P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Monday, August 28, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]

THE COURT:  Mr. Porter?

MR. PORTER:  Yes, sir.

          THE COURT:  Mr. Moore?  Everybody doing okay this morning?

MR. PORTER:  Yes, sir.

MR. MOORE:  Good morning, Judge.

THE COURT:  Everybody ready?  Ms. Rogan?

MS. ROGAN:  Yes.

THE COURT:  Do we have anything to take up before we bring the jurors in?

MR. MOORE:  Your Honor, might we approach the bench?

THE COURT:  Yes, sir.

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

MR. MOORE:  Your Honor, there are two matters.  One, we would ask the Court to instruct the jury about the rule of sequestration.  It's apparent that Captain Latty had talked to somebody about the gun.  He knew about it and everything on Friday when he testified.  And we request a --

MS. ROGAN:  Saturday.

MR. MOORE:  Saturday, I'm sorry.  We did work Saturday.  I've lost track of the days here.  And the other matter, Your Honor, is I don't know whether the state intends to introduce any scientific evidence regarding that gun or not, but we've not been provided any reports or anything, and we object to any scientific evidence.  We haven't had an opportunity to -- we saw it for the first time on Saturday.

THE COURT:  That's the RG?

MR. MOORE:  Yes, sir.  And we haven't had a chance to get an independent expert or --

THE COURT:  RG, that's the name brand?

MR. MOORE:  Name of the brand -- brand name -- name brand.

THE COURT:  Like Ruger or something?

MR. MOORE:  Yes, sir.

THE COURT:  Okay.  Mr. Porter?

MR. PORTER:  Your Honor, first of all, there's been no establishment of violation of the rule of sequestration sufficient to justify an instruction to the jury.  I would explain to the jury how Captain Latty came into that information, and I don't believe that there's been a showing of --

THE COURT:  Well, I'm inclined to agree.  You know, as I recall it he said, well, he heard somebody else talking about it or whatever.  He wasn't sure who it is, but he said, as I recall it, he said he had not had a conversation with Burnette, and I don't think there was any indication or conversation with anybody else in violation of the rule.  That's my recollection.

MS. ROGAN:  That's precisely what his testimony was that he had had a conversation with Burnette about it.

MR. PORTER:  No, Your Honor, that's not precisely the testimony.

MR. MOORE:  Well, he was very evasive, Your Honor.  He said he couldn't remember.

THE COURT:  Well, I think if you've got a violation of the rule where somebody's testified -- or discussed the testimony with somebody else or discussed the matter with one of the other witnesses, you know, I'll be happy to give them an instruction as to the weight and credibility of the testimony in violation of the rule.  But if there is no rule violation, I'm not inclined to give it absent that, and I don't think there has been at this point.  It's not in my recollection of the evidence that there was one.

MS. ROGAN:  He knew all about the gun, and there's no way he could have known about it without talking to other witnesses because this all developed since the rule was invoked on August 4th.

THE COURT:  Well, what other witnesses?

MS. ROGAN:  Investigator Burnette, among others.

MR. PORTER:  Your Honor, they can question Investigator Burnette about that, but I'll state in my place that I turned around and saw two police -- two Gwinnett County police officers here, plain clothes, here Saturday.  There have been police officers from various jurisdictions in here almost every day.  They are not witnesses in the case.  I think Mr. Moore's familiar from his experience that when they walk out of here, word spreads like wildfire through the police department.  I've got officers who are unrelated to this case call me at home and say, 'I heard this happened,' or 'I heard that happened.'  They're following this case very closely.

THE COURT:  Well, you'll have Burnette on, and you can inquire of Burnette, and if there has been a violation of the rule, I'll be glad to give them -- what instruction are you asking for, that goes to the weight and credit of their testimony, if there's been a violation?

MR. MOORE:  Yes, sir.  Yes, sir.

THE COURT:  If you can establish a violation, I'll be happy to give them one, but I don't recall one in the testimony at this point.  What was the other issue?

MR. PORTER:  Scientific.

MR. MOORE:  The other issue is scientific evidence that the DA intends to introduce, any scientific evidence.  We haven't had an opportunity to get an expert and we haven't -- we only found out about it Saturday.

MS. ROGAN:  And Mr. Porter --

THE COURT:  Well, the evidence thus far is somebody brought a rusty pistol.

MR. PORTER:  No, Your Honor.

MS. ROGAN:  No, this is about --

MR. PORTER:  This is about Brian Reddy's RG, and we do intend to introduce --

THE COURT:  Oh, okay.  I'm thinking about a different gun.  Okay.

MR. PORTER:  We do intend to introduce the testimony of Kelly Fite that excludes that weapon as the murder weapon.  And we have made that available to the defense.  We continue to make it available to the defense.  It is a test that can be run in five minutes, because, in fact, the test was run in five minutes.  There is not --

THE COURT:  Well, what does the rule say about that?

MR. PORTER:  Well, the law requires that we provide some -- written scientific reports ten days prior to trial, but this was information that came up the Friday before trial was when I first learned of it.  I received notice of the results sometime last week, and I don't recall specifically, and I disclosed it as fast as it occurred to me, and I disclosed it.

MR. SMEAL:  Also, the state has not yet received a copy of a written scientific report.  The results of that test were transmitted orally by Kelly Fite.

THE COURT:  Well, but you can't evade the issue by --

MR. SMEAL:  No, I understand that, but there's no document that we haven't disclosed.

THE COURT:  Yeah.  I mean, they can't just keep it an oral report and say, well, we don't have to furnish that.

MR. MOORE:  What date was the test run?

MR. PORTER:  I don't know that.

MR. MOORE:  When did you learn about it?

MR. PORTER:  Last week sometime, and I can't say specifically.

THE COURT:  What is the rule?  Are you aware of any cases that talk about -- I mean, what if you're in the middle of a trial and the day the state's getting to rest, you know, lo and behold, here's some new evidence that's just come in.

MS. ROGAN:  They can't introduce it.  And I looked for the case this morning.  This occurred to me late last night.  And I had pulled a case in preparation for one of our other hearings that specifically says and it was held to be reversible error to allow the state to introduce evidence of a scientific nature that they had not provided to the defense ten days before the trial.

MR. PORTER:  Your Honor, that's physically --

THE COURT:  Well, yeah, but what -- I understand that, but --

MS. ROGAN:  No.  This was a scientific report.  It was --

THE COURT:  No, I know, but that's assuming you've got it ten days.  I mean, what if the day the state's getting ready to rest --

MS. ROGAN:  No.  This had just developed, Your Honor.  This was late-breaking evidence, but the rule --

THE COURT:  I can't imagine that being the law.

MS. ROGAN:  I will look for that case.

MR. MOORE:  Your Honor, the testimony was they learned of this on the 18th.  We weren't advised of it until the -- Saturday was the 25th.

MS. ROGAN:  25th -- 26th. 

MR. MOORE:  26th.  We think the state has to make a timely and complete disclosure as soon as they know about it if they want to take advantage of any exception.

THE COURT:  All right.  You may be right.  When's Kelly Fite testifying?

MR. PORTER:  We anticipate today because he has to leave to go to South Georgia to testify in a death penalty case tomorrow.

THE COURT:  Is that going to be this morning or this afternoon or when?

MR. PORTER:  This afternoon, Your Honor, as early in the afternoon as we can get him because he has to drive to South Georgia.

MR. SMEAL:  Your Honor, there might be one other point that bears mentioning, and that is that as far as the state was concerned there was nothing exculpatory about that scientific test.  I mean, the state did not know that that was going to be a material and relevant issue at trial until the defense, during trial, has focused attention on Brian Reddy.

MR. PORTER:  Your Honor, I'm not sure I was  under --

MR. SMEAL:  But that's the way the issue --

MR. PORTER:  I'm not sure I was under an initial duty to even reveal the evidence.  I'm not sure I was under any initial duty.

MR. MOORE:  He may not have been, but if he wants to use it, he is.

MS. ROGAN:  I think evidence that one of the other officers, whose whereabouts they clearly did not check very carefully, had a .38 at the time, is --

MR. PORTER:  But we don't know that.

MS. ROGAN:  -- is relevant to this -- the issues in this case.  I don't see how the state can say that in good faith that it has no bearing on this case --

MR. PORTER:  Your Honor, I'm not saying that it had no bearing.

MS. ROGAN:  -- and not something they needed to disclose to us.

MR. PORTER:  Your Honor, I don't know how long he's had the .38.  I know that as of the day he told me, which was a week ago Friday, he had a .38, we immediately took it down and had it tested.  I didn't receive notice of the results of the test, and I received them verbally sometime last week, and I cannot say with specificity.  Within a day or two, I disclosed it to the defense.  They made use of it that day, and I think at this point to deny the state the opportunity to exclude that weapon, given the inference that's been given through the cross-examination, on a    technicality --

THE COURT:  Well, that's an interesting point.  Really, we've got a kind of a reverse situation here.  It's sort of exclusive kind of testimony rather than inclusive as to the defendant.  I mean, really the test is not to show something relevant to what's -- to prove the allegations of an indictment, but it's really to show that some other --

MS. ROGAN:  Somebody else could have done it.

THE COURT:  -- collateral is not involved.  And then we have the situation here -- that's an interesting point Mr. Porter raises is that it's an issue because it's raised by the defense on cross-examination, 'well, what about this gun and did you test the gun.'  And I guess the question is, does that line of questioning open up for the state, then, when it calls its witnesses and say, 'well, you know, in fact, did you test it, and what were the results?'  I mean, you've asked the question on cross-examination.  How can you now complain if the state discusses it?

MR. MOORE:  Your Honor, I asked a witness in reference to his violation of the rule of sequestration whether he knew about it or not, and he denies knowing anything about any results, the witness.

MR. PORTER:  Your Honor, the results are there.

MR. MOORE:  Your Honor, the point I'm still making is that when the district attorney learns of something like that, if it's during the trial, my position is he has to tell us the day he learns of it if he wants to take advantage of any exception to the rule, the ten-day rule.

THE COURT:  Well, your argument would be more persuasive, it seems to me, if the state were going to put it in where it had not been made and there was no issue prior to the state saying, 'Okay, now, tell us about the test results,' and there had been no issue made. 

But my question is, if you raise the issue on cross-examination about wasn't there another gun found and wasn't that an RG and wasn't that another police officer and what have you done about the inquiring as to that officer, it seems to me then you have -- how can you complain if the state then says, 'well, in fact, we do have the gun; in fact, we have tested it; and, in fact, this is the results.'  I mean, when you raise the issue, I don't think you're in a position to complain if they come back with another witness that testifies about it.

MR. MOORE:  Your Honor, when they didn't give us an opportunity to know about it and to get an independent test if we wanted it, we feel like that they've violated the ten-day rule.

MR. PORTER:  Your Honor, we have not denied them that opportunity.  The gun is available.  And as I said, it's my understanding --

THE COURT:  Well, it's going to be probably the first of next week before you start your evidence and --

MS. ROGAN:  The first -- no, it's going to be Wednesday.

MR. PORTER:  No, sir.  It will probably be unlikely tomorrow, but will be Wednesday most likely.

THE COURT:  Oh, that's right.  Yeah.  Okay.  Okay.

MR. PORTER:  Your Honor, it's a test that can be performed --

THE COURT:  Well, that's going to be this afternoon; right?

MR. PORTER:  The soonest will be this afternoon.

THE COURT:  When Kelly Fite comes on?

MR. PORTER:  Yes, sir.

          THE COURT:  I'll start my law clerk on it and see what --

MS. ROGAN:  I wish I could remember the name of the case, Your Honor.  I pulled it, and it clearly said that an eleventh hour disclosure of a scientific report that they've just found out about is too late.

THE COURT:  I just can't imagine that being the law.  I mean, if you have material, relevant evidence that clearly nobody's trying to conceal or sandbag the other side, you know, and at the last second you make this discovery that is absolutely material to the issues of the case, what if the defendant discovered it, what if the state discovered it?

          I just can't imagine that if you have something as critical to the case and you say, 'Well, gee whiz, we've got this rule here that says you've got to have ten days, and if you haven't got ten days, then it doesn't come in.  It doesn't matter whether that's an astounding piece of evidence or not because we've got this rule that says ten days.'  I mean, I can't imagine that, but maybe it is.  But I can't imagine that being the law.

MS. ROGAN:  It was in the context of DNA.  That was where I was pulling cases and --

THE COURT:  Well, it just seems to me that would just be so fundamental to the denial of justice in a  case.

MS. ROGAN:  Well, the issue is giving the defense a right to an independent test.  That's the purpose of the rule.

THE COURT:  Yeah.  Well, I mean, I can see --

          MS. ROGAN:  And given the timing here, we're up against the wall.

THE COURT:  -- maybe perhaps a continuance or making some provision so everybody has an opportunity to fairly examine the witnesses and to inquire and rebut and all that, but I just can't imagine a rule that says arbitrarily that's not coming in even if it is absolutely critical to the case.

MS. ROGAN:  Well, I think the judge in that case had declined a continuance motion and that was error.

THE COURT:  Yeah, well, that makes a little more sense.

MR. PORTER:  I think that's another point.  The logistics that are controlling is that the gun is available.  We will make it available.  That is not a problem.  I am not going to quibble about providing --

THE COURT:  Well, why don't you talk to your folks, and if you want to make some arrangements for an independent test, you know, make -- if they've got to send somebody up there at midnight to be available to do it at the crime lab, do it.

MR. PORTER:  Your Honor, I can make our police range available.  I can -- it requires a box, one round, and a stereoscopic microscope.  That's what the test consists of.

THE COURT:  Yeah.  I mean, I'm prepared to see that the defendant has a right to an independent test of it and the time to evaluate it and put up any witness or secure a witness, put up the evidence you want in that regard; but it just seems to me that now where the issue is raised -- I mean, I don't know whether the state planned to put it in or not at all.

MR. PORTER:  Your Honor, I'll state in my place until it was raised, I made the disclosure for whatever the defense wished to use in this, and I'm not sure it was initially disclosed, but I made that choice in light of Mr. Moore's statements the day before, and I chose to disclose it.

THE COURT:  I mean, you may have -- every officer on the department may have a .38, and the fact that they've been tested and excluded, you know, is that exculpatory material, discoverable material, admissible?  MR. MOORE:  Well, Your Honor --

THE COURT:  I don't know.

MR. MOORE:  -- our position is that the district attorney's under a duty to disclose that as soon as he knows about it if he intends to use it.  The district attorney knew about this before the opening statements in this case.

THE COURT:  I understand what you're saying, but if, in fact, he doesn't intend to use it and it's raised by the defendant on cross-examination, 'well, what about this gun; well, did you test it; well, what does it say; it's the same brand, and what about that?'  It seems to me if you inquire to that, then you have opened the door with or without a test for the state to come back and address that issue.  It seems to me that's a different case.

          Well, we'll see about getting some legal research done before Kelly Fite testifies and see if we can get a handle on it.  If you want to arrange for somebody to test the gun, you know, I will ensure that it's done and expedited and that will give you the opportunity to test it.  If you've got a witness you want to secure to put up, I'll give you that opportunity and assist you however need be.  Tell me what you want.

MS. ROGAN:  Well, we have an expert.  We'll have to make arrangements.  He's --

MR. MOORE:  He won't be in town until the 30th.

MS. ROGAN:  He'll be in tomorrow night.  Yeah.  Wednesday's the first time he'll be available to us.

MR. MOORE:  And, Your Honor, our position is the state has withheld this information when they knew about it, allowed us to go forward with our case, and then suddenly reveals it to us, actually, when they're almost through with their case, and it puts us in a position where we're not fairly allowed to cross-examine witnesses, we're not allowed to present our case, and just an independent test doesn't cure that.

THE COURT:  Well, what else would you want to ask on cross?

MR. MOORE:  Huh?

THE COURT:  What else would you want to ask on cross?  I mean, either the gun matches the bullet or it doesn't.  I mean, aside from that, what --

MR. MOORE:  Your Honor, could I consult my client for a minute about this?

THE COURT:  Yes, sir.

[Pause in proceedings]

MR. MOORE:  You asked what remedy we wanted, Your Honor.  We'd demand the Court grant a mistrial in the case and allow us to start over again with a level playing field where we know about the evidence and we  have an opportunity to cross-examine our witnesses with that knowledge.  Otherwise, we're not granted a right to a fair trial.

THE COURT:  Mr. Porter?

          MR. PORTER:  Your Honor, the defendant is only entitled to a mistrial if evidence is so prejudicial that it would outweigh any probative value that has been introduced.  In this case, the defendant has chosen a methodology of defense that implicates other people.  It is not evidence that the state has brought in or intended to bring in.  It was developed in the course of preparation for trial, and it's the defendant who has opened the door.  Another key point here is this is not inculpatory evidence except in the most indirect way.  It excludes one more suspect which they have brought to the jury's attention.

Your Honor, I think that at this point, there's no evidence that the state has been dilatory, and I'll state in my place we have not been dilatory.  We have provided the information as soon as I became aware of it.  We have acted upon the information that we received in a timely manner.  And we have produced that information, information, which I stress, we are under no obligation at this point to provide.  And I don't think you can say, 'Well, you made the decision to disclose it.'  Mr. Moore is the one who complains that I have somehow violated my self-imposed policy, but the important point is that it is self-imposed.

THE COURT:  Anything else, Mr. Moore?

MR. MOORE:  Your Honor, the ten-day rule is not self-imposed, and even if the Court has an opportunity to, in its discretion, to shorten that time, the district attorney, if he wants to take advantage of any exception, we believe, has to disclose it as soon as he finds out about it.  He can't wait a week into the trial and let us make our opening statements, let us cross-examine the witnesses, and then come in and say, when the trial's almost over, his part of it, and say, 'Oh, by the way --'  And that's my position, Your Honor.

THE COURT:  Your motion is denied.  What about the -- are you making any specific request as to the test or the gun being made available or that sort of thing?

MR. MOORE:  Your Honor, we would demand that the state not be allowed to put theirs in until we have an opportunity to have those tests done.

THE COURT:  Well, let's revisit the issue before Kelly Fite.  I've got my clerk working on what the law is.  We'll see if we can -- you might, if you have an opportunity, take a look at the law as well, and we'll revisit all that prior to Kelly Fite testifying and see if we can sort out and see if we can find some controlling law and then we'll go from there.  Okay.  Anything else, Mr. Porter?

MR. PORTER:  Your Honor, the only thing is is that there is one more videotape that we want to show this morning.  It has no sound.  A copy of it's been provided to the defense.  It will require wheeling a television in, plug it in, playing it, and wheeling it out.  It's two minutes long.

THE COURT:  What is it of?

MR. PORTER:  It's of the crime scene.  We don't intend to hook it up to the feed.  The TV's going to have to just -- they're going to have to eat this one.

THE COURT:  Mr. Moore, have you seen it?

MR. MOORE:  Which one are you talking about?

MS. ROGAN:  Yes.  It's the one of the scene --

MR. PORTER:  The one that Mary Ann White did at the scene.

MS. ROGAN:  -- the car and her in the car.

THE COURT:  Okay.  It just shows the exterior and her in the car?

MR. PORTER:  The whole --

THE COURT:  Yeah, I recall seeing that on the in camera.  Any objection to that?

MR. PORTER:  Well, I don't -- we'll lay the foundation, but we're going to do it in the midst of Mary Ann's testimony.  I'm not going to worry about the TV.  They're just going to have to bite it and then we're going to --

THE COURT:  Yeah.  Mr. Moore?

MR. PORTER:  In terms of the defendant seeing it, I'll concede that we can step away from our table and stand in the aisle and you guys can sit at our table if that's what you want to do.

THE COURT:  Mr. Moore?

          MR. PORTER:  That way, there's -- we just step away.  You can sit there.

MR. MOORE:  Your Honor, the DA can put up whatever evidence he wants to.

THE COURT:  I'm not asking your consent.

MR. PORTER:  I understand I can put up any evidence I want.  What I'm --

THE COURT:  Well, I just wondered if there was any objection to the tape coming in at this point or the method we're going to do it before he gets to hooking it up.

MR. PORTER:  I'm just asking about the logistics of it in terms of dealing with where you sit.

THE COURT:  All right.  Now, this tape -- that's where it's got a two-minute clip all by itself.  We don't have anything before or after.  And that's the one that just shows her in the car and the exterior of the car.

MR. PORTER:  That's correct.

THE COURT:  Okay.  All right.  Anything --

MR. PORTER:  You can object to the evidence, but I'm asking you about the seating arrangements.

MR. MOORE:  I don't have any problem with the seating arrangements.

MR. PORTER:  All right.

THE COURT:  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MS. ROGAN:  I presume there will be a break before all this so that when Mr. Chapel gets moved over, there isn't, you know, six deputies on him in front of the jury.  That's a concern to me.

THE COURT:  Well, I hate to yo-yo them in and out.

MS. ROGAN:  Well, if the deputies would agree   to --

MR. PORTER:  Your Honor, I think we could bring Sergeant Parr over and instruct him and just say allow him to walk over and sit at the defense.  Get yourself ready.  It's during the testimony of Mary Ann White.

THE COURT:  Okay.

MR. PORTER:  They'll have plenty of warning.

MS. ROGAN:  Okay.  I mean, I just don't want there to be a big show of security concern because he's standing up and moving around.

THE COURT:  Okay.  All right.  Anything else,   Mr. Porter?

MR. PORTER:  No, sir.

          THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  All right.

[Bench conference concluded.]

THE COURT:  How long do you think we'll be,     Mr. Porter, until you bring that video in and need to set the equipment up?

MR. PORTER:  Your Honor, I have one brief witness and then it will begin with the testimony of the witness who will lay the foundation and identify the video.  It is in the first portion of her testimony, so I would suspect -- my first witness is brief, and I would say within thirty minutes of the commencement of that witness.

THE COURT:  All right.  If we're not at a point and we need to take a recess anyway, then what I'd like to do is just bring the equipment in if it can be expedited.  Bring it in, set it up, and play the tape and bring it out if the foundation's laid and it's admissible and all that.

MR. PORTER:  Your Honor, the equipment is here.  We'll wheel it out, plug it into the floor jack, and play it.

THE COURT:  All right.  For our officers in the courtroom, the district attorney's going to vacate that table and Mr. Chapel will just shift over to the district attorney's table during the course of the view without any massive movement of deputies.  All right.  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  Bring the jurors back in, please.

[The jurors were escorted to the courtroom.]

THE COURT:  Good morning, ladies and gentlemen. Everybody have a good day off?  Good.  Everybody find their pens, pads?

All right.  Mr. Porter, call your next witness, please.

MR. PORTER:  The state would call Eddie Ballew to the stand.

[The witness was called to the courtroom.]

THE COURT:  Mr. Ballew, if you'll take the stand, Mr. Porter will administer the oath.

[The witness stepped to the stand.]

MR. PORTER:  Could you raise your 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.

Whereupon,

     EDDIE BALLEW

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 and spell it for the record, please.

A.   Eddie Ballew, B-a-l-l-e-w.

Q.   Mr. Ballew, how are you employed?

A.   I'm an investigator with the Gwinnett County district attorney's office.

Q.   I'd like to call your attention to April 1993.  How were you employed during that month?

A.   Investigator with the district attorney's office.

Q.   And, specifically, in the early morning hours of April 23, were you requested in the course of your duties to come to the Gwinnett County police department?

A.   Yes, sir.

Q.   Could you describe how you were notified?

A.   By telephone.

Q.   And about what time of day or night was it?

A.   Somewhere around 1:15 a.m.

Q.   All right.  Prior to that, had you had any involvement into the investigation of the death of Emogene Thompson?

A.   No, sir.

Q.   Why did you go to the Gwinnett County police department?

A.   For security purposes.

Q.   All right.  Were you involved in the transport of the defendant, Michael Chapel, from the Gwinnett County police department to the Lilburn city jail on a temporary basis?

A.   Yes, sir.

Q.   And, in fact, is it your voice that's heard at the end of the videotape, you were described in the transcript as 'an officer enters'?

A.   Yes, sir, I think so.

Q.   How long did it take you to get from the Gwinnett County police department to the Lilburn city jail?

A.   I'd say probably no more than fifteen minutes.

Q.   And do you recall about what time of day or night it was when you were doing this transport?

A.   I'm going to say sometime after 2:30 a.m.

Q.   When you got to the jail, the Lilburn city jail, what did the defendant do?

A.   After we put him in the cell, he laid down on the bunk and went to sleep.

Q.   At any time during that time, did he wake up?

A.   Yes, sir, once.

Q.   And what happened then?

A.   He got a blanket, laid back down, and went to sleep again.

Q.   Did you remain awake during that time?

A.   Yes, sir.

Q.   Now, Investigator Ballew, did you work on Thursday, April 22?

A.   Yes, sir, I did.

Q.   Did you put in a full day?

A.   Yes, sir.

Q.   Were you awake when you got the call at two o'clock?

A.   No, sir, I wasn't.

Q.   How long had you been asleep?

A.   Probably an hour to an hour and a half.

Q.   Did you remain awake during the time that you had custody of the defendant?

A.   Yes, sir.

Q.   And what time did you deliver him to the Gwinnett county jail the next morning?

A.   I didn't take him back to the jail, sir.  I left the Lilburn police department probably about 8:30 in the morning.

Q.   Okay.  Thank you.

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

THE COURT:  Mr. Moore?

MR. MOORE:  Ms. Rogan's going to examine this witness, Your Honor.

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Good morning, Mr. Ballew.

A.   Good morning.

Q.   You work for the district attorney's office; isn't that correct?

A.   Yes, ma'am.

Q.   Okay.  Are you a certified law enforcement officer?

A.   Yes, ma'am.

Q.   Do you have arrest powers?

A.   Yes, ma'am.

Q.   We listened to the tape and watched it on Friday and Saturday.  Are you familiar with the videotape of       Mr. Chapel's interrogation?

A.   No, ma'am, I'm not.

Q.   Well, at the very end, you've identified yourself as the person who comes in and actually puts handcuffs on       Mr. Chapel and takes him out of the room?

A.   I put the handcuffs on.  I haven't seen the tape, so I assume that I was on the tape.

Q.   Okay.  Are you the person who came in and put the handcuffs on him?

A.   Yes, ma'am.

Q.   Okay.  Now, that portion of the tape was blanked out in terms of the video but the audio was evident.  Did you have some trouble getting the handcuffs on Mr. Chapel in terms of getting them around his wrists?

A.   The size of his wrists, yes, ma'am.  I didn't want to pinch him when I was locking the handcuffs on.

Q.   And that's because he's an extremely large man, isn't he?

A.   He's a large man, yes, ma'am.

Q.   Okay.  He was very cooperative, though, in terms of allowing you to put the handcuffs on him?

A.   Yes, ma'am.

Q.   Okay.  How tall are you, Mr. Ballew?

A.   Five-ten.

Q.   You're not nearly as big as Mr. Chapel is?

A.   No, ma'am.

Q.   How large would you say Mr. Chapel is?

A.   Six-seven.

Q.   And he didn't -- and how much would you say he weighed at the time?

A.   290, probably.

Q.   Mr. Chapel didn't give you any trouble when you were transporting him to the jail, did he?

A.   No, ma'am.

Q.   Okay.  And, I believe, you were accompanied by Mr. -- is it Hinson?

A.   Yes, ma'am.

Q.   Okay.  And does he also work for the district attorney's office?

A.   Yes, ma'am.

Q.   Is he a certified law enforcement officer?

A.   Yes, ma'am.

Q.   Mr. Porter asked you on direct examination if you had worked a full day that day?

A.   Yes, ma'am.

Q.   What time did your day start, Mr. Ballew?

A.   My work hours or the time I got up in the morning?

Q.   Well, your work hours first.

A.   8:30 to five.

Q.   8:30 to five?

A.   Yes, ma'am.

Q.   Okay.  And then you had -- you indicated you had been asleep for some portion of the evening before you were awoken?

A.   Probably an hour to an hour and a half.

Q.   And you were summoned, then, in the early hours of the morning, Saturday, April 24 --

A.   Yes, ma'am.

Q.   -- to the police department?

A.   Yes, ma'am.

Q.   Okay.  You had not just undergone five hours of interrogation, had you, Mr. Ballew?

A.   No, ma'am.

Q.   Okay.  You indicated it was about 2:30 when you left with Mr. Chapel to go to the Lilburn city jail?

A.   Somewhere around 2:30.  I'm not really sure of the exact time.

Q.   Okay.  Is it possible that it was really more like 3:30?

A.   It could have been.  I'm not sure.

Q.   Okay.  I think you've said you didn't see the videotape?

A.   No, ma'am.

Q.   Okay.  If the videotape had a time frame on each time specified for each frame and it started at 10:30 a.m. and it ended about 3:15 a.m., does that seem to correspond with your memory of what the time frame was?

A.   I haven't seen the tape, ma'am.  I couldn't tell you what time it was.  I said it was somewhere around 2:30, I think.

Q.   It was in the early morning hours?

A.   Yes, ma'am.

Q.   Okay.  Are you aware at all, Mr. Ballew, of what Mr. Chapel's schedule had been that day?

A.   No, ma'am.

Q.   So you wouldn't know what time he got up that morning?

A.   No, ma'am.

Q.   And you don't know what time he started his shift?

A.   No, ma'am.

Q.   Okay.  Or what his duties were that day in terms of fulfilling his job as a police officer?

A.   From being an ex-police officer, I would assume that I know about what his duties during the day would be.

Q.   Okay.  And most police officers have an eight-hour shift of driving around, patrolling, and responding to calls --

A.   Yes, ma'am.

Q.   -- and protecting the public?

A.   Yes, ma'am.

Q.   And then you don't know at what point in his shift he was summoned to the police department for interrogation?

A.   No, ma'am.

Q.   But you are aware that he had been questioned for approximately five hours that night?

A.   I knew that he'd been questioned, but the exact amount of time, no, ma'am, I didn't know it was five hours.

Q.   And do you know whether or not that had come at the end of his eight-hour shift?

A.   No, ma'am, I don't know.

MS. ROGAN:  That's all my questions.  Thank you.

THE COURT:  Redirect?

MR. PORTER:  I have no redirect.  Your Honor, this witness is available and we would ask that he be put on call.

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

THE WITNESS:  Thank you, sir.

[The witness stepped down from the stand.]

MR. PORTER:  Your Honor, Mr. Smeal is going to be handling the next portion of the state's case.  I have a matter that I must attend downstairs, if I could be excused.

THE COURT:  Yes, sir.

MR. SMEAL:  The state calls Mary Ann White.

[The witness was called to the courtroom.]

THE COURT:  Ms. White, if you'll take the stand and be seated, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  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:  I do.

Whereupon,

     MARY ANN WHITE

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.   Mary Ann White.

Q.   How are you employed, Ms. White?

A.   I'm a senior crime scene technician with Gwinnett County police department.

Q.   How long have you been so employed?

A.   I've been with the department for almost twenty years.  I've been in crime scenes for about fifteen.

Q.   What are your duties in the area of crime scene technician?

A.   Part of my duties involve going to crime scenes, usually with other technicians to assist them.  I supervise a shift, and we do photography, color lab work, fingerprints, and -- and crime scenes.

Q.   Okay.  Have you had training in that area?

A.   Yes, I have.

Q.   Would you briefly describe for the jury what your training has been in the area of crime scene technology?

A.   Well, in addition to the 196 hours that was required for me to be certified by the state of Georgia, I've attended other schools in crime scenes and fingerprints, including administrative latent fingerprint school at the FBI Academy in Quantico, Virginia, in 1984.  I also attended a forensic photography school also at the FBI Academy and a school regarding detecting blood at the crime scene at Valencia Junior College in Orlando, Florida.

Q.   How many crime scenes have you responded to during your career?

A.   Thousands.  I couldn't even give you a number.

Q.   Okay.  Have you collected and analyzed fingerprints during the course of your employment?

A.   Yes, I have.

Q.   On how many occasions?

A.   Again, I couldn't even give you an estimate, I mean, it would be in the thousands.

Q.   All right.  Are you familiar with the various techniques to examine -- to collect and examine fingerprints?

A.   Yes, I am.

Q.   Technician White, directing your attention to April 16, 1993, did you respond to the Gwinnco Muffler Shop on Peachtree Industrial Boulevard with respect to a reported homicide?

A.   Yes, I did.

Q.   Okay.  Do you recall what time you arrived there?

A.   I believe it was around 9:55 in the morning.

Q.   Okay.  And were there any other crime scene technicians there at that time?

A.   Yes.  Technician Judy Graham was with me.

Q.   Okay.  Did you go to the scene together?

A.   Yes, we did.

Q.   And what were your duties that morning?

A.   I was there to assist Technician Graham, and I videotaped the scene and assisted her in taking measurements of where the car was located.

Q.   Okay.  Would you describe generally the scene as you arrived?

A.   When we arrived, I observed a Lincoln Continental, brown, in the driveway of the muffler shop.  The left front tire was flat.  The driver's window was partly down.  The windshield wipers were not -- they were in an up position.  In the front seat, there was the body of a white female wearing a red, white, and blue wind suit, and she was slumped over towards her right.

Q.   Were there other officers already on the scene?

A.   Yes.

Q.   Had the car been secured at that point?

A.   Yes, it had.  It had been roped off with crime scene tape.

Q.   Okay.  Do you know who put the crime scene tape there?

A.   No, I don't.

Q.   Did you divide responsibilities with Technician Graham?  I believe you said you did some things, she did other things.

A.   That's right.  I did the videotape and she took 35 millimeter photos.  And the rest of the time, we pretty much worked together.

Q.   With respect to the video, had you operated that video machine before?

A.   Yes, I had.

Q.   Are you trained to operate that type of machine?

A.   Yes, I am.

Q.   What type of machine was it that day?

A.   It was an RCA camcorder.

Q.   Okay.  Is that RCA camcorder, or was it that day, capable of recording video images?

A.   Yes, it was.

Q.   Okay.  Did the machine appear to be operating correctly?

A.   Yes.

Q.   Technician White, I am handing you what's been previously marked for identification purposes as State's Exhibit 101.  Can you identify that item, that bag and the contents of that bag?

THE COURT:  Let me ask a moment.  I show 101 as having been previously used.  101 was the pawn agreement, I show.

MR. SMEAL:  Your Honor, I believe that the Court is correct.  I would ask that this be marked at this time as State's 102.

THE COURT:  All right.  Go ahead, please.

          [State's Exhibit Number 102 was marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Let's start over.  I'm handing you what's been marked as State's Exhibit 102.  Can you identify that item, please?

A.   Yes.  This is the videotape that I took that day.  I marked it with my initials and the date.

Q.   Okay.  Are those your initials that appear on this cassette?

A.   Yes.

Q.   With the date of 4/16/93?

A.   Yes.  And the victim's name.

Q.   Okay.  And the bag that item was in, is that also marked in your handwriting?

A.   No.  That's Judy Graham's handwriting.

Q.   It indicates that you recovered it, however?

A.   That's right.

Q.   Have you had a chance to review that videotape prior to today?

A.   Yes, I've watched it.

Q.   Okay.  And do the video images recorded on that tape fairly and accurately depict what you saw at the scene on the morning of April 16?

A.   Yes, they do.

Q.   All right.  Does the tape appear to have been altered or edited in any fashion?

A.   No.

MR. SMEAL:  Your Honor, at this time, we would move to admit State's 102 and would ask permission to show that videotape to the jury.  It is approximately two minutes in length.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I believe the state's laid a proper foundation for the tape.  We wouldn't object to it.

THE COURT:  I believe so.  It's admitted without objection.  Go ahead and set it up, please.

[Pause in proceedings during setup of equipment]

MR. MOORE:  Your Honor, with the Court's permission, the state has agreed to let us sit at their table where we can see it.

THE COURT:  Yes, sir.  Go ahead, please.  Can you see the screen, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

[Whereupon, the videotape was played.]

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

MR. SMEAL:  Thank you, Your Honor.

[Pause]

MR. MOORE:  I'm ready, Your Honor.  I was just asking if they'd keep that just in case the -- the witness didn't look at it.  In case she didn't remember anything and we need to show it again for her to refresh her memory.

THE COURT:  Well, I've been thinking about it myself, Mr. Moore.  If you want to use it on cross-examination, we'll set it back up and replay it again.

          MR. MOORE:  She's going to keep it outside.

THE COURT:  All right.  Yes, sir.

BY MR. SMEAL:

Q.   Technician White, was the victim's car moved that day?

A.   Yes, it was.

Q.   And where was it moved to?

A.   It was moved to the airport to a hangar where we could get it inside to process it.

Q.   Do you recall approximately what time it was moved?

A.   I don't remember exactly what time the wrecker got there.  I believe we arrived at the hangar at around 11:30.

Q.   All right.  Would you describe the condition, if you can, of the left front tire of that vehicle?

A.   Well, it was completely flat and it appeared to have a cut in it.

Q.   What was the purpose of moving the victim's car at that time?

A.   Well, it was -- it had been raining quite hard the night before and it was very windy out and we needed to get it indoors where we could process it for fingerprints.

Q.   And was it processed at that second location, the hangar?

A.   Yes, it was.

Q.   Okay.  What was done to the vehicle at that point?

A.   We processed the outside of the vehicle with black fingerprint powder and the inside was done with super glue fuming.

Q.   Describe that process for the jury, please.

A.   What we do is -- it's super glue that contains cyanoacrylate, and it's heated, and the vehicle is sealed up and we put it in a can on a light bulb and the fumes fume and it smokes and it leaves a white residue wherever there's fingerprints.

Q.   Was the tire removed at that time?

A.   Yes, it was.

Q.   Was that done in your presence?

A.   Yes, it was.

Q.   Was Judy Graham also present?

A.   Yes, she was.

Q.   What was done with the tire after its removal?

A.   Technician Graham and I loaded it into the crime scene vehicle so that we could take it to headquarters and secure it.

Q.   Okay.  And was it taken to headquarters?

A.   Yes, it was.

Q.   And was it secured?

A.   Yes, it was.

Q.   Where was it secured; do you recall?

A.   It was secured in rooms that we used to use as holding cells.  It was locked and sealed with evidence tape.

Q.   Were there any latent fingerprints recovered from the inside of the victim's vehicle?

A.   Yes, there were.

Q.   And have you examined those fingerprints?

A.   Yes, I have.

MR. SMEAL:  Your Honor, at this time, the state would be offering Technician White in the area of fingerprint collection and examination to offer an opinion as to whether the latent prints could be compared to any other prints.

THE COURT:  Okay.  Are you offering her as an expert?

MR. SMEAL:  In that area, yes, sir.

THE COURT:  Did you want to voir dire the witness, Mr. Moore?

MR. MOORE:  Your Honor, we'd allow the Court to make that determination.

THE COURT:  The Court finds her qualified.  Go ahead, please.

BY MR. SMEAL:

Q.   Did you collect the latent fingerprints that were recovered inside the vehicle?

A.   I collected three of them and Technician Graham collected one.

Q.   And where were they recovered from in terms of the interior of the car?

A.   Three of them were on the inside of the passenger door behind the driver's door, and the other one, I believe, was from the front passenger -- inside the front passenger door.

Q.   Okay.  And have you examined those latent fingerprints?

A.   Yes, I have.

Q.   If you could digress for a moment, Technician White, and explain to the jury what is necessary for there to be a comparison of latent fingerprints.

A.   The skin on the palms of your hands and the soles of your feet is different from what's on the rest of your body.  It has ridges.  And these ridges contain small sweat pores.  And when you touch an item, especially a smooth item, it leaves the impression, from the moisture of your hand, it leaves the impression of those ridges.  The ridges that run through your fingers are not continuous.  They're broken and sometimes they abruptly end or they -- one ridge may divide into two and then even go back together and make one ridge again.  Where they divide or where they abruptly end are called points.  And when you look at a fingerprint, I need a certain number of those points --

MR. MOORE:  Your Honor, we have an objection at this point.  Might we approach the bench?

THE COURT:  Yes, sir.

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

MR. MOORE:  Your Honor, we've got the same problem with this.  She's provided us with no information about any examinations she's done with these prints or anything.  If she's about to testify and give opinions about them, the DA's not provided us with any reports regarding what she's going to testify to either.

THE COURT:  Mr. Smeal?

MR. SMEAL:  Your Honor, first of all, the defense, I believe, was given an opportunity to examine those fingerprints.  And, second of all, she's going to basically be testifying that they were not usable prints, so there is no evidence linking these prints to anybody including the defendant.  It's not inculpatory information.  It's not exculpatory information.  It's just something that they were not able to be processed.  There was no written report as to that.  I believe the defense has been aware of that and they were allowed to examine the prints.  In fact, they had a fingerprint expert, I believe, examine them.

MR. MOORE:  Not these.  No, we had to -- the money is the one we examined.

MR. SMEAL:  I thought they did both.

THE COURT:  Have these prints been furnished?

MR. MOORE:  We had the prints, Your Honor.  We knew about them.

THE COURT:  These prints?

MR. MOORE:  When did we get a copy of these?

MS. ROGAN:  It was like on Thursday.

MR. MOORE:  Thursday of last week we received a copy of them.

MS. ROGAN:  All we got was a report that said that there were prints lifted but never tested.  That was the report.

          THE COURT:  Mr. Smeal?

MR. SMEAL:  Well, Your Honor, the state takes the position that they have been provided and they are    not --

THE COURT:  If they're provided, I think that's equivalent to a report itself.  Well, you say, okay, here's the prints, here's the whatever.

MR. MOORE:  Your Honor, they weren't provided --

THE COURT:  And that in itself may be tantamount to a report, but I guess we've got a ten -- you're saying they've got a ten-day problem no matter what.

MR. MOORE:  Yes, sir, Your Honor, they didn't provide them until after the trial had started, to the middle of the trial, and there's no reason in this case whatsoever for them not to provide them earlier if they intended to use them.

MR. SMEAL:  Your Honor, what she's testifying is that it wasn't -- they weren't able to do any testing at all, so there was not a test done.  No comparison was ever made.

THE COURT:  Okay.

MR. SMEAL:  It is the same type of testimony that a gun was recovered, but it was so rusty, we couldn't process the gun.

THE COURT:  Okay.  So her testimony is going to be saying they didn't get enough points to make a test.

MR. SMEAL:  A test.

MR. MOORE:  She's going to give her expert opinion, Your Honor, that there's not enough there to make a determination, and we weren't notified they were going to introduce scientific evidence of that nature.

MR. SMEAL:  It's not a scientific test, Your Honor.

THE COURT:  What does the rule say constitutes a scientific report?

MS. ROGAN:  I have the section of the statute --

THE COURT:  I don't have that section handy.  Do you have the Code?

MS. ROGAN:  It's not just a regular report.  It's testimony as well, I believe.

THE COURT:  Well, I understand it doesn't have to be in writing, but -- all right.  So what are you saying now, Mr. Moore?

MR. MOORE:  Your Honor, we were not provided any scientific reports or any indication the DA intended to use the report.

THE COURT:  I don't think that's a -- it seems to me that's a non-report.  It says we've looked at it and we could not evaluate it to make a determination and that's just what we did.

MR. MOORE:  Your Honor, that's her expert opinion -- I mean, evaluation, negative or positive.  You qualified her as an expert.  She could not testify if she wasn't an expert.

MR. SMEAL:  Your Honor, the expert opinion is not the same as whether a test was done.  Her expert opinion is that she looked at this and they couldn't do anything with it.  It's not a test.  It's not a report.

          THE COURT:  Okay.  So her testimony is just going to be 'we looked at it and we could draw no conclusions'?

MR. SMEAL:  Right.

MR. MOORE:  Your Honor, that's not what the report said.  The report says she drew the conclusion it was a child's fingerprints.

MR. SMEAL:  Well, she can be cross-examined on that --

MS. ROGAN:  The report just says that there was no test ever done.  There clearly was some examination done.

MR. MOORE:  Maybe they told us that when you asked about it that they said it was a child's fingerprints on it.

THE COURT:  I remember it being an issue.

MS. ROGAN:  That was testified to.

THE COURT:  Was there ever any conclusions?

MR. SMEAL:  No, Your Honor.

THE COURT:  Well, what was it about the child's fingerprints?  I remember that.

MR. SMEAL:  Judy Graham testified that she believed that the prints were small and may have been a child's fingerprints.

MR. DAVIS:  Which is not a scientific test.

MR. SMEAL:  Which is not a scientific test or conclusion.  That's just an observation of some physical evidence.

MR. MOORE:  When an expert wants to give their opinions, they cannot be --

THE COURT:  Well, does that say every observation by an expert is a report?

MR. MOORE:  Your Honor, if the state wants to use -- from our position, they have to put us on notice if they want to use their experts.

MR. SMEAL:  Your Honor, it's equivalent to someone picking up the rusty gun and saying it was so rusty we could not process it --

MR. MOORE:  That was not an expert.  That was not an expert.

THE COURT:  Yeah, well, even so, if you have an expert that says, well, we don't have any conclusions, you know, we didn't have enough evidence to decide, is that a scientific report?

MR. MOORE:  Our position is that it is, Your Honor.  Whether it's negative or positive, it is.

THE COURT:  I don't think it is.  I don't think it is.  If that's her testimony, if she's going to testify they looked at them and they couldn't draw any -- they didn't have enough material to work with to identify the fingerprints, I'll allow it.  I don't think that's objectionable, Mr. Moore.  Objection's overruled.  Go ahead, please.

[Bench conference concluded.]

THE COURT:  Just a moment, Mr. Smeal.  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, I believe when we stopped, you were explaining how a certain number of points are necessary on a latent fingerprint in order to do a comparison; is that correct?

A.   That's right.  I personally prefer at least eight points and --

Q.   And with respect to the latent fingerprints that were recovered from the interior of Emogene Thompson's car, were there enough points present to make a fingerprint comparison?

A.   No, there weren't.

MR. SMEAL:  Your Honor, I would ask that this item be marked as the next state's exhibit.  I believe that's 103.

[State's Exhibit Number 103 was marked for identification by the court reporter.]

THE COURT:  Is the bag being marked as a separate exhibit or is this all together one exhibit?

          MR. SMEAL:  It's all together, Your Honor.

THE COURT:  Okay.

MR. SMEAL:  There are contents in the bag.

BY MR. SMEAL:

Q.   Technician White, were there any projectiles recovered from the vehicle at the hangar that day?

A.   Yes, there was one.

Q.   Okay.  And who recovered that?

A.   I did.

Q.   Who found the item; do you recall?

A.   I believe Technician Graham found it.

Q.   And where was that located inside the vehicle?

A.   It was on the passenger floorboard in the front.

Q.   I'm handing you what's been marked as State's Exhibit 103 and would ask you if you can identify this item and the contents therein.

A.   Yes.  This is the projectile that I recovered on the -- 4/16.

Q.   Was that --

THE COURT:  Mr. Smeal, why don't you mark that or its container as a separate exhibit so that if it's examined, passed around, or whatever, if it gets lost out of the bag, we'll all going to wonder where it goes.

MR. SMEAL:  Yes, sir.

MS. ROGAN:  We'd appreciate the opportunity to see those.

THE COURT:  All right.  Show it to defense counsel, please.

MR. SMEAL:  Your Honor, I'd ask the record to reflect that State's Exhibit 103 was a paper bag.  I would ask at this time that a second paper bag contained therein be marked as State's Exhibit 104, that a plastic bag contained therein be marked as State's Exhibit 105, and that a canister containing a projectile be identified as State's 106.

[State's Exhibit Numbers 104, 105, and 106 were marked for identification by the court reporter.]

THE COURT:  All right.  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, once again, I'm handing you what's been marked now as State's Exhibit 106.  Can you identify that item?

A.   Yes.  This is the projectile that I recovered on 4/16/93.

Q.   That appears to be contained in some type of small, plastic container; is that correct?

A.   Yes.  Right.

Q.   And can you identify State's Exhibit 105?

A.   This is a plastic evidence bag.  It has my handwriting on it and this is what I had put the canister down in prior to transporting it to the crime lab.

Q.   All right.  When did you transport that item to the crime lab, ma'am?

A.   I took it down there on 4/19/93.

Q.   And between the recovery date of 4/16/93 and the time you transported it to the crime lab on 4/19/93, where was that item kept, if you know?

A.   It was locked and sealed in a -- in one of our holding cells.

Q.   Was that a holding cell that the crime scene technician unit utilizes?

A.   Yes.  There's six of them.

Q.   And did you yourself transport that item to the crime lab?

A.   Yes, I did.

Q.   And do you recall who you turned that item over to at the crime lab?

A.   I gave it to Kelly Fite.

Q.   During the time that projectile was in your custody and control, did you do anything to it to alter its condition?

A.   No, I didn't.

Q.   Directing your attention to 4/20/93, 1993, did you again have occasion to examine the victim, Emogene Thompson's, vehicle?

A.   Yes, I did.

Q.   What was the purpose of that examination?

A.   We needed -- we were looking for another projectile.

Q.   Had you discussed the case with the lead investigator, Jack Burnette, at that time?

A.   Yes, I had.

Q.   And did he instruct you to look for a second projectile?

A.   Yes, he did.

MR. SMEAL:  Your Honor, at this time, I would ask that a brown paper bag be marked as the next state's exhibit, that's 107, that a second paper bag be marked as State's 108, that a third brown paper bag with writing on it be marked as State's 109, and that a container, plastic container, be marked as State's 110.

[State's Exhibit Numbers 107, 108, 109, and 110 were marked for identification by the court reporter.]

THE COURT:  All right.  Has defense counsel seen them?

[Mr. Smeal presenting]

BY MR. SMEAL:

Q.   Technician White, I'm handing you what's been previously marked for identification purposes as State's Exhibit 110.  Can you identify that item, please?

A.   Yes.  This is the projectile that I recovered from Ms. Thompson's vehicle on 4/20/93.

Q.   Okay.  Does it have your writing on it?

A.   Yes, it does.

Q.   And is that projectile also contained within a small plastic container?

A.   Yes, it is.

Q.   I'm showing you what's been marked as State's 109.  Can you identify that item, please?

A.   Yes.  This is the paper bag that I put the canister in, and this is my handwriting.

Q.   Where was that item found, ma'am?

A.   It was found underneath the front passenger seat.  I actually had to remove the seat in order to find it.

Q.   How did you remove the seat?

A.   I used ratchets and undid all the bolts and things and we pulled it out.  When I flipped it over -- the seat has a small lip on the front, and when I flipped it over, the projectile was laying there.

Q.   And you recovered that item at that time?

A.   Yes, I did.

Q.   And what did you do with it?

A.   I took it up to the crime scene unit, bagged it, and took it to the property room.

Q.   During the time that item, that projectile, was in your possession, did you do anything to alter its condition?

A.   No, I didn't.

Q.   Directing your attention, ma'am, to April 29, 1993, did you have an occasion to examine a Gwinnett County police vehicle, Number 197?

A.   Yes, I did.

Q.   I'm showing you what's been previously marked and admitted as State's Exhibit 75.  Can you identify that photograph?

A.   This is a photograph of Gwinnett County Unit 197.  I took this photograph myself.

Q.   What was the purpose in examining police vehicle 197 that day?

A.   We were asked to do some presumptive blood tests and to look for a car wash receipt.

Q.   And where was that vehicle when you first saw it on April 29?

A.   It was parked out at the side of the building in the detective division parking lot.

Q.   And do you know whether or not it was locked at that time?

A.   It was locked.

Q.   And did someone have to obtain a set of keys to open the vehicle?

A.   Yes.

Q.   And who did that?  Was it yourself or someone else?

A.   No, it was someone else.

Q.   Who was it?

A.   Technician Nancy Jenkins.

Q.   Okay.  Were you present when she obtained the keys and opened the vehicle?

A.   I was present when she opened the vehicle, but not when she obtained the keys.

Q.   And after the vehicle was opened, what happened next?

A.   Well, we just did a brief search looking for the car wash receipt.

Q.   And was that found?

A.   No, it wasn't.

Q.   Was anything found at that time?

A.   I found a note on a yellow piece of paper from Sergeant Winderweedle to Officer Chapel asking him to call Emogene Thompson.

Q.   Ma'am, I'm handing you what's been -- previously been marked as State's Exhibit 74.  Can you identify that item?

A.   Yes.  This is the note that I found that afternoon.

THE COURT:  What Exhibit Number is that?

MR. SMEAL:  74, Your Honor.  I believe it's been previously been marked and identified.

BY MR. SMEAL:

Q.   And where was that note found in the car, ma'am?

A.   It was in the pursuit pack, which is a forms holder that fits over the front seat.  It has hooks that hook over the seat and it was found in one of the bottom compartments.

Q.   All right.  Did you find that item?

A.   Yes, we did.

Q.   Does that item today appear to be in the same condition that it was on the 29th of April 1993?

A.   Yes, it does.

MR. SMEAL:  I don't believe that item has been previously been admitted, Your Honor.  At this time, we would move to admit State's 74.

THE COURT:  I show it as being identified, but not admitted or offered.  Any -- are you offering it at this time?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  Any objection?

MR. MOORE:  No objection, Your Honor.

THE COURT:  State's 74 is admitted without objection.  Go ahead, please.

          MR. SMEAL:  Your Honor, I would ask permission to publish this to the jury.  It's just a single item.  I don't think it would take long and I'll continue my questions.

THE COURT:  Any objection, Mr. Moore?

MR. MOORE:  Your Honor, as long as we don't slow the trial down and we have the same rules for everybody.

THE COURT:  All right.  Go ahead, please.

[Mr. Smeal presenting to the jury]

BY MR. SMEAL:

Q.   Technician White, what was done next with respect to the vehicle?

A.   Technician Jenkins pulled the vehicle around to our old -- it was an ambulance shop at that time and secured it inside, and I went home because the presumptive test that we were going to do has to be done in total darkness.

Q.   All right.  What time of day was it when you found the note and when Ms. Jenkins moved the car around?  Do you recall approximately what time of day it was?

A.   Yes.  I found the note a little after five p.m. and about 5:30, Technician Jenkins pulled the car around back.

Q.   And you've indicated that you left at that time and came back later that day?

A.   That's correct.

Q.   Approximately what time did you return to that scene?

A.   We went back down to the ambulance shop around 19:50 hours, which is 7:50 p.m.

Q.   And describe what you saw when you returned?

A.   This vehicle was pulled inside.  We unlocked the door to the shop, went in, and unlocked the vehicle.

Q.   Who had the keys at that time?

A.   Technician Jenkins.

Q.   She was with you?

A.   Yes, she was.

Q.   Were there any other persons present at that time?

A.   No.

Q.   Did you find anything else inside the vehicle at that time?

A.   There was a large number of personal items which we removed after I photographed -- well, I photographed the vehicle and we removed the items.

Q.   Okay.  Just generally, what type of items were removed at that time?  Were there any papers that were in those items?

A.   Yes, there were.  Yes.

Q.   All right.  What did you do with respect to those items?

A.   All of the blank forms were separated out.  Anything that had any writing on it was put together and put it into a bag.

Q.   And what was done with that bag?

A.   Later that evening it was secured up in the -- in a holding cell and then later put in the property room.

Q.   Did you inventory those papers and items at that time?

A.   I didn't individually inventory the papers.

Q.   What happened next with respect to the vehicle, ma'am?

A.   After I photographed it, I began mixing Luminol, which is a presumptive blood test.  It needs to mix for a little while.  And after we mixed it, we turned out the lights and I began spraying the inside of the patrol car.  And as soon as I had something glowing, we stopped, and Ms. Jenkins got her -- got the camera set up so that we could photograph what we were seeing.

Q.   Okay.  If we could digress for just a minute.  Would you explain to the members of the jury what Luminol is and what it is used for in the crime scene context?

A.   Luminol is a presumptive blood test.  It glows in the dark in the presence of blood.  It's fairly sensitive in that it will react with one part blood to one million parts or up to a million parts of another substance.

Q.   Okay.  And is that a liquid?

A.   Yes, it is.  It's mixed with distilled water.

Q.   And you mixed the item that day?

A.   Yes, I did.

Q.   And where was it applied inside the vehicle?

A.   In the -- in the front seat of the patrol car.

Q.   And did you do that?

A.   Yes, I did.

Q.   How did you do it?

A.   I sprayed it on with a spray bottle.

Q.   And at that point were the lights on or off?

A.   They were off.

Q.   Was it -- describe the darkness.  Was it totally dark at that time?

A.   Yes, it was.

Q.   And where was Technician Jenkins at that time?

A.   She had the camera on a tripod in the passenger door of the patrol car and I was spraying from the driver's door.

[Presenting pictures to the defense]

MR. SMEAL:  Your Honor, I'd ask that this photograph be marked as the state's next exhibit.  That would be Number 111.

[State's Exhibit Number 111 was marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Ma'am, I'm handing you what's been marked as State's Exhibit 111.  Can you identify that photograph?

A.   Yes.  This is a photograph that Technician Jenkins took that night and it shows the glowing pattern of the Luminol spray.

Q.   Okay.  Does that fairly and accurately depict the interior of the car, specifically that car seat area as you saw it that night?

A.   Yes.

Q.   Okay.

MR. SMEAL:  Your Honor, at this time, we would move to admit State's 111.

THE COURT:  Any objection, Mr. Moore?

MR. MOORE:  Which was that, 111?  I mean, what was that?

THE COURT:  That was the photo of the Luminol test, I believe.

MR. SMEAL:  That was the Luminol inside the car.  I'll show you.

MR. MOORE:  We'd have no objection.

THE COURT:  May I see it, Mr. Smeal?

[Presenting to the Court]

          THE COURT:  State's 111 is admitted without objection.  What was the date that was taken?

MR. SMEAL:  April 29.

THE WITNESS:  4/29.  That's correct.

MR. SMEAL:  Your Honor, I would ask permission to have Technician White come down before the jury and just explain the photograph.

THE COURT:  Go ahead, please.

[The witness stepped to the jury box.]

BY MR. SMEAL:

Q.   Technician White, let me hold the photograph and if you could explain what is depicted on this photograph.  First of all, what was the position of the camera when this photograph was taken?

A.   Okay.  If this were the patrol car, this would be the passenger front door and Technician Jenkins had set the camera up here.  I was on the other side, from the driver's door, spraying inside the car.  And she was holding -- I was trying to hold the light shut-off with my foot and she was holding it on this side with her foot.

Q.   So the camera was located at the passenger door area?

A.   Right.

Q.   And please continue, and try, if you can, to explain what this photograph depicts.

A.   It's very faint, but this is the armrest.  It has a double armrest that comes down.

Q.   You need to back up so those jurors there can see as well.

A.   I'm sorry.  All right.  It has double armrests, one for the passenger's side and one for the driver's side.  And they were down and this is what's glowing.  And there's a little bit glowing right here on the back of the passenger's seat, just on the edge of it.

Q.   All right.  There appears to be another area glowing off to the edge of this photograph.  Can you explain that if you can?

A.   We're not sure what that is.  Luminol does react occasionally to metals and there was something metal in there, but I don't recall having sprayed over that far, but we don't really know what that is.

Q.   Please be seated.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   Technician White, as a result of that Luminol test, what was done next?

A.   Next, I did another presumptive blood test called phenolphthalein.  It's done as a three-step test.  I don't have to touch the article with the chemicals.  I used a piece of filter paper, you fold it, and just wipe it across where I had seen the glowing, and then you put one drop of alcohol, one drop of phenolphthalein, and one drop of hydrogen peroxide.  If it turns to a pink color within about three to five seconds, that's considered positive for blood.

Q.   Does that test for species of blood or any type of blood?

A.   Any type.

Q.   And did it, in fact, turn pink?

A.   Yes, it did.

Q.   What did you do next?

A.   Next, I removed the passenger's seat with the armrest attached.  I removed the armrest from the driver's side seat, and we loaded them up -- we had pulled a vehicle down and loaded them up into a crime scene vehicle to be transported up to the ID section.

Q.   Okay.  And was the car seat and armrest, in fact, transported --

A.   Yes.

Q.   -- to ID?

A.   Yes, and secured in a holding cell.

Q.   Okay.  Were they secured in the same holding cell that you've previously described?

A.   Yes.

Q.   All right.  At any time when the car seat and armrest were in your possession and control, did you do anything to alter the condition of those apart from the two tests that you've described, the Luminol test and the phenolphthalein?

A.   No.

MR. SMEAL:  Your Honor, I would ask that these photographs be identified as the state's next exhibits.

[State's exhibits were marked for identification by the court reporter.]

THE COURT:  Mr. Moore, have you seen them?

MR. SMEAL:  Yes, sir.

MR. MOORE:  Yes, Your Honor.

THE COURT:  Okay.  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, I'm showing you what's been marked as State's Exhibit 112.  Can you identify that photograph?

A.   This is a photograph of the front seat of Officer Chapel's car, Unit 197.  It was taken after I had removed the pursuit pack and personal items, but before we did any testing.

Q.   I'm showing you -- does that photograph, 112, fairly and accurately depict that scene as you saw it on   April 29?

A.   Yes, it does.

Q.   I'm showing you what's been marked as State's Exhibit 113.  Can you identify that photograph, please?

A.   This is a photograph of the passenger's seat after I had removed it, and this was taken the next day on 4/30.  This is after the application of the Luminol.

Q.   Does that fairly and accurately depict how that car seat appeared on that day?

A.   Yes, it does.

Q.   I'm showing you what's been marked as State's Exhibit 114.  Can you identify that item?

A.   This is also a photograph of that same passenger's seat with the armrest attached taken up in the ID lab on 4/30.

Q.   Does that fairly and accurately depict how that car seat appeared on 4/30/93?

A.   Yes, it does.

Q.   I'm showing you what's been marked as State's Exhibit 115.  Can you identify that photograph, please?

A.   This is a close-up of the armrest with the -- it was also taken the very next day, on 4/30, up in the ID lab.

Q.   Does that fairly and accurately depict how that section of the armrest appeared on 4/30/93?

A.   Yes, it does.

MR. SMEAL:  Your Honor, there are several items here that I would ask to have marked at this time.

THE COURT:  Go ahead, please.

[State's exhibits were marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Technician White, if you could please come down from the stand.

A.   [Witness complies]

Q.   I'm showing you what's been marked as State's Exhibit 116.  Can you identify that item?

A.   Yes.  This is the car seat, passenger's side seat, with the armrest that I removed from Unit 197.

Q.   Is that the seat that you removed on April 29, 1993?

A.   That's correct.

Q.   Is that the car seat that you did the Luminol test on?

A.   Yes, it is.

Q.   Is that in the same condition today as it was back on April 29, 1993, and I would direct your attention specifically to the left armrest of that seat?

A.   No.  There's been some cuttings taken out of it.

Q.   Were those cuttings present when you examined the seat on April 29, 1993?

A.   No.

Q.   Okay.  Apart from those cuttings, is the seat in the same condition that you saw it that day?

A.   It appears to be.

THE COURT:  Let me ask, when you say passenger's side car seat, that's the seat -- the front seat where the passenger would be sitting in the vehicle if you had a passenger --

THE WITNESS:  That's right.

THE COURT:  -- as opposed to the driver's --

THE WITNESS:  Yeah.  It had a split seat.

THE COURT:  Okay.  Thank you.  Go ahead, please.

BY MR. SMEAL:

Q.   I'm showing you what's been marked as State's Exhibit 119.  Can you identify that item?

A.   This is the armrest from the driver's side.

THE COURT:  What number is that, Mr. Smeal?

MR. SMEAL:  That is 119, Your Honor.

THE COURT:  Thank you.

BY MR. SMEAL:

Q.   Is that -- is that in the same condition it was at the time you removed it on April 29, 1993?

A.   It appears to be, yes.

Q.   I'm handing you what's been marked as State's Exhibit 120.  Can you identify that item, please?

A.   This is the bag that I had put the armrest in.  This has my handwriting on it.

Q.   Is that the bag that you secured that item in that day?

A.   Yes.

Q.   There are two other items, ma'am, and I don't believe you'll be able to identify them.  Can you identify State's Exhibit 117?

A.   No.  I'm sorry.

Q.   Okay.  And can you identify State's Exhibit 118?

A.   No.

Q.   What was the seat wrapped in that day?

A.   I wrapped it in brown kraft paper, like the white paper except it was brown.

Q.   And where was that item secured?

A.   When we got done that night, I secured it in a holding cell, and on the 30th I took it out, we photographed and wrapped it, and took it to the property room.

Q.   Ma'am, with respect to the photograph that you've previously identified as State's Exhibit 111, in which you described the glowing Luminol on the car seat, what area of the car seat would that depict?

A.   It's this area right in here.

Q.   Okay.  You can be seated.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   Did you have any further contact with respect to this car seat?  Did you do anything other than what you've described to that car seat after April 29, 1993?

A.   No, except to take it to the property room on the 30th.

Q.   And the photographs that you have described were taken the following day on April 30?

A.   That's correct.

MR. SMEAL:  Your Honor, I would ask that this be marked as the state's next exhibit and if we could mark them A, B, C, and D.

[State's exhibits were marked for identification by the court reporter.]

THE COURT:  This is 117; is that correct?

MR. SMEAL:  Your Honor, this is 121A, B, C, and D.

THE COURT:  Oh.  Okay.  Thank you.

MR. MOORE:  Your Honor, may we approach for a moment?

          THE COURT:  Yes, sir.

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

MR. MOORE:  Your Honor, Mr. Smeal's about to offer more expert testimony regarding fingerprints that we were not provided any reports, that they were going to introduce that prior to trial.  We have not gone into it, we have not cross-examined about it or anything, and we would object to any expert testimony regarding the fingerprints on these bills.

          MR. SMEAL:  Your Honor, we're in the same position with the bills as we are with respect to the latents.  These bills were first discovered, I believe, on July 28.  They were examined by this witness and she was not able to do any test on them because there are no latent fingerprints on the bills.  Counsel was present, actually, when the bills were discovered that day or a few minutes after they were discovered.  They were shown these bills.  I believe they had an expert examine the bills prior to today, so our position is that we are not offering any report or scientific report.  It's simply an opinion that it could not be processed for fingerprints.

THE COURT:  Okay.  What is she going to say?

MR. SMEAL:  She's going to say that she examined these dollar bills and there were no latent fingerprints present so no tests could be done.

THE COURT:  Okay.  She checked them for prints and found none.

MR. SMEAL:  Yes.  That's right.

THE COURT:  And your objection is that's a  report --

MR. MOORE:  Our objection is the same, that whether it's negative or positive the state can't go into it.  We may decide to go into it, but they can't go into it, and they didn't provide us with a report.

THE COURT:  Was a test done and was a formal, official test done and whatever process and they looked for prints?

MR. SMEAL:  They looked for prints and couldn't find any.  So, therefore, no comparison was done.  Your Honor, I would reiterate, once again, this item first arose on July 28, 1995, at the police station when the evidence had been laid out for the defense to view.

THE COURT:  When was the test done?

MR. SMEAL:  That same day.  It was examined the same day and they determined no prints could be obtained.  And we made this available immediately to the defense expert.

THE COURT:  Well, I guess what comes to mind is an analogy.  For example, you do a blood test for drugs, and, for example, it comes back clean, no this, no that.  Is that a scientific report that can be offered without the ten-day notice?  It seems to me to similar kind of circumstance and I'm not so sure.

MR. SMEAL:  Well, Your Honor, it's more analogous to someone looking at some blood and saying we can't test it, there's nothing to compare, there's nothing   to --

MR. MOORE:  Your Honor, it's not when an expert gives their expert opinion about it.  That's different than a lay person looking at it.

THE COURT:  Well, or perhaps even an expert.  You know, it seems to me if you've got somebody looking at a crime scene and they say, well, you know, I was looking at the marks on the door, I was looking at the blood droppings or I was looking at this and looking at this, and this is my observations.  You know, it seems to me that whether it is or it isn't something to be determined from that -- that that, you know, that that would strike me as not being a report as opposed to  circumstances, well, let's take this to the lab and let's do this kind of procedure and do this kind of evaluation to see what kind of results we'll get here.

MR. MOORE:  Your Honor, she didn't just look at these.  They put them in some kind of material and soaked them.

THE COURT:  Well, that's the point I'm making.  That's the point I'm making.

MR. SMEAL:  Your Honor, the day this item was discovered, I believe there was a conversation between Mr. Moore and Mr. Porter, in which Mr. Moore indicated that if there were any latent prints discovered, that would have to be -- that he should be told about it immediately.  Your Honor, I believe it was examined and no prints were recovered.

THE COURT:  So how does that comply?  Is there a written report?

MR. SMEAL:  No, Your Honor.

THE COURT:  If there is an evaluation, there is no written report and the defendant is notified, look, we examined it, we looked for fingerprints, and there are none, is that a notice sufficient to comply with the rule?

MS. ROGAN:  We got notice Tuesday morning,    August 1.  The jury started August 4.

THE COURT:  That's the first time you were aware of any check for fingerprints?

MS. ROGAN:  That's the first time we had the results.  We learned of the check on the 28th.

          MR. SMEAL:  They knew they were being checked the day they were found.

THE COURT:  Okay.  But the defendant was notified when as to there being no prints?

MS. ROGAN:  Tuesday morning.

THE COURT:  And that was on what day?

          MS. ROGAN:  August 1.

THE COURT:  And we started the trial when?

MS. ROGAN:  August 4.

THE COURT:  August --

MR. DAVIS:  We started jury selection on the 6th or so.

MS. ROGAN:  No, it was the 4th.  That was the day that we began in court.

THE COURT:  Well, I guess that's another issue is when is the trial in this case.  Issue wasn't joined until later on when we were striking the jury, everybody stipulate that we don't have -- issue is not joined at this point, we were going to see if we can get a jury, and if we can't, then we've got a venue problem; if we can, then we join issue and proceed on.  When is the trial in this case?

MS. ROGAN:  We invoked the rule of sequestration as of the 4th.

THE COURT:  I don't think the rule of sequestration is connected with anything.

MR. DAVIS:  We invoked the rule of sequestration for all sorts of evidentiary hearings going back a year.

MR. SMEAL:  Your Honor, I would just reiterate that obviously the ten-day rule could not have been complied with, assuming that we had a scientific report here.  The very day the evidence was discovered they were on notice that they were being checked for latents.

THE COURT:  Okay.  All right.  Notice was given when?

MR. MOORE:  They gave us notice on August 1.

THE COURT:  Okay.  And when was issue joined in this case?

MR. DAVIS:  One week ago today, I think.

THE COURT:  The 21st?

MS. ROGAN:  Yes.

MR. SMEAL:  So that's a twenty-day period, and I would reiterate that their expert has examined this item.

MR. MOORE:  Your Honor, we contend the trial began when we started selecting a jury, because we were in court every day from that time on, and I don't   think --

THE COURT:  Well, I understand, but -- I don't know.  It's an interesting legal question.

MR. MOORE:  Part of the ten-day rule is to give time to examine into whatever needs to be done, and if you say the trial doesn't start until you're halfway through it because jury selection was half of it, then that doesn't -- I don't think that was the intent of the rule, and everybody agreed that the reason the issue wasn't being joined, the only reason, was in case we couldn't get a jury.

MR. SMEAL:  Your Honor --

THE COURT:  But the issue being we may have a trial and we may not.  If we can get a jury, then we're going to have a trial.  If we can't get a jury because of the publicity, then we don't have a trial, and we're going to have to go somewhere else.

MR. MOORE:  Well, Your Honor, we did not intentionally waive any right that we may have had by trying to --

THE COURT:  Oh, I understand that, but, you know, I think the question is when -- legally when does the ten days operate in this case?

MR. SMEAL:  Your Honor, it's always discretionary with the Court to deal with newly-found evidence with respect to which the ten-day rule cannot be complied with.  The state would submit that the exercise of that that discretion should at least in part find no prejudice to the defendant.

THE COURT:  Okay.  But you knew on -- the state knew on the 1st; right?  The state knew on the 28th.

MR. SMEAL:  Some time between the 28th and the 1st, I believe we were informed of the results.

THE COURT:  Okay.  And the defendant was notified on the 1st.

MR. MOORE:  On the 1st, Your Honor.

THE COURT:  Objection's overruled.  Go ahead.

[Bench conference concluded.]

THE COURT:  Go ahead, please.

BY MR. SMEAL:

Q.   Technician White, I'm handing you what's been marked as State's Exhibit 121A, B, C, and D.  Can you identify those items?

A.   Yes.  These are four one hundred dollar bills, and I received these from Sergeant Lee on July 28 of this year and was asked to process them in an attempt to obtain fingerprints.

Q.   And prior to processing those items and, I'm not asking you to testify to what anyone told you, but did you consult with other agencies prior to examining those bills?

A.   Yes, I did.

Q.   Which agencies did you consult with?

A.   I called the Georgia State crime lab and the FBI.

Q.   And did you process those items in an attempt to see whether there were any latent fingerprints present?

A.   Yes, I did.

Q.   And how did you do that?

A.   In the first process that I used is called DFO and it -- it's used with -- it's a chemical process, first of all, and it reacts with an amino acid that's left behind in perspiration.  After I had used the DFO on them, we looked at them under the luma light which is an alternate light source.  I used two different lenses.  The 470 nanometer lens and the 570 nanometer lens to see if any fingerprints would fluoresce and none did.

The next process that I used is called ninhydrin, and it also reacts with amino acids.  It -- the prints would come up and turn purple, but you don't have -- you can see it in just regular room light.  And I processed it with that and steamed the bills because moisture helps, helps bring up the prints, and got nothing.  So I then hung them in my locker for the weekend because occasionally with ninhydrin, especially, you'll find the prints will come up a day or two later.  And by Monday morning, I still had nothing.  So I used one last chemical process called physical developer, and it reacts with the salts in the perspiration, and I still got nothing.

Q.   And do you recall what date you completed that initial examination of those bills?

A.   It would have been July the 31st of this year.

Q.   Did those items, State's Exhibit 121A, B, C, and D, do those appear to be in the same condition today as when you examined them on July 28 through July 31?

A.   Yes, they do.

MR. SMEAL:  Your Honor, I don't believe I have any further questions at this time.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, cross-examination may be a while.  Can we take a short break?  Ms. Rogan's --

THE COURT:  We'll take a recess.  We're due for one.  Let's take fifteen minutes.  If the jurors want to get something to drink, make that available.  We'll take fifteen minutes.  If you'll leave your pens, pads, and notes in your seats, they'll be waiting on you when you return.

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

THE COURT:  You can come down, please.

[The witness stepped down.]

THE COURT:  Anything else at this point,        Mr. Smeal?

MR. SMEAL:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  We'll take fifteen minutes.

[Break taken]

THE COURT:  Is the state ready?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  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. Smeal?

MR. SMEAL:  I believe Mr. Moore --

THE COURT:  All right.  Mr. Moore, go ahead, please.

MR. MOORE:  I believe he's finished his direct examination, Your Honor.

THE COURT:  All right, sir.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Officer White, my name is Johnny Moore.  I have a few questions I'd like to ask you.  Maybe I shouldn't say officer.  Are you a sworn law enforcement officer?

A.   No, I'm not.

Q.   Okay.  Technician White, then, I'm sorry.  Now, you've participated in the securing the crime scene and searching the area where the crime occurred?

A.   I went to the crime scene that morning.  The vehicle was already secured.

Q.   And was it your understanding when you arrived, that when you and Ms. Graham arrived, that nobody had bothered anything, had left it the way they found it?

A.   That was my understanding.

Q.   That's what they're supposed to do, isn't it?  They're supposed to wait until you get there, the evidence technicians, before they move anything or change anything?

A.   Well, unless there's some chance that the person may still be alive.  I mean, of course, they would allow the EMT's in.

Q.   Oh, of course, yeah.  I mean, you couldn't -- other than that, they're supposed to leave the crime scene intact until the technicians get there; is that correct?

A.   That's correct.

Q.   So that you can gather any evidence that might be for future use?

A.   Correct.

Q.   Okay.  Now, there was some crime scene tape around the vehicle there that appeared to be around the tires and around -- was that what was considered the crime scene area?

A.   Yes, sir.

Q.   Okay.  And was anything outside of that outside of the crime scene area?

A.   Yes.  That's correct.

Q.   Okay.  Now, was the area, surrounding area there, the grass, the trees, in the background there where you could see them and everything, was any of that area searched?

A.   Not while I was there.

Q.   Okay.  Did you or Technician Graham search that area for any weapons or any pocketbook or anything like that?

A.   No, we didn't.

Q.   Do you know if anybody else did?

A.   I don't know.

Q.   Okay.  Would that normally be something that you would do as technicians if it was done?

A.   Occasionally.  If it's a large area, usually they get a group together to do the searching.

Q.   Okay.  And did you see any group up there searching this area?

A.   No.

Q.   Now, the video that you shot, when was that taken, at what point in time?

A.   That morning when we arrived on the scene.

Q.   Okay.  Was that before you started collecting your evidence or was that afterwards?

A.   It was before.

Q.   So that was taken before you disturbed anything?

A.   Correct.

Q.   Okay.  Now, looking at the video, it appeared to me that the keys, there was a set of keys lying on the floorboard, somebody -- were you taking the video?

A.   Yes, I did.

Q.   Okay.  You zeroed in on those right toward the end there, some keys; do you recall that?

A.   No, I don't.

Q.   And it appeared that the ignition, the keys were not in the ignition; do you recall that?

A.   No, I don't.

Q.   Now, there are various switches and things on the vehicle.  Do you remember the position of any of them?

A.   The ignition switch was on.  The motor was not started, but it was tilted forward.  You know, just -- like -- just before you would switch it to start.

Q.   Okay.  Were the keys in the ignition?

A.   I thought they were.

Q.   How were the light switches turned, signals, parking brake, anything like that, that you observed?

A.   The lights were not on, I don't believe.  I don't know about the turn signals.

Q.   What about the brakes?

A.   I don't know.

Q.   And do you know anything about the position of the gear shift or anything?

A.   I don't recall.

Q.   Now, you testified about some prints that were found in the car.  Where were those found at?

A.   Three of them were found on the passenger door behind the driver's door.  And the other one, I'm not a hundred percent sure, but I believe it came off of the front passenger door on the opposite side from the driver.

Q.   Okay.  And you've testified that you couldn't identify those prints?

A.   That's correct.

Q.   Were those adult fingerprints?

A.   They appear to be.

Q.   Okay.  Now, what other tests were done on the vehicle that you know of other than what you've described, other than fingerprints?

A.   None.

Q.   Was there any testing done for gunpowder residue or anything on the driver's side?

A.   No.

Q.   Could that be done?

A.   I don't know.

Q.   You're not trained in that?

A.   No.

Q.   Who does do that kind of thing if they're looking for gunpowder residue?

A.   The crime lab.

Q.   Do you know if any requests were made at the crime lab to do that?

A.   No.  I don't believe they were.

Q.   And when you found the crime scene, the driver's window was partially down; is that correct?

A.   That's correct.

Q.   Okay.  Now, who did you say removed the tire from the vehicle?

A.   We called someone from the county shop --

Q.   Okay.

A.   -- to come up --

Q.   Was the tire removed at the scene or was it removed at the police department?

A.   No, it was removed later down at the airport at the hangar.

Q.   At the hangar there?

A.   Uh-huh [affirmative].

Q.   So the vehicle was towed with the tire flat?

A.   That's correct.

Q.   Did you see the vehicle when it was put on the tow truck?

A.   Yes.

Q.   How did they go about doing it?

A.   It was a flatbed truck and they hook a chain to, I guess, the axle underneath and they just pull it up on there.

Q.   Okay.  So the flat tire was still on the vehicle when it was pulled up onto the flatbed truck?

A.   That's correct.

Q.   Okay.  And did you examine the tire yourself at that time?

A.   Well, I mean, I just looked at it.

Q.   Okay.  And what did you observe, if anything, when you looked at it?

A.   That it was flat and it appeared to have a cut of some sort in the side.

Q.   Could you describe that cut for us?

A.   It was just a cut.  I don't even remember how long it was.

Q.   Just a puncture wound?

A.   Right.

Q.   Okay.  It wasn't a big hole like the one you -- you've seen the one here in the courtroom?

A.   No, it wasn't that.

Q.   Somebody else has done that since the time you saw it?

A.   That's right.

Q.   And for the record, I was looking -- you were looking at Defendant's Exhibit Number 24, which is the tire; is that correct?

A.   Correct.

Q.   I mean state's exhibit, I'm sorry.  It's not defendant's exhibit, state's exhibit.  Who all participated in gathering the evidence there at the crime scene besides you and Ms. Graham?

A.   No one.

Q.   Okay.  And where was that -- do you know where that vehicle was stored at when it was taken to the police department?

A.   Yes.  There's a locked area out beside the evidence shed that has an overhang and it was parked under there.

Q.   Okay.  Now, you said that Nancy Jenkins got the keys to Mike Chapel's car; is that correct?

A.   That's correct.

Q.   Okay.  And where was the car parked at that time?

A.   It was parked out beside the detective division.  It was backed up to the fence.

Q.   Okay.  And the keys that she secured, were they on a key ring or --

A.   Yes.

Q.   What kind of key ring was it; do you remember?

A.   No, I don't.

Q.   Okay.  Do you remember if it had anything on the key ring besides the keys or --

A.   I don't remember.  I have an impression of a key ring with more than one key, but I don't remember.

Q.   Did it have any large thing on it -- on the key ring or do you remember that?

A.   I don't remember.

Q.   Do you know where Ms. Jenkins got the keys from or who she got them from?

A.   Yes.

Q.   Okay.  And who did she get them from?

A.   Sergeant Cline.

Q.   Now, had anything been done to secure that vehicle that you could tell prior to the time that you and Ms. Jenkins picked it up?

A.   It was locked.

Q.   Okay.  Was there any evidence tape on it or anything like that to prevent anybody from opening it or going into it?

A.   No, not that I recall.

Q.   Who made the decision to have you to search Unit 197?

A.   I believe it was Sergeant Cline.

Q.   Okay.  And what were you told to look for?

A.   We were told to do the presumptive blood tests and to search for a car wash receipt.

Q.   Okay.  And did you go through all of the papers and et cetera in the car carefully?

A.   I looked through them and separated out the things that had writing on them from the blank forms.

Q.   Okay.  And did you look in Mike Chapel's briefcase?  Was it in the vehicle?

A.   No, it wasn't.

Q.   It was not in the vehicle?

A.   No.

Q.   Do you know where it was?

A.   No.

Q.   I'm going to show you a photograph that's marked State's Exhibit Number 112 and ask you if you can identify that photograph?

A.   This is the photograph of the -- that I took on 4/29/93.  It's a photograph of the interior, the front seat, of Unit 197 after I had removed the pursuit pack and most of the personal items.

Q.   Okay.  Now, other than removing the pursuit pack and personal items, did you do anything to change anything else?

A.   No.

Q.   Okay.  Does that photograph accurately reflect the way that the car looked before you started your search?

A.   Before I started the presumptive tests, yes.

Q.   Yes, ma'am.  Does that photograph accurately reflect the way it looked after you drove it around to -- where did you drive it to, ma'am?

A.   It's an -- it was an ambulance shop at that time.

Q.   Okay.  From the detective division, it was driven around to there?

A.   Right.

Q.   Okay.  And does that accurately reflect the way that it looked at that time?

A.   Yes.

Q.   Okay.  Prior to your search beginning?

A.   Prior to the presumptive blood tests.

Q.   Okay.

A.   Yes.

Q.   I'm not talking about the pursuit packs and things you said you removed.

A.   Okay.  Yes.

Q.   But you didn't change the position of the seats or anything like that before you started?

A.   I didn't.

Q.   Did anyone else, to your knowledge?

A.   I don't know.

Q.   Now, what part did Officer Jenkins play in that?

A.   She was originally handed the keys and the request was made to her and she assisted me.  She went out with me that afternoon and then she pulled the vehicle around.

Q.   Did you see her pull the vehicle around?

A.   No.

Q.   Okay.  What was the position of the armrest there before you started your test?

A.   They were up.

Q.   And had anybody moved those, to your knowledge, prior to you beginning your test?

A.   I don't know.

Q.   Now, when you did your Luminol test, did you do the underside first?

A.   Yes.

Q.   And then you pulled them down to do the -- to spray the topside?

A.   That's correct.

Q.   Okay.  Now, you'd indicated in your testimony on direct, I believe, that -- maybe if you'd come down here and show the jury, if you could.

A.   [Witness complies]

Q.   You'd indicated that there were several areas where the Luminol showed up.  Could you show us exactly where now?

A.   Well, it was basically right across here, and there was a little bit of blood right in here.

Q.   Okay.  And it's apparent that nobody's tested any of this in here?

A.   That's correct.

Q.   Nobody's cut it out or anything?

A.   No.

Q.   Did you mark that in any way so that it could be determined at a later time where you had --

A.   I can't remember whether I drew an arrow or anything or whether I just indicated on the crime lab request.

Q.   Okay.

     A.   But --

Q.   You can go back up.

A.   [Witness complies]

Q.   Now, after you finished your test and everything, where was Unit 197 secured at?

A.   In the fenced area back behind headquarters.

Q.   Do you know why it wasn't placed in the fenced area prior to your test?

A.   No, I don't.

Q.   Do you have any knowledge as to who, if anybody, had been in the vehicle prior to the time that you did your test?

A.   No, I don't.

Q.   Does the police department maintain extra sets of keys for the vehicles at the police department?

A.   I believe they do.

Q.   Okay.  In the event somebody loses theirs or something like that?

A.   I think the shop may have an extra set.

Q.   Okay.  Do you have a car issued to you?

A.   No, I don't.

Q.   Do you know whether or not when the cars are taken in for repairs and everything that the people at the shop have an extra set of keys to all the cars?

A.   They have access to a set.

Q.   One thing I overlooked, back up at the crime scene when you did your original crime scene search up at the Gwinnco Muffler, when was the scene released, what time?  Do you know?

A.   I don't.

Q.   Who released the scene?  Was that you or        Ms. Graham?

A.   I don't know.  We left following the vehicle back to headquarters.

Q.   Okay.  And who removed Ms. Thompson's body from the vehicle?

A.   The medical examiner's office.

Q.   Were you present when that took place?

A.   I was there.  I don't specifically remember them picking her out of the car.

Q.   Did they put her on a stretcher, on the ground, or --

A.   On a sheet, I believe.

Q.   On the ground?

A.   [Witness nods head affirmatively.]

Q.   Okay.  And then later, did they put her on a stretcher or something; do you know?

A.   [Witness nods head affirmatively.]

THE COURT:  You'll need to speak up with a yes or no when you respond.

THE WITNESS:  Oh, I'm sorry.

THE COURT:  Go ahead, Mr. Moore.

BY MR. MOORE:

Q.   In that search you did of Mike Chapel's vehicle, you didn't have any knowledge about what might be there, you were just following orders, is that correct, that you looked for?

A.   That's correct.

Q.   Did you inventory the personal property of Mike Chapel that was still in the car?

A.   Yes.

Q.   Okay.  Had there been another murder in Gwinnett County, like the day before or the night before?

A.   Yes, there had.

Q.   Had you worked on that also?

A.   Yes.

Q.   Who all worked on that?  Who were the officers that worked on that?

A.   I can tell you technicians.  Myself, Todd Sartain, and Lisa Washburn.

Q.   Okay.  And what time of day or night did that occur?

A.   We got the call around 3:20 in the afternoon.

Q.   Okay.  And what time was the crime scene finished up in that case?

A.   Well, it wasn't really finished.  We left that night around 12:30.

Q.   Okay.  And so you'd just been home a short time when you got called out again on this one?

A.   This one was the next one.

Q.   Okay.  Do you know who the lead investigator was on the other case?

A.   I believe it's Investigator Davis.

Q.   Was Investigator Burnette there or do you recall?

A.   I don't recall.

Q.   Are the crime scene procedures and everything still the same now as they were in 1993?

A.   For the most part.  Some things have changed.

Q.   Okay.  Now, up at the crime scene there, were people coming and going outside of the crime scene perimeter there?

A.   Some of the investigators were, yes, and the medical examiner's office.

Q.   What about the business, was it open for business?

A.   It was open, yes.

Q.   How were people getting in and out of it?

A.   No.  I don't believe anyone drove by while I was up there.

Q.   Now, this Luminol that you sprayed, do you know what kind of chemical substance that is?

A.   No.

Q.   You said it had to be mixed.  How do you mix it?

A.   It's a mixture of Luminol, sodium carbonate, sodium perborate, and distilled water.

Q.   Okay.  And does it have directions for how to mix it?

A.   Yes.  We have a formula.  We keep the chemicals already weighed out in separate bottles and just add them to the proper amount of distilled water.

Q.   Okay.  And what kind of container do you use to spray that on there?

A.   A plastic spray bottle.

Q.   Plastic spray bottle?

A.   Uh-huh [affirmative].

Q.   And is that purchased for that purpose for --

A.   Yes.

Q.   Is it used for any other purpose?

A.   No.

Q.   Now, you had occasion to participate in spraying Luminol in another police car a little later, didn't you?

A.   Yes.

Q.   Okay.  And that was J. P. Morgan's car?

A.   Yes.

Q.   Okay.  Tell the jury what you did as far as in J. P. Morgan's car.

A.   Well, I sprayed the Luminol in it and nothing fluoresced.

Q.   Okay.  Did you do the entire --

A.   Excuse me, luminesced is the correct word.  I'm sorry.

Q.   Where did you do his car at?  Did you take it to the hangar at the airport also?

A.   No, not at the airport.  I'm trying to recall where I did it.  It was down in the shop area, I believe.

Q.   Okay.  Why was Officer Chapel's car taken to the airport to do it and Officer Morgan's car was done in the shop?  Is there a reason?

A.   His car wasn't taken to the airport.  It was taken to the ambulance shop, which is attached to our shop.

Q.   Okay.  Now, wait a minute, I got confused.  Which car are you talking about now, Morgan's or Chapel's?

A.   Both.

Q.   Okay.  Go ahead.

A.   What was being used as an ambulance shop at that time was originally a hangar for helicopters.  And the helicopters, the aviation section, moved to the airport, and then they changed that portion of the shop to an ambulance shop, and that's where I did the cars.

Q.   Okay.  I guess I'd misunderstood.  I thought you said you did Mr. Chapel's at the hangar at the airport.

A.   Oh, no, I'm sorry.

Q.   Okay.  So it was there at the old hangar there at the -- in the shop there at the police department?

A.   Yes.  Ms. Thompson's car was done at the airport.

Q.   Okay.  Maybe that's where I got confused.  Now, did you do the entire car, Officer Morgan's car?

A.   I did the interior.

Q.   Okay.  Did you do the trunk or anything?

A.   No.

Q.   Did you do the trunk on Mr. Chapel's car?

A.   No.

Q.   Did you have occasion to check any of the weapons or anything in Officer Morgan's case?

A.   No.

Q.   Do you know if anyone else did?

A.   I don't know.

Q.   Did you go up to the scene when Officer Morgan committed suicide?  Did you go up there?

A.   No, I didn't.

Q.   Okay.  So you were only involved at the police department?

A.   That's correct.

Q.   Okay.  Who directed you to spray the Luminol and check Officer Morgan's car?

A.   I believe it was Investigator Tkacik.

Q.   Tkacik.  Now this seat, after you removed it from the vehicle, this State's Exhibit Number 116, where was that stored at at the police department, in a holding cell?

A.   Yes.

Q.   Okay.  And how many days had the car been sitting at the police department before you ran your test?

A.   I don't know.

Q.   Do you know the day you ran your test on it?

A.   Yes.

Q.   Okay.  And what day was that?

A.   April 29, 1993.

Q.   29th.  So, if Officer Chapel was arrested on the 23rd or 24th, then it would have been about six days before you ran your test?

A.   Yes.

Q.   And the car was parked, as far as you know, out in the sun and everything, out there by the police department; is that correct?

A.   That's correct.

Q.   And do you know whether or not -- let me put it another way.  This seat was not refrigerated or anything, State's Exhibit Number 116, prior to taking it to the crime lab, was it?

A.   No.

Q.   Now, what date did you check Officer Morgan's vehicle?

A.   I don't remember.

Q.   Do you know approximately or --

A.   Not without looking at my sheets.  I don't remember.  I'm sorry.

Q.   Was it a week or two or a month or two or --

A.   It wasn't a month or two.  It was shortly after he was deceased.

Q.   Okay.  And was it shortly after the time that you had checked Mr. Chapel's car?

A.   Yes.

Q.   Within a week or two?

A.   That would be a guess.

Q.   Okay.  It wasn't a month or two later?

A.   No.

Q.   Were you requested to check any other police cars?

A.   No.

Q.   So Officer Morgan's and Officer Chapel's were the only two that you checked, then?

A.   That's correct.

Q.   Ma'am, could you maybe come down and show the jury, if you would, how the armrest was when you started to do your test?

A.   [Stepping to the jury box]  Both of these arms -- let me get --

Q.   Sure.

THE COURT:  Mr. Moore, you may want to move that podium.

MR. MOORE:  Yeah.  I'll move the podium back here for you.

BY MR. MOORE:

A.   [Continuing]  Both of these armrests were up.  This is how it attached to the driver's side and they -- sorry -- they were both up when I began spraying, and then -- and then I flipped them down when I did this.

Q.   Okay.  And all this debris and what appears to be dust, dirt, and everything, is that the way it was when you found it?

A.   No.

Q.   Okay.

A.   The white is probably Luminol.

Q.   Okay.

[The witness returned to the stand.]

BY MR. MOORE:

Q.   Now, any of the other items that you took out of the vehicle that you said you'd made an inventory of them --

A.   Yes.

Q.   -- were any of those items checked for blood?

A.   No.

MR. MOORE:  No further questions.

THE COURT:  Redirect?

MR. SMEAL:  Just briefly, Your Honor.

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   You've mentioned that the Luminol luminesced as opposed to fluoresced.  Would you explain the difference to the jury?

A.   As I understand it, luminescence is glowing in the dark.  Fluorescence takes a light shining against it to make it show up.

Q.   So the Luminol luminesces; in other words, doesn't need a light source?

A.   That's right.

MR. SMEAL:  No other questions.

THE COURT:  Recross?

MR. MOORE:  Just one thing, Your Honor.

     RECROSS EXAMINATION

BY MR. MOORE:

Q.   Technician White, did you find any other evidence of blood anywhere in the police car, in Unit 197?

A.   No, I didn't.

Q.   Okay. 

MR. MOORE:  That's all I have.

          THE COURT:  Any other questions of this witness?

MR. SMEAL:  No, Your Honor.

THE COURT:  You can come down.  Is she going to be on call?

MR. SMEAL:  Yes, Your Honor.  We'd ask that she remain on call.

THE COURT:  Okay.  You may be recalled later, but you can come down.

THE WITNESS:  Thank you.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  The state calls Nancy Jenkins.

[The witness was called to the courtroom.]

THE COURT:  Ma'am, if you'll take the stand up here, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  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:  I do.

Whereupon,

     NANCY JENKINS

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 please spell your last name for the court reporter.

A.   Nancy Jenkins, J-e-n-k-i-n-s.

Q.   How are you employed, Ms. Jenkins?

A.   I'm a senior crime scene technician with Gwinnett County police.

Q.   How long have you been so employed?

A.   Nine years.

Q.   What are your duties as a crime scene technician?

A.   My duties are to process crime scenes by obtaining photographs, collection of evidence.

Q.   Okay.  Have you received training in that area?

A.   Yes, sir.

Q.   Would you briefly describe that training for the jury, please?

A.   I'm certified through the state of Georgia as an identification technician, where I attended six courses to obtain that.  I've also attended various crime scene processing schools over the years.

Q.   Technician Jenkins, directing your attention back to the 29th day of April, 1993, did you participate in the processing of police -- county police cruiser 197?

A.   Yes, I did.

Q.   What time that day, if you recall, did you begin that processing?

A.   It was approximately 4:30 that afternoon.

Q.   And where was the vehicle at that point?

A.   The vehicle was parked in the investigators' parking lot.

Q.   Do you know whether or not it was locked at that time?

A.   Yes, it was locked.

Q.   Did you at some point obtain keys to that vehicle?

A.   Yes, I did.

Q.   Okay.  From whom did you obtain those keys?

A.   Lieutenant Steve Cline.

Q.   Okay.  Did he hand you those keys?

A.   Yes, he did.

Q.   And once you had the keys, what did you do with them?

A.   At that time, Technician White and I went out to unit 197 to process it.

Q.   Okay.  And was the car unlocked?

A.   No, it was secured.

Q.   Okay.  How did you process it at that point?

A.   At that time, we didn't actually process it.  We observed inside for a cash receipt from a car wash at that time.

Q.   Okay.  What happened next?

A.   When we completed that, I secured the vehicle in the ambulance hangar area behind the main headquarters building.

Q.   How did you do that?

A.   I drove the vehicle into the ambulance hangar.

Q.   And what happened next?

A.   I returned to my office after securing the vehicle, and awaited for Technician White to return to headquarters that evening.

Q.   Okay.  What was the purpose in delaying the examination?

A.   We were to process the unit with Luminol and that has to be done in total darkness, so I was awaiting for her to arrive back that evening.

Q.   The building vehicle 197 was secured in, what was that building being used for at that time if you recall?

A.   The fire department was using it to service ambulances at that time, yes.

Q.   Okay.  When the vehicle was left in that building, was the vehicle locked?

A.   Yes, it was.

Q.   Do you know whether or not the building was secured?

A.   When I left the building, it was secure, yes.

Q.   What happened next?

A.   I returned to my office until Technician White came back that evening.

Q.   Do you recall approximately what time she returned?

A.   It was approximately eight o'clock that evening.

Q.   Okay.  What did you do at that point?

A.   We went down to the ambulance hangar.  Technician White photographed the unit, inventoried the contents, and we proceeded to do the Luminol test.

Q.   When you returned to the building and vehicle that evening, was the building still secured?

A.   Yes, it was.

Q.   Okay.  Was the vehicle 197 still locked?

A.   Yes, it was.

Q.   Did it appear to be in the same condition that you had left it?

A.   Yes, sir.

Q.   Did you assist Technician White in gathering any materials out of the vehicle?

A.   No, I didn't actually assist her.

Q.   What did you do with respect to the Luminol procedure?

A.   I was there to photograph if there were any results.

Q.   And who actually mixed up the Luminol?

A.   Technician White.

Q.   Okay.  Who applied the Luminol to the car seat?

A.   Technician White.

Q.   You were operating a camera at that time?

A.   Yes, sir.

Q.   Were you holding that camera or using a tripod?

A.   I had a tripod.

Q.   Where did you place the tripod when you were taking photographs of the interior in the car?

A.   The tripod was outside the front passenger door.

Q.   And explain what you observed during the Luminol application.

A.   During the application in the front seat of this unit, I observed the luminescence on the left side of the front passenger area and the passenger armrest and the driver seat armrest.

Q.   I'm showing you what has been -- previously been admitted as State's Exhibit 75.  Can you identify that photograph?

A.   This is unit 197 parked in the ambulance hangar.

Q.   Okay.  Is that the way the vehicle appeared on the date that you conducted this processing?

A.   Yes, sir.

Q.   I'm showing you what's been marked as State's Exhibit 111, can you identify that photograph?

A.   This is a photograph of the Luminol that I obtained during the process.

Q.   Okay.  Does that fairly and accurately depict what the interior of the vehicle looked like when you observed it?

A.   Yes, sir.

Q.   On the far right side of this photograph, there appears to be some additional luminescence.  Do you know what the source of that additional luminescence was?

A.   I don't know what that is.

Q.   The area to the left center of this photograph appears to have some luminescence.  Would you describe where you observed that in relation to the car seat?

A.   The luminescence that's showing here is down the left side of the front passenger seat and on the armrest.

Q.   If you could come down from the stand for one second, I would direct your attention to State's Exhibit 116.  First of all, can you identify that item?

A.   [Stepping down from the stand]  This appears to be the seat from unit 197.

Q.   Would you show the members of the jury the luminescence that you've just described and where it occurred on that seat?

A.   I observed luminescence down this area here and on the armrest here.

Q.   About where was the tripod and camera located in relation to the seat when that photograph was taken?

A.   This is the passenger seat, the left passenger seat.  I was approximately just right outside the door with the tripod, camera on the tripod.

Q.   Was it pitch black at that time?

A.   Yes, it was total darkness.

Q.   Did you use a flash for that picture?

A.   No, sir.

Q.   Please be seated.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   Following the Luminol test that day, what did you do with the vehicle, if anything?

A.   Technician White proceeded with the vehicle.  I was just present with her.

Q.   Did you still have the keys to the vehicle?

A.   I had given them to Technician White.

Q.   So you did not move the vehicle at that point?

A.   No, I did not.

Q.   Was there a -- directing your attention to this item, State's Exhibit 119, can you identify that?

A.   This is the driver's armrest from unit 197.

Q.   Okay.  Did you observe any luminescence on this item at that time and at that location?

A.   On the -- as it appears to be on the edge of that one, I also observed luminescence.

MR. SMEAL:  No further questions.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, may we approach for a moment?

THE COURT:  Yes, sir.

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

MR. MOORE:  I've got some diagrams and everything down at our office that I wanted to use.  I didn't know Ms. Jenkins was going to be coming up right away, and I'd like to have an opportunity to go get those so she can identify the places where the searches and everything took place.

THE COURT:  How long will it take to get them?

MR. MOORE:  Five minutes, I mean, or less.

THE COURT:  Okay.  We'll take no more than five minutes and pull them out and then we'll proceed on with cross.

MR. MOORE:  I'll just walk down there.  Okay.

THE COURT:  Okay.

[Bench conference concluded.]

THE COURT:  We're going to take a -- while we secure some items that are going to be used, we'll take five minutes to -- go ahead and take a short recess and then we'll come back and resume the examination of this witness. 

If you'll leave your pens, pads, and notes, they'll be waiting on you.  We'll take five minutes.

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

THE COURT:  Would you approach the bench.

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

THE COURT:  One of the things I was going to do when we were -- in conjunction with Technician White's testimony, I believe, who did the -- attempted the fingerprint test on the hundred dollar bills, was to just note for the record, Mr. Moore, that if you wish to follow up with any independent test on the bills themselves, we'll expedite that however need be and also give you the opportunity to put up any witness you want in that regard or recall that witness for cross-examination after your test, if you wish, and you can make it known, if you wish.

MR. MOORE:  Okay.

THE COURT:  Okay.  We'll take five minutes.

[Bench conference concluded.]

THE COURT:  We'll take five minutes.  You can come down if you'd like.

[Break taken]

THE COURT:  Ready, Mr. Moore?

MR. MOORE:  Yes, Your Honor.  I believe we're ready.

THE COURT:  Ready, Mr. Smeal?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  Bring the jurors in, please.

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

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

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Technician Jenkins, my name is Johnny Moore.  I have a few questions to ask you.  Now, on the date that you assisted Technician White in doing the Luminol test --

A.   Yes, sir.

Q.   -- you got the keys for the vehicle, for unit 197, from Officer Cline, did you say?

A.   Yes, I did.

Q.   Okay.  Now, the keys that he gave you, were they on a key ring or where did he get them from; do you know?

A.   I think they were on a key ring.  I don't know where he got them from.

Q.   Okay.  Was there anything unusual about the key ring?

A.   No, sir.

Q.   Did it have anything else on it besides keys?

A.   Not that I recall.

Q.   Okay.  There wasn't any sort of little metal thing, long metal thing, on the key ring?

A.   I don't remember.

Q.   Are there spare keys for different units at the police department?

A.   Yes, sir.

Q.   And where did they keep that; do you know?

A.   Vehicle maintenance area.

Q.   Okay.  I'm going to show you Defendant's Exhibits 66, 67, and 68 and ask you if you would look at these three photographs.

THE COURT:  That was 66, 7, and 8; is that correct?

MR. MOORE:  Yes, Your Honor.

THE COURT:  All right.

BY MR. MOORE:

Q.   Can you identify those?

A.   Yes.

Q.   And what are those photographs of?  And if you would, refer to them by number.

A.   This is -- 68 is the interior of the ambulance hangar.  It shows the police SWAT truck and the garage door.

Q.   Okay.  And is that a fair and accurate representation of that area?  I realize it may not look exactly the same as it did when you did the test, but is that the way it looks --

A.   Yes, sir.  Yes, sir.  Exhibit 66 shows the door leading from the hangar garage area into where the shop is located.

Q.   Okay.  And is that a fair and accurate representation of that area?

A.   Yes, it is.

Q.   Okay.

A.   Exhibit 67 shows a photograph of the garage door in the shop.

Q.   Okay.  Is that a fair and accurate representation of the shop door there?

A.   Yes, sir.

MR. MOORE:  We move to admit 66, 67, and 68, Your Honor.

THE COURT:  Any objection?

MR. SMEAL:  No objection, Your Honor.

THE COURT:  Defendant's 66, 67, and 68 are admitted without objection.  Go ahead, please.

MR. MOORE:  Your Honor, I've got Defendant's Exhibit Number 64, which is a blueprint of the Gwinnett County police department, and Mr. Smeal, I believe, has agreed to stipulate that as of 1994, the date on it, this is an accurate and correct blueprint of the police department.

THE COURT:  That's the headquarters; is that correct?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Okay.  Mr. Smeal?

MR. SMEAL:  That's correct, Your Honor.  We would reserve any right regarding whether this item goes out to the jury, assuming Mr. Moore intends to admit it.

THE COURT:  All right.  You're stipulating to its authenticity; is that where we are?

MR. SMEAL:  As of 1994, that's correct, Your Honor.

THE COURT:  Yeah.

MR. MOORE:  And we understand there may have been changes, and we'll ask the witness about that, Your Honor, any changes that may have been made since that time.

THE COURT:  So stipulated.  In other words, to the stipulation, you would pose no objection to it being used, Mr. Smeal, in conjunction with cross-examination and being shown to the jury?

MR. SMEAL:  That's correct, Your Honor.

THE COURT:  All right.  Go ahead, please.

BY MR. MOORE:

Q.   Technician Jenkins, if I could get you to come down from the stand, please.

A.   [Complies]

Q.   You had a chance at break, I believe, to look at this blueprint.  Could you point out for the jury where the -- sort of orient them to where things are, where the front door is at the police department, where the detective division is, where Mike Chapel's car is parked, and that sort of thing?

A.   Well, this is the entrance to police headquarters here. If you were to come in this door and go to the right, this would be the detective division, and unit 197 was parked outside of the detective division in the parking lot in this area.

Q.   And where did you do the -- I realize it's not showing on the blueprint, but in relation to that blueprint, where is the building where the vehicle was taken to?

A.   It's approximately behind the building in this area right here.

Q.   And where is the evidence room for the Gwinnett County police department located?

A.   This is the evidence room on this corner right here.

Q.   And where is the area where -- there's been testimony about the evidence was secured in a holding cell area.  Can you show the jury where that is?

A.   Yes.  This is the identification section and we have holding cells in this area right here. 

Q.   And where is the -- what's called the Gwinnett County morgue?  Where is it located in relation to this building?

A.   It would be behind -- outside the building, behind in this corner here.

Q.   Okay.  Is it part of the same building where the shop is where --

A.   Yes, sir.

Q.   Okay.  If you'd stay down for a minute.

MR. MOORE:  I've got Defendant's Exhibit Number 65, Your Honor, which is an aerial photograph of the Gwinnett County police department, and Mr. Smeal's had a chance to examine it, and I believe he's going to stipulate to that also; is that correct?

MR. SMEAL:  Your Honor, I would agree that this witness will say that that's a fair and accurate depiction of the roof of the police department and the building behind the police department.  I believe      Mr. Moore would agree that there's no agreement as to the position of the cars.  I don't know when this photograph was taken.

MR. MOORE:  We would certainly not contend the cars are in the same position, Your Honor.  We're using it to illustrate the parking lot and the buildings so that the jury can know where the cars were located.

THE COURT:  All right.  What is the stipulation?

MR. MOORE:  Well, I can have her authenticate it, but I understood we're going to stipulate that it was authentic for purposes of the parking lot and the buildings, not the cars, not where the vehicles were located.

THE COURT:  All right.

MR. SMEAL:  The photograph is a fair and accurate depiction of the roof of the police department and the building behind the police department.

THE COURT:  All right.

MR. MOORE:  And the parking lot, too?

MR. SMEAL:  Yes.

MR. MOORE:  Okay.

THE COURT:  Okay.  So is there any -- you're offering it to be admitted as an exhibit?

MR. MOORE:  Yes, Your Honor.  I'd tender it at this time.

THE COURT:  All right.  Any objection to its admission?

MR. SMEAL:  No, Your Honor.

MR. MOORE:  It's Defendant's Exhibit 65, Your Honor.

THE COURT:  All right.  Defendant's 65 is admitted without objection.

BY MR. MOORE:

Q.   I don't think the whole jury can see it at one time.  Maybe we can stand at one end and you can show them what was it you just testified to about where Mr. Chapel's car was.  Is this the main building at the police department?

A.   This is the main headquarters building.

Q.   Okay.  And that would be the front door right here?

A.   Yes.  This is the walkway up to the front door.

Q.   Okay.  And if you would, show the jury where     Mr. Chapel's vehicle was.

A.   This is the detective division on this end.  It was approximately where this red car is.  That's just approximate.

Q.   Okay.  Why don't you come down and do it again so the other people can see it, too?

A.   It's approximately in this area.

Q.   Okay.  Is that where you picked this vehicle up from?

A.   Yes, sir.

Q.   And show them where you drove it to then.

A.   I drove the vehicle behind this building into the garage, which is located right here.  From here to right here.    Q.   You can go back up to the stand. 

A.   [Witness complies]

Q.   In Defendant's Exhibit Numbers 66, 67, and 68 that you have here, these are the interior of that shop that you just pointed out; is that correct?

A.   Yes, sir.

MR. MOORE:  Your Honor, I believe these have already been admitted into evidence, 66, 67, and 68 -- 65.

THE COURT:  They have.

MR. MOORE:  We would like to publish them to the jury at this time.

THE COURT:  Go ahead, please.

[Mr. Moore presenting to the jury]

BY MR. MOORE:

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 69 and ask you if you would examine that.

MR. SMEAL:  May the state see that?

MR. MOORE:  I'm sorry.  I'm sorry, Mr. Smeal.  I just forgot.

[Mr. Moore presenting to Mr. Smeal]

BY MR. MOORE:

Q.   Okay.  I'll try again.  I'll show you Defendant's Exhibit 69.  Would you examine that, please?

A.   This is unit 197 as parked inside the garage area.

Q.   Okay.  And is that Officer Chapel's unit?

A.   Yes.

Q.   And is that the area where you did the search, where it's parked at?

A.   Yes, sir.

Q.   Is that a true and accurate representation of the way the car looked at that time?

A.   Yes, sir.

Q.   Okay.

MR. MOORE:  We'd move to admit State's 69, Your Honor.

THE COURT:  Any objection?

MR. SMEAL:  No, Your Honor.

THE COURT:  State's 69 is admitted without objection.  That's Defendant's 69, I'm sorry.

          MR. MOORE:  And we'd like to publish that to the jury, Your Honor.

THE COURT:  Go ahead, please.

[Mr. Moore presenting to the jury]

BY MR. MOORE:

Q.   Now, when you picked up Officer Chapel's car, did you change the position of anything or do anything to the vehicle, other than drive it around to the shop?

A.   It was -- a cursory search was done to look for a car wash receipt.

Q.   Okay.  Was that prior to moving it or after you moved it?

A.   That was prior to moving it.

Q.   Okay.  And did you do that or did you and Technician White do that?

A.   I assisted her, but she did most of the searching.

Q.   Okay.  I'm going to show you State's Exhibit Number 112 and ask you if you recognize that, if you can identify that.

A.   This was the interior, front interior of unit 197.

Q.   Okay.  And is that the way it was when you found it, when you took possession of the car?

A.   It appears to be, yes.

Q.   Okay.  And is that the way it was before you started your search?

A.   Yes, sir.

Q.   Okay.

MR. MOORE:  I believe State's Exhibit Number 112 has already been admitted, hasn't it, Your Honor?

THE COURT:  No, sir.

MR. MOORE:  It has not?

          THE COURT:  No, sir.

MR. MOORE:  Okay.

THE COURT:  I don't show it as being admitted.

MR. MOORE:  Okay.

THE COURT:  Mary, what do you show?

THE REPORTER:  I don't show it admitted either.

THE COURT:  It's not been admitted.

BY MR. MOORE:

Q.   Now, before you started to do the test and everything, what was the position of the armrest in the vehicle?

A.   I believe that it was in the up position.

Q.   Could you come down and show the jury how the two armrests were at the time you got in the vehicle?

A.   [Stepping down from the stand]  They were in this position.

Q.   But like that?

A.   Uh-huh [affirmative].

Q.   Okay.  And then when you sprayed it for Luminol, you had -- or whoever did had to pull them down; is that correct?

A.   Yes.

Q.   You can go back up, please.

A.   [Witness complies]

Q.   Now, who did you turn the keys back in to after you finished with the vehicle?

A.   I turned them to Technician White.  She had possession of the keys once we were in the hangar area.

Q.   Okay.  And do you know who she gave them back to after you finished the test on the vehicle?

A.   No, sir.

Q.   Now, was there any other area of the car tested other than the front seat?

A.   The back seat area.

Q.   Okay.  And was there any blood found in the back seat?

A.   No, sir.

Q.   Was that kind of surprising in a police car where they're frequently carrying people that may be bleeding?

A.   I'm sure there's all types of things that get in patrol cars.

Q.   Okay.  Did you do the trunk area?

A.   I don't recall.

Q.   And when the vehicle was parked there, it was locked, you said, but it was not in any way secured with evidence tape or anything like that, was it?

A.   No, sir.

Q.   Is that normal procedure if you're going to test something in the future to seal it up with evidence tape if you intend to test it in the future and be sure that nobody's tampered with it?

A.   If you were going to leave it for a long period of time.

Q.   Okay.  Would you think six days was a long period of time?

A.   I don't know.

Q.   Now, the area there where Officer Chapel's car was parked, there's a gate leading into that front parking lot there; is that correct?

A.   Uh-huh [affirmative].  Yes.

Q.   Does that gate stay open most of the time?

A.   Yes, it does.

Q.   Okay.  So you have no way of knowing who may have come and gone during the six days from the day of his arrest until you picked up the car?

A.   No, sir.

Q.   Do you know whether or not anyone else went in the car during that time?

A.   No, sir.

MR. MOORE:  Nothing further.

THE COURT:  Redirect?

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Technician Jenkins, with respect to that gate on the side of the building leading into the detective section, are there any signs to your knowledge which identify the parking lot as being a police parking lot?

A.   I believe there's a sign that says authorized vehicles only.

MR. SMEAL:  Nothing further.

THE COURT:  Mr. Moore?

MR. MOORE:  Just one thing.

     RECROSS EXAMINATION

BY MR. MOORE:

Q.   Technician Jenkins, all police department vehicles would be authorized vehicles to be in that area, wouldn't they?

A.   Yes, sir.

Q.   Okay. 

MR. MOORE:  That's all I have.  Thank you.

THE COURT:  Anything else of this witness?

MR. SMEAL:  No, Your Honor.

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

MR. SMEAL:  Yes, sir.

THE COURT:  All right.  You'll be subject to being recalled as a witness, but you can come down.

THE WITNESS:  Thank you, sir.

[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:  Have you got another short witness or is your next one going to be long?

MR. SMEAL:  It's going to be Detective Hunnicutt.  It's fairly short.

THE COURT:  Is he ready?

MR. SMEAL:  Yes.

THE COURT:  Okay.  What about after him?

MR. SMEAL:  After him will be Steve Cline.  He may be a little longer.

THE COURT:  Let's go ahead with Hunnicutt and then we'll recess at that point for an hour.

MR. SMEAL:  Okay.

MR. MOORE:  Okay.

[Bench conference concluded.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  The state calls Investigator Hunnicutt.

[The witness was called to the courtroom.]

THE COURT:  Officer Hunnicutt, if you'll take the stand up here, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  Please be seated.  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:  I do.

Whereupon,

     T. B. HUNNICUTT

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.   Detective T. B. Hunnicutt.

Q.   Would you spell your last name for the court reporter.

A.   H-u-n-n-i-c-u-t-t.

Q.   And, Detective Hunnicutt, what is your current employment?

A.   I'm employed with Gwinnett County police department, assigned to the investigation division.

Q.   Are you assigned to a particular section of the investigation division?

A.   Yes, I am.  I'm assigned to the burglary squad.

Q.   How long have you been a police officer?

A.   Seventeen years.

Q.   How long have you been assigned to the burglary squad?

A.   This time, probably three years.

Q.   Directing your attention back to April 1993, were you assigned to burglary at that time?

A.   No.  At that time, I was assigned to the repeat offender's unit, the road unit.

Q.   Directing your attention to the 24th day of April, 1993, did you assist in the execution of a search warrant that was conducted at the northside precinct in the county?

A.   Yes, I did.

Q.   Prior to the execution of that search warrant, did you consult with Sergeant Donald Stone?

A.   Yes, I did.

Q.   Do you recall approximately what time you consulted with him?

A.   It was in the early morning hours of approximately 1:32 a.m. in the morning.

Q.   And what was your purpose in consulting with Sergeant Stone?

A.   To obtain a location of the defendant's lockers.

Q.   Did Sergeant Stone point out some lockers to you at that time?

A.   Yes, he did.

Q.   Do you recall which lockers he pointed out?

A.   33, 34, 35, and 36.

Q.   Later that day, was there a search warrant executed with respect to those lockers?

A.   Yes, there was.

Q.   And were you present when that was done?

A.   Yes, I was.

Q.   Was Investigator Cline also present?

A.   Yes, he was.

Q.   Were you assisting Investigator Cline in carrying out that search warrant?

A.   Yes, I was.

Q.   And were the lockers, in fact, searched?

A.   Yes, they were.

Q.   Detective Hunnicutt, I'm showing you what's been previously been marked as State's Exhibit 122.  Can you identify that item?

A.   Yes.  That's a photo of a locker with the door open and the raincoat in the locker.

Q.   And which locker was that?

A.   Number 34.

Q.   Okay.  Were there locks on any of the lockers?

A.   Only one.  That was number 34.  It was the only one that had a lock on it.

Q.   Okay.  And was that lock removed?

A.   Yes, it was.

Q.   And how was that done?

A.   We went to the fire department and borrowed a set of bolt cutters and we cut it off.

Q.   Would you, once again, look at that photograph and identify the contents?  I think you referred to a raincoat.  Is there anything else found in that locker?

A.   In this picture there was a raincoat and a couple of tennis shoes and clothes hanger, plastic clothes hanger, that's visible in the photo.

Q.   Was the raincoat secured at that time?

A.   Yes, it was.

Q.   Who secured the raincoat?

A.   Investigator Cline.

Q.   Did you see him do that?

A.   Yes, I did.

Q.   And does that photograph fairly and accurately depict the interior of locker number 34 at the northside precinct on that date, April 24, 1993?

A.   Yes, it does.

Q.   Was that photograph taken prior to the securing of the raincoat?

A.   Yes, it was.

MR. SMEAL:  No further questions at this time.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Hello, Detective Hunnicutt.  My name is Elizabeth Rogan.  I'm one of Mike Chapel's attorneys.  You were present when the lockers at the northside precinct were searched?  Is that what you have told us?

A.   Yes, ma'am.

Q.   All right.  And Sergeant Cline was the one who was organizing the search?

A.   He was the lead investigator.  He was responsible for conducting the search.  I was assisting.

Q.   And did you search four lockers altogether?

A.   Yes.

Q.   The photograph you've identified is of just one of those lockers; isn't that correct?

A.   Yes.

Q.   In one of the other lockers, did you see a canister of film?

A.   Yes, I did.

Q.   Was that canister of film collected?

A.   Yes, it was.

Q.   Were quite a number of the articles in the lockers collected for evidence?

A.   Yes.

Q.   Do you know what became of that canister of film?

A.   No, I do not.

Q.   You never saw --

A.   Investigator Cline took it.  I don't know.

Q.   Okay.  So the last you saw it, Investigator Cline had it?

A.   He secured all the evidence.

Q.   Okay.  Is it fair to say that the lockers were in a somewhat messy condition?

A.   Typical locker.  I mean, stuff's thrown in them.  It's not organized.

Q.   In that photograph you've identified, the raincoat's just sort of crumpled down in the --

A.   Yes.

Q.   Were the rest of the lockers in a similar condition of messiness?

A.   Yes, ma'am.

Q.   Is that typical for the way police officers maintain their lockers?

A.   I don't know how other police officers maintain their lockers.

Q.   Do you have an opinion as to whether some police officers are messier than others?

A.   Definitely.  I mean, that's human nature.  Some people are more messy than others.

Q.   After viewing the lockers, do you have an opinion as to whether Mike Chapel was a messier-than-usual police officer?

A.   The lockers were messy.

Q.   Okay.  Did there come a point during this investigation when you were asked to interview or collect statements from the firemen who were at the precinct, the fire station, that adjoins the northside precinct?

A.   I don't recall it.

Q.   You don't recall being asked to get their statements?

A.   [Witness shakes head negatively.]

Q.   Do you -- were you ever asked to interview any firemen?

A.   Not that I recall.

Q.   So you, as far as you know, you don't have any knowledge of any involvement with firemen at the fire station?

A.   I'd spoken with them on several occasions.  I don't remember specifically taking a written statement from them.

MS. ROGAN:  Just one second. 

[Pause]

MS. ROGAN:  That's all I have.  Thank you.

MR. SMEAL:  Just one question, Your Honor.

THE COURT:  Go ahead, please.

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Were there any rain pants found in that same locker, locker number 34, to your knowledge?

A.   No, sir.

MR. SMEAL:  Nothing further.

THE COURT:  Recross?

MS. ROGAN:  No, Your Honor.

THE COURT:  You can come down.

MR. SMEAL:  Your Honor, I'd ask that he remain on call.

THE COURT:  All right.  You'll be subject to being recalled.

[The witness stepped down from the stand.]

THE COURT:  We're going to pause at this point for lunch.  I'll ask you to leave your pens, pads, and notes in your seats.  They'll be waiting on you when you return. 

We'll take an hour, until 1:35.  I'll remind you you've seen part of the case, heard part of the case, but not all of it.  You ought to continue to keep an open mind and there ought not to be any discussions or deliberations amongst yourselves or with anybody else.  We'll be in recess at this point until 1:35.  If you'll go with Mr. Allen, please.

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

THE COURT:  Anything else at this point,        Mr. Smeal?

MR. SMEAL:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  We'll be in recess until 1:35.

[Lunch recess]

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4540

 

 

      AFTERNOON SESSION

THE COURT:  Is the state ready?

MR. PORTER:  We're ready to proceed, Your Honor.

THE COURT:  Is the defendant ready?

MR. MOORE:  Ready, Your Honor.

THE COURT:  Bring the jury back, please.

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

THE COURT:  Call your next witness, Mr. Porter.

MR. PORTER:  Mr. Smeal's going to be handling this for the state, Your Honor.

THE COURT:  All right.  Who do you call next?

MR. SMEAL:  The state calls Steve Cline.

[The witness was called to the courtroom.]

THE COURT:  Officer Cline, if you'll take the witness stand up here, you can be seated, and Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  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:  I do.

Whereupon,

     JAMES STEVEN CLINE

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.   James Steven Cline.

Q.   Would you spell your last name for the court reporter, please?

A.   C-l-i-n-e.

Q.   What is your current occupation?

A.   I'm a lieutenant with the Gwinnett County police department.

Q.   How long have you been a police officer, Lieutenant Cline?

A.   I've been a police officer for just short of seventeen years.

Q.   Where are you currently assigned?

A.   I'm assigned to the southside precinct down off Hewatt Road in Snellville.

Q.   All right.  Directing your attention back to April 1993, were you a Gwinnett County police officer at that time?

A.   Yes, sir, I was.

Q.   What was your rank at that time?

A.   I was a detective sergeant and in April '93 I was assigned to the criminal investigations section, violent crimes unit.  That unit was responsible for the investigation of homicide assaults and sex crimes.

Q.   Directing your attention to April 24, 1993, did you assist in the execution of several search warrants relating to the murder of Emogene Thompson?

A.   Yes, sir.

Q.   And was one of those search warrants with respect to Gwinnett County police vehicle 197?

A.   Yes, sir.

Q.   Lieutenant Cline, I'm showing you State's Exhibit 75.  Can you identify this photograph?

A.   Yes, sir.  This is the unit that I executed the search warrant on on April 24, 1993.

Q.   Okay.  When you executed the search warrant on April 24, 1993, where was that vehicle?

A.   It was parked on the criminal investigations side of police headquarters in a parking lot.

Q.   And was it locked at that time prior to the execution of the search warrant?

A.   Yes, sir.

Q.   Was it locked?

A.   Yes, sir, it was.

Q.   Okay.  And who participated in the search of the vehicle at that time?

A.   Myself and then Gwinnett police investigator Diane Parrish.

Q.   And did you enter the vehicle at that time?

A.   Yes, sir, I did.

Q.   Okay.  And how did you do that?  Did you have the keys?

A.   I received the keys from Investigator Burnette and opened the car and proceeded to serve the search warrant.

Q.   Okay.  Do you recall approximately what time of day that was?

A.   It was around 11:40 a.m.

Q.   And did Investigator Burnette give you those keys with which to open the vehicle?

A.   Yes, sir.

Q.   Okay.  Did you actually open the vehicle?

A.   Yes, sir, I did.

Q.   Okay.  Would you describe generally the condition of the front seat and front passenger seat when you opened the vehicle?

A.   The front seat in -- the front seat of the driver's section was obviously open and vacant.  The passenger compartment contained a number of items, one of which was what we commonly call a pursuit pack.  A pursuit pack is a piece of molded plastic that holds police equipment, that hangs over the back of the back seat.  There were some other items, I believe, a clipboard and some other items actually sitting in the seat and then there was a briefcase sitting in the floorboard on that side.

Q.   Okay.  Where was the briefcase located?

A.   In the passenger compartment of the front seat of the car.

Q.   Okay.  I want to hand you some items and ask you if you can identify certain items.  Lieutenant Cline, I'm handing you what's been marked as State's Exhibit 123.  Can you identify that item?

MR. MOORE:  Can I look at it, Mr. Smeal?

[Mr. Smeal presenting to Mr. Moore]

BY MR. SMEAL:

Q.   Lieutenant Cline, I'm handing you again what's been marked as State's Exhibit 123.  Can you identify that item, please?

A.   Yes, sir.  This is a clipboard containing some police log sheets and on top is a yellow legal pad with some writing on it.

Q.   Okay.  And did you recover that item from police unit 197 on April 24, 1993?

A.   Yes, sir, I did.

Q.   And once again, where was that item located?

A.   It was located in the passenger area of the front seat of unit 197.

Q.   Was it actually on the seat or was it on the floorboard?

A.   Yes, sir, it was on the seat.

Q.   Okay.  And does that item today appear to be in the same condition as when you recovered it back on April 24, 1993?

A.   Yes, sir, it does.

Q.   And what did you do with that item once you had seized it?

A.   Once I seized it, I placed it into an evidence bag and placed it into an after hours evidence locker.

Q.   Now, I want to direct your attention to three days earlier on April 21, 1993.

A.   Yes, sir.

Q.   On that day, did you have another occasion to observe that clipboard?

A.   Yes, sir, I did.

Q.   What were the circumstances of that observation?

A.   At about 10:35 p.m. on the night of April 21, I had traveled to the northside precinct to speak with Sergeant Stone to see if he had received any other information regarding the murder of Emogene Thompson.  Once I went in, I met with Officer Chapel, who called me over and wanted me to see the name Dennis Shelton written on the edge of the legal pad, and this was because Dennis Shelton was a person that we had questioned earlier in the case and he had told me earlier -- Officer Chapel had told me earlier in the case that he had had contact with him, and he was demonstrating that contact by showing me the name Dennis Shelton.

          While I was looking at that, I noticed that to the left center of the page is the tag number of the victim Emogene Thompson's vehicle written, appearing to be in the same handwriting as the rest of the stuff on the legal pad, the tag number NAD917 written in that --

Q.   All right.  Did you know her tag number at that time?

A.   Yes, sir, I did.

Q.   How did you know that?

A.   Earlier on April 21, I had taken a news crew that was covering the Chapel trial back to the evidence area of police headquarters and allowed them to shoot a picture of the murder victim's car.  And at that time, I noticed the tag number NAD917.  That was significant to me because I had not previously seen the letters NAD as Gwinnett County plates and it was just odd that that stuck in my mind, the letters NAD for a Gwinnett County plate and --

Q.   Was --

A.   I'm sorry.

Q.   Sorry.  Please -- are you finished?

A.   That's all.

Q.   Was there any further discussion at that time with Officer Chapel about this note pad?

A.   No, sir, there was not.

Q.   I want to hand you another item which I would ask to have marked.

[State's Exhibit Number 124 was marked for identification by the court reporter.]

BY MR. CLINE:

Q.   Lieutenant Cline, I'm handing you what's been marked as State's Exhibit 124.  Can you identify that item, please?

A.   Yes, sir.  This is the black metal flashlight typically issued to Gwinnett County police officers, and this is the flashlight that I secured pursuant to the search warrant on unit 197 on April 24.

Q.   Where in the vehicle was that item located?

A.   It was in the pursuit pack on the -- again, that hangs on the back of the back seat.

Q.   And did you make note of the serial number of that item at that time?

A.   Yes, we did prior to putting it into evidence.  Yes, we did.

Q.   And have you examined that serial number this morning?

A.   Yes, sir, I have.

Q.   Or this afternoon.  And is that the same flashlight that you seized on April 24?

A.   Yes, sir.

Q.   Does it appear to be in the same condition today as it was back on April 24, 1993?

A.   Yes, sir.

Q.   Lieutenant Cline, I'm handing you what's been marked as State's Exhibit 125.  Can you identify this item, please?

A.   Yes, sir.  This is a blue police campaign hat.  It's a size seven and three-quarters and it's similar to the one that we secured out of the unit 197.

Q.   Okay.  And where was that located inside the car?

A.   It was located in the -- I believe it was located in the passenger area.  Give me just a second, if you want me to check my notes.  [Pause]  Yes, sir.  It was in the front seat passenger area of the car.

Q.   Is that item in the same condition today as it was back on April 24, 1993, when it was located?

A.   Yes, sir.

MR. SMEAL:  Your Honor, I would ask that this be marked as the state's next exhibit and also this item.

[State's exhibits were marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Lieutenant Cline, I'm handing you what's been marked as State's Exhibit 126.  Can you identify that item, please?

A.   Yes, sir.  This is a set of yellow rain pants and this -- these rain pants were secured from the trunk area of unit 197.

THE COURT:  Are these -- is this 126 or 7?  I didn't understand.

MR. SMEAL:  126, Your Honor.

THE COURT:  Okay.  Thank you.

BY MR. SMEAL:

Q.   When you say the trunk area, do you mean inside the trunk?

A.   Inside the trunk, yes, sir.

Q.   And did you recover that item?

A.   Yes, sir, I did.

Q.   Did you find either in the trunk or anywhere else inside the vehicle a matching raincoat?

A.   No, sir, I didn't.

Q.   Does that item appear to be in the same condition today as it was back on April 24, 1993, when it was located?

A.   Yes, sir.

Q.   I'm handing you what's been marked as State's Exhibit 127, a brown paper bag.  Can you identify that item, please?

A.   Yes, sir.  This is the original evidence bag in which I placed some items secured from the search warrant into the evidence room, after hours evidence locker.  It was recovered by me and sealed by me and placed in the evidence.

Q.   Is that the bag which was used to secure the items that you have previously identified?

A.   Yes, sir.

Q.   Lieutenant Cline, I'm handing you what's been marked as State's Exhibit 97.  Can you identify that item, please?

A.   Yes, sir.  This is the briefcase that I secured from the front floorboard, passenger side, of unit 197 pursuant to the search warrant.  The only difference in it now and then is that it was full of papers and miscellaneous items.

Q.   Okay.  Did you look inside the briefcase on     April 24, 1993, when you located it in the front section of the vehicle?

A.   I made just a cursory search to ensure that there weren't any weapons in it and then I turned it over to Lieutenant Latty.

Q.   When did you turn it over to Lieutenant Latty?

A.   Within the hour.

Q.   Lieutenant Cline, following the execution of the search warrant of unit 197, what was done with both the vehicle and the keys to the vehicle, if you know?

A.   The vehicle was re-locked by me and I placed the keys in the top desk drawer of my desk in the detective division.

Q.   Directing your attention to April 29, 1993, did you have contact on that date with Technician Nancy Jenkins?

A.   Yes, sir, I did.

Q.   Okay.  And was anything done with respect to the keys at that time?

A.   Yes, sir.  On the afternoon of the 29th, I turned the keys over to Nancy Jenkins for further processing of the vehicle.

Q.   And what was your understanding of why she needed the keys on April 29, 1993?

A.   My -- I'm sorry.  My understanding was that she was going to Luminol the car, and I'm sure that the Luminol process has probably already been explained.

Q.   Now, between the dates of April 24 and April 29, 1993, where to the best of your knowledge were the keys to the vehicle kept?

A.   They were kept inside again my top desk drawer in the criminal investigations section at police headquarters.

Q.   Okay.  To your knowledge, did anyone use the keys during that time period?

A.   No, sir.  Everyday that I worked, they were still in there and they didn't appear to be moved at any time.

Q.   Did you ever give those keys to anyone?

A.   No, sir, I did not -- other than Nancy Jenkins on the 29th, no, sir.

Q.   On that same day, did you assist in the execution of a search warrant on some lockers at the northside precinct?  Did you --

A.   April 24?

Q.   April 24, that's correct.

A.   Yes, sir, I did.

Q.   And did Detective Hunnicutt assist you with that?

A.   Yes, sir, he did.

Q.   Which lockers were searched at that time?

A.   Lockers Number 33, 34, 35, and 36.

Q.   Directing your attention to locker number 34, do you recall whether that was locked or unlocked at that time?

A.   Yes, sir.  It was locked.

Q.   Okay.  And was the lock removed?

A.   Yes, sir, it was.

Q.   And how was that done?

A.   Investigator Hunnicutt secured the -- some bolt cutters from the fire department next door and cut the lock off.

Q.   Okay.  Were you present when that was done?

A.   Yes, sir, I was.

Q.   I'm showing you what's been marked as State's Exhibit 122.  Can you identify that photograph?

A.   Yes, sir.  This is a Polaroid photograph that I took immediately following the opening of unit -- I'm sorry, locker number 34 at the northside precinct.

Q.   Okay.  And would you describe what you saw at that time?

A.   Yes, sir.  I saw a yellow raincoat typically issued to Gwinnett County police officers, and it was folded and lying in the bottom of the locker.

Q.   Was that photograph taken prior to the seizure of any items inside?

A.   Yes, sir.

MR. SMEAL:  Your Honor, I would ask that these be marked as the next two state's exhibits.

[State's Exhibit Number 128 and Number 129 were marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Lieutenant Cline, I'm handing you what's been marked for identification purposes -- I'm handing you what's been marked as State's Exhibit 128.  Can you identify that item?

A.   Yes, sir.  This is the original bag that I secured the rain jacket in and that I transported to police headquarters and then later placed it in an after hours evidence locker.

Q.   And I'm handing you what's been marked as State's Exhibit 129.  Can you identify that item, please?

A.   Yes, sir.  This is the rain jacket that I secured pursuant to the search warrant at the northside precinct, locker number 34.

Q.   Would you examine that item and tell the members of the jury whether that item appears to be in substantially the same condition today as the night it was seized back on April 24?

A.   It appears to be with the exception of certain markings that I had come known to be as a result of certain testing done at the Georgia State crime lab.

Q.   I'm sorry, Lieutenant Cline.  You said that you secured that item in an after hours locker; is that correct?

A.   Yes, sir.

Q.   Lieutenant Cline, directing your attention to April 16, 1993, were you present at a autopsy postmortem of Emogene Thompson?

A.   Yes, sir, I was.

Q.   And about what time were you there?

A.   From about 2:20 in the afternoon until about three o'clock that afternoon.

Q.   Were there any other investigators or police officials there at that time?

A.   Investigator Jack Burnette was present at the time.

Q.   And did you observe Dr. Frist perform that examination?

A.   Yes, sir, I did.

Q.   All right.  Where were you physically in the room when that was done?

A.   I was seated in a chair against a wall in the morgue, inside the morgue, probably eight to ten feet away from the examination table.

Q.   Were you clothed at that time in any sort of medical gown, mask, gloves, anything like that?

A.   No, sir.

Q.   Do you recall whether Investigator Burnette was clothed in any kind of gown, mask, or gloves?

A.   No, sir, he was not.

Q.   Did you at any time approach the actual examination table?

A.   No, sir, I did not.

Q.   Did you touch the body?

A.   No, sir, I did not.

Q.   Did you touch any of the tools that were used to perform that examination?

A.   No, sir, I did not.

Q.   Did you touch any of the waste products or materials that were used during that postmortem?

A.   No, sir, I did not.

Q.   What was your purpose in being there?

A.   We wanted to find out the exact cause of death from Dr. Frist and to also determine if there were any other injuries.  It was apparent that there was some type of wounds to the head.  We needed to know the exact types of wounds and the path of travel.  We also needed to know if there were any other injuries to the body.

Q.   Okay.  Is that considered during a typical investigation to be critical information to find out at the outset?

A.   Yes, sir.

Q.   Without getting into the content of speech, did Dr. Frist relate information to you as he was performing the postmortem?

A.   Yes, sir, he did.

Q.   Lieutenant Cline, directing your attention to April 23, 1993, did you have an occasion to meet with a civilian named Karl Kautter?

A.   Yes, sir, I did.

Q.   And what was the purpose of that meeting?

A.   I met with Mr. Kautter at his business on Peachtree Industrial Boulevard inside the city of Buford in regards to showing him a photographic lineup that had been developed of police officers and to ascertain if he would be able to identify any of the police officer's photographs as a suspect that he may have seen the night of the murder.

Q.   Did you prepare that lineup?

A.   No, sir, I did not.

Q.   Do you know who did?

A.   Yes, sir.  It was Investigator Thompson with the professional standards unit, also known as internal affairs.

Q.   Lieutenant Cline, what instructions, if any, did you give to Mr. Kautter prior to his observation of that photographic array?

A.   I presented Mr. Kautter with what we call a photographic lineup affidavit, which is just a series of instructions explaining to him what we want him to do, and that's basically look at the pictures and identify any that he may be able to.  I presented him with the affidavit.  He read it, he said he understood it, and then I presented him with the photo array, the photo lineup.

Q.   Okay.  Did you tell him anything at that time about the suspects or a suspect?

A.   No, sir, I did not.

Q.   Did you describe a suspect in any way at that time?

A.   No, sir, I did not.

Q.   Did you make any suggestions about what to look for when he was viewing the photographic array?

A.   No, sir, I did not.

Q.   Did you say anything to influence him in any way in his potential selection?

A.   No, sir, I did not.

Q.   Would you describe his demeanor as he viewed that photographic array?

A.   He was very serious.  He was very intent.  He took the matter -- or appeared to take the matter very seriously.  He looked at the photo array probably a minute and a half to two minutes and before he -- he said -- he said to me that he didn't remember a mustache on the officer.  I reminded him that within the photo lineup affidavit that there -- they warn you about characteristics that can be changed easily such as the addition of a mustache or facial hair or certain things like that.  He looked at the photographic lineup another thirty or forty seconds and -- and then pointed -- eventually pointed out the photograph that was identified as Michael Chapel.

Q.   I'm handing you what's been previously marked and identified as State's Exhibit 32.  Can you identify this item?

A.   Yes, sir.  This is the photographic lineup of the photographs of police officers that I presented to Mr. Kautter on the day in question, and Michael Chapel's photograph is number three.

Q.   Okay.  And which photograph did Mr. Kautter point out that day?

A.   He pointed out photograph number three.

Q.   Following his selection of that photograph, did you say anything to him to affirm or confirm his choice?

A.   No, sir, I did not.

MR. SMEAL:  No further questions at this time.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Officer Cline, my name is Johnny Moore, and I've got a few questions to ask you.

A.   Yes, sir.

Q.   Now, with reference to that photo lineup,        Mr. Kautter originally pointed to number seven first, didn't he?

A.   What he said to me, sir, once I presented it to him, he said -- he pointed to number seven and said, 'He's too thin.  I'll have to say it's number three.'

Q.   'I'll have to say it's number three'?

A.   Yes, sir.

Q.   That's his exact words?

A.   Yes, sir.  Those were his exact words, and then he signed the photo lineup affidavit and signed on it indicating number three.

Q.   Okay.  And you didn't ask him what he meant by, 'I'll have to say it's number three,' did you?

A.   No, sir.  It was -- it was just a conversational way of saying it.  In other words, he just said, 'I'll have to say it's number three.'  It wasn't, 'I have to say it's number three.'  He said, 'I'll have to say it's number three,' in that manner.

Q.   You didn't ask him if he was sure about that or anything, did you?

A.   No, sir, I did not.

Q.   Because you had what you wanted at that point, identification, didn't you?

A.   Sir, I asked him to look at the photo array, just as I've testified, and then he made his selection.

     Q.   Later that night, when was the autopsy -- excuse me.  Let me back up and start somewhere else.  When was the autopsy done on Ms. Thompson?

A.   April 16, 1993.

Q.   Okay.  Was that done in daylight hours the next day or early morning hours?

A.   Yeah -- no.  It was done -- the part that I attended was between around 2:20 in the afternoon to about three.  I didn't stay for the entire -- I think they were doing some things to complete it, but I didn't stay.  I stayed long enough to get the evidence that we needed, the information that we needed.     Q.   Now, are you familiar with the rules and procedures for the autopsy department, the morgue there, at the Gwinnett County police department?

A.   I'm familiar with some of them, yes, sir.

Q.   Are you familiar with the rule that everybody that's in there is supposed to wear gowns and surgical masks and gloves, that sort of thing?

A.   Yes, sir.  I'm familiar that OSHA requires a number of those safeguards.  Yes, sir.

Q.   Okay.  And who all wasn't doing that?  How many people were violating that rule?

A.   Well, I was violating it and Investigator Burnette was.

Q.   Okay.  And how far away did you say you were from what was going on?

A.   Probably eight to ten feet.  Again, I've been to literally dozens and dozens of autopsies, and my practice is just to stay away from the body to let the medical professionals do their work.  That's why I don't -- we rarely ever get gowned up to go around a body, because we're never in proximity of the body and in any real danger of getting contaminated.

Q.   Okay.  You didn't ever go over to get a closer look at the bullet wounds or anything?

A.   I may have walked within five feet at one point when I first got there just to look at the bullet wounds from a distance, but I certainly -- this was prior to any autopsy beginning.

Q.   Okay.  You didn't get closer where you could see the wounds to the brain and everything after the autopsy was done?

A.   No, sir.

Q.   Didn't you think it was important to know as much as you could about the wounds and everything in your investigation?

A.   Certainly.  But Dr. Frist, who was performing the autopsy, was giving us a verbal exchange about what his findings were, and it certainly wasn't necessary for me to walk over and confirm that and look at it.

Q.   Was the autopsy in progress when you got there or was it just starting?

A.   No, sir.  It began after we arrived.

Q.   And who all was there, now, besides the doctor, yourself and Jack Burnette?

A.   Yes, sir.  As I recall, Investigator Hal Bennett with the medical examiner's office, Investigator Jim Dempsey with the medical examiner's office, Dr. Frist, myself, and Investigator Burnette is all I recall being there.

Q.   Now, later that night -- I'll get this marked first.

[Defendant's Exhibit Number 70 was marked for identification by the court reporter.]

BY MR. MOORE:

Q.   The movie seen, a video statement, you're probably aware of that, that was taken from Mike Chapel?

A.   I'm sorry, sir.  I don't understand your question.

Q.   Are you aware of the video statement that was taken from Mike Chapel?

A.   I'm aware one was taken, yes, sir.

Q.   Okay.  The jury has already seen that.

A.   Yes, sir.

Q.   Now, on that videotape, Mike Chapel is informed by Latty, Officer Latty, that Brian Reddy has given a statement saying he was not at the fire house on the night of the 15th.  Are you aware of that?

A.   I'm not aware of any -- really any of the contents of the videotape, sir, because I've never set down and studied the videotape.

Q.   Did you transmit that information to Officer Latty?

A.   I may have.  I took a statement from Officer Reddy and in that statement that's what he says, but I don't recall -- I don't have an independent recollection of telling Lieutenant Latty that, but I may have.

Q.   Okay.  And what time of night did you take that statement?

A.   I believe it was about 10:45 p.m.

Q.   Okay.  And where was that statement taken?

A.   In Investigator Tkacik's detective car.  We had rode together over there, Investigator Tkacik and myself, on Raintree Drive in Snellville.  That's in front of Officer Reddy's residence.

Q.   Okay.  And was what Officer Reddy's demeanor when you talked to him?

A.   Officer Reddy had been drinking a little bit, but he seemed upbeat and helpful and was willing to make the statement and cooperative.

Q.   Was he drunk?

A.   I don't think he was drunk, sir.

Q.   Was he disoriented, confused?

A.   He didn't appear to be confused.

Q.   He appeared to know what was going on and understand you and everything?

A.   He appeared to -- he appeared to understand the questions that we asked him and he was able to respond, yes, sir.

Q.   Okay.  And what did you specifically ask him?

A.   Well, what we did was we took him through the night of April 15, the shift of April 15, specifically, which was the night that Ms. Thompson was killed.  And what we wanted to know was what he had done, particularly with attention to the late night hours during the time of what we believed to be the murder time.

Q.   And did you ask him about Mike Chapel's whereabouts?

A.   Yes, sir, I did.

Q.   And he answered your question; is that correct?

A.   Yes, sir, he did.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 70, and ask you if you can identify that.

A.   Yes, sir.  This is -- appears to be a copy of the statement, original statement, that I took from Officer Reddy on April 23, again, at 10:45 p.m.

Q.   And in that statement you inquired about Mike Chapel's whereabouts, didn't you?  You can read it if you like.  I'm not trying to trick you.

A.   No, I understand.  I have some questions at the back.  That's what I was looking for to see if I asked him back there.  [Pause]  Yes, sir.  What I did was I asked him about all the other people that he had worked with that night, if he remembered seeing them or where they were at a particular time.  And what he says here is, he says, 'I did not see Mike Chapel after leaving the church.'

          To go back, to make it clear for you, he says he -- this is Officer Reddy talking, what he did.  He said that he left the church up on Main Street around 8:30 p.m. and went to the fire station at fire station 14, which is also on the other end of the police precinct, and he stayed there for a length of time.  But then he goes on to say that he did not see Mike Chapel after leaving the church, which would have been around 8:30 p.m. that night.  And then he goes on to tell who else he didn't see or who he may have had contact with during that time.

Q.   And he understood that it was important that he be right about what he was telling you, didn't he?

A.   I hope he understood that with a sergeant and a police investigator there.  It was our intent to convey that it was very important.  Whether he understood that or not, I don't know.

Q.   Okay.  At least you tried to make sure he understood it?

A.   Yes, sir.

Q.   Okay.  Now, did you have occasion to check Officer Reddy's logbooks for that night?

A.   I don't recall ever checking that.  I know that we secured those, because we secured all the documentation for that night, but I don't recall -- have a specific memory of checking his log sheet over the others.

Q.   Do you know if anyone else did?

A.   I don't know if anyone ever did or not.

Q.   Okay.  And as soon as you got that statement, D-70 there, Defendant's Exhibit 70, you took a copy of that to headquarters to Officer Latty, didn't you?

A.   I don't have a specific recollection, but I may have.  If he was still interviewing Chapel and thought that that was important, yes, I probably did.

Q.   Okay.  Is Defendant's Exhibit 70, have you had a chance to examine it?  Is it a true and accurate copy of the statement that you took from Brian Reddy?

A.   Let me look at it one more time just to make sure the pages are right.  [Pause]  Yes, sir, it is.  I'm sorry, Mr. Moore.  Yes, sir, it is.

Q.   Okay.

MR. MOORE:  Your Honor, at this time, I would tender Defendant's Exhibit Number 70.

MR. PORTER:  We have no objection for the record only, Your Honor.

MR. MOORE:  Your Honor, we contend this ought to be going out to the jury, too, because it's relevant and material.  The evidence is going to -- it's shown that this statement was not true, and we believe the jury should be allowed to see it.

THE COURT:  I believe you can use it for purposes of impeachment as with any other written documents or depositions or that sort of thing, but insofar as going out with the jury, I think it's clearly inadmissible as continuing testimony.  It's admitted for the record only.

BY MR. MOORE:

Q.   Did you ask Officer Reddy about whether or not he was in the Sugar Hill area that night, on the night of the --

A.   In that statement?

Q.   Not in the statement.  Did you ask him at all, in the statement or otherwise?

A.   Well, we talked about it in the statement.  And the fact is, he made a specific statement regarding his being in Sugar Hill that night.

Q.   Okay.  And what did he specifically say?

A.   He said he did not travel south of Peachtree Industrial Boulevard in the area of Sugar Hill during the entire night.  And this is his words, he said, 'I did not go into the city of Sugar Hill because I had words with the Sugar Hill city marshal and only entered into the city during dispatched calls.  These words were because' -- talking about the words with the Sugar Hill city marshall -- 'These words were because he called me unnecessarily out to an incident that was a year old and expected me to handle it.'

Q.   Okay.  Now, do you know where the Circle K on North Avenue is there in Buford?

A.   Yes, sir, I do.

Q.   Okay.  And how far is that from the Gwinnco Muffler Shop?

A.   Two miles perhaps.

Q.   Could I get you to come down off the stand, Officer Cline?

[The witness stepped down from the witness stand.]

BY MR. MOORE:

Q.   I've got a map here of the city of Buford and if you could orient yourself on the map and figure out where things are so that you are familiar with it.

A.   All right.

Q.   Show the jury where that Circle K that you told me you knew is located on North Avenue.

A.   It's right here.  Right in this area right here.     Q.   And where is the Gwinnco Muffler Shop in relation to that?

A.   Peachtree Industrial.  About right here. 

Q.   Okay.  Thank you.

THE WITNESS:  Can everybody see that?

[The jurors respond no.]

THE WITNESS:  I'll show you again.  I'm sorry.

BY MR. MOORE:

Q.   We'll just do it at both ends.

A.   The Circle K is approximately right here, at the intersection of Sycamore Road and Highway 20, which is also known as North Avenue in Sugar Hill.  Gwinnco Muffler is probably in this area here near Cold Creek Court, located -- this is Peachtree Industrial Boulevard here, and it's approximately right here.

Q.   Why don't we move down to the other end so the people here can see it, too.

A.   Yeah.  Okay.  This is Sycamore Road at the intersection of Highway 20, which is in Sugar Hill.  This is North Avenue.  Approximately right here is the Circle K, and this is Gwinnco Muffler right here.

Q.   Thank you.

[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 65 and ask you if you can recognize that aerial photograph.

A.   It appears to be an aerial photo of Gwinnett County police headquarters located on Hi-Hope Road in Lawrenceville.

Q.   Okay.

A.   That's what it looks like to me.

Q.   Is that the headquarters and the buildings behind it where the shop, the morgue, and the, I believe, the range is located?

A.   Yes, sir.

Q.   Okay.  Can you come down, too, and maybe show that to the jury.

A.   [The witness steps down.]

Q.   And we'll do it at both ends.  Would you point out to the jury, if you can, where the morgue is located?

A.   The morgue is located in this end of police -- the rear building of police headquarters in this last suite right here.

Q.   Okay.  And where is the -- I don't know what the proper name for it is, but the shop area there where they did the Luminol in the car, where is that located?

A.   I don't know where they did the Luminol, sir.  I wasn't a part of that process.

Q.   Okay.  If you were told it was done in the shop area where the SWAT truck is there, would you know where that is?

A.   I believe it's going to be in this rear area here, which is actually downstairs from the morgue.  The morgue is on this end, and then this is a separate area here, and it goes downstairs to a different level, and you can't tell this from above it, so it's down a level and it goes into that area right here.

Q.   If we could move down to the other end and let the jurors hear.  If you could repeat that, please.

A.   All right.  Again, the police morgue is the last suite.  The rear of this is the front building of police headquarters.  This is Hi-Hope Road.  This is the last suite, the back building.  This is the morgue.  The area that goes down, down some steps, there's a separate outside door, is this area here, you can drive into it.  This used to be the aviation hangar.  We used to park helicopters inside it.  That's why it's so big.

Q.   Thank you.

[The witness returned to the stand.]

BY MR. MOORE:

Q.   Now, what time of day did you do the -- and when did you do the search on unit 197?

A.   11:40 a.m. to 12:45 p.m.

Q.   Okay.  And what day?

A.   On April 24, 1993.

Q.   Okay.  So the car wasn't searched then from -- oh, it was searched.  Okay.  I got my dates wrong.  April 24 was the day that Mike Chapel was arrested; is that right?

A.   Yes, sir.

Q.   And that was in the morning after when you searched it; is that correct?

A.   Yes, sir.  It's the same morning.

Q.   Okay.   And who assisted you in that?

A.   Investigator Diane Parrish.  She's no longer with the police department.  She's taken employment elsewhere.

Q.   Now, you participated in an earlier search, I believe, up at the lockers and perhaps the gym.  I've forgotten now.

A.   No, sir.  I was in -- there was a pickup truck that was searched and we searched it and then I searched the lockers at the northside precinct.

Q.   Okay.  And you recovered some film; is that correct?

A.   We -- I seized some film and was going to take it to see if there was any incriminating evidence on it.  Again, as I testified in a previous hearing, we knew from investigating this case that there was some amount of planning going on prior to the murder, and seized that film with the intent of developing it to see if it had any evidence on it of planning, of pre-planning of the murder.

Q.   Okay.  And you lost that film, didn't you?

A.   Yes, sir, I did.

Q.   Could you explain how you lost it?

A.   Human error, sir.  I placed it in a plastic bag with some other items, three other items.  I got to headquarters with those three other items and the film was gone.  I don't know where it went.

Q.   Okay.

A.   I searched for it very diligently, but I could not find it.

Q.   Was the flashlight or any of the other items there ever tested for blood?

A.   You know, I don't know.  I don't know what was tested for blood once it was seized, other than the raincoat.

Q.   You talked to Mr. Kautter and based on what he told you, you're aware that whoever he saw had a flashlight in their left hand?

A.   I'd have to check my notes to exactly what he said about it, but I know that he indicated that there -- that he had a flashlight in his hand.

Q.   Okay.  But the flashlight was not checked for blood, to your knowledge?

A.   Again, not to my knowledge, but that's not -- was not within my area of expertise or responsibility at that time.  I was -- we usually left that up to the crime scene unit or the Georgia State crime lab.

Q.   Now, the rain jacket, I believe, you testified was sent to the crime lab?

A.   Yes, sir, it was.

Q.   Now, on the back of this jacket, it has the -- well, tell me what's on the back of it.

A.   It says the word 'Police' in blue reflective writing.

Q.   Okay.  And is that designed to show up in -- reflect in headlights?

A.   Yes, sir, it is.

Q.   If you saw this rain jacket at night in the headlights, what would be the most prominent feature?

A.   I'd have to know the exact condition we saw it, but we hope that the word 'Police' is being able to seen as a contrasting backdrop to the yellow.  That's what it's intended to do.

Q.   And this is intended to show up so that people know it's a policeman, isn't it?

A.   Yes, sir, it is.

THE COURT:  I don't believe that rain jacket's been admitted yet, Mr. Moore.

MR. MOORE:  Oh, it hasn't?

THE COURT:  No, sir.

MR. MOORE:  I thought it had, Your Honor.  I'm sorry.

THE COURT:  What's your next question?

BY MR. MOORE:

Q.   Now, there's some markings on here -- those are placed on there by -- not by you, were they?

A.   No, sir.  I didn't mark anything on this rain jacket at all.

Q.   Now, you said you got the keys to the car, to unit 197, from Jack Burnette?

A.   Yes, sir.

Q.   Where did he have them at?

A.   I don't know where he got them from.

Q.   Okay.

A.   I assume that he got them from Officer Chapel after his interview and arrest, but I don't know that for a fact because I don't think I was involved in that transaction.

Q.   Have you seen the keys since that time?

A.   Since what time?

Q.   Since the time that you gave them to Technician Jenkins?

A.   No, sir, I have not.

Q.   Who did they give them back to?  Who did the technician give the keys back to?

A.   I don't know.

Q.   Did you give them any instructions who to return the keys to?

A.   No, sir.  I don't recall giving them any instructions at all regarding the keys.

Q.   And what all was on that key ring, just the keys to his car or --

A.   I don't recall.

Q.   Was there anything unique or distinctive about it?

A.   Again, I don't recall.  I remember taking a key ring and putting them in the car and unlocking the car and any other keys that were -- that may or may not have been on the key ring were insignificant to me at the time, so I don't have a -- it doesn't stick in my mind as anything that was important.

Q.   Okay.  But you testified earlier that you remembered seeing them in your desk there every day?

A.   I remember that they were in my desk every day, yes, sir.

Q.   But you don't remember what they looked like?

A.   Well, I know what police car keys look like,    Mr. Moore.  I've been using them for seventeen years, so I know what they look like.  As far as recalling that they were in there and not moved, yes, sir, they were there.  They were there every day that I was at work.

Q.   Were they locked in your desk?

A.   No, sir, they were not locked in my desk.

Q.   How many people work in that same area there with you?

A.   Nobody works in my cubicle but me at that time.

Q.   Okay.  Your cubicle -- but if you could come down again.

A.   [Witness complies]

Q.   I'll give you a chance to look at this.  I know you haven't had a chance -- this is a blueprint of the Gwinnett County police department headquarters, and if you could study it for a minute and just see if you can orient yourself and figure out where the front door is and everything and then everything else, and then show the jury where your cubicle is, where you work at.

A.   I used to work right here.  This is where I was at at the time.

Q.   In 1993?

A.   Yes, sir.

Q.   Okay.  Does this accurately depict, as we understand there may have been some changes in the police department from time to time, does this accurately depict the cubicles, the way they were in 1993?

A.   Yes, sir.  These are offices here and then the sergeants' desks are around the back.  Not now.  I think there's a technician's desk here now, but sergeants typically sit at the back wall.  The squads that they worked for were in front of them.  In other words, this was homicide assault section.

Q.   Okay.  And how many people approximately worked in this area?

A.   I have -- in which area?

Q.   In the --

A.   The entire area?

Q.   The detective area here where your cubicle was located.

A.   About twenty-two with four, five, six supervisors

-- twenty-two with four supervisors.  [The witness returned to the stand.]

Q.   And is anybody in that area all twenty-four hours of the day or are there times of the day when there's nobody working there in 1993?

A.   It's not -- that particular area, it's not occupied twenty-four hours a day.

Q.   So in 1993, what hours did the detectives work?

A.   I believe we came in -- we had a shift -- day watch worked, I believe, eight to 4:30, and then evening watch worked 3:30 to midnight, I believe.

Q.   Okay.  And which shift did you work during that period of time in 1993?

A.   I was working evening watch.

Q.   Okay.

A.   Of course, during the case of the homicide, we worked all day long.  We didn't work shifts during investigations of homicides.  We worked all night.

Q.   State's Exhibit Number 123 is Mike Chapel's notepad; is that correct?

A.   Yes, sir.

Q.   And he had showed you that earlier before he was arrested, hadn't he?

A.   Yes, sir, he did.

Q.   Okay.  And it had the notation on there that you testified about when he first showed it to you, didn't it?

A.   Yes, sir, it did.

Q.   I mean, there wasn't any attempt to conceal that from you or anything like that?

A.   No, sir, it wasn't.

Q.   And at that time when he showed it to you, he was a suspect, wasn't he?

A.   He was being looked at as a suspect in the investigation, yes, sir.

Q.   And you gave it back to him and just told him to hang on to it, didn't you?

A.   No, sir.  He never gave it to me.

Q.   Well, if you'd had wanted it, he would have given it to you?

A.   He -- what he did was, he was sitting at a desk -- to clear that up, he was sitting at a table at the northside precinct in the roll call room, and he called me over and he says, 'Look here, Sarge, this is where I talked to Dennis Shelton right here like I told you about,' and he showed that to me.  And while I was looking at that, I noticed the tag number of the victim's vehicle on there.  Now, I didn't seize it, I didn't secure it, I didn't do anything except go and make a notation of it in my notes.  That's all I did at that point.

Q.   And what connection did Dennis Shelton have to the investigation?

A.   On the original day of the murder, we talked with Michael Thompson, who was Ms. Thompson's son.  He said that in relation to the missing money -- okay, we're going back to the missing money and the original call over there -- that he thought that Dennis Shelton may have taken it.

          Apparently from the information we had received, Michael Thompson and Dennis Shelton were companions of some sort, and he thought that -- and Dennis had been over at Michael and Emogene Thompson's home, and he thought that Dennis Shelton may have taken some of that.  And Dennis Shelton was brought in and questioned in regards to this case.  He was eliminated as a suspect in the murder.

Q.   Now, I want you to look at Defendant's Exhibit -- I've got the -- I mean State's Exhibit up there, the number, the notepad, the yellow notepad --

A.   Yes.

Q.   What number is that?

A.   S-123.

Q.   Okay.  I want you to look on the back of it, the very back.  All the way to the back.

A.   Yes, sir.

Q.   Is there a report of some sort in there that never was turned in?

A.   Yes, there is.

Q.   Is that typical of Mike Chapel?

A.   You'd have to ask his supervisor if that was typical --

Q.   Okay.

A.   -- because he wasn't working for me at the time.

Q.   Now, when you did the search of the vehicle, did you do a thorough search of the vehicle of -- unit 197?

A.   I searched pursuant to the search warrant,       Mr. Moore, which is the items that were actually listed on the search warrant, and, of course, that was the focus of my -- of the search.  I didn't go through each and every item and --

Q.   Okay.  In fact, you just seized everything in there to look at it later and you didn't really follow a search warrant, did you?

A.   No, sir.  That's not the case at all.  I seized those things that were listed on the search warrant, those things I believed to be evidence of the crime.

Q.   Did you think that the proceeds of the Iron World Gym and the money bag was evidence of the crime in small bills?

A.   What I believe, sir, was that Michael Chapel had committed the crime of armed robbery and murder.  Anything that had to do with his finances, I thought, was relevant and would be relevant evidence in the case.

Q.   You didn't have any evidence, though, that there were small bills, tens, twenties, ones, and fives involved, did you?

A.   I think I secured $163 in cash out of there and placed it into evidence.  I believe that's a part of my search warrant.

Q.   Was any of that big bills?

A.   No, sir, not that particular denomination.

Q.   Any of it fifties or hundreds?

A.   No, not in any of that.

Q.   Did you -- my question was did you have any evidence that indicated any small bills were taken in the robbery?

A.   No, sir, I did not.

Q.   And when you went through Officer Chapel's briefcase, you did find other reports, too, that hadn't been filed, didn't you?

A.   I don't recall finding any reports other than -- just right now of any -- that had not been filed, any police reports that had not been filed.

[Discussion ensued between counsel off the record.]

MR. MOORE:  Your Honor, there's some physical evidence we're trying to locate.  I don't know if the Court wants to take a short recess while we locate that or not.

MR. PORTER:  Mr. Moore has a photograph of a specific document that he's looking for from the evidence that has previously been shown to the defense.  I think it's going to require a page by page search of that bag, which might not be -- I cannot say that I have seen that document.  Perhaps a brief recess to look through those documents, to look for the one that Mr. Moore was looking for, and the state can assist in looking for it.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, we'd make that request, also, because I don't know how long it will take.

THE COURT:  We'll take ten minutes.  We'll take ten minutes.  If you'll go with the bailiff.

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

THE COURT:  You can come down.  We'll take ten minutes.

[Break taken]

THE COURT:  Ready, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Ready, Mr. Porter?

MR. PORTER:  Yes, Your Honor.  We are approaching within about -- after Sergeant Cline, four chain of custody witnesses and then we'll begin to move into the crime lab witnesses including the testimony of Kelly Fite, but at some point fairly quickly we're going to have to address the issue of the second gun.

THE COURT:  Okay.  Well, if we're not at a point where we need to take a recess, we'll take one anyway and we'll sort out -- we'll hear everybody's argument on that matter before Mr. Fite testifies.  Okay.  Bring the jury back, please.

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

THE COURT:  Proceed when you're ready, Mr. Moore.

MR. MOORE:  I'm ready.

BY MR. MOORE:

Q.   Officer Cline, I'm going to show you what's been marked as Defendant's Exhibit 71, 72, and 73 and see if you can identify any of those by number.

THE COURT:  Are these Defendant's Exhibits or State's Exhibits?

MR. MOORE:  Defendant's Exhibits, Your Honor.

THE COURT:  All right.

MR. MOORE:  D-71, D-72, and D-73.

THE COURT:  Thank you.

BY MR. MOORE:

A.   What was your question again regarding the --

Q.   Can you identify those?  Do you recognize them?

A.   I recognize them as being Gwinnett County police incident reports, all three of which have been or are in some state of being partially completed, but if you ask me if I recognize them from any previous contact with them, I have not.  No, sir.

Q.   Do you know whether or not they were in Mike Chapel's car when you searched it?

A.   If they were, I didn't see them, sir.

Q.   Okay.  Let me show you what's been marked as Defendant's 76 and ask you if you can identify that.

A.   It appears to be a key ring of a locker -- what appears to be a master lock key, handcuff key, and a whistle on it.

Q.   Okay.  And was that in Mike Chapel's car when you searched it?

A.   I don't recall it being in there, sir.

Q.   Okay.  Now, the keys that stayed in your desk for a week, were they on that key chain?

A.   No, sir.  I don't believe they were on this key chain here.

Q.   And there's no car keys on that key chain at the present time, are there?

A.   No, sir.

Q.   I'm going to show you what's been marked as D-75 and ask if you can identify that.

A.   It appears to be some type of dietary supplement.  The name is Testron energizing tonic.  Again, I don't recall having ever seen it before today.

Q.   Okay.  You don't know whether or not that was in Mike Chapel's briefcase when you inventoried it?

A.   No.  Again, let me clear this up for you,       Mr. Moore.  I didn't inventory the briefcase.  I turned that over to Lieutenant Latty in its entirety.  The only thing I did in that briefcase is check it to make sure there wasn't a murder weapon in it.  And then I turned the entire contents, the briefcase and everything, over to Lieutenant Latty.

Q.   Okay.  I'm going to show you what's been marked as Defendant's Exhibit Number 74 and ask if you can identify that.

A.   This would be the sign attached to what was once the Iron World Gym in the city of Buford.

Q.   Okay.  And is that a true and accurate representation of the way the front of the building looked there in the sign?

A.   It's how I recall it, yes, sir.

Q.   Do you know whether or not D-74 was in Mike Chapel's car or briefcase?

A.   No, sir, I don't recall seeing it.  Again, the same answer as before regarding the contents of the briefcase.

MR. MOORE:  Your Honor, I would tender Defendant's Exhibit Number 74.

THE COURT:  Any objection?  That's the photo of the gym.

MR. SMEAL:  Insofar as this witness has identified this as a fair and accurate depiction of the scene, we don't object.  I believe he has not laid the foundation for that coming out of the briefcase.

THE COURT:  Does it matter, Mr. Moore?

MR. MOORE:  Your Honor, I don't think for a photograph any foundation has to be laid for that.  Maybe I need to take it up for the jury's benefit so they know where it came from, but I think the photograph itself would be admissible.

MR. SMEAL:  I don't oppose that, Your Honor.

THE COURT:  Okay.  You don't oppose its admission or you don't oppose Mr. Moore's further examination?

MR. SMEAL:  I don't oppose its admission as having been identified by this witness as a fair and accurate depiction of the scene.

THE COURT:  All right.  Defendant's 74 is admitted without objection.

BY MR. MOORE:

Q.   Now, looking at -- got a lot of stuff there.  Looking at State's Exhibit Number 123, would you look through and see how many tag numbers you see in there?

A.   You're just referring to the legal pad?

Q.   Yes, sir.

A.   I count four tag numbers other than that of the murder victim.

Q.   There were photographs taken, I believe, of the inside of unit 197, Polaroid photographs.  Do you know who took those?

A.   I did.

Q.   You took those?

A.   Yes, sir.

Q.   Okay.  And when you took those, had anything been moved or was that before everything was searched or moved around?

A.   I'd have to see them, Mr. Moore, to remember that.  It's my recollection that we took them before anything was moved.

Q.   Did you participate in the investigation into J. P. Morgan's death?

A.   No, sir, I did not.

MR. MOORE:  No further questions.

THE COURT:  Redirect?

MR. SMEAL:  No questions, Your Honor.

THE COURT:  Do you wish this witness to remain on call?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  You'll be subject to recall as a witness.  You can come down.

THE WITNESS:  Thank you, sir.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  Mireya Middleton.

[The witness was called to the courtroom.]

          THE COURT:  Ms. Middleton, if you'll come up here and be seated on the witness stand, 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, I do.

Whereupon,

     MIREYA MIDDLETON

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.   My name is Mireya Middleton.

Q.   Would you spell your last name for the court reporter, please.

A.   Sure.  M-i-d-d-l-e-t-o-n.

Q.   What is your current occupation?

A.   I'm a senior evidence technician for Gwinnett County police department.

Q.   How long have you been so employed?

A.   I've been with the police department going on eight years, and I've been in the evidence room now five years.

Q.   Okay.  What are your duties as a senior evidence technician?

A.   My responsibilities are to accept evidence, maintain it under lock and key, and maintain also the chain of custody on the property.

Q.   Okay.  Were you so employed in April 1993?

A.   Yes.

Q.   Directing your attention to April 20, 1993, were you on duty that day at approximately ten o'clock a.m.?

A.   Yes, I was working.

Q.   Okay.  And did you have occasion at that time to handle a piece of evidence in Gwinnett County Case Number 93-012445?

A.   Yes, I did.

Q.   Okay.  Would you please describe what you did at that time for the jury, please?

A.   On April 20, I accepted a projectile from ID White and logged that into evidence on 4/20/93.

Q.   Okay.  What does that mean when you say you logged it into evidence?

A.   What I do is I accept the property.  In this case, it was a projectile, and what I do is I mark on the bag the case number, the control number, and the bin number.  On the property sheet at the bottom, I log the property in, the date that I accept it and the time, and I sign it, and I go ahead and put it up in the bin where it corresponds.  In this case, it was something that needed to go to the crime lab, so I put it in the bin with the things that go -- that are going to the crime lab, and just entered it in the computer and, basically, that's it.

Q.   Ms. Middleton, I'm handing you what's been marked for identification purposes as State's Exhibit 109.

A.   Uh-huh [affirmative].

Q.   Can you identify that item?

A.   Yes.  This is the bag that I took in from Mary Ann White that day.

Q.   And is that the item that you logged into evidence on April 20, 1993?

A.   Yes, it is.

Q.   Okay.  Did you handle that item again on April 22, 1993?

A.   Yes.  On April 22, I took it to the state crime lab.

Q.   Did you do that personally?

A.   Yes, I did.

Q.   Okay.  And do you recall who you turned it over to at the state crime lab?

A.   Mr. Kelly Fite.

Q.   And between April 20 and April 22, where was that item?

A.   It was left in the crime lab bin.

THE COURT:  That was April 22 of what year?

THE WITNESS:  1993.

THE COURT:  Thank you.

BY MR. SMEAL:

Q.   I'm sorry.  Between April 20, when you logged it in until the time you transported it to the crime lab, where was that item again?

A.   It was in the evidence room in the crime lab bin.

Q.   Is that a secured area?

A.   Yes, it is.

Q.   When you logged in the item on April 20 and when you transported the item to the state crime lab on April 22, did you do anything to alter the contents of that bag or to alter the condition of the projectile?

A.   No, I did not.

Q.   Okay.  On April 22, 1993, did you transport any other items to the crime lab that day?

A.   I also transported a tire from this case.

Q.   Okay.  And would you describe the appearance of that tire that day?

A.   It was just a tire and it was wrapped and it also had the markings, you know, the case number, control number, crime lab, and it would have had like the victim's name and other information like that.

Q.   Okay.  Where did you obtain that tire from on April 22, 1993?

A.   It was logged in and it was there by the crime lab bin.  The crime lab bin is only so big, so you couldn't put the tire in it, but it was laying right by it, so it was inside the evidence room.

Q.   Okay.  And is that a secured area?

A.   Yes.

Q.   And did you yourself transport that item to the crime lab?

A.   Yes, I did.

Q.   Did you turn that over to Kelly Fite?

A.   Yes.

Q.   Did you do that along with the projectile?

A.   Yes.

Q.   During the time that tire was in your custody and control, did you do anything to alter the condition of the tire?

A.   No.

Q.   Directing your attention to May 4, 1993, on that day, did you receive some items of evidence in this case from Mary Ann White?

A.   Yes.  I received a bag with miscellaneous papers on May 4, 1993.

Q.   And what did you do with that bag?

A.   Also logged it in and put it up inside the evidence room.

Q.   Okay.  And did you do anything to alter the contents of that bag at that time?

A.   No.

Q.   Was that put into a secured area?

A.   Yes.

MR. SMEAL:  No further questions at this time, Your Honor.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Is it Middleton; is that correct?

A.   Yes.

Q.   Ms. Middleton, my name is Johnny Moore.  I have a few questions I wanted to ask you.  Now, this plastic bag of papers, did it list what was inside or did it just say miscellaneous papers?

A.   I believe it just said miscellaneous papers.

Q.   Okay.  I'm going to show you what's been marked as Defendant's Exhibit Number 77 and ask you if you can identify that document.

A.   Uh-huh [affirmative].  This is a copy of a property sheet with Case Number 93-012445 that was accepted by me out of a locker, L29, on 4/25/93.

Q.   Okay.  And can you tell from that whether or not you released any evidence to anyone?

A.   In the first line it says that I released the keys only to Investigator Burnette on 4/26 to return to owner.

Q.   Okay.  And do you know which keys that was talking about?

A.   No, sir, I don't.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Number 78.

A.   Uh-huh [affirmative].

Q.   And would you look at that, please?

A.   Just the front?  Do you want me to look at the front?

Q.   Look at the front and then look at the inside pages, particularly, and I'll call your attention to --

A.   Uh-huh [affirmative].

Q.   -- the part that I'm interested in.  It's right here.

A.   This part right here.  [Pause]  Okay.

Q.   You can look at any of the rest of it, too, that you want to to refresh your memory as to what it's about, what that concerns, your notes.

A.   Evidently, this was a -- if it was given to training, it was the gun that was recovered and it was no longer needed in -- well, I would really have to look at the property sheet to --

Q.   I'm not trying to confuse you.  You can go back to the front here and see if that helps you any.

A.   Yeah.  Oh, okay.  Okay.  The officer evidently filled out a property found case and he turned in a gun into the evidence room.  It was just found property.  What he probably did is he had it entered into the GCIC computer so that if an agency tried to run it, they would see that it was with Gwinnett County.  And once the case -- once the ninety days was up on a found property case, we ran it and we saw that it was on there.  It needed to be taken off because it wasn't going to be in the evidence room any longer, so we just requested that it be taken off the computer, and it was turned over to training.

Q.   Can you tell what date the gun was found?

A.   Well, it says December 4th of '93 on the report.

Q.   Okay.  And you have handwritten notes on there, I believe.  Is that your handwriting in the handwritten notes?

A.   Here?

Q.   In the back there.

A.   Oh, in the back?

Q.   No, on the -- further over here.  Is that your handwriting there?

A.   No.  That's not my writing.

Q.   Okay.  It says that -- are you the Maria it refers to there?

A.   More than likely.  I'm the only one in there, yeah.

Q.   Okay.  And it says there that per you it was to be destroyed.  Do you recall who made the decision and told you to destroy it?

A.   It's just procedure.  You know, we have weapons that are turned in.  People find weapons, they turn them into the police department.  We log them in and we put it up.  After ninety days, if nobody claims them, the owner's not found, we dispose of them.

Q.   Okay.  Can you tell by looking at the last page of that document when it was destroyed?

A.   On the last page?

Q.   I'm sorry.  The last page is not correct. 

A.   Yeah.  It just says that we gave it to training to destroy on December 16, 1993.

Q.   And so it was found on what date, did you say, earlier?

A.   12/4.

Q.   So you only held that one about twelve days, then?

A.   Evidently.

Q.   Can you tell what caliber gun it was?

A.   It says .38 caliber on the report.

Q.   Okay.  And do you know whether or not that gun was ever sent to the crime lab or tested?

A.   No, I don't know.  I don't know.

Q.   You don't know who told you to destroy it?

A.   I would have to look at the paperwork.  I really don't know.  I would have to look at the property sheet and see what it says.

Q.   Okay.  Would it ordinarily be the case that someone would tell you to do so?  You wouldn't make the decision to destroy a gun, would you?

A.   No.  Uh-uh.  I only do it, you know, when the case is over in court or the time limit is up on a case, you know, but I just don't do it just to do it.

Q.   Okay.  And if the paperwork was forwarded to somebody in the criminal investigation division, would they normally be the one, if they wanted you to do anything to it, to tell you what to do?

A.   If they have something to do with the case that involves the gun, yeah.

Q.   Okay.  I'm going to show you Defendant's Exhibit Number 78 here.

A.   Uh-huh [affirmative].

Q.   Can you tell whether or not that gun was sent -- the copy of this report was sent to criminal investigation division?

A.   I wouldn't be able to tell you that from this.  I really wouldn't know.

Q.   Okay.  You're not familiar with the notation?

A.   No.  Uh-uh. 

Q.   Okay.

MR. MOORE:  Nothing further of her, Your Honor.

THE COURT:  Redirect?

MR. SMEAL:  No further questions.

THE COURT:  You can come down.  Do you wish her to -- is she to be on call?

          MR. SMEAL:  Subject to recall, yes, sir.

THE COURT:  All right.  You'll be subject to being recalled as a witness at a later time.  You can come down.

THE WITNESS:  Okay.  Thank you.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  P. T. Swanson.

[The witness was called to the courtroom.]

THE COURT:  You can take the witness stand, please.  Mr. Smeal will administer the oath.

MR. SMEAL:  Would you 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:  I so swear.

Whereupon,

     P. T. SWANSON

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.   My name is P. T. Swanson.  I work for Gwinnett County police department.

Q.   Would you spell your last name for the court reporter, please.

A.   S-w-a-n-s-o-n.

Q.   What is your occupation, please?

A.   I work in the evidence room at the police department.

Q.   How long have you been so employed?

A.   Three years.

Q.   Do you have a title there?

A.   Evidence technician.

Q.   What are your duties as an evidence technician?

A.   It's our duties to process, store, and keep the chain of custody on all items turned in to the county.

Q.   Technician Swanson, I want to direct your attention to April 20, 1993, and ask you if on that day you had occasion to process an item of evidence in Gwinnett County Case Number 93-012445?

A.   Yes, I did.

Q.   Okay.  And would you describe what you did on that day with respect to that item?

A.   Okay.  Is this the tire we're talking about?

Q.   Yes, sir.

A.   Okay.  On that date, I accepted a tire and a videotape from Judy Graham who works in ID.  She turned it in to me for evidence.  I accepted it, logged it into the system, and stored it in the evidence room.

Q.   All right.  And did you receive those items from her personally?

A.   Yes, I did.

Q.   And when you logged them in, what does that mean exactly?

A.   We write the case number, each case -- each control -- each property sheet has a control number on it, and we write that, and we write the location that it goes in the property room.

Q.   And during the time that the tire was in your possession, did you do anything to change or alter the condition of that item?

A.   No, I did not.

Q.   Directing your attention to April 26, 1993, did you log in another piece of evidence that was submitted in this case, to wit, a yellow rain jacket?

A.   Well, actually, there was several items in a brown paper bag that was -- that all came in together.

Q.   Okay.  All right.  And directing your attention to State's Exhibit 128, can you identify that item?

A.   Yes.  That's the bag.  It has my handwriting.  It has the case number and control number written on it.

Q.   Okay.  And where did you receive that item from?

A.   I received that from the locker system.

Q.   Okay.  And what did do with that item once you received it?

A.   I wrote the case number, the control number, all the information I needed, entered into the computer, and stored it in the evidence room.

Q.   Okay.  Was that stored in a secured area?

A.   It was stored inside the evidence room which is an off-limits room that has a alarm system to it.

Q.   Did you have occasion to transport that item to the state crime lab on May 4, 1993?

A.   Yes, I did.

Q.   And was it transported in that brown paper bag?

A.   Yes, it was.

Q.   Who did you turn it over to at the crime lab, if you recall?

A.   I turned it over to Jennifer Wilson.

Q.   Between those two dates, April 26, 1993, when it was logged in, and May 4, 1993, when it was transported to the crime lab, did you do anything to alter the condition of any of the items inside that bag?

A.   No, sir, I did not.

Q.   Directing your attention to April 30, 1993, did you process an item of evidence submitted in this case on that date, specifically, a seat, a car seat, an armrest?

A.   That's correct, I did.

Q.   Okay.  And who did you receive that item from, if anyone?

A.   I received that from Mary Ann White who works in ID.  She turned it directly over to me.

Q.   Okay.  And what did you do with it once you received it?

A.   It was stored in the property room pursuant to transporting it to Gwinnett County -- to the state crime lab.

Q.   All right.  Was it packaged at that time you received it?

A.   It was wrapped in brown paper and all the seams were sealed with evidence tape, so it was just -- you really couldn't tell what it was.

Q.   Okay.  Did you know what it was at that time?

A.   Yes, I did.  I had -- it was written on the property sheet what it was.

Q.   And once again, was that item stored in a secured area?

A.   Yes, it was.

Q.   And directing your attention to May 4, 1993, did you have occasion to handle that item on that date?

A.   Yes.  Yes.  That's the one I took to the crime lab.

Q.   And did you take that item personally to the crime lab?

A.   Yes, I did.

Q.   Who did you turn it over to?

A.   I turned it over to Jennifer Wilson.

Q.   During the two times that you handled that seat and armrest on April 30, 1993, and also May 4, 1993, did you do anything to alter or change the appearance or condition of those two items?

A.   No, sir, I did not.

Q.   Directing your attention to May 13, 1993, did you have occasion to handle another piece of evidence that had been submitted in this case, that is to say two vials of blood from the suspect in this case?

A.   Yes, I did.  I took those from inside the evidence room and transported them to the crime lab.

Q.   Were they already inside the evidence room when you obtained them?

A.   Yes, they were.

Q.   And what did you do with those items?

A.   Transported them to the crime lab and turned them over to Kathy West.

Q.   I'm handing you what's been marked as State's Exhibit 100.  Can you identify that item, please?

A.   Uh-huh [affirmative].  That's the bag with the blood that I took to the crime lab.

Q.   Is that the blood that you've described as having taken to the crime lab on May 13, 1993?

A.   Correct.

Q.   And during the time that item was in your possession and control, did you do anything to alter the condition of the tubes of blood inside that bag?

A.   No, sir, I did not.

Q.   On August 8 of this year, did you receive certain items from the crime lab for use in court in this case?

A.   I certainly did.  I was instructed by the district attorney's office to go to the crime lab and pick up all items involved in this case and bring them back here.

Q.   Did that include the tire that you've previously described?

A.   That's correct.

Q.   And also the raincoat?

A.   Yes.

Q.   And also the seat and armrest?

A.   Right.

Q.   The defendant's blood?

A.   Correct.

Q.   As well as the victim's blood?

A.   Right.

Q.   And in addition, the projectile?

A.   Everything that was included in the case I brought back.

Q.   Okay.

MR. SMEAL:  I have no further questions at this time, Your Honor.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   I'm sorry.  I didn't get your name.

A.   Swanson.

Q.   Okay.  Mr. Swanson, my name is Johnny Moore.  I have a few questions for you.

A.   Sure.

Q.   The -- I believe this is the right one, your State's 109, is that the blood?

A.   No.

MR. SMEAL:  This is it.

MR. MOORE:  Okay.

BY MR. MOORE:

Q.   That's State's S-100; right?  Is that the correct number, S-100?

A.   Yes.

Q.   Okay.  And there's two vials of blood in there; is that correct?

A.   There should have been two vials of blood in there.  We don't open it so we just have to kind of go by what's on the bag.

Q.   So you don't know whether there was two or four in there originally?

A.   Correct.

Q.   Okay.  There's no way for you to tell?

A.   No.  All I could go by was two vials written on the outside of the bag.

Q.   Okay.  So if there were four vials at one time, you don't know what happened to the other two?

A.   No, sir, I wouldn't.

Q.   Now, the evidence room, are the people on duty twenty-four hours in the evidence room?

A.   No, sir, they are not.

Q.   Okay.  And let's say in the early morning hours somebody needs to put something in there, say a patrolman makes a DUI case and they draw blood and they need to place it in the evidence room at, say, three o'clock in the morning.  How do they go about doing that?

A.   Okay.  We have a locker system for the hours that there's no one there.  Locker 18 has a small refrigerator.  To get into that, an officer will go to the communications, which is the only place where there's anybody at at that time in the morning.  They have a key which the officer signs out, the officer opens up the locker, places whatever he has in the refrigerator, takes the key back to communications, and the senior communications officer signs the key back in.

Q.   Now, I noticed all these bags and everything and everything's carefully taped up with evidence tape here.  Is that standard procedure to tape things up like that?

A.   Yes, it is.

Q.   And is the purpose of that to make sure that nobody can open it without tearing the tape and no getting into it?

A.   That's correct.

Q.   Okay.  And if you have a large item like an automobile that you're going to leave somewhere for several days, wouldn't it be prudent to tape it also?

A.   Usually, they're not taped.  Usually, they're placed inside a locked fence or some place that would prohibit people from normally having intercourse with it.

Q.   Okay.  But if you wanted to be absolutely sure that nobody went into it, even though you locked it, you could put evidence tape on it.

A.   Correct.  Right.  It's not unusual to have -- to see one with evidence tape on it.

Q.   Okay. 

MR. MOORE:  Nothing further, Mr. Swanson.

THE COURT:  Redirect?:

MR. SMEAL:  No, Your Honor.  No further questions.

THE COURT:  Do you wish Mr. Swanson to remain on call?

MR. SMEAL:  Yes, please.

THE COURT:  You'll be subject to recall at a later time.  You can come down.

THE WITNESS:  Thank you, Judge.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness.

MR. SMEAL:  State calls Emalina Saker.

[The witness was called to the courtroom.]

THE COURT:  Ma'am, if you'll take the witness stand up here, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  Please be seated, ma'am.  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,

     EMALINA SAKER

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 occupation.

A.   My name is Emalina Saker.  I am a forensic toxicologist working for the Georgia Bureau of Investigation.

Q.   Would you spell your last name, please?

A.   Saker, S-a-k-e-r.

Q.   Ms. Saker, how long have you been employed --

THE COURT:  Did you swear her, Mr. Smeal?  I didn't note one way or the other.

MR. SMEAL:  I believe I did, Your Honor.

THE COURT:  Okay.  Go ahead, please.

BY MR. SMEAL:

Q.   Ms. Saker, how long have you been employed at the Georgia state crime lab?

A.   I am in my nineteenth year.

Q.   And what are your duties there?

A.   As a forensic toxicologist, I look for drugs and poisons in the human body.  And if we find something, we have to not only identify it, of course, but to find how much and then explain the results in the court of law, like -- at some times.

Q.   Ma'am, were you employed there in April 1993?

A.   Yes, sir.

Q.   In addition to your substitute duties to analyze evidence, do the toxicologists at the Georgia state crime lab also take turns in receiving and processing evidence on occasion?

A.   Yes.  All the toxicologists alternate the days of the week, you know, to receive evidence.

Q.   Okay.  And --

MR. MOORE:  Your Honor, I'm going to object at this point.  Might we approach the bench?

THE COURT:  Yes, sir.

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

MR. MOORE:  We can't find any reports or anything with this lady's name on it.  I can't find her on the list of witnesses.

MS. ROGAN:  I don't think she's on this list.

MR. PORTER:  For this purpose, she's a chain witness.

MR. MOORE:  But she's not on the list of witnesses.

MR. SMEAL:  Yes, she is.

MR. PORTER:  She is.

MS. ROGAN:  Where is she?

MR. SMEAL:  She's about 180, the low 180's.

THE COURT:  The second volume.

MS. ROGAN:  I don't have her.

MR. MOORE:  I think my secretary made an alphabetical list of everybody that y'all provided us and her name --

MR. PORTER:  Her name is Saker, S-a-k-e-r.

MS. ROGAN:  I never remember seeing her name before.

          MR. PORTER:  Emalina Saker.

MR. SMEAL:  She's on the next -- do you have one?  She's on a supplemental list, I believe, after this.

MS. ROGAN:  Well, I don't have it.

MR. SMEAL:  It was served.

MR. PORTER:  She's on a supplemental list -- 183, 184.

MR. SMEAL:  I recall serving -- it was her and also Kevin Jenkins.  They were served at the time.  Kevin Jenkins will be the next witness.

MS. ROGAN:  Those names are not familiar to me.

MR. MOORE:  They're not familiar to me either.  Is she only going to testify to the chain?  She's not going to testify to any --

MR. PORTER:  No.  I mean, she's a chain --

MR. MOORE:  Your Honor, I'd reserve the right to check the list of witnesses later and if they did put them on there, there's no problem.  If not, then I'd ask for an instruction to the jury about the witness if in fact she wasn't on the list of witnesses and we weren't notified ahead of time.

MR. SMEAL:  Your Honor, I will state in my place that I have specific memory of serving the name of this witness as well as Kevin Jenkins to defense counsel in the weeks before trial, and I believe the witness numbers are somewhere around 183 or 4.

THE COURT:  What do you want to do?

MR. MOORE:  Well, Your Honor, if he says he did and the record supports it, then I think it's fine.  But if we go back and check and it doesn't, then I think we're entitled to some sort of instruction about --

THE COURT:  What kind of instruction?

MR. MOORE:  Well, that we didn't have an opportunity ahead of time to check into the witness and find out what she'd testify to.

THE COURT:  Well, if you want to reserve the right to make a motion in that respect, then you can.  I don't know that I, offhand, if she testifies, think of a direction for it.

MR. SMEAL:  Your Honor, her testimony is for an extremely limited purpose, and the truth of the matter is that the state would probably not have to call her, but we are calling her to testify that she received some blood from Jim Dempsey.  He's already testified. 

THE COURT:  Okay.  You can come back to it later if you'd like, Mr. Moore.

[Bench conference concluded.]

THE COURT:  Go ahead, Mr. Smeal.

BY MR. SMEAL:

Q.   Ms. Saker, I believe you were describing that amongst your duties at the state crime lab is to occasionally receive evidence; is that correct?

A.   That's correct.

Q.   And were you exercising those duties on April 20 of 1993 in the morning hours?

A.   Yes, I was.

Q.   And did you, on that occasion, receive some evidence from Jim Dempsey?

A.   Yes, I did.

Q.   Okay.  And do you know who Jim Dempsey is?

A.   Yes, sir.  He's one of the investigators with the Gwinnett medical examiner's office.

Q.   And do you recall, what did you receive from him on that date?

A.   I received four test tubes containing blood.  Three were gray rubber stopper -- have gray rubber stoppers and one have red.

Q.   And what did you do with those items once you had received them?

A.   As we all do, you know, we receive, we describe it to the secretary, a number, a laboratory number, was assigned to the case, and the secretary prepare a label that is applied to each one of the tubes with the number, and -- or probably, I don't remember, but I am pretty sure I signed the log from Gwinnett medical examiner's office.  You know, when they bring the evidence, they bring a log that we have to sign that we have received the evidence.  And I took the evidence, when it was numbered, you know, and labeled, and took it to a secured refrigerated room that we have in toxicology where we keep all our evidence.

Q.   I'm showing you what's been marked as State's Exhibit 25.  Can you identify the number that is labeled on that item?

A.   Yes, I can.

Q.   And did you review -- for purposes of testifying today, did you review the state crime lab number that was assigned in this case?

A.   Yes, I did.

Q.   And is that the same number?

A.   Exactly.

Q.   Would you read that number, please?

A.   It's 93-10770, item number 2.

Q.   And would you describe the contents of that bag and say whether that appears to be an item you received from Jim Dempsey on that date?

A.   Just a second, let me examine it.  Well, the name in the label appear to be the person that did come here when we received the specimen, and I remember what I checked, you know, the Gwinnett case number was 93G-0195, and this it, so yes, I recognize this as the specimen.

Q.   After putting those items in the secure refrigerated area, did you do anything else with respect to those items?

A.   No, I didn't do anything else.

Q.   Okay.  You did not test or analyze any evidence in this case, did you?

A.   No, I didn't.

Q.   And for what length of time would those items have been in your possession and control that day?

A.   I cannot tell the time it take me -- you know, from describing it to the secretary, she type in the computer whatever information there is about the case, and then label it, take it and put it in the refrigerator which is on the second floor, and the secretary is on the first floor.

Q.   During the time that item was in your possession and control, did you do anything to alter the contents or change the appearance of that item?

A.   No, I didn't.

Q.   Did you add anything to that tube?

A.   No, I didn't.

MR. SMEAL:  No further questions, Your Honor.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Ma'am, this Defendant's Exhibit -- I mean, State's Exhibit Number 25, it has a number two on the label there.  Does that have any significance?

A.   You mean this number here?

Q.   Yes, ma'am.

A.   Okay.  Yes.  You see when we describe the evidence, sometimes we receive -- or some of the other person, you know, receives other evidence, and we number, number one, for example, number one could be a -- well, I don't know.  It could be a gun, you know, in the case, you know, and then number two could be blood, and number three could be a pair of shoes or something like that.

Q.   So that doesn't indicate there was any more blood, I mean, or anything?

A.   No.  Oh, in this case, I didn't receive only one tube, I received four tubes.  This is one of them.

Q.   And do you know where the other three are?

A.   Well, I don't know.  I mean, they must be in the evidence room, you know.

MR. MOORE:  Thank you.

THE COURT:  Redirect?

MR. SMEAL:  No further questions, Your Honor.

THE COURT:  Do you wish this witness to remain on call?

MR. SMEAL:  Yes, sir.

THE COURT:  You'll be subject to being recalled as a witness.  You can come down at this time.

THE WITNESS:  Okay.  Thank you.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness.

MR. SMEAL:  The state calls Kevin Jenkins.  Kevin Jenkins. 

[The witness was called to the courtroom.]

THE COURT:  Mr. Jenkins, if you'll take the witness stand up here, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  Please be seated, sir.  Would you 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:  I do.

Whereupon,

     KEVIN CHARLES JENKINS

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.   Kevin Charles Jenkins, J-e-n-k-i-n-s.

Q.   What is your current occupation, Mr. Jenkins?

A.   I'm a microanalyst at the Georgia state crime lab.

Q.   How long have you been so employed?

A.   As a microanalyst, I've been employed for approximately two years.

Q.   Okay.  And briefly, what are your duties as a microanalyst?

A.   As a microanalyst, I examine evidence, primarily trace evidence, hairs and fibers, that come into the laboratory involved in criminal cases.

Q.   Back in June 1993, were you also employed at the Georgia state crime lab?

A.   Yes, I was.

Q.   And on June 30, 1993, if you'll recall that date, did you have occasion to come into contact with a serologist, Jennifer Wilson, at the crime lab?

A.   Yes, I did.

Q.   And what were the circumstances of that contact?

A.   At that time, Jennifer Wilson was a serologist.  I was working in the toxicology section at that time as a technician.  She asked for blood to be retrieved from our cold room and delivered to her for analysis.

Q.   Okay.  And did you do that?

A.   Yes, I did.

Q.   Okay.  And the blood that she was requesting, where had that been stored at that point?

A.   That was stored in a cold evidence room in the toxicology section where we store all blood and human body fluid evidence.

Q.   Okay.  And did you obtain that item from the secured area?

A.   Yes, I did.

Q.   Did you in fact turn it over to Jennifer Wilson?

A.   Yes, I did.

Q.   And the item that you turned over to Jennifer Wilson, would you describe that, please?

A.   One tube of blood with a gray stopper.

Q.   I'm handing you what's been marked as State's Exhibit 25.  Can you identify that item?

A.   Yes.  This would be the tube of blood that I turned over to Jennifer Wilson.

Q.   Okay.  On that day, how long was that item in your possession?

A.   I would have to guess because the normal procedure was she would call down and ask me to retrieve it and then I would retrieve it, and at some later point during the day, it could be five minutes, it could be twenty minutes or an hour, she would come down and pick it up depending on what she was doing at the time, so -- a very short period of time.

Q.   During that period of time, did you do anything to alter the contents or appearance of that item?

A.   No, I did not.

Q.   Did you add any -- during that time, did you add anything to that tube?

A.   No, I did not.

Q.   And you yourself did not conduct any tests in this case; is that correct?

A.   No, I did not.

MR. SMEAL:  No further questions.

THE COURT:  Mr. Moore?

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Jenkins, my name is Johnny Moore.  I have a few questions.  Now, you said you went down to the cold room to retrieve the blood, how do you get into that?  Is that a locked room or is it --

A.   The cold room is in the toxicology section.  It's a locked room that is locked at all times.  When you are not working in or around that cold room, somebody is supposed to lock that -- keep that door locked at all times.

Q.   Okay.  And who all has keys to it?

A.   Everybody in the toxicology section has access to it, but only people in that section.

Q.   Okay.  And whose blood were you requested to retrieve by Jennifer Wilson?

A.   I was asked to retrieve a tube of blood from a case -- in a case item number.  I wasn't -- I don't -- we don't go by names.  We go by case numbers and item numbers.

Q.   Okay.  Are there any records of what she asked you to retrieve?

A.   I have just a -- there's just a copy of the log book.  We have a log book that we log it into when we transfer from one section to another.

Q.   Okay.  So you would have logged it in --

A.   I would have logged it in, yes, sir.

Q.   -- whenever you took it out to take it to her?

A.   Yes, sir.

Q.   Okay.  And does she sign anything then saying she received it?

A.   She initialed the log book showing that she received it from me, which I also initial.

Q.   Do you carry the log book up to her or --

A.   No.  She comes down to retrieve it at the toxicology section.

Q.   I guess I'm a little -- not clear on what you're saying here, but it doesn't seem much advantage to have you go retrieve it if she's got to come down and sign the log book.

A.   Well, she can't go in and retrieve it herself, so she'd call me and I would go into the cold room to retrieve the items that she asked for.

Q.   Oh, okay.

A.   While I'm doing that, generally, she would be coming down the stairs or down the elevator, we're one floor below them, and then by that time I would have the evidence retrieved and turn it over to her.

Q.   Okay.  It makes sense now.  I didn't understand at first.  I thought you had taken it up to her.  Do you know how many tubes of blood that were there in that particular case originally?

A.   Just from refreshing my memory, looking at notes, I believe there was four tubes of blood.

Q.   Okay.  And how many did you get for Ms. Wilson?

A.   One.

Q.   Okay.  Do you know anything about what happened to the other three?

A.   They would have been -- remained in the cold room.

Q.   And were any of those different, any of the four?  Were they all gray stoppers or --

A.   I believe there was three gray-stoppered tubes and one red-stoppered tube if my recollection is correct.

Q.   Was there any particular reason why you would have retrieved the one with the gray stopper as opposed to the one with the red stopper?

A.   Not necessarily, but the red-stoppered tubes do not have preservatives so sometimes they clot, so we try and -- we try and avoid red-stoppered tubes a lot of times.

Q.   Because the red-stoppered one would be the pure blood without any preservatives; is that correct?

A.   I believe so.  I'm -- I was a technician at the time.  I wasn't a scientist, so that's my understanding.

MR. MOORE:  Nothing further.  Thank you.

THE COURT:  Redirect?

MR. SMEAL:  No further questions, Your Honor.  We'd ask that this witness remain on call.

THE COURT:  You'll be subject to recall at a later time as a witness, but you can come down.

THE WITNESS:  Yes, sir.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MR. SMEAL:  May we approach the bench, Your Honor?

THE COURT:  Yes, sir.

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

MR. SMEAL:  Your Honor, the next witness will be Jennifer Wilson, who was one of the experts, and then we'll follow that with Kelly Fite, who's also one of the experts.  The state will have to organize exhibits to present to Ms. Wilson to get her opinion testimony out. I would ask for a short recess at this time to organize that.

THE COURT:  Well, while they're out, why don't we just go ahead and sort out Mr. Fite as well.

MR. PORTER:  That's fine, Your Honor.

THE COURT:  And then have it all out and we won't have to send the jury back out.  I'll give them fifteen minutes and then we'll get the exhibits laid out, and we'll take ten minutes and then come back and spend five minutes on Mr. Fite, and then we can start it back up.

MR. PORTER:  Your Honor, if I might, I have shown counsel during the testimony of the last two witnesses my copy of the certificate of service of October the 10th, 1995 [sic], in which I did provide them with the names of Ms. Saker and Mr. Jenkins.

MR. MOORE:  Your Honor, it appears that he did.

THE COURT:  Okay.

MS. ROGAN:  I don't know who he gave it to, though, because neither one of us remember seeing those names before.

THE COURT:  Well, there's so much paper in this case.

MR. MOORE:  Your Honor, I'm not going to cast aspersions on somebody because I mean --

THE COURT:  Okay.  We'll give the jury fifteen.  We'll take ten.  Okay.

[Bench conference concluded.]

THE COURT:  We have some matters we're going to need to address and sort out briefly before we commence with the next witnesses, so we'll give the jurors fifteen minutes.  We'll provide something to drink.  We'll do that as well, and we'll take fifteen minutes.

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

THE COURT:  Insofar as the issues, I believe, that are coming on Mr. Fite, let me point out some cases I've turned up, and if you have any you intend to cite, let me have those, and I'll take a look at those during the recess. 

One of the cases I've been looking at is Wellborn v. State, at 258 Ga.  I'm looking at Page 570 of the case.  Also, Welch v. State, 257 Ga. at 197; Odum v. State, 214 Appeals, Page 356; and Shannon v. State, 205 Appeals at Page 832.  Do you have any cases you intend to use to argue?

MR. PORTER:  Your Honor, in addition to -- I don't have all the cases cited by the Court, but I also have Hand v. State.

THE COURT:  Hamm, H-a-m-m?

MR. PORTER:  H-a-n-d.

THE COURT:  Okay.

MR. PORTER:  At 206 Ga. App. 501, which is a 1992 case.

THE COURT:  Okay.  Any others?

MR. PORTER:  No, Your Honor.  You've cited the cases that I was going to argue.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Your Honor, you might want to take a look at the leading case.  I don't have the exact cite on it.  It's Osborne v. State, about 1980.  It was out of Gwinnett County, and I managed to have the bad luck of being the first case reversed on that particular issue in 1980.  And I tried preventive measures such as been suggested by Mr. Porter at that time and they didn't work.

THE COURT:  Okay.  I'll take a look at that during the recess as well, and we'll come back to it then.  We'll take -- how long do you think it's going to take with the exhibits and everybody sorting those out?

MR. SMEAL:  Just a few minutes, Your Honor.

THE COURT:  Okay.  Let's take ten minutes and then we'll come back to the issues we want to take care of before we bring the jury back.  We'll take ten minutes.

[Break taken]

[Proceedings reconvened with the jury not present in the courtroom.]

THE COURT:  Let's first frame the issues that we have.  State your objection if you would, Mr. Moore, or your motion.

MR. MOORE:  Your Honor, our motion is we filed, I don't remember the date now, long before trial, a request for any scientific reports, any statements of the defendant that would be used in the case, and demanded that they be provided to us at least ten days prior to the beginning of the trial.

THE COURT:  That's pursuant to 17-7-211; right?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Okay.

MR. MOORE:  And on August 18, apparently, the district attorney learned of some new evidence which was sent to the crime lab, a weapon, and we were not advised of it until, I believe it was August 25.  Was that Saturday, the 25th?

MS. ROGAN:  6th.

MR. MOORE:  26th.

THE COURT:  That's this year; right?

MR. MOORE:  Yes, sir, 1995.

THE COURT:  And on August 25, you received --

MR. MOORE:  26th, Your Honor.

THE COURT:  -- you received notice it was --

MR. MOORE:  It was August 26 Ms. Rogan told me.

THE COURT:  Okay.

MR. MOORE:  It was on a Saturday.  And this is Monday.  It was on Saturday.

THE COURT:  And you were notified of the weapon being found or --

MR. MOORE:  We were notified that it had been found, and Mr. Porter told us that they had run tests on it and excluded it.

THE COURT:  Okay.  At that point, it had been found, and it's excluded as the weapon that fired the slugs from the -- that killed the victim.

MR. MOORE:  That's what Mr. Porter advised me on Saturday, Your Honor.

THE COURT:  And your motion is what?

MR. MOORE:  And he allowed us at lunchtime to go down and look at the weapon during our lunch break on Saturday.

THE COURT:  Okay.  And what kind of weapon is it?

MR. MOORE:  It's a .38 caliber RG, which is the type of weapon identified in the crime lab report as being used as the murder weapon.

THE COURT:  Okay.  So a .38 caliber, and RG is the manufacturer, and it's a revolver; is that correct?

          MR. MOORE:  Yeah.  RG is a brand name is my understanding, .38 caliber.

THE COURT:  And you're --

MR. MOORE:  Our motion is, Your Honor, that the state not be allowed to use any test results on that weapon since we weren't provided at the earliest opportunity the fact that there was a weapon, it was going to be tested.  The district attorney chose to wait until the weapon was tested, until he knew what the results were to tell us about it.

          And our position is that if the Court has the power, as you suggested at a bench conference earlier, to shorten the amount of time that the district attorney has to immediately upon discovery of new evidence that he has to notify the Court and the defense and allow them equal opportunities to deal with that evidence, and if he doesn't do so, then he doesn't have the right to come in later and say, well, I want to now introduce the evidence now that I find out it's good for me.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, as far as it went,      Mr. Moore's statement of the time line is correct.  On Friday, August 18, sometime early in the morning, it was as I first came into the office, I was informed that Officer Brian Reddy had told Mr. Smeal that he owned an RG .38 caliber pistol.

          And at that time, I asked Officer Reddy if he would turn the weapon over to my office, and it was transported to the Georgia state crime lab for a test to evaluate whether or not it was the murder weapon in this case.  We transported the bullets and the gun from Officer Reddy.

          If that test was run -- Your Honor, I stated to the Court this morning that I did not learn of the test results until last week.  But in thinking, in the time that I have been out of the courtroom, Your Honor, I cannot honestly say and I am not prepared to say when I learned the results of the test.

          At the time I learned the results of the test, I was satisfied that it was not exculpatory material, and I was satisfied that at that time my strategy was that I was not going to call Officer Reddy as a witness.  I never intended to call him and, in fact, he is not under state subpoena; he is under defense subpoena.

During the course of the trial, culminating on Friday afternoon, there have been repeated innuendos against a number of officers including Reddy.  I continued to believe that it would not be necessary to call Reddy to the stand, and I felt that at that time there was no necessity of disclosure.

          At the point that Mr. Moore made his argument on Friday afternoon saying that we had surprised him and that we had not provided material, his primary complaint was that material was not provided which he could not get access to in other ways.

          After considering it and consulting with the attorneys in my office, my point never was any different as of Saturday morning, that I did not intend to call Brian Reddy to the stand and -- but in the interest of full disclosure, in which I had information which Mr. Moore had no other source to, I disclosed that Saturday morning.  Mr. Moore made the strategic choice on Saturday afternoon during his cross-examination of Captain Latty to bring out the existence of the RG.

          Now, I think that, having opened that door, for  Mr. Moore want to close it to me on the ten days, flies in the face of fundamental fairness and is clearly not a violation of 17-7-211 as contemplated by several cases, and I'm prepared to make an argument if the Court wants me to.

THE COURT:  Go ahead, please.

MR. PORTER:  Your Honor, the state would submit that this case falls squarely within the confines of the case of Wellborn v. State at 258 Ga. 578, a 1988 case.  In that case during cross-examination, defense counsel attempted to create an impression that a rug or the blood stains on a rug might have belonged to the defendant, which would have supported his defense in some way.  The rug had already been admitted into evidence without objection.  And having anticipated this, the state had had the rug analyzed at the crime lab.  Once the door was opened by defense counsel, then at that time the -- and in this case, the commencement -- the testing was done two days after the trial had started.  Once that door was opened, the state sought to admit the results of the testing.  The defense excepted and objected on the same grounds that Mr. Moore is objecting, and the court found no error under this case.

          In this case, in Wellborn, the test set out was the testimony was basically introduced as a rebuttal, which in this case, even though it's being introduced in the case in chief, it's in rebuttal to a defense contention.  The prosecuting attorney furnished the test results as soon as they became available and the defense, in that case, did not request a recess or continuance.

Your Honor, in this case, the Wellborn case makes clear the remedy.  The remedy here, and it may not be applicable to the case at hand, is for the defendant to be able to defend against the evidence.  In other words, he has the right to have his own expert look at it, he has the right to inquire of the state's experts, and the state is prepared to provide all of those opportunities and has been, and has stood willing to do so since disclosure was made on Saturday.

Your Honor, we believe that the Wellborn case and also the case of Law v. State at 251 Ga. 525 says that if there is no writing, there is nothing to which the statute attaches, the statute is not intended to deal with oral reports. 

Your Honor, that case is not as applicable because this morning I was delivered from one of the members of the crime lab, I believe it was at lunchtime, a copy of a state crime lab report that appears to have a written report regarding the RG that was tested.  I walked up from my office and delivered that to the defense.

THE COURT:  All right.  And what does that report say?

MR. PORTER:  Your Honor, it says that the weapon  -- there seems to be some confusion, Your Honor, in terms of the labeling of the numbers.  As far as I can tell, and I think that's a subject either for cross-examination or inquiry by the Court, it says that the RG that was tested, that was received from Brian Reddy, is inconsistent with the bullets that killed Emogene Thompson.  It also says that it's inconsistent with any open homicide case, which is not evidence that we intend to introduce.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Your Honor, first of all, we have a disagreement there.  I understand what Mr. Porter's talking about, but the report itself does not show that the RG revolver was ever tested.  The RG revolver was listed as item number 27 on the crime lab report that we received this morning.  The testing, where it shows the results, shows they tested item number 26, which was a Charter Arms revolver.  It does not show that they ever tested the RG .38 caliber revolver.

          Now, I understand that Kelly Fite is prepared to testify that he did in fact test it, but that this lab report is not accurate in reflecting what he tested.  But the lab report itself does not reflect that it was ever tested.

MR. PORTER:  Your Honor, Mr. Moore's correct in that item 27 does not show any test results, but Mr. Fite is prepared to testify and has documents that he says can show that the item 27, which is the RG, was inadvertently relabeled as item 26, and that the results that he has placed in this newest crime lab report, which was delivered today, relate to the RG which has been relabeled as item 26.  And, Your Honor, that constitutes -- it's a clerical error.

THE COURT:  Okay.  What about the law?  What do you contend our law to be, Mr. Moore?

MR. MOORE:  Your Honor, I don't think there's any cases directly on point to what we've got here, but we contend the law to be that, first of all, the constitutional law, the right to due process and a fair trial, guarantees that we have the right to be fairly prepared to cross-examine a witness when they testify.  Mr. Fite is going to testify this afternoon.  We haven't had an opportunity to determine what he did, to have an expert look into what, if anything, that --

THE COURT:  Well, if it's not exculpatory, then the constitutional provisions don't require that, do they?

MR. MOORE:  Your Honor, I think the right of cross-examination is a constitutional right, and I think that if you're denied that right --

THE COURT:  Well, if you use that argument though, that would give you the right to -- it seems to me that would provide Brady extended to its absolute -- to infinity such that you'd be saying, well, if they're going to talk about it on direct on the state's case in chief and we can't effectively cross-examine him if we've not had the opportunity to review it, in which case they can't put it up, and that's not the law.

MR. MOORE:  Your Honor, I believe eight does say that the state -- the defense has to have the right to have experts of their own, we have to have the right to a level playing field when you're talking about expert witnesses.  The state can't come in and spring theirs  on --

THE COURT:  Yes, sir.  But my point is that if it's not exculpatory and it doesn't fall within Brady or some other disclosure requirement, then the constitutional provision you're reciting -- it seems to me what you're saying is if we don't know about it beforehand, we can't effectively cross-examine no matter what it is that the state's talking about and, therefore, it ought not to come in if we've not been made -- if we've not been provided those.  But anyway, go ahead.

MR. MOORE:  When it's an expert witness, Your Honor, I do believe that's the situation, because there's no way an attorney can prepare for cross-examination with an expert unless he or she has an expert of his own and can prepare for that cross-examination.  I'm certainly not an expert in firearms.  I can't examine the gun and challenge Dr. -- excuse me, Kelly Fite's opinion without an expert to tell me what, if anything, he may have done wrong or what he did right, for that matter, and we believe that the ten-day rule -- that that was the intent of it, the reason the legislature passed it, and that we believe there's not been substantial compliance with it here.

THE COURT:  You had cited Osborne earlier.  How does Osborne apply to this case?

MR. MOORE:  Well, in that case, Your Honor, I knew that I had a problem when we started, and I tried to get the judge to do things like has been suggested here, giving time to talk to the expert, to prepare, etc.  In fact, Judge Merritt did give time to the defense attorney to consult with the crime lab, that sort of thing.  Sort of like we used to do with a list of witnesses when somebody failed to be on there.  If you'd give them time to talk to them, it would cure it.

          I also had the police officer testify that, in his experience, tried to qualify him as an expert to say that the crime lab was only cumulative.  None of it worked, and we got reversed.  The court said it was essentially absolutes is what they said in that case, and they reversed the case regardless of our efforts.

MR. PORTER:  Your Honor, I'm familiar with the Osborne case, and I believe Osborne can be distinguished in two significant ways. 

Number one, in Osborne, the test results were published and available and were not provided.  And second of all, in Osborne, the test was done significantly in advance of trial in anticipation of their introduction into evidence.  And in that case, the Osborne case said, the state is the state is the state, and the district attorney can't say, well, it was in the crime lab's possession and I never got it; therefore, I couldn't provide it.  I think that's a whole different situation to what we have here.

What we have here is a case that was -- where the test was performed on the eve of trial, not in anticipation of introduction into evidence, but to exclude something.  Your Honor, if that gun had come back as the murder weapon, we wouldn't be standing here today.  If that gun had been matched to the bullets that killed Emogene Thompson, we would not have begun the evidence on Tuesday.  I can state that in my place as the district attorney of this circuit.  If that bullet had matched, Mike Chapel wouldn't be sitting in the seat he's seating in.  But when it didn't, I had no intention of bringing forward that evidence. 

The defense has opened this door.  They've cast the aspersions on Officer Reddy.  They've pointed the arrow in his direction.  I think at this point with a test that clears him, it's a manifest injustice not to allow that test to come in.  And there has been substantial compliance.  The door wasn't opened until late in the week.  And when the door was opened, I complied.

          Your Honor, the second thing that I would like to bring to the Court's attention is almost a due diligence argument.  There have been ballistics in this case.  There have been ballistics in this case from the very beginning.  Mr. Moore said at the bench today that he has a ballistics expert that will be available on Wednesday.  But yet no ballistics expert has gone down and questioned Kelly Fite, looked at his methodology, compared the bullets, examined the bullets, looked at any other weapons that have been test-fired.

          What prejudice -- Mr. Moore wants to say today that there's some prejudice because he doesn't have time to get an expert down there?  He hasn't had an expert down there yet.  So, Your Honor, I think that in this case there's been substantial compliance.  The test was not done in the anticipation of introduction into evidence, and we believe that the evidence which precludes the gun should be admitted before the jury.

          Now, I'm prepared, Your Honor, at this time to put Mr. Fite up today for the limited issue on the manufacturer of the gun and his expert opinion regarding the blood spatter on the raincoat, and reserve the issue to recall at the end of my case on the issue of the RG.  I'm prepared to do that.  Should the Court wish to do that, I'm prepared to -- I'm not prepared to turn the gun over, but I'm prepared to make it available to their experts.  I'm prepared to make facilities available to their experts.  And, Your Honor, at the rate that we're going, there are still a number of witnesses to be called.  I think that arrangements can be made that the defendant is not prejudiced in his ability to run the tests.

          Mr. Moore said at bench conferences he anticipates calling as many as forty witnesses.  Surely, sometime during that time he can have that ballistics test run by his expert.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Your Honor, I'd like to perfect the record here if I could.  Is this your only copy --

MR. PORTER:  No, I have an extra copy.  Your Honor, I'll stipulate that that is the crime lab report that was given to me today.

THE COURT:  Okay.  Do you want to mark it as an exhibit, Mr. Moore?

MR. MOORE:  Yes, Your Honor.

[Defendant's Exhibit Number 79 was marked for identification by the court reporter.]

MR. MOORE:  Your Honor, this is Defendant's Exhibit Number 79, and I would tender it for the record.  Mr. Porter stipulated, I believe, that this is the official crime lab report that he received today, I believe; is that correct?

MR. PORTER:  That was delivered to me today, and I delivered it --

THE COURT:  What's the date of the report?  When was it reduced to writing?

MR. MOORE:  Your Honor, it shows on the face of it received August 28.  The date above all the signatures at the end is August 24, 1995.

THE COURT:  All right.

MR. MOORE:  But it also shows, Your Honor, that, if you look at it, that item 27, it's on page 4 of the report, item 27 was received August 18, 1995, at 10:38 in the morning.  I'll turn it to that page and --

THE COURT:  All right.

MR. MOORE:  -- tender it to the Court.

[Presenting to the Court]

THE COURT:  Any objection to Defendant's 79 being admitted for the record?

MR. PORTER:  No, Your Honor.  With the -- there is an explanation should the question of whether or not the gun has been tested that I think that the Court needs to hear from Mr. Fite that is not --

THE COURT:  But insofar as Defendant's 79 being admitted for the record, any objection to that?

MR. PORTER:  No, Your Honor, with reservation.

THE COURT:  Okay.

MR. MOORE:  And, Your Honor, I would like to point out to the Court, too, there that my position is that when the district attorney learns of a new piece of evidence like that in a case like this, I understand what the Court's saying that maybe neither side should be excluded if something new comes up.  But when the district attorney learns of it on August 18 and doesn't inform the Court and doesn't inform the defense immediately that a new piece of evidence is being sent to be tested, that he waits some seven days later until he finds out what the results are before he tells anybody, that he may have waived or given up any right to have the Court shorten the time that he has to comply with that.

THE COURT:  Let me ask, if the evidence with respect to the test of the RG is that it's not the gun or what's the words?

MR. PORTER:  They're inconsistent, I believe.

THE COURT:  Inconsistent, does that mean that that's --

MR. PORTER:  It's excluded.

THE COURT:  It's excluded.  If the opinion is it's excluded, then how is that material to the defendant's defense?  I mean, it seems to me you could round up twenty other guns, assuming police officers or somebody employed by the county or state's got them, and test them all, and if they're all excluded, you say, well, this is not the gun.  How is that material?

MR. MOORE:  Well, Your Honor, it hampers our ability to prepare our defense and everything.  We went for seven days during the trial of this case not knowing that new evidence was being tested that might be either negative or positive, presenting our witnesses,  presenting a theory in the case and everything, without having the benefit of knowing that the district attorney is having something else tested that we had no idea how the results are going to turn out.

THE COURT:  But if it's not exculpatory in the continuing investigation, whatever comes up, I don't understand how that adversely affects the defendant.

MR. MOORE:  Well, Your Honor, it makes it appear that the state has gone out and done a thorough investigation when, in fact, they have not.  And they did not, immediately upon learning about it, inform either the Court or us about it and seek direction from the Court about if they were going to have it tested, how the results might be admissible.

MR. PORTER:  Your Honor, I think the question is when does it become evidence.  I'm assigned a county issue firearm.  If I go out and shoot it into a wall today and I have the bullets compared and they don't match the bullets that came out of Emogene Thompson, is that evidence?  If Brian Reddy takes an RG and owns it, and we test the results and they don't match, is that evidence?

MR. MOORE:  Your Honor --

MR. PORTER:  It's only evidence when the defendant tries to pin it on him.

THE COURT:  Well, let me just point out, in the case of Welch v. State, which is 257 Ga. at Page 197, the Court -- this is with respect to a rifle, a scientific report on a rifle -- where there was enumerated error for failing -- got a mistrial when the state failed to produce a scientific report on a rifle pursuant to the same discovery statute.  And that was one in which a murder weapon was not found and that the argument that the gun was exculpatory evidence in that it was not the murder weapon is an illogical argument which is without merit.

          Now, that was the Georgia Supreme Court saying in 1987 that where a murder weapon was not found, a gun was tested, report not furnished, that it wasn't -- that was an argument that it was exculpatory, I guess, among other arguments, and the Court said, that's just an illogical argument without merit.  It seems to me that's on point with the circumstances we have here.

In addition, the Wellborn case at 258 Ga. 570, that's an '88 case from the Georgia Supreme Court, similar to this case, where the issue was made by the defendant that as to a test that had not been performed, was performed and was not exculpatory.  And Justice Smith, his concurrent opinion, noted the introduction of the rug into evidence by the state was a direct result of the defendant's trial tactics.

          I believe the rest of it Mr. Porter's already stated and I won't repeat it, but the issue being made an issue by virtue of the defendant raising the issue.  And it seems to me that also is on point with the circumstances we have here, that the reason it's an issue is because it's raised by the defendant.  And it seems to me the suggestion is that by virtue of the defendant's position is we've got an RG here that's consistent with the kind of weapon used as the murder weapon, either that or a Charter, and it's owned by another Gwinnett County police officer, with the inference, I suppose, being maybe this is the murder weapon.  And I think the state's entitled to show on those circumstances in rebuttal, if you will, that in fact it's not the murder weapon if that's the evidence in the case.

But it seems to me that taking both of those cases into consideration, the state's entitled to put it in.  I'll hear any other request you wish to make based on that ruling, Mr. Moore.

MR. MOORE:  Your Honor, we'd just request -- I won't argue with you because you've made your ruling, but we just feel like that the district attorney, when they learn of new evidence and they send it to be tested, the rule is the same whether it turns out negative or positive.  If that had turned out positive and that was the murder weapon, then if it had turned out that they'd found a weapon, for instance, that they thought belonged to Mr. Chapel when the case started and it was sent in and it turned out positive, they'd certainly be wanting to use it.  And we think it's the same whether it's negative or positive, that the rule's the same.

THE COURT:  Mr. Porter, anything else?

MR. PORTER:  No, Your Honor.  The state supports the Court ruling.  Does the Court want us to bring it in while Mr. Fite is here today?  Of course, that would be the state's preference.  There's been no --

THE COURT:  Well, I don't hear any motion which would preclude that at this point.

MR. PORTER:  Then in that case, the state intends to produce it today.

THE COURT:  All right.

MR. MOORE:  Your Honor, we would make a motion to allow us to have our expert examine it or attempt to examine it before Kelly Fite testifies to it because I'm at a disadvantage --

THE COURT:  Well, I understand.

MR. MOORE:  -- in cross-examining him without benefit of that.

THE COURT:  Well, it seems to me we could do it one of two ways.  We can either proceed and have him testify today, whatever the state wants to put up, and any cross-examination you want to make and reserve the right to test the RG yourself, Mr. Moore, and recall Kelly Fite at a later time for further cross-examination. 

Or the other method, as Mr. Porter pointed out, is just simply have Mr. Fite testify with the other matters and reserve the issue of his test of the RG, and give you the opportunity to test it if you wish, and you can incorporate that in your cross-examination of Mr. Fite in that regard when he comes back in on the state's case in chief at the tailend of the case.

MR. PORTER:  Your Honor, I can say on behalf of the state that we think that it's important that the testimony come out.  Mr. Moore --

THE COURT:  I've ruled it's coming in.

MR. PORTER:  But come in today.  The longer there is a delay, the longer there's an inference that hangs over this jury that we had the evidence to dispel today.  We think it's only reasonable that we should be allowed to do that.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, we believe the state's put themselves in that position by not disclosing it sooner to us.  We could have probably had the test done if they'd disclosed it to us as soon as they found out about it.

MR. PORTER:  Your Honor, they'll have the right to bring in those tests, and if they disagree -- well, we're in the same situation --

THE COURT:  Well, let's just close it.  It seems to me that if the evidence is as Mr. Porter indicates it's going to be, it's a non-issue.  It's another weapon which has no relevance to the issues in this case and the reason it's an issue is because of the cross-examination of Captain Latty and that put it in issue.  And I think maybe because of that, I think the state's entitled to respond with evidence that controverts that, and I don't -- and if they're entitled to, I think they're entitled to, and what I'll do is allow Mr. Porter to put that in today.  You can cross-examine him as best you can. 

I'll give you the opportunity to recall him at a later time on cross-examination before the state rests, after having had the opportunity to examine the weapon, testify, have your expert examine it, and have a full opportunity to cross-examine Mr. Fite at a later time all over again if you wish.  Anything else, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  Bring the jury back, please.

MR. PORTER:  It is now ten minutes of five, does the Court want to move through these next two crime lab witnesses, Ms. Wilson and Mr. Fite, and complete them today?  The state would ask that we do that.

THE COURT:  How long do you think they'll be?

MR. PORTER:  Your Honor, I'm not really very much in control of that.  The testimony from the state --

THE COURT:  Who's coming next, Mr. Fite?

MR. PORTER:  Ms. Wilson is --

MR. SMEAL:  Jennifer Wilson.

THE COURT:  Okay.  And what did she do?  Did she test some blood; is that what she did?

MR. SMEAL:  She's the witness on --

THE COURT:  The chain?

MR. SMEAL:  -- a couple of pieces of evidence as far as chain is concerned, and then she also examined the seat and armrest and also the raincoat.  She'll be offering expert opinion --

THE COURT:  Okay.

MR. SMEAL:  -- as a serologist.

THE COURT:  Mr. Fite has a -- he's scheduled someplace else tomorrow in a capital case?

MR. PORTER:  In Hinesville, Your Honor.

THE COURT:  Well, my inclination is let's finish it up tonight and stay as late as we have to unless it really gets out of bounds.

MR. PORTER:  Yes, sir.

THE COURT:  So let's plan on going until we finish it barring unforeseen -- bring the jury back, please.

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

THE COURT:  We're going to be going on a little later tonight so that we can hopefully finish with the next couple of witnesses so they can go on about other business and we can proceed on with other witnesses in the morning.  So we may be going over.  This may be our longest evening yet, but we'll just see. 

Call your next witness, please.

MR. SMEAL:  The state calls Jennifer Wilson.

[The witness was called to the courtroom.]

THE COURT:  Ms. Wilson, if you'll take the stand up here, Mr. Smeal will administer the oath.

[The witness stepped to the stand.]

MR. SMEAL:  Please be seated, ma'am.  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,

     JENNIFER S. WILSON

    

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.   My name is Jennifer S. Wilson.

Q.   What is your occupation, Ms. Wilson?

A.   I am a forensic serologist, DNA analyst.

Q.   Okay.  And with whom are you a serologist?

A.   I work for the Georgia Bureau of Investigation, Division of Forensic Sciences, also known as the state crime lab.

Q.   How long have you been so employed?

A.   Approximately six years.

Q.   And what are your duties as a forensic serologist and DNA analyst with the Georgia state crime lab?

A.   As a serologist, I identify, classify, and individualize body fluids such as blood, semen, and saliva and stains from those body fluids.

Q.   Okay.  What education, training, and experience have you had in the area of forensic serology?

A.   I have a Bachelor of Science degree from Georgia State University in biology with a minor in chemistry.  I've also successfully completed a one-year intensive training program in the field of forensic serology at the crime lab, GBI crime lab.  I've also successfully completed a course at the FBI academy in Quantico, Virginia, in the field of forensic serology, and I've also just recently completed a nine-month intensive training program in the field of forensic DNA analysis.  I am certified by the American Board of Criminalists, and I'm also a member of the American Academy of Forensic Scientists and the Southern Association of Forensic Scientists.

Q.   Ms. Wilson, have you testified before in the courts in Georgia as a forensic serologist?

A.   Yes, I have.

Q.   Have you been qualified as an expert in that area?

A.   Yes, I have.

Q.   As part of your duties at the state crime lab, are you trained to test for the presence of blood in a stain which has been obtained from a crime scene?

A.   Yes.

Q.   And are you also trained to determine whether or not that blood is of human origin?

A.   Yes, I am.

Q.   Approximately how many times have you testified in court?

A.   Approximately fifty times.

MR. SMEAL:  Your Honor, at this time, the state would be offering Jennifer Wilson as an expert in the area of forensic serology.

THE COURT:  Mr. Moore, do you wish to voir dire the witness?

MR. MOORE:  No, Your Honor.

THE COURT:  The Court finds her qualified.  Go ahead, please.

BY MR. SMEAL:

Q.   Ms. Wilson, directing your attention to May 13 of 1993, did you have occasion to process a piece of evidence that had been submitted to the Georgia state crime lab?

A.   Yes, sir.

Q.   Okay.  And what was that item?

A.   That was our crime lab item number 21, which was a purple-stoppered test tube of blood labeled Michael Chapel.

Q.   I direct your attention to what's been previously marked and identified as State's Exhibit 100.  Can you identify that item?

A.   Yes, I can.  This is our crime lab item number 21, two test tubes of blood labeled Michael Chapel.  They're both labeled Michael Chapel, and I can identify this by our unique crime lab case number, item number, and my initials which are on both tubes of blood.

Q.   Do your initials also appear at the top of this item?

A.   Yes, they do, on this red seal.

Q.   Did you receive those items from Kathy West on  May 13, 1994 -- I'm sorry, 1993?

A.   Yes, I did.

Q.   Okay.  And after receiving that item, what did you do with it?

A.   I placed them in a refrigerator in my locked room in our serology section.

Q.   Okay.  Did there come a time when you prepared a, what's called a stain, a blood stain from that item?

A.   Yes, I did.

Q.   Do your records reflect what date you prepared that stain?

A.   Yes.  That was prepared on May 21, 1993.

Q.   Now, what does that consist of when you prepare a stain of a blood sample?

A.   When I prepare a stain of a blood sample, all I do is take a small portion of the liquid blood out and I place that onto a cotton swatch or a type of filter paper.  And this is done to preserve the blood.  Eventually, as time goes on, the blood, the liquid blood in the tube, will degrade and become of no use to us.  We can then take the dried stain that I had made when the blood was received or around the time the blood was received, and I can use that for further testing.

Q.   With respect to that item, did you again have occasion to process it on June 30, 1993?

A.   Yes.  On June 30, 1993, this item number 21 was transferred to Keith Goff for further testing.

Q.   Okay.  And is he also a forensic serologist, DNA analyst at the Georgia state crime lab?

A.   Yes, he is.

Q.   Do you work with Mr. Goff?

A.   Yes, I do.

Q.   And was the purpose for transferring that item to Mr. Goff on June 30 for further testing?

A.   Yes.  At the time, I was not trained in DNA analysis and so I transferred that to a scientist who was trained.

Q.   Apart from the preparation of the stain on May 21 of that item, did you do anything otherwise to alter the contents of those tubes?

A.   No, I did not.

Q.   Okay.  Was any other chemical or agent or anything added to those tubes?

A.   I did not add anything, but there is a chemical in the tube before the blood is drawn.  But aside from that chemical, I didn't add anything to it.

Q.   Ms. Wilson, directing your attention to June 30, 1993, on that date did you have occasion to process another piece of evidence in this case?

A.   Yes, I did.

Q.   Okay.  And did you have contact with Mr. Kevin Jenkins on that date?

A.   Yes.

Q.   And what were the circumstances of that contact?

A.   I called Kevin Jenkins, who was in the toxicology section at the time, he was a technician, I called him and advised him that I needed a tube of the blood which is item number 2, which was labeled Emogene Bertha Thompson.  I advised him that I needed a tube of that blood to be turned over to Keith Goff for further testing.

Q.   Okay.  And did you in fact obtain an item from Kevin Jenkins on that day?

A.   Yes, I did.

Q.   I'm showing you what's been previously marked as State's Exhibit 25.  Can you identify that item?

A.   Yes, I can.

Q.   What is that item?

A.   This is a test tube of blood labeled Emogene Bertha Thompson and, again, I can also identify that by our unique crime lab case number, item number, and my initials on the tube.

Q.   Okay.  And does this envelope also bear your initials and is it also dated at the top?

A.   Yes, it does.  It is.

Q.   Did you perform any tests on that item at all?

A.   No, I didn't.

Q.   Were you simply transferring, at that time, to Keith Goff for further testing?

A.   Yes.

Q.   Did you do anything to alter the contents of that tube at that time?

A.   No, sir, I did not.

Q.   Directing your attention to May 4, 1993, did you on that date also process several other pieces of evidence in this case?

A.   Yes, I did.

Q.   Okay.  And did you receive a car seat and armrest on that date?

A.   Yes, I did.

Q.   Who did you receive that from?

A.   I received that from P. T. Swanson.

Q.   And what did you do with that item?

A.   The car seat was too large to fit in my evidence locker, so I placed that in a cold storage room that we keep in our section.  It's a locked room, and that was placed in the cold room.  The armrest was placed in my locked evidence locker, and the only person that has a key besides myself is my supervisor.

Q.   Okay.  If you would come down from the stand for one second.

A.   [Witness complies]

Q.   Would you please take a look at State's Exhibit Number S-116 and see if you can identify that item?

A.   Yes, I can, and, again, by our unique crime lab case number, item number, and my initials.

Q.   Okay.  You're referring, I believe, to an area that's been cut out of the left armrest; is that correct?

A.   Yes.  Yes.

Q.   Is the writing that appears in that area your writing?

A.   Yes, it is.

Q.   And is that initialed by yourself?

A.   Yes.

Q.   And directing your attention to what's been marked as State's Exhibit 119, can you identify that item?

A.   Yes, I can.  And again, by my unique crime lab item number, case number, and my initials attached to this.

Q.   Okay.  Do these items today appear to be in substantially the same condition as when you received them on May 4?

A.   Yes, they do.

Q.   Please take the stand.

[The witness returned to the stand.]

MR. SMEAL:  Your Honor, at this time, the state would move to admit State's 116 and 119.

THE COURT:  All right.  116 is the patch on the side of the car seat.  Any objection?

MS. ROGAN:  No objection subject to our prior objections which the Court has already ruled on in hearings.

THE COURT:  All right.  State's 116 is admitted without objection with the note that there's no waiver of any prior objection imposed before trial.  What was the other exhibit?

MR. SMEAL:  119, Your Honor.  It's also the armrest.

THE COURT:  119 is the driver's side armrest?

MR. SMEAL:  That's correct, Your Honor.

THE COURT:  Any objection?

MS. ROGAN:  No, Your Honor.  Sorry.

THE COURT:  State's 119 is admitted without objection.

MS. ROGAN:  Subject to our prior objections.

THE COURT:  All right.

BY MR. SMEAL:

Q.   After receiving State's 116, which is the car seat, Ms. Wilson, did you test that item for the presence of blood?

A.   Yes, I did.

Q.   And would you explain to the jury how you did that?

A.   Initially, in many cases what I'll do is I'll look for a characteristic reddish-brown stain.  In this case, due to the color of the material on the car seat, I did look for stains, but it was also -- my intention was directed to these areas by one of the investigating officers.  And then what I do is when I find a stain or questionable area, I'll take two cotton-tipped applicators, that just looks like long Q-tips and I'll moisten those with saline solution.  I'll get part of the stain off and I'll conduct a chemical test which in the presence of blood will turn -- it's actually two tests.  And in the presence of blood, I will get two significant color changes.

Q.   Okay.  Did the two tests that you ran, did they have a name?

A.   Yes.  The first test, the chemical is called tetramethylbenzadine, but we abbreviate that TMB, and the other one is phenolphthalein, and do you need me to spell those?

Q.   That's okay.

A.   Okay.  And that's generally what the tests are called.  They're just named by the chemicals that we use.

Q.   And did you in fact perform those two tests on the car seat?

A.   Yes, I did.

Q.   Okay.  And did you perform those tests in an acceptable scientific manner?

A.   Yes, I did.

Q.   Based upon your past education, training, and experience in the area of forensic serology and the use of those tests on the car seat, did you arrive at an opinion as to whether there was blood on the car seat?

A.   Yes.  The tests did reveal to me the presence of blood.

Q.   Okay.  Would you come down and show the members of the jury where that blood was located?

A.   [Stepping to the jury box]  The blood would have been located in this area, and then after determining --

Q.   You can use this -- excuse me for one second,    Ms. Wilson.

A.   Oh, I'm sorry.

Q.   You can use that.

A.   After determining that it was in fact blood, I just removed this area and attached that to a three by five note card.  I also cut out a control area that would be used if further blood grouping was done.  I removed that just in case I needed a control sample for any type of interference based on the material on the car seat, so that's why these areas are removed.

Q.   Please take the stand again, Ms. Wilson.

[The witness returned to the stand.]

MR. SMEAL:  Your Honor, at this time I would ask that this be marked as the State's next Exhibit.

[State's Exhibit Number 130 was marked for identification by the court reporter.]

BY MR. SMEAL:

Q.   Ms. Wilson, I'm handing you what's been marked as State's Exhibit 130.  Can you identify this item?

A.   Yes, I can.  And again, I've written our crime lab case number, item number, and my initials, and also the date.  This is the section of the car seat that was removed for further testing.

Q.   Okay.  Did you remove that item?

A.   Yes, I did.

Q.   Okay.  What did you do with it after you removed it?

A.   I then placed this envelope into -- I sealed the envelope and then placed it into a locked freezer in our section.

Q.   Did there come a time when that swatch of material was transferred to the DNA section for further analysis?

A.   Yes.

Q.   Was that done on June 30, 1993?

A.   Yes, it was.  It was transferred to Keith Goff.

Q.   Ms. Wilson, did you conduct any tests to determine whether or not the blood that you located on the car seat was of human origin?

A.   Yes, I did.

Q.   And how did you do that?

A.   The test that we use to determine species origin is similar to -- it's an antigen antibody reaction similar to immunization, the same reaction that goes on in your body, and so the test is called a precipitin tube method of determining species origin.  And in the presence of human blood, you will actually observe a physical line between two layers of serum and anti-serum.  And if you see that line, then it's positive for human blood, and that did occur in this case.

Q.   Did you also perform a test on State's Exhibit 119?

A.   Yes, I did.

Q.   Okay.  What type of test did you perform on that item?

A.   I performed the two initial chemical color tests on this item, and according to my notes, I performed that up in this area, in the top area, and they were positive, but there was not enough to determine whether it was human blood, so it -- excuse me.  It suggested the presence of blood;  however, there was inadequate sample to confirm that and to determine species origin.

Q.   So your tests led you to the opinion that there was blood on that item, but you did not have sufficient evidence to conclude whether or not it was of human origin?

A.   Yes.

Q.   Could you once again -- could you come down before the jury, please, and point out on this item where the suggestion of blood was made?

A.   [Stepping to the jury box]  According to my notes, it was on this top area.  And again, I would just swab that with moistened Q-tips and then conduct my chemical testing, but it was on the top area.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   I'm handing you what's been marked previously as State's Exhibit 115.  Can you identify that photograph?

A.   Well, I haven't ever seen it before.

Q.   You have not seen this photograph before?

A.   No, I haven't.

Q.   With respect to the swatches that you have testified regarding, the one that you removed, did you do anything to that item prior to passing it on to the DNA unit, Keith Goff?

A.   Aside from placing it in the freezer, no.

Q.   Were there any chemical agents or anything else added to that section of the car seat at that time?

A.   After my chemical testing, no, I didn't add anything to it.

Q.   I want to direct your attention to May 4, again, of 1993, did you receive another item of evidence in this case, specifically, a raincoat?

A.   Yes, I did.

Q.   And who did you receive that from?

A.   I also received that from P. T. Swanson.

Q.   What did you do with that item when you received it?

A.   Initially, I placed that item in the freezer.  There was some discussion on whether or not further testing would be done on that, and so that was placed in the freezer just to maintain the best possible condition of any samples that would be on that item.

Q.   And is that the same freezer in the same secured area that you alluded to earlier?

A.   Yes, it is.

Q.   All right.  And did you do any tests with respect to that raincoat?

A.   Yes, I did.

Q.   Let me first of all show you what's been marked as State's Exhibit 128.  Can you identify, first of all, the paper bag itself?

A.   Yes, I can.  And again, there is our unique crime lab case number, item number, and my initials.

Q.   I'm also showing you what's been marked as State's Exhibit 129.  Can you identify that item?

A.   Yes, I can.  And again, there is our case number, item number, and my initials.

Q.   Did you conduct any tests on this item?

A.   Yes, I did.

MR. SMEAL:  Your Honor, at this time, the state would be moving to admit State's Exhibits 128 and 129.

THE COURT:  Any objection, Mr. Moore?

          MS. ROGAN:  Subject to our prior objections, we have no objection -- no further objection.

THE COURT:  All right.  Is that State's 128 and 129 or 128?  Did you offer 128 or --

MR. SMEAL:  Your Honor, 128 is the paper bag --

THE COURT:  Okay.

MR. SMEAL:  -- and 129 is the raincoat.

THE COURT:  Okay.  Did you offer one or both?  I don't remember.

MR. SMEAL:  I'm sorry?

THE COURT:  Did you offer one of them or both of them?

MR. SMEAL:  I'm offering both of them, Your Honor.

THE COURT:  Any objection to either one, Ms. Rogan?

MS. ROGAN:  No, Your Honor.

THE COURT:  State's 128 and 129 are admitted without objection.  Go ahead, please.

BY MR. SMEAL:

Q.   What tests did you run on the raincoat,         Ms. Wilson?

A.   I tested several stains for the presence of blood and also species origin.

Q.   And did you utilize the same tests that you have alluded to earlier?

A.   Yes, I did.

Q.   And based upon your education, training, and experience in forensic serology and the use of those tests on that raincoat, did you arrive at an opinion as to whether there was blood on the raincoat?

A.   Yes, I did.

Q.   And what was that opinion?

A.   That the stains that I tested revealed the presence of blood of human origin.

Q.   If you could, please, come down for one second, ma'am.

[The witness stepped down to the jury box.  Mr. Smeal positions raincoat on the easel.]

BY MR. SMEAL:

Q.   Directing your attention, Ms. Wilson, to the raincoat that you've just described, there appear to be some markings on this raincoat.  Can you explain those to the jury, how those marks came to be and also explain further the location of the blood that you concluded was on the raincoat?

A.   Some of the markings, to my understanding, were made by Kelly Fite.  The markings that I made were the ones done in blue ink there on the front, on the right and the left side, and also on the left sleeve of the jacket.  And these are the areas that I tested.

Q.   Were the tests that you have explained done with respect to each mark that's labeled with a blue circle?

A.   Yes.

Q.   And the test results that you've alluded to the presence of human blood, did you arrive at that opinion with respect to each blue circle?

A.   Yes, I did.

Q.   Please take the stand.

[The witness returned to the stand.]

BY MR. SMEAL:

Q.   And the test results that you have alluded to or testified to here today, do you hold those opinions to a reasonable degree of scientific certainty?

A.   Yes, I do.

Q.   Are the testing procedures that you utilized in this case reliable procedures?

A.   Yes, they are.

Q.   One last point, Ms. Wilson.  On July 6, 1993, did you receive the stain and the blood evidence back from       Mr. Goff?  Do your records indicate that?

A.   On July 6, 1993, yes, I did.

MR. SMEAL:  No further questions at this time, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  Ms. Rogan's going to handle this witness.

THE COURT:  All right.  Ms. Rogan?

     CROSS EXAMINATION

BY MS. ROGAN:

Q.   Hi, Ms. Wilson.

A.   Hi.

Q.   We've met before, haven't we?

A.   Yes, we have.

Q.   We came out to look at all this evidence at the crime lab in March, I believe it was; is that right?

A.   It's been a while.  Yes, I believe that's right.

Q.   My condition's changed a bit.

A.   It has.  Congratulations.

Q.   I see you're referring to notes that you've brought along with you --

A.   Yes.  Uh-huh [affirmative].

Q.   -- for testifying today.  Do you have any personal recollection of the things you've been testifying about?

A.   Yes, I do.

Q.   Okay.  Is it helpful for you to refer to your notes, though, to --

A.   Yes, it is.

Q.   -- get certain details straight?

A.   Yes.

Q.   And on the vials of blood that you identified, State's Exhibit 100 and State's Exhibit 25, do you have any personal knowledge, Ms. Wilson, as to where that blood came from?  What person it was drawn from?

A.   No, I don't.

Q.   Okay.  Are you just relying on what it's   labeled  --

A.   Yes.

Q.   -- to say?

A.   Yes.

Q.   Now, on the car seat, I'm going to leave this just where it is, even though it's somewhat in the way, because it's hard for me to move around, but actually --

MR. MOORE:  Do you want me to move this?

MS. ROGAN:  Could you help me just a minute, please?

MR. MOORE:  Where do you want it?

MS. ROGAN:  Back a little.  Thanks.

BY MS. ROGAN:

Q.   Could you come down for a moment for me,        Ms. Wilson, and try to clarify a couple of things with this car seat.

A.   [Witness complies]

Q.   You testified that -- well, first of all, you testified that you weren't able to see any blood just with the naked eye.

A.   Yes.  Well, it was hard to see, and as you can tell, there was -- there's material on the seat and it was difficult to see so --

Q.   There's all this sort of dried gunk, right?

A.   Right.  Uh-huh [affirmative].

Q.   Do you know what that's from?

A.   No.  It was indicated to me that there was some field testing done, but that Luminol was used, which is another chemical that is often used in the field, and that may be a result of this.  I can't be sure.

Q.   Are you familiar with Luminol?

A.   Uh-huh.  Yes, ma'am.

Q.   Okay.  And you said someone had directed your attention to this area?

A.   Yes, that's correct.

Q.   Who was it that directed your attention to that area?

A.   If I could refer to my notes.

Q.   Okay.  Go ahead.

A.   [Returning to the stand]  I believe it was Jack Burnette with the Gwinnett County police department.

Q.   Okay.  Actually, you can probably just stay there.

A.   Okay.

Q.   And I just have one more question that involves this particular item.  You indicated over here there was a control area that you removed?

A.   Yes.

Q.   What exactly did you mean by that?

A.   A control area is an area near the stained area that can -- that you assume has had the same environmental insults as the area that has the stain on it.  And what I mean by that is detergents that have been used or any type of chemical or anything that may have been -- may affect the area that's stained, you can assume that it also has affected a nearby area.  So in some testing, such as ABO typing, a lot of chemicals can interfere with the result that you get in ABO typing and so as a rule we just remove a control stain area and so --

Q.   So if I can put it in simpler terms, if somebody had spilled a can of soda on the car seat, you'd expect the same contamination or whatever might occur from that on this area as on the area you're testing?

A.   Right.  And sometimes you can't always get the same type of stains or whatever because, you know, you may leave that area, but you want to get far enough way from the biological stain to get a representative control.

Q.   Okay.  But do I understand correctly when what I think you're saying is that on the control area itself, there was no blood?

A.   That's correct.

Q.   Okay.  You just took that --

A.   Yeah.  And that area was tested for the presence of blood and it was negative.

Q.   It was negative?

A.   Uh-huh [affirmative].

Q.   So you were just using it as a control to see what other substances there might be on the fabric that you'd expect to be throughout on all the fabric?

A.   Right.  Or just to indicate to me that whatever other substances that may be there weren't interfering with the tests that I was conducting.

Q.   Okay.  Okay.  I just want to make sure that I and the jury understand what you were talking --

A.   Yeah.

Q.   And one last thing with the armrest, Exhibit 119 here, you indicated, I believe, that there was something on the top area you referred to as --

A.   Yes.  Yes.

Q.   -- that you thought could be blood but you weren't able to tell for sure?

A.   Well, the two chemical tests that I used were positive for blood, but there wasn't enough present to do a human --

Q.   So all you were able to tell it was blood from some source?

A.   Right.  That's correct.

Q.   Okay.  And just, if I could, did you ever match these up to see how they would fit in the car?

A.   No, I didn't.

Q.   Okay.  Now, when you received these items, the car seat and the armrest, you've told us that you put the armrest in your evidence locker, I believe?

A.   Yes, that's correct.

Q.   Okay.  And you put the car seat itself in what you referred to as a cold storage room?

A.   Yes.

Q.   Is that a large refrigerated area?

A.   Yes.  It's a locked room in our section and the only people who have a key to that are the other members of the DNA serology unit.

Q.   And this was done in May -- May 13 or May 4? Excuse me.

A.   May 4.

Q.   It's May 4 you received these?

A.   Of '93.

Q.   Do you have any knowledge as to when these particular items were collected at the police department?

A.   Oh.  At the police department, no.

Q.   Okay.  So you don't have any personal knowledge or knowledge of any kind as to how long they might have been in an unrefrigerated state?

A.   No, I have no knowledge of that.

Q.   Okay.  And I believe you mentioned when you got this raincoat, you also put it in a refrigerator?

A.   Yes, I did.

Q.   And it remained in the refrigerator for quite some time, didn't it?

A.   Yes, it did.  I'm sorry.  Actually, that was a freezer.

Q.   Okay.  This was actually in a freezer?

A.   Yes.

Q.   And the car seat was in a non-freezing environment, just cold.  How cold was it, I guess?

A.   I believe it stays at approximately forty degrees.

Q.   And that's above freezing, obviously.  For how long was the car seat kept in that refrigerated setting?

A.   That -- from May 4 until May 12.  And May 12 is when I did my analysis on that.

Q.   Okay.  And May 4 was the first time, to your knowledge, that the car seat had ever been in a refrigerated environment?

A.   Yes.

MS. ROGAN:  Just a moment, Your Honor.

BY MS. ROGAN:

Q.   If you can come back on down, I have a couple of questions about this raincoat here.

A.   [Witness complies]

Q.   You've pointed out for the jury, I believe, various other markings that you've made with the blue magic marker --

A.   Yes.

Q.   -- when did you make those markings?

A.   Excuse me.

Q.   That's okay.

A.   [Returning to the stand]  Those were made on July 7, 1993.

Q.   Okay.  And I see there are a couple of initials here.  Your initials are JSW?

A.   [Stepping down from the stand]  Yes, they are.

Q.   Okay.  So you made markings up here near the neck?

A.   Yes.

Q.   Up here on the left shoulder?

A.   Yes.

Q.   Over here on the right chest area, sort of under the arm?

A.   Yes.

Q.   And then right here in the front?

A.   Yes.

Q.   Right here?

A.   Yes.

Q.   Underneath a button area and here on the left sleeve?

A.   Yes.

Q.   Another one on the left sleeve?

A.   Yes, I had two.

Q.   Okay.  All right.  Those are yours.  And those are the areas that you tested for blood which you determined to be of human origin?

A.   That's correct.

Q.   Okay.  And there are a bunch of other markings that are made with a pen or something, and you said you believed those had been made by Kelly Fite?

A.   Yes.

Q.   Okay.  Do you have any idea when those were made?

A.   No, ma'am, I don't.

Q.   Okay.  Do you recall whether these were on the raincoat at the time we came to look at it in March of this past year, 1995?

A.   I don't believe they were, but I can't be sure.  I don't --

Q.   Okay.  So you think it's possible that these -- the marks he made were made after the time we came to look at the raincoat?

A.   That's possible.  I don't remember.

Q.   Okay.  But at the very least, you never tested any of these areas that he's marked --

A.   No, I didn't.

Q.   -- for blood?

A.   No.

Q.   Okay.

A.   [The witness returned to the stand.]

Q.   Ms. Wilson, did you ever receive any rain pants from the police department?

A.   No, I didn't.

Q.   Okay.  So it's fair to say you never did any testing of any rain pants?

A.   No, I didn't.

Q.   And did you ever receive a flashlight?

A.   No, I didn't.

Q.   Okay.  Did you ever receive -- so it's fair to say you never did any testing on a flashlight?

A.   No, I didn't.

Q.   All right.  Did you ever receive any gloves --

A.   No.

Q.   -- from the police department in connection with this case?

A.   No, I didn't.

Q.   And so you never did any testing of any gloves?

A.   No, ma'am.

Q.   Okay. 

MS. ROGAN:  One moment.  That may be all I have. [Pause] I do have a couple more. 

BY MS. ROGAN:

Q.   Did you ever receive a plastic covering for a hat, a police hat?

A.   No, I didn't.

Q.   Okay.  So you never did any testing on that --

A.   No.

Q.   -- if such an item existed?  Did you ever receive a police campaign hat?

A.   I'm sorry?

Q.   I can show you, actually.  Did you ever receive this item, State's Exhibit 125?

A.   No, I didn't.

Q.   Okay.  So you didn't do any testing?

A.   No.

Q.   Okay.  And the tests that you performed on the rain jacket you identified as indicating blood of human origin?

A.   Yes.

Q.   Was any testing done to determine whose blood that was?

A.   To my knowledge, no.

Q.   Okay. 

MS. ROGAN:  That's all.  Thank you.

THE COURT:  Redirect?

MR. SMEAL:  Just a couple of questions, Your Honor.

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Did you receive a leather gear set --

A.   Yes, I did.

Q.   -- in this case?  Was that tested for the presence of blood?

A.   Yes, it was.

Q.   Did you receive a pair of boots in this case?

A.   Yes, I did.

Q.   Was that tested for the presence of blood?

A.   Yes, it was.

Q.   Did you find blood on either of those items?

A.   No, I did not.

Q.   With respect to State's Exhibit 119, just so it's clear for the record, I believe you showed the jury where the blood was located on this item; is that correct?

A.   Yes.

Q.   Okay.  Is this your handwriting right there?

A.   No.  I don't believe it is.

Q.   Okay.  Could you again, so the record is clear, indicate on this item where the blood was located on the armrest?

A.   Actually -- according to my notes, I believe it was on this top surface of the armrest.

Q.   Okay.  Are you indicating the surface that's the opposite from where the exhibit tag is?

A.   That's what I'm indicating, yes.  I can't be sure which side, but I believe it's this side opposite the tape.

Q.   Okay.  Well, do you need some time to consult your notes further?  Would it --

A.   Well, I just -- according to the illustration that I've drawn, it looks like it is this surface.

Q.   The surface opposite the --

A.   The tape.

Q.   -- the tape?

A.   Yes.

Q.   Okay. 

MR. SMEAL:  No further questions.

THE COURT:  Recross?

MS. ROGAN:  Just briefly.

     RECROSS EXAMINATION

BY MS. ROGAN:

Q.   I just want to clarify that this armrest that you were referring to -- you're not sure which side of it the blood was on?

A.   Well, again, according to the illustration that I've made, it is on the side that's opposite the tape.

Q.   Okay.

A.   The exhibit.

Q.   Okay.  But when the pieces came to you, were they separate like they are now?

A.   Yes, they were.

Q.   Okay.  So do you have any idea how this fits on to the car, whether it would go this way or this way? 

A.   No, I don't.

Q.   Okay.  And so you're not really able to say whether it's the top or the bottom of this particular armrest?

A.   No, I'm not.

Q.   Okay. 

MS. ROGAN:  That's all I have.

THE COURT:  Any other question of this witness?

MR. SMEAL:  No, Your Honor.

THE COURT:  Do you wish this witness to remain on call?

MR. SMEAL:  Yes, please.

THE COURT:  All right.  You'll be subject to being recalled at a later time.  You can come down.

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:  How long is Mr. Fite going to be, do you think?

MR. PORTER:  Your Honor, he has three things.  He has the bullets from the source -- source weapon, he has the high velocity blood spatter, the jacket, and he has the exclusion of the RG.

THE COURT:  Okay.  We're going to be a while.  I think we'll take ten minutes before we start him and then just go straight through.  Okay.

MR. PORTER:  All right.

[Bench conference concluded.]

THE COURT:  The next witness may be a while.  I think before we start that, we will take ten minutes and then we will commence with the next witness and try to finish that before we recess for the evening.  We'll take ten minutes at this point.

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

THE COURT:  Anything else at this point,        Mr. Porter?

          MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  We'll take ten minutes.

[A brief recess was taken in the proceedings.]

THE COURT:  Let's go back to the start and put it on the record, please.

MR. MOORE:  Your Honor, we expect the next witness who's going to be called is Kelly Fite from the state crime lab.  We expect the state is going to try to introduce through him what's known as blood spatter evidence on this raincoat.  I don't remember the exhibit number it is for the state.

MR. PORTER:  Your Honor, it's easier to turn the easel.

THE COURT:  129, I believe.

MR. MOORE:  129.  Okay.

MR. PORTER:  129.

MR. MOORE:  State's 129, Your Honor.  And the evidence shows that Ms. Wilson, who just testified from the state crime lab, only tested the areas which are circled in blue.  There's only a very few of those on the raincoat for human blood.  The other ones which have marks on them, and those markings were added since March when we went to the crime lab and looked at the evidence, the ones that are not in blue have been added to it.  There's absolutely no evidence been presented that they're human blood or what kind of blood it is and we object --

MS. ROGAN:  Or blood at all.

MR. MOORE:  I'm sorry?

MS. ROGAN:  Or blood at all.

MR. MOORE:  Or blood at all and we object to Kelly Fite, unless he can -- unless he can testify that that's blood and he's tested it somehow, coming in here and characterizing stains on there as blood stains, human blood stains.  And that's what we believe the state intends to do and we object to it, Your Honor, because we don't think he's qualified to look at it and say that's human blood.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, in fact, that is what we intend to do; and, in fact, we insist that Mr. Fite is qualified to say that that is consistent with human blood, that is consistent with his experience of the examination of garments, that the spots circled in black are consistent with the spots circled in blue which have been proven to be human blood and that that is the essence of his expertise.

          And, Your Honor, we would -- Mr. Moore's theory would require that a forensic chemist test every square centimeter of a kilo of cocaine in order to conclude that the whole block is cocaine.  And, Your Honor, I think that the scientist, once his expertise has been established, then if that expertise leads itself to the conclusion, then he's allowed to give that conclusion.  If Mr. Moore wants to cross-examine him and bring out that he didn't test it for human blood, he can bring that out.

THE COURT:  Let's see what he says, Mr. Moore, and I'll hear your objection before he testifies that they're all blood spatters or whatever, and let's see what he says by way of preliminary matters and laying the foundation.

MR. MOORE:  All right.

THE COURT:  And take it up at that point.  We'll do it at the bench if you like or send the jury out.  All right.  Is the state ready?

MR. SMEAL:  Yes, Your Honor.

THE COURT:  Defendant ready?

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:  Who do you call next, Mr. Porter?

MR. SMEAL:  The state calls Kelly Fite, Your Honor.

[The witness was called to the courtroom.]

THE COURT:  Mr. Fite, if you'll take the witness stand up here, Mr. Smeal will administer the oath.

THE WITNESS:  Yes, sir.

[The witness stepped to the stand.]

MR. SMEAL:  Please be seated, sir.  Would you 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:  I swear.

Whereupon,

     KELLY FITE

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.   Kelly Fite, F-i-t-e.

Q.   What is your occupation, sir?

A.   I work for the GBI crime laboratory.

Q.   And what particular areas do you -- are you engaged in with the crime lab?

A.   I'm a firearms and tool mark examiner, and I also do crime scene investigations.

Q.   How long have you been so employed?

A.   About twenty-seven years.

Q.   What are your duties as a firearms examiner with the state crime lab?

A.   I examine firearms and firearms related evidence in all of its aspects, and I report my findings to the courts.

Q.   What is your education, training, and experience in the area of firearms examination?

A.   I have a B.S. degree in chemistry, and I've worked at the crime lab for a little over twenty-seven years under several crime lab directors, the present one being Dr. Byron Dawson.  I've attended schools and seminars all over the country concerning firearms and firearms related evidence.  I'm a member of the Association of Firearms and Tool Mark Examiners.

Q.   During your career, Mr. Fite, how many firearms have you examined?

A.   More than fifty thousand firearms.

Q.   How many times have you testified in court?

A.   I've testified in superior courts in the Southeast about twenty-five hundred times.

Q.   Do you also have training and experience and education in the area of tool marks, Mr. Fite?

A.   I do.  That's part of my duties.

Q.   Would you explain to the jury what is meant by tool marks?

A.   A tool mark, as I refer to tool marks, is a mark made by a tool.  It's a mark made by something harder than its target and it will make its mark time and time again until it's changed in some way either by oxidation, use, or breaking.

Q.   Have you had occasion during your time at the state crime lab to examine tires as part of a tool mark investigation?

A.   Yes.

Q.   Have you had occasion to examine tires for the purpose of determining how a puncture mark was placed on the tire?

A.   I have.

Q.   Have you testified to that area before?

A.   I have.

MR. SMEAL:  Your Honor, at this time, the state would be offering Mr. Fite as an expert in the area of firearms examination and also tool marks.  We are reserving a third area of expertise depending upon some issues that were raised prior to the break.

THE COURT:  All right.  Do you wish to voir dire the witness, Mr. Moore?

MR. MOORE:  Not at this time, but I believe if the state intends to go into the area they talked about, they're going to have to lay a foundation for it before they do.

THE COURT:  All right.  Yes, sir.  The Court finds him qualified.  Go ahead, please.

BY MR. SMEAL:

Q.   Mr. Fite, I'd like to hand you a couple of exhibits if I can.  First of all, I'm handing you what's been marked for identification purposes as State's Exhibit 106.  Can you identify that item, please.

A.   And its container?

Q.   Yes, sir.  I'm also handing you State's 104 and also State's Exhibit 105.  If you can examine those items, please.

A.   I recognize and identify State's Exhibit 106.  It's a small plastic film canister.  It contains a .38 caliber lead bullet.  The first time that I saw State's Exhibit 106 was on the 19th day of April when Mary Ann White of the Gwinnett County police department brought this bullet to the crime laboratory and turned it over to me, and it was contained in State's Exhibit Number 105 and State's Exhibit 104 when she brought it to the crime lab.

Q.   I'm also showing you what's been previously been marked as State's Exhibit 110 as well as State's Exhibit 109 and also 108.  Can you identify each of those items by number, please?

A.   I recognize and identify State's Exhibits 110.  It's a small film canister.  It contains a .38 caliber lead bullet.  The first time that I saw State's Exhibit 110 was on the 22nd day of April when Middleton, an ID technician from the Gwinnett County police department, brought this bullet to the crime laboratory and turned it over to me, and it was contained in State's Exhibits 108 and 109.

MR. SMEAL:  Your Honor, at this time, the state would move to admit State's Exhibits 108, 109, 110, also State's Exhibits 106, 105, and 104.

THE COURT:  Mr. Fite, you said it was April 22nd when you received what's been marked as State's 108, 9, and 10.  Was that 1993?  Was that the year?

THE WITNESS:  1993 on both items, sir.

THE COURT:  All right.  State's 104, 5, and 6 and State's 108, 9, and 10 are offered.  Any objection?

MR. MOORE:  Your Honor, we would object.  We don't believe that these have been clearly -- some of these have not been clearly enough connected and the chain of custody hasn't been connected up.

THE COURT:  State's 104, 5, and 6 are admitted over objection.  State's 108, 109, and 110 are admitted over objection.  Go ahead, please.

BY MR. SMEAL:

Q.   After receiving the two projectiles that you have identified here in court, Mr. Fite, did you conduct an examination of those items?

A.   Yes, I did.

Q.   And what was the purpose of your examination of those items?

A.   It was requested by the Gwinnett County police department that I examine the two bullets to determine the type weapon that they were possibly fired from and determine if they were fired in the same weapon.  And I did these tests.

Q.   Mr. Fite, is it possible to determine what type of weapon is used to fire particular bullets?

A.   Yes.

Q.   How do you do that?

A.   The first thing you do is determine the caliber of the bullet.  And then after you determine the caliber, then you look at the rifling structure on the bullet.  Most modern firearms are rifled by the manufacturer.  The manufacturer will put a number of small raised ridges in the bore of the weapon that run from the chamber to the end of the muzzle.  The manufacturer will incline these either to the left or the right so that when a bullet moves down the barrel, it's a little bit larger than the raised ridges in the barrel, so they impress themselves into the surface of the bullet.  They impart a spin to the bullet as it leaves the barrel and the bullet is spinning and it makes it gyroscopically stable and makes the gun accurate.

     These riflings that are impressed into the surface of the bullet will remain there until the bullet's mutilated or decomposes.  If you determine the caliber of this bullet, you measure the rifling impressions in the bullet, then you can get an idea as to the type and brand of weapon that fired the bullet.

Q.   And did you perform that examination with respect to those two projectiles that you've identified?

A.   I did.

Q.   All right.  And did you arrive at an opinion as to the type of weapon which must have fired those projectiles?

A.   I did.

Q.   And do you hold that opinion to a reasonable degree of scientific certainty?

A.   I do.

Q.   Based upon your education, training, and experience in the area of fire marks examination and the particular examination you did of those two projectiles, what is that opinion?

A.   Both bullets have a rifling structure of eight lands that are inclined to the right.  The measurements of these lands is anywhere from fifty-nine thousandths of an inch up to about sixty-three thousandths of an inch.  This rifling structure with these measurements indicate the bullets were probably fired from a Charter Arms or an RG .38 or .357 magnum revolver.

          THE COURT:  Would you repeat what you just said?  I did not understand all of it.  It was fired from what kind of weapon?

THE WITNESS:  A Charter Arms or an RG, a .38 or .357 magnum revolver.

THE COURT:  Thank you.

BY MR. SMEAL:

Q.   Mr. Fite, a Charter Arms and RG, what are those?  Are those brand names, manufacturer names, or -- could you tell the jury?

A.   A Charter Arms is a, in this case, a .38 or .357 magnum revolver.  It's manufactured in Connecticut, in the United States.  An RG is a .38 or .357 magnum revolver that's manufactured in West Germany, and most of them where put together in Florida.

MR. SMEAL:  Your Honor, at this time, I would ask that this item be marked for identification purposes.  Mr. Fite, let me clear off some of this material.

[State's Exhibit Number 131 was marked for identification by the court reporter.]

THE COURT:  May I see it, Mr. Smeal?

MR. SMEAL:  Pardon me?

THE COURT:  May I see it.

[Presenting to the Court]

THE COURT:  Thank you.

BY MR. SMEAL:

Q.   Mr. Fite, I'm handing you what's been marked for identification purposes as State's Exhibit 131.  Can you identify that item?

A.   I recognize and identify State's Exhibit 131.  It's an RG.  It's a .38 caliber, six-shot revolver.  The serial number is R079771.  The first time that I saw State's Exhibit 131 was on the 18th day of August of this year when Richard Hinson of the DA's office in Gwinnett County brought this revolver to the crime laboratory and turned it over to me.

Q.   And did you conduct a firearms examination of that item?

A.   I did.

Q.   Okay.  And what was the purpose of that examination?

A.   To determine if State's Exhibits 106 and 110 could have been fired from State's Exhibit 131.

Q.   Okay.  And how did you go about in determining whether or not that was possible?

A.   I test-fired the RG revolver, State's Exhibit 131.  I fired it in a tank of water so that I could recover my test bullets without any mutilation.  I collected these test bullets, marked them as test, and then compared them microscopically with State's Exhibits 106 and 110.

Q.   And did you arrive at an opinion as to whether that revolver could have fired State's Exhibits 106 and 110, the two projectiles?

A.   I did.

Q.   And do you hold that opinion to a reasonable degree of scientific certainty?

A.   I do.

Q.   Based upon, Mr. Fite, your training and experience and education in the area of firearms examination and the tests that you did on State's Exhibit 131, what is your opinion as to whether that revolver could have fired those two projectiles?

A.   State's Exhibit 131, the RG revolver, could not have fired State's Exhibits 106 and 110.  It has a rifling structure of eight grooves inclined to the right, but the rifling structure is much larger in width than that of State's Exhibits 106 and 110.

Q.   Mr. Fite, directing your attention to April 22 of 1993, did you receive an item of evidence in this case, that is to say, a tire?

A.   I did.

Q.   And who did you receive that from, if you recall?

A.   ID Technician Middleton from the Gwinnett County police department.

Q.   And did you perform an examination of that tire?

A.   I did.

Q.   And what was the purpose of that examination?

A.   To determine if it had been punctured by some type of object, and I made this test.

Q.   If you could just come down from the stand for one second.

A.   [Witness complies]

Q.   Directing your attention to State's Exhibit 24, could you, first of all, take a look at that item and identify it, if you can?

A.   Yes.  State's Exhibit 24 is the tire that came to the crime laboratory on the 22nd of 1993.

Q.   Okay.  And would you describe the condition of that tire when you received it?

A.   It was essentially in the same condition it is now, except it was intact, and it didn't have these pieces of the sidewall cut out of it.

Q.   Okay.  Did you observe any puncture marks in the tire at that time?

A.   Yes.  There was a puncture in the sidewall of the tire approximately in this location right here that went all the way through the sidewall of the tire.

Q.   As part of State's Exhibit 24, I'm directing your attention to a small piece of rubber.  Can you identify that item as part of State's Exhibit 24?

A.   Yes.  This is a portion of the sidewall.  It was in this location before I cut it out and there was a puncture wound in this area right here above the first E on steel that went from outside to inside.

Q.   Okay.  And did you conduct an examination as to what caused that puncture mark in that tire?

A.   Yes.  I opened this cut up so that I could look at it more closely, especially the inside of the sidewall.  And also I examined the outside of the tire, looking for evidence of abrasions or anything on the tire that might be caused by scraping up against a curb or by some road hazard, and I didn't see that.  What I did find is when I opened the question cut up, I found a cut that was -- or a puncture that was made by an instrument that has one dull side and one sharp side and -- indicative of a knife blade.

Q.   Is there a particular reason why this larger area of the tire has also been removed?

A.   Yes.  My tests were -- the tests that I used to compare against submitted tools were cut from this section of the tire.

Q.   That was cut out as part of the testing process?

A.   Yes.

Q.   And you're indicating that based upon your training, education, and experience that the puncture mark is consistent with having been made with a single-edged blade?

A.   Yes.

Q.   All right.  And would that be consistent with a knife?

A.   Yes.

Q.   Did you find or locate any evidence or did anything in your examination lead you to believe that that tire blew for some -- because it struck some object in the road, in a natural course of running on a vehicle?

A.   There's no indication that the tire's been run flat.  There's no indication on the inside of the tire under the tread that something else has punctured this tire.  This is the only hole that I found in the tire.

Q.   Please take the stand again, Mr. Fite.

[The witness returned to the stand.]

          MR. SMEAL:  Your Honor, may we approach the bench?

THE COURT:  Yes, sir.

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

MR. SMEAL:  It would be the state's intention at this time to go into high velocity blood testimony with Mr. Fite, and I'm unprepared to proceed in front of the jury at this time subject to prior objections.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, no foundation's been laid to show he has any experience in it or --

MR. SMEAL:  That's what I'm getting into -- I'm going to get into next.  I just want to forewarn --

THE COURT:  I think I'm inclined to just proceed on with the -- well, do you want the jury in or out?

MR. MOORE:  Well, Your Honor, I'd like to find out what kind of experience he's got before we get into it.  I mean --

THE COURT:  It might be good to have the jury out.  One other thing is nobody -- I don't recall any testimony as to him having an opinion to whether both of those slugs were fired from the same gun or not.  Maybe he did and I didn't hear it, but it seems to me that's something if he knows one way or the other, that's part of the evidence that ought to be in.

MR. SMEAL:  I think he alluded to it, but I'll make it clear.

THE COURT:  Maybe he testified to that, and I just didn't hear it.

MR. SMEAL:  Okay.

THE COURT:  Okay.  I'll send the jury out for a minute.  Let's go into foundation requirements.

MR. SMEAL:  I'll go ahead and raise the -- settle that issue and then we can send them out.

THE COURT:  All right.  That'll be fine.

[Bench conference concluded.]

THE COURT:  Go ahead, Mr. Smeal.

BY MR. SMEAL:

Q.   Mr. Fite, referring back to the projectiles that you examined, State's Exhibits 106 and 110, I'm not sure you made this clear or I'm not sure that I asked the question, but do you have an opinion as to whether those two projectiles were fired from the same gun?

A.   They're the same type of ammunition, they show the same class characteristics, and they have some individual characteristics.  I came to the conclusion that they were probably fired in the same weapon; however, both of them are mutilated, and it's difficult sometimes to compare one mutilated bullet to another.

MR. SMEAL:  I have no further questions on that issue at this time, Your Honor.

THE COURT:  All right.  I believe we have a matter that won't require the jury's presence, so we're going to give you a brief recess while we resolve some other matters and then we will recommence the testimony in a few minutes.  If you'll go with the bailiff, please.

[The jury was excused from the courtroom and proceedings continued, as follows, with the jury not present.]

          THE COURT:  Mr. Smeal, go ahead with the foundation and let's see where we are.

     DIRECT EXAMINATION - JURY OUT

BY MR. SMEAL:

Q.   Mr. Fite, do you have training and education and experience in the area of high velocity blood spatter?

A.   I do.

Q.   Would you explain to the Court, first of all, what is high velocity blood spatter?

A.   It's a blood spatter that's more like a mist than it is drops.  It's created by something that has a lot of force, such as an explosion, like a gunshot, to flesh that causes tiny drops of blood to explode out into the air in a mist.

Q.   All right.  And what is your education, training, and experience in the area of high velocity blood spatter?

A.   I've had a formal course from a lady by the name of Judith Bunker.  She's a private blood expert out of Florida.  It was like a twenty-four hour short course.  I've attended a number of classes, hourly seminars, given at the Association of Firearms and Tool Mark Examiners concerning high velocity blood spatter caused by gunshot wounds.  I've had the occasion to go to more than two hundred and fifty homicide shooting scenes, where, in some cases, it was important as to the location of the person when they were shot, which meant that I needed to look and did look for and find high velocity blood spatter.

Q.   Okay.  Have you testified in courts in Georgia before as to the existence of high velocity blood spatter in a crime scene?

A.   Yes.

Q.   Okay.  Have you been qualified as an expert in the area of high velocity blood spatter?

A.   I have.

Q.   Is high velocity blood spatter, is that an area of forensic science which has been studied and there is literature in that area?

A.   Yes.

Q.   And are you familiar with that literature?

A.   I am.

Q.   In this case, I'd like to draw your attention to State's Exhibit 129, and let me bring it over closer to you --

THE COURT:  Before we get into the jacket itself, if that's where we're moving, let's address the issue of qualifications first.  Is there anything else you wish to ask about qualifications?

MR. SMEAL:  At this time, Your Honor, we would offer him as an expert in the area of high velocity blood spatter.

THE COURT:  All right.  Mr. Moore, do you wish to voir dire with respect to his qualifications?

MR. MOORE:  With one respect, yes, Your Honor.

THE COURT:  Go ahead.

     CROSS EXAMINATION - JURY OUT

BY MR. MOORE:

Q.   I couldn't remember if you were a doctor or not.

A.   No.

Q.   Okay.  Mr. Fite, what experience do you have in being able to tell human blood as opposed to animal blood or any other kind of blood?

A.   None.

Q.   Okay.  And when you go to a crime scene where you've examined these blood spatters in the past, generally you have a body there and you have blood spatter nearby; is that correct?

A.   That's correct.

Q.   So you know that the blood likely came from the body that's there nearby?

A.   That's correct.

Q.   When you're presented with a piece of evidence that you don't have any way of knowing whether it's connected with that particular crime scene or not, do you have any way of determining if what appears to be blood on it is human or animal?

A.   I don't do the blood typing or determine if it's human, but I have people that do that.

Q.   But the only time you'd know if it is human would be if they had tested it; is that correct?

A.   That's correct, sir.

Q.   Okay.  And any opinion you gave as to blood spatters, you couldn't say whether it was human or not unless it had been tested?

A.   That's correct.

MR. MOORE:  I don't think I have anything further, Your Honor.

THE COURT:  Any other examination, Mr. Smeal, with respect to qualifications?

MR. SMEAL:  No, Your Honor.

THE COURT:  And you're offering this witness as an expert, and restate it specifically.  An expert for what?

MR. SMEAL:  In the area of high velocity blood spatter.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  Your Honor, we don't believe in this case where the raincoat was not at the crime scene --

THE COURT:  I mean, the question is as to qualification, not as to whether or not he can testify about this coat.

MR. MOORE:  I don't believe he's qualified to testify about specks on here that have not been determined to be human blood.  He says he cannot tell.

THE COURT:  I'm not talking about this specific jacket, but just his qualifications as an expert in the area of high velocity blood spatter.  That's the initial question.  We'll come to the coat --

MR. MOORE:  Based on his testimony, I believe he qualifies as an expert at a crime scene, but this is not a crime scene we're looking at here.

THE COURT:  All right.  The Court finds him qualified.  Let's proceed with the next issue and that is with respect to this jacket, whether or not such testimony is applicable to this particular item of evidence.  Go ahead, please.

     REDIRECT EXAMINATION - JURY OUT

BY MR. SMEAL:

Q.   Mr. Fite, did you have occasion to examine State's Exhibit 129, which is displayed on this  -- displayed before you at this time?  Would you come down here and look at it, please?

A.   [Witness steps down from the stand]  Yes, I did.     Q.   Are the markings on this right area of the coat, on the right sleeve, are those markings that you've made on this jacket?

A.   Yes.

Q.   And those markings appear to be identifying small specks on the coat?

A.   Small, reddish-brown stains.

Q.   Okay.  And did you examine this coat for the purpose of determining whether there was high velocity blood spatter on this coat?

A.   Yes.

Q.   And with respect to the blue marks, they were not placed there by yourself; is that correct?

A.   That's correct.

Q.   Did you examine this coat to determine whether the specks on the right side of the coat and on the right sleeve appear to be consistent with marks which have been circled in blue?

A.   Some of the marks in blue are in the center of this high velocity spatter pattern.

Q.   Okay.  And did you regard that as being important in making your determination to whether there was high velocity blood spatter on that coat?

A.   I thought that they were part of the pattern and that's how I made my determination.

Q.   All right.  Assuming, Mr. Fite, that there has been testimony that the blue circled specks are blood of human origin, in light of your background and experience and examination of the remainder of the markings on the coat, are you able to render an opinion as to whether there is high velocity blood spatter on that raincoat?

A.   The areas that I identified or the small reddish-brown stains which are identical in color to the circled areas, they're in a pattern which is indicative of high velocity blood spatter.

Q.   And what does that mean in terms of the relationship between the coat and the explosion or discharge of a weapon which produced that spatter?

A.   Well, a weapon will cause high velocity blood spatter.  It will cause it to come out away from the victim as far as three feet.

Q.   What are the size of high velocity blood spatter droplets, generally?

A.   Many times smaller than that of a regular blood drop.

Q.   Okay.  Is it possible to simulate or to duplicate high velocity blood spatter without the use of a weapon or an explosion?

A.   Not that I know of.  It takes something -- a lot of force, such as a gunshot wound or an explosion of some sort to create this kind of stain.

MR. SMEAL:  Okay.  Well, Your Honor, the state may have some additional questions before the jury, but at this point, I would submit that the state has shown that Mr. Fite can indeed testify based upon both the blue-circled marks and the remaining marks on this jacket and render an opinion as to what -- his findings.

THE COURT:  Mr. Moore, do you have any questions you wish to pose to Mr. Fite?

MR. MOORE:  Not that I haven't already asked him, Your Honor.

THE COURT:  All right.  What's your motion or objection, Mr. Moore?

MR. MOORE:  Our objection is, Your Honor, that he can only testify as to the ones that are circled in blue, that they're human blood, and the others have not been tested, all these specks or spots on there, and we believe that he cannot testify, since he can't tell if those are human blood or not, that that is part of -- that is the high velocity blood spatter from a human being.

THE COURT:  Is that a motion or an objection?

MR. MOORE:  That's an objection.

THE COURT:  The objection's overruled.  Bring the jury back in, please.

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

THE COURT:  Proceed when you're ready, Mr. Smeal.

MR. MOORE:  Your Honor, might we approach the bench for a moment?

THE COURT:  Yes, sir.

MR. MOORE:  It won't take but a moment.

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

MR. MOORE:  You want to go ahead and do it?

MS. ROGAN:  Sure.  Your Honor, we really strenuously object to him being allowed to testify that these spots that he's circled after the fact are blood spatter, and we think it's extremely prejudicial to    Mr. Chapel, and we would move for a mistrial on the basis that he cannot identify them as human blood and that the inference that he's going to make and the implication he will give to the jury as an expert is that it is blood spatter and that it's of human origin, and there's no foundation for it, and we just think that that is depriving Mr. Chapel of a fair trial.

THE COURT:  Okay.  Anything else, Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  Mr. Smeal, Mr. Porter?

MR. SMEAL:  The objection basically, Your Honor, is that this evidence is damaging to their case.  He's testified that the marks appear to be consistent.  He's given his qualifications.  His opinion as to high velocity blood spatter was disclosed to the defense a long time ago.  They knew this was coming.  There's just no basis for this objection or certainly no basis for a mistrial based upon this testimony.

MS. ROGAN:  When we went to examine this evidence at the GBI crime lab, the only marks that were made on that raincoat were the nine circled marks that Ms. Wilson testified to having tested and establishing in her mind that it was human blood.  These new marks are completely new to us, and he's made them after we went to examine the evidence, so we were not aware of this evidence until today when we saw the raincoat.

THE COURT:  All right.  Your motion is denied.

[Bench conference concluded.]

THE COURT:  Proceed when you're ready, Mr. Smeal.

     DIRECT EXAMINATION RESUMED

BY MR. SMEAL:

Q.   Mr. Fite, there's one additional area that I'd like to ask you about.  Do you have education, training, and experience in the area of high velocity blood spatter?

A.   I do.

Q.   Would you, first of all, tell the jury what is high velocity blood spatter?

A.   It's a blood spatter pattern which is very fine, much finer than just drops of blood.  It's usually created by either an explosion or a gunshot wound.

Q.   Okay.  And what is your education, training, and experience in the area of high velocity blood spatter?

A.   I've been to a school by Judith Bunker from Florida concerning blood spatter patterns, I've attended AFTE training seminars all over the country; and, occasionally, we have blood spatter experts come in and lecture to us.  I've been to more than two hundred and fifty shooting homicides, where, in some of the cases, high velocity blood spatter was important.

Q.   Have you responded to crime scenes where there has been present high velocity blood spatter?

A.   Yes.

Q.   Have you testified in the courts in Georgia as to the presence of high velocity blood spatter?

A.   Yes.

Q.   Okay.  Have you been qualified before as an expert in that area?

A.   I have.

Q.   I want to direct your attention, if I can, to State's Exhibit 129, which is hanging here before the jury.  Could you come down here, please, and examine this item?

A.   [The witness steps down.]

Q.   First of all, if you will, could you identify that for the members of the jury.

A.   Yes.  I identify this as a portion of rain gear that was brought to the crime laboratory in relation to this case.

Q.   Okay.  And did you do an examination of that raincoat?

A.   I did.

Q.   And what was the purpose of that examination?

A.   To look for the presence of a high velocity blood spatter pattern.

Q.   And there appear to be some markings on the right side of this raincoat.  I'm referring to now not the blue ones, but some other markings.  Did you make those markings?

A.   I did.

Q.   Was that part of your examination in this case?

A.   Yes.  I was trying to identify the small reddish-brown spots on the rain gear and determine their location and marks so that I could stand back and look at the overall pattern, and we'd be able to see it.

Q.   Mr. Fite, how large or small are the droplets of blood in a high velocity blood spatter situation?

A.   Most of them are less than a millimeter in diameter.

Q.   And the marks that have been circled in blue, were those marks circled in blue at the time you examined this rain gear?

A.   Yes.

Q.   Mr. Fite, based upon your education, training, and experience in the area of high velocity blood spatter and assuming that there has been evidence in this case that the blue-circled marks have been identified as blood of human origin, based upon all of that as well as your examination of the remaining marks, did you arrive at an opinion as to whether there is high velocity blood spatter present on this raincoat?

A.   I did.

Q.   And do you hold that opinion to a reasonable degree of scientific certainty?

A.   I do.

Q.   And what is that opinion?

A.   There is a high velocity blood spatter pattern on the right arm and right chest area of this rain gear.

Q.   How far from the explosion or the weapon does one see high velocity blood spatter?

A.   You can have high velocity blood spatters or a portion of the spatter pattern out as far as three feet from the injury on the -- where the blood originated.

Q.   Did you examine the markings that you have marked with the markings that are circled in blue to determine whether those marks are consistent?

A.   I examined the marks inside the blue circles; they're reddish-brown stains.  The small spots that I circled are very similar in color and texture as the ones that are circled in blue.

Q.   And did you find those marks to be consistent?

A.   Yes.

Q.   Is it possible to simulate or to duplicate high velocity blood spatter?

A.   It's difficult.  It can be done if you -- it's been done by soaking a sponge in blood and firing a weapon into the sponge.  You can get high velocity spatter in this manner.

Q.   Would the simulation or duplication of high velocity blood spatter require the discharge of a weapon or an explosion?

A.   Yes.

Q.   If one were to simply take some blood on a rag or some other material and attempt to do this [demonstrating] on an object, would that simulate high velocity blood spatter?

A.   No.

Q.   I guess what I'm referring to is whether you could fleck droplets to simulate high velocity blood spatter?

A.   The spatters are so tiny on high velocity blood spatter.  It's like an aerosol can.  When you spray something that small, the mist is -- it's the same with high velocity blood spatter.

Q.   Based upon your examination of this raincoat and where the high velocity blood spatter is located, I believe you've indicated in the right chest area and the right arm, do you have an opinion as to whether the wearer of this coat at the time of the discharge of the weapon was right- or left-handed?

A.   Well, the spatter pattern is on the -- basically, the majority of it is on the inside of the right arm and on the upper portion of the right chest, indicating that the shooter was probably right-handed.

Q.   You can be seated again, Mr. Fite.

[The witness returned to the stand.]

MR. SMEAL:  I don't believe I have any further questions at this time, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  I'm sorry.  Is Mr. Smeal finished, Your Honor?

THE COURT:  Yes, sir.  I'm sorry, Mr. Moore, I didn't --

MR. MOORE:  I was looking at something else here and I didn't realized he'd completed his direct examination.

THE COURT:  All right.  Go ahead whenever you're ready.

MR. MOORE:  Your Honor, could I get back from the Court -- I believe you may have at the bench our crime lab report that was marked --

THE COURT:  I gave it to Mary.  She has it.

     CROSS EXAMINATION

BY MR. MOORE:

Q.   Mr. Fite, when did you do this examination of the raincoat for the high velocity blood spatter?

A.   The first time that I examined the raincoat was on the 7th day of July of 1993.  I just looked at the raincoat and then I did the actual report later on when I circled the blood spots after the rain gear was finished by the serology section.  And I believe the answer to your question is May of 1995.

Q.   And all those markings on there that you made were added since March of 1995?

A.   Yes.  Yes.

Q.   I'm going to show you what's been marked as Defendant's Exhibit Numbers 79, 80, and 81 and ask you if you would examine those documents and see if you can identify them.

A.   I recognize and identify Defendant's Exhibit 79 as the -- I think it's the latest crime lab report, August 24 of 1995.  I recognize and identify Defendant's Exhibit 81 as the crime lab report dated 11 January, 1995.  And I identify Defendant's Exhibit 80 as a crime lab report dated the 22nd day of 1995 and --

          THE COURT:  What was that date again?

THE WITNESS:  June 22, 1995.

THE COURT:  Thank you.

THE WITNESS:  With an attachment on it.

BY MR. MOORE:

Q.   And did you sign each one of those?

A.   I did.

Q.   And when is the first time that it ever appears in a crime lab report that you had noted high velocity blood spatter?

A.   It was on the last report issued in August, the 22nd, I believe.  August 24.

Q.   And when did it first appear there that you had done your tool marks on the tire?  When did that first appear in a crime lab report?

A.   The tool marks examination is not in the crime lab report.

Q.   Okay.  Is there some reason it was left out?

A.   No, sir.

Q.   It would ordinarily be included, wouldn't it?

A.   Probably, yes.

Q.   Can you tell us why it wasn't included in this case?

A.   I had no instrument that matched the cut in the tire.  I was talking continuously with the Gwinnett County police department, and no written report was issued.

Q.   Okay.  But the instruments were submitted to you for your examination?

A.   Yes.

Q.   And normally you'd say in your report that those are negative, those did not show that they were the tools used?

A.   I probably would, yes, sir.

Q.   But it wasn't done in this case?

A.   That's correct.

Q.   Okay.  Now, with respect to the latest report on August 24, 1995, and I'm not trying to -- let me give it back to you.  It does not indicate that you examined State's Exhibit 131, which is the RG revolver, does it?

A.   It does indicate that.

Q.   Could you tell me where it indicates -- it's noted as item number 27 on the crime lab report?

A.   Yes.  And the report says it's item 26.

Q.   Okay.  And what was your testimony with respect to the RG?

A.   That State's Exhibits 110 and 106 could not have been fired from State's Exhibit 131.

Q.   Okay.  And you're saying it's just a clerical error that it's not in the lab report there?

A.   When State's Exhibit 131 came to the crime laboratory last week, when it was typed into the computer it was listed as item 26.  There was an item 26 already on the -- in the crime lab record of evidence.  The DA sent the gun down and his investigator, and he wanted the gun back the same day along with State's Exhibits 110 and 106.  I took the gun upstairs along with an immediate copy of the record of evidence.  This record of evidence showed this revolver as being my item 26.  I test-fired the revolver, made my comparisons, came to my conclusions, and immediately went to the computer and entered my results.

Q.   And what did you enter?

A.   That State's Exhibit 26 was negative against my open file --

Q.   And did you --

A.   -- which means it's negative against anything I checked it against.

Q.   Did you enter anything about whether or not it could have been the weapon that fired the bullet?

A.   I said negative against my open file, which means it's negative against everything I checked it against, which includes State's Exhibits 106 and 110.

Q.   But you didn't indicate that in your lab report?

A.   No, sir.  I still thought it was State's Exhibit  -- I thought it was crime lab exhibit 26.

Q.   Your lab report says a microscopic --

MR. PORTER:  Your Honor, I'm going to object to this.  Mr. Moore can't go into the -- he can ask the witness questions, but he can't quote from the document.  That's not an admissible document, the crime lab report is not.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I believe I've got a right to ask him questions based on what he put in here as results in his lab report.

MR. PORTER:  I don't dispute that, Your Honor, but he can't read the lab report.  It's hearsay and it's inadmissible.

THE COURT:  Are you using it for impeachment; is that where we are?

MR. MOORE:  Your Honor, I'm trying to determine whether or not he in fact examined item 27, because his lab report does not show that he did.

MR. PORTER:  Your Honor, Mr. Fite has explained the situation.  That's evidence.  What Mr. Moore reads is hearsay and is not admissible.

MR. MOORE:  Your Honor --

MR. PORTER:  If there's a discrepancy, he can ask about it.

MR. MOORE:  I'll phrase it a different way and perhaps it will be admissible that way.

THE COURT:  All right.  Go ahead.

BY MR. MOORE:

Q.   Is there a difference between when you issue an opinion that test bullets failed to reveal sufficient evidence to conclude that they were fired from a revolver and saying they're excluded?  Is that a different standard?

A.   Saying they're excluded?

Q.   You said this was excluded?

A.   Yes.

Q.   Okay.  If you give your opinion that it fails to reveal sufficient evidence to conclude that the bullet was fired from that revolver, is that different than saying it's excluded?

A.   Yes.

Q.   Okay.  And how is it different?

A.   Usually, when I say fails to reveal, there's either something wrong with the gun itself, like it came from a lake or a river or something and the barrel is oxidized, and I can't exclude the gun, but I see no evidence that it fired the bullet, then I'll say it failed to reveal.  If I say it's negative, that means it did not fire the bullets.

Q.   Okay.  And doesn't your report indicate with respect to item 26 that you said that it fails to reveal sufficient evidence to conclude that the bullet was fired from the revolver?

A.   That's the first item 26.  That was a different gun.

Q.   There's only one item 26 listed with that opinion.

A.   In the crime lab record of evidence that I just explained a moment ago, when State's Exhibit 131 came in the crime laboratory, it was entered as crime lab item 26.  There was already a crime lab item 26 in the record of evidence, had already been examined, and the report said it failed to reveal sufficient evidence to conclude that State's Exhibits 106 and 110 were fired from it.  When I entered the results on State's Exhibit 131, I entered it as crime lab Exhibit 26, and I said it did not fire State's Exhibit 106 and 110.

Q.   Okay.  You have notes there in front you.  Do they indicate that?

A.   Yes, they do.  This is the page 6 of my record of evidence of this case, my case 93-10770, showing both item 26.  The first item 26, which came into the crime laboratory on October 11, 1994, by Mr. Jack Burnette of the Gwinnett County police department, was a Charter Arms .38 caliber revolver 575461, which was found out in the elements and the barrel was rusty.  The second item 26 on this record of evidence was August 18, 1995, showing an RG revolver, the same revolver as State's Exhibit 131.

Q.   And does it show on your notes there that you entered it as item number 26?

A.   It does.  This item 26, and this item 26.

Q.   And the blood splatter report, that was issued after the district attorney contacted you about it, wasn't it, in June -- or in 1995?

A.   Yes.  Yes.

Q.   So you waited some two years to generate a report saying that?

A.   I did.

Q.   Now, you can't tell by looking at blood whether it's human blood or not, can you?

A.   I can't, sir.

Q.   Okay.  And if a police officer in the line of duty, or perhaps not in the line of duty, had worn a raincoat like this, and he took a handgun and shot a deer that had been run over by a car to put it out of its pain or a dog or something like that, would you get the same kind of pattern?

A.   Probably so.

Q.   And you wouldn't be able to tell the difference by looking at it?

A.   I wouldn't, no, sir.

Q.   Okay.  Now, you said it takes a great deal of force to cause these blood splatters like that?

A.   Yes.

Q.   Okay.  Now, it would take the kind of force that would cause the skin to break open immediately and cause the blood underneath to be compressed and to splatter out; is that correct?

A.   With a very high velocity, splattered out with a very high velocity.

Q.   Okay.  And if I put a hypothetical to you that if a big person, a strong person, took their fist and put it through a window in a car with such force it shattered the window completely, could that cause high velocity blood splatter?

A.   I don't think so.

Q.   You don't think so?  Do you know?

A.   No, sir.  I don't know, but I wouldn't think so.

Q.   Have you ever seen that kind of situation?

A.   No.

Q.   So you really don't know, then, do you?

A.   I don't know.

Q.   Now, when you have a high velocity blood spatter, would it usually be heavier the closer to the wound?

A.   Yes.

Q.   And if there was evidence in this case that there was a contact wound to the back of the head, or close contact wound, almost touching, would you expect to have the biggest evidence of splatter close to that where the weapon was being held?

A.   Yes.

Q.   And that would be on the sleeve of the raincoat if the weapon was being held in the right hand, wouldn't it?

A.   It should be, yes.

Q.   Now, guns -- that Charter Arms .38, were you able to fire it, the one that you tested?

A.   Yes.

Q.   Were there any other weapons presented to you that you were unable to fire?

A.   I don't recall one.  I think everything that came to me, I fired.

Q.   Now, you indicated that you didn't believe the tire had been driven; is that correct?

A.   Yes.

Q.   Do you have any expertise in examining tires?  Are you trained in that?

A.   Yes.

Q.   Are you -- if I told you that the vehicle that had this tire on it, with the tire flat, was put on a flatbed truck, that it was hooked to a cable, and towed up onto the truck with the tire on it, would you expect to find marks on it showing scuff marks showing that that was done?

A.   I didn't see any, so I don't know.  I didn't see any marks to indicate the tire had rolled while it was flat.

Q.   But if I told you that there was evidence before the jury as a hypothetical that that happened, shouldn't there be scuff marks if it was towed up onto a truck on a concrete driveway?

A.   It may, yes.

Q.   Is another way that high velocity blood splatters can be caused if a person is a passenger in an automobile and it's involved in a wreck where there's a big impact inside?

A.   Yes.

MR. MOORE:  That's all I have.

THE COURT:  Redirect?

MR. SMEAL:  Just a few questions, Your Honor.  May I see Defendant's Exhibit 80.

     REDIRECT EXAMINATION

BY MR. SMEAL:

Q.   Mr. Fite, did I hear you correctly?  Did you say that you first reported the high velocity blood spatter in a crime lab report in August of 1995?

A.   No -- yes, I think that's right.

Q.   I'm showing you what's been marked as Defendant's Exhibit D-80.  I would direct your attention to Page 6.

A.   Okay.  June 22.  Okay.

Q.   Okay.  So you reported high velocity blood spatter in June of 1995; is that correct?

A.   Yes.

Q.   All right.  And that was when you put that information in the crime lab report; is that correct?

A.   That's correct.

Q.   Okay.  When did you actually do the examination and reach the conclusion that it was high velocity blood spatter?

A.   I reached the conclusion on the 7th of July of 1993, when I saw the raincoat to start with.  I knew what it was.

Q.   All right.  And did --

A.   I didn't -- I didn't go back and mark the spots until May of 1995.

Q.   And your conclusion in July of 1993, did you convey that information to Investigator Jack Burnette?

A.   I did.

Q.   And did you memorialize your finding as to high velocity blood spatter in the crime lab report in response to a request by the Gwinnett County district attorney's office?

A.   I did.

Q.   Are you aware, Mr. Fite, that there are certain legal requirements regarding the discovery and disclosure of scientific reports?

A.   I am.

     Q.   Are you familiar with other types of blood spatter?

A.   Yes.

Q.   Is there such a thing as low velocity or medium velocity blood spatter?

A.   Yes.

Q.   And what types of actions or trauma would cause that type of blood spatter?

A.   Well, it's like cast-off blood where someone's being beaten, and the instrument used is breaking the skin, and when you throw it back to strike again, it's casting the blood off.  The same with someone fighting.  When they're breaking the skin of another person, they're casting blood off.  These drops are much larger than high velocity blood spatters.

Q.   With respect to your testimony about this item, based upon your examination of all of the marks, including both the marks that you indicated on here and also the markings that were done by Jennifer Wilson in which she circled the presence of human blood, is this blood spatter consistent with the shooting of an animal?

A.   It could be.

Q.   Notwithstanding the finding of human blood in the blue marks?

A.   Well, the human blood, sure, and my spatter pattern on there is right in this -- among these human blood findings, which would not be consistent with shooting an animal.

Q.   With respect to your examination of the firearm, State's 131, was there basically a clerical error committed?

A.   Yes.

Q.   Does the crime lab mark items with distinctive numbers as they're received in the state crime lab?

A.   Yes.

Q.   So when you received State's 131, was it the intention that that be treated as an item number 27?

A.   26 when I received it.  I thought it was 26 and when I put my results on the computer, I still thought it was State's -- crime lab exhibit 26.

Q.   But there was already a State's 26 that referred to a different firearm?

A.   Yes.

Q.   Is that correct?

A.   Yes.  I don't have the privilege of looking at that when I'm inputting my information.  I'm only looking at results.

Q.   Notwithstanding whether State's Exhibit 131 is called item 26 or item 27 by the state crime lab, do you adhere to your same conclusion with respect to the projectiles that you examined?

A.   State's Exhibit 131 did not fire 106 or 110.  It could not have.

MR. SMEAL:  No further questions.

THE COURT:  Recross?

MR. MOORE:  I just have a couple of things.

     RECROSS EXAMINATION

BY MR. MOORE:

Q.   State's Exhibit Number 131, does that have a removable barrel?

A.   You can remove it.  It has a -- it's screwed into the frame of the weapon.  It has a pin that holds it in place.  You'd have to drive the pin out and then unscrew the barrel.

Q.   Do you have any way of knowing whether that gun has the same barrel on it it did two years ago?

A.   I don't.  No, sir.

Q.   And if it didn't, then your test result doesn't show anything if it's with the barrel that's on it now; is that correct?

A.   That's correct.

     Q.   And the test results, I believe you testified on direct, that the district attorney wanted an immediate examination of that weapon when he brought it to the crime lab?

A.   That's correct.

Q.   And the crime lab report indicates that you received it at 10:38 in the morning, I believe?

A.   Yes.

Q.   Okay.  And when did you test it?

A.   Five minutes after it came in.  I test-fired it, made the comparison, returned the weapon and State's Exhibits 106 and 110 to the DA's investigator.

Q.   And was that Mr. Hinson?

A.   Yes.

Q.   And did you inform him at that time of the -- your test results?

A.   I did.

THE COURT:  And that was on what date?

          THE WITNESS:  That was on August 18, 1995.

THE COURT:  Thank you.

MR. MOORE:  That's all I have, Your Honor.

THE COURT:  Anything else of this witness?

MR. SMEAL:  No, Your Honor.

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

MR. SMEAL:  Yes, sir.

THE COURT:  You'll be on call and may be recalled to testify if need be, Mr. Fite.  You can come down.

THE WITNESS:  Thank you, sir.

[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:  Have you got another witness?

MR. PORTER:  Do you want one?

THE COURT:  Nine o'clock in the morning?

MR. MOORE:  Judge, I was going to say we need to meet with the defendant.  We're trying to get our case ready to go when Mr. Porter finishes up.

THE COURT:  We'll recess until nine o'clock, then.

MS. ROGAN:  We need an award for case management in this trial.

[Bench conference concluded.]

THE COURT:  Ready to call it a day?  All right.  We're going to recess at this point.  I'll ask you to leave your pens, pads, and notes in your seats.  They'll be waiting on you in the morning when we recommence at nine o'clock. 

Your evening meal ought to be ready for you.  We'll pause at this point -- recess at this point and see you in the morning at nine o'clock.

Before you go, let me again remind you that you've seen a good portion of the case presented, but not all of it, and you ought to continue to keep an open mind.  You ought not to make up your own mind.  You ought not to commence any deliberations amongst yourselves or with anybody else or allow anybody else to discuss the case with you.  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 mind and discuss it when you're in the jury room at that point with your fellow jurors. 

We'll recommence at nine o'clock in the morning.  If you'll go with the bailiff, please.

[The jury was excused for the evening and retired from the courtroom at 6:55 p.m.]

THE COURT:  Mr. Porter, where do we stand, do you think, at this point as far as the balance of the state's case?

MR. PORTER:  We have ten more witnesses, Your Honor.

THE COURT:  How long do you think we'll be with them?

MR. PORTER:  Two of those are DNA experts.  Between Investigator Burnette and the two DNA experts, I'm allotting a day.

THE COURT:  Okay.  So we're looking at probably Wednesday or so?

MR. PORTER:  Wednesday midday.  A day is probably a reasonable --

THE COURT:  Okay.  All right.  We'll see where we are then.  Anything else at this point, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, it's not a problem yet, but I'll just alert the Court it could be a problem.  One of our experts on DNA is under subpoena in another court.  He will be available Wednesday, but he's going to be out of the state Thursday and Friday.

THE COURT:  Okay.  Well, you stay in touch with him and see what that schedule is.  And if we need to -- well, we'll just see how it goes, and we'll, I guess, do whatever need be.

MR. MOORE:  Like I said, it may not be a problem.  I'm just notifying you ahead of time that it could be.

THE COURT:  Okay.  I understand.  Thank you.  We'll be in recess until nine o'clock tomorrow morning.

[Proceedings were recessed for the evening at seven o'clock p.m. on August 28, 1995.]

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Reporter's Certificate this page

 

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