P R O C E E D I N G S
[In the Superior Court of Gwinnett County,
Lawrenceville,
Georgia; 9:00 a.m., Tuesday, August 22,
1995; STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury
Trial, Judge Fred A. Bishop, Jr., Presiding.]
THE
COURT: Is Mr. Moore here?
MR.
DAVIS: He's right outside, sir.
THE
COURT: Okay. Are the jurors ready, Mr. Allen?
THE
BAILIFF, MR. ALLEN: Ready, Your Honor.
MS.
ROGAN: Your Honor?
THE
COURT: Yes.
MS.
ROGAN: I have one small matter to take up before we begin.
THE
COURT: Yes.
MS.
ROGAN: Mr. Chapel would like to wear his wedding ring; and it's, of course,
against the jail regulation for him to have jewelry with him, but I was
wondering if he could wear it while he's in the courtroom.
THE
COURT: Mr. Porter?
MR.
PORTER: The state has no position on that, Your Honor.
THE
COURT: Who has it?
MS.
ROGAN: I do.
THE
COURT: Sure. That's fine.
MS.
ROGAN: Thank you.
THE
COURT: Although at the conclusion of the
day --
MS.
ROGAN: I'll take it back and give it to him each day. That's fine.
THE
COURT: -- that's the jail regulations and he'll need to comply with them.
MS.
ROGAN: That's no problem.
THE
COURT: All right.
MR.
MOORE: Your Honor, may we approach on one matter?
THE
COURT: Yes, sir.
[Counsel
approached and the following conference ensued at the bench.]
MR.
MOORE: Your Honor, Ms. Renee Morgan, J.P. Morgan's wife was here this morning,
and the sheriff's department had not been able to serve her with a subpoena. We
served her just a few minutes ago. We don't know whether she'll testify or not,
but the official police report, if it does become an issue, does not include
things that took place out there that she would be the witness to, and she
wants to stay in the courtroom, and I told her I would advise you, but I was
going to have to invoke the rule of sequestration and ask that she not be
allowed to enter the courtroom, you know.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, the only reason that I could conceive of calling her is as
a rebuttal witness. She is not a witness in my case in chief.
THE
COURT: You don't know if you're going to use her or not? I mean, do you have
her subpoenaed?
MR.
MOORE: I've got her subpoenaed, Your Honor. I don't know whether we're going to
use her or not.
THE
COURT: Okay. Well, I think if you've got her subpoenaed and the rule is invoked
and she's a potential witness for you, I think then -- well --
MR.
MOORE: She's in the back of the courtroom in a black dress on the left corner
back there.
THE
COURT: I'm inclined if we're going to invoke the rule and we've got potential
witnesses, then everybody out on both sides. I just think that's a --
MR.
MOORE: Well, I told her that I thought I was going to have to object --
THE
COURT: Yeah.
MR.
MOORE: -- but I told her I'd give you an opportunity to know she was here and
--
THE
COURT: Yeah. Yeah. Let's invoke it and enforce it all the way around. If we've
got any potential witnesses that have been called or been subpoenaed either
way, then put them out.
MR.
MOORE: Except for the family members.
MR.
PORTER: Your Honor, the family members are here and they're --
THE
COURT: Yeah, I was trying to remember. What was the stipulation as far as the
--
MR.
PORTER: The defendant's family, his wife, mother, and father.
MR.
MOORE: Yeah. And a friend that we --
THE
COURT: Okay.
MR.
PORTER: And Ms. Lutz, who is not under subpoena.
THE
COURT: Okay. Are they going to testify?
MR.
MOORE: Probably.
THE
COURT: Well, whether they testify or not --
MR.
PORTER: Then on the state's side there's a brother and two sisters: Calvin
Ashworth, Helen Barrett, and Geraldine Johnson. Your Honor, there is an
investigator, Tracey Barnhart, who's seated behind my table. I'm going to use
her. She's on the witness list. She has not been served with a subpoena. I don't
anticipate using her as a witness.
THE
COURT: Okay.
MR.
PORTER: She's just one of the investigators in my office. She may --
THE
COURT: Okay. But those family members of the victim, the stipulation is they
remain in whether they testify or not.
MS.
ROGAN: Well, and our investigator, also.
MR.
MOORE: And we're going to ask our investigator to be allowed to remain in, too,
Your Honor.
THE
COURT: All right. Is he going to testify?
MS.
ROGAN: Possibly.
MR.
MOORE: Very possible, Your Honor.
THE
COURT: Okay. Is there any objection to that?
MR.
PORTER: No, sir.
THE
COURT: All right. He stays in, too.
MR.
PORTER: So we have one investigator and three family members on each side.
THE
COURT: All right. So stipulated. Do you want to -- I guess somebody needs to tell
Ms. Morgan that she's outside, so -- whose witness is she? Your witness?
MR.
MOORE: She's our witness, Your Honor.
THE
COURT: If you want to tell her that, tell her that's going to be the rule and
she needs to step outside or I'll tell her if she has a problem with it.
MR.
MOORE: Well, I just told her I'd tell you that she didn't want to because she
was unhappy about it.
THE
COURT: All right. Do you want me to tell her?
MR.
MOORE: Judge, I'll tell her, but I mean the question is that I think she wanted
to maybe speak to you.
MS.
ROGAN: She might want a higher authority.
THE
COURT: Okay. Why don't you tell her. If she's got a problem with it, then I'll
tell her that's the rule.
MR.
PORTER: Did Johnny tell you I'm going to use the aerial in my opening?
MS.
ROGAN: That's fine.
THE
COURT: That you're going to what?
MR.
PORTER: I'm going to use the aerial photograph that we've previously stipulated
during my opening statement.
THE
COURT: Okay.
MR.
PORTER: The stipulation is right there on your desk.
THE
COURT: Okay. Well, before the jurors come in, I want to go on the record with
some of the stipulations and just sort of sort out a few things and that won't
take long.
MR.
PORTER: Okay.
THE
COURT: Okay. Mr. Moore, everybody squared away on that?
MR.
MOORE: Yes. I told her and the deputies already told her that she had to stay
outside.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: We'll call to trial the case
93-B-1818-6, State of Georgia v. Michael Harold Chapel. Is the state
ready?
MR.
PORTER: The state's ready, Your Honor, and issue has been jointed.
THE
COURT: Is the defendant ready?
MR.
MOORE: Your Honor, the defendant's ready, and we have entered our plea of not
guilty.
THE
COURT: All right. Are our jurors here? Are they ready?
THE
BAILIFF, MR. ALLEN: Ready, Judge.
THE
COURT: Okay. I believe the rule of sequestration has been invoked by the state
and the defendant and -- with the exception of the stipulated members of the
defendant's family and members of the decedent's family, Ms. Thompson's family,
and I believe the defendant's investigator and the state's investigator; is
that correct?
MR.
PORTER: That's correct, Your Honor.
THE
COURT: All right. All other witnesses of both sides will have to remain outside
during the course of the trial of the case and, Mr. Porter and Mr. Moore, I'll
ask your assistance in ensuring that your witnesses do not enter the courtroom
unbeknownst to the rest of us.
Do
we have any other stipulations, any other issues we need to resolve before the
jurors come in, Mr. Porter?
MR.
PORTER: Your Honor, yesterday after meeting with counsel on Sunday, the state
and the defense entered into five stipulations that will be read to the jury at
the appropriate time or mentioned at the appropriate time to the jury.
The
first stipulation is that State's Exhibit Number 1, which is a calendar for the
month of April 1993, is a true and correct or accurate calendar for that month.
State's
Exhibit Number 2, which is a diagram of the Gwinnco Muffler Shop, its parking
lot and driveway at the intersection of Peachtree Industrial Boulevard, is to
scale with the exception of the vehicles that are attached to the diagram. And,
Your Honor, that's a note that was not placed into stipulation, but is agreed
to by counsel.
Number
3, State's Exhibit Number 3 is an accurate diagram of the portion of Peachtree
Industrial Boulevard and its intersecting roads and is to scale, which is
mentioned in the stipulation.
State's
Exhibit Number 4, which is leaning against the witness stand, is an aerial map
that truly and accurately depicts the area contained therein.
And
State's Exhibit, Your Honor, it has not been numbered yet, but it is a Polaroid
photograph which fairly and accurately depicts the condition of locker number
34 of the Gwinnett County police department, northside precinct, when that
locker was opened pursuant to a search warrant on April 24, 1993.
Your
Honor, there is one additional stipulation, which is the admission of a
Gwinnett County pay stub of Michael Chapel, which has been examined by the
defense and the defendant, and the stipulation has been entered into in regard
to that.
THE
COURT: What is the date of that?
MR.
PORTER: Your Honor, I believe it is the paycheck which was received in April of
1993 in the week before the homicide, so it would have been the week of April
15th of 1993.
THE
COURT: Has it been marked?
MR.
PORTER: It has not been marked at this time, Your Honor. Your Honor, I have it
in front of me. It is for the pay period ending April 8th of 1993, and it was
the paycheck immediately prior to the homicide. And it is just the stub, not
the check.
THE
COURT: All right. Anything else with respect to that stipulation?
MR.
PORTER: I believe that is the only stipulation as to the state's exhibits. The state
stands prepared to meet with counsel if there are necessary stipulations as to
any defense exhibit.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, Mr. Porter accurately stated what we've stipulated to and we
will, at some point, ask him to review some of ours and see if we can expedite
things and have him stipulate to some things also.
THE
COURT: All right. But insofar as the stipulation on the pay stub is stipulation
number 6?
MR.
PORTER: Yes, sir.
THE
COURT: And for the record, those other stipulations as announced from the
state, is that the stipulation, Mr. Moore?
MR.
MOORE: Yes, Your Honor.
THE
COURT: So stipulated. Are there any other stipulations, Mr. Porter?
MR.
PORTER: Not at this time, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: What about the redacted video statement? Where does that stand?
MR.
PORTER: Your Honor, I have provided it to defense counsel, and the state
intends to introduce what's described as Draft Number 2 as the evidence in the
case.
MS.
ROGAN: Your Honor, we got yesterday the newly corrected version --
THE
COURT: The redacted redacted?
MS.
ROGAN: -- of the redacted video. I've gotten through about half of it last
night and intend to do the rest of it tonight. Unfortunately, we're going to
have to have another hearing before that video can be played because the tenor
of the hearing we had last time was about various of our objections to things
that mostly Lieutenant Latty was saying, which Your Honor reserved ruling on
pending how the evidence actually came into the trial. And in most cases, the
ruling was deferred until the trial to see whether the evidence supported some
of the things that Lieutenant Latty was saying. We can't determine that until
those witnesses who he's referring to have testified.
And
I've made another list of the items that we find objectionable. The state has
redacted those that Your Honor did make a ruling on, but there really weren't
very many that were clearly able to be ruled upon at that point. So I'm not
sure that we're in a position -- we're certainly still objecting to everything
that we can -- that we objected to at the time, and those objectionable
portions, in our mind, are still in the video.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, it is my intention to present the case in such a way that
by the time the video is played we expect that the evidence that will have been
produced in the courtroom will mirror the statements made by Investigator
Latty; and, therefore, the Court's initial ruling regarding the fact that it
was an interrogative technique to confront the defendant with the evidence will
be -- it will merely be a repetition of evidence that has already been
presented. We have anticipated that problem.
THE
COURT: My suggestion, I think, would be for the defense to review it so that
you know what's on the proposed version at this point, and then either maybe
tomorrow night -- what's today, Tuesday? Tomorrow night or Thursday night,
after the jurors leave, then let's stay over and take those up. And that
presupposes that -- if you're not ready to offer evidence at that point -- when
do you contemplate offering it in?
MR.
PORTER: Your Honor, I have a dozen witnesses today lined up and ready to
testify. The statement, we plan to bring in probably Thursday or Friday, I
would guess -- is my best -- and of course, I can't judge until I know how we
do today.
THE
COURT: Well, the difficulty, it seems to me, would be if it's going to be
Thursday or so -- today's Tuesday and it hasn't been reviewed totally by the
defendant, then that leaves us Wednesday night probably to look at it or
discuss it or hear any motions on it. And then somebody's got to -- if there
are any changes to it, then that's going to have to be done which makes
Thursday look a little unlikely, it seems to me.
MR.
PORTER: Your Honor, in terms of playing the tape, I'm somewhat flexible in the
presentation of the case, and it can be moved around --
THE
COURT: Okay.
MR.
PORTER: -- depending on the --
THE
COURT: Can you finish up your review of it by tomorrow morning so we know what
the defendant's response is?
MS.
ROGAN: I will certainly try. I was going to mention also, now that we have a
transcript, I think we can make our arguments based on the transcript without
reviewing the whole tape, which can be a much more time-consuming process.
THE
COURT: All right. Okay.
MS.
ROGAN: And it would be easier, in fact, to see exactly what is objectionable or
not in terms of the written transcript, so I can at the very least go through the
transcript and highlight and have -- Ms. Atkinson's previous transcript has our
objections keyed to an hour and minute --
THE
COURT: Okay.
MS.
ROGAN: -- point on the tape, so it shouldn't be that hard to nail down exactly
what we're objecting to tomorrow.
THE
COURT: All right. If you can do that then so that the issues are focused, I
might take a preliminary look at them myself and then maybe we'll all be in a
-- can expedite the hearing on it or argument on it or ruling on it or
whatever.
MR.
PORTER: Your Honor, I think that since it is the certified transcript of the
videotape and the redactions were removals from that, we can safely argue from
the transcript --
THE
COURT: All right.
MR.
PORTER: -- without having to play the tapes in court.
MS.
ROGAN: I'd agree.
THE
COURT: All right. Let's take that up tomorrow morning, then.
MS.
ROGAN: All right.
THE
COURT: Okay.
MS.
ROGAN: All right.
THE
COURT: All right. Any other motions or issues we need to address, Mr. Porter,
before the jurors come in?
MR.
PORTER: Your Honor, only to place upon the record that I have notified counsel
that it is my intention to use State's Exhibit Number 4 during my opening
statement and that it has previously been stipulated to.
THE
COURT: All right. Any objection, Mr. Moore?
MR.
MOORE: Your Honor, Mr. Porter advised me of that, and that's the aerial map
which is going to be seen by the jurors during the course of this trial anyway,
so I don't think it matters when it's presented to them.
THE
COURT: I believe so. We'll need pad and pen, clean pad and pen, for each of the
jurors to take notes if they wish during the course of trial. We need to secure
those and make sure those are secured during the course of any recesses,
overnight, or that sort of thing, and they'll be destroyed at the conclusion of
the case.
MR.
MOORE: Your Honor, I realize the Court's already ruled on it, but just for the
record, we would renew our objection to the jurors' notes being destroyed. We
would ask they be sealed and made a part of the record.
THE
COURT: Yes, sir. It was, I suppose, a fortuitous Supreme Court case directly on
point, after your motion was made, I noted. All right. Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: We're ready, Your Honor.
THE
COURT: Ask the jurors to come in, please.
We'll start with the preliminary charge, and then we'll go directly into
opening.
MR.
PORTER: Yes, sir.
[The
jurors were escorted to the courtroom.]
THE
COURT: Good morning, ladies and gentlemen.
[Jurors
respond]
THE
COURT: I hope everybody had a good evening. Did everybody get settled in okay?
Served supper, breakfast?
[Pause]
THE
COURT: Okay. If you have anything you need, make it known to the bailiffs, and
we'll try to provide whatever you need during the course of the next few weeks.
We're
going to commence this morning -- I want to ask you to raise your right hand
and take the final oath and give me an 'I will' in response, please.
You
should well and truly try the issue formed upon this indictment between the
State of Georgia and Michael Harold Chapel, who is charged with the offenses of
Count 1, murder, Count 2, felony murder, Count 3, armed robbery, and Count 4,
possession of a firearm during the commission of a crime, and a true verdict
give according to evidence, so help you God.
[Jurors
respond]
THE
COURT: Now, this is Case Number 93-B-1818-6, styled as the State of Georgia
versus Michael Harold Chapel, in which the indictment is as follows:
Count
1, the grand jurors selected, chosen and sworn for the County of Gwinnett in
the name and behalf of the citizens of Georgia, charge and accuse Michael
Harold Chapel with the offense of murder in that the said accused, in the State
of Georgia and County of Gwinnett, on the 15th day of April, 1993, did then and
there unlawfully and with malice aforethought cause the death of Emogene
Thompson, a human being, by shooting her in the head with a firearm, contrary
to the laws of said state, the good order, peace and dignity thereof.
Count
2 of the indictment is as follows: And the grand jurors, aforesaid, in the name
and behalf of the citizens of Georgia, further charge and accuse Michael Harold
Chapel with the offense of felony murder in that the said accused, in the State
of Georgia and County of Gwinnett, on the 15th day of April, 1993, did then and
there unlawfully while in the commission of a felony, to wit, armed robbery,
cause the death of Emogene Thompson, a human being, by shooting her in the head
with a firearm, contrary to the laws of said state, the good order, peace and
dignity thereof.
Count
3 of the indictment is as follows: And the grand jurors, aforesaid, in the name
and behalf of the citizens of Georgia further charge and accuse Michael Harold
Chapel with the offense of armed robbery in that the said accused, in the State
of Georgia and County of Gwinnett, on the 15th day of April, 1993, did then and
there unlawfully with the intent to commit theft, take United States currency,
the property of Emogene Thompson, from the immediate presence of Emogene Thompson
by use of an offensive weapon, to wit, a firearm, contrary to the laws of said
state, the good order, peace and dignity thereof.
And
finally, Count 4 of the indictment is as follows: And the grand jurors,
aforesaid, in the name and behalf of the citizens of Georgia further charge and
accuse Michael Harold Chapel with the offense of possession of a firearm during
the commission of a crime in that the said accused, in the State of Georgia and
County of Gwinnett, on the 15th day of April, 1993, did then and there
unlawfully have on his person a firearm during the commission of a felony, to
wit, murder, which is a crime against a person of another, contrary to the laws
of said state, the good order, peace and dignity thereof.
Now,
ladies and gentlemen, a criminal trial is the result when a person accused of a
crime in an indictment returned by the grand jury enters a plea of not guilty,
thereby denying each and every essential allegation in the indictment. This
forms what is called the issue which a trial jury is impaneled to try and
determine.
The
fact that the defendant on trial has been indicted by a grand jury does not
constitute any evidence nor inference of guilt. It is merely the manner in
which a specific charge is brought before the Court for trial on its merits,
and that is whether or not the defendant is guilty of the charges made in the
indictment.
In
all cases the defendant or the accused enters upon the trial presumed to be
innocent. This presumption remains with the defendant until and unless this
presumption is overcome by evidence presented at the trial sufficient to
satisfy the minds of the jury trying the case of the defendant's guilt beyond a
reasonable doubt. This is what is called the burden of proof.
The
burden of proof rests with the state to prove each essential element of the
offense charged in an indictment beyond a reasonable doubt. However, the state
is not required to prove the guilt of the defendant on trial beyond all doubt.
A
reasonable doubt means just what it says. It is a doubt of a fair-minded,
impartial juror honestly seeking the truth. It is not an arbitrary or
capricious doubt. It is a doubt arising from the evidence, the lack of
evidence, or a conflict in the evidence. A reasonable doubt is a doubt based
upon reason.
If
after considering all the facts and circumstances in a given case the minds of
the jurors are wavering, unsettled, and unsatisfied, then that is a doubt of
law, and the jury should acquit the defendant. But if that doubt does not exist
in the minds of the jurors as to the guilt of the defendant, then the jury
would be authorized to convict.
In
our system it is the duty and responsibility of the trial judge to ascertain
the law applicable to the case and instruct the jury on the law. It is the duty
and responsibility of the jury to ascertain the truth of the case from a
factual standpoint from all of the evidence presented during the trial. Then it
is the jury's duty and responsibility to apply the law to the facts and by this
application of the law to fact and the fact to law to arrive at a verdict.
In
discharging your responsibility in determining the facts of the case, I point
out that the jury must determine the credibility of the witnesses who appear
and testify. Credibility also means believability.
In
passing upon the credibility or believability of a given witness and in
determining the weight that a jury will give a witness's testimony, the jury
may consider all the facts and circumstances of the case, the witness's manner
of testifying, their intelligence, their means and opportunity for knowing the
facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and their personal credibility
so far as that may legitimately appear from the trial.
As
to all witnesses the jury should apply the same standards and measures and
tests which the jury thinks would be appropriate and meaningful in determining
the weight the jury should give the testimony of every witness.
It
is the foundation of our criminal system of justice that everyone accused of
crime is entitled to a trial by jurors who are totally impartial between the
state and the accused, and to enter upon the trial of a case without having
previously formed and expressed any opinion as to the guilt or innocence of the
accused.
Now,
the attorneys on both sides will at the beginning of the case, if they choose,
outline their contentions to you. They will then question witnesses sworn in
the case. At the conclusion of the presentation of evidence, they will sum up
their contentions and make their arguments to the jury.
You
are not bound by what any attorney says are the facts or the law during the
trial. You take the facts from the witnesses and the other evidence presented
in the case. You take the law from the Court as given you in the charge as may
be pronounced during the trial. By applying one to the other, you make your
judgment as a jury as to the truth of the case.
Now,
this case will be bifurcated in this matter. That is, the state will be seeking
to have the accused found guilty beyond a reasonable doubt of the offense of
murder. Now, in the event the jury returns a verdict of guilty, the state will
be seeking to have the death penalty imposed in this bifurcated, two-part
trial.
The
Court will, of course, be giving complete jury instructions after you've heard
the evidence. If the jury finds the defendant not guilty, then that will end
the trial.
Now,
you have heard the indications of what this case is about during the course of the
voir dire; however, you've not had the opportunity to hear the opening
statements on behalf of the state or the defendant, which they will have the
opportunity to tell you what they expect the facts in the case to be.
You
have not yet had the opportunity to hear the evidence in the case, which will
come to you by way of witnesses testifying under oath and exhibits admitted for
your consideration.
You've
not yet had the opportunity to hear the closing argument on behalf of the state
and the defendant, when the attorneys will have the opportunity to tell you
what they contend the evidence to have been.
And
you have not yet had an opportunity to hear the charge from the Court as to the
applicable law in the case.
Now,
until you've seen and heard all of that, you ought to keep an open mind and
wait until then to make your decision in the case.
I
instruct you that until the trial is finished and you are in the jury room to
commence your deliberations, it would be improper for you to commence your
deliberations amongst yourselves or discuss the case with anyone else or allow
anybody else to discuss the case with you or in your presence.
Now,
you've been furnished pad and pen to take notes, if you wish, during the course
of the trial. If you do not wish to take notes, then that's fine as well.
I
instruct you that any notes taken should not be used as a weapon during jury
deliberations. Notes alone do not entitle a juror's opinion any greater weight
than the opinion of another juror who did not take notes during the course of
the trial.
Now,
those notes will be secured during the course of the trial of the case. They
will not be reviewed by anybody else, and they will be destroyed at the
conclusion of the case.
Now,
during the course of the trial, it is essential that you see and hear what's
going on in the courtroom. If at any time you cannot hear the testimony of
witnesses, if you cannot hear questions posed by the attorneys, if you cannot
hear what I'm saying, if you cannot see exhibits that are being used or the blackboard
being used, then raise your hand or otherwise make it known, and we'll address
the problem however need be.
Now,
I'm sure you've all noticed that this case is being televised, and I would
point out -- I would note to you that there will be no cameras pointed at
jurors. There will be no photographs taken of jurors during the course of the
trial of the case.
I
would also instruct you that should any person attempt to influence any juror
in this case, the juror should promptly report that to the Court. I do not
anticipate that, but if that should occur, that would be your instruction in
that event.
I
also instruct you that no juror should read, listen to or view any news report
concerning this case, and remind you that the evidence comes from witnesses and
exhibits in the courtroom and from no other source unless authorized or
directed by the Court.
Mr.
Porter, do you wish to make an opening statement?
MR.
PORTER: Yes, Your Honor. Thank you.
STATE'S
OPENING STATEMENT
MR.
PORTER: Good morning.
[Jurors
respond]
MR.
PORTER: As the judge previously introduced to you, my name is Danny Porter, and
I'm the district attorney, and I represent the people of the State of Georgia
in the case of the State v. Michael Harold Chapel.
The
burden rests on the state to prove that the defendant is guilty beyond a
reasonable doubt of the charges of malice murder, felony murder, armed robbery,
and possession of a firearm during the commission of a felony. And we intend to
present evidence to you over the next few days that will in fact prove that
Michael Harold Chapel is guilty.
I'd
like you to take a moment to orient yourself as to where these incidents that
we'll be describing occurred. This is an aerial photograph of the northern end
of Gwinnett County or at least a portion of it that involves Peachtree
Industrial Boulevard as it runs from Duluth at this end to Buford at this end.
It's intersected here by Georgia 20, which runs from Lawrenceville all the way
to Cumming. This is the intersection of Peachtree Industrial Boulevard and
Georgia 20.
The
incident itself occurred at the Gwinnco Muffler Shop, which is located here on
Peachtree Industrial Boulevard right south of where the road goes from a
four-lane to a two-lane. There are roads that intersect here and here and here that
will all be referred to in the testimony. And this is the area which we'll be
dealing with over the next few weeks.
Now,
on the morning of April 16, 1993, at the Gwinnco Muffler Shop, two men came in
about ten minutes of eight. The first was Theron Smith. He was going there to
have a car repaired. And about ten minutes after he arrived, the owner of the
store, Joe Byars, arrived to open up. Gwinnco Muffler opens at eight and people
get there early just like everybody else does in a service center.
They
both noticed, as they drove in, parked in the driveway, a brown Lincoln
Continental with a person slumped over the wheel, slumped actually into the
passenger side. The window was down, even though the morning was cold, and the
left front tire was flat.
Neither
man really thought much about it one way or the other and went on about their
business until just right at eight o'clock. They thought the person might need
some assistance, so they both walked down and made the discovery of the body of
Emogene Thompson, a person they had previously thought was asleep or might be
in trouble. The way they made that discovery is because of the blood splatter
on the front seat of the car and the dash and on the passenger side and on her
face and hands.
The
car -- once they made that discovery, immediately the police were called. The
police began to seal the scene and process it. It was discovered that the car
was there with the window down, it had power windows, the doors were locked,
the ignition was on, and the left front tire had been punctured.
Ms.
Emogene had been shot twice. As a later autopsy revealed, the first shot
entered her head here and exited somewhere around her right eye. The second
shot went into her neck here at her hairline and exited to the right upper portion
of her skull. Both wounds were fatal, although the evidence will show that
between the first and second shot, Emogene Thompson was alive.
The
scene was then processed and photographed, and you'll see those photographs and
the videotape of the crime scene as it was that morning. And that -- as I said,
the autopsy was performed by the Gwinnett County medical examiner. Blood was
drawn from Ms. Thompson for later testing, and we'll talk about that in just a
minute.
So
the police were left at this point with a body, a car, and an investigation.
And that investigation began right away. And it began on several fronts. The
first that you'll hear about is that the police began to run roadblocks in
front of the Gwinnco Muffler. They ran them for four nights in the hope that
someone who had been driving by the night of April 15 or the early morning
hours of the 16th had seen something. And, in fact, there were people who drove
by that had seen something.
The
witnesses' picture began to emerge that at approximately 9:30 on April 15,
witnesses saw a Gwinnett County police car parked in the Gwinnco Muffler
driveway facing towards Peachtree Industrial Boulevard. Some of those witnesses
saw the car with the headlights on, some of them saw the car with the dome
lights on, and some of them even saw a large white male with brown hair seated
behind the driver's side of the police car. And that was at about 9:30 on April
15.
Other
witnesses who came along a little later, between 9:30 and 9:45, saw what they
described as a person getting a ticket. They saw a police car, they saw a
dark-colored car pulled face first into the driveway of Gwinnco, a police car
behind it with its blue lights on.
And
then at 9:45, give or take five minutes, a witness saw, as they crested the hill south of the muffler shop,
they saw someone in the driveway, a dark-colored car and a police car with its blue
lights on. And as any other person, they started to slow down. They thought
they might be speeding. They thought they might get a ticket.
And
as they went by the muffler
shop, they saw a dark-colored car, a large white male wearing a rain
slicker, a police hat with a rain cover and carrying a flashlight, standing
beside the dark-colored car. Behind that dark-colored car was a police car
where the blue lights had been on. As they crested the hill, the blue lights
were then off. As they passed, they observed what I've just described.
And
as they went on past, proceeding down towards the intersection of Georgia 20,
as the road four-lanes, which is about here, a car came up behind the two men,
moving rapidly, and pulled up beside them as soon as the car -- as soon as the
road four-laned. The passenger in the car, who you will hear testify, looked
over and realized it was a Gwinnett County police car, and he presumed that it
was the same car that he had just passed. He looked at that car, the car
remained beside them all the way down Peachtree Industrial Boulevard, a
distance that you'll see from here [indicating] to the Gwinnco is seven-tenths
of a mile. And from this intersection here [indicating] to where the police car
eventually turned off is eight-tenths of a mile from the muffler shop. And the
car -- the police car remained beside the witnesses' car the entire time.
The
passenger looked over to see the person driving the car. He looked at him the
entire time. He was paying attention. And in the light of the street lights and
in the light of the dome lights of the car, or the dashboard lights, he saw a
person that he's identified as the defendant, Michael Chapel.
And
on another front, the first thing that the police began to do was to try and
reconstruct the events of the last night of Emogene Thompson's life. The first
thing they did was contact her son. She lived on Craig Drive which is off of
Hillcrest here with her son, Michael. Michael told them that she had eaten
dinner with him the night before, and the last time that he saw her was about
8:30.
But
he told them one other thing, that she had had a theft on April 3 and she had
reported it to the Gwinnett County police department. And she'd had a theft of
approximately $7,000. And since that theft, she had been carrying the balance
of her money with her, never letting it leave her side. So all of a sudden,
there was a connection, and they began to look for who was connected to the
victim.
Who
was connected to Emogene Thompson? And it was discovered that the defendant on
April 3 had responded to a burglary call at Emogene Thompson's house; that he
had gone to her house; that he had taken the report of the burglary and the
theft of the $7,000; that he had seen the remainder of the money which was
approximately $7,000, and had counted it out with the victim. And during that
time, he said that it appeared to him that her son had taken the money.
The
key there is he never filed an incident report. He never logged it on his daily
activity sheet that he'd ever been in contact with Emogene Thompson. It wasn't
until her body was discovered, and he was told of the fact, that he came
forward.
The
police also discovered that at least one call was made from the victim to the
defendant at the northside precinct, a call that he supposedly returned or was
instructed to return.
Now,
in the course of this, given the fact that that theft was the motivation for
the killing or robbery was the motivation for the killing, the police began to
look into the finances of Emogene Thompson.
What
they discovered was that due to the death of her boyfriend, she'd received an
insurance settlement of $25,000, that she received some of it in November of
1992. And in March of 1993, she received an additional $10,000. They also
showed that on March 2, 1993, Emogene Thompson received almost $10,000 --
excuse me, $6,300 in cash from the People's Bank of Buford, that cash being in
predominantly $100 bills. They also discovered that on March 12, Emogene
Thompson made a split deposit of her last insurance check and received almost
$10,000 in cash, again, most of it in $100 bills. So the story of the cash is
true. The police found and accounted for the money that was stolen.
They
began to look at the defendant's finances. They discovered that in January of
1993, he had asked for and gotten a loan from a friend of approximately $1,500
that had never been repaid. They discovered that he had received in April of
1993 a notice of what's called a zero-base audit, which would have allowed --
could have disallowed approximately $4,000 in deductions that he had made on
his 1992 taxes. And also discovered that he had had to -- he had failed to make
the payments on his truck, and he had returned it rather than having it
repossessed; and, basically, what they discovered was the defendant was in
financial straits at the time of the homicide.
The
key, then, began into the investigation of what was his financial status after
the murder. And the state will present evidence that in the week after the
murder, in the week of April 16th through the 23rd, the defendant made
purchases and deposits into various bank accounts that account for $2,500 in
currency for which there is no legitimate source. The state will show that he
paid $600 for T-shirts for the gym that he owned and paid for them with six
$100 bills.
The
state will show that on the morning of
April 16, 1993, while Emogene Thompson's body was being removed and
transported to the morgue and her car was being processed, he was having his
car washed here in Lawrenceville and having it detailed, and he paid for it
with a $100 bill, for a $20 car wash.
The
state will also show that in a briefcase that was removed from the defendant's
car, in a ledger book, there were four brand new crisp $100 bills tucked behind
the notebook. And the state will show that the serial numbers on those bills
indicated that they were delivered to the People's Bank and Trust from the
Federal Reserve on March 11, the day before Emogene Thompson withdrew $10,000
in cash.
With
this evidence in hand, the defendant was then brought into Gwinnett County
police headquarters, and he was interviewed, and you'll see that interview.
You'll see the videotape. And what do you think the defendant said? 'I didn't
do it.'
But
I want you to listen to the tape, because in the denials I want you to watch
for statements like, 'If I thought I needed an alibi, I would have gotten one.'
Statements like, 'If I had as much evidence as you guys have, I'd think I was
guilty, too.' Statements like, 'I'm really insulted that you think I could be
that sloppy as to shoot someone on the side of the road.' And watch his
demeanor. Watch the demeanor of a man who is accused of murdering and robbing a
woman at night while on duty as a police officer.
After
his arrest, physical evidence was then gathered by the Gwinnett County police
department. The tire had already been removed from the vehicle. It had been
determined that it was punctured by a single-edge sharp instrument, which is
scientific talk for a knife. It was determined that two bullets that were
recovered from Emogene Thompson's car were fired from either an RG or Charter
Arms .38 or .357.
A
rain jacket which was recovered from a locker at the northside precinct, to which
the defendant had sole access, was discovered to have high velocity blood
spatter of human origin. You will hear that the source or one of the only
sources of high velocity blood spatter is to be standing within 18 inches of
someone when a bullet impacts their body.
And
finally, the state recovered the seat of the defendant's patrol car. Right
before the patrol car was going to be released back into service, and the
defendant was already in custody, it was decided, based on a number of factors,
to run one more test on the car. And the police here ran what's called a
Luminol test.
Luminol
is a substance that's sprayed on surfaces and then a fluorescent light is used,
and in the presence of blood, it will luminesce or shine. And when the Luminol
process was applied to the seat on the armrest and the edge of the passenger's
seat, it luminesced in the presence of blood.
The
seat was removed and sent to the crime lab. The crime lab determined that the
stain on the seat was of human origin. And then a swatch was cut out and it was
run through DNA forensic testing.
Now,
y'all indicated when we selected you as a jury that you had some familiarity
with DNA. But let me take a moment to explain what the testing is.
In
DNA testing, unknown body substances are compared to known body substances. The
first step in the process is that through the use, basically, of a centrifuge,
the DNA is removed from in this case the blood. And the DNA material is in fact
removed mechanically. The DNA is then examined to determine whether or not
there is enough DNA in the sample to make comparisons.
You'll
learn that DNA is essentially the cornerstone of life. It is a cellular matrix
consisting basically of four parts which are joined like the links of a puzzle
and can only join one way. Each of us are different because they join in
different sequences. And that's what makes me me and you you. And it is this
sequence that is then tested.
It's
tested first by once the DNA material is removed, it's cut chemically through
the use of an enzyme called a restriction enzyme. And what that does is take
the strands of DNA and separate it along certain points into strands of varying
lengths. Those lengths are then placed in a gel, and through a process called
electrophoresis, they are chemically and electrically excited and then moved
through the gel for a certain distance depending on their length. Then they are
locked in place through a process called Southern bonding, which is the use of
a nylon membrane that locks the question sample into place. Then once the
question sample has been locked onto the membrane, it's compared against what
are called probes.
Probes
are nothing more or less than genetic yardsticks. They measure the length of
the genetic material that's been cut previously. As each probe is put against
the question material and the known material, comparisons are made. The more
probes that are compared, the narrower the chances become of what's called a
random match. And these terms will all be explained to you.
In
this case, six probes were compared to both the blood of Michael Chapel and the
blood of Emogene Thompson, six yardsticks against the DNA material that was
found on the seat. The results of those tests were that each of the six probes
matched the blood of Emogene Thompson.
Once
the match is made or determined by trained technicians who are experienced in
this matter, it's reviewed by a computer. And the computer makes a second
comparison under the control of the technicians. The control of the -- the
computer in this case confirmed the results of the technicians. And again, the
six-probe match was found from the seat of Michael Chapel's patrol car to the
blood of Emogene Thompson.
Once
the examination is made, there is what's called a population frequency estimate
done, which is basically done by multiplying the likelihood of the occurrence
of each probe, because the probes, they don't measure hair color or eye color
or anything else. They are just places on the DNA, and they occur with certain
frequency in populations. And when you take all the six probes and you multiply
the frequency of the occurrence of each probe, you end up in this case with
scientific conclusion that the likelihood that the blood on the seat is not
Emogene Thompson is one in excess of ten billion, which is more than twice the
population of the planet. In fact, the numbers that you will hear is that the
chance that it is not Emogene's blood is in excess of one in forty billion.
Now,
in this case, the murder weapon has never been recovered, but the state will
present evidence that Michael Chapel owned a Charter Arms .38. He was seen in
possession of it. In this case, Emogene Thompson's purse has never been
recovered, but the state will present evidence that on the night of the murder
she was in possession of $7,000.
And
when this case is concluded, you will see that the strands of evidence that the
defendant wasn't able to dispose of, couldn't dispose of, bind him inextricably
to Emogene Thompson as if they were chained together. And it is that chain
which will lead you to the verdict that speaks the truth.
The
verdict that speaks the truth in this case is that Michael Thompson-- or, excuse me, Michael Chapel
is guilty of malice murder, felony murder, armed robbery, and possession of a
firearm during the commission of a felony. And when the case is ended, I will
ask you to return that verdict that speaks the truth which you have sworn to
do. Thank you.
THE
COURT: Mr. Moore, do you wish to make an opening statement on behalf of the
defendant?
MR.
MOORE: Yes, Your Honor, I do.
MR.
MOORE: Good morning, ladies and gentlemen.
[Jurors
respond]
MR.
MOORE: This part of the trial, what I say is not evidence, what Mr. Porter said
to you is not evidence. We're merely telling you what we believe the evidence
will show, what the witnesses will testify to.
As
the judge told you, the bill of indictment, too, that you have has been read to
you, is not evidence in the case. You'll have the original out with you to
examine, and I'd ask you to note on there that only one witness appeared before
the Grand Jury. The defendant does not get to appear, we do not have an
opportunity to present any evidence or know what's done there. The grand jury
merely decides whether to send the case --
MR.
PORTER: Your Honor, I hate to interrupt
Mr. Moore's argument, but that is not a proper argument to explain that
no inference can be drawn from the fact that that is the technique in which an
indictment is made.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I believe that's what the Court instructed the jury, that
it's not evidence, it's not -- the jury's not to draw any inference from it of
guilt.
THE
COURT: I've instructed them that is the law. I believe this is the time to tell
them what the facts are and what you expect the evidence to be, Mr. Moore.
Objection's sustained.
MR.
MOORE: Ladies and gentlemen, this is a case where the state wants you to
believe that they've got all this solid, ironclad evidence, the way Mr. Porter describes
it. The truth is this case was built from the beginning on probabilities,
suspicion, thinks, and guesses, and gossip. Mr. Porter's going to present
gossip to you, too, to try to convince you that Mike Chapel is guilty.
Mike
Chapel had the misfortune as a dedicated police officer to answer a call to Ms.
Thompson's residence on April 3, 1993. He found a mother, a distraught mother,
who wanted desperately to believe that her son had not taken her money. She
took him to the back door and she pointed and said, 'Here's where somebody cut
the screen.' He talked to her. She showed him her money, and she showed him
that she only had $7,000 left. She told him there was $14,000 to begin with.
Officer
Chapel told her, 'Ma'am, you don't have a burglar. Burglars don't take half
your money. Your son, who has problems, took your money. If you wish for me to
prosecute, I'll do so. That's my job as a police officer.' She did not wish to
prosecute. Officer Chapel did not write a report. He felt the incident didn't deserve
a report, that nobody wanted to prosecute, the mother didn't want him to. He
mentioned the call though to his sergeant, Sergeant Stone. And I believe the
evidence will show that Sergeant Stone recommended that he write a report. He
never did.
She
called him back once or twice about the money, the evidence is going to show.
And he attempted to do some things to perhaps make her son own up and say he
that took the money. Everybody knew, including the mother, she didn't want to
believe it, that no burglar takes half your money when you've got $14,000 in
cash. Everybody knows that.
After
the murder, the -- immediately, Mike Chapel went forward to his supervisor,
Sergeant Stone, and reminded him that 'I was out there on that call.' He did
not attempt to hide it. He in no way attempted at any time to hide the fact
that he was out there on a call.
Now,
the police on the other hand, the evidence is going to show that on the night
of Ms. Thompson's murder, the police were doing what they shouldn't have been
doing, including Mike Chapel. They were not doing what they're paid to do.
There was thunderstorms that night, bad storms, so they decided to all go up to
the fire station up at the northside precinct and sit at the fire station and
watch TV.
And
Mike Chapel, Sergeant Stone, and Brian Reddy, a police officer, were all
sitting up there at the fire station watching TV that night until about ten
o'clock. They left about ten o'clock, and the evidence will show that Mike
Chapel got a call. He responded to that call in a timely manner. In the period
of time between the time he responded to that call and the time that the state
says Ms. Thompson was killed, the state contends that he drove down, stopped
Ms. Thompson, killed her, and then went to his call, all in a timely manner.
Now,
the Gwinnett County police department made a serious error of judgment, I
think, in this case. They elected to investigate this case themselves. They
knew, as Mr. Porter said, by the second day that a Gwinnett County police car
was involved. There were too many witnesses that had seen a police car parked
out there on Peachtree Industrial Boulevard. Instead of calling in an outside,
independent agency, they undertook to investigate themselves. They in fact put
people in there that were friends. They put people in there that perhaps was
the person who committed the crime to conduct the investigation.
The
evidence is going to show, like Mr. Porter says, that Ms. Thompson was shot
twice, and the death was instantaneous from either shot. The medical examiner's
going to say either one. After the police set up these roadblocks and started
finding people who said that, yes, we saw a police car out there, then the
police department at that point had a real problem. If the media got hold of
it, if they told you, the public, that we've got a police officer out here on
the streets who has killed somebody and we don't know who he is yet, there
would have been panic.
At
that point, the police were in a rush to solve this thing as quickly as possible,
make an arrest, assure you, the public, that everything was okay, they've
caught the person that did it.
So
they had a suspicious circumstance. Mike Chapel had made the call at Ms.
Thompson's. Let me tell you how they went about investigating it.
The
evidence is going to show they didn't go up to the northside precinct where
they suspected an officer up there may have done it, although there's no
assurance it couldn't have been any Gwinnett County police officer in uniform.
They don't necessarily had to have been on duty. The evidence is going to show
they take their cars home. The Gwinnett County police officers all take their
cars home. They have their uniforms available. There were probably two hundred
police officers at that point that could have been the suspect in the case.
Now,
let me tell you how the police went about conducting their investigation. They
did a photo lineup. They had some witnesses that said they might be able to
identify somebody, so they did a photo lineup, an eight-person photo lineup.
There are thirty officers, male officers, at the northside precinct, not
counting all the others that worked at the other precincts or headquarters. But
there are thirty that worked up there.
Out
of those thirty officers that worked the northside precinct who would have been
your most primary suspects, they placed in the photo lineup exactly one
photograph of somebody from the northside precinct, and that was Mike Chapel.
His was the only photograph that was placed in that eight-person photo lineup.
Not any of the others.
Then
they proceeded to take this photo lineup which would suggest, the evidence will
show, was suggestive because of the fact it didn't include any of the other
suspects. They took that and they showed it to a Mr. Kautter, who you will hear
testify. A man Mr. Porter referred to that drove by and said the police car
passed him. The evidence is going to show that he examined those photo lineups
-- this photo lineup for about two minutes. He looked it over, he looked at
number 7, which was not Mr. Chapel, and said, 'That's like him, but it's too
skinny.' Then he proceeded to pick Mr. Chapel. And I want you to listen very
carefully to the evidence when it comes in the court here. His exact words, and
I'll quote what Mr. Kautter said was, 'I'll have to say that it's number 3.
I'll have to say that it's number 3.'
During
pre-trial hearings when the evidence will come out to you, I questioned the
officer showing him that photo lineup. 'Did you inquire -- was he sure about
it? What did he mean by that?' And the officer said, 'No, he signed the
affidavit, and that was good enough for me.' He didn't ask him what he meant
by, 'I'll have to say that's number 3.'
At
the pre-trial hearings we had, I took the photographs of the other twenty-nine
police officers, male police officers, that worked that precinct and showed
them to Mr. Kautter. Mr. Kautter will testify --
MR.
PORTER: Your Honor, I'm going to object to this, Mr. Moore's testifying, unless
he intends to take the stand as to that matter, and, of course, he can't as
counsel.
MR.
MOORE: Your Honor, there's transcripts of those. I believe I can go into what's
been testified to by witnesses I expect to be proved.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: It seems to me the distinction is between state what transpired at the
hearing as opposed to what they're going to say when they get here. It seems to
me if you know -- if what they've said is what you expect them to say here,
you're entitled to say what they're going to say and what the statements are
going to be and what the evidence is. I don't think the issue is what have they
said at some other time at some other hearing, it seems to me; but, in fact,
what they are going to say, what the evidence is going to be. It seems to me
you're entitled to say about what the evidence will be. Is that a fair
statement?
MR.
PORTER: That and Mr. Moore saying, 'I did this and I did this.'
THE
COURT: Well, I'm inclined to agree. I think if you know that's what they're
going to say when they get here, if you know what they're going to say, that's
what the evidence is going to be, I think you're entitled to say that.
MR.
MOORE: Okay.
THE
COURT: Okay? All right.
[Bench
conference concluded.]
THE
COURT: Go ahead, please.
MR.
MOORE: I'll rephrase that a little differently. I expect the evidence to show
that Mr. Kautter will testify that
there's a photo in that photo lineup that is similar to one of the other
officers at the northside precinct. That photograph that he picked out is of
Officer J. P. Morgan, who committed suicide May 10, 1993, shortly after Mr.
Chapel's arrest.
At
that time, the police conducted a minimal investigation of Officer Morgan. They
Luminoled his car, they did some checking of weapons and everything after he
committed suicide, and that was the end of it.
Now,
let me talk to you about this rush to arrest somebody, to solve this case
quickly. At the time that Mike Chapel was called in on April 22, the night of
April 22, the morning of April 23, late in the evening, early morning hours, at
that time, the police department had not interviewed the other officers at the
northside precinct. They didn't go up there and isolate everybody and ask every
officer up there, 'What were you doing, where were you on the night of April
15?' They called Mike Chapel into headquarters. He came, like a police officer
dutifully would when he's ordered to come in.
The
evidence will show the decision had already been made to arrest Mike Chapel at
that point based on the photo ID by Mr. Kautter. The evidence will show that
after they got Mike Chapel to headquarters, when the decision had already been
made to arrest him, in a frantic flurry then, they went out and started
interviewing people.
They
interviewed Brian Reddy who was working that night with Mike Chapel. For some
unexplained reason Brian Reddy lied to them and said that Officer Chapel was
not at the fire station that night. All of the evidence subsequently shows that
Mr. Chapel was there: the firemen, Sergeant Stone, the other officers.
That
didn't seem to bother the police very much. They proceeded on. They took
minimal statements from every other officer accepting whatever they said without
really checking into it. The decision had already been made to arrest Mike.
There wasn't any reason to check any further.
Now,
the videotape that's going to be played, they did videotape the statement of
Officer Chapel. I would ask you to watch that very carefully, too. Mike Chapel
is a police officer. He understands how things work, and he understands when
the police department doesn't investigate and turns on him and starts to put
all these things to try to show that he did it, that it's an uphill battle.
He's against the whole police department at that point. He realized, and you'll
notice it on that videotape, they didn't tell him, but he knew they were
probably going to arrest him at that point.
Now,
the state wants to make much of a lot of little things here and say that all of
these show that he's guilty. They talk about the money that he had. The
evidence is going to show that Mike Chapel -- it's a small town up at Buford --
that Mike banked at the same bank, the People's Bank, that Ms. Thompson did.
It's going to show that he owned a business called Iron World, a gym up there,
which generated cash, mostly cash fees from people going there and working out
and everything. His wife worked at a restaurant, a place called Hooter's, some
of you may have heard of it, and she received cash tips there. They didn't have
credit cards. They dealt and paid their bills and everything with cash and with
his police department paycheck.
The
state wants to make a lot about his financial circumstances. Mike Chapel didn't
have a lot of money. He was a police officer. The citizens don't pay their
police officers very much. He had side jobs. Nearly all of the police officers
work second jobs. The evidence will show that he worked a second job.
He
had a wife and two children. The state wants to go in, too, to what Ms.
Thompson's friends may have said, gossip, about what was going on prior to this
happening, and we'd ask you to take that for what it's worth.
They
left the car out at the police department, where Mr. Chapel drove in and parked
it, basically unsecured for several days out there with a number of sets of
keys to it around different places that people had access to it. It was parked
in a parking lot there where the public pretty much has access to it. There's a
gate there, but that gate's never closed, or at least on rare occasions, if it
is.
The
DNA in this case, and I know you've all heard a lot about it from television,
and we all asked you questions about it during voir dire, first of all, in this
case there was a very small, very poor quality sample to begin with.
In
forensics, when you have a problem with a test, you only have the one small
sample. You cannot go back and retest it. In diagnostics, such as paternity, if
you had a test that showed there might be a problem, and you were concerned
about it, the scientists will testify they would go back and rerun that test.
They wouldn't accept the results.
We
expect the evidence is going to show that there are problems here with the test
that was run in this case. The crime lab does things that's called bio-imaging
that Mr. Porter referred to. That's a computer that takes this thing, like an
autorad, it's like an x-ray, and it finds the darkest spots. There's spots on
there that match up or don't match up of DNA. It finds the darkest spot which
it believes to be the center and it centers on that to make measurements then
to determine whether or not there's a match with the computer.
Well,
that's all a nice, sophisticated piece of equipment, but it's not a lot different
than a ruler or yardstick. If you -- it's more sophisticated in that it
measures smaller amounts, but if you have something here and you place it in
the center with a ruler to measure it, then depending on where you decide the
center is, you'll get different results in the measurement.
That
fancy machine that they've got, if they don't like the way it places the dots
in the center there, they have the ability to manipulate it. In other words,
they visually say, 'Well, I look at this and it doesn't look to me like that's
the center,' so they eyeball it and they put it where they think the center is.
They don't rely on the machine. You're going to hear the testimony of that.
They
were under a court order -- that last probe that was run, they were under a
court order, the evidence is going to show, to preserve that, that bio-image,
so it could be examined by other expert witnesses. They, this crime lab,
accidentally erased that and destroyed it. When they were searching for it,
after they had erased it and destroyed it, they discovered that they had one of
the bio-images from the original five probes that they had told us had been
erased.
When
we examined that, when the expert witness examined that, it appeared that they
had in fact manipulated the points where the machine picked up things on that
probe that they had preserved. In other words, they had not relied on the
machine. They had gone back in and made changes. Now, they didn't keep any
records of the others, whether they had manipulated any of the others or not,
so we don't know, and they don't know. What they're saying is, 'I'm a
scientist, trust me.' And we think the evidence is going to show that other
scientists disagree with them.
We
expect there's going to be evidence to show that there may have been
contamination from a mixed sample here. And when you have that, then the
results are no good in the DNA test. They can't do a mixing experiment here. If
it was a diagnostics situation, like paternity, they can do what's called a
mixing experiment to determine whether or not there's been a mixed sample. They
can't do that here. And the reason they can't, they don't have a large enough
sample. The sample that's located is not large enough. It would be a simple
accepted test in a paternity case for child support to determine whether that
happened or not, but they can't do it here.
There's
one probe that you're going to see that it matches the car seat, it matches Ms.
Thompson, and it matches Mike Chapel's blood. Now, they included that in their
results even though it's a match for all three. And they explain away, 'Well,
that can happen. Those things happen.'
The
standards, we expect the evidence to show, should be the same for all DNA.
There should not be lower standards simply because the evidence that they have
available is not of good quality or is not enough to do the right test or
enough to do what should be done.
The
examples that I gave you about the 'probably,' the suspicion, they focused on
Mike Chapel from the beginning. They arrested him when they didn't have any of
this DNA evidence. They had not talked to the other witnesses. That rush to
judgment. Then they proceed to get the eyewitness identification, which is
tentative at best, and we don't expect there to be any evidence that he tried to
find out whether or not Mr. Kautter was sure about that.
Getting
back to the crime lab with the DNA evidence, Mr. Porter talked to you about the
Luminol. We expect the evidence is going to show that Keith Goff from the crime
lab, who performed the test on the DNA, he's the one that did the actual work,
asked his boss, George Herrin, Dr. George Herrin, about the Luminol, whether it
would affect the test or not. Dr. Herrin's scientific answer was, 'I don't
think so.'
Ladies
and gentlemen, the state -- we contend the evidence here, and the state never
started at the police department with an open mind, in their rush to make an
arrest, to assure the public everything was okay, they immediately went after
Mike Chapel because he had the misfortune to make that call out there to Ms.
Thompson's. After you listen to all the evidence in this case, we believe that
you're going to return a verdict of not guilty in this case, and that verdict
speaks the truth. Thank you.
THE
COURT: Would you approach the bench, please?
JUROR:
Your Honor, could we take a brief recess?
THE
COURT: We're just about to, yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: I was thinking like maybe fifteen minutes and everybody -- you can get
your witnesses together, and I may let the jurors maybe get a cup of coffee or
something.
MR.
PORTER: Your Honor, one thing that occurred to me is you might want to check
with the bailiffs and see how many smokers you've got because that's going to
determine --
THE
COURT: Yeah, I had asked them earlier. I don't know whether we got any or not.
MR.
PORTER: -- that's going to determine some of your breaks.
THE
COURT: Maybe we'll help them stop for a few minutes.
MR.
PORTER: Maybe we won't.
THE
COURT: We'll take fifteen minutes.
MS.
ROGAN: Okay. That's fine.
[Bench
conference concluded]
THE
COURT: Mr. Allen, would you approach the bench, please.
[The
bailiff, Mr. Allen, approached the bench.]
THE
COURT: We're going to take fifteen minutes.
THE
BAILIFF, MR. ALLEN: Okay.
THE
COURT: You can take them to get a cup of coffee or something.
THE
BAILIFF, MR. ALLEN: Dorothy came up a while ago and asked me about what time. I
told her about 10:30, and she's going to set some stuff up down there.
THE
COURT: Okay.
THE
BAILIFF, MR. ALLEN: Let me ask one more question. Are they going to get a
deputy in here at all times? Can we leave the pads and things over the break?
THE
COURT: Yeah. That would be fine.
[Bench
conference concluded.]
THE
COURT: Ladies and gentlemen, we're going to take a fifteen-minute recess at
this point. Leave your pens, pads, notes in your seats. They'll be waiting on
you when you return. If we have any smokers, the bailiffs will try to
accommodate the smokers as well. We're going to give you an opportunity during
this recess to get a cup of coffee or a Coke or something, if you wish. We'll
take fifteen minutes.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Anything else at this point,
Mr. Porter?
MR.
PORTER: Your Honor, I intend to use the easel and some diagrams, and I realized
from my opening statement the back was to the Court. I expect that this might
be the best area, but I'm not sure.
THE
COURT: Well, that will be fine. But if it's a choice between the jury seeing it
and me seeing it, the jurors are going to decide it, so place it where the
jurors can see it. That's fine.
MR.
PORTER: Yes, sir.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll be in recess fifteen minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Ready, Your Honor.
THE
COURT: Ask the jurors to come back in, please.
MR.
MOORE: Your Honor, could 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 had mentioned during the pre-trial hearings perhaps not letting
people come and go and have the doors banging and everything. And with the jury
here, we think it would probably be a better idea for the people not to come
and go. I mean, we realize it's in your discretion, whatever you want to do, I
mean --
MS.
ROGAN: During opening, the door was opening and literally every juror, their
eyes just went to the door, and we're worried about them not -- you know, about
them getting distracted during the testimony.
THE
COURT: Well --
MR.
PORTER: Your Honor, a certain amount of in-and-out is necessary. I mean, your
guys -- a lot of people are going to have to go in and out.
THE
COURT: Yeah, we may be -- I guess my concern is that we have, you know, hour
and a half stretches, you know, where it may be a problem with somebody -- I
think my inclination at this time, let's see how it goes.
MS.
ROGAN: Okay.
THE
COURT: I think the witnesses -- I'll do that for closing, and if it's a problem
with the witnesses coming in in examination of witnesses, then everybody just
kind of keep an eye on it and see how it's going.
MS.
ROGAN: Okay.
MR.
DAVIS: The jury will get used to it.
THE
COURT: And if you think it's getting to be a problem or you want to renew your
request, then I'll reconsider it.
MR.
MOORE: Okay.
THE
COURT: Okay.
[Bench
conference concluded.]
SERGEANT
PARR: Ready, Your Honor?
THE
COURT: Yes, sir.
[The
jury returned to the courtroom and proceedings continued, as follows.]
THE
COURT: Let's first take care of a couple of housekeeping matters. One is,
jurors oftentimes are concerned about if it matters where they sit. And it's
not. I, it's first come, first served in the jury box, wherever you see and
hear best on a first come, first served basis.
The
other is, Mr. -- well, on a juror who had a conflict, that matter's been taken
care of in DeKalb County and -- that matter's been taken care of, so no need to
be concerned about that. That will be done later when you're through with this.
Okay? Call your first witness, Mr. Porter.
MR.
PORTER: The state would call Theron Smith to the stand. Theron Smith.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Smith, if you'll take the stand up here and, Mr. Porter, I'll ask
you to administer the oath.
MR.
PORTER: Thank you, Your Honor.
MR.
PORTER: Mr. Smith, if you could have a seat right up there.
THE
WITNESS: Thank you.
[The
witness stepped to the stand.]
MR.
PORTER: If you could you raise your right hand. Do you solemnly swear the
testimony you're about to give in this matter now pending, shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. You can put your hand down, and could you
state your name.
A. My name?
Q. Yes, please.
A. Theron S. Smith.
Q. Now, Mr. Smith, where do you live?
A. 11845 Findley Road, Alpharetta.
Q. And how are you employed?
A. I'm retired.
Q. Now, let me ask you, do you do work on the
side or do you do automotive work for friends?
A. Yes, sir. I work on a few cars, you know, for
my friends or something, you know, there at home. We used to run a garage and
we run -- we, you know, do a little now, but not as much as we used to.
Q. Now, let me call your attention to April 16,
1993, at about 7:40 in the morning. Did you have an occasion to be at the
Gwinnco Muffler Shop on Peachtree Industrial Boulevard?
A. Yes, sir.
Q. Is that in Gwinnett County?
A. I beg your pardon?
Q. Is that in Gwinnett County?
A. Yes, sir, on Peachtree Industrial.
Q. Could you tell the jury why you were there
that morning.
A. I took a friend of mine's Jeep Cherokee up
there to have a muffler put on it and --
Q. Why did you go to Gwinnco? Why did you go to
Gwinnco?
A. Oh, that's where I take all the cars, you
know, to have a muffler put on is at Gwinnco. I know Joe real good and I always
just take them up there and have it done.
Q. And what time did you arrive on the morning
of the 16th?
A. Approximately about twenty till eight.
Q. Can you describe what the weather was like?
A. That morning -- at the best I can remember,
it was a little cool because I had on a coat, and I think it had been raining
maybe the night before. I'm almost positive of that. But I know it was cool and
I did have a jacket on.
Q. When you drove into the driveway, did you
notice another vehicle in the driveway of the Gwinnco?
A. Yes, sir.
Q. Could you describe what that car looked like?
A. It was a brown Lincoln Continental.
Q. Did you notice whether or not any of the
windows were open?
A. Yeah. The left front window was down,
because, see, you know, I was sitting kind of, you know, up in that Jeep and it
was -- it had the road partially blocked so, you know, I had to get over a
pretty good bit to get by it, and the left window was down on it, and I could
see someone, you know, just a glimpse of them laying over in there as I, you
know, as I just eased by.
Q. Did you notice anything else about the car as
it sat there in the driveway?
A. The left front tire was flat.
Q. Was there any indication to you, based on
your experience, that the car had been driven on that flat?
MS.
ROGAN: Objection.
THE
WITNESS: Well, I couldn't tell --
THE
COURT: Just a moment.
THE
WITNESS: -- that it had because --
MR.
PORTER: Just a second, Mr. --
THE
COURT: Just a moment, please. What is your objection?
MS.
ROGAN: The objection is that I'm not sure this witness is qualified to render
an opinion on that issue.
THE
COURT: Restate the question, Mr. Porter, I'm not sure I heard it.
MR.
PORTER: Your Honor, I asked him based upon his experience was there any
indication to him that the car had been driven on the flat.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. PORTER:
Q. Mr. Smith, let me ask you the question again.
Based on your experience, was there any indication to you that the car had been
driven on the flat tire?
A. The best that I could tell it hadn't, because
normally, you know, if a tire's flat on a car, it would leave a kind of black
or wide mark, you know, where it runs in or if, you know, it's been run much
down there, it will be loose from the rim.
Q. And did you notice any of that about the
brown Lincoln that was parked in the driveway?
A. No, it was still on the wheel.
Q. So when you passed this car, and noticing
what you just noticed, what did you do then?
A. I went on by the car and pulled on up and
backed up and pulled in front of the door, you know, where he puts the exhaust
system on that, and I just pulled up in front of the car, you know, and I sat
there a few minutes and then I got out and, you know, kind of walked around a
little bit there in the yard --
Q. All right.
A. -- waiting on Joe to come in and which he
came in approximately, I'd say, ten minutes later or something like that.
Q. When Mr. Byars -- you're talking about Joe
Byars, aren't you?
A. Yes, sir.
Q. When Mr. Byars arrived, did y'all decide to
go back down to the Lincoln?
A. In a short period of time, he went ahead and,
you know, and raised the stall doors and all and put that Jeep on the rack, you
know, up there, had to go and put the muffler on it. And I was standing there
talking to him, and I told Joe, I said, 'You know, it looks like to me
whoever's in that car would be getting kind of cold down there with the window
down, you know, and the engine not running.' And we talked a few minutes there
about that and he said, 'Well, I think I'll go down there, you know, and see if
I can get them to move the car -- or if I can help them, you know, or get them
to move the car a little bit up, you know, out of the driveway where people can
kind of get by.' So I decided, you know, I'd go with him. And he had a portable
phone in his hand, and we walked off down to the car. And I was behind him
approximately three foot, and he walked up to the door of the car. And he kind
of jumped back and told me, said they was blood all in that car.
Q. All right. Did you look in the car?
A. Yes, sir.
Q. And what did you see?
A. I saw blood all in it, too. There was a pair
of glasses laying down kind of in the seat that had blood all over them, and
then the lady that was in there was, you know, was leaned over kind of to the
right. And I couldn't see her breathing, so I told Joe -- I walked around in
front of the car and looked in on the other side and I couldn't see her -- you
know, she made no movements, so I came back around and we looked again, you
know, real good. And so we decided then, you know, that she was dead and Joe
called the police.
Q. All right. Mr. Smith, I'm going to show you
what I've had previously marked as State's Exhibit Number 5. Can you take a
look at that please, sir?
A. Yes, sir.
Q. And can you describe for the jury what that
is?
A. That's a Lincoln Town -- Lincoln-Continental.
Q. Is that a photograph of a
Lincoln-Continental?
A. Yes, sir, it sure is.
Q. All right. Does that photograph accurately
depict the car you saw in the driveway on April 16, 1993?
A. Yes, sir.
Q. And let me show you State's Exhibit Number 6.
Can you look at that please, sir? Can you describe what that State's Exhibit Number
6 is?
A. It is that lady that was inside that car.
Q. All right. Is that a photograph of the lady?
A. Yes, sir. It looks just to me just like it.
It sure does.
Q. So does that photograph accurately depict
what you saw on April 16, 1993?
A. Yes, sir.
Q. And let me show you State's Exhibit Number 7.
Can you look at that please, sir? And can you describe that for the jury?
A. Yeah, this is that lady that was -- excuse
me, that was in the car. And like I say, you can see the -- the blood and all,
you know, that's up in here on her hands and all. That is definitely her.
That's the way she was dressed.
Q. All right. Does that photograph accurately
depict what you saw on April 16, 1993?
A. Yes, sir.
MR.
PORTER: All right. Your Honor, at this time, the state would move for admission
of State's Exhibit Number 5 and Number 6 and Number 7 and ask that we take a
moment and publish them to the jury.
THE
COURT: Any objection, Mr. Moore?
MR.
MOORE: Ms. Rogan's handling this witness, Your Honor.
THE
COURT: All right.
MS.
ROGAN: If I could just see them one more time. I don't think I have an
objection to them.
[Mr.
Porter presenting to Ms. Rogan]
MR.
PORTER: Your Honor --
MS.
ROGAN: No objection, Your Honor.
MR.
PORTER: Your Honor, at this time, I'll take a brief moment from Mr. Smith's
testimony and publish these photographs.
THE
COURT: All right. Just a moment. Any objection, Ms. Rogan?
MS.
ROGAN: No. No objection, Your Honor.
THE
COURT: State's 5, 6, and 7 are admitted without objection. You can publish
them.
[Mr.
Porter presenting to jury]
THE
COURT: Why don't you continue direct examination while they're looking?
MR.
PORTER: Your Honor, if I might, they're almost finished, and I would want the
jury to at least concentrate on Mr. Smith's testimony --
THE
COURT: All right.
[Pause]
MR.
PORTER: Thank you, Your Honor.
BY
MR. PORTER:
Q. Mr. Smith, let me ask you, did you touch the
vehicle or the lady in the car?
A. No, sir.
Q. Did you observe Mr. Byars touch anything?
A. No, he did not touch it.
Q. I'm going to ask you once last thing, if I
might. If you could step down off the witness stand and stand over here by the
podium or by the --
[The
witness stepped down from the stand.]
MR.
PORTER: Your Honor, the witness will be referring to State's Exhibit Number 2,
which has been previously marked and stipulated into evidence as to -- as an
accurate diagram of the Gwinnco Muffler Shop.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, Ms. Rogan's handling this witness.
THE
COURT: Ms. Rogan?
MR.
PORTER: Mr. Smith, if you could show us --
THE
COURT: Just a moment, Mr. Porter. Ms. Rogan, any issue with respect to State's
2?
MS.
ROGAN: No, Your Honor.
THE
COURT: All right. Go ahead, please.
BY
MR. PORTER:
Q. Mr. Smith, if you could show us, using this
vehicle, where you saw the brown Lincoln in the driveway of the muffler shop.
And it will just stick to the map, so you can --
A. Approximately where it was at?
Q. Approximately where it was at.
A. Right along in there like -- I would say
somewhere right along in there, right in that vicinity.
Q. Okay. And if you could have a seat back on
the witness stand, please, sir.
A. All right, sir.
[The
witness returned to the stand.]
MR.
PORTER: Your Honor, by agreement of the parties, State's Exhibit Number 2
represents an accurate representation of the Gwinnco Muffler Shop parking lot
and intersection with Peachtree Industrial Boulevard and is to scale. The
vehicles which are used for demonstrative purposes are not to scale in relation
to the muffler shop or driveway, and that is the stipulation.
MS.
ROGAN: That's correct.
THE
COURT: All right. So stipulated.
MR.
PORTER: Your Honor, that completes my questioning of Mr. Smith. Ms. Rogan,
where would you like the podium?
MS.
ROGAN: A little further up. This is good actually. Thanks.
BY
MS. ROGAN:
Q. Good morning, Mr. Smith.
A. Good morning.
Q. My name's Elizabeth Rogan, and I'm one of
Mike Chapel's attorneys. You've told us about discovering the body in the car
on the morning of April 16, 1993.
A. Yes, ma'am.
Q. Okay. And you spoke to the police that
morning and gave them a statement?
A. Yes.
Q. On April 16?
A. Uh-huh, I sure did.
Q. And that was a little bit later in the
morning from the time that you had discovered the body, the car with the body in
it?
A. Yes, ma'am.
Q. Your statement was around 10:15 in the
morning?
A. Well, I didn't really pay that much -- I
guess somewhere around that. I know --
Q. Was it a couple of hours later?
A. I know it was a while later.
Q. Did you stay at the Gwinnco Muffler Shop that
entire time that morning?
A. Yes, ma'am. With the exceptions of when I was
sitting in one of those police cars, you know, when I gave them a statement
about what I saw. That was the only time I wasn't down there at the -- you
know, at the shop.
Q. Near where -- were you near the shop up here
or were you more down near where the car was?
A. You mean -- most of the time I stayed then
until after we discovered that. Yeah, the biggest majority of the time I was up
there close to the shop.
Q. Was the business open that morning?
A. When I got there?
Q. No, during -- after the time Mr. Byars
arrived and after the time you called the police?
A. Oh, yeah, sure.
Q. Okay. So the business opened up as usual
throughout that morning?
A. That's right. Uh-huh.
Q. Okay. How long did you stay there altogether
that morning; do you remember?
A. They probably let me go somewhere around --
I'm not really sure of the time, but somewhere around lunch.
Q. Okay. And so they had asked you to stay through
the morning. The police, are you saying -- is it the police who you said they
let you go around lunchtime?
A. Yeah. Yeah, the police. They didn't let me go
until that time. See, I was -- I asked them if I could leave -- you know, if I
could leave once they came. And they told me no, just stick around a while and
that's what I did.
Q. Okay.
A. And then two detectives told me I could
leave, you know, later on.
Q. Okay. Did one of those detectives take your
statement from you?
A. No.
Q. It was some other police officer who took
your statement?
A. It was another policeman who took the -- it
that morning. Yeah, the two that let me go was the -- well, I didn't know them,
but they was in another police car on down, you know, the road there a little
bit further.
Q. Okay. And when you made your statement, you
actually got in the back of a police car --
A. I got in the front of it.
Q. -- and talked -- in the front of it?
A. Yeah. It wasn't -- well, I guess it was a
detective, you know. It wasn't a regular police car, you know. It's just an
automobile.
Q. Like an unmarked car?
A. Uh-huh. I'm sure I'm right.
Q. Okay. Do you remember how long it was after
you and Mr. Byars discovered that there was a body in that car that the police
arrived?
A. It was very shortly. Maybe just -- I can't
say exactly, but it -- I know it was real quick anyway.
Q. Okay.
A. I'd say probably maybe ten minutes or
somewhere around there, maybe less, you know, somewhere in the vicinity of that
anyway. I know they got there real quick.
Q. Okay. And throughout the morning, a lot more
officers kept arriving?
A. Yes, ma'am.
Q. Do you remember were there maybe twenty
people altogether who ultimately arrived at the scene?
A. You talking about police?
Q. Police and investigators.
A. They was a good -- a good many. I didn't, you
know, I didn't try to keep up with how many of them were there, but they was
several there, yes, ma'am.
Q. Okay. Do you remember seeing Mr. Porter
there?
A. I didn't really look around that much that
morning. Let's see, which one is Mr. Porter?
Q. Mr. Porter is the one who was just asking you
the questions.
A. Oh, yeah, the DA. Oh, I'm sorry. I'm not
really sure who I saw up there that morning.
Q. Okay. But there were a fair number of police investigators
and officers at the scene?
A. Oh, yes. Yes, ma'am.
Q. Okay. Were you there, Mr. Smith --
MS.
ROGAN: May I approach the witness?
THE
COURT: Yes.
BY
MS. ROGAN:
Q. -- when the police put the tape around the
car?
A. Was I there -- was I there then?
Q. Yes.
A. I'm sure I was, yes.
Q. Okay. Now, do you remember telling the
police, and you've told us, in fact, this morning, that you saw the woman's
glasses on the front seat of the car?
A. That's true. Uh-huh.
Q. Okay. Do you remember where they were in
relation to her on the front seat?
A. Best I can remember, like she was -- you
know, she was laying over this way. Uh-huh. The glasses were down here kind of,
you know, like the seat or -- her legs down there. They -- the reason I know
that there was blood all over the lens, you know, they was completely --
Q. They were near her lap area?
A. Yes, ma'am. Uh-huh.
Q. On the seat?
A. Yeah. Down -- uh-huh.
Q. Okay. I just have one last question for
you, Mr. Smith. You testified that it
was cool that morning and you were concerned because the window was down and it
was a cool morning?
A. Yeah, it sure was.
Q. And it wasn't raining at that time?
A. I was trying to think if it was misting. I'm
not really sure. I don't think it was, but I do know that it was real cool that
morning because I had on a jacket.
Q. And it had been raining the night before. You
said you remembered that?
A. Uh-huh. Yeah, I think it rained.
Q. It had been raining pretty hard the night
before, hadn't it?
A. I'm pretty sure. Yeah, I think it rained. I
know it did the night before.
Q. That's all I have. Thank you, Mr. Smith.
A. Thank you.
THE
COURT: Redirect?
MR.
PORTER: I don't have any other questions for Mr. Smith, Your Honor. We'd ask
that he be excused.
THE
COURT: Do you want him --
MR.
PORTER: He can be placed on call. He's available.
THE
COURT: All right. You can come down. Thank you.
THE
WITNESS: Thank you.
[The
witness stepped down.]
THE
COURT: Call your next witness, please.
MR.
PORTER: I call Joe Byars to the stand.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Byars, if you'll be seated up here on the witness stand, please. Mr.
Porter, if you'll administer the oath.
MR.
PORTER: Yes, sir.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: Are you going to be requesting to publish all these photos as they come
in?
MR.
PORTER: Your Honor, I think based on the last experience, there may be some
photographs I want to publish, but what I'll do is wait until the end of the
witness's testimony and ask that they be published.
THE
COURT: Well, my concern is if we've got a lot of them, we're going to have some
long pauses while they're passing through. My inclination is if you want to
publish them, unless it's -- you know, I don't have any problem with that, but
I think they can keep up with what's going on, to look at them and pass them
around. They'll have them at the conclusion of the case anyway in the jury
room. So my inclination is if y'all want to, either side, you want to publish
them when you offer them in, then publish them and let's proceed on with the
witness's testimony as opposed to waiting until everybody looks at them.
MR.
PORTER: Your Honor, it might be worth it to do it for all of us the way medical
examiner's office does, is just bring a witness down off the stand and I'll
hold them and do it that way.
THE
COURT: I don't have a problem with that. I don't have a problem with that, you
know, if they want to testify about it, point out to them. But I think we're
going to have a lot of long pauses if we wait while all eighteen of them go
through the exhibits when we're looking at them.
MR.
PORTER: Yes, sir.
THE
COURT: What I'd like to do is either go on and publish them and let them pass
them around and look at them while we continue on with that witness, fine, or
bring them down and let them testify and they can -- after they're admitted,
and then the jury can look at them while you're talking to them.
MR.
PORTER: Yes, sir.
THE
COURT: I think that would help us time wise a little bit. Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Porter. Has he administered the oath?
MR.
PORTER: Not yet, Your Honor.
THE
COURT: Okay.
MR.
PORTER: Ms. Atkinson is still marking the State's Exhibits for this witness.
THE
COURT: Okay.
MR.
PORTER: Could you raise your right hand please, sir? Do you solemnly swear the
testimony you're about to give in this matter now pending, shall be the truth, the
whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. You can put your hand down. Sit back and
relax. This will only take a minute. Could you state your name, please?
A. Joe Byars.
Q. And Mr. Byars, how are you employed?
A. I'm the owner of Gwinnco Muffler.
Q. And how long have you owned that business?
A. Approximately eleven years.
THE
COURT: Can all the jurors hear? Can you hear? Okay.
JUROR:
Barely.
THE
COURT: Speak up a little bit, Mr. Byars, so everybody can hear you. Thank you.
Go ahead.
BY
MR. PORTER:
Q. You've owned Gwinnco for about eleven years?
A. Yes, sir.
Q. Mr. Byars, let me call your -- well, did you
own the business on April 16, 1993?
A. Yes, I did.
Q. And let me call your attention to that
morning at approximately ten minutes of eight. Did you arrive for work at about
that time on that morning?
A. Yes. Yes, I did.
Q. Could you describe for the jury what, if
anything, you saw parked in the driveway?
A. As I drove into the driveway, I see this tan
and brown Lincoln approximately thirty feet up the driveway. And at that point,
I see other vehicles in the parking lot, so at that point, my -- I shifted
toward the shop itself.
Q. Okay. And what -- did you have a customer
waiting?
A. Yes.
Q. Who was that customer?
A. Sanford Smith.
Q. Is that Theron Smith, Mr. Theron S. Smith?
A. I don't know his first name, just Sanford
Smith.
Q. Now, once you had gotten his business
handled, did you decide to go back down and look at the car?
A. No. When -- after I opened up the shop,
another lady came by, and then Sanford told me that there was a lady that -- in
the car, but he -- we just felt like that either she was waiting to get the --
she had a flat on her left front tire -- felt like she was either getting --
waiting on someone to come to fix the flat or possibly was asleep.
Q. Did you eventually at some point in the
morning go down to the car to determine whether or not the lady was asleep?
A. At approximately ten minutes after eight,
yes.
Q. And what, if anything, did you carry with
you?
A. As the lady that -- that had called me and
asked me would I go down and take a look at the lady in the car, because she
had dropped off a vehicle earlier. And when she went by it, she seen someone in
the car. And when she called me back, she asked me would I go check on the lady
in the vehicle. So with the phone in hand, I walked down to the car at that
point.
Q. All right. And what did you observe about the
Lincoln Continental when you got to it?
A. The window was about, I don't know, probably
about halfway down, and as I walked to the vehicle, I seen someone was slumped
over in the seat and I also, at that time, seen blood on the -- on the right --
right arm and hand.
Q. Was the person in the car moving?
A. No.
Q. Was anybody with you when you saw this?
A. No.
Q. Was Mr. Smith with you?
A. He was probably about thirty or forty feet
from the vehicle.
Q. Did he come up to the vehicle at the same
time you were standing there?
A. Not at that time, no.
Q. And then what happened once you observed the
blood on the person's hand in the car?
A. I called 9-1-1.
Q. And about how long did it take for the police
to arrive?
A. Probably about two or three minutes.
Q. When you said there were other vehicles in
the parking lot, do you remember any of those other vehicles that might have
been there?
A. One of them was Mr. Smith's, one was a
vehicle that had been left for several days that was still in the driveway that
hadn't been picked up.
Q. All right. Do you remember what kind of car
-- what kind of vehicle that was?
A. It was a S-10 -- white S-10 pickup truck.
Q. Now, Mr. Byars, I'm going to ask you to step
down here with me, and we're going to look at some Exhibits, if you can.
[The
witness stepped down.]
BY
MR. PORTER:
Q. If you can just have -- you can just stand
right there for just a second, please. First, Mr. Byars, I believe -- you can
just stand here and I'll hold these as I question you about them. If you could
look at them and see if you can identify them. I'm going to show you what's
been marked as State's Exhibit Number 8. Can you take a look at that and
identify it?
THE
COURT: Mr. Porter, you haven't identified those and admitted them prior to the
jury seeing them.
MR.
PORTER: Yes, sir. I apologize for that.
BY
MR. PORTER:
Q. Mr. Byars, perhaps it would be easier if we
did this from the witness stand.
THE
COURT: Or there if you wish, just so they're -- I think they ought to be
identified and admitted before --
MR.
PORTER: Yes, sir.
BY
MR. PORTER:
Q. Mr. Byars, I'm going to show you the pictures
here, and we'll see if you recognize them, and then we'll show them to the
jury. If you could take a look at State's Exhibit Number 8. Can you identify
that, please?
A. That's the Gwinnco Muffler.
Q. All right. Does that photograph accurately
depict the muffler shop as it was on April 16?
A. Yes.
Q. All right. And let me show you State's
Exhibit Number 9. Can you identify that, please?
A. That's also the Gwinnco Muffler.
Q. All right. Is that a picture of the front of
the business?
A. Yes.
Q. And does it accurately depict the business as
it was on April 16?
A. Yes.
Q. And let me show you State's Exhibit --
THE
COURT: You might have him indicate a year as well, Mr. Porter, so you won't
have him confused.
BY
MR. PORTER:
Q. It was April 16, 1993?
A. Yes, that's correct.
Q. Let me show you what has been marked as
State's Exhibit Number 10. Can you identify that please, sir?
A. Yes, sir. It's a sign of the Gwinnco Muffler
plus the front of the S-10 Blazer -- or S-10 pickup that has been at the
parking lot.
Q. All right. And does that picture accurately
reflect the sign and the parking lot as it was on April 16, 1993?
A. Well, no, there was one more vehicle there
when I got there that morning.
Q. All right. Which vehicle was that?
A. I don't remember, but it was Sanford Smith's
vehicle.
Q. All right. And did you later move that
vehicle into the bay?
A. Oh, yeah.
Q. All right.
A. As soon as I opened up shop; and, in fact,
before I went down to the lady, his vehicle was in the shop.
Q. And let me show you State's Exhibit Number
11. Can you identify that please, sir?
A. That's the vehicle that I seen as I pulled in
the driveway.
Q. And does that photograph accurately depict
the vehicle as you saw it on April 16, 1993, with the exception of the crime
scene tape that's on the ground?
A. Yes.
Q. And let me show you State's Exhibit Number
12. Can you identify that please, sir?
A. Yes. That shows the lady that was slumped
over to the right side of the car.
Q. And does that photograph accurately depict
what you saw on April 16, 1993?
A. No, not -- I was on the -- her side of the
vehicle the first time I seen her.
Q. Let me show you a photograph that we've had
previously marked as State's Exhibit Number 7. Can you take a look at that
please, sir? Does that accurately reflect what you saw on April 16?
A. Yes, sir.
Q. Now, Mr. Byars, let's try it again. Let's
step down. If you could stand here, we'll try and go through these photographs.
[The
witness stepped down.]
THE
COURT: Are you going to offer them, Mr. Porter?
MR.
PORTER: Your Honor, we would tender State's Exhibit Number 8, 9, 10, and 11 into
evidence as having been properly identified by Mr. Byars.
THE
COURT: Any objection?
MR.
MOORE: No objection, Your Honor.
THE
COURT: State's 8, 9, 10, and 11 are admitted without objection. Go ahead,
please.
MR.
PORTER: Your Honor, at this time, we would withhold State's Exhibit Number 12
as not having been properly identified by Mr. Byars.
THE
COURT: Yes, sir. That would be fine.
BY
MR. PORTER:
Q. Mr. Byars, let me show you again, and I'll be
your easel, State's Exhibit Number 8, which has been previously admitted. Can
you describe for the jury what that is?
A. That's the Gwinnco Muffler Shop.
Q. And let me show you State's Exhibit Number 9.
A. A closer up view of the Gwinnco Muffler.
Q. And is that you in the corner?
A. Yes, it is.
Q. Let me show you State's Exhibit Number, and
can you describe what that is?
A. That's a sign of the Gwinnco Muffler parking
lot plus the S-10 pickup.
Q. And let me show you State's Exhibit Number
11, and can you identify that, please?
A. That was the vehicle that was in the driveway
when I got there that morning.
Q. And I have one other thing for you to look
at. This has already been admitted as a diagram of the muffler shop. Does that
truly -- does that accurately depict where the brown Lincoln was when you
arrived on the morning of April 16? And if it doesn't, if you could move the
vehicle -- this just sticks, so --
A. Yeah. Okay. I'll move it down.
Q. Thank you. And you can return to the witness
stand.
[The
witness returned to the stand.]
MR.
PORTER: That's all the questions I have for this witness.
THE
COURT: Ms. Rogan, Mr. Moore?
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Mr. Byars, my name is Johnny Moore. I
represent Mr. Chapel along with Ms. Rogan. I have a few questions I'd like to
ask you. Now, did this shut your business down when this happened -- the crime
scene, when the police got there?
A. No, it did not.
Q. Okay. So your customers were allowed to
continue to go and come past the vehicle?
A. Not past the vehicle, no.
Q. Okay. How did they get in and out?
A. They came from the -- down on this end, they
came off the emergency lane and went up on this end of the building.
Q. Could you come down and show us? I'm not sure
I understand what you're telling us.
A. [The witness stepping down] Right at the end
of the emergency lane, they came -- you can get off there and come up to the
parking area.
Q. Okay. So there's not a driveway there?
A. No, no. Not a driveway.
Q. Okay. Now, how far did the police cordon off
or how far did they mark off there? Could you show the jury?
A. Well, it was immediately probably within five
feet around the vehicle itself. But they -- no one was allowed in --
THE
COURT: Just a moment, please. Are you having trouble seeing?
JUROR:
We can't see it.
THE
COURT: All right. Mr. Moore --
MR.
MOORE: Yeah?
THE
COURT: -- you're in the view of the witnesses.
MR.
MOORE: I'm sorry.
THE
WITNESS: This whole driveway was blocked off. Nobody was allowed in or out.
BY
MR. MOORE:
Q. Uh-huh.
A. And the tape itself was probably within five,
seven feet all the way around the vehicle.
Q. Okay. You can go back up to the stand.
[The
witness returned to the stand.]
BY
MR. MOORE:
Q. Do you remember who the first policeman to
arrive was?
A. Officer Byers.
Q. Did you know him?
A. No.
Q. Now, Ms. Wood, when did she call you? How
long before you went down and checked on this vehicle?
A. She called right at ten after eight.
Q. Okay. Now, at night, what kind of lights are
around your business there?
A. The only light I have is right at the edge of
the -- where it shows the parking lot. It shines directly on the front of the
shop.
Q. Okay. What kind of light is it?
A. I don't know.
Q. I mean is it -- does it light up the driveway
or just the --
A. All it lights is the Gwinnco Muffler Shop
section itself, just the Gwinnco part of it, the office part itself.
Q. Have you had occasion to be at your shop at
night at anytime?
A. Uh-huh [affirmative].
Q. Is the driveway lighted at all at night?
A. No.
Q. Okay. Are there any street lights down at
Peachtree Industrial Boulevard in front of your business there?
A. No, sir.
Q. Mr. Byars, out at the crime scene, there was
some -- was there anything holding up this tape or was it just laying on the
ground, the crime scene tape?
A. We furnished some stands that held the tape
up.
Q. Okay. So they put kind of like a fence around
the premises there?
A. Yes. Uh-huh [affirmative].
Q. Okay. And you provided those. That's all I
have. Thank you.
THE
COURT: Redirect?
MR.
PORTER: No redirect, Your Honor. We would ask that Mr. Byars be allowed to
leave and go back to his business.
THE
COURT: All right. Do you wish to keep him on call?
MR.
PORTER: Your Honor, he knows to remain on call given the nature of this case.
THE
COURT: Okay. You can come down, Mr. Byars. Thank you. Call your next witness,
please.
[The
witness stepped down.]
MR.
PORTER: I call Officer Ed Byers to the stand.
[The
witness was called to the courtroom.]
MR.
PORTER: Officer Byers, if you could take the stand please, sir.
THE
WITNESS: Yes, sir.
MR.
PORTER: Could you raise your right hand? Do you solemnly swear the testimony
you're about to give in this matter now pending, shall be the truth, the whole
truth, and nothing but the truth, so help you God?
THE
WITNESS: Yes, I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. Could you state your name, please.
A. Officer C. E. Byers.
Q. And how are you employed?
A. I'm a police officer for Gwinnett County
police department.
Q. How long have you been employed there?
A. Thirteen years.
Q. Let me call your attention to the morning of
April 16, 1993. Were you employed with the Gwinnett County police department on
that day?
A. Yes, sir, I was.
Q. What were your duties on that day?
A. Just routine patrol in the Buford, Sugar Hill
area.
Q. All right. And is that part of the northside
precinct?
A. Yes, sir, it is.
Q. Let me ask you, did you respond to a call at
approximately ten minutes after eight at the Gwinnco Muffler Shop on Peachtree
Industrial Boulevard?
A. Yes, sir, I did.
Q. Is that in Gwinnett County?
A. Yes, sir, it is.
Q. Could you describe for the jury what did you
observe when you first arrived at the scene?
A. When I first arrived, the fire department
personnel were there on the scene. I met with them briefly and I observed a
dark-colored Lincoln Continental in the driveway of the muffler shop. I
approached the vehicle. I initially noticed that the left front tire was flat.
Also, the driver's window was open. I observed a key in the ignition which
appeared to be either in the on or one of the accessory positions. I observed
the victim who was seated in the driver's seat. The upper portion of the body,
or the upper torso, was leaning over towards the passenger side of the vehicle.
I observed a wound on the top part of the head that appeared to me to be from a
gunshot.
Q. Based upon what you observed there at the
scene, what did you do?
A. I notified my supervisor by my police radio,
advising him that it appeared we had a homicide and, at that point, secured the
scene, which was basically keeping people back away from the vehicle to
preserve any possible evidence.
Q. Officer Byers -- just a second. Officer
Byers, I'm going to show you what's been marked, previously marked, as State's
Exhibit Number 12. Can you look at that and identify it please, sir?
A. This appears to be the vehicle that I saw
that morning, the brown Lincoln Continental, with the victim still seated in
the driver's seat.
Q. Does that photograph accurately depict what
you observed on April 16, 1993?
A. Yes, sir, it does.
Q. And let me show you what I've had previously
marked as State's Exhibit Number 13, can you take a look at that and identify
it please, sir?
A. Yes, sir. Again, this appears to be the front
-- left front portion of the Lincoln Continental with the flat tire, left front
tire.
Q. Does that photograph accurately depict what
you saw on April 16, 1993?
A. Yes, sir, it does.
Q. Now, Officer Byers, how long did you remain
on the scene? How long were you responsible for the scene?
A. I was there several hours. I don't recall
exactly. It was still my duties to preserve the scene even after identification
personnel and detectives were on the scene.
Q. And did you remain until the car was towed
away?
A. Yes, sir. I'm actually the one that completed
the impound form and supervised the vehicle being impounded.
Q. During that time, did you observe anyone who
was identified to you as the son of Emogene Thompson?
A. Yes, sir, I did.
Q. Could you describe what his emotional state
was like?
A. Well, I was -- I was the one that told him
that his mother was dead, and he immediately --
MR.
MOORE: Your Honor, I'm going to object to him going into hearsay on what the
son may have told him. The son can testify if he wants to, but I object to the
police officer going into what he may have told him.
THE
COURT: Mr. Porter?
BY
MR. PORTER:
Q. Officer Byers, without going into the
specific words, what was his emotional reaction to that?
A. He was crying hysterically.
Q. Thank you. That's all the questions I have.
THE
COURT: Mr. Moore?
MR. PORTER: Your Honor, if I may, we would move for admission of
State's Exhibit Number 12 and Number 13 as
photographs which have been identified by Officer Byers.
THE COURT: Any objection?
MR. MOORE: No objection, Your Honor.
THE COURT: State's 12 and 13 are admitted without objection. Go
ahead, please.
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Now, were you the first police officer to arrive,
Officer Byers?
A. Actually, Officer Robertson, who was at the
time was the Sugar Hill city marshal, pulled up about a minute prior to my
arrival.
Q. Okay. And what -- do you know what, if
anything, did you observe anything that he did?
A. No, sir. He was just standing there.
Q. So how do you know how long he was there when
you got there?
A. I honestly don't know how long I was there. I
was there a good part of the day because --
Q. No, I'm talking about Officer Robertson. You
said he was there about a minute before you. How do you know that?
A. I observed his vehicle in front of mine
traveling down Peachtree Industrial, and he pulled up probably less than a
minute actually when I got there.
Q. Now, if you would, come down from the stand
and show the jury how much of the scene was secured here using this diagram, if
you could.
[The
witness stepped down from the stand.]
BY
MR. MOORE:
Q. Just kind of stand to the side here. We're
blocking their view over there --
A. Okay.
Q. -- so the jurors can see.
A. Well, basically, my concern was this vehicle.
The business, of course, was up in this area, and I basically maintained
protection of the car, keeping people back away from it so that they wouldn't
touch it, and just basically generally stood in this area here to prevent
anyone that would -- might stop by and walk up to the car.
Q. Okay. What about the areas like over here and
around here; were those secured?
A. Secured only by the fact that I didn't
observe anyone in that area. My scope again was -- basically around the vehicle
was what I was concerned with.
Q. Did you see any people driving up across
here?
A. No, sir, I didn't see any, no, sir.
Q. You can go back to the stand.
[The
witness returned to the stand.]
BY
MR. MOORE:
Q. Now, during the time you were at the scene,
was there any search outside the evidence tape? Now, I'm talking about outside
of it. Was there any search for weapons or a pocketbook or anything like that?
A. To my knowledge, no, sir.
Q. What time did you come on duty that morning,
Officer Byers?
A. Zero 630 hours, at 6:30 a.m.
Q. Okay. And you worked the northside precinct
during that period of time; is that correct?
A. Yes, sir.
Q. Okay. Were you ever interviewed with regard
to Ms. Thompson's murder?
A. Interviewed?
Q. Yes, sir.
A. I've spoken with the assistant DA's.
Q. Were you ever interviewed before Mike
Chapel's arrest?
A. I don't believe so, no, sir.
MR.
MOORE: That's all I have.
THE
COURT: Redirect?
MR.
PORTER: Your Honor, we have no other questions at this time for Officer Byers.
We would in another portion of the case reserve him for recall. We would ask
that he receive instruction regarding discussion of his testimony and the rule
of sequestration.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
PORTER: Chapel made a statement to him that the gas bomb's outside, regarding
the incident report. I think in the orderly presentation of the case, to get
into that now messes up the orderly presentation of the case, and so I was
going to recall him for that purpose. And, of course, going to be subject to
cross-examination.
THE
COURT: Mr. Moore, any objection?
MR.
MOORE: Well, Your Honor, we can get into a problem here where if everybody did
that with every witness, we could be playing jack in the boxes here.
THE
COURT: Well, you know, I don't want every witness who testifies --
MR.
PORTER: Your Honor, I can tell you that I'm not planning -- I intend to do it
with two witnesses. One -- and there's an orderly break. Officer Byers was the
first officer on the scene and he's testified to that. He'll testify to a later
statement that Chapel made. And Dr. Frist, and
we're calling him for the purpose of the autopsy. We're also calling him as an
expert in blood spatter pattern analysis regarding the raincoat. And those are
the only two witnesses I intend to do it, and they're discrete in facts.
THE
COURT: Okay.
MR.
MOORE: We might want to do it with somebody, too, Your Honor.
MR.
PORTER: I don't have a --
THE
COURT: Yeah, okay. It might --
MR.
PORTER: I think it gives the jury an orderly presentation of the case and it
doesn't --
THE
COURT: Okay. My concern is the same as
Mr. Moore's.
MR.
PORTER: No, no.
THE
COURT: I mean, I don't want all of our witnesses coming and going on the case
in chief for each side.
MR.
PORTER: No, Your Honor. I only intend to do it with those two witnesses.
THE
COURT: All right. Okay.
[Bench
conference concluded.]
THE
COURT: Mr. Byers, the state's indicated it intends to recall you on the case in
chief. The instruction of the Court will be that until such time as you are
recalled or, for that matter, discharged as a witness in this case, that you
should not discuss with any other person your testimony. You should not discuss
any examination which -- on direct or cross, you've undergone this morning, and
you should not otherwise discuss your testimony or what's transpired in the
courtroom with any other witness until this matter is concluded. Do you have
any question?
THE
WITNESS: No, sir, I don't.
THE
COURT: All right. You can come down. Call your next witness, please.
[The
witness stepped down from the stand and exited the courtroom.]
MR.
PORTER: Your Honor, Mr. Smeal will be handling this for the state, but the
state will call Judy Graham to the stand.
[The
witness was called to the courtroom.]
THE
COURT: Ms. Graham, if you'll take the stand up here and you can go ahead and be
seated. Mr. Smeal, if you'll administer the oath, please.
[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,
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 Judy Graham. I'm a crime scene technician
with the Gwinnett County police department.
Q. How long have you been so employed?
A. I've been with the department for twenty-one
years. I've been a crime scene technician for four years.
Q. For four years?
A. Yes.
Q. Okay. What are your duties as a crime scene
technician?
A. They include responding to crime scenes,
various different types of crime scenes, and collecting evidence, taking
photographs, anything documenting the evidence.
Q. Okay. Have you had training and experience in
that area?
A. Yes, I have.
Q. Okay. Would you briefly describe that for the
jury, please?
A. I've had several specialized classes ranging
from fingerprint identification to crime scene sketches, everything. Oh, we
also do marijuana tests and we've -- I've probably had eight or ten different
forty-hour classes of which are required by the department and also on-the-job
training.
Q. Ms. Graham, I want to direct your attention
to the morning of April 16, 1993, did you have occasion to respond to the
Gwinnco Muffler on Peachtree Industrial Boulevard on that date?
A. Yes, I did.
Q. Okay. Do you recall approximately what time
you arrived at that scene?
A. About 9:55 a.m.
Q. Okay. And what was your purpose in going
there?
A. We were going to investigate what we were
told was a homicide at this location.
Q. And what did you observe upon arriving at
that scene?
A. About approximately halfway up the driveway
from the Gwinnco Muffler company from Peachtree Industrial, there was a tan
over brown Lincoln Continental. It was a 1986 model. There was crime scene tape
-- barrier tape around the base of the vehicle and there was a victim inside
the vehicle.
Q. Were there any other ID technicians who were
assisting you that day?
A. Yes. Technician Mary Ann White was with me.
Q. Okay. And does she perform essentially the
same type of duties that you perform?
A. Essentially the same type duties, but she's
also a supervisor.
Q. Okay. Do you know who placed the yellow tape
around the vehicle?
A. I assumed that the first officer on the scene
did, but I don't know for sure.
Q. But the scene was secure when you arrived --
A. Yes, sir.
Q. -- at that location?
A. Yes, it was.
Q. Okay. And did you divide responsibilities
with Mary Ann White at that time?
A. Yes. Mary Ann did the videotape at the scene
and I did 35 millimeter still photographs of the scene.
Q. Did you examine the vehicle?
A. Yes.
Q. Did you notice the status of the windows of
the vehicle at that time?
A. All the windows, with the exception of the driver's
window, were up and the driver's window was approximately halfway up.
Q. Did you observe a key in the ignition?
A. Yes. The key was in the ignition.
Q. Okay. Do you recall what position the key was
in?
A. It was in the on position.
Q. Do you recall whether or not the doors were
locked or unlocked?
A. All the doors were locked.
Q. Did you observe anything unusual about any of
the tires?
A. The left front tire was flat. The other tires
were in good condition.
Q. Ms. Graham, I'd like you to examine some
photographs. [Pause] Ms. Graham, I'm handing you what has been marked as
State's Exhibit 14 -- I'm handing you what's been previously marked as State's
Exhibit 14. I'd ask you if you can identify this photograph.
A. Yes, sir. This is the picture of the victim's
vehicle at the scene.
Q. Okay.
A. This is a photograph that I took that
morning.
Q. All right. Does that fairly and accurately
depict what the appearance of the vehicle was at that time?
A. Yes.
Q. I'm handing you what's been previously marked
as State's Exhibit 15. Can you identify that photograph?
A. Yes, sir. This is a picture of the -- I'm
sorry, the victim inside the car that was taken from the driver's side.
Q. Okay. Does that fairly and accurately depict
the -- that angle of the car as you saw it on that morning?
A. Yes, it does.
Q. Okay. What is depicted in this photograph?
A. Noticeably, the window is open, and the
victim is in the front seat with her -- the seat belt was on, and she's leaning
toward the passenger side.
Q. Okay. To your knowledge and information, had
she been moved at that point?
A. No.
Q. I'm handing you what's been previously been
marked as State's Exhibit 16. Can you identify that photograph, please?
A. Yes, sir. This is a photograph that was taken
from the passenger side. It shows the floorboard -- excuse me, in front of the
console. Of note is a cigarette that's burned to its base in the ashtray and
also the victim's glasses, which were laying on the floorboard.
Q. Okay. And we'll get to this in a minute, but did
you collect those glasses --
A. Yes, I did.
Q. -- on that morning? Okay. Does that
photograph fairly and accurately depict that scene as it appeared to you that
morning?
A. Yes.
Q. I'm handing you what's
been previously marked as State's Exhibit 17. Can
you identify that photograph, please?
A. Yes, sir. This is a
photograph of the driver's side
door from the inside -- the inside of the driver's side door. The door was
open.
Q. And what do those marks
appear to be on that door?
A. These appear to be blood
spatter and maybe also some flesh up here in the corner.
Q. Does that fairly and
accurately depict how that door appeared to you that day?
A. Yes.
Q. I'm handing you what's
been previously been marked as State's Exhibit 18. Can you identify that
photograph, please?
A. Yes. This is another
picture of the same door.
Q. I'm sorry. Which door is
that?
A. This is the driver's side
door.
Q. Okay. And does that
fairly and accurately depict how the driver's side door appeared to you that day?
A. Yes. [Go to presentation of these
photographs to the jury.]
Q. I'm handing you what's been previously marked
as State's Exhibit 19. Can you identify that photograph, please?
A. Yes. This is the picture of the floorboard in
the rear of the vehicle directly behind the driver's seat. There's some blood
here and just paper and stuff that was in the back of the vehicle.
Q. Okay. There appears to be some debris
depicted in that photograph --
A. Yes.
Q. -- can you identify what that debris is?
A. I'm not sure what debris you're speaking of.
Q. Okay. This item here in the -- right behind
the seat.
A. Okay. This is a cigarette package, a Now cigarette
package. There's a Dairy Queen cup here and a Marlboro -- a couple of Marlboro
packages over --
Q. Does that fairly and accurately depict how
the rear floorboard appeared to you that day?
A. Yes, sir.
Q. Okay. I'm handing you what's been marked, previously
marked, as State's Exhibit 20. Can
you identify this photograph, please?
A. This is a photograph of the passenger side
front seat. This would appear to be a bullet hole in the cushion of the front seat.
There's also some type of tissue matter on the seat and
it also shows the glasses -- I'm sorry, not on the seat. The tissue's on the
floorboard.
Q. Okay. When you say tissue, what type of
tissue are you referring to?
A. Probably brain tissue.
Q. Does that fairly and accurately depict the
condition of that seat as you observed it on that day?
A. Yes, sir.
Q. I'm handing you what's been previously marked
as State's Exhibit 21. Can you identify that photograph,
please?
A. Yes, sir. This is the projectile that was
located in the floorboard in front of the passenger side seat in the vehicle.
It was on the floor mat directly in front of the seat.
Q. Okay. There appears to be some type of small
measuring scale on the floorboard.
A. Yes, sir. This is --
Q. Who had placed that there?
A. I did.
Q. Okay. What was the purpose of that?
A. Just to show the size of the projectile so
that we could take it up to one-to-one size if we needed to.
Q. And does that fairly and
accurately depict how that floorboard appeared to you on the day of April 16?
A. Yes, it does.
Q. And finally, I'm handing you what's been
previously marked as State's Exhibit 22.
Can you identify that photograph, please?
A. Yes, sir. This is a photograph, after the
victim was moved, of the driver's seat and the console. It shows -- she had a
-- there was a cigarette case in the console and there was quite a bit of blood
and matter in the console itself and on the seat.
Q. You actually took all of these photographs;
is that correct?
A. Yes, sir.
Q. With respect to that last item, does that
fairly and accurately depict the condition of that seat as you saw it on the
day of April 16?
A. Yes, it does.
MR.
SMEAL: Your Honor, at this time, the state would move to admit State's Exhibits
14, 15, 16, 17, 18, 19, 20, 21, and 22.
MS.
ROGAN: No objection, Your Honor.
THE
COURT: State's Exhibits 14, 15, 16, 17, 18, 19, 20, 21, and 22 are admitted
without objection.
MR.
SMEAL: Your Honor, at this time, the state would ask permission to publish
these to the jury and rather than passing them around, if I could just be
permitted to hold them up for the jury sequentially.
THE
COURT: Any objection, Mr. Moore?
MS.
ROGAN: We have no objection, Your Honor.
THE
COURT: Go ahead, please.
JUROR: Your Honor, may we also see State's 12 and 13?
THE COURT: You'll see all exhibits when they're admitted into
evidence. [Of course, they had already been admitted
into evidence.]
JUROR: Okay. They weren't passed around.
THE COURT: Not necessarily now.
JUROR: Okay. Thank you, Your Honor.
THE COURT: All right. Go ahead.
MR.
SMEAL: State's Exhibit 15.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 16.
MR. SMEAL: The next photograph is State's Exhibit 17.
[Presenting to the jury]
MR. SMEAL: This was identified as the
passenger side door. [No it was not, and these
photographs were identified as driver side door photos in the trial index.]
THE
COURT: You're just stating the Exhibit Number, Mr. Smeal.
MR.
SMEAL: That was State's Exhibit 17. The next photograph is State's Exhibit 18.
[Presenting
to the jury]
MR. MOORE: Your Honor, one thing, I noticed the cameras over here.
I hope the camera's not getting the jury with Mr. Smeal being so close.
[At the time of the habeas preparation we felt that Mr.
Moore was not paying attention or he would have straighten out the
misidentification of the door, but in reality he was colluding with the
prosecution trying to get the juror’s attention away from the photographs. He
succeeded. There were no further interruptions but the jury.]
THE
COURT: Yes, sir. I hope not as well.
MR.
SMEAL: The next photograph is State's Exhibit 19.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 20.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 21.
[Presenting
to the jury]
MR.
SMEAL: The next photograph is State's Exhibit 22.
JUROR: Excuse me, would you put number 15 back up there again of the
photograph? She's wearing the seat belt. She's having --
THE COURT: If you have any question from any juror, write it down
and pass it to the bailiff, please. Would you approach the bench, please?
[Counsel approached the bench and the following conference ensued
outside hearing of the jury.]
THE
COURT: We're going to have problems with these photos. I think what we need to
do with these photos is as they're admitted to go on and pass them and give
them to them and let them pass them around while we continue on. I just think
if we do it like we're doing it, we're going to get repeated questions and
we're going to have -- we'll have talk with the jurors or questions posed. It's
just going to be unavoidable. I think if you want to publish them after they've
been admitted, hand them to them and let them pass them down the line while we
proceed on.
MR.
SMEAL: We've tried it both ways and, you know, the problem is it seems to be so
time-consuming for them to do it, but whatever the Court wishes.
THE
COURT: I think let them look at it for whatever they're worth and they can
listen and continue on if you want or have the witness come down for the
specifics and have them identified. But I think the pauses -- I think they're
too time-consuming and I think if we pass them out, we've got some jurors on
here who are just a little too active. We're going to have conversation which I
don't think is appropriate.
MR.
PORTER: It might be during the lunch break, we can work up a board with some
clear plastic on it and we just drop them in and identify them.
THE
COURT: I just don't think it's a problem if you want to pass them around, let
them look at them for whatever they're worth. You can talk about them in closing.
You can have other witnesses on direct or any of these witnesses if you want to
with the specifics of them that you want to point out to them during the course
of examination, but I don't think walking by is going to work, and I think
pauses --
MR.
SMEAL: Well, I was trying to speed things up, but I --
THE
COURT: Yeah, I know. I know. Well, let's do it the other way. If you want them
to see them, publish them, and pass them to them, and let them look through
them while we continue on.
MR.
SMEAL: Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Smeal.
MR.
SMEAL: Thank you, Your Honor.
THE
BAILIFF, MR. BYRD: Your Honor?
THE
COURT: Yes, sir. Just a moment, please.
[The
bailiff presenting to the Court]
THE
COURT: Thank you. Go ahead please, Mr.
Smeal.
BY
MR. SMEAL:
Q. Ms. Graham, I'm handing you what has
previously been marked as State's Exhibit 23. Can you identify that item,
please?
A. Yes, sir. These are the glasses that were
taken from the front of the vehicle. They were on the -- on the floorboard
directly in front of the console.
Q. And did you collect that item?
A. Yes, I did.
Q. Okay. And looking that item today, does it
appear today to be in the same condition that you observed it to be back on
April 16, 1993?
A. Yes, basically.
Q. To your knowledge, Ms. Graham, there were no
scientific tests done on this item; is that correct?
A. That's correct.
MR.
SMEAL: Your Honor, at this time, the state would move to admit State's Exhibit
23.
THE
COURT: Any objection?
MS.
ROGAN: No objection, Your Honor.
THE
COURT: State's 23 is admitted without objection.
MR.
SMEAL: I'd also ask, Your Honor, that the state be allowed to publish this item
to the jury.
THE
COURT: Any objection?
MS.
ROGAN: No, Your Honor.
THE
COURT: Go ahead, please. Just do not remove them from the cellophane, please.
BY
MR. SMEAL:
Q. Ms. Graham, following the processing of the
scene at the Gwinnco Muffler shop, are you aware of whether or not the victim's
vehicle was moved?
A. Yes, it was.
Q. Okay. And where was it moved to?
A. It was moved to the helicopter hangar at
Briscoe Field, the police helicopter hangar.
Q. Okay. And did you proceed to that location?
A. Yes, we followed the vehicle.
Q. Okay. And what was the purpose in proceeding
to that second location?
A. We needed a place where we could process it
for fingerprints and to collect evidence out of it.
Q. Okay. And was that done at that second
location?
A. Yes, it was.
Q. Okay. Who processed the vehicle for
fingerprints?
A. Technician White and I did.
Q. And you have previously
identified in State's Exhibit, I believe it's 21, you have previously
identified a projectile; is that correct?
A. Yes, sir.
Q. Okay. And when and where
was that item found?
A. It was found in the front
of the vehicle after we got it to the hangar, when we opened the doors.
Q. Okay. And was that item collected?
A. Yes.
Q. Okay. Who collected that item?
A. Technician White collected it.
Q. Was anything done with respect to the flat
tire at the hangar, at the second location?
A. Yes, sir. We had someone from the county shop
come over and take the tire off, and then we transported it to headquarters and
sealed it up in a holding cell, and then we packaged it and sent it away to the
crime lab.
Q. And was that tire removed in your presence?
A. Yes.
Q. Was Mary Ann White also present when the tire
was removed?
A. Yes, she was.
Q. And after the tire was removed, what did you
do with it, if anything?
A. We took it -- we had a crime scene vehicle
with us, and we put it in the vehicle and took it over to headquarters and
locked it up in a holding cell which is the old cells that we used to use. Now,
they're used for our evidence. We put it in there until we could package it for
the crime lab.
Q. And did you place it in that cell at the police
department?
A. Yes.
Q. Okay. And did you subsequently have occasion
to move it to some other location?
A. Yes. After it was packaged and the paperwork
done for the crime lab, we took it to the holding -- to the locker, an after
hours locker in the evidence room.
Q. Okay. Do you recall what date you did that
on?
A. It was on the 16th, I believe.
Q. So the 16th, it was placed into the cell?
A. Oh, the 16th -- it was on the 19th, I'm
sorry.
Q. All right. So it was placed into the cell on
the 16th --
A. Yes.
Q. -- and moved to the locker on the 19th?
A. Yes, sir.
Q. When was it packaged up for the crime lab?
A. Well, it was packaged, ready to go to the
crime lab on the 19th, but I don't think they took it then.
Q. Do you recall what type of tire it was?
A. It's a Hallmark steel-belted radial was the
identifying mark on it.
MR.
SMEAL: Your Honor, at this time, I would ask that this item be marked as
State's Exhibit 24, I believe.
[State's
Exhibit Number 24 was marked for identification by the court reporter.]
BY
MR. SMEAL:
Q. Ms. Graham, if you could perhaps just step
down here and I'd ask you to take a look at what's been previously been marked
as State's Exhibit 24. Can you identify that item?
A. [The witness stepped down] Yes, sir. This
appears to be the same tire that we took off the car and sent to the crime lab.
Q. Is that your packaging material that the tire
is in at this point?
A. No, ours -- we use brown kraft paper. This
was put on by the crime lab when they sent it back.
Q. Was there -- there appears to be a rather
large hole in the tire at this point. Was that in the tire when you packaged it
up between the 16th and the 19th of April 1993?
A. Not that hole. There was a hole, but it was
more like a cut, not anything like that. You couldn't see air through it.
Q. Okay. With the exception of that alteration,
the large hole, does that tire appear to be in the same condition today as it
was back in April 1993, when you packaged it?
A. Yes, it does.
[The
witness returned to the stand.]
MR.
SMEAL: I have no further questions at this time.
THE
COURT: Mr. Porter -- I mean, Mr. Moore,
Ms. Rogan?
MS.
ROGAN: I'm going to handle it.
CROSS
EXAMINATION
BY
MS. ROGAN:
Q. Good afternoon.
A. Hi.
Q. Is it Investigator Graham or Officer?
A. Technician.
Q. Technician?
A. Uh-huh.
Q. My name is Elizabeth Rogan and I'm one of
Mike Chapel's attorneys. I have just a few questions for you. What time did you
arrive at the scene on April 16?
A. 9:55.
Q. Okay. And so the securing of the scene and
the arrival of the rest of the investigative officers had likely already
occurred by then?
A. Yes.
Q. Okay. Is it fair to say you were one of the
last people to arrive?
A. Probably, yes.
Q. And during the course of that morning, there were
quite a number of investigators and police officers who were present?
A. Yes.
Q. Probably up to around twenty people?
A. Maybe that many.
Q. I think you told us, and forgive me for not
remembering correctly, but the car itself had already been secured by the time
you arrived?
A. Yes. There was barrier tape around the car
itself.
Q. Okay. So you didn't participate in taping
that yourself?
A. No.
Q. And you don't know, in fact, who did tape it?
A. No, I don't.
Q. The day before this, April 15, had been a
Thursday?
A. Yes.
Q. There was another murder in Gwinnett County
that day, wasn't there?
A. Yes.
Q. It involved a woman at a pet shop?
A. Yes.
Q. And you were present at that --
A. No.
Q. -- crime scene also?
A. No.
Q. You didn't have any involvement in that
investigation?
A. No.
Q. Was the manner in which the car was secured
at the crime scene at Gwinnco Muffler standard procedure?
A. Yes. In fact, there were -- the tape was
actually tied around some post type things that had weights on them, but they'd
been blown over by the wind. Other than that, the taping was normal.
Q. Okay. I think that's apparent in a few of
these pictures -- a few of them. I'll show you State's Exhibit Number 14. Is
this what you were referring to?
A. Yes. These type things. There was also one
here and you can see the base of it is turned over on the back.
Q. Okay.
A. And there's another one there.
Q. Okay. And while I'm at it, you'll see in this
picture the windshield wipers appear to be --
A. They were in the on position.
Q. On position?
A. Yes.
Q. Okay. Indicating that it had rained --
A. Yes.
Q. -- when the car was stopped. Now, you
testified on direct examination that the window was halfway up when you arrived
at the scene?
A. I believe I said approximately halfway up.
Q. Okay. A couple of pictures that show -- is
this what you're referring to, in State's Exhibit 7 and 15, to the windows
being halfway up?
A. Yeah. Yeah, that's what I was referring to.
It appears to be more like a quarter of the way up.
Q. Okay. So the windows, to your knowledge, had
not been moved --
A. Right.
Q. -- prior to the time this picture was taken?
A. Right.
Q. And you mentioned also the glasses that were
passed around. I believe that's State's Exhibit 23. You found those on the
floorboard?
A. Yes.
Q. In front of the console, I believe you said?
A. Yes.
Q. Okay. Did you ever observe those glasses at
any time on the passenger seat?
A. No.
Q. The front seat of the vehicle?
A. Uh-uh [negative].
Q. So when you arrived, you took the photograph
that you have testified you took --
A. Uh-huh [affirmative].
Q. -- that depicts the interior of the car and
the glasses on the floorboard. That was the position in which you found them?
A. Yes.
Q. Okay. And there's also visible in one of the pictures,
and you testified to it, State's Exhibit 16 shows that there's a cigarette in
the ashtray?
A. Yes.
Q. It appears to have been burnt down to --
A. Yes, down to the filter.
Q. Okay. Did you remove that cigarette from the
car at the scene?
A. Not at the scene. At the hangar when we
processed it.
Q. Okay. So that cigarette stayed where it was
--
A. Yes.
Q. -- until the car went to the hangar?
A. Yes.
Q. At that point, did you remove the cigarette
from the car?
A. Yes.
Q. Was it secured as evidence in any way?
A. Yes.
Q. After the car was secured at the scene and
removed to the evidence shed --
A. Uh-huh [affirmative].
Q. -- by the wrecker -- you called the wrecker
service?
A. Yes. From Brown and Brown.
Q. And you more or less supervised that process?
A. Yes. We stood there and watched while they
loaded the wrecker, and then we followed it to the hangar and watched while
they unloaded it.
Q. Okay. And I believe in the report that you'd
filled out several days after this, you indicated that after the vehicle was
taken to the shed, accompanied by you, and secured by technician Tammy Hobbs?
A. Yes. But now we're talking about two
different locations.
Q. Okay. Well, tell me what you're talking
about.
A. The first place we took it to was to the
helicopter hangar. That's where we processed it. And when we finished with it
there, we took it to the evidence shed.
Q. Okay. And what did processing it at the
helicopter hangar entail?
A. We processed the interior for fingerprints with
cyanoacrylate and the outside of it -- excuse me -- with black powder. And we
also took what items we needed out of the vehicle then.
Q. Okay. And at that point, the vehicle was then
taken to the evidence room. I believe you referred to it as the after hours --
A. The evidence shed. The evidence shed.
Q. Okay.
A. Yes.
Q. I'm mixing it up actually with your --
A. With the tire.
Q. The tire went to the after hours locker where
you log in evidence?
A. In the locker. Uh-huh [affirmative].
Q. So the car itself went to the evidence shed
--
A. Yes.
Q. -- which is where Technician Hobbs secured
it?
A. She signed the paperwork and everything for
it. Yeah.
Q. Okay. She signed for the car, and after that
it was basically in her custody --
A. Yes.
Q. -- at the -- and this is at the Gwinnett
County police headquarters?
A. Yes.
Q. Had the car been cleaned at any point in this
process?
A. No.
Q. Along the lines we were just talking in terms
of having a vehicle or any item of property placed into evidence --
A. Uh-huh [affirmative].
Q. -- the police in Gwinnett County use what's
called a property sheet?
A. Yes.
Q. Okay. And you fill in the bottom of the sheet
each time you have any dealings with a piece of evidence; is that correct?
A. Yes. Any time you take it in or pull it out
of the evidence room, you have to sign the sheet.
Q. Okay. So when the car came to the police
headquarters to be processed into the evidence room, there should be a property
sheet that reflects that transaction had occurred; correct?
A. Yes. Yes.
Q. And it would have Tammy Hobbs's name as the
person who's receiving the evidence?
A. Yes.
Q. And each time that anything happens with that
car, in terms of removing it from the evidence -- secured evidence area for use,
the person who takes it out has to sign for the piece of property or in this
case, the car; is that correct?
A. Yes.
Q. And in your report, you've noted two times
subsequent to removing or overseeing the removal of the car from the scene in
which you did something else with the car. On April 20, you removed the car
from evidence in order to search for a second projectile; is that correct?
A. We didn't actually move it. We went into the
evidence shed and searched for it.
Q. Did you fill out a property sheet correlating
to that transaction?
A. I don't recall that we did since we didn't
move it from the shed, and there was an evidence technician there with us.
Q. Okay. Do you have any knowledge as to whether
anyone recorded that particular transaction on a property sheet relating to the
car?
A. No, ma'am. I don't know.
Q. And two days later you were requested to
start the car and run it until the engine died?
A. Yes.
Q. Did you make any notation on the property
sheet relating to this vehicle that you were having any contact with the
vehicle?
A. Technician White actually did that. I don't
know whether she signed the property sheet or not at that time.
Q. Okay. All right. Now, the tire that you have
identified as being somewhat similar to the tire that you took off the car --
A. Yes.
Q. -- did not have this large hole in it at the
time, did it?
A. No, it didn't. No.
Q. So the last time you saw the tire, it was
intact?
A. Yes.
Q. With the exception of --
A. With the exception of a small cut.
Q. Okay. Do you have any recollection what that
small cut looked like?
A. Not really. It was just -- appeared to be
maybe a knife cut, an inch to an inch and a half long.
Q. And you did not participate in any way in
making this large hole?
A. No. That was done at the crime lab.
Q. And do you have any knowledge as to whether
there had been a request made by the defense that evidence be preserved in its
original condition in this case?
A. No, I don't know.
Q. Technician Graham, you referred before to dusting
the car for fingerprints?
A. Yes.
Q. And I believe you'd said you dusted the
outside of the car for fingerprints?
A. Yes.
Q. And there was nothing -- no readable prints
were obtained?
A. Right.
Q. You did, however lift four latent
fingerprints from the interior of the car; is that correct?
A. Yes.
Q. And those were sent to the crime lab?
A. Not that I'm aware of. They're just on file,
I believe. They appeared to be children's fingerprints.
Q. Did you make that determination?
A. Well, they were very small, and we determined
that they were children's fingerprints.
Q. You have those fingerprints still at --
A. Yes, they're still on file.
Q. -- the police department?
A. Yes.
Q. So to your knowledge they were never
submitted to the crime lab?
A. No.
MS.
ROGAN: I believe that's all the questions I have for you.
THE
COURT: Redirect?
MR.
SMEAL: Just one question.
REDIRECT
EXAMINATION
Q. On April 20, you have testified that you went
back into the vehicle to look for a second
projectile; is that correct?
A. Yes.
Q. Were you present at that time?
A. Yes, I was.
Q. Okay. Was a second projectile located?
A. Yes.
Q. Where was that located?
A. It was under the passenger seat. It was resting up on a
-- there's a rim that comes up under the seat itself, and we took the seat out,
and after we took it out, we found the projectile resting on that rim. We don't
know if that's the original position of it or if it fell there later on.
Q. Was that projectile at that time recovered
and preserved?
A. Yes, it was.
Q. Who did that? Do you know?
A. Technician White.
MR.
SMEAL: Nothing further.
THE
COURT: Recross?
MS.
ROGAN: Yes. Just briefly, Your Honor.
RECROSS
EXAMINATION
BY
MS. ROGAN:
Q. Technician White, did you process that tire
for fingerprints at all?
A. Technician Graham. No, we didn't.
Q. I'm sorry, Technician Graham.
A. No.
Q. The answer is no, you didn't. Okay. And where
inside the vehicle were the four latent prints lifted from?
A. They were on the window of the passenger door
in the front.
Q. Okay.
A. Up high on the door.
Q. Okay. Thank you.
THE
COURT: Anything else of this witness?
MR.
SMEAL: No, Your Honor.
THE
COURT: You can come down, Ms. Graham. Would you approach the bench, please?
[The
witness stepped down from the stand.]
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: I guess everybody's ready for lunch. I think the jurors' lunch is ready.
MR.
PORTER: Your Honor, the next witness is going to be a chain witness from the
examiner's office and then we've got Dr. Frist, and so I think that it makes
more sense to have lunch now.
THE
COURT: Well, I think everybody's ready. An hour? Does anybody need more than
hour? Okay.
MS.
ROGAN: No.
THE
COURT: We'll take it.
MR.
PORTER: Your Honor, it's 12:20. If we could suggest 1:30, that's an hour an ten
minutes.
MS.
ROGAN: Yes.
MR.
PORTER: I'm kind of anal retentive.
THE
COURT: Today is not the going-away day, is it?
MR.
PORTER: No, sir, it's tomorrow.
THE
COURT: Okay. Let's make it an hour today. We'll take a little longer tomorrow.
Okay?
MR.
PORTER: Okay.
[Bench
conference concluded.]
THE
COURT: Everybody ready for lunch?
JURORS:
Yes, sir.
[Jurors
respond]
THE
COURT: Okay. We're going to recess at this point for lunch. If you'll leave
your pens, pads, and notes in your seats, they'll be waiting on you when you
return. I remind you at this point you've heard part of what the evidence is in
the case. You've heard part of the case presented, but not all of it. I remind
you you ought to continue to keep an open mind. You ought to continue to wait,
look, and listen until such time as you have seen and heard the case in its
entirety before you make up your own mind about the case. And there ought not
to be any discussions amongst yourself, any deliberations, any discussions with
anybody else or allow anybody else to discuss the case with you or in your
presence.
We'll
take an hour and we will -- well, we'll round it off, round it -- well, it's
not quite twenty after. We'll take an hour for lunch and recommence, then, at
1:20. If you'll go with the bailiff, please.
[The
jury was excused from the courtroom for the lunch recess.]
THE
COURT: Anything else before we recess, Mr. Porter?
MR.
PORTER: Nothing from the state, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: Nothing from the defense, Your Honor.
THE
COURT: We'll be in recess until 1:20.
[Lunch
recess]
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3137
AFTERNOON
SESSION
[Proceedings
resumed after the lunch recess with all parties present.]
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Call your next witness, please.
MR.
SMEAL: The state --
MS.
ROGAN: We don't have a jury, Your Honor.
THE
COURT: Oh, I'm sorry. Bring our jury in first, please.
[The
jury was escorted to the courtroom and proceedings resumed, as follows.]
THE
COURT: Where's our juror who made the request -- okay. We'll take -- Mr. Allen,
would you approach the bench, please?
[A
bench conference followed outside hearing of the jury.]
THE
COURT: Would you make that call, please --
THE
BAILIFF, MR. ALLEN: Yes, sir.
THE
COURT: -- for our juror?
THE
BAILIFF, MR. ALLEN: Uh-huh.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: We'll come back to some of those matters as far as some phone calls for
jurors and some of those on some of the issues that have arisen. We'll come
back to some of that at the end of the day and take care of those. Who do you
call next?
MR.
SMEAL: The state calls Mr. Jim Dempsey.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: If you'll administer the oath, please.
MR.
SMEAL: Mr. Dempsey, 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, State of Georgia v. Michael Harold Chapel, shall be the truth, the whole
truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
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 James Bradley Dempsey. I'm a
senior forensic investigator with the Gwinnett County medical examiner's
office.
Q. And how long have you been so employed?
A. Five years here in Gwinnett.
Q. And what are your duties as an investigator
with the medical examiner's office?
A. I field reports of death that are reported to
our office pursuant to the Georgia Death Investigation Act.
Q. Do you have any training and experience and
education in the area of medical examiner investigation?
A. I do, yes.
Q. Okay. Please briefly summarize that for the
jury.
A. I attended a specialized training course in
Miami in December 1990 on the medical legal investigation of a death. The May
after that, in 1991, I attended an advanced course here in Cobb County on the
same.
Q. Okay. How many autopsies have you assisted in
over the past five years?
A. Probably over 2,000.
Q. I want to direct your attention to April 16,
1993. Were you working that day?
A. Yes, sir, I was.
Q. Were you present at the autopsy of a woman
who was later identified as Ms. Emogene Thompson?
A. I was.
Q. And was that autopsy being performed by Dr.
Brian Frist?
A. That's correct, yes.
Q. And is Dr. Frist one of the medical examiners
who performs autopsies in the Atlanta area?
A. That's correct, yes.
Q. Okay. And did you assist with that autopsy?
A. I did.
Q. Okay. How did you assist with that autopsy?
A. I work at the -- at the physician's direction
during autopsies in various stages as far as removal of various organs and
tissues and assist with the dissection. I draw blood and other bodily fluids
for toxicology and other purposes.
Q. Okay. And was a sample of the victim's blood
drawn in this case?
A. It was, yes.
Q. Okay. And how was that done?
A. When I opened the chest cavity, I opened the
pericardial sac where the heart rests and drew blood directly from the aorta.
Q. Okay. At what stage of the autopsy is that
done?
A. At the very beginning.
Q. Okay. Is there a reason for that?
A. It's very necessary to do it before we begin
any type of dissection to ensure that there's no contamination from any other
fluids within the body to the blood itself.
Q. Okay. And how much blood was drawn in this
particular case?
A. We had four vacutainer, vacuum-sealed test
tubes. There were three gray and one red.
Q. Okay. The gray and the red, does that
describe the stopper that is used in these tubes?
A. Yes, sir. Yes, sir. That's correct.
Q. Okay. When you described this as a
vacuum-type tube, would you explain that for the jury, what that means?
A. Basically, they are regular sized test tubes that
have a rubber stopper on the end. They are sterile and sealed and vacuum-packed
from the manufacturer in that any air that -- when they're being manufactured,
they're clear of any type of air or anything.
Q. In other words, those are tubes that are specially
designed for the collection of blood; is that correct?
A. That's correct.
Q. And did you in fact draw four tubes of blood
from the body of Emogene Thompson?
A. Yes, sir, I did.
Q. And were those items labeled?
A. They were.
Q. How were they labeled?
A. They were labeled with the corresponding case
number that was assigned to Ms. Thompson. They were also labeled with her name,
the date of the autopsy, and the doctor, and the investigator handling the
case.
Q. Okay. And --
A. And also what type of specimen they were.
Q. And did you label the tubes in this case?
A. Yes, sir, I did.
Q. Was there a case -- a medical examiner's case
number assigned to this case and to those tubes?
A. Yes, sir, there was.
Q. Do you recall off the top of your head what
that number was?
A. It would have been 93G0195.
Q. Okay. Was there blood drawn from Ms.
Thompson's body by the medical examiner's office at any time for any other
purpose?
A. No, sir.
Q. Following the drawing of the blood and the
labeling of those tubes, what did you do with those items?
A. Upon labeling the tubes, I placed them in a
clear evidence bag that is wrapped closed with wire. It has a wire wrap around
the top of it that you close it with and also stapled closed at the seams with
a regular stapler.
Q. And what did you do with those tubes on April
16?
A. Okay. After they -- the blood was collected
and placed into the evidence container, it was placed in a locked refrigerator
which is inside of our locked evidence room at the morgue.
Q. Okay. And were those items subsequently
delivered to the state crime lab?
A. Yes, they were.
Q. And who delivered those items?
A. I did.
Q. Do you recall when you did that?
A. It would have been April 20, sometime that
morning about eleven o'clock.
Q. Okay. And you personally delivered the items
to the state crime lab?
A. Yes, sir, I did.
Q. Was anything other than Emogene Thompson's
blood placed in those tubes?
A. No, sir.
Q. During the time the tubes were in your
custody and under your control, did you do anything to alter the contents of
those tubes?
A. No, sir.
Q. Investigator Dempsey, I'm handing you what's
been previously marked as State's Exhibit 25. Can you identify that item?
A. Yes, sir. This is one of the test tubes of
blood that was drawn on the morning of the autopsy.
Q. Okay. Which color stopper tube was that?
A. This was a gray-stoppered tube.
Q. All right. This was one of the three
gray-stoppered tubes that you utilized that morning?
A. Yes, sir, that's correct.
Q. And is that the item that you delivered to
the state crime lab?
A. Yes, sir. That's one of the tubes.
MR.
SMEAL: Nothing further at this time.
THE
COURT: Mr. Moore?
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Mr. Dempsey, my name's Johnny Moore. I have a
few questions for you. Why are there three gray tubes and one red, and what's
the significance of that?
A. Well, there's different type of preservatives
that are used. From what I understand about toxicology, which isn't a whole
lot, the gray-stoppered tubes contain a preservative which contains a clotting
factor to preserve any type of traces of alcohol or drugs in the blood. The red
stoppers are used -- they're a sterile container that contain no type of
clotting factor and they're used for the purposes of, I guess, biological
specimens if they wanted to test for hepatitis or HIV.
Q. Now, who all was present at the autopsy
beside yourself and Dr. Frist?
A. Myself, Dr. Frist, Investigator Bennett. I
don't recall which investigators were present, but I believe there were several
from the police department and the district attorney's office.
Q. Now, was this done in what we used to call
the morgue at the Gwinnett County police department?
A. Yes, sir, that's correct.
Q. Okay. Now, how long was the body stored there
before you did the autopsy?
A. The body was brought directly from the crime
scene to the morgue and we did the autopsy then.
Q. Okay. And after the autopsy's complete, what
do you do with the body?
A. The body's placed into a refrigerated cooler
there within the morgue.
Q. Now, could you tell us who all has keys to
that morgue?
A. Our staff has keys and, as far as I know,
only senior officers at the police department do.
Q. Okay. Would people like Jack Burnette have
keys to it?
A. Not that I'm aware of.
Q. When you say senior officers, who would be
the senior officers?
A. I had asked who all had keys before and was
just told that senior officers, and I'm assuming sergeants and above.
Q. Do you know how many sergeants there are in
the Gwinnett County police department headquarters?
A. No, sir. Excuse me, it was a supervisory
level is what I was told.
Q. After the autopsy's completed, what's done
with the waste products and everything?
A. I'm sorry. The waste products?
Q. Yeah. Things like gloves that may be
contaminated.
A. They would have been placed in a bio-hazard
container. We have a special trash can that's a plastic box containing a red
bio-hazard bag where our gowns and aprons and gloves go.
Q. Okay. And where does that go from there?
A. It's picked up by a sanitary disposal company
once a week and taken to be incinerated.
Q. Is that a private company?
A. Yes, sir, it is.
Q. Do you know what day of the week they pick it
up?
A. No, sir, I don't.
Q. So during the period of time from the time
the autopsy was done until it's picked up by the disposal company, then it
would remain there in the morgue?
A. Yes, sir, that's correct.
Q. Now, the officers that were in there, like
from the DA's office and the police department, were they wearing gowns and
gloves and that sort of thing?
A. I don't recall. I don't believe so.
MR.
MOORE: Nothing further right now.
THE
COURT: Redirect?
MR.
SMEAL: No, Your Honor.
THE
COURT: You can come down. Call your next witness, please.
[The
witness stepped down from the stand.]
MR.
PORTER: The state would call Dr. Brian Frist to the stand.
[The
witness was called to the courtroom and stepped to the stand.]
MR.
MOORE: Your Honor, before we go into this, we have a matter we need to take up
outside the presence of the jury.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: What is it?
MR.
MOORE: Mr. Porter's about to go into autopsy photographs. You need to examine
them and determine which ones you're going to allow, if any, or if all of them.
MS.
ROGAN: We have some objections.
THE
COURT: Okay. Mr. Porter, how many of them do you intend to offer in?
MR.
PORTER: There are seven.
THE
COURT: Okay. We'll take it up with the jury out and inquire as to what they're
going to be and any objections.
MR.
PORTER: Are you going to do that now or --
THE
COURT: I'm sorry?
MR.
PORTER: Are you going to do that right now?
THE
COURT: Yeah.
MR.
PORTER: Because this witness is going to identify photographs and discuss them.
THE
COURT: Yeah. Let's just -- what do you -- let me ask, Mr. Moore, exactly what
kind of -- you just want to see the photographs?
MS.
ROGAN: We've seen them.
MR.
MOORE: We've seen them and we object to some of them, and we want you to look
at them and make a ruling.
THE
COURT: Okay. There's no question, there's no particular issue as far as
identifying them and that sort of thing; it's a question about how many you've
got and what they show --
MR.
MOORE: It's a question of whether they're relevant and whether or not they're
appropriate to be shown to the jury.
THE
COURT: Okay. All right. We'll do that.
[Bench
conference concluded.]
THE
COURT: Before we proceed on, we have a matter to take up that won't require the
presence of the jury. So, Mr. Allen, I'm going to ask you to take the jurors
out, and I don't think we'll be long. 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. Moore, what is the issue you wish to raise?
MR.
MOORE: Your Honor, Mr. Porter's indicated to us he intends to offer State's
Exhibits 25, 26, 27, 28, 29, 30, and 31. And, Your Honor, we believe that these
photos are being offered for the purpose of inflaming the jury. They don't
illustrate relevant things that can't be illustrated through drawings. There
are black and white drawings that the coroner's office or the medical
examiner's office has done. We don't believe that these photographs should be
displayed to the jury. They don't illustrate anything in particular except they
show inflammatory, bloody scenes that would be upsetting to the jury, but they
don't add anything to Dr. Frist's testimony in the case.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, the position of the state is is that these photographs,
each and every one, are relevant to illustrate a different point regarding Dr. Frist's testimony as to two primary
issues. One is the survival between shots and one is an issue of the cause of
death, and that relates back to the first issue. We have four photographs that
show each entry and exit wound. We have three photographs that show the
condition of the victim as she arrived at the morgue, which shows the vertical
or horizontal blood patterns. The wounds are important as to the distance, to
show distance from the shot as what's called a 'loose contact' or 'close
contact' wound.
And,
Your Honor, we have introduced -- we have seven pictures out of -- there were
thirty of forty, and I think the state's being reasonable in showing
photographs that are restricted to the issues that we believe are at hand. We
are not showing gratuitous photographs of the autopsy at the point of maximum
incision and, Your Honor, we would ask just that the Court review the
photographs and sustain their use before this jury.
THE
COURT: May I see them, Mr. Moore?
MR.
MOORE: Yes, Your Honor. We would point out to the Court that we would object to
all of them, but two of them are particularly objectionable, and that's Number
25 and 27, and I'll put these on top.
[Presenting
to the Court]
MR.
PORTER: Your Honor, I would state for the record that 25 shows the flow of
blood from the victim's nose as well as the exit wound of one of the rounds.
And Exhibit Number 27 is a view from the waist up and shows the condition of
her clothing at the morgue.
THE
COURT: All right.
MR.
MOORE: Your Honor, before the Court would make a ruling, if the Court's going
to allow 25 and 27, then we'd ask if Mr. Porter would make a proffer and show
how that would be necessary for Dr. Frist's testimony.
THE
COURT: What do you contend the controlling law to be, Mr. Moore, in support of
your position?
MR.
MOORE: Your Honor, I believe this is discretionary with the Court, but I think
the law is that the Court should -- if it doesn't illustrate, it's not
necessary for the state's case, and there's been no showing here that it is.
Mr. Porter has stated it, but I believe that to get those kinds of photographs
like 25 and 27 in, he would need to have Dr. Frist to make a showing that he
can't testify and present his case of the autopsy without those photographs. We
believe they're highly inflammatory and any relevancy they have is outweighed
by the prejudicial value.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, that is not our understanding of the law. Our understanding
of the law is that the prosecution is not required to show that they are
necessary to the case. It's that they are relevant to prove a portion of the
state's case, and we'd cite Brown v. State, 250 Ga. 302, a 1983 case, and it
demonstrates -- for instance, in another case, Drane v. State, which was
decided as recently as March 17, 1995, there was no error in admitting
photographs of the victim's decomposed body or admitting post-autopsy photographs
in which the victim's skull had been reconstructed. Reconstruction was
necessary in order to demonstrate to the jury where the bullet entered and
exited, that there was no alteration to the wound.
The
test is not that it's absolutely necessary; it's that it is probative to the
facts that the state wishes to bring out and that it is not so inflammatory as
to overcome the emotions of the jury. And, Your Honor, we have been careful in
selecting photographs that are relevant to the issues that we want to bring.
And I don't think that the burden is that we have to prove that they're
absolutely necessary to Dr. Frist's testimony.
In
a technical sense, no photographs are absolutely necessary, but I don't think
the state is held to that burden. These are illustrative of points that he is
going to make on direct examination.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: Your Honor, we'd just insist that instead of just having Mr. Porter's
statements that he put up some evidence to show why they're needed and why they
can't illustrate that in some other manner so that the Court would be in a
position to exercise your discretion.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, I don't think -- is
Mr. Moore questioning my stating in place is incorrect? Because I have
stated in my place as an officer of the Court my intention with these
photographs and the evidence that I expect, and I don't -- Your Honor, these
photographs are required only under the same test of admissibility and
relevancy as any other photographs with the additional caveat of the Court's
discretion as to their inflammatory nature. Other than that, they are no
different than any other evidence, and I'm under no burden other -- than any
other evidence to establish their admissibility. I don't think that I have to
-- I've stated what I believe to be the standard.
THE
COURT: And what specifically, Mr. Moore, is your objection or your motion?
MR.
MOORE: My motion is that Mr. Porter's not going to testify before the jury, and
Dr. Frist should testify and illustrate why those are needed in his testimony
before the Court makes a decision, that
Mr. Porter should make a showing why those are needed.
MR.
PORTER: Your Honor, that's the point. That is not the test. The test is that
Dr. Frist doesn't need to say what -- they're illustrative of his testimony.
They're no different than the diagram except by the nature of testimony and
that is the Court's ruling as to whether or not they are so inflammatory as
that their inflammatory nature overcomes their probative value.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, you have discretion. I'm just insisting that there be some
evidence presented why they're needed. That's my position. There may not be
case law to support it, but that's my position.
THE
COURT: Your motion is denied. I understand. Here are the photos. Anything else
before the jury comes back, Mr. Moore?
MR.
MOORE: Is the Court going to allow them to see all the photographs, Your Honor?
THE
COURT: If he lays the foundation generally as to their admissibility and ties
them in as being relevant, yes, sir. Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, only that it's my intention, given the problems we had with
the photographs this morning, I have brought a blank piece of cork board. I
intend to, at the appropriate time, have Dr. Frist go through, identify the
photographs, and then come down off the stand to discuss their relevance in an
area similar to this.
THE
COURT: Okay. My concern is for the photos is that I don't want long pauses
while we wait for them to be circulated through the jury box. And I think if we
have any problems like we did have the last time around with walking them
across -- because I think the jurors tend to want to ask a follow-up question,
which I don't think is appropriate, so --
MR.
PORTER: I agree with that, Your Honor.
THE
COURT: And the other thing, as far as posting them, I don't know that it's
appropriate to post them and then leave them up throughout the course of the
other testimony, but so long as you use them for this witness, I think that
would be appropriate. Mr. Moore --
MR.
PORTER: Your Honor, I agree with the Court and I was looking for a solution
that didn't have the pauses, but I respectfully disagree with the Court. I'm
not sure the jurors, and I'm not prepared to take the risk that the jurors can
concentrate on listening and flip through pictures at the same time, so I'm
looking for a solution.
THE
COURT: Well, we're all doing it, so I think they can, too.
MR.
PORTER: Yes, sir.
THE
COURT: Mr. Porter -- Mr. Moore?
MR.
MOORE: Your Honor, once they're admitted, I think Mr. Porter can follow any
procedure the Court allows him to in presenting them to the jury.
THE
COURT: All right. Bring the jurors back in, please.
THE
BAILIFF, MR. ALLEN: May I approach?
THE
COURT: Yes, sir.
[A
bench conference between the bailiff and the Court followed.]
THE
BAILIFF, MR. ALLEN: I got it taken care of.
THE
COURT: All right. Just a moment. Oh, okay. You made that call?
THE
BAILIFF, MR. ALLEN: Yes, sir.
THE
COURT: Okay. Good. Thank you.
[Bench
conference concluded.]
THE
COURT: I think the last exhibit identified was 25; is that correct?
MR.
PORTER: Your Honor, we're going to designate one of the photographs as 25A
because the blood vial was identified as 25.
THE
COURT: All right. That would be fine.
[The
jury returned to the courtroom and proceedings continued, as follows.]
THE
COURT: Go ahead when you're ready,
Mr. Porter.
MR.
PORTER: Would you raise your right hand, please. Do you solemnly swear the
testimony you're about to give in this matter now pending shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I affirm.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. PORTER:
Q. Can you state your name, please.
A. Brian Frist.
Q. And how are you employed?
A. I'm a medical examiner in Gwinnett County.
Q. Could you describe for the jury, please, your
background and education that qualify you to be employed by the medical
examiner's office?
A. As a medical examiner, I am a licensed
physician in the State of Georgia. I first received a degree from American University,
a bachelor of science. I then went on to George Washington University Medical
School in Washington, D.C. and got a degree in medicine in 1973. At that time,
I then took a internship and residency in pathology at George Washington, and
then went to Montepier [phonetic spelling] Hospital in New York City through
1977. At that time I received my boards in anatomic and clinical pathology.
After
that I came to Atlanta to practice pathology at Northside Hospital. I stayed at
Northside Hospital till -- through 1986, at which time I joined Roche
Biomedical, which is a private laboratory in the metro Atlanta area, and then
joined with Dr. Joe Burton in 1989 as an associate medical examiner for
Gwinnett County.
Q. Now, Dr. Frist, can you --
MR.
PORTER: First of all, Your Honor, we would submit Dr. Frist as a qualified
expert in the area of forensic pathology based upon his statements.
THE
COURT: Do you wish to voir dire the witness, Mr. Moore?
MR.
MOORE: Your Honor, I'd leave it to the Court based on what Mr. Porter's
elicited.
THE
COURT: All right. The Court finds him qualified. Go ahead, please.
BY
MR. PORTER:
Q. Dr. Frist, I want to ask a couple of
questions that talk about a forensic pathologist and exactly what they do. Can
you tell the jury, what is the difference between a pathologist in a hospital
and a forensic pathologist?
A. A pathologist in a hospital situation is
responsible for maintaining the laboratory and the surgical suite. In the
laboratory, he's responsible to make sure that all of the tests that have been
run in his lab are done appropriately and are reproducible and accurate. Also,
in a surgical suite, when someone goes to surgery, if tissue is removed, the
pathologist is the one who determines whether the tissue is malignant, benign,
or there was some other disease process.
As
a forensic pathologist, I'm trained as a hospital-based type of pathologist,
but also have additional training in forensic pathology. Forensic pathology is
the study of death in that it includes unnatural deaths. I am responsible to
look at all of the deaths in the county that I serve, such as Gwinnett County,
to determine how a person died, whether it be a natural cause or unnatural
cause. All deaths in this county will be called into our office. At that time,
we will decide whether it falls under our jurisdiction or not.
If
it falls within our jurisdiction, these are cases in which someone has died and
it was unexpected and it had not been -- the person had not been under medical
care; say, for example, a car accident, somebody dies in a house fire, or
someone is elderly and just doesn't wake up in the morning, or it could be in
situations such as a homicide or a suicide. The medical examiner in the county
is the one who is to determine the manner and cause of death. After he's done
that, I issue a report with my findings to the appropriate officials so that
they can determine what they must do next, whether the death was of such a
nature that prosecution should be brought forward or not, and I --
Q. Dr. Frist, can you distinguish for the jury
what is the difference between manner and cause of death?
A. The cause of death is the mechanism in which
the person died, whether they died from a heart attack or they died from lung
disease, or did they die from a stab wound or a gunshot wound. That is the
cause. The manner is how did death occur. Was it a natural occurring disease
process, such as a heart attack? Was it a suicide; did someone take their own
life? Was it a homicide; did someone take somebody else's life? These are the
types of situations and things that we look at to determine the manner and
cause.
Q. In determining both the manner and cause of
death, do you rely only on the medical evidence that's received through an
autopsy?
A. No.
Q. Or do you look at all the evidence
surrounding it?
A. The entire situation is examined. I have
investigators in my office who will initially take the call. They will go to
the scene where the death has occurred. They will make preliminary notes and
interview with -- interview people who they feel that are appropriate. Then
they will bring the body back to the morgue, where I'll examine the body.
However,
if they feel uncomfortable and feel that they need additional help at the
scene, they will call myself up or Dr. Burton, whoever is on call that
particular day, and we will go to the scene, and we will help the investigator
and we will take our own notes and make a diagram and so on and so forth and
interview various people.
However,
if I have not gone to the scene, the body is brought to the forensic science
center here in Gwinnett County, where I will meet then with the investigator
and many times police people, fire people, or anybody who may have some
knowledge of the surroundings in the case in the particular death. I'll
obviously listen to what they have to say.
I
will then determine who else has to be interviewed or what other pieces of
information must be gathered from the -- from various sources, and then an
autopsy and post-mortem examination will be performed. And all of this
information will then be gathered at the end, re-evaluated and then that will
determine the cause and manner of death.
Q. Would you describe for the jury what is an
autopsy as we phrase them and what is the thing that you're looking for or what
are you doing?
A. When the body is received in the forensic
science center, it is received in, as best we can, in a pristine state, meaning
it's brought to me exactly as it was at the scene. If a person was in her bed,
it is brought to me with the sheet. If it was found in grass, in a field, the
entire area is brought back to me as best we can in a pristine state.
At
that time, I will examine the body as it is received with the clothing on, with
the clothing off, however it may have been received. I will determine what
evidence has to be taken from the body, whether it's fiber evidence, whether
it's blood evidence, whether there's no evidence. Everything that must be taken
will be done at that time.
I
will then take numerous photographs and make numerous diagrams of the body.
After that is completed, the body will be undressed and the process is
repeated. We'll take additional photographs, we'll make additional diagrams,
and correlate. If there are any markings on the clothing that correspond to the
markings on the body and so on to see -- to start to unfold the story of what
has occurred.
After
that portion has been completed, that is the post-mortem examination, the
autopsy will be performed. That is the dissection of the internal organs in a
surgical way to determine what was the cause of death, to determine whether it
was a natural or unnatural death. After that is completed, then all the
information is gathered together and I will determine what was the cause and
manner of death.
Q. Now, Dr. Frist, I'd like to call your
attention to April 16, 1993. Did you have an occasion to do a post-mortem
examination and autopsy on a person who was later identified as Emogene
Thompson?
A. Yes, I did.
Q. Could you describe, first of all, what was
the state of the body when you received it?
A. She was clothed. I was initially told
that Ms. Thompson had apparently been
shot and that she'd been in a car and that she'd been slumped over in the car
to her right side and that she had received -- my investigator believed that
she had received two gunshot wounds to the head.
MR.
MOORE: Your Honor, I'm going to object. He's going into hearsay about what his
investigator did. His investigator can testify. If Dr. Frist was there, then he
could testify to it, but if he's testifying to things and he wasn't present,
then I don't think it's appropriate, and we would object.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, this evidence has come out through witnesses on direct. Dr.
Frist has testified that he uses not only the physical evidence but information
in making his determinations as an expert in forensic pathology. He's merely
explaining the basis of any conclusions that he might reach.
THE
COURT: Objection's overruled as to this testimony. Go ahead, please.
BY
MR. PORTER:
Q. I'm sorry, Dr. Frist, you were --
A. As I stated before, as I went through before,
the first thing I will do is speak with my investigator. And my investigator
told me that the deceased had been found in a car and she was in the driver's seat and that she had been slumped over to the
passenger side, to the right side. And that she had -- apparently been shot
twice from best he could tell; however, obviously, I was now going to look at
the body to determine whether there was just two gunshot wounds, one gunshot
wound, or more, or maybe she had not been shot at all. And this is what I was
-- the information I was given at the time.
When
the body was at the forensic science center in the morgue, the body was
clothed, fully clothed, so at that time I proceeded with my routine, meaning
that I examined the body with the clothing on, took various diagrams and
photographs, removed the clothing, took photographs, made diagrams again, and
then I did an autopsy on the deceased to determine the cause and manner of
death.
Q. Let me ask you, first of all, in your
examination of both the clothed and unclothed body of the victim, did you
observe anything that you believed to be what's called a defense wound?
A. No, I did not.
Q. And can you describe for the jury what is a
defense wound and what does the lack of defense wounds indicate to you?
A. A defense wound, as a forensic pathologist
what that means is I am looking at the body to determine had the body -- had the
person put up a struggle in any -- in a homicide; had the deceased tried to
fight off the perpetrator; had she put up any defense at all? Usually, what
that will look like -- we will look, in particular, at the hands, the hands and
arms, because someone usually will defend themselves in this type of a position
[indicating], so there might be some defects on the clothes, there may be some
lacerations or abrasions to the hands, you know, on these surfaces.
Also,
you look at the feet because someone may have curled back and had their feet up
and kick away, or any type of tear in the clothing or any type of laceration or
bruise to the body that could have been construed as the victim trying to fight
off the perpetrator and got these marks in the process. And I did not find any
of those in this case, so I do not believe that Ms. Thompson had fought off
anyone prior to her death.
Q. Now, let me ask you, did you examine, after
the clothing was removed, for what's called lividity?
A. Yes, I did.
Q. And could you describe for the jury what
lividity is and what, if any, conclusions you drew from the lividity patterns?
A. The lividity is the -- when a person dies,
the blood will -- the blood in your body will pull towards gravity. So if a
person were to be lying flat with their face up and were to die, all the blood,
due to gravity, will sink, and it will basically cover the back of the body and
it will turn a color -- turn the skin a color.
It will turn it a purplish-red, and that will not be able to be changed.
When a person dies, the lividity pattern will set.
And,
now, once the person is -- has died and the lividity is set, if someone were to
come behind them and move them and take them away and put them in another
position, the lividity pattern will be the same as it was when the person died,
not the way the body may have been moved. So if the person was lying down,
you'll have one lividity pattern; and if a person was seated, you'll have
another lividity pattern. If a person dies when they're lying down and then someone
were to seat them up to make it look as though they were seated when they died,
the lividity pattern will look as if they were lying down. It will not change.
Q. Based upon the information that you received
and your examination of the body of the victim, did you reach any conclusions
regarding the position of her body at the time of her death?
A. I believe that she died as stated before,
that she was found in a car slumped to her right side. She was seated in the
driver's seat and she was slumped to the right. I believe that that was the
position of her when she died.
Q. Was there any indication based upon your
examination that the body had somehow been moved or placed in the car after
death?
A. No.
Q. Now, let me ask you, did you then move on to
the autopsy portion of the postmortem?
A. Yes, I did.
Q. Could you describe the results of the
autopsy. I think the most pertinent parts are regarding the bullet wounds that
you discovered.
A. I found that she had been shot twice. Once
was in the back of the head and the second shot -- when I say first and second,
I am not referring to the order. I'm just saying that there were two shots. One
is in the back of the head and one is on the left side of her neck below the
ear. The one in the back of the head, it -- would you like me to go into the
path?
Q. Well, let me -- before we do this, let me ask
you, other than the gunshots, did you see, in the course of your autopsy, any
other obvious cause of the death of Emogene Thompson?
A. No. I believe that she was in good health and
that the autopsy, the dissection of the remaining organs, proved to me that she
was in good health and that she did not die of a naturally diseased process or
a naturally occurring process. She died as a result of these two gunshot wounds
to her head.
Q. Now, Dr. Frist, I'd like to show you for the
purposes of identification what has been marked as State's Exhibit Number 25,
and without going into the contents of that, can you, first of all, describe is
that an accurate photograph of what it purports to depict?
A. Yes, it is. This is a photograph of the
deceased as she was clothed and as she was received by my -- in the forensic
science center --
THE
COURT: What number was that, Mr. Porter?
MR.
PORTER: 25A, Your Honor. I apologize.
THE
COURT: Thank you. All right.
BY
MR. PORTER:
Q. I'd like to also show you State's Exhibit
Number 26. Can you identify that, and is that an accurate representation of
what it purports to depict?
A. Yes. This is another photograph of the
deceased as she was received in the forensic science center.
Q. Let me show you State's Exhibit Number 27.
Can you identify that, please?
A. This is the third photograph of the same of
the deceased in the forensic science center as she was received.
Q. Let me just put these in some kind of order.
I'm going to show you -- they've been numbered a little bit out of sequence,
but we'll talk about that. I'd like to show you what's been marked as State's
Exhibit Number 28. Can you identify that, please?
A. Yes. This is a photograph of the deceased and
this is a photograph of her head showing the exit gun shot wound -- one of the
exit gun shot wounds.
Q. I'd like to show you State's Exhibit Number
29. Can you identify that, please?
A. This is another photograph of the deceased
with another exit wound, showing a second exit wound -- gunshot wound exit.
Q. Now, I'd like to show you State's Exhibit
Number 30. Can you identify that, please?
A. This is a photograph of the deceased again,
and this is a photograph of one of the entries of the gun -- of one entry of
the gunshot wound.
Q. And let me show you State's Exhibit Number
31. Can you identify those, please?
A. This is a photograph of the deceased again,
and this is a photograph of one of the gunshot wound entry sites.
Q. Now, do each of these photographs that you've
examined accurately depict what you have identified them to be?
A. Yes, they do.
Q. As they were on April 16, 1993?
A. Yes, they do.
MR.
PORTER: Your Honor, at this time, the state would tender into evidence State's
Exhibits Number 25A, 26, 27, 28, 29, 30, and 31 to illustrate -- so that we can
go into the contents of them to further illustrate Dr. Frist's testimony.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we renew our objection that they're being introduced solely
for the purpose of inflaming the jury and shocking the jury, that they're not
necessary or needed for the witness's testimony.
THE
COURT: State's 25A, 26, 27, 28, 29, 30, and 31 are admitted over objection.
MR.
PORTER: Thank you, Your Honor.
BY
MR. PORTER:
Q. Dr. Frist, I'm going to ask you as far as
State's Exhibits Number 28, 29, 30, and 31, can you pair these two as to the
appropriate entry and exit wounds? And I'm going to prepare a way for us to
talk to the jury about this. Have you got those paired up?
A. Yes, I do.
Q. If you could step down and let me mount these
on the board.
[The
witness stepped down from the stand.]
[Pause
in proceedings]
BY
MR. PORTER:
Q. Now, Dr. Frist, there's a pointer over here,
if you could use that, and I'll stay out of your way, could you describe
State's Exhibit Number 25A, which is here in the right-hand corner. What, if
anything, does that tell us about the gunshot wounds which you have described
as the cause of death, and what, if anything, about the length of time
that Ms. Thompson may have been
vertical or had been alive between the two shots?
A. Well, as I told you
earlier, I was told that she had been shot in the car, she was in the
passenger side, and she fell to her right side. She slumped over to her right
side. So what I am looking for is I am looking for the pattern that the blood
was now going to flow out of the victim. Some blood comes out of the nose, some
blood comes out of the ears, and some blood may come out of the mouth, and what
may come out of the wounds themselves, they will flow as to gravity. So if I
were to be standing upright and I get a gunshot wound here, the blood is going
to drip down. And if I was laying on my side, it would drip to the side, and
it's just, basically, kind of common sense to see which way is the blood
flowing and does that go along with what I've been told and what the wounds
look like.
In
these top three photographs, these are all photographs of the victim, and you
can see that she is on her back. And you can see that the blood is dripping
down. It's dripping down to the side of her face, down beside of her face. In
this particular picture -- let's look at this photograph first. When you look
at this photograph, you have to imagine
--
THE
COURT: Mr. Porter, would you identify which exhibits we're talking about?
MR.
PORTER: Your Honor, he's looking at State's Exhibit Number 26.
BY
MR. PORTER:
A. [Continuing] In photograph Number 26, there's
a gunshot wound back in here. I'll show you that later on on the bottom
photographs, but there is a gunshot wound in the back. And you can see that
there is blood coming down the front of her face in a linear pattern. It's
coming straight down. And I was told that she was found slumped over in the car
with her face down, so this goes along with that. This supports that
information. That supports that she was lying with her face pretty much
straight down with the blood just starting to come down. So I believe that this
is accurate, and I believe that it fits with what my investigators found at
this scene. As we go to these photographs --
Q. Which are?
A. -- which are Number 27 and 25A, they continue
to support the same process. You could see that the blood is coming down, it's
dripping down, and then on this side of her face, there is no blood to speak
of. There's no streaming of blood to speak of on the face. There's a gunshot
wound, as I told you back there, and it's all coming down. This is one of the
gunshot wounds, so just -- this is an exit, so just recognize -- that's why
it's irregular and bloody, but it, too, the blood is coming down.
So
I believe that these three photographs all support that the victim was shot and
fell in a face-down, basic face-down position, and the blood was streaming down
at that point, and that she had not been moved, and that these three
photographs would support that.
THE
COURT: Mr. Porter, would you help identify which photographs we're talking
about as we go along --
MR.
PORTER: Your Honor, once again, it's 25A, 27, and 26, are the photographs that
we have referred to.
BY
MR. PORTER:
Q. Now, Dr. Frist, I'd like you to talk now or
concentrate on State's Exhibit 29 and 31, which depict -- or will you tell us
what they depict?
A. Photograph Number 31 shows the victim and
this shows one of the gunshot wounds that she received. This is an entry
gunshot wound. And I would really like to talk about it along with photograph
Number 20 -- Number 30. I'm sorry.
Q. All right.
A. Number 30 and 31. These are both entry
gunshot wounds. This wound over here is approximately right over here. This
wound over here would be in the back of the head approximately over there. Now,
as a forensic pathologist, what I have to do when I look at gunshot wounds such
as these, my job is to determine, if I can, how far away was the gun to the
victim when it was fired. This is one of the important facts that I try to
determine.
How
I do that is I look at the wounds themselves, and I try to look at the size,
the shape, the configuration of the actual wound, and also I look at if there's
any gunshot powder residue. That is the material that is used in the gun to
expel the bullet. It gives it -- it gives the bullet its energy. I look to see
if there's any powder on the victim, because when a gun is fired, the projectile
comes out, but along with the projectile is a cloud of gunshot powder and that
comes out as a cone -- like a cone, like a flashlight. It will come out like
that [demonstrating].
So
the closer you are to the gun, the more likely that you are going to be struck
by the bullet and also the powder. We know that this powder travels three feet
and then drops off. So, if I see powder on the victim, I know that the victim
was at least within three feet of the gun when that gun was fired. Then I can
look at the spread of the powder.
As
I told you, it comes out like a cone, so the further the pattern that is, it's
-- the wider this pattern is, the closer it is to three feet, if it's tight,
then it's closer to one inch or less. So that's one of the parameters I use.
Another
one is the wound itself. If you look at this one, this one is slightly
irregular to a little bit rounder. With this one, it's also rounded, but this
is very dark, and you can see, I don't know how well it -- it shows up pretty
well. But this is very dark and this is a hole with a dark circle under it.
That dark material is gunshot powder residue.
So
I believe -- and this is -- this is a very -- we would consider this a very
tight pattern and very close. So what I believe -- I did call this and I still
call this, this is a close-range loose contact gunshot wound. That means that
when the gun was fired, the gun was essentially in contact with the skin but
not entirely. It might have been at a slight angle, so it's not exactly in
contact as if it was in contact completely as we see in suicides. The wound
itself will look different. The wound will have more of a stellate pattern. You
will have a star shape, and it will have various lacerations angulating out in
all directions, giving it this star shape. Because in that particular instance,
the projectile goes into the -- into the skin and the gunshot powder residue
goes into the skin and when all the gases go in, when they go in they have to
come out. When they come out, they will explode out causing this massive
laceration.
Where in a loose contact, you don't
have that effect. So in a loose contact, you have a round hole, but you have
this thick deposit of gun powder, so I believe that this one, this photograph,
is showing you a loose contact wound below her -- I'm sorry, it's the left ear,
behind her left ear.
Q. Doctor, you're pointing to the right ear.
A. You're right. Behind her left ear. This one
here, however, again is slightly irregular, but I don't see that powder
pattern. But many times in the hair -- like this one was shot, this is in the
back of the head. The hair becomes very bloody and it -- the powder may get
into their hair, but with all that blood in there, you can't see it with the
naked eye.
So
I was unable to determine the distance of this gunshot. I was unable to say
whether this was an inch, two inches, a foot, or two feet, or three feet, or
what, because I was -- I was unable to see the gunshot wound powder residue, so
I called this one undetermined distance. I was unable to determine how far away
it was.
But
in this one, I could definitely tell you that this is a close one. So she was
shot twice, once close range, loose contact, close range, and the other one is
undetermined. I just don't know how far away the gun was.
Q. Now, the undetermined that you've been
referring to is State's Exhibit Number 30; is that correct?
A. That's correct.
Q. Now, what do State's Exhibits Number 28 and 29 depict in
relation to what you've just discussed?
A. Number 29 and -- Numbers 28
and 29 are both photographs of the exits. The projectile passed through the
skull causing extensive -- both projectiles passed through the skull and they
caused extensive laceration and hemorrhage of the brain tissue itself and then
exited the skull. The one that was from her left side below the ear came
forward and exited her right eye. This is a photograph, this eyelid, is
basically right above the eye. It took out the entire eye.
The other wound, which was in the back of the head, entered in the
back of the head, it exited over here, which is about over here. It's on the
right side temple. Both of these passed through the brain itself causing
extensive damage. I was unable to find the bullet in these cases for obvious
reasons that they exited the body. So they were no longer in the body.
Q. Dr. Frist, let me move these and if you would
retake the stand, I just have a couple of more questions.
[The
witness returned to the stand.]
BY
MR. PORTER:
Q. Dr. Frist, based upon your investigation,
your overall investigation, have you been able to form any opinion regarding --
well, first of all, let me ask you, based upon just the medical evidence, are
you able to determine the order in which the head wounds were inflicted, just
the autopsy results?
A. From the autopsy evidence, no.
Q. Are you ever able to, just from the autopsy
results, determine --
A. Yes.
Q. -- the order in which rounds are --
A. It's rare, but sometimes you can tell. For
example, if someone were to be shot in a manner such as in the head and then
get shot in the arm, then you know that the shot to the head killed the person
immediately or within seconds and that the shot in the arm would not have
killed the person. You may be able to. It's very difficult.
Q. All right. So based upon the autopsy results
alone, you were not able to determine the order of the shots?
A. No.
Q. Based upon your overall investigation, do you
have any opinion as to the order of the wounds that were inflicted in this
case?
A. Yes, I --
MR.
MOORE: Your Honor, I'm going to object unless he states what -- overall what
he's relying on, his overall examination. We don't know what all he's relying
on here to come to that conclusion.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, I'll ask Dr. Frist the foundation.
THE
COURT: Go ahead, please.
BY
MR. PORTER:
Q. Dr. Frist, you've already testified as to the
autopsy results. Did you receive any additional information which allowed you
to form a conclusion as to the order of the shots?
A. Yes, I did.
Q. And --
MR.
PORTER: Your Honor, I have to go into the information to lay the foundation and
then Mr. Moore wants to object to hearsay.
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: What's he going to -- what kind of foundation -- what's he going to base
his opinion on?
MR.
PORTER: The autopsy results and results of the investigation including the body
position, the fact the witnesses said there were two -- there was a spacing of time
between shots. Based on that, he thinks that the shot to the head was the first
one and she slumped over to the right, and then she took the close contact
wound to the neck, but it's going to require that the evidence of the spaced
shots come in. Now, I intend to introduce the direct evidence of that.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, that's not been testified to. The foundation for that's not
been laid. He -- earlier, he said they'd already testified and that was the
basis of the Court's ruling, but nobody's testified to all these things he's
basing his opinion on.
MR.
PORTER: Your Honor, I can only state in my place that I'm going to tie it up.
It's the gun -- it's Sara Guthrie and Bobby Guthrie, the witnesses who heard
the gunshots at the appropriate time and there was a space between them, and
that was what Dr. Frist was --
THE
COURT: Well, I guess the options are either he states the basis of what he was
advised and incorporates all that together for his opinion and if it all comes
in, then it's all fine, I suppose, at this point. Or the alternative is to
simply bring him back after all that's in evidence.
MR.
MOORE: Well, Your Honor, it seems to me that he ought to at least have to state
who provided the information, because we may be into triple and third-hand
hearsay here as to who told him, I mean, as opposed to where it came from.
MR.
PORTER: Your Honor, might I suggest that if -- we're going to recall Dr. Frist
anyway --
THE
COURT: Okay.
MR.
PORTER: -- about the blood spatter, and by that time, the evidence will come
in, and I'll ask him a hypothetical question which he's authorized to answer --
THE
COURT: Okay. It sounds like it would tie in just as well then as now.
MR.
PORTER: It's about six of one and half dozen of the other.
THE
COURT: Okay.
MR.
PORTER: I'm willing to do it then.
THE
COURT: Okay. Just reserve it and you can go into it then. Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Porter.
BY
MR. PORTER:
Q. Dr. Frist, I'm going to withdraw that
particular question at this time regarding the order of shots and we'll get
into that in a later portion of your testimony. Let me ask you, based upon your
investigation of this case, can you -- do you have any opinion as to the cause
of death for Emogene Thompson?
A. Yes, I do.
Q. And what is that?
A. Multiple gunshot wounds to the head.
Q. All right. And do you have any opinion as to
the manner of death?
A. I believe it was a homicide.
Q. Thank you.
MR.
PORTER: That's all the questions I have.
THE
COURT: Mr. Moore?
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Dr. Frist, I believe we met in your office
sometime back when we came down to talk to you about this case. Johnny Moore;
do you remember that?
A. Uh-huh [affirmative].
Q. Okay. Now, you testified earlier, I believe, in
your direct testimony that you liked to have the body brought to you as close
to the manner it's found at the scene as possible; is that correct?
A. That's correct.
Q. Okay. They didn't do that in this case, did
they?
A. Well, I believe they did as best they could.
Q. Okay. The body was removed from the car where
it occurred and then brought to you; is that correct?
A. That's correct.
Q. Okay. Hasn't it recently been the policy of
your office in cases like that to transport the car in a method where it was
enclosed in plastic or something to preserve everything, and then you examine
the body?
A. That's -- that is one method, but it's not
every -- that's not always used, no.
Q. Okay. Why wasn't it used in this case?
A. Why wasn't it? I didn't feel that it was
necessary.
Q. Who made that decision it wasn't necessary?
A. I believe Investigator Bennett.
Q. What caused it not to be necessary in this
case?
A. Excuse me?
Q. What caused it not to be necessary in this
case?
A. I believe that the -- Investigator Bennett
had told me that the car was examined at the scene and evidence that was needed
to be taken was taken at that scene, and photographs were taken at the scene,
and everything was documented to his best ability and that he would be able to
reproduce everything that was needed.
Q. Okay. How was that different than the case
down at Snellville where they did enclose it in plastic and bring the entire
vehicle to you?
A. Which case was that?
Q. I don't remember the name of it.
A. I don't remember it either.
Q. Has it been done more than once that way?
A. What's that?
Q. Has it been done more than once that way
where they enclose it in the plastic and bring it to you, the entire vehicle?
A. I can't comment. I don't know. I don't
recall. I do recall that happening once.
Q. Did you work on that case?
A. I have worked on a case such as that, yes.
Q. And why was it done in those cases?
A. Huh?
Q. Why was it done in those cases?
A. In that particular case it was done because, if
we're talking about the same case, a victim was found in a vehicle on the
street with a -- in an open bed truck and that there was too much commotion at
the scene and we wanted to remove the entire thing from the scene and could not
work appropriately at the scene.
MR.
MOORE: Let me get this marked.
[Defendant's
exhibit was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. Dr. Frist, I'm going to show you what's been
marked as Defendant's Exhibit Number 1 and ask you if you would examine that
article at the top of the page and see if you can identify that.
A. I can.
Q. Okay. And could you tell us what that is,
what that article's about?
A. It's about a man who had been shot in a --
had been shot and was found in the back of a pickup truck.
Q. Is that the case you're referring to?
A. I believe it is.
Q. Okay. Is that your investigator pictured in
the picture there?
A. Yes, it is.
Q. Mr. Bennett. Now, getting back to how the
victim died in this case, Dr. Frist, how soon after -- whichever shot was
first, how soon after that shot would the person lose consciousness?
A. They'd lose consciousness rather quickly.
Q. Could you define rather quickly a little bit
more specifically for us?
A. Pretty much immediate.
Q. Like immediately, instantaneous?
A. Basically.
Q. Okay. If it were a matter of seconds, how
long would it be before they'd lose consciousness?
A. Excuse me?
Q. If it were measured in seconds, how long
before a person would lose consciousness?
A. It's variable. A couple of seconds.
Q. One second, two seconds or --
A. A couple of seconds, variable. There's no way
to know.
Q. Okay. And even though the person might still
be alive in the technical sense that their heart hadn't stopped beating for a
few seconds, would the person have any consciousness of what was going on?
A. I don't believe he would.
Q. Now, I believe your office took fingernail
scrapings in this case, too; is that correct?
A. I believe so. Let me --
Q. Did you note anything unusual about them?
A. Excuse me?
Q. Did you note anything unusual about them?
A. No.
Q. Okay. And what did you do with those
fingernail scrapings?
A. Sent them to the crime lab.
Q. What other evidence was taken and sent to the
crime lab? Other than the fingernail scrapings, and I believe your -- Mr. Dempsey's
testified to some blood, four vials of blood, can you tell us anything else
that was taken?
A. The clothing was sent to the crime lab, tape
lifts from the jacket. That means I took portions of tape and just ran it up
and down the jacket to see if there was any evidence that could be identified
at a later date. That was done on the jacket and sweater. Fingernails, scalp
hair were sent to the crime lab.
Q. Okay. And what's the purpose of those tape
lifts?
A. To remove any evidence, any trace evidence.
Q. Okay. Such as -- could you tell the jury what
might be found on those tape lifts if there's anything there?
A. Any kind of fibers, any kind of stray hairs,
any evidence.
Q. Could you tell anything from the autopsy
regarding the time of death?
A. The time of death?
Q. Yes.
A. I could not tell you the exact time of death,
no.
Q. Now, you examined -- I believe when you did
the autopsy, you examined the stomach contents; is that correct?
A. I believe I did. Let me just check. Yes.
Q. Okay. And what did that tell you?
A. That she had -- had eaten and had digested
vegetable matter within her stomach.
Q. You say vegetable matter. Was there any
indication of meat or steak or anything like that?
A. There were other portions of food which I couldn't
tell what they were.
Q. Could you tell how long it had been since
she'd eaten by examining the stomach contents?
A. I would say two hours plus or minus.
Q. So if she died at around ten o'clock, then
she would have eaten around eight o'clock that evening, would that be --
A. Plus or minus.
Q. Plus or minus how much?
A. An hour or so.
Q. Okay. Were you present, Dr. Frist, when the
body arrived at the forensic center for the autopsy?
A. I forget whether I was there when it arrived
at that particular moment or I came a little bit later. I forget.
Q. Who all was present there when the autopsy
was conducted?
A. Mr. Bennett was there and Mr. Dempsey was
there and there were other investigators from the police. I forget who they
were.
Q. And were the police investigators wearing
gloves and gowns and that sort of thing?
A. I don't recall who was there, and I don't
really recall what they were wearing and what they weren't wearing.
Q. What do the rules for your forensic center
require of people that enter there during an autopsy?
A. That they wear gowns and gloves and that they
stand back.
Q. Okay. Do they also have to wear protective
glasses or anything like that?
A. A mask.
Q. Excuse me?
A. A mask.
Q. And you don't know whether the people there
were doing that or not on that --
A. I don't recall one way or the other. I do
recall that I did not allow anybody close to the body.
Q. Where are those regulations? Are they posted
somewhere there at the forensic center?
A. I believe they are.
Q. And where do you believe they're posted?
A. There's a glass window there. I believe
they're on there, but I can't say 100 percent.
Q. Had there been any other autopsies done
during that week?
A. Huh?
Q. Had there been any other autopsies done during
that week at the forensic center?
A. I don't recall.
Q. There's been some evidence that there was a
murder the day before. Was there an autopsy the day before or do you know?
A. If there was a murder the day before, there
would have been an autopsy the day before.
Q. Did you participate in that one?
A. I don't recall.
Q. Were any tests, to your knowledge, done on
the vehicle to determine if there was any of this gunshot residue you were
talking about that came out like a cone on the vehicle itself?
A. Whether there was gunshot powder on a portion
of the car, the vehicle itself?
Q. Yes, sir.
A. I believe the car was examined.
Q. Okay. Did your office do that or did someone
else do it?
A. No, we do not do that.
Q. You said it takes about three feet for this
pattern to sort of, I guess, get so faint that it doesn't show up anymore; is
that an accurate way to put it?
A. That's correct.
Q. Okay. How much does it spread out in three
feet? How wide would it get?
A. That depends on the gun.
Q. Okay. Have you been given any evidence as to
what kind of gun the police believe was used here?
A. I was told -- I believe it was a .38, but it
depends on the gun, it depends on the length of the barrel, it depends on the
ammunition used, how much gunshot powder was used initially. There are many
variables to determine how far it went. You'd have to -- the best way to do
that is to have the actual gun, test fire it, and then look at the patterns you
have, and that could tell you exactly how far away you were.
Q. Okay. Assuming you don't have the actual gun,
assuming it was a two-inch barrel, .38 caliber gun, how would it spread out?
MR.
PORTER: Your Honor, I'm going to object to this. I don't think the doctor can
assume that. Now, if Mr. Moore wants to stipulate it was a two-inch .38 caliber
pistol, I'll be happy to stipulate to that.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we don't know that. Nothing was ever recovered, but they're
alleging it was a Charter Arms, and I believe the evidence is going to show
that they only manufacture a two-inch barrel for that particular type gun.
THE
COURT: Mr. Porter, anything else?
MR.
PORTER: I know nothing of that, Your Honor. I can't stipulate to that.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. MOORE:
Q. If the gun were a two-inch barrel .38, how
would the pattern -- how would the pattern spread out?
A. In relationship to what?
Q. Distance. I mean, if you were one foot away,
two feet away, or three feet away, how wide would the pattern be from the gun? How
big around would it be? I guess an inference would be a better term.
A. Okay. Right. At one foot, if it was two
inches, just one second -- just one second. Let me calculate this out.
Q. I'm not trying to rush you, Doctor.
A. I understand. One foot -- at a foot, it would
be -- it could be as much as eight inches or so plus or minus, and at two feet,
it will get even further than that. It will go out, say, two feet or so. And
three feet, it starts to -- it's quite wide at three feet. It could be almost three
feet itself.
Q. Did you detect any evidence of any disease
that Ms. Thompson may have had? I'm not suggesting she died from it, but did
you detect any diseases she might have suffered from?
A. No, I did not.
Q. Dr. Frist, do you remember meeting with us
and our investigator, Dennis Miller, back in July 13 of this year?
A. I do recall.
Q. Do you recall us asking you if death was
instantaneous?
A. What's that?
Q. Do you recall us asking you if death was
instantaneous?
A. I don't recall exact questions we talked
about. I recall the gist of what we were talking about, I believe.
Q. Is it fair to say that the death was
instantaneous here?
A. It was quick.
Q. Is instantaneous not a correct word?
A. Well, instantaneous means immediately. At
least that's what I interpret it to mean. I believe that death was within
seconds.
Q. And that would be from either shot,
regardless of which one was first?
A. It was within seconds. But then in any
individual case, it could extend out a little bit more than that. I don't think
it extended out a significant period of time.
Q. Okay. You say it could have, but in this
case, what's your opinion of what happened?
A. Well, you can never tell. I don't -- as I
said, in each individual case, it's independent. There's no way to know. The
standard, though, with either of these gunshot wounds would mean that the
victim would be unconscious immediately and death would come quickly. It could
be a couple of seconds to a little bit more than a couple of seconds. I'm not
talking about extending it out into minutes. It's within seconds.
Q. Is there any way for the gunshot wounds and
everything that you examined to tell the height of the person that did the
shooting?
A. The height of the person who did the
shooting?
Q. Yes.
A. No.
Q. Now, in your forensic center there, how do
you dispose of the waste products, the gloves, the whatever, the gowns,
anything that may have contaminated fluids or liquids on it?
A. We have a scientific waste management program
where materials are put in a particular bag that's picked up.
Q. Okay. And who picks that up?
A. The waste management company, scientific
waste management company.
Q. How often do they pick it up?
A. I don't know how often they come a week, but I
know they come -- I don't know how often they come. They come weekly or
biweekly, and then if we're overloaded, they'll come.
Q. How do they get into the forensic center
there to get the waste products? Do they have a key or does somebody let them
in or how do they get in?
A. They don't have a key. I'm not sure who lets
them in.
Q. Okay. Do you know who's in charge of the
maintenance of that part of the building there where the forensic center's
located?
A. It's the police department, I believe.
Q. But you don't know specifically who -- which
supervisor or who?
A. No.
Q. That's all I have.
THE
COURT: Redirect?
REDIRECT
EXAMINATION
BY
MR. PORTER:
Q. Dr. Frist, were there any other autopsies of
Emogene Thompson done that week? The week of August -- of April 16, were there
any other autopsies of Emogene Thompson done during that week?
A. Not to my knowledge.
Q. Now, well let me ask you in regard to the
situation where determining the height of a person, can you describe the
dynamics of how you try and determine the position of the people from bullet
angles and whether or not it's even possible, like you see on TV?
A. What I can do is I could tell you the angle
of the muzzle to the victim, to the target. So I could tell you at what
position was the gun when it was fired, when it struck the victim, and the path
of the bullet through the body. And then from that, we could extrapolate back
sometimes the -- if we know where the victim was, how high or low the gun may
or may not have been.
Q. All right. And did you, based on your
information in this case, reach any conclusions as to the angle of the weapon
when the shots were fired that killed Emogene Thompson?
A. Yes, I did.
Q. And could you describe where you believed the
weapon to be at the time the shots were fired?
A. Yes, I can.
Q. All right. And could you do that for the jury
or do you want -- do you want to use me as the model?
A. I could use you. If you would be seated.
Possibly if we can get a chair.
[The
witness stepped down from the stand.]
[Mr.
Porter seated.]
BY
MR. PORTER:
A.
[Continuing] I believe that Ms. Thompson
was seated in the driver's seat, so we'll imagine that Mr. Porter here is Ms.
Thompson. I believe that she received two shots, and when I go through these, I
could tell you how I could extrapolate back one step more of what order they
were received. I believe she was shot first in the back of the head. And the
reason I believe that is that she was shot over here, which is right over here
on the left side in the back, and then she's found slumped to the right.
And
if you look at the car, if this person is shot, the victim would be shot, is
slumping this way, the seat is over here, so it is no longer exposing this
portion of the head to anyone who was to shoot her. So I believe that the
victim had to have the back of her head exposed to the shooter. She's seated
over here, and the car doors are over here, so that means the shooter had to be
someplace outside over here or stuck his hand inside the gun -- inside the car in
some way. But in any instance, the back of the head had to be exposed to the
shooter.
Now,
if she's found down on the side with the back of the -- against the seat, the
back of the head's no longer exposed. So, therefore, I believe that she was
shot in the back of the head first. And the way that she was shot in the back
of the head, she's shot in the back right about here, and it comes across and
exits about here. So it's going from her left side to her right side, it's
going from the back to the front, and it's pretty much flat, meaning that the
gun probably was not coming at a downward angle, and it was probably really not
at an upward angle. It was probably pretty much straight across. So the person
that shot her the first time I believe was pretty much holding the gun straight
at her at this type of an angle. With this here, the contact here, then she
falls forward so the back of the head is no longer exposed to the shooter, but
the side of her neck is.
Now,
I believe that the shooter, at that point, came and stuck the gun into a loose
contact. That means the person stuck his hand inside the gun -- inside the car
and had the barrel of the gun in contact, loosely in contact, with the skin,
and fired, that thick deposition of gunshot fire residue right there, then the
bullet came across -- it came across and it went up, but it went -- it went up
-- you've got to remember it's going up because she's down, and I'm shooting in
this direction, so it looks like it's up even though it's pretty much straight
out.
So
it's going from here, and it's coming up from the left side to the right side,
and it comes out on the right through the right eye. So I think that I could
tell you the angle of the gun, the directionality of the gun, and from this
also I could put together what I believe is an accurate which one came first,
because I don't believe that she could have been shot in the back of the head
second, because it would have to come through the seat and the seat was intact.
There
was no hole in the seat, and the back of the head is not exposed, so I believe
this was the first one and this is the -- the neck shot was the second one. And
the first one is pretty much going straight across and the other one is going
literally at this type of angle, but you can imagine that she's laying down,
that you get that type of angle. Well, you pretty just -- someone would stick
their -- stick the gun into the side of her neck. That's what I believe
happened.
Q. Thank you, Dr. Frist. Let me also ask you in
regard to the case that was discussed with Mr. Moore, and that is Defense
Exhibit Number 1, the newspaper, first of all, can you read the date of that
newspaper?
A. April 18, 1995.
Q. Do you recall the condition of the body in
the case where it was brought to you in the back of a pickup truck?
A. Yes, I do.
Q. And what was the general condition of that
body?
A. This body was starting to decompose. It
already had been decomposing, and it was as you would see -- well, you can't
see, but it's exposed to the elements, meaning it was outside and a crowd was
gathering.
Q. And so can you explain the reason why you
moved that body in the manner that's been described?
A. We moved that body to -- because we felt that
it would be best that we could work the car scene at the forensic science center
easier than there because of the temperature, the wind, the crowd, and also the
body was starting to decompose.
Q. And what was the condition of Emogene
Thompson's body?
A. She was recently shot, meaning it was -- she
was not decomposing.
Q. And to your knowledge, was there a crowd
around the scene at the Gwinnco Muffler other than police officers and
investigators?
A. No, just -- to my knowledge, it was just
investigative people.
Q. And to your knowledge, was the vehicle
documented to the extent that you were satisfied that you could reach your
conclusions from the evidence?
A. Yes.
Q. Thank you.
MR.
PORTER: That's all the questions I have.
THE
COURT: Recross?
RECROSS
EXAMINATION
BY
MR. MOORE:
Q. Dr. Frist, do you recall when you met with us
in July that we asked you about could you tell the angle of the shots and
everything, and do you recall telling us that you couldn't tell because the
person could have been leaning over to get something, you had no way of knowing
whether they were sitting upright or not in the car?
A. I don't -- well, I don't recall it in that
way, no.
Q. Okay. If the question was put to you that way
and the person wasn't sitting upright, if they were leaning over to get
something or something, would that change your testimony?
A. Repeat the question.
Q. Okay. The way it was put to you -- the way we
put it to you in July or the way you put it to us was that if a person was
leaning over, for instance, to get something, an insurance card or a driver's
license or a pocketbook or something like that, would it make a difference in
your testimony about how the shots were fired?
A. It would only make -- it wouldn't make a
difference. I believe that she received the shot in the back of the head; so,
therefore, the back of her head had to be exposed to the shooter when that
occurred. So if you're seated, you could turn your head this way and expose it,
you could lean forward and expose it, but it has to be exposed.
Q. So the angle would remain the same no matter
how it was exposed, whether you were leaning over or whether you were sitting
upright?
A. Well, you could -- the shooter could move his
hand up and down and therefore get the same angle. Now, whether he's moving
this way or back, but this portion of the head had to be exposed, and then the
way it fell, it no longer was exposed.
Q. Okay. And the way you described that, could
the person that fired the shot have been in the back seat of the car?
A. Could the person have been in the back seat
of the car?
Q. Yes, sir.
A. Possibly. Excuse me. Let me clarify to make
sure we understand each other. When you say could he have been in the back seat
of the car, could he have been in the back seat of the car when? When he
received this shot over here in the back of the head?
Q. Yes, sir.
A. Yes. The person could have been seated like
this and somebody shot him in the back of the head.
Q. Okay.
MR.
MOORE: Thank you.
THE
COURT: Any other question, Mr. Porter?
MR.
PORTER: One more.
FURTHER
REDIRECT EXAMINATION
BY
MR. PORTER:
Q. Could the person who inflicted the wound in
the neck have been in the back seat of the car?
A. He'd have to lean up, lean forward, and --
see, the second shot was a loose contact. That means that whoever did it, had
to have had his hand with the gun in contact loosely with the skin of the
victim. That means if he was leaning from the outside in or leaning from the
back seat over, but he had to have come so that he would be in a position where
he could stick that gun loosely in the skin.
Q. Thank you.
MR.
PORTER: That's all the questions I have.
THE
COURT: Mr. Moore?
MR.
MOORE: Nothing further, Your Honor.
THE
COURT: You can come down. Would you approach the bench, please?
MR.
PORTER: Your Honor, Dr. Frist, we would ask he be subject to recall. We would
ask the Court to instruct him as to the rule of sequestration as we did with
Officer Byers.
THE
COURT: All right. Dr. Frist, both sides have invoked the rule of sequestration,
and you should not discuss your testimony with respect to this case with anyone
else until such time as you come back in the courtroom. There should be no
conversation with any other witnesses. There should be no comments or
conversations with other witnesses as to any questions you've been posed or
anything that took place here in the courtroom in your examination. Do you have
any question?
THE
WITNESS: [Shaking head negatively]
THE
COURT: You're released. Thank you.
THE
WITNESS: Thank you.
[The
witness stepped down from the stand.]
THE
COURT: Would you approach the bench, please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: We've been going -- how long's your next witness going to be?
MR.
PORTER: Your Honor, we're starting into the witnesses on the roadblock. I
suspect the cross examination's going to be longer than the actual time --
THE
COURT: Okay. I kind of lost track of time. I think we've been an hour or
better, so we'll take --
MR.
PORTER: I think we've been going almost -- we started about 1:30 --
MS.
ROGAN: 1:30.
THE
COURT: Yeah. We'll take ten minutes and we'll make it a fairly short one.
MS.
ROGAN: All right.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: We're going to take ten minutes, take a short recess. Leave your pens,
pads, and notes in your seats. They'll be waiting on you when you return. Mr.
Allen, there won't -- there'll be no fetching break or anything, just a Coke
break, a short recess. We'll take ten minutes.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Mr. Porter and Mr. Moore, I've got a couple of notes I had from the
jurors from today. I'll mark them now as R-1 and R-2 for the record, and
they'll be made a part of the record. If you want to see them at the recess,
you can take a look at them.
One
of them was a request from a juror asking to see again Exhibits 6, 7, and 15,
and that's when they were being run by -- Mr. Smeal was running them by up
there. And the other was one of the jurors had requested to call her work to
pass a message on to them about her personal effects there, and that's been
done. And that will be a part of the record. If you want to see them, they're
up here. Anything else at this point,
Mr. Porter?
MR.
PORTER: Your Honor, only during the recess I'm going to dismantle the
photographs so that the court reporter has sort of a chance to catch up with me
and get them officially logged in. And I would say that as far as the board or
pins or anything, if Mr. Moore feels -- he can feel free to use any of that as
he sees fit.
THE
COURT: All right. Mr. Moore, anything else at this point?
MR.
MOORE: No, Your Honor, not at this time.
THE
COURT: We'll be in recess ten minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
DAVIS: 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
BAILIFF, MR. ALLEN: May I approach, Your Honor?
THE
COURT: Yes, sir.
[The
bailiff, Mr. Allen, presenting note to the Court.]
THE
COURT: Thank you. [To the jurors] As to the breaks, we'll try it.
JURORS:
Thank you.
THE
COURT: Okay. Who do you call next?
MR.
DAVIS: Your Honor, the state calls Mr. Ed Schmanski.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: If you'll administer the oath, please.
MR.
DAVIS: Thank you. Mr. Schmanski, if you would, please, raise your right hand.
Do you swear the evidence you shall 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,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. DAVIS:
Q. All right. For the record, please speak up,
first of all. These microphones have a little difficulty picking up a good ways
off.
A. Okay.
Q. And if you would, state your name for the
record and please spell your last name.
A. Edward Schmanski, S-c-h-m-a-n-s-k-i.
Q. All right. And what is your occupation, Mr. Schmanski?
A. I'm a manager in the trucking industry.
Q. All right. And how long have you been
employed in that regard?
A. Fifteen, twenty years.
Q. All right. You live up in the northern end of
Gwinnett County; is that correct?
A. Yes, sir.
Q. And how long have you lived up in that area?
A. About eight years.
Q. All right. Are you familiar with Peachtree
Industrial Boulevard in and around Sugar Hill, Georgia?
A. Yes, sir.
Q. And are you particularly familiar with the
Gwinnco Muffler Shop and its location on Peachtree Industrial Boulevard?
A. Yes, sir.
Q. Okay. I'd like to direct your attention to
the evening hours of Thursday, April 15, 1993. Did you have occasion to go near
Gwinnco Muffler Shop that evening after nine o'clock p.m.?
A. Yes, sir.
Q. All right. Why were you out on PIB that
night?
A. That was the night of my birthday. My little
sister was in town visiting me and we were on our way for dinner and drinks.
Q. Okay. And what's your sister's name?
A. Jennifer.
Q. And where does she live?
A. In Northern Indiana.
Q. Okay. Do you recall about what time it was
that y'all left the house?
A. Nine, 9:15.
Q. Okay. And how long would it take you -- well,
first of all, tell the jury about which route you went to get to PIB and then
down past the muffler shop.
A. I would have taken Level Creek Road to
whatever road the City Hall Sugar Hill is on to Peachtree Industrial South.
Q. How long does it take you to get basically
from your house down to where Gwinnco Muffler Shop is?
A. Maybe two minutes.
Q. Now, when you went by Gwinnco Muffler Shop
that evening, you were traveling in which direction on PIB?
A. South.
Q. All right. What if anything did you notice at
Gwinnco Muffler when you went by?
A. I saw a Gwinnett County police car sitting
there.
Q. Okay. Can you describe the car as best you
recall it?
A. It was white with a fluorescent yellow
stripe.
Q. All right. Did you notice whether or not
headlights were on on the vehicle?
A. I believe they were.
Q. All right. Were you able to see anyone in the
car?
A. I didn't notice anybody, but I didn't look
either.
Q. All right. To the best of your recollection,
where was the car located?
A. I think it was sitting in the driveway of the
muffler shop --
Q. All right.
A. -- facing the street.
Q. All right. It was facing the street?
A. Yes.
Q. All right. If you would, please, step down to
the diagram that we have down here on the easel.
[The
witness stepped to the diagram.]
BY
MR. DAVIS:
Q. The jury's already been informed that this is
a scale model of the muffler shop, the parking lot, the driveway, and the
access from the driveway onto Peachtree Industrial Boulevard. If you would,
understanding that the car itself is not to scale, please take that white car
at the bottom of the diagram and place it on the diagram where your best
recollection is you saw the police car that night.
A. There, I believe.
Q. All right. And it was facing Peachtree
Industrial Boulevard?
A. Yes, sir.
Q. All right. If you would, please resume the
stand.
A. [Witness complies]
Q. Do you recall what you thought about as you
drove by Gwinnco Muffler Shop that night and saw the police car?
A. As we drove by, my little sister made the
comment that the policeman wasn't hiding very well.
Q. Was that -- did you take that to mean
something to do with the fact that he might be out there trying to catch
speeders or that sort of thing?
A. Yes, sir.
Q. Did that enter your mind?
A. Yes, sir.
Q. Did you own a radar detector at that
time, Mr. Schmanski?
A. Yes, sir.
Q. Do you know whether or not you had the radar
detector on that night?
A. I believe it was on.
Q. All right. Do you recall getting any hit on
your radar detector?
A. No, sir.
Q. All right. And I believe you indicated you
left home somewhere between nine o'clock and 9:15?
A. Yes, sir.
Q. And it would have taken you a couple of
minutes to get by the muffler shop.
A. [Nodding affirmatively]
Q. All right.
MR.
DAVIS: That's all the questions I have.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I need to confer with --
[Pause
in proceedings during discussion held off the record among counsel.]
MR.
MOORE: I apologize to the Court and the jury for the confusion, but there were
some exhibits we had not discussed with the DA before, and I didn't want to
show them to the jury or anything until after we had had a chance to talk to
the DA.
THE
COURT: Yes, sir. Go ahead when you're ready.
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Mr. Schmanski, my name is Johnny Moore, and I
believe you and I spoke on the phone one night. You called me about a subpoena
for your sister.
A. Yes, sir.
Q. Okay. And who was driving when you were
driving on Peachtree Industrial Boulevard on the night that you and your sister
were driving there?
A. I was, sir.
Q. Okay. And could you describe the police car
that you saw for me now?
A. The best I recall it was white with a yellow
stripe going down the side.
Q. Okay. And you say a yellow stripe, was it a
small yellow stripe or a large yellow stripe or --
A. The best I recall, it was what I would
consider a large yellow stripe.
Q. Okay. Did it go the entire length of the car?
A. The best I recall, it did.
Q. Okay. And do you recall whether or not on the
-- where the back window is where there's a panel there, like between the back window
and the back windshield and the back part of the car, did it go up over that
part?
A. I don't recall.
Q. Did the car have the blue lights on or
anything?
A. No, sir.
Q. Did it have the dome lights on inside?
A. Not that I recall.
Q. Okay. Did it have headlights on?
A. I think its headlights were on.
Q. And what time was this you said you saw that
police car?
A. Nine, 9:15.
Q. Could you tell what -- who it belonged to,
what police jurisdiction?
A. It was a Gwinnett police car.
Q. A Gwinnett County police car. Was it one of
the older style ones with the square type body style or was it one of the newer
ones with the rounded body styles, more rounded?
A. I would say it was probably a older model.
Q. Okay. Do you know what I'm talking about, the
difference in how the newer ones are more aerodynamic --
A. Uh-huh [affirmative].
Q. -- and rounded than the older ones? Could you
see anyone in that car --
A. I didn't see anybody, but I didn't look
either.
Q. Were there any other vehicles there other
than -- that you observed other than the police car?
A. I recall seeing a car parked in the parking
lot, I believe, of the muffler shop.
Q. Do you remember what kind of car it was?
A. No, sir.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 2, and ask you to look at that and see if you can
pick out any car there that looks like the one you saw.
MR.
DAVIS: Your Honor, at this time, I'd ask that Mr. Moore tender that exhibit if
he's going to have the witness testify from it.
MR.
MOORE: Your Honor, we would tender Defendant's Exhibit Number 2 at this time.
THE
COURT: Is there any objection?
MR.
DAVIS: No.
THE
COURT: D-2 is admitted.
BY
MR. MOORE:
Q. Would you look at what's marked Defendant's Exhibit
Number 2 and see if any of the cars on there look like the car you saw?
A. My guess would be -- I would think 6 probably
looks most like it.
Q. Okay. Mr. Schmanski, could I get you to step
down off the stand here?
[The
witness steps down]
MR.
MOORE: Can everybody see? Okay.
BY
MR. MOORE:
Q. Would you point to the car that you selected
and which one? Tell the jury which one.
A. Number 6.
Q. Okay. You can go back up now.
A. [Witness complies]
MR.
MOORE: Could you just mark Defendant's 3.
[Defendant's
Exhibit Number 3 was marked for identification by the court reporter.]
MR.
MOORE: Your Honor, I have what's marked as Defendant's Exhibit Number 3 and
that's a scale drawing similar to the one the district attorney had. We came up
with two different ways to illustrate things here and we'd like to use this to
preserve the evidence, so we would tender Defendant's Exhibit Number 3 at this
time.
MR.
DAVIS: No objection, Your Honor.
THE
COURT: That's a scale drawing of what?
MR.
MOORE: It's very similar to the one the district attorney's using, Your Honor.
We just came up with a little bit different way.
THE
COURT: Okay.
MR.
MOORE: We've got a plastic overlay where the witness can mark it on there and
initial it and then preserve it for later use for whatever purpose it might be.
THE
COURT: All right. Any objection?
MR.
DAVIS: No, sir.
THE
COURT: It's admitted. Defendant's 3 is admitted.
MR.
PORTER: Your Honor, the state at this time is not stipulating to the admission
to go out with the jury of the markings made by the witnesses. I don't believe
that that's admissible.
THE
COURT: Now, say that again.
MR.
PORTER: We'll stipulate that the diagram is a true and correct diagram of
Gwinnett Gwinnco Muffler --
THE
COURT: You don't object to D-3 as it stands at this point?
MR.
PORTER: As it stands, but once it's been marked up by the witnesses, I'm not
sure it's admissible under Georgia law as a piece of evidence to go out with
the jury.
THE
COURT: Mr. Moore?
MR.
MOORE: Well, Your Honor, we'd ask that we be allowed to have a witness, if they
can, mark it and then we can take that up later whether or not it will go out
with the jury.
THE
COURT: I'm inclined to agree. We'll see where we are at that point. At this
point, D-3 as it stands at this point, is admitted. Go ahead, please.
BY
MR. MOORE:
Q. Mr. Schmanski, could I get you to come down
again?
A. [Stepping down] Yes, sir.
Q. And I realize you're not an artist, but could
you to the best of your ability mark on that plastic overlay where the vehicle
was in the driveway? Would it be better if I turned it the other way for you?
A. No, I'm fine.
Q. Okay.
A. The best I recall, it was in this area.
Q. And just mark where the car was. Could you
put an arrow or something which way it was facing, like a point or something?
A. [Witness complies]
Q. And that's where you recall the car being?
A. Yes, sir.
Q. And the car was facing toward the road?
A. Yes, sir.
Q. And could you put your initials and the date
on there, please.
A. [Witness complies]
Q. Now, is there anything else you remember
about that evening, Mr. Schmanski, that might be helpful to the jury or helpful
to us in determining what took place there?
A. [Stepping back to the stand] That's about it.
Q. Okay. That's all I have, Mr. Schmanski.
THE
COURT: Redirect?
MR.
DAVIS: No questions, Your Honor.
THE
COURT: You can come down. Call your next witness.
[The
witness stepped down from the stand.]
MR.
DAVIS: The state calls Ms. Maryann Johnsa. Your Honor, may Mr. Schmanski be
excused?
THE
COURT: You mean released altogether?
MR.
DAVIS: Yes, sir.
THE
COURT: Any objection, Mr. Moore, of
Mr. Schmanski being released?
MR.
MOORE: Your Honor, we'd ask that, if necessary, I don't think it would be
necessary, but if he could be called back if we need him. We'd give him like a
day's notice or something if we needed him for anything. Would that be
agreeable, Mr. Schmanski?
THE
WITNESS: Yes, sir.
MR.
MOORE: Okay.
THE
COURT: All right. All right. You're free to go at this time, Mr. Schmanski.
[The
witness, Mr. Schmanski, exited the courtroom.]
[The
witness, Ms. Johnsa, was called to the courtroom and stepped to the witness
stand.]
MR.
DAVIS: Good afternoon, Ms. Johnsa. Please raise your right hand. Do you swear
that the evidence you shall give in this case now pending, shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I swear.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. DAVIS:
Q. All right. Please state your full name.
A. Maryann Johnsa.
Q. And please spell your last name.
A. J-o-h-n-s-a.
Q. All right. Ms. Johnsa, where are you employed?
A. At Kimberly-Clark Corporation in Roswell.
Q. And how long have you worked there?
A. Since 1980.
Q. All right. Do you live up in the northern end
of Gwinnett County, up in that direction?
A. Yes, sir.
Q. How long have you lived up in that area?
A. Since 1981.
Q. Okay. Are you familiar with Peachtree
Industrial Boulevard in the area in and around Sugar Hill?
A. Yes.
Q. And are you familiar with the location of the
Gwinnco Muffler Shop up there on Peachtree Industrial Boulevard?
A. Yes.
Q. I'd like to direct your attention to the
evening hours of Thursday, April 15, 1993.
THE
COURT: Let me ask you, did you administer the oath? I did not note it.
MR.
DAVIS: Yes, sir.
THE
COURT: Okay. Thank you. Go ahead.
BY
MR. DAVIS:
Q. Were you near the muffler shop that evening
after nine o'clock p.m.?
A. Yes, I was.
Q. All right. If you would, please turn and tell
the jury why you were on PIB that night at around that time.
A. Okay. I attend the Kingdom Hall of Jehovah's
Witnesses on Thursday nights for the ministry school and I always come through
that direction and our meetings end at 9:15 and -- so I usually take that
direction back home.
Q. Okay. Do you recall about what time it was
you went by the muffler shop?
A. I got out of there quite early because we had
my grandson with me and he was getting tired, so we left about 9:20 or so or
9:25, and I know when I got home it was 9:35. I have a habit of looking at what
time it is when I come in the house. And so when we went past the Gwinnco
Muffler place, it was about 9:30 or somewhere in through there.
Q. All right. Who was with you in the car?
A. I had my daughter, Stacy Turner, I had my
son, Sean Charles, and my grandson, Tyler Turner.
Q. Okay. And who was driving?
A. My daughter was driving, which I usually don't
let her do, but I let her drive that night.
Q. Did you see anything when you approached
Gwinnco Muffler that evening?
A. Yes. I saw a police car in the driveway of
the Gwinnco Muffler establishment, and he was facing toward Peachtree
Industrial.
Q. Do you recall what color the car was?
A. It was white.
Q. All right. Do you recall anything else about
the physical characteristics of the car?
A. It had markings on it similar to what a lot
of the Gwinnett County police cars have. They have like a decal that goes
across so that you can kind of see it shining it. I mean, you can see it a
little ways away. It's almost fluorescent.
Q. All right. Do you recall whether or not the
headlights were on in the vehicle?
A. The headlights were on on the car.
Q. All right. Did you note -- were you in a
position to notice or did you notice whether or not there was anybody inside
that police car as you went by?
A. Yes, there was a person in there.
Q. All right. Could you say whether it was a
male or a female?
A. It appeared to be a male, but I did not look
closely.
Q. All right. Did you notice any other vehicles
around?
A. No.
Q. All right. Thank you. That's all the
questions I have.
THE
COURT: Mr. Moore?
MR.
MOORE: Ms. Rogan's going to handle it.
THE
COURT: All right. Ms. Rogan?
CROSS
EXAMINATION
BY
MS. ROGAN:
Q. Hello, Ms. Johnsa. My name is Elizabeth Rogan
and I'm one of Mr. Chapel's attorneys. You said that you could see somebody
inside the car and it appeared to be a male?
A. Yes.
Q. Could you determine anything else about the
person inside the car?
A. No, I could not. I did not look straight at
the car.
Q. Okay. You say you couldn't tell what the
person was wearing?
A. No.
Q. Could you tell if the person had a uniform on
or not?
A. No.
Q. And this was around 9:30 in the evening. That
was a rainy evening, if you recall, or was it?
A. I do not recall. I really don't recall
whether it was rainy or dry that night.
Q. Okay. It was dark out, though?
A. Yes, it was.
Q. Was it dark around the area of Gwinnco
Muffler?
A. There's lighting up along the building
itself, so it tends to highlight the driveway to some degree, so there is --
there's shadows and there is some light.
Q. Okay. I'm going to direct your attention to a
diagram --
MS.
ROGAN: Can we move this up? I don't need help.
MR.
MOORE: Where do you want it?
MS.
ROGAN: Well, up closer to the jury so they can see, too.
BY
MS. ROGAN:
Q. Ms. Johnsa, would you mind stepping down from
the stand for just a moment?
A. [Witness complies]
Q. Is this a diagram of the area that we're
discussing, the area near Gwinnco Muffler?
A. Yes.
Q. So when you say there's light near the
building, you're referring to the Gwinnco Muffler Shop here?
A. Yes. There is lighting on this side of the
pavement. That's the way it appears to me. It might be even up in here, but it
lights up this whole front side.
Q. Okay. To your knowledge, is there any
lighting down on the roadway itself? Are there any streetlights in that
particular area of Peachtree Industrial Boulevard?
A. Down toward -- there's another establishment,
business establishment, and there's lighting down through there, and I know
there's more lighting as you come up toward this way, but I don't believe
there's anything -- but I don't recall if there's anything directly across the
road or not.
Q. Okay. And for the record, you were indicating
that further toward the southern direction, so you go this --
A. Uh-huh [affirmative].
Q. -- going north --
A. Uh-huh [affirmative].
Q. -- further toward the southern direction away
from Gwinnco is where there's some lighting?
A. Right.
Q. And then --
A. And then north of that.
Q. -- further north of it. All right. If you
would, Ms. Johnsa, would you take this marker and mark on this diagram where it
was you saw the police car when you drove by that night?
A. Right there.
Q. Okay. And if you would just put your initials
and the date here.
A. The 22nd?
Q. That's right. Okay. Thank you. You can resume
the stand.
[The
witness returned to the stand.]
BY
MS. ROGAN:
Q. Was the police car facing PIB or was it facing
the Gwinnco Muffler Shop?
A. It was pointed toward Peachtree Industrial.
Q. Okay. And I think you indicated on direct
examination the headlights were on?
A. They were on.
Q. Now, did this car have blue lights on the
roof; do you recall?
A. I didn't notice.
Q. Okay. So you can't tell us what kind of blue
lights they were, if there were any?
A. No.
Q. And you're aware that different police cars
have different types of blue lights?
A. No, I guess I didn't. I wasn't aware of that
either.
Q. Some have a bar?
A. Okay.
Q. Are you familiar with the bar --
A. Yeah.
Q. -- blue lights, and then some have a bubble
at the top?
A. Okay. Yes.
Q. But you're not able to tell us --
A. I was not able to see it, no.
Q. -- which one this particular car had? Were
the blue lights illuminated that night or activated?
A. No, obviously not. Otherwise, I think I would
have recognized them.
Q. Okay. I'm going to ask you to look at another
series of pictures. Could you tell us --
THE
COURT: Which exhibit is that?
MS.
ROGAN: I'm sorry, Your Honor. It's Exhibit D-2.
THE
COURT: All right.
BY
MS. ROGAN:
Q. I'd like you to take a look at these
photographs and pick out, if you would for us, please, which car most resembles
the car that you saw that night?
A. And I'm not sure on this because I just
remember that -- I just know it had the markings. Do I have to choose one?
Q. If you can.
A. I don't know that I can. I really can't
because I read in my statement and I had thought that it was the gold, the one
that has that gold, bold gold coloring --
Q. And which one in here resembles that?
A. Number 6. And somehow that got fixed in my
mind, but what I had said in my statement originally, which was taken a week
after I'd seen the car, is that they were trying to ask me if I recognize any
cars, and I told them I said, 'Well, I remember you had some of the older ones
with the gold on it,' and I said, 'But I know it looked more like one of the
newer ones.' So it would have been one of those with the blue with the gold striping
on it. But as to which one it would be actually, I could not tell you.
Q. Your statement you referred to, you gave to
the police just a day or two after you were driving by, do you recall that -- A. It
was the following week, because we were coming back again from the Kingdom Hall
Thursday evening, but we had left around nine o'clock and they had a roadblock
set up. And it was at that time that they had asked if we had seen anything,
and then they asked if we could take statements.
Q. It was on April 22 of 1993?
A. It would have been one week later. Yeah, so
if it was the 15th, it had to be the 22nd.
Q. Okay. All right. And do you recall at that
time that you described the car as having the yellow gold striping that shows
up when it's fluorescent?
A. Yeah. I had said that it was -- it was
similar to -- it was like a V-shape is what I was thinking it was. I know
that's the way decals ran, and when I see a Gwinnett County police car, that's
usually what I see is that insignia. And I know I had mentioned that in my
statement that I remember that they had the older cars that had all the gold. I
think they probably even had a couple more on there like number 6 on that
exhibit. And other than being white and having that decal, that's the only
thing that I could trace it back to being a Gwinnett County police car.
Q. Okay. But you do remember the V-shape colored
--
A. I know that it -- I know it went back. I know
it went back. And I know on my statement I had said it looked like it was like
a V-shape on there.
Q. Did you have a chance to review your
statement before you testified?
A. Yes, I looked at it.
Q. And when the officers were interviewing you,
I believe you were interviewed by Sergeant Cline --
A. Yes.
Q. -- of the Gwinnett County police department
and he interviewed you right at the scene of the roadblock; isn't that correct?
A. Yes.
Q. And the roadblock was being conducted by
other Gwinnett County police officers?
A. Yes.
Q. And he had you look at other police cars that
were there at the scene that night and asked you if you recognized -- if the
car looked like one of those cars?
A. That's right.
Q. Okay. Do you recall, Ms. Johnsa, speaking to
Dennis Miller --
A. Yes.
Q. -- an investigator for Mr. Chapel?
A. Yes.
Q. And that was on August 9, 1995?
A. Right.
MS.
ROGAN: I'd like to have this marked as a Defendant's Exhibit Number 3, 4 --
Defendant's Exhibit 4.
[Defendant's
exhibit was marked for identification by the court reporter.]
MR.
DAVIS: Your Honor, may we approach?
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
DAVIS: This exhibit that she proposes to show the witness involves hearsay
statements made back on August 9 by this person. We don't know the conditions
under which the statement was made or who was present at this point in time.
I'm assuming Mr. Miller had something to do with it based on the preparatory
question.
THE
COURT: May I see the statement?
MS.
ROGAN: Certainly.
MR.
MOORE: That was copied from the one the police department uses, the language
and everything.
MS.
ROGAN: She's here to testify, Your Honor.
MR.
PORTER: Your Honor, she can identify it, but I'm not sure she can go into the
contents.
MR.
MOORE: She can ask if she remembers it, if it refreshes her memory.
MR.
PORTER: I don't think the foundation can be laid to properly admit a lineup
document without the person who presented it because it's the same
circumstances that we're under as far as any suggestibility to the witnesses,
and I don't think they've laid the foundation.
THE
COURT: I'm not sure I understand. What is your objection?
MR.
DAVIS: There's no foundation laid at this point in time.
THE
COURT: Well, let me ask, first, where are we going and what's your question?
What's the purpose of the statement?
MS.
ROGAN: I want to ask if she picked number 6 when Mr. Miller showed her the
photographs, these photographs, back on August 9 of this year.
THE
COURT: Number 6. What number 6 is that?
MS.
ROGAN: That's one of the vehicles in the photo array.
THE
COURT: Okay. That's the -- okay. So she stated to Mr. Miller she picked out
number 6 and --
MS.
ROGAN: That's correct.
THE
COURT: -- Defendant's --
MS.
ROGAN: Defendant's 2.
THE
COURT: -- 2.
MS.
ROGAN: Uh-huh.
THE
COURT: Okay. So what's your objection?
MR.
DAVIS: She needs to ask her that before she starts showing her documents trying
to refresh her recollection, first of all, if that's what she's going to do.
Secondly, under the circumstances we have here --
THE
COURT: This is a prior inconsistent statement for impeachment, is that where
we're going?
MS.
ROGAN: Yes. Well, at this point, she said she doesn't remember what the car
looked like.
THE
COURT: Okay.
MR.
PORTER: Your Honor, there's two things and this is what brings us to the
objection. She's acknowledged that she made a prior statement. She's also
indicated to us in our witness interviews that when she was shown the statement
by Mr. Miller, she was only shown two pages of the statement and none of them
contained her description of the vehicle, so I think the circumstances under
which the document was signed lead us to object to its admission at this time
for impeachment of this witness.
THE
COURT: Well, I don't think -- the document itself is not coming in --
MR.
PORTER: Your Honor --
THE
COURT: -- to go out, I don't think, but I think that if this is a prior
inconsistent statement, then insofar as its use in cross-examining her and did
she make that statement and is it consistent, I mean, that's the essence of
where you want to go, is it not?
MS.
ROGAN: Right. Right.
THE
COURT: I mean, what's the objection to that?
MR.
DAVIS: Well, she's not properly trying to impeach with a prior inconsistent
statement, first of all.
MR.
PORTER: There has been no prior inconsistent statement at this time.
MS.
ROGAN: Well, I haven't asked her yet what she said to Mr. Miller.
THE
COURT: Okay. Well, she's picked out number 6 again; right?
MS.
ROGAN: She said that was the one that looked the most like it.
THE
COURT: Well, I mean that's what the affidavit says, number 6, and she said on
the stand number 6, didn't she?
MR.
PORTER: She said she couldn't --
MS.
ROGAN: She said she wasn't sure.
THE
COURT: Oh, okay. This was when she
couldn't --
MS.
ROGAN: Yeah, she wasn't really sure.
THE
COURT: Okay. Okay.
MS.
ROGAN: So I want to establish that she did the previous time indicate that it
was number 6.
THE
COURT: Well, why is that not inconsistent, if she says, 'now I don't know'?
MR.
PORTER: We haven't got there. She hasn't said. She hasn't picked it out. She
acknowledges prior she picked out number 6.
MR.
DAVIS: And the document doesn't --
MS.
ROGAN: I don't need the document, then.
THE
COURT: Oh, okay.
MS.
ROGAN: That's fine.
THE
COURT: Okay.
MR.
PORTER: But our objection is that she can't go into the contents of the
document without tendering it. Our objection is it's improper foundation at
this point.
THE
COURT: Nothing to impeach at this point; is that what you're saying?
MR.
PORTER: Nothing to impeach, number one. Number two --
MR.
DAVIS: It's an improper foundation for this document itself.
MR.
PORTER: We think the defense, in order to bring in a lineup affidavit, is under
the same restrictions regarding suggestibility as to the prosecution, and we
want to inquire into that because we have information that Mr. Miller didn't
show this witness her entire statement when she was interviewed by the defense.
You know, if people want to talk about suspicious circumstances, the two pages
that she wasn't shown -- she wasn't shown the two that contained --
THE
COURT: Well, where are we going? I mean, it seems to me that part of it is that
objections are anticipated where we're going with the examination. What do you
intend to ask her?
MS.
ROGAN: I just want to ascertain whether or not she picked out number 6 when she
was shown the photographs. The statement's irrelevant.
MR.
DAVIS: And my original objection is to her doing that with the document if what
she thinks she's doing is trying to impeach somebody.
MS.
ROGAN: I'll just ask her.
MR.
DAVIS: A prior inconsistent -- in a prior inconsistent statement, she's got to
get the prior statement first.
MS.
ROGAN: I've just not made the point yet.
THE
COURT: All right. Why don't you do that?
MS.
ROGAN: That's what I need to do --
THE
COURT: All right.
MS.
ROGAN: -- and then if I need the statement, I'll -- we'll jump off that bridge.
THE
COURT: All right. That'll be fine.
MS.
ROGAN: Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, please.
MS.
ROGAN: All right.
BY
MS. ROGAN:
Q. Sorry about that, Ms. Johnsa. Do you remember
speaking to Mr. Miller --
A. Yes, I do.
Q. -- on August 9, 1995? And did Mr. Miller show
you the same series of photographs that you just looked at here in court?
A. Yes, he did.
Q. And did you select one of those photographs
as being similar or appearing to be the same type of car that you had observed
that night?
A. I picked out what, at that point in my mind,
was the one I was trying to remember, yes.
Q. And what -- which photograph was that?
A. I chose number 6, the one that has the all
gold stripe on it.
Q. Okay. That's fine. That's all I need to ask
you.
THE
COURT: Redirect?
REDIRECT
EXAMINATION
BY
MR. DAVIS:
Q. Ms. Johnsa, at the time that you were shown
the several photographs of the cars by Mr. Miller --
A. Uh-huh [affirmative].
Q. -- did Mr. Miller also give you a copy or let
you read the written statement that you had prepared or the interview that you
had done back on April 22?
A. He had asked me if I had seen my statement,
and I had said no. He says, 'Well, I have a copy if you want to look at it,'
and it was a two-page document.
Q. All right.
A. And at the time, I thought I had said more.
Q. All right. What he showed you had how many
pages?
A. Two pages.
Q. Since that time, have you seen the complete
transcript of your interview with Investigator Cline?
A. Yes, it was a four-page transcript.
Q. Thank you.
MR.
DAVIS: No further questions.
THE
COURT: Recross?
MS.
ROGAN: Yes, just briefly.
RECROSS
EXAMINATION
BY
MS. ROGAN:
Q. Having reviewed the entire four pages of that
statement, is there anything that changes your memory of what the car looked
like that you picked out?
A. Yeah, it did, because somehow I had -- and I
had to go with what was on my statement, which was only one week after that had
happened. And for whatever reason, I kept thinking of that insignia as a
lightning bolt is the only way I could explain it to anyone I was talking with.
But after I read my transcript, I'm going, 'I'm all wrong.' My transcript says,
and it was taken one week after, that I said, 'You guys used to have those old
-- those gold ones, but I now know you have the newer ones.' I was trying to --
I could not think at the time that it was a decal. I was tongue-tied, and I
could not think of what to call it; and, of course, you know, no one's going to
help you at that point when you're giving your statement.
And
so that's how I got into my mind about the gold one. I says, 'It had gold on it
as it kind of veers back.' I says, 'That's how I recognize it because of that decal
itself, not necessarily the color, but it was the decal itself and how it goes
across, and that's how I recognize it's a Gwinnett County police car.'
And
when I had made my statement or chose number 6, I had not read that in my
transcript, that that is what I had said, and so I chose the one that was still
locked in my memory as gold. And then after I read my transcript, which was
just before I came in, I'm going, 'It's all wrong.' And I know that you guys
have that on record that that's what I had chose, but I was not aware.
Q. The second two pages of your statement where
you refer to the police used to have the gold ones --
A. Right.
Q. -- is followed by Sergeant Cline pointing out
to you a Gwinnett County police car that I believe you -- did you identify it
as a '91 Ford or a Ford? He was pointing to a car and said, 'Is that what it
looks like?'
A. I said I wasn't sure. I said yeah. I says it
looks almost like that one. And, of course, in the transcript, that doesn't
give you much of a -- I mean, we're not having a car sitting here, so he
pointed to one and I said, 'Yeah, it looks something similar to that.' I says,
'I don't know. What is it? A Chevy or a Ford? I'm not good on cars.' But at
that time, it was not one, if I remember, it was not one that had the gold
decal on it.
Q. That's -- okay. So the car he was pointing
out to you was not one that had the gold decal on it?
A. Right. Because they didn't have any of those
sitting there. All I know is I was looking for that insignia, not necessarily
the gold one.
Q. Okay.
That's it. Thank you, Ms. Johnsa.
A. Okay.
MS.
ROGAN: Before Ms. Johnsa's excused, I'd like to have this overlay marked as
Defendant's Exhibit 5 and tendered into evidence.
THE
COURT: Okay. That's the overlay from the prior witness?
MS.
ROGAN: No. This is Ms. Johnsa's overlay.
THE
COURT: Okay. Any objection?
MR.
DAVIS: No, Your Honor.
MR.
PORTER: Your Honor, we would object to it. It's not admissible to go out with
the jury.
THE
COURT: Turn it around so I can see it, please.
MR.
PORTER: It is a silent witness.
THE
COURT: Well, we'll come back -- we'll revisit that. You're offering --
MS.
ROGAN: I'd like to have it marked at least while she's still here.
THE
COURT: All right. Mark it as an exhibit while she's still here.
[Defendant's
Exhibit Number 5 was marked for identification by the court reporter.]
THE
COURT: It's admitted. What goes out with the jury or does not go out, we'll
take up at the conclusion of the case.
MS.
ROGAN: That's fine.
THE
COURT: What is that? What number is that?
MS.
ROGAN: That's D-5, Your Honor. That's all I have.
MR.
DAVIS: No redirect, Your Honor, and we'd ask that Ms. Johnsa be excused.
THE
COURT: Just a moment. Was D-4 tendered? That was not, I believe. D-5 is
admitted.
MS.
ROGAN: Let me see. No, D-4 was not tendered, Your Honor.
THE
COURT: All right. D-5 is admitted over objection. You wish her on call?
MR.
DAVIS: Yes, sir.
THE
COURT: All right. You can come down.
THE
WITNESS: Okay.
[The
witness stepped down from the stand and was excused.]
THE
COURT: Call your next witness, please.
MR.
DAVIS: The state calls Stacy Turner.
[The
witness was called to the courtroom.]
THE
COURT: Ms. Turner, if you'll take the stand up here, and Mr. Davis, if you'll
administer the oath.
[The
witness stepped to the stand.]
MR.
DAVIS: Thank you, Your Honor. Ms. Turner, if you will, please, raise your
right. Do you swear the evidence you shall give in this matter now pending,
shall be the truth, the whole truth, and nothing but the truth, so help you
God?
THE
WITNESS: Yes, I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. DAVIS:
Q. All right. Please state your full name.
A. Stacy Janet Turner.
Q. And where are you employed?
A. Nation's Bank, the one in Buford, the one at
Buford Mall.
Q. All right. How long have you been working
there?
A. Since August 1993.
Q. Okay. You live up in the northern end of
Gwinnett County?
A. Right.
Q. And for how long have you lived up there?
A. Probably at least eleven years.
Q. Okay. Are you familiar with Peachtree
Industrial Boulevard in the Sugar Hill, Georgia, area?
A. Yes, I am.
Q. All right. And are you familiar with the
location of the Gwinnco Muffler Shop on Peachtree Industrial Boulevard?
A. Yes, I am.
Q. All right. Ms. Turner, I'd like to direct
your attention to the evening hours of Thursday, April 15, 1993. Did you have
occasion to go by Gwinnco Muffler Shop sometime after nine o'clock p.m. that
evening?
A. Yes. We were leaving this church, what's
known as the Kingdom Hall, and we were coming back, and we were on our way
home. My son was not feeling real well, so we left a little bit early. It was
probably around ten after nine.
Q. Okay. Do you recall about what time it was
when you went by the muffler shop itself?
A. Probably around 9:20, 9:25.
Q. All right. Who was in the car with you?
A. Myself, my mother, my brother, and my oldest
son.
Q. And who was driving?
A. I was.
Q. All right. Did you see anything when you
approached the muffler shop?
A. Yes. There was a Gwinnett County police car
sitting in the driveway.
Q. And in what direction was the car facing in?
A. It was facing Peachtree Industrial.
Q. Did you notice whether or not the headlights
were on in the vehicle?
A. The headlights were on.
Q. All right. How about the interior car lights,
the dome lights?
A. The dome light was on, too.
Q. All right. Were you able to see an occupant
in the police car?
A. Yes.
Q. All right. If you would, please describe for
the jury what that person looked like?
A. All I could distinguish is that he was male
and had darker hair. That's all that I noticed.
Q. Okay. Do you recall where in the car the
person was?
A. Driver's side.
Q. All right. Seated behind the driver's wheel?
A. Uh-huh [affirmative].
Q. Okay. Now, describe the car as best you can.
A. Rectangular shape. It was mostly white, had
blue and yellow reflective decals on it.
Q. Okay. Could I ask you to step down here with
me just a second?
A. Uh-huh. [Witness complies]
Q. We have here a scale diagram of the muffler
shop along with this parking lot and this driveway where they attach to
Peachtree Industrial Boulevard. I'd like for you, if you could, please, to take
this white car, this car which is not to scale, and place it in the driveway as
best you can in the location where you saw the police car that night.
A. Right there.
Q. All right. And you've placed it once again
with the headlights facing towards Peachtree Industrial Boulevard?
A. Right.
Q. Is that the position and attitude the car was
in that night?
A. Right.
Q. All right. If you'll please return to the
witness stand.
A. [Witness complies]
Q. How long did it take you to get ready to
leave once you decided to leave the church service?
A. Probably at least five minutes, maybe ten.
Q. All right. And how about long to drive from
the Kingdom Hall over to the muffler shop?
A. Once we actually leave the parking lot there,
around ten minutes.
Q. Okay. And y'all were going northbound at the
time; is that correct?
A. Right.
Q. All right.
MR.
DAVIS: That's all the questions I have.
THE
COURT: Cross?
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Ms. Turner, my name is Johnny Moore, and I
have a few questions to ask you, too. You had -- on August 9 of this year, you
met with Dennis Miller, our investigator; is that correct?
A. Right.
Q. And I'm going to show you what's been marked
as Defendant's Exhibit Number 2 and ask you if you'd look at it, and ask you if
you recognize that?
A. Yes, I do.
Q. At the time Mr. Miller showed you that, you
were unsure of which car on that photographic lineup most matched the vehicle
you observed; is that correct?
A. Yes, that's correct.
Q. Okay. Did you pick out any as being similar?
A. I said 6 or 12 was similar.
Q. Okay. Could you just step down here --
A. Sure.
Q. -- and show the jury which two you picked.
A. [Witness complies] This is 6 and 12.
Q. You'd better stand over there so everybody
can see it.
A. And I remember the rectangular shape of the
car. Most of the rest of these were rounded.
Q. So it's number 6 and number 12?
A. Uh-huh [affirmative].
Q. Thank you.
A. You're welcome. [Returning to the stand]
Q. Ms. Turner, I'm sorry, I should have told you
to just stay down here, but could I get you to step back down here again,
please?
A. Uh-huh. [Complies]
Q. I'm asking you to look at Defendant's Exhibit
Number 3. Could you take this marker and mark it the best you can where the car
was and which way it was facing that you saw this vehicle?
A. This was facing -- [marking diagram] -- I put
the arrow as showing -- it was facing that way.
Q. Okay. And could you put your initials and the
date on there, please, somewhere in the corner?
A. [Witness complies and returns to the stand.]
MR.
MOORE: Your Honor, I'd like to get marked at this time, the overlay on top.
This is Defendant's Exhibit Number 6.
[Defendant's
exhibit was marked for identification by the court reporter.]
MR.
MOORE: Your Honor, we would tender the plastic overlay that the witness
initialed. It's marked Defendant's Exhibit Number 6 that she marked as where
the car was.
MR.
DAVIS: Your Honor, we make the same objection we made with defendant's exhibit
with respect to Number 5. It's demonstrative evidence not to go with the jury.
THE
COURT: It's admitted over objection. We'll revisit the area of what goes out
with the jury at the conclusion of the case with respect to all the evidence.
BY
MR. MOORE:
Q. Now, Ms. Turner, I believe in your statement
to the police, you said it didn't seem out of the ordinary to see a police car
parked there; is that correct?
A. That's correct.
Q. Could you tell the jury why?
A. I went to high school at North Gwinnett, and
I had frequently traveled that road in the morning and afternoon on my way to
school, and my husband currently lives out at the lake, so I traveled Peachtree
Industrial quite a lot, and I'd seen police cars parked at numerous spots up
and down Peachtree Industrial.
Q. Okay. And before Mr. Miller interviewed you,
you'd been interviewed by a representative of the district attorney's office,
hadn't you?
A. Yes.
Q. And you'd had an opportunity to review your
statements?
A. Uh-huh [affirmative].
Q. Okay.
MR.
MOORE: That's all I have. Thank you.
MR.
DAVIS: I have nothing further, Your Honor.
THE
COURT: You wish her to remain on call?
MR.
DAVIS: On call, but excused.
THE
COURT: All right. You can come down. Call your next witness, please.
[The
witness stepped down from the stand.]
MR.
DAVIS: The state calls Sean Charles.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Charles, if you'll take the witness stand up here.
[The
witness stepped to the stand.]
THE
COURT: You can be seated, and Mr. Davis, if you'll administer the oath, please.
MR.
DAVIS: Yes, sir. Mr. Charles, if you would, please, raise your right. Do you
swear the evidence you shall 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.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. DAVIS:
Q. All right. I'm going to ask you to, first of
all, relax. Okay? Secondly, kind of speak up a little bit so everybody down
here at the far end of the box can hear you. All right?
A. Okay.
Q. Please state your full name.
A. Sean Eric Charles.
Q. All right. Mr. Charles, how are you employed
currently?
THE
COURT: Let me ask, can all the jurors see the witness stand?
[Pause]
THE
COURT: Okay. Go ahead, please.
BY
MR. DAVIS:
Q. Mr. Charles, how are you employed?
A. I'm employed at Born Printing. It's in
Suwanee. I'm a graphic designer.
Q. And how long have you been working there?
A. Five years.
Q. Okay. You live in the northern end of
Gwinnett County; is that correct?
A. Right.
Q. Up in the Sugar Hill area, generally?
A. Right.
Q. How long have you lived up that way?
A. About ten years.
Q. All right. Are you familiar with Peachtree
Industrial Boulevard in the Sugar Hill area?
A. Yes.
Q. All right. And are you familiar with the
location of the Gwinnco Muffler Shop on Peachtree Industrial Boulevard?
A. Yes.
Q. All right. I want to direct your attention
specifically to the evening hours of Thursday, April 15, 1993. Were you near
the Gwinnco Muffler Shop that evening after nine o'clock?
A. Yes.
Q. All right. First of all, I'd like for you to
turn and tell the jury why you were in that area.
A. It was about 9:30, and I was headed home with
my family from the Kingdom Hall. I was not driving. My mom was driving -- or my
sister was driving, my mom was the passenger, and I was in the back seat,
heading northbound on Peachtree Industrial.
Q. Okay. When you came by the Gwinnco Muffler
Shop, did you see anything there?
A. Yes. I saw a --
Q. Tell the jury what you saw.
A. I saw a -- it was a Gwinnett County police
car. I recognized the emblem. It was an older style. It was more squared off
than -- opposed to the newer rounded style. The interior light was on in the
car, and I could see that there was a white male with dark-colored hair, and he
was motionless. He was just looking down and not looking at the road.
Q. Where was he in the car?
A. He was in the driver's side.
Q. Okay. Where was the car physically located?
A. It was -- it was facing the road, and it was
parked into a spot -- and there's like a lawn, a grass part, and there's a
parking lot, and then there's the drive, and he was, you know, not on the
drive, but in the parking lot.
Q. Okay. Now, what time was it you said you came
by there?
A. It was between 9:30 and 9:40.
Q. All right.
MR.
DAVIS: That's all the questions I have. Thank you.
THE
WITNESS: Okay.
THE
COURT: Cross?
CROSS
EXAMINATION
BY
MR. MOORE:
Q. Mr. Charles, my name is Johnny Moore. We just
want to ask you a few questions here about what you remember about that night.
Now, you described the car as an older squared-style; is that correct?
A. Yeah.
Q. Okay. Now, did our investigator, Dennis
Miller, meet with you on August 9, 1995?
A. Yes, he did.
Q. And did he show you a group of cars at that
time?
A. Yeah.
Q. Mounted on a board?
A. Uh-huh [affirmative].
Q. Okay. And were you able to pick a car that
was similar or looked like the one you saw?
A. Yeah. It was a choice between two of them.
Q. Okay. If I showed you what's been marked as Defendant's
Exhibit Number 2, could you look at it and tell us if you recognize that?
A. You want me to pick one of them or just tell
you which one?
Q. Well, if you can pick one.
A. Okay.
Q. I'm not telling you you have to, but if you
can pick one, if you'll tell us which ones, if any of them, look like it.
A. Okay. Number 12.
Q. Okay. Could I get you to step down here and
point to the jury which one, where they can see it? Can you step down?
A. [Witness complies]
Q. Would you show them number 12?
A. Uh-huh. [Indicating]
[The
witness returned to the stand.]
BY
MR. MOORE:
Q. And which way did you say that car was
facing?
A. It was facing toward the street.
Q. Were the blue lights on or anything?
A. No.
Q. Okay. What about the headlights?
A. No.
Q. Mr. Charles, if I could get you to step down
again and just mark for us on this -- what's been marked Defendant's Exhibit
Number 3.
A. [Witness steps down]
Q. If you could mark for us where the car you
saw was with a magic marker and which way it was facing.
A. You want me to just put an arrow?
Q. Well, if you like, a box or some kind of the
shape of a car. I know you're not an artist, but --
A. Okay. [Marking diagram]
Q. And if you would, put your initials up here
somewhere and the date.
A. What's --
Q. Today's date.
A. What's today? The --
Q. August 22.
A. 22nd. [Marking diagram and stepping back to
the stand.]
MR.
MOORE: And I'd like to get the plastic overlay that was just marked as
Defendant's Exhibit Number 7.
[Defendant's
exhibit was marked for identification by the court reporter.]
MR.
MOORE: Your Honor, we would tender Defendant's Exhibit Number 7, which was
marked by the witness, the plastic overlay over the scale drawing.
THE
COURT: Any objection?
MR.
DAVIS: Your Honor, I'd make the same objection we've made previously,
understanding the Court's going to rule on those later.
THE
COURT: All right. It's admitted over objection.
BY
MR. MOORE:
Q. Mr. Charles, was there anything else that you
observed about the car that night that would help the jury in any respect?
A. No. I didn't get a real good look at the car
because of the speed we were traveling, but as soon as I noticed the interior
light was on, that's where my attention was at.
MR.
MOORE: That's all I have. Thank you.
MR.
DAVIS: Nothing further, Your Honor.
THE
COURT: Do you wish this witness to remain on call?
MR.
DAVIS: On call, yes, sir.
THE
COURT: You can come down. Call your next witness.
[The
witness stepped down from the stand.]
MR.
DAVIS: Your Honor, may we approach?
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: Let me ask a question I intended to ask while the witness was up. He
testified it was a male, dark-haired. Did any of those witnesses testify about
whether it was black or white or Caucasian or anything else? I don't know. It
just occurred to me afterwards. I do not note it with respect to my notes.
MR.
DAVIS: One said a white male.
THE
COURT: Okay. All right. Whatever difference it may make.
MR.
PORTER: Judge, this is the last witness before we run up on a medical problem.
We have a witness who has a medical problem we would anticipate calling next.
We've got to make transportation arrangements and give him notice. So depending
on the length of this next witness, this may be the last witness that the state
is prepared to call today.
THE
COURT: Okay. How long do you think he'll be?
MR.
PORTER: He's going to be longer than the ones we've had. It's Dr. Brusie.
MS.
ROGAN: Dr. Brusie. Okay.
THE
COURT: Okay. Who is it?
MR.
DAVIS: Dr. Brusie.
THE
COURT: Okay. And this is the -- has he got the medical problem?
MR.
PORTER: No, sir. The next witness.
THE
COURT: It's the next witness. Okay. You think he's likely to be a half hour or
so?
MR.
PORTER: I don't know.
MR.
DAVIS: Somewhere between fifteen minutes and a half hour.
THE
COURT: Okay.
MR.
PORTER: Our testimony is going to be a little more extensive, but I don't know
about the cross- examination.
THE
COURT: Okay. But at any rate, there won't be any other witnesses ready to go;
is that what you said?
MR.
PORTER: No, no. The next witness is the one that we have to transport that has
a medical -- and we'll have to work around it.
THE
COURT: Okay. That one's not here yet?
MR.
PORTER: Right.
THE
COURT: Okay. And at this point, that's the witnesses we've got available today?
MR.
PORTER: That's right.
THE
COURT: Well, we might be pushing five by the time we get them going, so --
MR.
PORTER: Yeah.
THE
COURT: -- maybe that'll be as good a place as any to recess then.
MS.
ROGAN: Could we take a short break? I have to --
THE
COURT: Now?
MS.
ROGAN: I need to.
THE
COURT: Okay. We'll take five minutes at this point.
MS.
ROGAN: Okay. Sorry.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: Before we commence with the next witness, we're going to take a short
recess. We'll take five minutes, and then we'll recommence. If you'll go with
the bailiff, please.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: We'll take five minutes.
MS.
ROGAN: Thank you.
[Break
taken]
THE
COURT: Is the state ready?
MR.
PORTER: Yes, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Yes, Your Honor.
MS.
ROGAN: Yes, Your Honor.
THE
COURT: Bring the jurors back, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Call your next witness, please.
MR.
DAVIS: Your Honor, the state calls Dr. Robert Brusie.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: Go ahead and be seated if you'd like.
MR.
DAVIS: Please raise your right hand. Do you swear the evidence you shall give
in this matter now impending, shall be the truth, the whole truth, and nothing
but the truth, so help you God?
THE
WITNESS: Yes, I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT
EXAMINATION
BY
MR. DAVIS:
Q. All right. I'm going to ask you to relax a
little bit and speak up so that these folks way down here at the end of this
jury box can hear you, if you will. All right?
A. All right.
Q. Please state your full name.
A. Robert W. Brusie.
Q. Dr. Brusie, how are you employed?
A. At Equine Medical Center on Peachtree
Industrial.
Q. Now, what do you do there?
A. I'm a staff surgeon there.
Q. All right. Where did you go to school,
Doctor?
A. Michigan State University.
Q. Okay. How long has the office been in its
current location?
A. Since February 1990.
Q. All right. And have you worked there at the
location the entire time?
A. Yes, sir.
Q. All right. Are you familiar with the
Peachtree Industrial Boulevard area around Sugar Hill?
A. Yes, sir.
Q. All right. And are you familiar with the
location of the Gwinnco Muffler Shop up there on Peachtree Industrial
Boulevard?
A. Yes, sir.
Q. All right. Dr. Brusie, I'd like to direct
your attention to the evening hours of Thursday, April 15, 1993. Did you have
occasion to go up by Gwinnco Muffler Shop that evening after nine o'clock p.m.?
A. Yes, sir.
Q. All right. First of all, I'd like for you to
tell the jury why you were in the PIB area? Why were you up there on that road
around that time in the first place?
A. That's my route to go home.
Q. All right. Had you been out on a house call
earlier that evening?
A. Yes, sir. Over towards Woodstock.
Q. All right. And after you left that house
call, where did you go?
A. I went back to the clinic to develop some
x-rays and then head home.
Q. All right. Now, the clinic itself is also on
Peachtree Industrial Boulevard; is that correct?
A. Yes, sir.
Q. And that's some few miles south of Gwinnco
Muffler Shop?
A. Yes, sir.
Q. Do you recall approximately how long it takes
you to get from the clinic up to Gwinnco Muffler Shop?
A. Depending on the light, probably three to
five minutes.
Q. Okay. Now, was there anybody in the car with
you?
A. No, sir.
Q. All right. About what time was it that you
came by the muffler shop?
A. It'd have to be around 9:30.
Q. All right. And you were northbound on PIB, I
guess?
A. Yes, sir.
Q. You live up above the muffler shop going on
out in that direction?
A. Yes, sir.
Q. All right. Did you see anything when you got
to Gwinnco Muffler Shop?
A. What I'd noticed is a police car in the
driveway.
Q. Okay. Now, if you would describe for the jury
in as much detail as you can what the car looked like and what you saw as you
came by there.
A. I was driving north on Peachtree Industrial
on my way home, and there's a speed zone there where it goes from 55 to 45, and
my lights hit the side of the police car, and I slowed down to -- so I wasn't
breaking the speed limit and --
Q. Did you have to slow down a good bit?
A. Yes, sir. And my radar detector was on and it
did not go off and --
Q. Okay.
A. -- it was a Gwinnett County police car and
there's a fellow in it wearing a white T-shirt --
Q. Okay. When you say there was a fellow in it,
was it a white male or a black male or what race did it --
A. White male.
Q. White male?
A. Yes, sir.
Q. And what physical characteristics were you
able to notice about this white male?
A. Dark brown hair and fairly big fellow,
big-shouldered fellow, because you could -- I mean, he had a T-shirt on and --
Q. Okay. You indicated that the car was in the
driveway, I believe?
A. Yes. Heading out towards the road.
Q. All right. Do you recall what the condition
of the lights on the car were?
A. Did not appear to be any headlights on or
there was a dome light on, because I could see --
Q. All right. That's the interior dome light?
A. Yes, sir.
Q. The courtesy light inside the car?
A. Yes, sir.
Q. How about emergency lights?
A. No.
Q. Did you see blue lights?
A. No, sir.
Q. Did you happen to notice whether or not the
car had any sort of light on top of the car?
A. Yes, sir.
Q. And what style light would that be? You
understand there are dome lights and there are bar lights and things like that.
A. I believe it was a --
Q. How would you describe these?
A. A bar light.
Q. Okay. Where was the white male with brown
hair seated in the car?
A. In the driver's seat.
Q. All right. Could you tell what, if anything,
the man was doing?
A. What appeared, as going by, is the fellow was
looking down in his -- he looked like he was writing or something, looking down
like this [indicating], and the dome light was on, and I just figured he was
writing notes or something.
Q. All right. Now, you are one of the witnesses
who was stopped going through a road check approximately a week or so after you
saw this on the night of the 15th; is that correct?
A. Yes, sir.
Q. And you were stopped and you were questioned
by a Gwinnett County detective; is that correct?
A. Yes, sir.
Q. All right. Now, as part of that process or at
some later time did that detective show you any kind of photographic lineup or
photographic array of individuals?
A. Yes. It was -- I believe like one --
Q. All right. Just hold it right there if you
will.
[State's
exhibit was marked for identification by the court reporter.]
BY
MR. DAVIS:
Q. Dr. Brusie, I'm going to show you what's been
marked as State's Exhibit Number 32, and I'm going to open it for you. First of
all, can you identify this document that I've placed in front of you?
A. Yes, sir.
Q. All right. What does it appear to be?
A. It's photographs that Officer or Detective
Cline, I guess, showed me after the --
Q. Does this appear to be the photographic array
that you were shown by Detective Cline back in 1993?
A. Yes, sir.
Q. All right. Now, at the time that he showed
you that photographic array in 1993, were you able to identify from the eight
photographs contained therein one photograph that you thought was the man you
saw behind the wheel of the car?
A. Not one, specifically.
Q. All right. What did you do when he showed you
the photographic array?
A. I said the fellow that was behind the wheel
appeared to look like this 1 and 3.
Q. All right. And what two photographs have you
just pointed to?
A. 1 and 3.
Q. Okay.
MR.
DAVIS: Your Honor, that's all the questions I have at this time.
THE
COURT: Would you spell your name for the record, please?
THE
WITNESS: B-r-u-s-i-e.
THE
COURT: Thank you. Mr. Moore?
MR.
MOORE: Ms. Rogan's going to handle this witness, Your Honor.
CROSS
EXAMINATION
BY
MS. ROGAN:
Q. Good afternoon, Dr. Brusie. Is it Brusie or
Brusie?
A. Brusie.
Q. Okay. You're a veterinarian?
A. Yes, sir -- yes, ma'am.
Q. And you specialize in -- that's not the first
time that's happened. You specialize in horses?
A. Yes, ma'am.
Q. Okay. Do you know Mr. Chapel?
A. I don't believe so. I mean, I don't --
Q. Do you recognize him perhaps from an incident
involving a horse who was hit by a car on Bogan Road out -- back in March of
1992?
A. There were some police there and there was --
I had forgotten about that. Yeah. Uh-huh [affirmative].
Q. So you do -- you have seen him before in his
capacity as a police officer?
A. Yes, ma'am.
Q. Now, Mr. Davis asked you about speaking to
the police during the roadblock. That was on April 22, 1993?
A. It was -- yes, several days after the 15th.
Q. Okay. Was it Sergeant Cline who interviewed
you?
A. Yes, ma'am. Uh-huh [affirmative].
Q. And did you get into the car where Sergeant
Cline was or did he get into your car?
A. I got into his car.
Q. Okay. And he tape-recorded that interview
that you had?
A. Yes, ma'am. Uh-huh [affirmative].
Q. Have you had a chance to review that
statement that you gave?
A. Yeah, I've seen it since.
Q. Okay. And during the course of your
statements to Sergeant Cline, you described what you had seen in terms of
driving along Peachtree Industrial and seeing the police car stopped in the
driveway of the Gwinnco Muffler Shop?
A. Yeah.
Q. Okay. And you described seeing the dome light
on?
A. Yes, ma'am.
Q. That was a white light illuminating the car?
A. I believe so. It was light inside the car. I
don't -- I don't know.
Q. It wasn't a red light inside the car?
A. I cannot remember it as being red or white.
Q. You remember seeing a man sitting there in a
white T-shirt?
A. Yes.
Q. Okay. And Sergeant Cline asked you to
describe what the car looked like?
A. Yeah.
Q. And before you told him what the car looked
like, he directed your attention to some of the police cars that were there as
part of the roadblock.
A. Well, he asked what kind of police car it
was, and I said a Gwinnett County -- and I believe I said Gwinnett County
sheriff, and it was a mistake on my part. Where I grew up, all the county
police were with the sheriff's department. And I said Gwinnett County sheriff
and -- but I -- he said, 'Was it marked like these cars?' And I said yes.
Q. Okay. So he directed your attention over to
other Gwinnett County police cars that were participating in the roadblock?
A. Yes, ma'am.
Q. And he asked you if the car that you'd seen
looked like that, one of those cars?
A. Yes, ma'am.
Q. And you weren't sure at that time what type
of light was on top of the car that you saw?
A. No, I -- that's why I say I believe it was a
bar light.
Q. Okay. And you could tell that it was a white
male as opposed to a black or an Asian person?
A. Yes, ma'am. Uh-huh [affirmative].
Q. All right. And that the hair color was brown?
A. He had dark brown, uh-huh [affirmative].
Q. And he asked you to describe the size of the
officer, whether he was small, medium, or --
A. He asked what else I could say about the guy.
Q. Okay. And did you tell him that it was hard
to tell the size of the person because he was sitting behind the wheel of the
car?
A. As -- yeah, as far as I --
Q. Okay. I'm going to ask you to -- if you
would, just come down off the witness stand for a moment please, Doctor.
A. [Witness complies]
Q. This is a diagram we've made up of the area
along Peachtree Industrial Boulevard. Let me just make sure these are right.
I'm going to grab me a marker. I'm going to ask you to -- does this look to you
to be the layout of the muffler shop and the driveway on Peachtree Industrial
Boulevard?
A. Yes, ma'am.
Q. Okay. And you're familiar with that because
that's where your office is?
A. Yeah. The clinic's down there.
Q. Down this way, which would be to the south?
A. The south, yes, ma'am.
Q. Okay. If you would, just please mark with
this marker on this diagram where it was you saw the police car when you drove
by that night.
A. Okay. Right here.
Q. Okay.
A. Pointed out to the road.
Q. Okay. And it was facing Peachtree Industrial
Boulevard?
A. Yes, ma'am.
Q. All right. And forgive me if you've already
told us, but I don't remember if you did, were the headlights on or off?
A. I believe they were off.
Q. The headlights were off?
A. Yes.
Q. But the dome light was on?
A. Yes.
Q. Would you just initial that for me, please,
and put the date? All right. Thank you.
[The
witness returned to the stand.]
MS.
ROGAN: I'd like to have the overlay that he's just marked for identification as
Defendant's Exhibit 7 --
THE
COURT: 8.
MS.
ROGAN: 8. And I'd like to tender that into evidence.
THE
COURT: Any objection?
MR.
DAVIS: Your Honor, we object subject to the same understanding the Court's
already laid out for us.
THE
COURT: It's admitted over objection.
[Defendant's
Exhibit Number 8 was marked for identification and admitted into evidence.]
BY
MS. ROGAN:
Q. Now, the man you saw sitting in the car
you've described as wearing a white T-shirt?
A. Yes, ma'am.
Q. And I believe Sergeant Cline asked you in
some detail whether you were certain it was a white T-shirt or whether it was a
white uniform shirt; do you recall?
A. I believe he just asked what he was wearing.
Q. Okay.
A. Uh-huh [affirmative].
Q. Can you tell us now, if you recall, was it a
white T-shirt or a white uniform shirt?
A. It was a white T-shirt because that's the
thing that struck me as funny is a man in a T-shirt in a police car. I figured
he was an off-duty fellow picking up the car from getting it fixed at the
muffler shop.
Q. And you didn't think there was anything out of
the ordinary in seeing him sitting there?
A. No. Other than that, no.
Q. Had you seen police cars sitting at that
location previously?
A. Not in the driveway. In the -- on the
shoulder.
Q. Okay. On the shoulder --
A. Yeah, on the shoulder of the road as opposed
to in the driveway.
Q. Could you just come down again, please. I
want to make sure we're all clear on what it is you're referring to.
A. [The witness steps down] Yeah. It doesn't
matter. Sitting along the shoulder here.
Q. Okay. The shoulder along Peachtree Industrial
--
A. Yeah.
Q. -- rather than in the driveway itself?
A. Exactly.
Q. But there's a fairly good police presence in
that area? Or not?
A. Off and on, yes.
Q. Off and on. Okay. Thank you.
[The
witness returned to the stand.]
MS.
ROGAN: Just one moment, Your Honor.
[Pause]
MS.
ROGAN: That's all I have. Thank you very much, Dr. Brusie.
THE
WITNESS: All right. Thank you.
THE
COURT: Just a moment, Dr. Brusie. Redirect?
MR.
DAVIS: No, thank you, Your Honor.
THE
COURT: Do you wish this witness to remain on call?
MR.
DAVIS: Yes, Your Honor.
THE
COURT: You can come down. You'll be on call.
[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: Is this going to be all of the witnesses today?
MR.
DAVIS: Yes, sir.
THE
COURT: Okay. Time-wise, how do you think we're doing?
MR.
PORTER: Your Honor, I've called twelve witnesses today. I'm looking at -- I've
got sixty-three, sixty-four total witnesses including chains of custody, so --
I called a dozen today.
THE
COURT: Do you still think eight to ten days or do you think we're doing better
than that?
MR.
PORTER: Not at this pace. At this pace, I'll be looking at Saturday to wrap it
up.
THE
COURT: Okay.
MR.
PORTER: I mean, you know, I expect we're talking about different people and
different things, but even taking into account the cross-examination of some of
the experts and the eyewitness and the hearsay, we could realistically be
looking at wrapping the state's case up on Saturday.
THE
COURT: Okay. Well, what we might do is sort of gauge how it's going. And if it
looks like, you know, we're looking at a week instead of two weeks, then make
sure Mr. Moore and Ms. Rogan know it and --
MR.
PORTER: Well, Your Honor, we've been discussing that all day.
THE
COURT: Okay.
MR.
PORTER: Everybody's pretty well aware.
THE
COURT: Just so we don't pause for a day or two while you --
MR.
MOORE: We realize that.
MS.
ROGAN: We realize that.
MR.
MOORE: I had told Ms. Rogan that I didn't think they were going to go eight to
ten days.
THE
COURT: Okay. That's good. After yesterday, I was beginning to wonder how long
-- what it was going to be. Okay.
MR.
DAVIS: Mr. Moore has seen us before.
THE
COURT: Okay. Well, we'll stop here and we'll just recommence, then, at nine
o'clock. Do you see any reason to --
MR.
PORTER: No, sir. That seems to be the best time for the jurors.
THE
COURT: Okay. We'll do that, then.
[Bench
conference concluded.]
THE
COURT: Ready to call it a day? I think we're at a good point as far as
witnesses go, the availability of witnesses, and as far as examination of
witnesses, and we're going to recess for the afternoon here. And let me pass on
to you, I think, that insofar as the progress we're making in the case and the
rate we're moving, I think we're moving faster than was anticipated when we
were sort of giving you a worst case scenario, I think, on time estimates. So I
think, if anything, we'll be hopefully concluding faster than we had talked
about during the course of voir dire, so I'll pass that along to you at this
point.
Let
me remind you at this point that you've heard part of the presentation of the
case, but remind you that you haven't heard all of it, that you ought to
continue to keep an open mind until you have seen and heard all the case
presented. You ought not to commence any deliberations or discussions amongst
yourself or with anybody else, or allow anybody to discuss the case with you or
in your presence. Just reflect on what you see and hear and keep that to
yourself until such time as you've heard it all and you're in the jury room to
commence deliberations with your fellow jurors.
We
have some movies selected and some other things being done for your convenience
and some of the other requests as far as being able to have some snacks and
that sort of thing available in your rooms. That's been -- those accommodations
have been taken care of. The bailiffs have been instructed insofar as the
Sunday visits, and we're working on some of the other things, and if you'll
make your requests known to the bailiffs, and those we'll resolve and provide
everything that you ask for as best we can.
Any
question before we recess for the afternoon? Yes, sir.
JUROR:
Do we have to leave our notes here?
THE
COURT: If you'll leave them -- yes, sir. Leave your notes here. Leave them in
your seats when you leave. Those will be secured and they'll be available to you
in the morning when you come in, and that will be the way we'll operate
throughout the trial of the case, and then they'll be gathered and destroyed at
the conclusion of the case and not be reviewed by anybody, including me. Any
other question?
[No
response]
THE
COURT: All right. Your evening meal should be prepared. If it's not, then very
shortly, and we'll recommence in the morning at nine o'clock. If you'll go with
the bailiffs, please.
[The
jury was excused for the evening and retired from the courtroom at 4:35 p.m..
The proceedings continued, as follows, with the jury not present.]
THE
COURT: Anything else at this point,
Mr. Porter?
MR.
PORTER: Your Honor, only the matter of the custody of the evidence.
THE
COURT: Are you proposing to keep it or are you willing to keep it during the
pendency?
MR.
PORTER: I'm prepared to keep it.
THE
COURT: You've probably got the best facilities. Mr. Moore, any objection to the
district attorney retaining that during the course of trial of the case?
MR.
PORTER: Your Honor, they have an office. I'm prepared to keep it in a secure
location, but we --
MR.
MOORE: Your Honor, we can keep up with ours and Mr. Porter can keep up with
his.
THE
COURT: Well, I'm not inclined to split it up.
MR.
MOORE: We could let the court reporter have it.
MR.
PORTER: Your Honor, I believe Ms. Atkinson has the worst facilities of the
three of us.
THE
COURT: What do we have -- well, at this point, what have you got, photographs?
MR.
PORTER: Photographs, the diagrams, and the tire.
THE
COURT: Okay.
MR.
PORTER: The tire I've got sort of stuck up under the desk.
THE
COURT: Who's volunteering for the tire?
MR.
PORTER: Your Honor, I propose to leave that right exactly where it is. I feel
comfortable with the court security as far as the tire.
THE
COURT: I'll allow the district attorney to keep -- you've got the best
facilities, I think. We don't have anything that's -- I think probably either
side could keep them, frankly. I think that's the most secure place we have
during the course of trial, the facilities the district attorney has, and that
will be the direction of the Court.
MR.
PORTER: Your Honor, I have no objection to the sealing or wrapping of any
defense exhibits that they wish, and I'll return them in the same condition
that they are --
THE
COURT: Okay.
MR.
PORTER: -- if they want to wrap them up.
THE
COURT: All right. Mr. Moore, you want to, for example, the -- Mr. Moore, for
example, the eyeglasses and those kinds of things, do you want to seal the
envelope and you and Mr. Porter can initial it and reopen them later whenever
you get ready to use them again?
MR.
PORTER: Well, Your Honor, I'm proposing a solution for the defense exhibits.
They're the ones who -- I mean, I'm prepared to leave the state's exhibits with
me, and I'm comfortable with taking care of the chain, but with Mr. Moore, I
think we're talking about the acetates and the diagrams, and if they don't want
to leave them with me, so I'm just saying if they want to seal them somehow --
THE
COURT: If they've been admitted, I -- what do you propose -- are you talking
about the exhibits, defendant's exhibits that have been admitted, Mr. Moore?
MR.
MOORE: Yes, Your Honor.
MR.
PORTER: I have no objection to Mr. Moore retaining custody of them, Your Honor.
It's a matter of complete indifference to me.
THE
COURT: Well, my inclination is those -- to have the court reporter keep them.
What have you got, Mary, to keep them? Normally, the district attorney's office
keeps them as a matter of -- that's a good place for security, particularly
involving any drugs and that sort of thing or firearms, which we don't have it
in this case at this point.
[Brief
discussion held off the record with the court reporter.]
MR.
MOORE: Your Honor, we've got the courtroom that we have the only two keys to --
I mean, the offices, the only two keys to, and it's secured.
THE
COURT: All right. What do you propose to do, Mr. Moore?
MR.
MOORE: Your Honor, we'll just keep our exhibits and let Mr. Porter keep his, if
it's all right with the Court, and be responsible for it.
MR.
PORTER: I have no objection to that. All I'm saying is I stand willing to
assist the Court, but I have no objection to the defense.
THE
COURT: So we'll do that. If we need to make any adjustments during the course
of trial with any of the specific exhibits, we'll do that. All right. So
stipulated. Anything else, Mr. Porter?
MR.
PORTER: Well, Your Honor, I would suggest that ruling continue through until
the evidence goes to the jury as -- that each side be responsible for
maintenance of its exhibits.
THE
COURT: All right.
MR.
PORTER: Either -- both tendered and untendered.
THE
COURT: All right. Any objection, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: If there's any need to modify that, then each side can raise that issue.
Mr. Porter, you indicate, I believe, you think you may have your case, at the
rate we're going, your case may be concluded along toward the end of the week,
along about Saturday, you think?
MR.
PORTER: It's entirely within the realm of possibility, Your Honor.
THE
COURT: Okay.
MR.
PORTER: I've called ten or twelve witnesses today and if we continue at this
pace, it's entirely possible.
THE
COURT: All right. If that is the case, then, Mr. Moore, you need to have your
witnesses and make sure they're aware of the schedule and have them prepared to
start Monday or as soon as we conclude. All right. Anything else, Mr. Porter?
MR.
PORTER: Nothing further from the state, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: Nothing from the defense, Your Honor.
THE
COURT: We'll be in recess until nine o'clock tomorrow morning.
[Proceedings
were recessed for the evening, August 22, 1995, at 5:05 p.m.]
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Reporter's
Certificate here
3272
