:  -- in terms of his --

THE COURT:  But anyway, that -- okay.

MS. ROGAN:  That section, yes.

THE COURT:  All right.  What next?  What next?

MS. ROGAN:  Page 32, Lines 24 and 25, and Page 33, Lines 1 through 4.

THE COURT:  All right.  What next?

MR. PORTER:  1 through 4?

MS. ROGAN:  1 through 4, yeah.

MR. PORTER:  Your Honor, why don't we just say that everything that Lieutenant Latty says is objectionable.

THE COURT:  It may be.  We'll see.

MS. ROGAN:  Well --

MR. PORTER:  Your Honor, it would seem a lot simpler, and it seems to me that we wasted an entire day having a hearing.  For one thing, the objections by      Ms. Rogan are now different than the objections then.  And Your Honor, if the Court's prepared to narrow this to the issue of what is the questions are allowed, then I don't think -- I think that we're wasting a tremendous amount of time.

THE COURT:  Well, let me ask.  The sections you're referencing, Ms. Rogan, what is the -- are all of them objections to simply we've got an interviewer stating facts which you don't think ought to be coming in?

MS. ROGAN:  Some of them are that, Your Honor.  I mean, they fall basically into two categories.  One, objections as to Lieutenant Latty discussing hearsay.  It's really triple hearsay for him or double hearsay -- I don't know how far removed it is -- in terms of saying what the ladies we've just been discussing said.  They said it someone else, who said it to Lieutenant Latty, who's now saying it to Mr. Chapel.  So it's the --

THE COURT:  How many different sections and places have we got as far as objections go?  I mean, have we got 500 here or have we got 20 or 30 or what?

MS. ROGAN:  No, there's not 500.

MR. PORTER:  Your Honor, I could look over it and see 6 pages or --

MS. ROGAN:  There may be 20 -- 20 sections.  I haven't counted them.

THE COURT:  All right.  Let's not worry about the reasons for them.

MS. ROGAN:  Okay.  That's fine.

THE COURT:  I think they'll be self-evident --

MS. ROGAN:  I will do whatever --

THE COURT:  -- once we see them.  Just tell us where they are, and everybody can bring some No-Doz or something tomorrow night, and we'll be prepared to spend the evening.  Okay.

MS. ROGAN:  Some of them may not be clear.  I mean, I'm looking at them --

THE COURT:  All right.  33, Lines 1 through 4.  What else?

MS. ROGAN:  Okay.  Page 34, Lines 20 through 23.

THE COURT:  All right.

MS. ROGAN:  Next, line -- Page 38, starting on Line 21 --

THE COURT:  And going through the page?

MS. ROGAN:  -- through the end of that page --

THE COURT:  Okay.

MS. ROGAN:  -- through Line 7 on Page 39.

THE COURT:  All right.  What next?

MS. ROGAN:  Page 40, Lines 13 through 16.

THE COURT:  All right.  Next?

MS. ROGAN:  Page 43, Lines 6 and 7.

THE COURT:  Okay.

MS. ROGAN:  Page 46, Lines 8 and 9.

THE COURT:  All right.

MS. ROGAN:  Page 54, Lines 24 and 25 continuing on through Line 4 on Page 55.

THE COURT:  All right.

MR. DAVIS:  Through which line on that last one?

MS. ROGAN:  Through Line 4 on the next page.  Okay.  Page 63 -- I'm going to withdraw that.

THE COURT:  Okay.

MS. ROGAN:  It's not very intelligible anyway.

THE COURT:  All right.

MS. ROGAN:  Page 64, Lines 7 through 11.

THE COURT:  All right.

MS. ROGAN:  Page 66, Lines 23 through 25.

THE COURT:  All right.

MS. ROGAN:  Page 71, Lines 18 through 21.

THE COURT:  18 through 21?

MS. ROGAN:  That's correct.

THE COURT:  All right.

MS. ROGAN:  Page 77, Lines 16 through 18.

THE COURT:  All right.

MS. ROGAN:  Page 78, Lines 13 through 21, and then on that same page, Lines 23 through 25.

THE COURT:  All right.

MS. ROGAN:  Page 80, Lines 17 through 22.

THE COURT:  All right.

MS. ROGAN:  Page 81, Line 8 and 9 and Line 13 through 17.

THE COURT:  All right.

MS. ROGAN:  Okay.  Page 87, Line 7 through Line 25.

THE COURT:  All right.

MS. ROGAN:  And Page 88, Lines 1 through 5.

THE COURT:  All right.

MS. ROGAN:  Page 90, Lines 24 and 25 through Line 4 on Page 91.

THE COURT:  All right.

MS. ROGAN:  Okay.  Page 98, Line 14 and 15.

THE COURT:  Okay.  Just a moment.

MS. ROGAN:  Okay.

THE COURT:  All right.

MS. ROGAN:  19 through 22.

THE COURT:  All right.

MS. ROGAN:  And 24 through Page -- through Line 2 on Page 99.

THE COURT:  Okay.

MR. PORTER:  Line 4?

MS. ROGAN:  Uh-huh.

THE COURT:  Through Line 4?

MS. ROGAN:  Through --

MR. PORTER:  Page 99?

MS. ROGAN:  No.  Wait.  Through Line 2.  I'm sorry.  Did I say 4?

THE COURT:  Oh, okay.  That's what I marked.  I thought maybe I misunderstood you.

MS. ROGAN:  Through Line 2.  I'm sorry.

THE COURT:  Okay. 

MS. ROGAN:  I'm sorry.

THE COURT:  Okay.  What next?

MS. ROGAN:  Page 100, Line 18 through 22.

THE COURT:  Okay.

MS. ROGAN:  Page 102.

THE COURT:  Okay.

MS. ROGAN:  Lines 4 through 14.

THE COURT:  Okay.

MS. ROGAN:  Line 104 -- I mean, Page 104, Lines 4 through 9.

THE COURT:  All right.

MS. ROGAN:  Okay.  That may be it.

MR. PORTER:  Elizabeth, there's only 137 pages -- 139, I'm sorry.

MS. ROGAN:  Yeah, I think that's it in terms of -- now, most of these, Your Honor, we did raise objections to previously and argued previously, and you'd reserved ruling based on what the evidence actually showed.  And there are some that I have noticed this time that I didn't notice before.  But as I said, they really fall into two categories.  They're either objections to hearsay or they're are objections to bolstering.

THE COURT:  Okay.  Well, let's hash all that out tomorrow.

MS. ROGAN:  Okay.

THE COURT:  That will give everybody an opportunity to take a look at what's in issue.  And also, what does the law say interviewers can say?  What is objectionable and what's got to be scissored out of the videotape statement?  Or is it anything goes?  I mean, what's the law?

MR. MOORE:  Your Honor, I don't believe we're going to find many cases.  Mr. Porter may know, but the police department hasn't been videotaping statements but a year or two now, and most of the jurisdictions in the state, I don't think, do videotaping.

THE COURT:  Well, what about audio statements?  Those have been around a while.

MR. MOORE:  Never did in Gwinnett County.  I always discouraged them for the very reason that we're sitting here now, I mean, you know.  I always discouraged the officers to -- do what you can do permissibly talking to them and get it down in writing, you know, in a sanitized form, you know.

MR. PORTER:  Your Honor, I don't think that would have been appropriate in this case, but I have given the same advice in the appropriate case.  I think you run into a lot of separate issues.  You run into issues of completeness, you run into issues of the rule of completeness, you run into issues that we've been discussing about hearsay.  I mean, we're now right back where we were at the beginning of the week when we had set aside for hearings, and when we played the videotape the first time.  We've now listed 104 pages of exceptions. 

Your Honor, I think we've got a problem here.  The second problem is is that at the hearings, sort of a yardstick was set.  It said that if the evidence comes in, then we're going to allow it.  The case has been designed that by the time the tape is played, then the evidence which supports the hearsay statements made by Detective Latty has already come in.

THE COURT:  Well, of course, one of the problems, it seems to me, is even if the essence of what Officer Latty says by way of hearsay comes in, if he says it or summarizes it in a form which is really not consistent with what the witnesses say, then, you know, does it come in then?  Even if you have hearsay which comes in by the -- or that hearsay is supported or is in by direct testimony --

MR. PORTER:  Yes, sir.

THE COURT:  -- but his summary is not really an exact statement or it goes beyond the testimony, what then?  Well, it would be nice if we had some law, you know, I mean --

MR. PORTER:  Yes, sir.

THE COURT:  And the problem is, I mean, it's a -- we're talking about a long case that everybody's put an awful lot of time and effort in that -- I mean, I don't think this is a matter to sort of say, well, we'll just proceed on here.  I mean, I think it's a critical issue in the case.

MR. PORTER:  Your Honor, I don't disagree with that, but I'm not as confident as the Court is that we're going to find controlling law, number one, just as I'm not as confident as the Court was in finding controlling law as to the hearsay statements.  I think, in fact, the Court has acknowledged that in regard to that matter there has been an extra burden placed and a balancing test done, and I'm not sure I necessarily disagree with that except in some particulars, but I don't think we're as -- I'm not as confident that we're going to find controlling law as to this issue.

MR. MOORE:  Your Honor, I don't think we are either, but I would suggest that we all look at it, too, in addition to that it's hearsay, that it's also bolstering.  I'm not trying to argue it tonight.  Everybody can look at it in this framework for tomorrow, because Officer Latty could not come in here and testify that's a great witness and made great identification.

THE COURT:  I think it's a point well made, and I don't know what ultimately we're going to do with it, but I think it's a point well made that, you know, can you have somebody -- and I suppose if it's allowable, then you have potential for abuse, if a police officer is smart and knows that you can do it, you know, and then say, well, gee whiz, we'll just put all this stuff in in the interview and it will come in at the trial of the case even though we can't get on the stand and say it. You know, I mean, it seems to me you've got that kind of potential abuse with it.

MR. PORTER:  Your Honor, and I would agree with the Court that there's that potential abuse, but I don't -- number one, I don't think that happened here.  Number two, I think the portions in which there is the bolstering have been removed.  And number three, I think that clearly when you look at the markings here, I was saying it somewhat lightheartedly that why don't we just remove everything that John Latty said, but it's clear that under the guise of it's objectionable hearsay that it's clear the defense is trying to gut the statement.

          And another issue that needs to be brought up is, of what worth is a statement if it has been so edited it is completely incomprehensible.

THE COURT:  Well, what's the purpose of the statement, though?  The purpose of the statement -- I mean, the statement by definition is what the accused said; right?  Not what the interviewer said.  I mean, typically, historically, in Georgia, the statement has been either the officer saying, well, this is what he or she told me and with all the incriminating portions of what was said, not what the questions were, but this is what was said.  And if it's a written statement, then they sit down, and just a statement, 'I went here, I did this,' you know, all the gory details that's incriminating in nature, but not the questions.

          So if you delete the questions, which you normally do in a written statement -- or a statement a police officer testifies to, normally you get rid of the questions anyway.  So how is a video statement any different?  If you deleted every question that's asked of the witness -- to the defendant and say, okay, here's the version or this is what he said.  Of course, I guess --

MR. PORTER:  Well, Your Honor, it doesn't make any sense to the jury.

THE COURT:  Well, I think that's the other side of it with a video.  If maybe he said, no, I didn't do that or, no, I didn't say that, and you don't have the question, then, you know, I agree with you.  That doesn't make much sense.

MR. PORTER:  But, Your Honor, the presentation wouldn't make any sense.  You'd have blank, the defendant saying no.  Blank, the defendant saying yes.  Blank, the defendant saying I wasn't there --

THE COURT:  Well, I guess from the state's perspective what you'd like to see as you get through hashing it all out, and then you say, well, now, then, just give us the essence of this on video.  Here's the microphone.  I mean, that's what you've got with the written statement.

MR. PORTER:  I would love to do that, but, Your Honor, I get the same accusations with a written statement that we doctor it, so I don't really escape the accusations of inventive defense counsel no matter which way I go.

THE COURT:  Well, I think it's a critical -- we're at a critical juncture in the case with that video statement on the issues we're talking about, and maybe there's not any law.  I mean, you know, but I -- this is not the kind of case I'd particularly care to make a bunch of new law on, you know, considering how much time and effort everybody's got invested in this case.  You know, I don't want to try it again.  I don't think anybody wants to try this case again, so that's my concern is, what does the law allow?

MR. PORTER:  Your Honor, one final point, and I realize the Court's packing up, but one final point is is that --

THE COURT:  Well, actually, that was just the pens.  I haven't got to the books yet.

MR. PORTER:  It's clear and from my opening statement that the context of this statement is a denial by the defendant.  It's a denial.

MS. ROGAN:  It certainly is.  I think that's the whole problem --

THE COURT:  Sure it is. 

MS. ROGAN:  -- for the state.  They don't have a confession, so they need to have Lieutenant Latty spell out all of the damaging information they think they have against him.

MR. PORTER:  Your Honor, but the point that I'm making is that in the face of the most outrageous accusations, the point of the evidence is not the content of the tape.  It is not -- Lieutenant Latty could have accused him of the most outrageous crime.  The point is is the defendant's demeanor in the face of this.

THE COURT:  I don't think it's that simple.  I think if you had Officer Latty saying, 'Hey, look, we know you killed fifty people in the last ten years.'  And he says, 'Oh, no, I didn't, and I didn't commit this crime either,' I don't think you can say, well, there's no harmful effect by virtue of Officer Latty saying that because he said no, he didn't kill anybody.

MR. PORTER:  No, Your Honor, I'm not arguing that point.  I'm arguing that this defendant's reaction is the portion -- is the part of the tape that the state wants to bring in.  There is no advantage to the state in introducing a defendant for four and a half hours saying, I didn't do it except within the context that I'm offering it.

THE COURT:  Well, let's do some research between now and tomorrow night, and see if we can find some law.  I'll do the same, and see if we can find any cases that give us any guidance, and we'll just revisit it after the jury leaves tomorrow.

MR. PORTER:  Okay.

MR. DAVIS:  Your Honor, may I make one last inquiry?

THE COURT:  Yes, sir.

MR. DAVIS:  With regard to the list that Ms. Rogan handed out, obviously we were not able to follow along in the transcripts.  I wonder if we might inquire how many of her deletions involved words spoken by the defendant himself?  I did notice one.

MS. ROGAN:  Very few, and it was an answer to a question.  I have no problem with statements made by    Mr. Chapel.  That's not my aim.  My aim is to limit the -- what I consider the inadmissible testimony from Lieutenant Latty, and to the extent that something I cited --

THE COURT:  Well, let's just look at it overnight.  I think at this point we've done what we can do.  So let's give everybody an opportunity to look at what's in issue and give everybody -- I think we all know what the legal issues are that we will need to address and answer if they can be answered.  And whenever the jury leaves tomorrow, then we'll just crank up with the video and see if we can sort it out.  Then I guess there will be a ruling of some kind before we go home tomorrow night, and then you can edit it hopefully Friday morning sometime and put it in then whenever -- whenever you want to.  Okay.

MR. PORTER:  Your Honor, let me consider the entire tape, and I may have a solution for the Court.

THE COURT:  All right.

MR. PORTER:  It may not be the solution the defense has requested, but I may have a solution.

THE COURT:  All right.  Well, we may need to think about it a little bit.  All right.  Anything else, Mr. Porter?

MR. PORTER:  Nothing from the state, Your Honor.

THE COURT:  Mr. Moore, Ms. Rogan?

MR. MOORE:  Your Honor, I don't want to continue this, I know everybody's ready to quit, but if         Mr. Porter's suggesting he may not do it, we may want to play it too, and we may still want to have this hearing to determine what parts are going to be in there.

MR. PORTER:  Your Honor, they put it in.  They've got to eat it.  They've got to live with it.

MR. MOORE:  Your Honor, I don't think if we put it in, something that's inadmissible, it becomes admissible just because we put it into evidence.

THE COURT:  Well, that's that's an interesting question.

MR. PORTER:  Only if I object, Your Honor.  There's a doctrine of completeness.  They're not going to be authorized to edit it.

THE COURT:  Well, is this -- I guess is it like a transcript.  You know, somebody puts in a deposition, you know, somebody puts in part of what they want, and the other side's got the right to put it in to show what the context is in and all that, you know.  I don't know about that.

MR. MOORE:  If it was admissible, Your Honor.  Usually a deposition, though, the objections are reserved till trial.

THE COURT:  Well, that's true.  That's true.  If it's inadmissible, then you scissor them out anyway on each side.  Yeah.

MR. MOORE:  And I don't think it becomes admissible just because we put in something that is admissible on one side.

THE COURT:  Yeah.  Well, if that's the case, then we have the same legal issue as to what goes in.  Of course, I don't know that that's necessarily true, and it would be the same in a criminal case as a civil case,   Mr. Moore.  I mean, there's a number of cases -- well, all kinds of cases, like character, for example, wherein the state can't do a thing with it.  But if the defendant opens the door, then state can proceed on with otherwise inadmissible material.  And I guess do we have that kind of issue if the defendant puts part of it in?

MR. MOORE:  I wasn't trying to argue tonight.  I just wanted to put the Court on notice we may need to have a hearing anyway even if Mr. Porter decides not to put it in.

THE COURT:  Okay.  All right.  Well, anyway --

MR. PORTER:  That's not the solution I was proposing, Your Honor.

THE COURT:  Well, you might discuss it -- you might discuss it tomorrow anyway.  Everybody sort of sleep on it and see what you think, and then we'll come back tomorrow.  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  We'll be in recess until nine o'clock tomorrow morning.

[Proceedings were recessed for the evening at 7:35 p.m. on August 23, 1995.]

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Reporter's Certificate here

 

3545