P R O C E E D I N G S
[In
the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m.,
Friday, August 25, 1995; STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL,
93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., Presiding.]
THE
COURT: Good morning.
MR.
PORTER: Good morning.
MS.
ROGAN: Good morning.
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your
Honor. We have one matter to discuss
this morning before the jury comes in, which is the -- we anticipate that we
are going to play the videotape today, barring unforeseen technical
difficulties. We're in the process of
preparing everything as we speak. We
have filed with the Court, and I have the original with me, and provided
defense counsel and the court reporter with a copy of our preliminary request
to charge.
THE
COURT: That's the cautionary
instructions --
MR.
PORTER: The cautionary instructions.
THE
COURT: -- prior to the video?
MR.
PORTER: Yes, sir.
THE
COURT: Okay. I'll take a look at that and review it prior to -- in conjunction
with the Watson case that we discussed last night.
MR.
PORTER: Yes, Your Honor.
THE
COURT: And then we'll take that up.
MR.
PORTER: There is one other matter I'd
like to approach the bench on with counsel.
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued.]
MR.
PORTER: Your Honor, last night -- do
you want to wait for Johnny?
MS.
ROGAN: No. Go ahead.
MR.
PORTER: Last night, as I was laying
awake at two o'clock in the morning, I found myself with a -- I think we've all
been commenting on Mr. Ford's demeanor.
And, frankly, you know, a man's on trial for his life. The attorneys are busting their butts to
make a presentation here; and, very frankly, I have to say I'm a little
insulted as the time goes on.
And
one suggestion that I thought I would make, and we discussed this yesterday, is
Mr. Allen, the head bailiff, seems to be a perfect candidate to perhaps have a
little discussion with Mr. Ford about the gravity of this matter and perhaps courtroom
demeanor.
I
don't find it necessarily distracting, but -- and I don't know whether the
Court wants to do it, but I think one thing that concerns me is the woman who's
sitting next to him is a juror --
MS.
ROGAN: Uh-huh.
MR.
PORTER: -- and his fiddling around
could be distracting to her. I mean,
yesterday I saw him, at one point in the testimony, he was lounging in his
chair with his feet up on the jury rail.
THE
COURT: Well, yeah. I know.
Mr. Moore?
MS.
ROGAN: I hadn't noticed anything yesterday. I have in the past few days. We had discussed this, Mr. Porter and I, previously as to
whether it was possibly having an impact on the other jurors. I mean, the likelihood of him ever having to
make a decision in this case is remote, but he could influence the other jurors
just by behaving like he doesn't take this very seriously.
THE
COURT: Well, he's nineteen.
MR.
MOORE: I was going to say I think
that's one of the hazards of having a nineteen-year-old on a jury.
THE
COURT: I've got two of them at home,
you know, and I know. I share your
concerns. I mean, you've got -- and I
guess the question is to what extent can you -- can any of us encroach on a
juror's right to be very relaxed about it all if they want to.
MR.
PORTER: Well, Your Honor, I guess --
THE
COURT: I mean, I've had -- I guess it's
always a concern of mine when you have a lot of really young folks. We had one last summer, I think out of
twelve jurors, ten of them were college kids and one of them went to sleep
twice before we got through the first witness.
We had to bring him back and tell him, 'Hey, look, now, you've got to
stay awake and pay attention to what's going on here,' you know, and that
seemed to work with him, but --
MS.
ROGAN: We have no objection to Mr. Porter's
suggestion that Mr. Allen just speak to him in some manner as to appropriate
courtroom decorum.
THE
COURT: Yeah. It probably would be good to just pass it on from me, tell him
that I have a concern about him paying attention and being distracting.
MS.
ROGAN: That's correct.
THE
COURT: You know, this is serious
business.
MS.
ROGAN: That's correct.
MR.
MOORE: If you wanted to make that a
part of the record, you could give him some written instruction that Mr. Allen
would convey to him, you know.
MR.
PORTER: Or a note from the Court.
MR.
MOORE: That's what I mean, like a note
from the Court or something, you know, that it's a serious matter.
MR.
PORTER: I've sort of tolerated it for a
week, but I mean, everybody here is involved in serious business, and Mr.
Ford's playing tiddly winks in the jury box.
THE
COURT: Well, he's certainly relaxed.
MR.
PORTER: I mean, I want the jurors to be
as happy as the next person, but under the circumstances --
THE
COURT: What's the defense request?
MR.
PORTER: I mean, yesterday, for
instance, they caught him trying to communicate with his parents about a
telephone call, and the deputies talked to the parents.
THE
COURT: Put them out, yeah.
MR.
MOORE: What do you think's the best
thing, Elizabeth? You have more
experience with this than I have.
MS.
ROGAN: Mr. Smeal?
MR.
SMEAL: What about the possibility of
changing the seating?
MR.
PORTER: Assigned seating might be the
answer.
MS.
ROGAN: Well --
MR.
SMEAL: Get in between a couple of the
older ones, or something like that.
MS.
ROGAN: Yeah. Of course, most of our primary jurors are older and more mature
people, but --
THE
COURT: Yeah. Well, I've already told them they can sit where they want to.
MS.
ROGAN: Yeah. I wouldn't want near to the --
THE
COURT: On the one hand, I don't -- you
know, I'm reluctant to embarrass somebody or that sort of thing when they're
here serving involuntarily. On the
other hand, and I guess we're sort of in an area we don't have any overt kind
of acts, you know. We've got sort of an
immaturity --
MS.
ROGAN: Apprehension of them.
THE
COURT: Kind of, you know, immaturity, I
guess.
MS.
ROGAN: Yeah.
MR.
PORTER: Well, Your Honor, I guess in
the sense of overt acts, we do have the diary, we do have the communication
with his parents, we do have, and I'll state that I've noticed him -- he talks
to Ms. Bolden, he does during the presentation of evidence.
THE
COURT: Yeah. Oh, I know.
MR.
PORTER: He does -- I mean, he whispers
to her, and she is a primary juror. I
think we do have enough overt acts to be concerned.
THE
COURT: All right. What are you requesting?
MR.
PORTER: I'm requesting, and I agree
that I don't think that he should be brought in here and put on the witness
stand and nailed by the Court, but some communication, and I thought Mr. Allen
because Ms. Allen keeps me in line, so I thought Mr. Allen was, as the head
bailiff, was the appropriate person to just take him aside and, 'Look, we're
involved in a serious business here.
People are serious about this.'
THE
COURT: Of course, all that's off the
record if he just has a conversation telling him that. Is that a problem with anybody?
MR.
PORTER: Your Honor, the alternate
suggestion by Mr. Moore is, 'The Judge asked me to give you this note.' And a note that says something, 'Mr. Ford,
I've noticed that --'
MR.
MOORE: I'm a little concerned, Judge,
that if there is a conviction here and if there should be a death penalty,
somebody's going to be examining all of our decisions. And I have a question whether we can consent
to a bailiff giving instructions to a juror.
THE
COURT: Well, I sort of have a concern
about that.
MR.
MOORE: I mean, I have all the greatest
trust in Mr. Allen, but I'm not sure what the law is about having a bailiff
instruct a juror.
THE
COURT: Yeah.
MR.
PORTER: Well, that was the first -- I'm
not suggesting that as the end-all, be-all.
I'm just --
MS.
ROGAN: Uh-huh.
MR.
PORTER: I think at this point I wanted
to bring my concerns to the Court, and I think it's a problem that needs to be resolved.
THE
COURT: Well, I guess if everybody
consented, what we might do is find us a separate jury room on one of the
breaks or something, and I could have a bailiff take him to a jury room, and I
can go sit down and just say, basically, you know, 'We've got a very serious
case, and your demeanor is that you're not being very serious about it. You're not paying attention, and you're
distracting the other jurors, and this is a matter of the utmost gravity, and you
need to be attentive. You may have to
make decisions in this case.' You know,
something along those lines, if y'all consent to it.
MS.
ROGAN: That would certainly get the
message across if you did it personally.
THE
COURT: You know, I guess my concern
about doing something like that is I'm not contemplating being a witness in the
case, you know, and I guess the question is, you know, when I get back and then
if everybody says, 'Well, Judge, what did you tell him? We want to go on the record and you tell us
what you told him. Now you swear
yourself in and tell us what you said.'
You know, and then I get in the middle of it being a witness. That's my concern.
MS.
ROGAN: I think we would consent to
that.
MR.
MOORE: We'd consent, Your Honor.
MR.
PORTER: Yeah.
MS.
ROGAN: In which case we would avoid the
issue and we trust the judge. We trust
your discretion.
MR.
PORTER: I'm willing to do that, too.
MR.
MOORE: And if you want what you tell
him as part of the record, I wouldn't object to you privately having the court
reporter record what you told him. I
don't mean necessarily take her in there while you're talking to him, but while
nobody's in the courtroom, you tell her what you told him and have it made part
of the record.
MR.
PORTER: I'm willing to handle it any
way the Court thinks is appropriate, but I think that it needs to be handled at
this point.
MS.
ROGAN: I think it's a good idea, also.
THE
COURT: Well, if we can find another --
MR.
PORTER: I don't even care if you bring
him into your office.
THE
COURT: If we can find another jury
room. Well, maybe now would be a good
time. Do you want to do it now?
MR.
PORTER: That would be great, Your
Honor.
MR.
MOORE: That would be fine, Your Honor.
MS.
ROGAN: That's fine with us.
THE
COURT: No point putting off bad news.
MR.
PORTER: And if he comes in crying,
we'll know you talked to him.
THE
COURT: All right. All right.
We'll just take about five minutes, and I'll do that, then.
MR.
PORTER: Yes, sir.
MS.
ROGAN: That would be fine.
[Bench
conference concluded.]
THE
COURT: We'll take five minutes and
recommence. Mr. Allen, would you meet
me in chambers?
[A
brief recess was taken in the proceedings.]
THE
COURT: Would you approach the bench.
[Counsel
approached the bench and the following conference ensued.]
THE
COURT: I want to go ahead and get this
out of the way. We don't need Ms. Rogan
for this, I don't think.
MR.
MOORE: No, I don't think so, Your
Honor.
THE
COURT: The defendant's present in the
courtroom. I chatted with Mr. Ford in
my best fatherly tone and told him this was a very important matter of the
utmost gravity, and he may be a decision-maker in this case. It may be the most important thing he ever
participates in in his lifetime, and it's essential that he be attentive and
listen to the facts and pay attention to the charge and not distract any other
jurors with conversations or that sort of thing, and he said he
understood. That was the essence of our
conversation. So we'll see if it helps
him out.
MR.
PORTER: I'm satisfied with that.
MR.
MOORE: I'm satisfied, too, Your Honor.
MR.
PORTER: Your Honor, Johnny and I have
been discussing more or less scheduling today.
We have one more witness that Mr. Smeal's going to handle, and then
we're going to begin to move into the videotape. I know the Court began to mention something yesterday about
visitation day for the kids with the jurors.
THE
COURT: That's tonight from 7:30 to
9:30, I think, so --
MR.
PORTER: So we're looking at a --
THE
COURT: At a regular day.
MR.
PORTER: -- a regular day.
THE
COURT: Yeah. Yeah.
MR.
PORTER: I anticipate that we'll be
moving into the videotape sometime this afternoon barring --
THE
COURT: Okay.
MR.
PORTER: -- and I expect we'll finish it
tomorrow.
THE
COURT: Okay. Well, I don't hear anybody concerned about splitting it up, so it
won't really matter, then, I guess.
We'll just find a good break point this afternoon in the video and stop
and finish it up in the morning. I
contemplate running about nine to five tomorrow as well.
MR.
PORTER: We'll be ready to do that.
THE
COURT: Okay.
MR.
PORTER: Your Honor, I can tell you that
going back yesterday and looking at the way I want to present my case, Monday
seems to be a much more realistic --
THE
COURT: Okay.
MR.
PORTER: -- and even possibly into
Tuesday is a much more realistic roundup date.
THE
COURT: Well, whatever.
MR.
PORTER: I think I was dizzy by the pace
or perhaps over optimistic.
MS.
ROGAN: As were we.
THE
COURT: Okay. Anything else?
MR.
MOORE: Nothing else, Your Honor.
THE
COURT: Okay. All right. We'll bring
the jury in.
[Bench
conference concluded.]
THE
COURT: Bring the jurors in, please.
[The
jurors were escorted to the courtroom.]
THE
COURT: Good morning, ladies and
gentlemen. Everybody okay this
morning?
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: Call your next witness, please.
MR.
SMEAL: The state calls Kendon Curtis.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Curtis, if you'll take the
stand up here. You can be seated and
Mr. Smeal will administer the oath.
[The
witness stepped to the stand.]
MR.
SMEAL: Please be seated, Mr.
Curtis. Would you raise your right
hand, please. Do you solemnly swear the
testimony you're about to give in the matter now pending before the Court will
be the truth, the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. SMEAL:
Q. Please state your full name and if you'd
spell your last name for the court reporter.
A. Kendon E. Curtis, C-u-r-t-i-s.
Q. And, Mr. Curtis, do you live in the Atlanta
area?
A. I live in Lilburn.
Q. And how are you employed, sir?
A. I own a tree service, A-1 Excel Tree Service
and I managed a male review group, and now own the male review group.
Q. I want to direct your attention back to April
18 of 1993, Sunday evening, but ask you if you were at a birthday party at the
residence of Kiersten Frazier-Forg?
A. Yes, sir, I was.
Q. And that was in the city of Duluth?
A. Yes.
Q. Okay.
Do you remember the exact address?
A. I don't know if it's like city limits, but --
Q. In the Duluth area?
A. Right.
Q. And was that a birthday party for Eren
Chapel?
A. Yeah.
Eren Chapel's birthday party.
That's what I was told.
Q. And why were you there?
A. I was managing a male review group at the
time, and one of the guys in the group asked me if I would accompany him to the
party. Apparently Eren worked at the
Hooter's there on Pleasant Hill.
MS.
ROGAN: Your Honor, I'm going to object.
MR.
SMEAL: He's not being responsive, Your
Honor. I'll follow up.
THE
COURT: Okay. Restate your question, please.
MS.
ROGAN: Okay.
BY
MR. SMEAL:
Q. Would you explain to the jury what you mean
by a male review group?
A. Dancers, male dancers.
Q. All right.
And --
A. Chippendales type thing.
Q. Who was the dancer that particular evening?
A. Jeffrey Cox.
Max Meadows also danced.
Q. How did you get to the party that evening?
A. Max -- we drove to Max's house -- Jeff Cox
and I drove to Max's house and we rode with Max and one of his buddies. I'm not even sure of his name.
Q. Okay.
So, I'm sorry, who drove?
A. Max Meadows.
Q. All right.
And was that in his vehicle?
A. Yes.
Q. And how many persons were in the car on the
way to the party?
A. Four of us.
Q. All right.
Max Meadows, yourself, Jeff Cox, and some other person?
A. Myself, Max Meadows, Jeff, and a boy -- I'm
not sure what his name was, a friend of Max's.
Q. Okay.
Do you remember about what time you got to the party?
A. 10:15, 10:20, something like that. Somewhere in the area of ten o'clock.
Q. All right.
And how many persons were at this birthday party?
A. I think originally probably thirteen or
fourteen, friends of Eren Chapel's that worked up at Hooter's mostly.
Q. All right.
And did there come a time during the course of the evening when some
difficulties arose?
A. We -- when we got there, they did the show
and stuff and, of course, it got a little loud and the police showed up and
told everybody to disperse. Kiersten,
who was having the party, it was her apartment, she got a little upset with him
and she ended up being arrested.
Q. The officer who responded, was that Officer
Rudowski?
A. If you mean a uniform police officer that was
in here yesterday, yes.
Q. Okay.
You saw the police officer that was here yesterday testify?
A. Right.
Q. Is that the officer who responded at the
party?
A. Right.
Q. When you say that they did the show, that was
essentially a strip act; is that correct?
A. Strip act, right.
Q. And Jeffrey Cox and Max Meadows actually
perform the show; is that correct?
A. Right.
MS.
ROGAN: Your Honor, I'm going to object
to the leading questions by Mr. Smeal.
MR.
SMEAL: Your Honor -- all right.
BY
MR. SMEAL:
Q. Who performed the show?
A. Jeffrey Cox and Max Meadows. The other kid that was with Max didn't
dance. He was just there, as I was.
Q. All right.
About what time was Ms. Kiersten Frazier-Forg arrested that evening; do
you recall?
A. I'd have to say sometime right before twelve,
maybe fifteen to twenty minutes before twelve.
Q. All right.
And what happened after that with respect to the party? Did it continue on, did it break up?
A. No.
They were -- apparently, had been called out earlier. Of course, we weren't there when that
happened, but they were saying that it had to disperse.
Q. All right.
And did you, in fact, leave at that time?
A. Yes, sir, we sure did.
Q. Okay.
Now, when you left, who did you leave with?
A. Jeffrey Cox, his -- Max Meadows, and his
buddy, and Eren Chapel. Max and Eren
work at Hooter's together and he was going to give her a ride home.
Q. Okay.
And did you leave in Mr. Meadows' vehicle?
A. Yes.
Q. Could you describe the seating arrangement in
that vehicle when you left?
A. Max was driving, his buddy was on the
passenger side of the front seat, and then it was Eren and myself and Jeffrey
Cox in the back.
Q. Okay.
A. Jeff, you know, on my right, and Eren being
on my left.
Q. All right.
So you were in the middle of the back seat?
A. Yes.
Q. And where did you go at that time?
A. They were going to drop us off -- Jeff and I
were going to be dropped off at my house and then Max was going to give Eren
and his buddy a ride home.
Q. Okay.
Did there come a time when you made a stop in the Pleasant Hill Road
area?
A. Yeah.
We stopped at a convenience store.
Q. Do you remember --
A.
Everybody in the vehicle went in to get
something to drink, Cokes.
Q. I'm sorry.
Do you remember the specific store where you stopped?
A. You know, RaceTrac is where it is now, but I
think it was another store at that time.
It's been two years ago.
Q. Okay.
I understand.
A. If I'm not mistaken, it was something else.
Q. Did you exit the vehicle?
A. No. I
stayed in it.
Q. Did everyone else exit the vehicle?
A. Yes, they did.
Q. Okay.
Did Ms. Chapel exit the vehicle?
A. Yes.
Q. When she exited the vehicle, what did she do?
A. She went to the pay phone, which we were
parked next to a pay phone, about twenty foot away from it, and she went to the
pay phone to get on the phone.
Q. Okay.
And what happened next?
A. It was a summer night. The windows were down and stuff and she left
her purse in the seat next to me. I
picked her purse up and I was like, 'Hey, Eren, what do you keep in these
things anyway,' because she, you know, she had stuff hanging out of it. And she was on the phone, and she looked at
me and you could -- the intent was to get her attention. And she looked at me, and she saw me messing
with her purse, and she tossed the phone down.
She didn't hang it up or anything.
And she came to the car very quickly and jerked the passenger door open,
which, of course, I was still sitting in the middle of the back, pulled her
purse away from me and set it in the seat right next to me, and pulled an
envelope out of the purse. She took the
money that was in the envelope and she kind of fanned through it with her
thumb, I mean, a foot, foot and a half from me, fanned through it with her
thumb, and then stuck it back in the purse and put it under her arm and went
back and got on the phone.
Q. Okay.
Would you describe the money that was in the envelope?
A. It was between a quarter- and a half-inch
thick. I would say closer to a
quarter-inch thick of new hundred dollar bills. I think there was one or two fifties on the end of it, but she
fanned through it, you know, real straight right there with her thumb, in front
of me, and I did see it very well.
Q. Did you know that the money and envelope were
in the purse when you picked it up?
A. No. I
had no idea that she -- I was kind of astounded that somebody had that much
cash on them. I remember telling my
friend Jeff that, you know, that that
was --
MS.
ROGAN: Objection, Your Honor.
MR.
SMEAL: Well, I think he can say what he
told to somebody else. That's not
hearsay. That's just res gestae of the
situation.
THE
COURT: Ms. Rogan?
MS.
ROGAN: I think it is hearsay, Your
Honor, and it's not the first hearsay that this witness has testified to.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. SMEAL:
Q. Did you make a comment to -- I'm sorry,
to whom --
A. Jeffrey Cox.
Q. Okay.
What did you say to him?
A. I was very surprised she had that much cash
on her. It was a very large amount of
money. I own a tree service, and I
often cash checks myself when I need the cash and, you know, so I've seen
hundred dollar bills in a lump sum together and, you know, if I had to say how
much it was, I would say at least $3,000, and it really surprised me that she
had that kind of money on her.
Q. What happened after that?
A. We were given a ride home. Jeff was dropped off at my house with me and
then they went on about their business.
Q. That essentially was the end of the evening?
A. Right.
MR.
SMEAL: No further questions, Your
Honor.
THE
COURT: Mr. Moore? Ms. Rogan?
CROSS EXAMINATION
BY
MS. ROGAN:
Q. Good morning, Mr. Curtis.
A. Good morning.
Q. My name's Elizabeth Rogan, and I'm one of
Mike Chapel's attorneys. Do you know
Mike Chapel?
A. No.
Q. You know of him though, don't you?
A. Yeah.
Now I do.
Q. You've read newspaper articles about this
case?
A. I don't really read the newspaper a whole
lot, so I haven't read a whole lot about it.
I don't get the newspaper.
Q. You've seen it on the TV from time to time?
A. I saw it last night, but I haven't seen it
prior to it.
Q. You saw a newspaper article back in January
or February of this year, didn't you?
A. Yeah.
January, I believe it was.
Q. Okay.
And seeing that newspaper article about this case is what prompted you
to go to the district attorney's office?
A. I first went to my lawyer. The reason I didn't, you know, it's a male
review group, and I own a tree service in this county, and I really didn't want
to get involved with this if I could help it. I knew a police officer was being charged with a murder, and I
knew that it was Eren's husband. And at
the same time, I thought if a police officer's being charged with a murder,
surely they wouldn't need me to come forward.
And since nobody had approached me, I was very reluctant to come forward
and involve my tree service, you know, and with the male review group here in a
county that -- you know, a lot of Christians.
Q. You were concerned about your reputation?
A. Right.
I was very concerned about it.
Q. Because you didn't want to be associated with
male strippers?
A. The male review group. I just didn't want my tree service to be
associated with a male review group.
Q. My question is that seeing the newspaper
article in the paper is what prompted you --
A. Yeah, because --
Q. -- to go to the district attorney? That was my question, Mr. Curtis.
A. -- it said in the newspaper that the money --
the murder weapon and the money had never been recovered. And at that point in time, I thought, you
know, I did a lot of soul-searching. It
was going to be more important to come in and let everybody know about the
money than it was, you know, to sit back and not say anything about it. Up until that point in time, I assumed the
money had been recovered.
Q. Mr. Curtis, if I could just ask you to answer
my question. You're certainly allowed
to explain the answer, but if you could focus on the questions that I ask you,
I would appreciate it.
A. I believe I did.
Q. Okay.
My question to you was that seeing the newspaper article is the first
time that you went to the district attorney's office --
A. Yes, it was.
Q. Yes or no?
A. Uh-huh [affirmative].
Q. Okay.
Yes, it was. And that was in
February of this past year; isn't that correct?
A. January, I believe.
Q. 1995?
A. Yeah.
Well, yeah, it was '95 because --
Q. It was this year, the year we're still
in? It was 1995?
A. Yeah.
The reason I know it was very near New Year's --
Q. Okay.
A. -- but it was after the New Year.
Q. And that was almost two years after the events
that you have described for us this morning?
A. It was a year after the event. Well, two summers.
Q. That's two years, isn't it?
A. It's this summer.
Q. The incident that you --
A. Was in '93.
Q. -- have described was in April --
A. April of '93.
Q. -- April 18, 1993?
A. Right.
Q. Isn't that what you testified?
A. That's correct.
Q. And January of 1995 would be almost two years
after that; is that correct?
A. Almost.
A year and a half. Okay. Split the difference.
Q. Now, you've testified that the party was at
the home of Kiersten Frazier-Forg?
A. Right.
Q. You did not know Kiersten Frazier-Forg at the
time you went to the party? A. Prior to that night, no.
Q. You've learned her name subsequent to the
time you went to the party?
A. The night of the party.
Q. Someone told you her name?
A. Yeah, the night of the party.
Q. But you didn't know who she was? You didn't know any of the girls who were
there at the party, did you?
A. No.
Uh-uh. Prior to it, no.
Q. You did not know Eren Chapel?
A. Not prior to the party, no.
Q. You still don't know Eren Chapel?
A. No.
Q. In fact, you did not know her name at the
time?
A. At what time?
Q. At the time of the party?
A. I was introduced to her.
Q. Do you remember giving a statement to the
district attorney's office when you did come forward with your story --
A. Yeah, I sure do.
Q. -- in January of this year?
A. Yes.
Q. Okay.
And you spoke to Mr. Teatino?
A. Yes, that's correct.
Q. And Investigator Burnette?
A. That is correct.
Q. And you told them that the woman you were
referring to, in whose purse you allegedly saw this money, was called Carmen.
A. Right.
I was confused with her name. As
you said, it was a year, year and a half, two years later. And, as a matter of fact, right after I left
Jack Burnette in Glenn Teatino's office, I was like, it wasn't Carmen, it was
Eren.
Q. You told them in your statement --
A. Yeah.
Q. -- that she -- her name was Carmen?
A. I did -- I did say Carmen in the statement,
though. That's correct.
Q. Who told you, Mr. Curtis, that her name was
Eren?
A. I remembered it after I left the office.
Q. Who had told you that her name was Eren?
A. At the party, I was introduced to her by
several of the people there. She
herself said her name was Eren.
Q. You also said in your statement that it was
your understanding that she was Mike Chapel's wife?
A. At the party, they -- I was introduced to her
and she said she was Eren Chapel, and she talked about her husband being a
police officer in Gwinnett and --
Q. But you didn't know who Mike Chapel was?
A. No.
Q. So at the time of the party that information
really had no meaning for you whatsoever?
A. No.
Well, Mike -- the name Mike Chapel -- she was introduced to me as Eren
Chapel.
Q. That wasn't my question. You didn't know who Mike Chapel was?
A. I didn't know who Mike was, no. I had no -- I'd never met Mike.
Q. So when you told the investigators that it
was your understanding that she was Mike Chapel's wife --
A. I was -- she was introduced to me as being
Eren Chapel. And, of course, this was a
year, year and a half later that I talked to the investigators, so by the time
I had talked to the investigators, I had -- I had learned of Mike's first name.
Q. You knew who Mike Chapel was?
A. Right.
Q. Right.
Because he was in the newspaper quite a bit being charged with a murder?
A. No.
Q. How else did you know him, Mr. Curtis?
A. Because the people at the party that I've
talked to, subsequent to the party, had informed me that Eren's husband, Mike,
was being charged with murder and that --
Q. So it was all based on what other people had
told you?
MR.
SMEAL: Your Honor, I'd ask that he be
permitted to finish his answer. I don't
believe he's finished.
BY
MS. ROGAN:
A. [Continuing]
I've talked to several people that know Mike very well and know Eren
very well that were at the party the night of the party. And those people --
Q. That's fine.
A. Right.
Q. That's fine.
I have -- that's not my question.
My question is, you don't know --
A. I have learned subsequent.
Q. -- other than what people have told you?
A. No.
Eren was introduced to me as Eren Chapel. Now, Eren Chapel is Eren Chapel.
If Eren Chapel was here today, I would say there's Eren Chapel.
Q. Are you aware, Mr. Curtis, as to whether Mr.
Mike Chapel has brothers who live in Gwinnett County? Do you know?
A. No, not off hand.
Q. Do you know that one of his brothers is also
in law enforcement?
A. No.
Q. Are you aware, Mr. Curtis, that one of his
brothers was married to a woman -- also married to a woman named Erin? Do you know that?
A. No, I didn't know that.
Q. What were you doing with that purse, Mr.
Curtis? Why were you messing with it?
A. I was teasing her.
Q. Were you going to take something out of it?
A. I think if I were going to do that, I would
have had it on the floorboard where she couldn't see it, not holding it up in
the air and yelling her name.
Q. You testified that it was a summer night and
the windows were down?
A. Uh-huh [affirmative].
Q. It was April --
A. Right.
Q. -- wasn't it, Mr. Curtis?
A. 18th.
Q. April is not the summer, is it?
A. It was -- it was warm that night. Spring.
Q. Now, this was -- it was spring. This was a party that involved a male
review?
A. Uh-huh [affirmative].
Q. And you said to us that you were managing the
male review?
A. Right.
At the time.
Q. Were you one of the dancers?
A. No.
Q. What were you doing there to manage the
review?
A. I was asked to go by a friend that was
dancing.
Q. Just to be there --
A. Right.
Q. -- to watch it?
A. Well, he asked me to go, he was dancing, and
I agreed to go.
Q. Was there --
A. I frequently have gone to the shows. As a manager, I've booked many of the shows,
and I'm -- in most circumstances, when I go to a show, you know, there's little
things that you need to collate or what have you. This was a private party, and I didn't see that that was going to
be an issue, but I didn't have anything to do that night, and so when he asked
me to go, I said I would.
Q. So you just went to basically to watch the
show, too?
A. I've seen it plenty of times, and I don't feel
like it's something I need to be watching.
It's not a -- that --
Q. These are actually male strippers?
A. Right.
I went with a friend.
Q. Do they take off their clothes?
A. Usually down to the G-string, yeah.
Q. In front of women?
A. Yeah.
Q. For entertainment. Was there a lot of drinking at that party?
A. Yeah.
As a matter of fact, when we got there, there were three or four large
bottles of wine that were empty, so I would say there was plenty of drinking.
Q. Were you drinking that night?
A. No.
Q. You didn't have a single thing to drink?
A. No. I
don't really drink all that much.
Q. You don't drink all that much?
A. No.
Q. But this was a party, wasn't it?
A. Yeah.
Q. And you didn't have anything to drink?
A. No.
Q. You told us about the car that you had
arrived at the party in, that contained, at your arrival, four men altogether,
including yourself?
A. Right.
Q. And, didn't you in fact describe the car to
the investigators to whom you spoke this past January as a little four-door?
A. Yeah.
It's a little four door.
Q. And there were five of you in the car --
A. No.
Q. -- after the party?
A. Right.
It's a five-seater, small four-door.
Q. You also told the investigators that neither
of the people who were your friends, Max or Jeff, had seen what you claimed to
have seen that night?
A. No, they didn't. They were in the store, in the convenience store.
Q. In fact, no one else saw what you claimed to
have seen that night?
A. Eren.
Q. No one else of the men who you were with saw
it?
A. No.
To my knowledge, no.
Q. So Eren Chapel's the only other person who
can corroborate what you've said?
A. Yeah.
I would say that's accurate.
Q. Thank you.
A. As far as what was seen.
THE
COURT: Redirect?
MR.
SMEAL: Just a couple of questions, Your
Honor.
REDIRECT EXAMINATION
BY
MR. SMEAL:
Q. Mr. Curtis, were you there -- you were there
to manage the group that night; is that correct?
A. Yeah.
Yeah -- no, not really. Because
Jeff Cox is a friend of mine. He's been
a friend for a lot of years. He gets
kind of nervous when he's doing it, and especially a private party. He asked me to go and I said I would.
Q. And this male review group, is that hired out
for the purpose of parties, birthday parties, and other such events?
A. Usually -- usually, it's entertainment in the
clubs, ladies night type things.
[Discussion
held between counsel off the record.]
MR.
SMEAL: May we approach the bench, Your
Honor?
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
SMEAL: The state wishes to introduce
this item as an exhibit and ask him if he recognizes the photograph. The reason that this has been placed over it
is to exclude some writing which is on this.
Counsel, I understand, is going to object because she raised the issue
of identification or possible identification with some other person. I want to ask him whether this is -- whether
he recognizes the photograph.
THE
COURT: What's the objection?
MS.
ROGAN: Well, I think it's improper to
put in part of a document, for one thing --
MR.
SMEAL: I'll put the whole thing
in.
MS.
ROGAN: I don't -- I wouldn't consent to
the entire document. I don't think that
-- they cannot call Eren Chapel --
MR.
SMEAL: I agree.
MS.
ROGAN: -- and I don't think that they
should be allowed to get around that prohibition.
THE
COURT: Well, that's an interesting
legal point. Why couldn't they?
MS.
ROGAN: Because of the spousal
privilege.
MR.
SMEAL: Well, she has to invoke that.
THE
COURT: Well, insofar as testifying as
to him, I suppose so. All right. What's your objection?
MS.
ROGAN: This witness also -- I don't
think he's laid a proper foundation for actually knowing who she was of his own
personal knowledge.
THE
COURT: I think if he's seen somebody,
he's in a position to say, yeah, he can identify them later or he can't.
MR.
MOORE: Your Honor, the picture they're
trying to use indicates the name of the person on it. I mean --
MR.
PORTER: Your Honor, that's why I
redacted it.
MR.
MOORE: They have the ability down at
the DA's office to have copied that thing and made a picture that didn't
include all that if they wanted to use it.
MR.
SMEAL: Your Honor, I don't suggest that
we give him the identifying information, simply the picture, and I had it
redacted so that only the picture, photograph is showing.
THE
COURT: I suppose is there any reason
not to cut it off --
MR.
SMEAL: Your Honor, it is from the
record's department.
THE
COURT: Okay. So that's the problem.
MR.
SMEAL: Yeah. It's an official record.
THE
COURT: Well --
MR.
MOORE: But my point, Your Honor,
they've had plenty of time to make a picture of this and make a copy of it if
they want to use it without the writing.
I mean, they have that capability.
MR.
MOORE: Your Honor, we can show it to this
witness without the writing. It's very
simple. We just cover up the writing.
MS.
ROGAN: But we also -- I mean, we object
to where they got it from, how they got it, what --
MR.
SMEAL: It doesn't make any difference
where we got it from. Your Honor, they
have raised the issue of identification.
MS.
ROGAN: Yes, it does. They can't just introduce a photograph if
there's no foundation for it.
MR.
MOORE: If you obtained it illegally, it
wouldn't be admissible.
MR.
PORTER: Your Honor, we can tie up the
foundation of how we obtained it.
THE
COURT: Yeah. Well, I think my inclination is to -- and I guess the question
is, if it comes in, then it's going -- are you going to offer it to the jury
and then --
MR.
PORTER: Your Honor, at this time, we're
prepared to have the witness identify it, but we have to tie it up with another
witness.
THE
COURT: I know. But I'm saying, if it's admitted, then
you've got a --
MR.
PORTER: Your Honor, I'll substitute our
copy.
THE
COURT: You've got it taped up.
MR.
SMEAL: We can substitute later on.
THE
COURT: Mr. Moore? Ms. Rogan?
MS.
ROGAN: We're not going to consent to
that.
MR.
SMEAL: We're not going to offer to
admit it at this time and won't ask to publish it to the jury at this time.
MR.
MOORE: Your Honor, I think they have to
lay the foundation first. They can't
just come in and say, 'We've obtained this.'
They may have searched somebody illegally and found that. They've never told us about this before.
MR.
PORTER: Your Honor, I state in my place
we obtained it from the permits department of the Gwinnett County police
department and there's no requirement for a foundation.
THE
COURT: Yeah. How it -- I mean, it's like every other photograph that's been
offered in. I don't think there's a
foundation requirement that you obtained it someplace.
MR.
SMEAL: Your Honor, we did not offer
this on direct examination. We had it
in our possession in the event that identification was being challenged, which
it has been challenged.
THE
COURT: Okay. My suggestion would be put something over it and staple it so
it's not going to come off or fall off or peel off. All right. Do that and
let's come back and do that and secure it.
MR.
SMEAL: If I could borrow the stapler, I
could do it right here, Your Honor.
THE
COURT: Any objection?
MS.
ROGAN: Yes.
THE
COURT: What's your objection?
MS.
ROGAN: It's the same objection I've
stated previously.
THE
COURT: And that is what?
MS.
ROGAN: That is that that's a redacted
document which we don't think is proper because it's not the whole
document. We have no basis for
believing at this point that the document was properly obtained, and we object
to its being used.
THE
COURT: Well, your objection on that
ground is overruled. That doesn't put
it in yet. And you can use it with the
witness if you lay a foundation.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Smeal.
MR.
SMEAL: Your Honor, I'd ask that this
item be marked as the state's next exhibit in order.
[State's
Exhibit Number 87 was marked for identification by the court reporter.]
BY
MR. SMEAL:
Q. Sir, directing your attention back to that
evening of April 18, the person that you have described as Eren Chapel, did you
see that person that night?
A. Yes.
I was introduced to her. I've
said that.
Q. All right.
And what were the lighting conditions when you met her?
A. Inside an apartment. Good.
Lights on.
Q. Were you able to see her face?
A. Yes.
Q. Sir, I'm handing you what's been --
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: I don't mean to run your direct
for you, but maybe it would be appropriate to have him describe her first.
MR.
SMEAL: That's fine.
MR.
MOORE: Your Honor, they're doing
something here too that wouldn't normally be allowed. They're doing a one-person showup when they've already --
MR.
PORTER: Your Honor --
MR.
SMEAL: That's not with respect to
witnesses. That's with respect to
suspects. Defendants in a case, the showup
cases, do not apply to witnesses. And
besides that, this is in response to a identification challenge that's been
made on a witness, not a defendant.
THE
COURT: Yeah.
MS.
ROGAN: There wasn't an identification
based on what she looked like. It was on
the basis of his knowledge of who she was, which is a completely different
thing than what she looks like and what her description is.
THE
COURT: Well, all right. Go ahead.
However you wish. Go ahead.
[Bench
conference concluded.]
THE
COURT: Go ahead, please.
BY
MR. SMEAL:
Q. Mr. Curtis, would you describe the woman that
you have described as Eren Chapel or you identified as Eren Chapel?
A. Uh-huh.
Probably five-seven. Although I
believe she had heels on. I'm saying
five-seven because she looked kind of tall to me. Long black hair, brown or black, dark brown or black. Very well-built. Good teeth. She had a
distinctive nose, kind of -- it turns up a little or something.
Q. Is there anything else distinguishing that
you noticed about her that evening?
A. No.
Q. Sir, at this time, I'm handing you what's
been marked as State's Exhibit 87, and I would ask you to take a look at that
photograph.
A. Yeah.
That's the Eren Chapel that was at the party.
Q. Okay.
Does that photograph fairly and accurately depict the person that you
saw on the evening of April 18, 1993, who you have described as Eren Chapel?
A. Yes, although her hair was different, and
it's really not that good a picture of her, but yeah.
Q. Thank you, Mr. Curtis.
MR.
SMEAL: No further questions.
THE
COURT: Recross?
MS.
ROGAN: No, Your Honor.
THE
COURT: Do you wish this witness to
remain on call?
MR.
PORTER: No, Your Honor. He has his job to go to and we'd ask that he
be excused. He's available and can be
reached.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, we'd ask he be on
call if we need him.
THE
COURT: Well, I guess my question is,
how do you -- what's your distinction between on call and can be reached to
come back?
MR.
PORTER: Well, Your Honor, I don't think
the distinction applies to Mr. Curtis as much as it might to government
employees because of that payroll function, but with Mr. Curtis, we have his
beeper number, his home number --
THE
COURT: Okay.
MR.
PORTER: -- his work number. And if there was a necessity to bring him
back, although the state does not anticipate that, we can get hold of him.
THE
COURT: Okay. You'll remain under subpoena, but you are free to go and just be
subject to being called back. You can
come down.
THE
WITNESS: Thank you, sir.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MR.
PORTER: We would recall Officer Ed
Byers.
[The
witness was called to the courtroom and stepped to the witness stand.]
MR.
PORTER: Officer Byers, if you could retake
the witness stand, please.
THE
COURT: Are you going to swear him
again, Mr. Porter?
MR.
PORTER: Yes, sir, I'm going to. Officer Byers, you've previously testified,
but I'm going to ask you to take the oath again. If you could raise your right hand. Do you solemnly swear the testimony you're about to give in this
matter now pending shall be the truth, the whole truth, and nothing but the
truth, so help you God?
THE
WITNESS: Yes, I do.
Whereupon,
having
been recalled as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. PORTER:
Q. Okay.
And could you put your hand down?
And once again, for the record, if you could state your name and spell
it, please.
A. Officer C. E. Byers. The spelling of the last name is B-y-e-r-s.
Q. All right.
And Officer Byers, you've previously testified about your actions on the
morning of April 16, 1993; is that correct?
A. Yes, sir, I did.
Q. Now, after April 16, 1993, did you come into
contact with the defendant, Mike Chapel?
A. Yes, sir, I did.
Q. Could you describe for the jury the
circumstances of how you came into contact?
A. Yes, sir.
It was a couple of days after April 16.
I don't recall the specific date.
I was on my way to turn my paperwork in. I'd worked the day shift, so it would have been about 3:15 in the
afternoon. As I was walking in the back
door of the precinct, Officer Chapel, who was working the evening shift, was at
the gas pumps, which is directly behind the precinct, gassing his car up. I stopped.
I don't recall exactly how the conversation began, but at some point, we
discussed the homicide. Officer Chapel
was upset that they were -- they being the supervisors -- were going to make
him go back and prepare a police incident report based on the burglary
complaint that Ms. Thompson had made earlier in the month.
Q. All right.
And did he express that -- you termed it as being upset. Did he express that to you?
A. Yes, sir, he did. I don't remember the specific words, but that's -- that was what
he conveyed to me.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Cross-examination?
MR.
MOORE: Your Honor, it's come to my
attention that there's a document that we may need that we didn't have in the
courtroom here this morning. I wonder
if we could take about five minutes and allow me to go down and get it.
THE
COURT: Yes, sir. Yes, sir.
That'll be fine. You need it
with this witness?
MS.
ROGAN: Yes.
MR.
MOORE: Yes, Your Honor.
THE
COURT: All right. We'll take five minutes. If you'll just leave your pens, pads, and
notes in your seats, they'll be waiting on you when you return.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: We'll take five minutes.
MS.
ROGAN: Thank you, Your Honor.
[A
brief recess was taken in the proceedings.]
THE
COURT: Ready, Mr. Moore? Ready, Mr. Porter?
MR.
PORTER: Yes, Your Honor.
THE
COURT: Bring the jury back, please.
[The
jury returned to the courtroom and proceedings continued as follows.]
THE
COURT: Go ahead when you're ready, Mr.
Moore.
MR.
MOORE: Thank you, Your Honor.
CROSS EXAMINATION
BY
MR. MOORE:
Q. Office Byers, you already know me from the
other day. How long have you known Mike
Chapel?
A. Probably since 1986. I was -- there was three years I was -- had
left Gwinnett and was in the military and when I came back, I believe -- I
believe Mike was working here then. I'm
not specifically sure.
Q. Did y'all ever have occasion to work together
on the same shift or anything?
A. No, sir.
Well, Mike was on the day shift, it seems like, for about two weeks, and
I think he asked to go back to the evening shift, but we were on the shift, but
we -- I don't think we ever actually worked right next to each other or
answered calls together.
Q. Now, most police officers hate to do
paperwork; is that true?
A. We try to avoid it if --
Q. Yeah, just like everybody else. Everybody hates to do paperwork. Do you know if Mike Chapel had a reputation
about -- what was his reputation for doing paperwork up at the northside
precinct?
A. No, sir.
I didn't. Like I say, I didn't
-- I never worked with him directly, so I didn't really know what his habits
were on how he --
Q. But your reputation can be what you've heard
about other people, too. Had you heard
anything about his habits or his reputation for doing paperwork up at the
northside precinct?
A. In regards specifically to paperwork, no,
sir.
Q. You say specifically to paperwork. Is there something else that --
A. No.
Just that -- no, no. Not
particular, no, sir.
Q. And now, when you met him that afternoon at
the gas pump, that would have been what, about the 18th?
A. I don't recall the specific date. I'm just not clear on that. I know it was several days after April 16.
Q. We've got a calendar here that's marked State's
Exhibit Number 1. Would that help you
figure out what date it was if you looked at the calendar?
A. No, sir.
I've tried. I don't recall what
day it was.
Q. Well, the 16th would have been the date when
you went out to the crime scene?
A. Yes, sir.
That's correct.
Q. And do you remember if you worked the next
two days or not?
A. I don't recall. No, sir, I don't.
Q. So you don't know whether it was the 18th,
the 19th, or 20th or what it was?
A. That's correct. I have no --
Q. Had the road checks already been run at that
time?
A. I'm not -- I honestly don't know the dates
that they ran the road checks. That
was, I think, during the evening shift, which I work the day shift, and so I
wasn't aware of that.
Q. And when you met Mike Chapel that afternoon,
did y'all stop and talk to each other?
A. In regards to at the gas pumps?
Q. Yes, sir.
A. Yes, sir.
Just for a few minutes. Yes,
sir.
Q. I mean, was it just a casual thing? Were you filling up your car and he was
filling up his?
A. No, sir.
I was on my way in to turn my paperwork in for the day, and he was
gassing his patrol car up, getting ready to go out on the evening shift, and we
just -- we passed by.
Q. Okay.
And how long did this conversation last?
A. It was no more than a couple of minutes.
Q. Do you remember what you talked about?
A. No, again, I don't even know who initiated
the conversation. The only thing that
stands out was the fact that I do remember that we discussed the homicide.
Q. Okay.
And that was common topic of discussion up at the northside precinct at
that time, wasn't it?
A. There was some discussion about it, yes, sir.
Q. Okay.
By that time, had you heard that there was a Gwinnett County police car
involved?
A. No, sir.
Q. Okay.
So that was probably before the road checks were run, then, where they
discovered there was a Gwinnett County police car involved?
A. That's possible. Again, I don't know the dates that the road checks were run. I had no knowledge of a police officer or a
car being involved.
Q. Well, when they started doing the road checks
and the officers were down there stopping people and everything and people
started telling them that it was a police car involved and people were saying
it was a Gwinnett County police car, didn't the word spread pretty fast in the
precinct about that?
A. I heard about it, yes, sir. I don't recall exactly what day that was.
Q. But this was probably before that, since --
A. I would -- yes, sir, I would say it probably
was. Because like -- I felt like it was
only a couple of days after the 16th.
Q. And basically what you're saying is is that
Officer Chapel was just complaining and bitching about doing paperwork?
A. Yes, sir.
He was complaining about having to go back and do the burglary report.
Q. And you didn't think there was anything
unusual about that at the time, did you?
A. Unusual?
Q. Yes, sir.
A. That he was upset about it?
Q. Well, that he didn't want to do the
paperwork.
A. Well, I guess the thought did pass through my
mind if he'd've done it that night, then he wouldn't had to gone back and do
it.
Q. Okay.
In other words, if he'd been diligent and done it while he was on duty,
he wouldn't have had to come back and do it later?
A. Well, I didn't respond to the scene, but that
thought passed through my mind.
Q. Okay.
Have you seen other occasions where police officers didn't do the
paperwork on time?
A. Yes, sir, I have.
Q. Is that a fairly frequent thing?
A. It's not frequent, but it does happen.
Q. Has it ever happened to you?
A. I'm sure it probably has, yes, sir.
Q. I mean, everybody from time to time doesn't
get their stuff done on time. I mean,
I'm not trying to say there's anything wrong with it, but --
A. Right.
Yes, sir.
Q. When were you first interviewed regarding
this?
A. The specific date, I don't recall.
Q. Was it that month or that year?
A. It would have been after Chapel's arrest,
which I understand was the 24th.
Q. Okay.
Do you know if anybody in the precinct up there was interviewed prior to
Mike Chapel's arrest?
A. Not to my knowledge.
Q. Okay.
Now, after the road checks were run and after you heard about that there
was a police car involved, what was the mood up there at the precinct of the
police officers, what was the -- were people talking about the homicide?
A. There was conversation about it.
Q. Okay.
Was there speculation about if there was a police officer involved, was
there apprehension?
A. I would say, yes, sir. That would be true.
Q. Okay.
Is it fair to say that everybody was alarmed once they found out that
there was a police car involved?
A. Yes, sir.
I would say that would be true.
Q. Okay.
Were you surprised that nobody came up there and interviewed you or
anybody else in the precinct before his arrest?
A. No, sir.
Q. You didn't think that -- you didn't have an
opinion that they would want to know where everybody was and what they were
doing?
MR.
PORTER: Your Honor, this officer isn't
competent to comment on the -- have an opinion about the conduct of the
investigation, and he's not competent to do it. And, second of all, it's irrelevant what his opinion is as to the
competency of the investigation. That's
a matter for the jury to decide.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, he's a trained
police officer, and he'd be allowed to give his opinion about investigations.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. MOORE:
Q. Do you find it unusual, if you have an
opinion, about what -- the fact that they did not interview anybody else up
there at the precinct prior to Mr. Chapel's arrest?
A. No, sir.
I wasn't privy to all of the -- the actual investigation, so I didn't
know what had been done and what had not been done. I can only say that for myself that to my best recollection I was
not interviewed until a time after Officer Chapel was arrested.
Q. Do you know of anybody else that was
interviewed?
A. No, sir.
Again, I don't know. I don't
recall.
Q. Okay.
And when were you interviewed; do you remember that?
A. No, sir, I don't.
Q. Was it on duty or at home?
A. I believe it was on duty. I went to police headquarters.
Q. And what did they ask you about?
A. Just simply, you know, any knowledge that I
had of Mike, anything that I felt that needed to be said about the -- about the
precinct.
Q. Did they ask you anything about where you
were or anything? I'm not accusing you
of anything. I'm trying to get the
investigation out, what was done as far as the investigation. Did anybody ask you where you were on the
night of April 15, 16?
A. I don't think they did, no, sir.
Q. Did they inquire about what kind of car you
drove or anything?
A. I don't think they inquired, but they -- they
would have that information available.
Q. Okay.
And what kind of car did you drive at that time?
A. A '94 Ford.
Q. Now, each of the precincts has what's called
a spare car; is that correct?
A. Yes, sir.
Q. Okay.
And the northside precinct has a spare car, also; is that correct?
A. Yes, sir.
Q. Okay.
And that car is there for the purpose if anybody's car breaks down or if
they need a car or anything like that, that they can get that car and not have
to wait until the next day to be stranded?
A. Yes, sir.
Q. Okay.
Now, do you know where the keys to that car was kept at, the spare car?
A. They had them at different locations. Different places within the precinct would
be designated.
Q. Where were they back in 1993?
A. There was just a small office off one of the
main hallways, and I believe they was up on a bulletin board in that office.
Q. And was this something that if somebody's car
was having problems, they could just come in and get the keys and then go back
out with the spare car?
A. There was a procedure that you were supposed
to follow. You were supposed to, of
course, I think check with the supervisor and get the car assigned to you, but
I think a great many of the times, if necessary, officers would walk in and get
the keys and walk out.
Q. If they needed the car, it was common to go
get the car and go on with it?
A. Yes, sir.
They were -- again, they were supposed to -- if they were beginning a
tour of duty, they were supposed to notify the sergeant that what car they were
in, because of our daily log sheet, they would put down what unit that the
officer was working in.
Q. Okay.
I'm going to show you what's been marked as Defendant's Exhibit Number
55 --
MR.
PORTER: Your Honor, if I could take a
look at it.
MR.
MOORE: I'm sorry. I apologize.
MR.
PORTER: I haven't seen it.
[Mr.
Moore presenting to Mr. Porter]
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 55 and ask you if you can identify the scene in that photograph.
A. Yes, sir.
It's like a current photo of the gas pump at the northside precinct.
Q. Okay.
Now, the parking lot and the gas pumps there, is that a true and
accurate representation of the way it looked in 1993 also?
A. No, sir.
This one building back here was not there.
Q. Okay.
I'm talking about the gas pumps in the parking lot.
A. Yes, sir.
I would say that was good.
Q. That hadn't been changed at the precinct
since 1993?
A. No, sir, I don't believe so. Well, actually, there was some change maybe
in the gas tanks and some new cement was poured, but it looks about the same.
Q. Okay.
And there's a building behind there that's been erected since that time
in the background; is that correct?
A. Yes, sir.
That's a day care center.
Q. And visible in that photograph are a number
of police cars there; is that correct?
A. Yes, sir.
Q. Okay.
Can you identify the spare unit in that photograph?
A. I can only guess as to probably what the
spare is. The one with the yellow
stripe.
Q. The one with the yellow stripe?
A. Yes, sir.
But --
Q. That photograph's a small one. I'm going to show you what's been marked as
Defendant's Exhibit Number 2 and ask you if you see a larger photograph of the
car that you're picking out on the small photograph.
A. Well, I see another Ford with a yellow
stripe.
Q. I don't mean necessarily it's the identical
car, but a car that's the same type car.
A. Yeah.
Right. Number 6.
Q. Same colors and same markings and everything.
A. Number 6.
Q. Number 6?
A. Yes, sir.
Q. Okay.
And is there a car on that larger photo lineup there like Mike Chapel
drove with the same markings and everything?
A. I want to say that probably 3 and 11. I don't know. I can't tell if there's a difference between those two or
not. Other than one -- of course, one's
a slick top, so I guess 11 would be more appropriate.
Q. Eleven would be one like Mike drove?
A. Yes, sir.
Q. Okay.
MR.
MOORE: Your Honor, I'd tender
Defendant's Exhibit Number 55.
MR.
PORTER: Your Honor, Officer Byers says
that it's not -- that it is an accurate representation of the gas pumps as they
are. He has described significant
differences from what it looked like in 1993.
I think that brings into question the authenticity of the photograph as
far as how the gas pumps looked in 1993.
THE
COURT: Mr. Moore?
MR.
MOORE: Well, Your Honor, we weren't --
it wasn't -- we weren't on the case back in 1993 to photograph at that
time. The police did not. We did the best we could to reconstruct
what's there as far as the gas pumps and the area where this was supposed to
take place.
THE
COURT: Defendant's 55 is admitted over
objection.
BY
MR. MOORE:
Q. When you were interviewed, Officer Byers, who
interviewed you?
A. At the time it was Lieutenant Latty. He's now captain. Jack Burnette was present.
It seems like there was one other individual, but I don't recall myself.
Q. Okay.
And did they take a written statement from you regarding this?
A. I don't believe they did, but I think they
were taking notes. I don't recall
signing a statement.
Q. Okay.
Do you remember working a chop shop case on Hamilton Mill Road with
Officer Chapel where his father works as an undercover lookout?
A. I recall working a case with Officer Chapel,
yes, in regards to a stolen vehicle.
Q. Okay.
Were the vehicles recovered in that operation?
A. We had one vehicle recovered, yes, sir.
Q. And are you aware that Officer Chapel got a
letter of commendation for that?
A. I'm sure he did.
Q. Thank you.
MR.
MOORE: That's all I have.
THE
COURT: Redirect?
REDIRECT EXAMINATION
BY
MR. PORTER:
Q. Corporal Byers, at one time during your
career with the Gwinnett County police department, were you assigned to the
investigative division?
A. Yes, sir, I was.
Q. And what part of that division were you
assigned?
A. I worked auto theft.
Q. During the course of your assignment to the
investigative division, did you conduct -- or how many investigations did you
conduct, just an estimate?
A. In the four years?
Q. Yes, sir.
Or how many a month? Let's make
it easier. How many a month would you
conduct?
A. I would at least get anywhere between thirty
and forty new cases a month of stolen vehicles.
Q. And as an investigator, did you follow where
the evidence led you in determining a solution to a crime?
A. Yes, sir.
If evidence existed, I would pursue it.
Q. All right.
As an investigator, did you engage in hypothetical and what-ifs in order
to determine who to interview or would you follow the evidence?
A. I would just go with what evidence I had.
Q. And would you say that that is standard police
procedure in an investigation?
A. Yes, sir.
Q. Let me also ask you about Defense Exhibit
Number 2. In terms of the markings of
the vehicle, just the markings, would you look at those and determine which, if
any, of the vehicles have the same or similar markings?
A. In regards to markings, photo 3, 6, 11, and
12 have the basic marking configuration.
Q. And in regard to Defense Exhibit Number 2, in
1993, do you recall the markings of the Gwinnett County police car, the
standard police-issue patrol car? And
if you don't, that's fine, too.
A. I would say probably photo 12 would be a good
representation of it.
Q. All right.
And can you look at photo 3 and 11 and draw some conclusion from that?
A. Well, I can visibly see that they're
different from the photo 12 in the markings.
Q. In terms of their markings?
A. Yes, sir.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Recross?
RECROSS EXAMINATION
BY
MR. MOORE:
Q. Officer Byers, when you worked as an
investigator, if you had a case where you had a description of a suspect and
you had a description of the vehicle they drove and you had several people that
fit that description, wouldn't you have interviewed all of them before you made
a decision?
A. If I had that much information, I would
attempt to interview the suspects.
MR.
MOORE: That's all I have.
THE
COURT: Anything else of this witness?
FURTHER REDIRECT EXAMINATION
BY
MR. PORTER:
Q. Officer Byers, in your expert opinion, add
one more fact. What if you had a
photographic lineup identification of only one of those suspects, which one
would you use?
A. I would -- the one I had the photographic
lineup.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Anything else, Mr. Moore?
FURTHER RECROSS EXAMINATION
BY
MR. MOORE:
Q. If you had the information I gave you
earlier, that you had a description, you knew what kind of car it was, and you
had a group of people that fit that description, would you wait a week or two
for a photographic lineup or would you proceed ahead to interview those people?
A. It would depend on the information. Again, I would have to look at that
particular case and everything else that I was doing at the time.
Q. Okay.
And if these were people that were willing to talk to you, would that
make a difference for you to go ahead and try to talk to them?
A. If they were available and I could work it
into my schedule, I would I think make a genuine effort. I think I would have to.
Q. Thank you.
MR.
MOORE: That's all.
MR.
PORTER: I have no other questions for
Officer Byers, Your Honor.
THE
COURT: All right. You can come down. Is he on call at this point?
MR.
PORTER: Your Honor, yes. He can't be released from his subpoena. I believe he's under defense subpoena also,
but he's available. He's on duty.
THE
COURT: Okay. All right. You can come
down at this point. Call your next
witness.
[The
witness stepped down from the stand.]
MR.
PORTER: We call Captain R. L. Davis to
the stand.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: If you'll be seated on the
witness stand, please. Mr. Porter will
administer the oath.
MR.
PORTER: Could you raise your right
hand, please. Do you solemnly swear the
testimony you're about to give in this matter now pending shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. PORTER:
Q. And you can put your hand down, and could you
state your name, please.
A. I'm Captain Ronald L. Davis for the Gwinnett
County police department.
Q. And Captain Davis, what are your duties with
the Gwinnett County police department presently?
A. I'm a captain in charge of facilities
maintenance for the police department.
Q. Okay.
Let me call your attention to April 1993. What were your duties in April 1993?
A. I was assigned as a captain in
investigations. I was over crimes
against persons and crimes against property.
Q. And in the course of that assignment, were
you involved in a supervisory level into the investigation of the death of
Emogene Thompson?
A. Yes, I was.
Q. And were you involved in that investigation
throughout the course of the investigation?
A. Through the majority of it. I was on leave for maybe two days during the
first part.
Q. Now, I'd like to call your attention to the
days between the death of Emogene Thompson on April 16 and the arrest of
Michael Chapel on April 22. Were you
involved in the interview of witnesses and the gathering of evidence along with
the other police investigators?
A. Yes, I was.
Q. In the course of that involvement, did you
happen to have a conversation with Mike Chapel at the northside precinct?
A. Yes, I did.
This was on the Tuesday night, I believe, the 20th.
Q. All right.
And can you describe for the jury the conversation you had with Mike
Chapel on the 20th? Where did it take
place, first of all?
A. Well, I had gone to the precinct to make a
telephone call. And after I had
completed the phone call, I came back through the assembly room there and Mike
was at what we call the forms cabinet.
And he walked on outside the precinct, out to the back there with me,
and we had just a general conversation, you know, about his family and about an
older truck that he had bought, and how he was getting along. And he brought up
the homicide case and asked me how it was going, and I asked him what he
thought about it. He said that he
thought it or -- it might be some druggers or he'd heard that it might be some
druggers or Emogene's son or this Sugar Hill deputy that they had there, Sugar
Hill marshal. And I asked him, 'Well,
who do you think it might be?' And he
says, 'Well, I don't know, but I have an alibi. I was at the precinct there in the fire station with Rooster,'
who is Sergeant Donald Stone, 'and Officer Brian Reddy.' And I think he said that he was huddled up
with the firemen because it was a rainy night that night and they were watching
the weather station and all to see about the weather.
Q. Okay.
And did he volunteer this information to you?
A. Yes.
Q. Did you ask him any questions in regard to
that?
A. The only question I asked was what do you
think about -- you know, who do you think the officer might be.
Q. And by the time that you had this
conversation with Mike Chapel, had the information already begun to develop
that a police officer might be involved in this murder?
A. Yes, it had.
Q. Now, Captain Davis, I also want to --
MR.
PORTER: If I could just take a moment
to have these marked, Your Honor.
[State's
exhibits were marked for identification by the court reporter.]
BY
MR. PORTER:
Q. Captain Davis, I'd like to show you three
video cassettes, and can you examine those, please? Those are marked State's 88, 89, and 90.
A. All right.
Do you want me to --
Q. And if you can identify them and refer to
them by exhibit, please.
A. This is Tape Number 1 that I can identify and
I stuck the tape on the part here as a tape made on 4/23/93, Tape Number
1. It started at 22:27 and 25
seconds. Ended at 00:31 and 15 seconds.
Q. Now, can you translate those numbers into --
A. All right.
22:27:25 is ten o'clock, 10:27 and 25 seconds. The 00:31 is 12:31 at night and 15 seconds.
Q. All right.
A. On the 4/24 that went from 4/23 over to
4/24. I also scratched into the tape
here my initials and the Number 1.
Q. All right.
THE
COURT: And what Exhibit Number was
that?
THE
WITNESS: It's S-88.
THE
COURT: All right. Go ahead, please.
BY
MR. PORTER:
Q. If you could go on to State's Exhibit Number
89, and can you identify that, please.
A. All right.
This is a tape with my initials scratched in it with RLD Number 2. It's dated 4/23/93, Tape Number 2, times --
tape started 00:31:50, 4/23/93. Tape
ended 4 -- 02:26:21.
Q. So that's two o'clock -- 2:26 in the morning
that it ended?
A. Yes.
Q. And do you recognize State's Exhibit Number
89 from the fact that your initials are scratched into it?
A. Yes.
And also I had signed on the tape.
Q. And can you look at the next exhibit, State's
Exhibit Number, and see if you can identify those, please?
A.
All right. I have the RLD scratched in with Number 3 -- Tape Number 3. Started 02:26:41. Ended 03:36 hours, and my signature on the tape here as well.
Q. And if you could just put that back in the
box. Let me ask you about the
circumstances of the creation of those three videotapes. First of all, were those created on the
night that Mike Chapel was arrested?
A. Yes.
Q. And were you responsible that night for the
operation of the video equipment that is in the interview room where he was
interviewed?
A. Yes, I was.
Q. At that time, were you familiar with the
operation of that video equipment?
A. Yes, I was.
Q. And was the video equipment operating
correctly that night?
A. Yes, it was.
Q. And did you review the tape during the making
of the tape to ensure that it was a true and accurate representation of what
happened?
A. Yes.
The TV was there, the monitor was on, and I viewed as the tape was being
taped.
Q. And have you had the opportunity to review,
at some time between now and then, the tape to determine whether or not those
exhibits you've just identified are, in fact, the original tapes that you made
that night?
A. I have not viewed those.
Q. At the time you were reviewing it as it was
happening, were there any malfunctions in any of the machinery?
A. No.
MR.
PORTER: Your Honor, at this time, we
would move to admit State's Exhibits Number 88, 89, and 90 for the record only.
THE
COURT: Mr. Moore?
MR.
MOORE: No objection for the record,
Your Honor.
THE
COURT: They're admitted without
objection.
MR.
PORTER: That's all the questions I have
for Captain Davis, Your Honor.
THE
COURT: Mr. Moore?
CROSS EXAMINATION
BY
MR. MOORE:
Q. Captain Davis, you know me, so I don't need
to introduce myself. I have a few
questions I wanted to ask you about Mike.
How long have you known Mike Chapel?
A. I'm not sure. I think he started working around 1985. I really met him probably in '86, '87, the latter part of '86,
first part of '87.
Q. Okay.
Did you and he ever have occasion to work together?
A. Yes, we did.
Q. And when did you work together?
A. I was district commander for the westside
precinct, which included westside and northside. I think I started there in around '89 and the latter part of '88,
'89, right in that range, till December '91.
And he was assigned to me during that time.
Q. Okay.
And would you tell the jury what kind of work he did as a police officer
during that period of time?
A. The only time that I had any kind of close
association with him -- of course, as a captain, you know, you have other
people between you and a patrolman, you have the lieutenants and sergeants and
all. As far as direct supervision, I
really didn't have that direct supervision where I would review his reports and
things of that nature. However, when I worked at Buford, I was the
district commander there. We were
working real close in the community there to try to get the drugs and all
stopped, and I worked closer with him.
I was really interested in getting the drugs there stopped and I -- so I
was out in that area quite a bit.
Q. Okay.
And was he an effective police officer when you worked with him in
Buford?
A. In what we were working with at that time,
trying to stop the drugs, I feel like we were able to curtail the drugs quite a
bit, and he was a large part of that.
Q. Okay.
He had a large -- excuse me, he had a large network of informants and
people that gave him information regarding the drugs and everything and you
were aware of that; is that correct?
A. That's correct. I don't -- don't know the numbers. Of course, you know, it was just traditional. You don't discuss people's informants and
things of that nature, so I don't know that he had a large number. I know that he could provide information.
Q. Okay.
He was good at getting information is what I'm saying?
A. Yes.
Q. Now, he may have had some unorthodox methods
sometimes, but would you say he was good at getting information out of these
people and handling the cases?
A. I'm not sure what you mean by unorthodox
methods because I didn't tolerate unorthodox methods.
Q. I don't mean anything illegal, but I mean he
just didn't always go by the book?
A. When I was around, he went by the book
because I think that's one thing that he had an understanding with me that
things should be done by the book. I
wouldn't use the term unorthodox.
Q. Okay.
Well, I guess what I'm saying is there's a lot of things that are
written down in the regulations and then there's a lot of things there are gray
areas where they're not exactly written down but everybody knows that you can
go so far this way or that. And then if
you cross some line at some point, you clearly can't do it. And I'm asking was -- about Mike's being in
that gray area where there's no written regulation, but it's not against the
law either?
A. I'm not familiar with an occasion that that
occurred.
Q. Okay.
You're not aware of that?
Okay. Now, the same day that you
talked to Mike up there about -- and he told you he thought it might be some
druggers or her son or something like that, you had a conversation with
Sergeant Stone too, didn't you?
A. That's correct.
Q. Okay.
And Sergeant Stone told you
that Mike was with him at the fire station till ten or 10:15 that night, didn't
he?
A. That's correct.
Q. And this was on April 20, 1993?
A. That's correct.
Q. That was four days after the crime?
A. It was on Tuesday night, yes.
Q. Okay.
The discovery of the crime. So
Sergeant Stone's memory would likely have been fresher then than it was later,
wouldn't it, four days after the crime?
A. It -- possibly, yes.
Q. Okay.
That's the reason you took the statement, wasn't it, because he told you
a time and you wrote it down to preserve that -- what he had told you?
A. The reason I wrote the statement, you know,
again -- I didn't ask him the question, you know, and we were talking about his
family and things of that nature. And
he questioned me about -- about the homicide.
I asked him, you know, what he thought.
When I asked him who he thought the officer might be and he came out
with the, 'Well, I have an alibi,' to me that was significant. Also, if you'll notice on the form that I
wrote that's a -- it's not a regular supplement sheet that we use. I thought it was so significant at the time
that when I left the precinct I immediately pulled over and wrote that down so
I could be as clear with it as I could possibly be.
Q. Okay.
A. Because I thought that it was significant
that he would offer a statement like that.
That's not something that I have heard from other policeman that I have
dealt with when you ask them questions to say -- you know, use the terminology
that 'I have an alibi.'
Q. Okay.
Now, when you talked with Sergeant Stone, did he volunteer the times to
you, too, or did you question him?
A. I asked Sergeant Stone about that because
when he had said that he was there, I went in to see what Sergeant Stone said
because Sergeant Stone was there at the time.
Q. Okay.
And you thought what Sergeant Stone told you was significant, too, so
you wrote it down also?
A. Yes, I did.
Q. And you --
A. Because he gave a specific time and I felt
like that it was necessary that we -- you know, when he gives that time, that I
should record it. And then I recorded
it as correctly and accurately as I could as quickly as possible.
Q. Right.
To make sure your memory didn't fail you to what Sergeant Stone told
you?
A. No. I
immediately stopped -- you know, when I left the precinct, I pulled right over
and wrote that one in the car because I thought it was significant.
Q. Okay.
And you knew at that time what time the homicide was believed to have
occurred, didn't you?
A. I knew that the -- the approximate
times. Now, I did not know of any exact
times. I don't know that they have been
determined.
Q. Okay.
But you knew the time was an important factor at that point --
A. Yes, I did.
Q. -- when you talked to Sergeant Stone?
A. Yes, I did.
That's always an important circumstance when people talk about times.
Q. And so you made sure that you were sure of
what Sergeant Stone told you when you wrote it down?
A. Yes.
I stopped and recorded that just as soon as I left the precinct, as soon
as I could get to a place that I could pull over, I wrote that -- that
supplement.
Q. Now, Captain Davis, did you ever have
occasion to work on any other case that you had reason to believe was related
to this case at a later time?
A. Can you be a little bit more specific?
Q. Well, I don't know which you may have worked
on. I had received some information, I
don't know if it's correct or not, and I'm just trying to determine from you
whether or not you worked on a subsequent case where you had reason to believe
there might be some evidence connected to this case.
A. In following up, yes, I worked on some more
cases that we felt that Mike Chapel was a suspect in some other cases.
Q. Okay.
I'm not talking about Mike Chapel.
I'm talking about any other cases other than that, connected to the
case, involving other people that you investigated?
A. All right.
All those cases, the reason that we were doing it was because Mike
Chapel was a suspect in those cases, and we were working on it. Is that what you're talking about?
Q. No.
I'm talking about different --
A. Everything that we were working on this case
was because Mike Chapel was a suspect in the case, and it was leading us on
various trails.
Q. Okay.
So you didn't work on a subsequent case where somebody else was a
suspect that you thought there might be evidence involving this case?
A. No -- oh, that -- the other -- are you asking
who we felt like would be a suspect at the first part or what?
Q. Well, other than Mike Chapel, was there
anybody else that you felt like might be a suspect in another case that you
worked on?
A. Now, we felt like, you know, right at first,
that the possible suspect would be Emogene's son. Is that what you're asking?
Q. I'm asking after Mike's arrest, did you work
on any other case that -- where you thought there might be a suspect, that
somebody else committed the crime other than Mike?
A. On this case?
Q. Subsequent to Mike's arrest. Some other case that you worked on.
A. Subsequent to his arrest?
Q. Yes, sir.
A. And I'm trying to -- I really don't
understand your question.
Q. Well, like I say, the information I got was
very vague, and I don't know whether it was true or not, and that's why I'm
trying to ask you about it.
A. Now, we suspected her son in the case.
Q. But after you arrested Mike, you worked on
other cases, I mean, you know --
A. Yes.
Q. You did work on other different cases.
A. Now, you're talking about after we
arrested Mike --
Q. After you arrested Mike.
A. -- did I feel like anybody else did that
besides Mike?
Q. Did you work on any other case where you
thought there was information that might be involved with this case, other than
the ones you've told us about already?
A. I have not worked any other case -- I'm
trying -- again, I have not suspected anybody else of this crime because of any
other case that I've worked. Does that
answer it?
Q. Okay.
And you never made any statements about you were going to get to the
bottom of it or something like that?
Was anything like that ever said on any other case?
A. I had a conversation with -- and get to the
bottom, I can think of one thing. I had
a conversation with Chief White one time, and I said that we needed to turn
every rock in Buford, you know, to see what's going on.
Q. Okay.
And was that involving any other case other than Mike that you were
working on when that was said?
A. Any other case?
Q. Yes, sir.
A. The only thing that I can think of that we
were working on at that time was, you know, what would involve Mike, and I
think at the time that I made that statement, I think maybe that was about the
time that we arrested Bodie Hurst.
Q. Okay.
And did you have any part in that investigation of Bodie Hurst?
A. Yes, I did.
Q. Okay.
And did you continue on the case or did you -- was the case taken over
by somebody else?
MR.
PORTER: Your Honor, I'm going to object
to this line of questioning. It's not
relevant to this issue or there's been no showing of relevance.
THE
COURT: Would you approach the bench?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: Where are we headed?
MR.
MOORE: Your Honor, I received some
anonymous information that he might have knowledge involving the Bodie Hurst
case and maybe the J. P. Morgan case. I
purposely did not use the names when I asked him, to try to find out if he did
have information. I'm not trying to
suggest things to him, you know.
MR.
PORTER: Well, Your Honor, he's a
witness in the Bodie Hurst case. He
does know about the Bodie Hurst case, but there's no -- there's been no showing
of a relationship between that case and this case. Now, I think this kind of fishing in front of the jury is
prejudicial. I don't --
THE
COURT: Well, I guess the question in my
mind is I don't know that he is precluded from saying, well, with respect to
these -- any of these other cases or any other cases, is this defendant a
suspect in those or was there any information in those tending to show somebody
else killed Emogene Thompson or was connected with it.
MR.
MOORE: Well, Your honor, I asked him if
it was connected to this case. I mean,
he brought up the Bodie Hurst case. I
mean, he volunteered that. I did not
suggest that to him.
MR.
PORTER: Your Honor, he said that at the
same time --
THE
COURT: Not exactly volunteered, but
anyway.
MR.
PORTER: He said at the same time he was
working on it.
THE
COURT: Yeah. I think it's legitimate.
I think your line of questioning is legitimate in that when they did in
course of their investigations or other investigations, did they produce any
other suspects or any other -- in any of those and if there was anybody else
appeared to be connected with the murder of Emogene Thompson. I mean, that strikes me as being legitimate
questioning.
MR.
PORTER: I don't have any --
THE
COURT: But I don't think that opens the
door to go in and say, well, tell us everything that happened in these other
investigations --
MR.
MOORE: No, I don't intend to.
THE
COURT: -- that's extraneous to it. So I'll allow you to, you know, follow that
line of questioning as far as inquiring whether other investigations -- I don't
know there's any prohibition on naming the names. What's the problem on that?
MR.
PORTER: I don't think there is, but I
think that there's been no showing of any connection. And now we're getting into the facts of a case that are really
not relevant to this.
THE
COURT: Well, but there were occurrences
and other investigations that involved police officers all about the same
time. And it seems to me that's enough
connection that he ought to be allowed to inquire as to whether anything from
those investigations reflected anybody
else being in any way -- have any culpability with this offense. I think he ought to be allowed to go that
far.
MR.
PORTER: I think that -- but that's as
far.
MR.
MOORE: I don't intend to get into the
details unless he says it was connected to this case. And if it was, I think I can get into details.
THE
COURT: I think that's a fair area of
inquiry.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Moore.
BY
MR. MOORE:
Q. Captain Davis, with regard to the Bodie Hurst
case, without saying what the result was, was there an investigation in that
case?
A. Yes, there was.
Q. Okay.
And without getting into the facts of it, was there an arrest in that
case?
A. Yes, there was.
Q. Okay.
And did you have reason to believe there was anything in that case that
was connected to Mike Chapel's case?
A. No, I did not.
Q. Now, there was another case that occurred
about that time that wasn't deemed a criminal case, but there was an officer
that committed suicide. Did you have
any involvement in that?
A. I had some involvement. I was -- on that particular thing, I was off
and I -- you know, I had been called in on it.
It was not -- I wasn't involved with it like I was a murder case, you
know, a whodunit it type situation, and I did look at the case and review it,
yes.
Q. Okay. Some investigation was done in that case that was related to the
Chapel case; is that correct?
Specifically, I'll tell you what I'm referring to. I'm not trying to trick you. There was a -- his car was checked out with
Luminol and that kind of stuff. Are you
familiar with that?
A. I'm not familiar with that.
Q. Okay.
You didn't work that close on that investigation?
A. No. I
don't have that direct knowledge, no.
Q. Okay.
And who was in charge of that investigation; do you know?
A. I believe that Investigator Bernie Tkacik was
the investigator that was in charge of it.
Q. Was he also in charge of the Bodie Hurst
investigation?
A. No.
Q. Who was in charge of the Bodie Hurst
investigation?
A. Jack Burnette was the investigator that we
had assigned to that, and I had Lieutenant Latty, or Captain Latty now,
assigned closely with him on that.
Q. And did Bodie Hurst have any involvement in
J. P. Morgan's case?
MR.
PORTER: Your Honor, I'm going to
object. That's not relevant. That's outside the bounds.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'm not asking any
details. I asked if he had any
involvement.
MR.
PORTER: Your Honor, by asking the
question, he makes the inference that somehow these men were involved when the
testimony is no.
THE
COURT: Objection's sustained. Go ahead, please.
BY
MR. MOORE:
Q. During the investigation of the J. P. Morgan
case, was there any conduct by Bodie Hurst that was investigated by the police
department?
MR.
PORTER: Your Honor, I'm going to object
to this. It's irrelevant to this issue.
MR.
MOORE: Your Honor, I'm only asking if
it was investigated. I've not gone into
any details. I can't find out if it's
connected if I can't find out whether it was even investigated.
THE
COURT: Objection's overruled. Go ahead, please.
BY
MR. MOORE:
Q. Do you remember my question, Captain Davis?
A. Ask it one more time.
Q. I think I remember it. Was -- during the investigation of J. P.
Morgan's death, was there an investigation involving Bodie Hurst?
A. Are you talking about the initial
investigation of J. P. Morgan's death, his -- the suicide?
Q. Right.
Yes, sir.
A. No, there was not.
Q. Okay.
There was not an investigation --
A. Not during --
Q. -- of anything regarding his conduct in that
J. P. Morgan investigation?
A. During the initial investigation, and I
believe that's what you asked me, there was not any investigation into Bodie
Hurst's conduct at the that time during the initial one.
Q. Okay.
Was one initiated later?
A. Yes.
Q. And did that involve misconduct on Bodie
Hurst's part?
MR.
PORTER: Your Honor, I'm going to
object. This is a specific of the
investigation there. He's had the
answer that he sought. I don't think
it's relevant.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'm trying to show
the relevance. And if there is
relevance, then I think I'll be able to go into details, but I have to be able
to lay some foundation questions to find out if he knows anything first.
THE
COURT: Objection's sustained. You can ask questions along the line we laid
out at the bench conference.
BY
MR. MOORE:
Q. If you know the nature of the subsequent
investigation that was done on Bodie Hurst, can you tell us what it was?
MR.
PORTER: Your Honor, I'm going to object
to this that it's irrelevant and it violates the boundaries set by the Court.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'm just inquiring
into the nature of the investigation.
I'm not asking for specifics.
THE
COURT: Restate your question.
MR.
MOORE: If you know the nature of the
investigation involving Bodie Hurst, can you tell us what it was without going
into details?
THE
COURT: The objection's sustained.
BY
MR. MOORE:
Q. Captain Davis, were you in charge of the
investigation of Mike Chapel?
A. I was the captain assigned there. I would say that probably Chief White would
-- you know, he was in charge of investigations at that time. And a crime of this nature and the way it
happened, he was heavily involved with it.
I -- it was, you know, one of those share type. He has rank, so he would be the superior
officer. I'm the second in command
there.
Q. I understand what you're saying, I think, is
in a case like this where it involved a police officer, you'd have the higher
ups involved also --
A. Yes, it's --
Q. -- not just the people down at the lower
levels?
A. It's a little bit different than the normal
homicide where I would be the one that would be directly in charge.
Q. Okay.
Do you know who made the decision not to interview any of the officers
at the northside precinct prior to Mike Chapel's arrest?
A. No. I
don't have direct knowledge of that decision being made.
Q. Okay.
Is that a correct statement that as far as you know, nobody up -- none
of the other officers working the northside precinct up there were interviewed
prior to Mike Chapel's arrest?
A. I -- I could not -- I don't have direct
knowledge on that. I know -- you know,
and to what extent would you consider it an interview, you know. I guess with Sergeant Stone, that was an
interview that I had the night that I wrote the statement.
Q. Okay.
A. You know, that is an interview. That is some contact.
Q. Okay.
To your knowledge, and I'll make it more specific. To your knowledge, did anybody go up there
and ask Sergeant Stone or anybody else before Mike Chapel's arrest where were
you on the night of the 15th of April and the morning of the 16th, what were
you doing, that sort of thing?
A. The only thing that I'm personally aware of
is that one statement. That's it.
Q. Okay.
A. I'm not personally aware of anybody else
making direct contact with officers there.
Q. And in a supervisory capacity, you knew what
was going on. There were briefings and
meetings regularly on this case, weren't there?
A. Yes, but because of the nature of this crime
-- you know, it's just like taking the statements and all. We were keeping -- trying to keep the number
of people down and all in the department that was working on it. I was taking statements and, in essence,
doing jobs that normally an investigator would do because we wanted to limit
that. There could have been meetings
that occurred that I was not at, so there're possibilities of other meetings
being there. I wouldn't necessarily
always, in this particular case, have knowledge of all the things. Chief White, more or less, was taking that
particular role. In other words, I was
one of the cogs in this particular investigation just like some of the other
people.
Q. To put it bluntly, the police department was
trying to keep this quiet until they could get it solved and get an arrest;
isn't that correct?
A. We wanted to limit the number of people in
the department that knew about it, yes.
Q. And you didn't want the media finding out
about it before you had a chance to investigate?
A. That was not our concern, no. Well, you know --
Q. You wouldn't have been concerned if the
headline read that a Gwinnett County police officer killed somebody, and they
came to you and interviewed you and you said, 'We don't have any idea who did
it'?
A. Our purpose for keeping it quiet was being
able to solve an investigation. When
you have the possibility of an officer being involved, then we don't need that
spread all over the police department.
We need to keep it limited to the number of people that knew it, because
we didn't want to taint anything. Now,
if that includes media, no, we didn't want the media to know it. We didn't want our neighbors to know
it. We didn't want some of the, you
know, the district commanders to know it.
We needed to keep it quiet, because you can't investigate a crime while
you go out and tell everybody what's going on.
You can't do that.
Q. Okay.
But within the police department, the word was out anyway, wasn't it?
A. I think the word got out because of -- on the
road block. People were immediately
saying that they saw a police car there.
And, of course, yes, that would go out immediately, you know, that other
policemen would say, 'Well, a police car was seen there.' That probably happened the first night,
because I think we got information the first night.
Q. And, so since most of the police officers
probably knew within a couple of days that a police officer had done it anyway,
was there any reason not to interview the other people that could have been
suspects?
A. Yes.
We had a limited number of people and we were -- there were other things
that we were doing, you know. We had a
large number of people that had seen a police car. We were interviewing those people. You know, these are things that you -- that you do in order to
start trying to work any kind of case.
The way we determine whether people are lying or telling the truth is
that we have to collect information, and we have to compare what they say with
what other people have said. And you
have to get to a point in an investigation to where you have that before you
contact your suspects or contact the other -- the other people that possibly
are there. I don't think there was any
undue length of time that was -- you know, you're counting days, but it takes
days to collect this information as well.
Q. Okay.
And y'all chose not to call in any outside agency to assist you with
this, didn't you?
A. You're making it like it's some kind of
decision that we made, an arbitrary decision.
There's no arbitrary decision that was made. I'm not aware or privy to any kind of meeting that occurred
whether we -- where we discussed it. We
started receiving information. We set
up road checks, which is customary in this nature of crime. We started receiving information. We started following the trail of
information. And we proceeded with the
information, and we followed that all the way through till an arrest was
made. And during the entire time, I
know of no meeting anytime where it was discussed whether or not we should call
in an outside agency.
Q. Okay.
But one was not called in, is a fact?
A. One was not called in.
Q. Okay.
And you just said that y'all did not have enough people to have
interviewed everybody was one of the reasons you weren't doing it?
A. No.
That's not what I said. I said
that we were limiting the number of people on investigating it because we
didn't want what we had learned to get out to the general population or the
department.
Q. But it was already out with the people at the
northside precinct, the people that worked the road blocks, wasn't it?
A. They were familiar of one aspect, that a
police car had been seen there. We were
not releasing the other information that we had gotten.
Q. Was the police department making any attempts
to determine, without interviewing them, where the other people were and what
they were doing that night, the other police officers?
A. Yes, we were.
Q. And what were you doing?
A. What were we doing to determine that?
Q. Yes, sir.
A. We were looking at radio logs, we were
looking at calls, we were looking at things of that nature.
Q. Okay.
Did you have occasion to examine Brian Reddy's?
A. I don't have direct knowledge if we did.
Q. Okay.
Now, the night of Mike Chapel's arrest, are you aware that Brian Reddy
lied to the police department about where he was?
A. I don't have direct knowledge of that. During the time that he would have been
interviewed, I was taping the tapes.
Q. Okay.
Now, back at the 20th, when you talked to Mike up at the fire station,
up at the precinct, up there at the northside precinct --
A. Yes.
Q. -- you knew at that time he'd had contact
with Emogene Thompson, didn't you?
A. Yes, I did.
Q. Okay.
He had come forward and voluntarily given that information to D. E.
Stone, Sergeant D. E. Stone, who'd passed it on; isn't that correct?
A. That's correct.
Q. And he'd given that information to Sergeant
Stone before there was a -- before the murder took place, hadn't he?
A. I'm sorry?
Q. He'd given the information to Sergeant Stone
about the fact he'd had contact with Emogene Thompson prior to her being
murdered?
A. If he had, I have no direct knowledge of
that.
Q. And prior to the identification on the 23rd
-- 22nd, 23rd, Mike Chapel was already a suspect in the case, wasn't he?
A. Yes.
Q. Okay.
And that was based on his contact with Emogene Thompson?
A. Yes.
Q. Now, after Mike Chapel's arrest, do you know
whether or not then the police department moved in and interviewed everybody
thoroughly up there at the northside precinct?
A. I don't have direct knowledge that everybody
was interviewed. However, I know that there
was a lot of interviews that were conducted, and I think that everybody was.
Q. You think that everybody up there was
interviewed about where they were and what they were doing and that sort of
thing, not just, 'Do you know anything about what Mike Chapel did?'
A. I don't have direct knowledge of that
particular aspect of the investigation.
I don't know what --
Q. Should there have been as a good
investigative technique?
A. Yes.
Q. Do you remember a conversation with, the same
time you talked to Mike about his hearing aids?
A. Yes, I do.
Q. Okay.
And what did he tell you about that?
A. He said that he had had some hearing problems
and that he had gone to the doctor and they said that he had to have hearing
aids. And he said that the county would
not provide the money for the hearing aids.
And I knew that he would -- had been having problems with his -- with
money and all and, you know, from previous contact that I'd had with him, and
he said that he might end up -- I think he said that he might end up losing his
job because he couldn't afford to buy a hearing aid.
Q. Okay.
And this was after the murder when he said that, wasn't it?
A. Yes.
That would be on the 20th.
Q. Thank you.
MR.
MOORE: No further questions.
THE
COURT: Redirect?
REDIRECT EXAMINATION
BY
MR. PORTER:
Q. Captain Davis, from the date of April 22,
1993, till today, has there ever been any information, to your knowledge, that
has developed another suspect other than Mike Chapel in the killing of Emogene
Thompson?
A. No, there has not.
Q. Has information been, to your knowledge,
pursued since April 22, 1993?
A. On another suspect in --
Q. On the possibility of another suspect?
A. No, there has not. There has not been.
Q. Has there been continued investigation into
the death of Emogene Thompson regarding information that may have been received
by the police department?
A. Yes, there has been.
Q. And has that information developed another
suspect?
A. There has not been another suspect developed.
Q. Now, let me ask you, how long have you been
with the Gwinnett County police department?
A. I've been there twenty-five years, you know,
twenty-five and a half years, something of that nature.
Q. And have you been involved in all aspects of
police work over there?
A. The only thing that I can recall that I
haven't done is canine and flying helicopters.
Q. Have you been a supervisor over there?
A. Yes, I have.
Q. And how long have you been a supervisor?
A. Since the latter part of 1972.
Q. Now, let me ask you, is part of being a
supervisor manpower allocation and priority setting within an investigation?
A. A large part.
Q. Let me ask you, as an experienced supervisor,
if you had an alternative between setting up interviews with three hundred
Gwinnett County police officers --
MR.
MOORE: Your Honor, Mr. Porter is
testifying. These are leading questions
here. This is an experienced
officer. He can ask him what's a good
investigative technique or how he does it, but Mr. Porter doesn't need to tell
him how to do it.
MR.
PORTER: Your Honor, I'm allowed, based
on this officer's -- or this -- Captain Davis' experience to set -- to request
him to give an opinion on a hypothetical question, and I'm asking him to give
the choice. I have to make -- I have to
set up the choice.
THE
COURT: Objection's overruled. Go ahead and state your question.
BY
MR. PORTER:
Q. Captain Davis, given the choice between
interviewing three hundred Gwinnett County police officers, because you have
the information that a police officer might be involved, and following up with
witnesses who actually saw the police car there, in your opinion as a police
commander, which would have been your choice in assigning your investigative
priorities?
A. We made the decision -- one decision we made
early was limiting the number of people in the police department that was
involved in the investigation. Our
primary duties at that time, since we had a limited number of people that we
were going to use, was interviewing the people, you know, the witnesses on the
outside. The reason we made the
decision to limit the number was to keep the information going out into the
department. If we had interviewed those
people prior to that, then that would be totally, you know, totally
contradictory to the decision we made at first to limit the number. Does that answer your question?
Q. Well, let me ask you, why did you decide to
limit the number?
A. Because -- because of the road block that we
had, with the possibility of it being a police officer involved, we needed to
keep the numbers down and the information closer in hand. We didn't need the police department to know
what we were doing, the other policeman to know what we were doing.
Q. Were you afraid of that information going
out?
A. I -- we felt that it could possibly get
somebody hurt. You know, if it was a
police officer involved, the possibilities were there. We felt we needed to keep it quiet.
Q. Did you believe that if it was a police
officer there was the possibility of impeding your investigation?
A. Yes.
All those possibilities are there with -- with it being a police
officer.
Q. How would you characterize, as a captain in
the police department -- at the time that you developed the information that a
law enforcement officer might be involved in the murder, how would you
characterize your feelings as you pursued this investigation?
A. When you're in that situation, especially
when you've worked at a place for a long time, and in my case, when I started
with the police department, we had like thirty-two total people in the
department, and you've seen it grow from a small rural county to the county
that we have now, and you have the pride in seeing it progress, you have
several different kinds of emotions.
You feel a loss because of the things that you lose, the stigma that you
have with that. You feel the loss of a
friend and cohort, someone that you've been around for a long period of time
that would -- that would do that, and you don't expect it. It's -- it's some bad feelings that you can
get with it. However, even though you
have those feelings, it's a requirement because of the oath that you take and
the responsibilities that you have that you proceed and see that justice is
done in that type of crime and situation.
Q. And given the feelings that you've just
described, would you want to seek the truth in this matter?
A. You positively want to seek the truth, and
the reason is because, number one, you can't hardly believe that it's
happening. You don't want to believe
that it's happening to you, and before you make decisions and all, you want to
get as much information as you can possibly get before you proceed on.
Q. And would you have been in a hurry to arrest
one of your own?
A. No.
And we weren't in a hurry that night.
I know, and, of course, in talking with other officers and knowing what
I felt while the tape was being played, you keep -- even at the last moment you
want something to come out to show that this person, you know, is not the
one. That it's somebody else. And I think that, you know, that's the way I
proceeded and that's the way that I felt during the investigation. I kept hoping, but it just didn't
materialize.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Recross?
RECROSS EXAMINATION
BY
MR. MOORE:
Q. Captain Davis, you went out with, I forget
which officer, now, but you went out to -- when the interview of Karl Kautter
and Paul Omodt took place, didn't you?
A. I was the only -- I was the officer that took
the statement from Karl Kautter and Paul Omodt.
Q. And you went back?
A. Later on.
Q. You've answered my question.
A. Yeah.
Q. You went back later, and a photo lineup -- I
believe you showed one to Paul Omodt; is that correct?
A. I didn't actually show it. Sergeant -- well, Lieutenant Steve Cline now
was the one that had the responsibility of showing it. I did not witness the one with Karl Kautter,
but I did witness the lineup with Paul Omodt.
Q. Okay.
And the photos that were shown to them was a photo lineup with eight
photographs; is that correct?
A. That's correct.
Q. Okay.
And the only photograph of anybody that worked at the northside precinct
that was included in there was Mike Chapel, wasn't it?
A. Now, I don't know that. I didn't make up the Chapel -- make up the
photographic lineup. The only -- I do
remember -- you know, what I remember about it, specifically, was when I saw
the lineup. There was another officer
there that looked, you know, the way the pictures were, to me, he looked just
exactly like Chapel in the photos. The
way it looked, you know, he looked very similar, and I was thinking that it
might be possible that he would be picked out.
And that's the only -- and I can remember that officer's name. It was Officer Kelly.
Q. I'm going to show you a photograph that's
been marked Defendant's Exhibit D-38.
Do you recognize that officer?
A. Yes, I do.
Q. Was his photograph included in the lineup?
A. The only two -- you know, the only two people
that I can remember, the only two photographs that I can remember in that
lineup, and you could show me, you know, every picture in the department, I
remember two. When I looked at it, I
saw Officer Kelly, and I saw Officer Chapel's picture, and that's the ones that
-- that I recollect. I couldn't tell
you -- and, again, you can show me every picture in the department, and I could
not -- I could not recall.
Q. Do you know how many officers worked at the
northside precinct besides Mike Chapel, male officers?
A. I would -- I don't know the exact
number. I'd say that in the
neighborhood of thirty-three to thirty-five people worked out of that precinct.
Q. And you went up there with Lieutenant Cline
when he showed the photographs to Karl Kautter; is that correct?
A. I was there.
He came up after I was -- I was taking a statement from Paul Omodt, and
then he came up after I was there. We
were in separate vehicles.
Q. To your knowledge, did he have any other
photographs that he showed anybody other than the photo lineup?
A. Not to my knowledge. As far as the photographs there, my
knowledge on the lineup was what he showed Paul Omodt and -- you know, after I
took the statement. I didn't -- I'm not
familiar with what else he did there.
After he showed that photographic lineup, the folder was closed, and
that's all to my knowledge.
Q. I'm going to show you a series of photographs
that's marked D-14 through D-44. These
were supplied to me pursuant to subpoena to the Gwinnett County police
department as being the officers who worked the northside precinct on April 15,
1993. Mr. Porter brought them to me
from the police department.
A. Okay.
Q. Would you look at these photographs and see
if you recognize those people as working at the northside precinct during that
time?
A. In this stack, I know they were. In this stack, I'm not sure.
Q. Okay.
Now, in the stack that you said did work up there is Defendant's Exhibit
Number 38; is that correct? Look on the
back at the number, if you'd like.
A. Yes.
Yes.
Q. Okay.
Now, if the eyewitness, Mr. Kautter, had seen this photograph and said
he couldn't be sure whether or not that was the man driving the car that passed
him that night, would you have followed up and interviewed him, the officer in
D-38?
A. Ask me one more time, please.
Q. If Mr. Kautter had said -- if he'd seen this
picture and he'd said, 'I can't be sure whether that's the man driving the car
or not; it's between him and Mike Chapel,' would you have followed up and
interviewed Officer Stratameyer?
A. Yes.
MR.
MOORE: I don't have any further
questions.
THE
COURT: Anything else of this witness?
MR.
PORTER: I have nothing further for this
witness, Your Honor.
THE
COURT: You can come down. Call your next witness, please.
[The
witness stepped down from the stand.]
MR.
PORTER: Your Honor, at this time, the
state would request a recess until one o'clock, based on the technical
situation regarding the videotape.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
PORTER: Your Honor, we're still in the
preparation of the transcript, and I think I have to give them a transcript to
review.
MS.
ROGAN: Yeah.
MR.
PORTER: The tapes are complete and the
edits have been made in conformance with the Court's orders, but -- and I'm
still printing twenty-five copies of the transcript. It's 137 pages. I've got
to give counsel --
THE
COURT: Okay. Will an hour and a half do it?
MR.
DAVIS: Yes, sir.
MR.
PORTER: I would think, Your Honor, in
terms of the preparation.
THE
COURT: Okay.
MR.
MOORE: It depends on how soon we get
them, Your Honor. We want a chance to
have time to look at them.
MR.
DAVIS: I can get a copy of the
transcript in the defendant's hands in the next ten or fifteen minutes.
THE
COURT: Okay. If we do that, is that sufficient?
MS.
ROGAN: That's fine.
MR.
MOORE: It should be, Your Honor.
MS.
ROGAN: We can look at it over lunch.
THE
COURT: I'm sorry?
MS.
ROGAN: We can look at it over lunch.
THE
COURT: Okay. Okay. If that's the case,
then, we'll just recess until one o'clock and then --
MR.
PORTER: Your Honor, and then we're
going to put up the witness for the -- for the -- who created the edited the
videotapes. And then we're going to put
up Captain Latty to lay the -- to -- do you want me to just start the tapes or
do you want to put up Latty? Because I
mean, I can put him up for circumstances of the interview. He doesn't -- he can't identify these tapes.
MS.
ROGAN: No.
MR.
PORTER: I think I'll start playing the
tape right after I put up the chain evidence and then we'll -- Captain Latty
after -- for the circumstances of the interview --
MS.
ROGAN: After the tapes.
MR.
PORTER: -- after the tapes.
MS.
ROGAN: I think that would be better.
MR.
MOORE: Your Honor, I don't think I can
control the order that he calls his witnesses, I mean.
MR.
PORTER: Well --
MS.
ROGAN: Just in terms of getting to the
tapes.
MR.
PORTERS: In terms of getting to the
tapes.
MS.
ROGAN: You know, we have some
cross-examination for Officer Latty and I don't want to delay the playing of
the tapes.
MR.
PORTER: I think it would be better to
put the witness up and start playing the tapes.
THE
COURT: However you want. It's your
case.
MR.
PORTER: Yes, sir. I'm going to put Latty up after the tape.
THE
COURT: As long as that gets a
foundation to get them in. Is anything
else required?
MR.
PORTER: I don't think there's
anything else --
THE
COURT: Okay.
MR.
PORTER: -- because the Court has
already ruled on the evidence in this.
THE
COURT: Yeah, they're in. They're in.
Okay.
MS.
ROGAN: Yeah.
THE
COURT: All right. One o'clock then. Is that sufficient for everybody?
MR.
PORTER: Yeah.
THE
COURT: Okay.
MR.
PORTER: I believe so, Your Honor.
THE
COURT: I'm sorry?
MR.
PORTER: If there's any problem, then
we'll notify the Court.
THE
COURT: Okay. Let me know. Okay.
[Bench
conference concluded.]
THE
COURT: While we deal with some
evidentiary matters during the course of lunch, we'll just give you a recess
during that time, and we'll take a little longer lunch than usual, but we
should be ready, hopefully, at one o'clock.
If not, it will be shortly thereafter.
So we're going to at this point recess until one o'clock.
And
if you'll -- again, I'll repeat instructions that you should not discuss the
matter. You ought to continue to not
make up your own mind. Keep an open mind. Wait, look, and listen to all the evidence
and all the case until it's completed and you're in the jury room with your
fellow jurors to commence your deliberations to deliberate and discuss the
matter. You ought not to discuss the
case with anybody else, allow anybody else to discuss the case with you or in
your presence.
If
you'll leave your pens, pads, and notes in your seats, they'll be waiting on
you when you return, and we'll recommence at one o'clock. Mr. Allen, if you'll take the jurors out,
please.
[The
jury was excused from the courtroom for the lunch recess.]
THE
COURT: Mr. Porter, I believe you
indicate we have the changes made, redactions made, that we went through last
night?
MR.
PORTER: Yes, Your Honor. I have the actual tapes. I'm in the process of preparing copies of
the transcripts for the jurors as well as defense counsel. We will get a copy of the transcript to
defense counsel within the next five to ten minutes, but twenty-three or eighteen
for the jury plus the court reporter --
THE
COURT: Okay.
MR.
PORTER: -- will take a little bit more
time.
THE
COURT: All right. Well, if there's any problem with one
o'clock, we'll just come back to it.
But if we can get them ready by one, then we'll recommence at that
time.
Do
you have a -- at this point, the tape will run about how long, do you think?
MR.
PORTER: Your Honor, I think that's a
matter that can be discussed with counsel.
But as I recall the tapes, there's about ten or fifteen minutes at the
beginning that are -- is just a -- the videotape of an empty room, and I would
suggest that we cue the tape up to when people enter the room --
THE
COURT: Me, too.
MR.
PORTER: -- for all of our sanity. And then I would say that there may be
portions that we can fast forward through.
I don't recall that there are that many gaps. I would still say, Your Honor, that we could look at about three
and a half hours of tape.
THE
COURT: Okay.
MR.
PORTER: I think that's a --
THE
COURT: It sounds like we're going to be
mostly through with it but not altogether, and finish it up in the
morning. Is that where we're going to
be?
MR.
PORTER: I would expect, Your Honor.
THE
COURT: Okay.
MR.
PORTER: The tapes are about an hour and
a half long. The Court may want to take
breaks at a given time and set that schedule.
THE
COURT: Okay. Well, after an hour or so of watching the tapes, we'll break
every hour to hour and a half, as needed.
All
right. Well, I contemplate we'll
proceed on then until a good stopping point this afternoon at some time between
five and six, our regular time, and then I'll contemplate recommencing in the
morning at nine o'clock and going until about five tomorrow afternoon.
MR.
PORTER: Yes, sir.
THE
COURT: So that's where we'll be.
MR.
PORTER: Your Honor, at one o'clock,
we'll have to put up one witness to testify to the creation of the videotape or
the copies that are being played --
THE
COURT: All right.
MR.
PORTER: -- and the manner in which that
was done.
THE
COURT: Okay. Anything else at this point, Mr. Porter?
MR.
PORTER: Your Honor, only to remind the
Court to review the state's request for a preliminary charge.
THE
COURT: I'll do that during the course
of lunch. Have you had an opportunity
to review it as well, Mr. Moore, Ms. Rogan?
MS.
ROGAN: Yes, we have, and we do have
some comments to make on it. I can make
them now --
THE
COURT: Okay.
MS.
ROGAN: -- or I can make them after
you've had --
THE
COURT: Why don't you make them now and
I'll review it during the course of lunch and keep that in mind.
MS.
ROGAN: All right. Your Honor, in the first part of it, the
state has encapsulated somewhat the language from Watson that we discussed last
night. And it would be our request that
the complete language from Watson as to what other people have told the
officers is hearsay and is not admitted into evidence and not to be accepted by
you as true, the language from Watson.
You'll see when you read the proposed charge that it's -- it's curtailed
somewhat, and we would request that the full language be included.
And
then the other objection, I guess, we have is the very last line of the
charge. 'You should draw no inference
of misconduct on the part of the police or any party because of this
redaction.' We think -- we would
request rather than 'inference of misconduct' that the language be no inference
of any kind by any party and not direct the focus as to alleged misconduct by
the police.
THE
COURT: Okay. Mr. Porter?
MR.
PORTER: But, Your Honor, the reason
that I encapsulated both the language from Watson was to more closely tailor
the charge to the facts of this case.
What I'm concerned about is the Court is instructing the jury and giving
them the law, and both counsel made an important point that what you say are
the instructions to the jury. And I'm
afraid that given the fact that the Court has admitted hearsay, if we use the
magic language 'hearsay' and we say that what other people have told police
officers is not true, then that affects the credibility of the three witnesses
that the Court has admitted into hearsay, so I use the -- I use the language,
'The questions are not to be considered for the truthfulness of the content,'
because I think the focus is on the questions, not on what the witnesses may
have told the officers because that's already come in.
THE
COURT: Okay. Well, I'll take a look at it during the course of lunch and
review Watson, and I think that's something we can dispose of fairly quickly
once we come back.
MR.
PORTER: Your Honor, and as far as the
no inference language, again, Your Honor, misconduct was -- it seemed to be an
appropriate word given the tenor of the opening statement and the tenor of the
defense so far. I don't really -- if
the Court can come up with a better word, I'm perfectly satisfied with that.
THE
COURT: We'll come back to it at one
o'clock then.
MR.
PORTER: Yes, sir.
THE
COURT: All right. Anything else, Mr. Porter?
MR.
PORTER: Nothing from the state, Your
Honor.
THE
COURT: Ms. Rogan?
MS.
ROGAN: Well, I just -- I know we'll
come back to it, but I just wanted to respond to his argument about the
hearsay.
The
Court has admitted hearsay, but the jury does not know that it's hearsay. They haven't been told that it is. As far as they're concerned, what they heard
the witnesses testify to is the truth if they want to take it to be the
truth. So I don't think that that's
inconsistent with the charge here, and it would not in any way diminish the
impact of the evidence that's come in.
THE
COURT: Okay. I understand your argument.
Okay. We'll come back to it at
one o'clock.
MR.
PORTER: Thank you, Your Honor.
[Lunch
recess]
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4211
AFTERNOON SESSION
[Proceedings
resumed following the lunch recess with the jurors not present.]
MR.
PORTER: Your Honor, if I may, we're
discussing the matter of an additional redaction from this portion of the trial
but which would be admissible if we move into the second section and we're
figuring the logistics of it. It may
take us another ten minutes --
THE
COURT: Okay.
MR.
PORTER: -- to figure up the logistics
of it.
THE
COURT: Would you approach the bench?
MR.
PORTER: Yes, sir.
[Counsel
approached the bench and the following conference ensued.]
THE
COURT: Okay. What have we got?
MR.
PORTER: Your Honor, in the tape, there
are references to the M-16 which the state intends to introduce in the penalty
phase if we get that far. But they're
in the transcript at this point. We're
trying to figure out -- we can fast forward through those portions without any
problem on the actual videotape, and particularly since we're not going to get
to them until tomorrow. They're right
at the end of the tape.
MS.
ROGAN: They're at the very end.
MR.
MOORE: At the very end of it.
THE
COURT: Okay.
MR.
PORTER: But we're trying to figure out
how we can fix this for the transcripts that are delivered to the jury. One option is to remove the page.
THE
COURT: Well, I guess what we could do
is just -- yeah, just take off the last twenty pages or something.
MS.
ROGAN: For today.
THE
COURT: Yeah. And tell them the balance of it will be given to them tomorrow.
MS.
ROGAN: Yeah. And then they're not --
MR.
PORTER: That may be the simplest.
MS.
ROGAN: They shouldn't be reading it
anyway.
THE
COURT: Yeah, and that will give
everybody all night to fix it. Let's do
that.
MR.
PORTER: All right. And we'll take out from basically the
offending page, which I think is Page
124 --
MS.
ROGAN: 124. It's right near the end.
MR.
PORTER: And then we'll take out all the
way to 137. We'll just remove them from
it.
THE
COURT: Just remove the balance of it?
MR.
PORTER: Yes, sir. And then we'll put them back in in the
corrected version and we'll get that done this afternoon sometime.
THE
COURT: Okay.
MR.
MOORE: That would be fine.
THE
COURT: Do you need a few minutes to do
that?
MR.
PORTER: I think it's going to take us a
few minutes just mechanically.
THE
COURT: Okay. Let me -- maybe it would be good, before we do that, let me just
tell what I contemplate charging them on the cautionary instruction, and then
we'll just take ten minutes or something if you want to get the transcripts
ready.
MR.
PORTER: Yes, sir.
THE
COURT: What I'm going to tell them is
this. As to the statements made by
Officer Latty and Burnette and by the defendant, I instruct you as
follows. What other people had told
Officer Latty and Burnette is hearsay and is not admitted into evidence and is
not to be accepted by you as true as the evidence and the truth of what the officers
say other people told them. It is admitted
only to enable you to comprehend the questions that the officers asked and the
responses that the defendant made in response thereto. You bear that carefully in mind.
What
the defendant said is admissible. What
the officers said other people had told them or they believed or they had
discovered is hearsay and is inadmissible and cannot be considered by you as
evidence or the truth of what other people told them or what they believe or
what they had discovered.
And
then add to it: I further charge you
that the videotape you're about to see has been redacted or edited pursuant to
previous rulings by the Court, which were made outside your presence, and you
should draw no inference of any kind because of this redaction.
MR.
PORTER: That's fine, Your Honor.
MR.
MOORE: That's fine.
MS.
ROGAN: That's fine with us, too.
THE
COURT: Okay. All right.
MR.
DAVIS: Did we agree on the last twenty
pages coming out?
MS.
ROGAN: Uh-huh. We're just going to take them out.
THE
COURT: Okay.
MR.
PORTER: Page 124 on, where the first
reference to --
THE
COURT: How long do you think you need?
MR.
PORTER: About ten minutes, Your Honor.
THE
COURT: Okay. We'll just take ten minutes.
Why don't you or Mr. Allen let me know when the transcripts are ready.
MR.
PORTER: Yes, sir.
THE
COURT: And then we'll bring the jury
in. You might tell the jury we'll be
about ten minutes. Okay. We'll take ten.
[A
brief recess was taken in the proceedings.]
THE
COURT: Is the state ready?
MR.
PORTER: Yes, Your Honor.
THE
COURT: Is the defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Everybody understands the --
well, let's see. You have another
witness first; right?
MR.
PORTER: Yes, Your Honor.
THE
COURT: Okay.
MR.
PORTER: I also have a tender for the
record.
THE
COURT: Okay. Go ahead, please.
MR.
PORTER: Your Honor, at this time, the
state would tender into evidence, for the record only, what has been marked as
State's Exhibit Number 94, which is a copy of the redacted transcript based
upon the Court's previous orders and the agreement of counsel.
Your
Honor, this transcript, for the record, does include Pages 124 through 136,
which, for today's presentation, have been removed from the copies that are
going to be presented to the jury.
THE
COURT: All right. And what exhibit number is that, Mr. Porter?
MR.
PORTER: State's 94, Your Honor.
THE
COURT: Any objection?
MR.
MOORE: No objection, Your Honor.
THE
COURT: State's 94 is admitted without
objection.
MR.
MOORE: I guess I should clarify
that. No objection for the record, Your
Honor. The previous objections we made
to the admissibility and everything, we would stand --
THE
COURT: I understand. There's no waiver of all the prior rulings.
MR.
MOORE: I just want to make sure.
THE
COURT: I understand. I understand. All right. Anything else,
Mr. Porter, as to the transcript?
MR.
PORTER: Your Honor, only to state for
the record it is our intention to call one foundation witness and then request
a brief recess to get the technical aspects of the playing of it and then begin
the playing.
THE
COURT: Okay. How are you going to set up the tape?
MR.
PORTER: Your Honor, I anticipate that
there will be a television monitor with external speakers set about where the
podium is, plugged into the floor jack, back far enough so that all the jurors
can see it.
THE
COURT: Okay. What about the attorneys and anybody else who will be watching?
MS.
ROGAN: Well, we were just discussing
that. We would prefer to be in a
position to watch it. I don't know if
that means taking our chairs over there.
I mean, we have seen it before; but, on the other hand, I think we'd
like to watch it while it's actually being played.
THE
COURT: Since it's been redacted, I'm
sure everybody would like to follow along.
How far back do you think you can move it away from the jury box until
it becomes a problem with the jurors being able to see it?
MR.
PORTER: Your Honor, I think that's just
something we're going to have to experiment with during the brief recess that
would --
THE
COURT: Okay.
MR.
PORTER: Because of those concerns is
why we requested a break --
THE
COURT: Okay. If we move it back away from the jury box enough, then the
attorneys can move over enough to see it, then.
MR.
PORTER: Yes, sir.
THE
COURT: Okay. All right. Anything else
at this point, Mr. Porter?
MR.
PORTER: Your Honor, the other thing for
the record is that by agreement of counsel the tapes begin with approximately
ten or fifteen minutes of basically a videotape of an empty chair in the
interrogation room. We are going to
fast forward the tape from the beginning and cue it up when people enter the
room.
Then
there are two areas by -- which we have agreed where the transcript reads
'extended pause,' and those pauses are actually ten or fifteen minutes long,
those are toward the end of the tape, and we would fast forward through those
pauses by agreement of counsel.
And
then there are two references to evidence that the defendant makes on the tape
that are part of what we've discussed earlier this morning regarding -- that we
do not intend to introduce them in this portion of the trial, that we will fast
forward through to, preserve them on the tape, but to not show them to the jury
at this point.
THE
COURT: Okay. And that's a matter that will be -- really that we'll address in
the morning.
MR.
PORTER: Your Honor, we don't expect to
even reach that until in the morning.
THE
COURT: Okay. All right. Mr. Moore, the
stipulations that have been recited, are those -- as Mr. Porter recites them, is that the stipulation?
MR.
MOORE: Yes, Your Honor.
THE
COURT: So stipulated. Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor. The state's prepared to go forward with its
next witness.
THE
COURT: All right. How long do you think -- how long a pause do
you think we're going to need to set up the equipment?
MR.
PORTER: Ten minutes, Your Honor, I
expect.
THE
COURT: Okay.
MR.
PORTER: Because of a previous request
from members of the media, there is going to be a wiring situation that we're
going to have to get them in on.
THE
COURT: Okay. How long is your next witness going to be?
MR.
PORTER: Long enough to identify the
tapes and explain the process.
THE
COURT: Okay. Anything else at this point, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Bring the jurors in, please.
MR.
PORTER: Your Honor, if I may, if I may
approach the bench. I'm going to
provide to the Court a copy of the redacted transcript. [Presenting]
THE
COURT: Thank you. As to the cautionary instructions, we also
had Officer Davis who was present and also talked some. I need to include him along with Officer
Latty and Officer Burnette in the cautionary instructions before we play the
tape, I think.
MR.
PORTER: Your Honor, he didn't make any
reference to what any witnesses had told him.
He does come in later in the tape, but I don't believe he said --
MS.
ROGAN: He's not really questioning Mr. Chapel.
THE
COURT: Okay. Do you want me to leave him out altogether?
MS.
ROGAN: It's fine with us if you do.
THE
COURT: I just recall that he was there
and was a participant in a limited way.
I didn't recall exactly whether he asked any questions or not. Do you want me to put him in or put him out?
MS.
ROGAN: He asked him one question. I guess that to be safe, why don't you put
him in?
THE
COURT: All right. I'll put him in.
THE
BAILIFF, MR. ALLEN: Ready?
THE
COURT: Come ahead, please.
[The
jury returned to the courtroom and proceedings resumed as follows.]
THE
COURT: For this afternoon, let me tell
you where we're going to be with the evidence, where we're going this afternoon
and in the morning. We have one witness
who's going to be called by the state.
He's going to be a brief witness.
We're
going to, after that point take about a ten minute recess while the equipment
is being set up to play a video. And
that video is going to probably last the rest of the afternoon, and you're
going to be seeing that with the necessary recesses interspersed so you can
have a break every hour to hour and a half.
I
anticipate that that will not be completed this afternoon, and we will
recommence the balance of the video in the morning at nine o'clock to
recommence, and then altogether there's four hours plus or minus with it. So that's what we're going to be doing this
afternoon and in the morning.
Call
your witness, please.
MR.
PORTER: Thank you, Your Honor. The state would call Joe Sorenson to the
stand.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: Go ahead, please.
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: 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. And could you state your name and spell it
for the record.
A. Joseph Robert Sorenson. And that's -- just the last name?
Q. Just the last name.
A. S-o-r-e-n-s-o-n.
Q. How are you employed, Mr. Sorenson?
A. I'm the audio-visual coordinator for Gwinnett
County government.
Q. And what are your duties as the audio-visual
coordinator for the county government?
A. We do all the work for the county, court side
and administrative side, everything relating to or pertaining to video
production or audio production.
Q. All right.
Now, let me ask you, over the last few weeks, have you been requested to
assist the district attorney's office in preparing certain videotapes?
A. Yes, sir.
Q. And has that been done at your direction and
supervision by either you or members of your staff?
A. Yes, sir.
Q. Let me show you, first of all, what we
have had previously marked as State's Exhibit Number 90, 89, and 88. Can you take a look at those and see if you
can identify them, please?
A. Yes, sir.
Q. And can you tell us what those are?
A. These are the original tapes that were
presented to media services for copying so that they could be edited -- the
copies could be edited. These are the
original tapes.
Q. And let me show you, first of all, what we've
had previously marked as State's Exhibit Number 91. Can you identify that please, sir?
A. Yes, sir.
Q. And could you tell the jury what it is?
A. This is the copy of the first tape right
here.
Q. And how do you recognize that as a copy of
the first tape?
A. This has my handwriting on it. It's marked Chapel Tape 1, edited 8/18/95.
Q. And let me show you State's Exhibit Number
92. Can you identify that, please?
A. Yes, sir.
This is the copy of Tape Number 2 and it's marked as well.
Q. Okay.
And, finally, let me show you State's Exhibit Number 93. Can you identify that, please?
A. Okay.
That's a copy of Tape 3. It's
marked the same as the first.
Q. Now, Mr. Sorenson, at your direction or you
yourself, did you prepare complete and accurate copies of the originals onto
the copies that you've identified?
A. Yes, sir.
Q. And at the request of the district attorney's
office, did you make certain redactions or additions to that tape?
A. Additions to the tape?
Q. Well, not additions. Editing.
Did you edit it?
A. Yes.
We removed some of the video and audio from the tapes.
Q. All right.
During the course of that, were you familiar with the operation of the
machinery in the preparation of the tape?
A. Yes, sir.
Q. And was the machinery operating correctly?
A. Yes, sir.
Q. Were there any malfunctions during the
preparation of the copies that you have identified?
A. Not of these copies, no, sir.
Q. And are they true and correct copies of the
originals which you have previously identified?
A. Yes, sir.
MR.
PORTER: Your Honor, at this time, the
state would move to admit State's Exhibits Number 91, 92, and 93 as copies of
the original videotaped interview of Michael Chapel which has been edited
according to the Court's instructions, and we would like to play those for the
jury.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we don't have any
objection to those tapes.
THE
COURT: State's 91, 92, and 93 are
admitted without objection. Let me make
sure I understand. State's 91 is a --
that's the redacted copy of State's 88?
MR.
PORTER: That's correct, Your Honor.
THE
COURT: And State's 92 is a redacted
copy of 89?
MR.
PORTER: That's correct, Your Honor.
THE
COURT: And State's 93 is a redacted
copy of State's 90?
MR.
PORTER: That's correct, Your Honor.
THE
COURT: All right. Thank you.
They're admitted without objection.
Go ahead, please.
MR.
PORTER: Thank you, Your Honor. That's all I have of Mr. Sorenson. Thank you.
THE
COURT: Mr. Moore?
MR.
PORTER: Mr. Sorenson, Mr. Moore has the
opportunity to ask you some questions.
THE
COURT: You'll need to remain with us
just a moment.
MR.
MOORE: Your Honor, I don't have any
questions to ask him. I think he's
testified to what he did.
THE
COURT: Okay.
MR.
PORTER: Your Honor, Mr. Sorenson
obviously would like to leave.
THE
COURT: Mr. Sorenson -- just a
moment, Mr. Sorenson.
THE
WITNESS: Oh, I'm sorry.
THE
COURT: Everybody wants to leave in a
hurry.
MR.
PORTER: Your Honor, Mr. Sorenson has
never testified in court, and we would ask that he be allowed to return to his
duties. He works here in the building,
has a beeper, and is available.
THE
COURT: He'll be on call. All right. Mr. Moore?
MR.
MOORE: That's fine, Your Honor.
THE
COURT: All right. You're free to go and subject to recall, Mr.
Sorenson. Thank you.
THE
WITNESS: Thank you very much.
[The
witness stepped down from the stand.]
THE
COURT: Do you want to recess at this
point to set up the equipment?
MR.
PORTER: Yes, Your Honor. In order to set up the equipment so that we
can play these for the jury, we would like about a ten minute recess.
THE
COURT: Well, we'll take ten minutes or
as soon thereafter as we have everything set up. If you'll leave your pens, pads, and notes, we'll recommence in
about ten minutes.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Anything else at this
point, Mr. Porter?
MR.
PORTER: Your Honor, one thing that Mr. Davis
just stated to me that I think makes sense is that perhaps the jurors should be
instructed that these transcripts will not go back to the jury room with them
and that any notes they wish to take should be made on their pads as opposed to
on the transcript itself.
THE
COURT: Probably ought to tell them as
well that the evidence is what we see on the video and not what's in the
transcript.
MR.
PORTER: I think there's a standard
instruction, Your Honor, in the charge book that says the transcript is to aid
you to follow the video.
THE
COURT: I'll look. I don't think so, but I'll look in the
meanwhile. Mr. Moore?
MS.
ROGAN: Yeah, I think there is.
THE
COURT: Is there?
MS.
ROGAN: I know there is.
THE
COURT: Okay.
MS.
ROGAN: And I believe we've included it
already, but if we haven't, we'll be sure to get a request.
THE
COURT: I'll double-check it while
you're settting up. I've given
instruction, but I don't recall it being it being the pattern book.
MS.
ROGAN: I'm familiar with it, though, so
--
THE
COURT: Okay. Well, we'll come back to that before we play the tape.
MS.
ROGAN: All right.
THE
COURT: All right. Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor. We'll get ready to get set up and do a sound
check.
THE
COURT: All right. Ms. Rogan?
MS.
ROGAN: Well, one point, Your
Honor. I wasn't aware that we weren't
all going to have a monitor, and it is of some concern to the defense that Mr.
Chapel will obviously not be able to watch this video while it's being
played. I understand the security and
logistical concerns of that, but I wanted to place on the record that we object
to his not being able to view the video.
THE
COURT: Well, I suppose -- let's
see. What size screen is this? Seventeen, twenty-one inch?
MR.
DAVIS: Twenty-one or twenty-three.
THE
COURT: We might be able to move it back
toward the court reporter such that you might shift over such that he could
view it from that side. You might try
placing it and see what kind of -- how large the image is and --
MR.
PORTER: Your Honor, I have a larger
television that's available to me. I
can't link the two together, but I'm going to have the larger television
brought up, and if we can play it over the larger television, that will give us
a little more room.
THE
COURT: Okay. You might set it back out this way so all of you, when you shift
over a little bit, including Mr. Chapel, can see it with no problem. Give it a try and we'll just see where we
are after you get it hooked up then.
MS.
ROGAN: All right. Thank you.
THE
COURT: Okay. We'll take ten minutes or so.
[A
recess was taken in the proceedings.]
THE
COURT: Is everybody all set? Is the equipment working?
MR.
PORTER: Yes, Your Honor. The state has it working. We found another television which won't
require anybody to move.
THE
COURT: Okay.
MR.
PORTER: Unfortunately -- I think the
Court can see it through the video.
THE
COURT: I can see it. I can see it.
MR.
PORTER: We've been discussing this
during the break, and given the fact that there is already an official
transcript of the original tape, and we have provided by stipulation a copy of
the redacted transaction, the state does not believe there's any necessity for
the court reporter to attempt to once again take this down as it is being
played.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I agree with
that. In fact, I proposed it to Mr.
Porter because I don't see how the court reporter -- this thing is hard to take
down anyway, and she's already gone through it once and made an official
transcript of it, and then we made -- edited that and everybody's agreed on it,
so I don't see any need for her to go the effort of trying to do the impossible
and try to take this thing down again of this hearing.
THE
COURT: I'm inclined to agree. It seems to me that's a good stipulation if
everybody will stipulate to it. So
stipulated.
Before
we bring the jury in, let me just -- I looked at the pattern charge, and I did
not find a pattern charge -- as a matter of fact, I couldn't find any
instruction I had given before on the issue of tapes and the transcripts, but
here is what I contemplate doing is giving the charge out of Watson, which
we've already been through, and then the charge on the redaction, which we went
through, and then add to it the following, and this is from -- let's see --
Lawrence v. State, 174 Appeals at Page 789, as follows:
'I
instruct you that the purpose of the transcripts that have been provided to
you, the purpose is to enable you to understand the recordings better, and I
caution you that the transcripts are solely to be used as an aid to understand
the tapes and that the jury alone is the judge of what the tapes say or do not
say and that the transcripts cannot be used for determining what the tapes say. At the conclusion of the playing of the
tapes, the transcripts will be taken up and not provided to the jury again
during the trial or during jury deliberations.'
Any
request or objection in that regard, Mr. Porter?
MR.
PORTER: Your Honor, only the request
that the Court give them instructions if they're going to take notes, they
should take them on the pads and not on the transcripts. I'm not sure that the jury can infer -- I
mean, we all understand don't put notes on something that's going to be taken
up, but it might be --
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, what you proposed is
fine. I don't have any problem with it
if you want to tell them what Mr. Porter said that if they're taking notes, if
they take them in the transcript, they won't have them later to review.
THE
COURT: Well, if I tell them we're
taking them up, that seems to me to be pretty clear, but maybe in an abundance
of caution, maybe we should anyway.
MR.
PORTER: Your Honor, given that we --
given that we've had to exercise an abundance of caution, it might be a good
idea.
THE
COURT: All right. What do you want me to tell them, then, Mr.
Porter? If they're going to take any
notes, they ought to be on something besides the transcripts. Is that the essence of your request?
MR.
PORTER: That's the essence of it, Your
Honor.
THE
COURT: All right. I'll do so.
All right. Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Bring the jury back in, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Ladies and gentlemen, we're
about to play a recording for you as part of the evidence in this case, and
you're being provided transcripts, which everybody should have on their seats
at this point. It appears everybody
does.
And
with regard to the playing of the recording and with regard to the transcripts
that you have, I instruct you, as follows.
As
to the statements made by Officer Latty and Burnette and Davis and by the
defendant, I instruct you as follows:
What other people had told Officer Latty and Burnette and Davis is
hearsay and is not admitted into evidence and is not to be accepted by you as
true as the evidence of the truth of what the officers say or other people told
them. It is admitted only to enable you
to comprehend the questions that the officers asked and the responses that the
defendant made in response thereto. You
bear that carefully in mind. What the
defendant said is admissible. What the
officers said other people had told them or that they believed or they had
discovered is hearsay and is inadmissible and cannot be considered by you as
evidence of the truth of what other people told them or what they believed or
what they had discovered.
Now,
I further instruct you that the videotape you're about to see has been redacted
or edited pursuant to previous rulings of the Court which were made outside
your presence. You should draw no
inference of any kind because of this redaction.
Now,
I further instruct you that the purpose of the transcripts is to enable you to
understand the recordings better, and I caution you that the transcripts are
solely to be used as an aid to understand the tapes, that the jury alone is the
judge of what the tapes say or do not say, and that the transcripts cannot be
used for determining what the tapes say.
Now,
at the conclusion of the playing of the tapes, the transcripts will be taken up
and will not be provided to the jury again during the trial or during jury
deliberations, so if you take any notes during the course of the video, they
should not be on the transcripts since they will not be available to you when
we conclude the playing of the video.
Ready,
Mr. Porter, Mr. Moore?
MR.
PORTER: State's ready, Your Honor.
THE
COURT: Go ahead, please.
MR.
PORTER: Your Honor, as a matter of just
a technicality, we're going to turn the
tape on and Mr. Davis is going to
adjust the volume. We would ask that
any of the jurors who cannot hear, simply signify that by raising their hands.
THE
COURT: Okay. Do you want me to turn the lights down? Would that be of benefit, do you think?
MR.
PORTER: Your Honor, it may be some
benefit in seeing it, although what we've seen is pretty clear.
THE
COURT: Okay.
MR.
PORTER: I don't think there's any
necessity to turn the lights down --
THE
COURT: Okay.
MR.
PORTER: -- although if the jurors wish
that, perhaps they could signify it by raising their hands.
THE
COURT: Okay. Try it and see.
Okay. Go ahead when you're
ready.
[Whereupon,
playing of the first videotape commenced.]
THE
COURT: How long will it take to change
the other tape? Have you got to cue it
up?
MR.
PORTER: Your Honor --
MS.
ROGAN: We haven't gotten to the end of
the tape yet.
MR.
PORTER: There's a matter that needs to
be brought up outside the presence of the jury.
THE
COURT: Okay. All right. We'll take
that up. We'll give you a recess at
this point. Is this a matter that will
take long or is this going to be quick?
MR.
PORTER: It should be relatively quick,
Your Honor.
THE
COURT: Okay. We'll take ten minutes.
If you'll leave your pens, pads, your transcripts, and your notes in
your seat, they'll be waiting on you when you return.
[The
jury was excused from the courtroom and proceedings continued, as follows, with
the jury not present.]
THE
COURT: Yes, sir?
MR.
PORTER: Your Honor, on Page 38, Lines
-- from basically 1 through 6, ending with 'her,' there appears to be another
reference about following Ms. Thompson to work that was not noticed by the
defense nor by the state. From a
technical standpoint, we can move past it with the tape, with the fast forward
on the tape.
THE
COURT: Go ahead, please.
MR.
PORTER: I don't know -- I don't know
how to deal with it on the transcript is the problem.
THE
COURT: All right. Have we reached that point yet?
MS.
ROGAN: We're just there, and Mr. Porter
and I noticed it at the same time, and I apologize. I went over it at lunchtime, the redacted transcript they'd given
us, and compared it to what we'd argued, and I missed this and evidently they
missed it, too.
THE
COURT: Okay. Did it play up to that point?
MR.
PORTER: Well, it has not -- it has
not. This is not -- Your Honor, this
has not been argued by the defense to be removed, it has not been instructed to
be removed. This is an inadvertent
oversight, but it does refer to matters that the Court had specifically ruled
out.
THE
COURT: I understand. Okay.
MR.
PORTER: Your Honor, I believe in the
transcript we'd gotten to, 'Okay. You
continued to pursue this case to the point.'
And I think at that point is when I instructed Mr. Davis to stop the
tape.
THE
COURT: All right. Ms. Rogan?
MS.
ROGAN: Well, I don't have a problem
with fast forwarding through that portion of the tape where it -- or even
getting to beyond that portion when we resume.
I don't know what to do about the transcript either.
THE
COURT: I would suggest, if it's only
one page, remove Page 38 from each of the books and proceed on.
MS.
ROGAN: Well, unfortunately, we haven't
gotten through the rest of Page 38.
MR.
PORTER: Yes, sir. We're only on Line 6 of Page 38.
MS.
ROGAN: So I don't know how to redact
that portion.
MR.
DAVIS: It can be scissored out in about
two minutes in all of the --
THE
COURT: I suppose so.
MS.
ROGAN: And just replace their pages of
Page 38.
MR.
DAVIS: Just cut it right out of the
book.
THE
COURT: Just cut it out.
MS.
ROGAN: Okay. That would be fine with us.
THE
COURT: You could black it out with a
magic marker, but that usually is somewhat transparent anyway, so --
MR.
DAVIS: I have tried that on another
copy and I'm not sure that works out.
THE
COURT: I think cutting it out would
probably be the easiest thing. All
right. So what you propose to do is
remove which portion?
MR.
PORTER: Your Honor, if I might, I think
this is a perfect case for a curative instruction by the Court. I think that is the simplest -- the
simplest, cleanest way to do it.
MS.
ROGAN: You mean, rather than removing
it?
THE
COURT: Which page and which line?
MR.
PORTER: It's Page 38, Lines 1 through
6.
THE
COURT: I understand that, but at the
point you stopped -- precisely, where did you stop the tape?
MR.
PORTER: Your Honor, we're somewhere in
the line -- somewhere in Line 1 of Page 38.
THE
COURT: Okay. I think an easier way to do it is just simply scissor out those
lines, cue the tape up at the end of that where -- to recommence and proceed
on. How is that a problem?
MS.
ROGAN: That would be our request.
THE
COURT: I mean that way, we don't have
to get into curative instructions or any inferences that may be raised or
anything else. Just simply start
playing it to the point where the redaction ends, take a pair of scissors or
whatever, cut that part out, as Mr. Davis suggested, and proceed on. Or do you want me to tell them that there's
been a further redaction at the direction of the Court, which is not evidence
to be considered in this case? I'll do
that.
MR.
PORTER: That's fine, Your Honor.
MS.
ROGAN: That's fine.
THE
COURT: All right.
MS.
ROGAN: I might also suggest that you mention
to them when the screen goes blank that's a redaction. The first time it happened I thought there
was something wrong with the electricity and I realized, and I know it's
redacted. They may not have any idea
what's happening.
MR.
PORTER: Well, they've seen three or
four or five of them.
MS.
ROGAN: But I guess they get used to
them now, too.
THE
COURT: Yeah, I think they've probably
figured that out by now along with us.
MS.
ROGAN: Okay. I'd probably have heart failure.
THE
COURT: All right. Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor. We'll begin -- I'll get some folks up here
and we'll get it started.
THE
COURT: All right. So you're going to start where? Where does the redaction end?
MR.
PORTER: Your Honor, at this point, I'm
going to begin with -- on the beginning of Line 1 on Page 38 and go down to the
word 'Duluth' on Line 5.
THE
COURT: All right. Ms. Rogan?
MS.
ROGAN: That's fine, Your Honor.
THE
COURT: So stipulated.
MR.
DAVIS: Can we ask the bailiff to
retrieve the transcripts?
THE
COURT: Yeah. Mr. Allen, why don't you pull those? What are you going to do, take a pair of scissors?
MR.
DAVIS: Yes, sir.
THE
COURT: Okay. Why don't you just take them one at a time, Mr. Allen. And let's have the bailiff handle the notes,
and nobody in the jury box beside the bailiff.
Mr.
Allen, why don't you enter the jury box and hand Mr. Davis, and, Ms. Rogan, you
can move over and assist if you like, and scissor out that portion of Page 38,
and just do them one at a time and replace it back in the seat. Just make it known when we're ready.
[Pause
in proceedings]
MR.
PORTER: Your Honor, we have provided
the court reporter with a redacted copy of Page 38 to be substituted into the
state's exhibit. We have provided the
Court, we've provided defense counsel, and Mr. Allen has replaced Page 38 of
each of the juror's transcripts with the redaction, and the tape is cued up so
it's ready to go as soon as the jury returns.
MR.
MOORE: That's correct, Your Honor.
THE
COURT: Okay.
MR.
MOORE: We checked the tape. I was in here with Mr. Davis when he reset
it so it's ready to go.
THE
COURT: All right. Do you want to mark the copy you provided
the court reporter? Let's mark it as an
exhibit. Is it labeled as an exhibit
number?
MR.
PORTER: Your Honor, I believe she's
already substituted it in for the page.
THE
COURT: In the copy of the book?
MR.
PORTER: In the copy which was
designated State's Exhibit Number 94.
THE
COURT: Okay. We might also leave the Page 38 as it was so we've got two Page
38's in the copy. We can use the --
well, I've got mine marked up.
MR.
PORTER: I have one here.
THE
COURT: It might be good for the record
to have a copy of 38 as we started and 38 --
MR.
PORTER: Your Honor, we can mark that as
State's Exhibit Number 95 as the original page, and the redacted page has been
substituted into State's Exhibit Number 94.
MR.
MOORE: And we'd have no objection to
that being made part of the record, Your Honor.
THE
COURT: All right. State's 95, then, will be the original Page
38 of the transcript. State's 96 will
be the redacted Page 38 of the transcript, and that's admitted without
objection. Anything else before the
jurors come back?
MR.
PORTER: That's fine, Your Honor. I had just thought we would substitute into
94 the redacted Page 38. That was what
I suggested. I didn't have the redacted
page marked. I just replaced the
original in the --
THE
COURT: Okay. All right. Let's make
sure we're all in agreement here. All
right. State's 94 is the transcript?
MR.
PORTER: Yes, sir.
THE
COURT: And we have State's 94 has the
original Page 38?
MR.
PORTER: Right now, it has the redacted
Page 38 --
THE
COURT: Redacted Page 38.
MS.
ROGAN: Right.
MR.
PORTER: -- substituted for the original
Page 38. And for the record, State's
Exhibit 96 was the original page -- State's Exhibit Number 95 is the original
Page 38, and there is no State's Exhibit Number 96 at this point.
THE
COURT: That'll be fine. All right.
Let me make sure the record's straight.
94 is the transcript of the tape which includes the redacted 38 with the
original 38 removed. That's State's 94
at this point?
MR.
PORTER: That's correct.
THE
COURT: State's 95 is one page and that
is the original Page 38 of the tape before it was redacted.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: That's correct, Your Honor. And we agree that Mr. Allen has removed all
of them from the books there. Ms. Rogan
counted them and they were all removed.
THE
COURT: All right. Anything else for the record, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: All right. Bring the jury back, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Before we recommence, let me
advise and instruct you that Page 38 in the transcript has been modified and
redacted with a portion being removed at the direction of the Court which is
inadmissible and should be given no weight and no consideration by the
jury. And in the event that any of the
jurors read or saw the original portion of Page 38 which has been redacted and
removed, then there should be no weight or credit or consideration given to
that part which has been removed. It is
not evidence, it is not to be considered in the case, and that will be the
instruction of the Court.
Ready,
Mr. Porter?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Ready, Mr. Moore?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Go ahead, please.
[Whereupon,
playing of the first tape resumed.]
THE
COURT: Would you approach the bench?
MR.
PORTER: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: How much does that leave us
with, do you think?
MR.
PORTER: One entire tape and then
partial of another.
THE
COURT: About how long do you think?
MR.
PORTER: Your Honor, it was about five
hours total. The total redactions come
to about thirty minutes, roughly. We've
been going about two hours. There's
about two and a half hours left of the tapes, give or take.
MS.
ROGAN: That sounds about right.
MR.
DAVIS: My guess is two hours and ten
minutes.
THE
COURT: Okay. Well, I had had them scheduled to get everything ready for the
jurors tonight about 5:15, contemplating knocking off today about 5:15 or so,
since we're going to be going all day tomorrow, and about three of them have
got their children coming over tonight.
So to make sure we get through in time and they can go do that, maybe
now is a -- it's a little early, and I was contemplating -- but maybe now is as
good a time -- is this as good a time to break as any as far as the tape
goes? Does it make any difference to
anybody?
MR.
PORTER: Six of one and half dozen of
the other.
MR.
MOORE: I think this place is fine.
THE
COURT: Okay. I guess we're getting --
approaching the time to take another break anyway. Okay.
What
have you got -- what have we got coming tomorrow? We've got the rest of the tape and that's about two hours
worth. And then what else do you think
we'll be seeing tomorrow?
MR.
PORTER: Then we'll begin to establish
the chain of custody of the physical evidence.
THE
COURT: When do you think we'll get into
the DNA? Is that going to be Monday?
MR.
PORTER: Monday at the earliest.
MR.
SMEAL: Your Honor, there are nine
witnesses coming in at 12:30. Most of
them as to the physical evidence. Those
nine witnesses have to precede the DNA, actually before we get to the DNA. There's two other experts before DNA.
THE
COURT: How long do you think those nine
are likely to be? Is that a couple of
hours worth or is that day's worth?
MR.
PORTER: Your Honor, it's our intention
to put up Investigator Latty after the completion of the tape.
THE
COURT: That may be a while, then.
MR.
MOORE: I expect the cross-examination
of him is going to be a while, Your Honor.
THE
COURT: Okay. Do you have any idea how long that's likely to last?
MR.
PORTER: Your Honor, we've got enough to
fill your day.
THE
COURT: Okay. I just don't want to get through at two o'clock tomorrow.
MS.
ROGAN: Oh, we won't.
THE
COURT: Okay.
MR.
MOORE: I don't think so, Your Honor.
THE
COURT: Okay. Just have us plenty of folks so we can go on until five or so and
get a full day out of it tomorrow.
MR.
PORTER: Very easy. Then I can't give you a good expectation Monday
-- it may be early Tuesday for the DNA.
THE
COURT: Okay. You still think three days or more?
MR.
MOORE: Well, it depends on how many
witnesses Mr. Porter calls. It doesn't
appear that he's going to call some of the people I'm going to call. We were going over it last night, and we've
got probably fifteen or twenty witnesses minimum --
MS.
ROGAN: I'd say twenty, twenty-five.
MR.
MOORE: -- not counting the experts.
THE
COURT: Okay. Well, we're still moving along at a pretty good rate, then. At least we're not dragging behind so --
MR.
DAVIS: We're filling up the clock.
THE
COURT: Yeah. Okay. All right. We'll just stop here, then, and we'll have
them come back at nine o'clock in the morning, then, and we'll be finishing up
and be prepared to spend the day tomorrow, then. Okay.
[Bench
conference concluded.]
THE
COURT: We're at a, I guess, as good a
break point as we're going to have at this point. We're due for a recess anyway, so I think rather than do that and
continue on for a little while, what we'll do is just recess here.
The
evening meal ought to be ready shortly and I know -- one of my concerns tonight
was we had some jurors with children coming tonight, and I wanted to make sure
that we had time for the meal and get back in time so it didn't infringe on
that.
So
I think taking it all into consideration, we'll just stop here for the day, and
we'll be recommencing in the morning at nine o'clock, and I anticipate we'll be
going until about five tomorrow. So
that's what we're looking at tomorrow, and then take Sunday off and come back
on Monday.
I'll
remind you at this point that you've heard a good portion of the case. You've not heard all of it. I remind you you ought to continue to keep
an open mind in the matter, you ought not to make up your own mind, you ought
not to commence any deliberations or discussions amongst yourselves or allow
anybody else to discuss the case with you or in your presence.
I'll
ask you to leave your pens, pads, and notes in your seats. They'll be waiting on you when you return in
the morning along with the transcripts.
They'll be waiting on you as well.
Any
question before we recess for the afternoon?
[No
response]
THE
COURT: All right. If you'll go with the bailiff, please.
[The
jury was excused for the evening and retired from the courtroom at 4:55
p.m.. Proceedings continued, as
follows, with the jury not present.]
THE
COURT: Anything else at this
point, Mr. Porter?
MR.
PORTER: No, Your Honor. Only to inquire -- Sergeant Parr, is the
courtroom going to be secured tonight?
SERGEANT
PARR: Secured, locked up, filmed and
monitored all night.
MR.
PORTER: Your Honor, then I'm going to
leave my equipment here because I don't have any idea how to reset it.
THE
COURT: That might be the best thing to
do. Just leave everything as is, and
we'll just hit the play button in the morning, then. Somebody can show you where that is.
MR.
PORTER: Yes, sir. Hopefully.
THE
COURT: Mr. Moore, anything else this
afternoon?
MR.
MOORE: Your Honor, one thing that I
would bring up. We went to the police
department and viewed the evidence before the trial started and then we met Mr.
Porter at his office on Sunday before the trial started and viewed the evidence
there, some evidence they had they wanted to stipulate to, and it was our
understanding we were going to be allowed to see all the evidence before the
trial started, and there's been new stuff introduced that we hadn't seen. We would like to meet with the DA and look
at the evidence and see what -- I mean, we continue to get new things or
surprises, and see what, if anything, is coming.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, I can't
specifically say. I assume that Mr.
Moore is referring to the photograph of Eren Chapel today, but he was provided
with a statement from Kendon Curtis.
MR.
MOORE: No, I'm talking about like the
Federal Reserve things. There were
additional things we didn't see.
MR.
PORTER: That was shown to them on
Sunday.
MR.
MOORE: No, not the printout.
MR.
MOORE: Part of it was. Part of it was not. We'd just like the chance to look at all the
evidence, if you don't object.
MS.
ROGAN: Everything you have, so we know,
you know, what's there.
MR.
PORTER: Your Honor, Gregory Smith
brought the document with him. We didn't
request that document. We were faxed
copies, and I showed copies to defense counsel. Your Honor, I think there's an important distinction here, and
it's highlighted by the photograph. The
evidence of the photograph of Eren Chapel was developed as a result of the
interview of a witness and as a response to that. And I think -- I don't think I'm under any obligation, even under
my own self set standards of disclosure, to reveal that type of evidence.
THE
COURT: You mean on cross-examination,
what's in -- what you put in as redirect?
MR.
PORTER: Your Honor, what I discover as
a result of my interview with witnesses and what I decide to do as a response
to bolster that, I don't believe that's discovery.
THE
COURT: Okay. Well, I suppose most of what's been disclosed is not technically
discoverable. It's a matter of just
opening up the file. I mean, that's the
essence of it, is it not?
MR.
PORTER: Your Honor, and the other --
and that brings up a good point about the Federal Reserve. Mr. Moore was aware of the four -- of the
evidence from which the Federal Reserve information was derived.
THE
COURT: Let me just --
MR.
MOORE: Your Honor, I'm not trying to
point out any one particular thing, but there's documentary evidence that's
been subpoenaed by the district attorney from different places that we can't
get. They've got the originals, the
places don't have it anymore, and we'd like to look at all of it and see what
the evidence is.
THE
COURT: Well, if it's not discoverable
as Brady material or that sort of thing, then it's a voluntary disclosure
anyway, is it not? I mean, that's what
you're talking about, a matter if it's voluntary disclosure.
MR.
MOORE: Your Honor, we had a motion to
view all the evidence, and Mr. Porter had agreed we could see all the evidence,
and you didn't rule on it. And we'd
like to see all the evidence. You know,
I'm not attributing any bad faith to anybody.
I just want to see it.
THE
COURT: Well, why don't, when we recess
today, discuss it with Mr. Porter. If
there's anything you want to take up, any motion you want to make in the
morning, then you can make it.
MR.
PORTER: Well, Your Honor --
THE
COURT: I mean, I'm not sure I
understand what the motion is or what relief you're asking for at this point or
what there is that can be disclosed.
I'm not sure I understand --
MR.
MOORE: Well, if he's subpoenaed
documents, Your Honor, original documents that we have no access to them,
there's no way for us to subpoena them and see them, I think we have a right to
see those documents.
MR.
PORTER: Your Honor, I can't -- there
have been a number of documents subpoenaed in this case. I have original documents, but I provided
copies.
MS.
ROGAN: Well, a lot of -- we saw a lot
of bank records on Sunday for the first time.
We had not been provided copies with any of that material, and I don't
know how recently you obtained it, but it wasn't provided to us.
MR.
PORTER: Your Honor, I'm not so sure of
that because that evidence was obtained on May 26 of 1993 pursuant to a
subpoena. And at that time they were
made a part of the police report and it was provided as a copy.
THE
COURT: Well, at this point, I guess, my
question, Mr. Moore, is what are you entitled to by way of any of the rulings
that you don't have or you think any rulings that have not been complied with?
MR.
MOORE: Your Honor, documents such as
bank records that the originals are no longer at the bank, we can't get them
under subpoena and everything. If Mr.
Porter has them, we think we're entitled to look at them.
MR.
PORTER: Your Honor, the only original
bank documents that we have are the Iron World Gym documents that were put
in. If they'll give me a specific list
of what they think they want, then I'll look at it, but I'm not inclined at
this point, in the midst of trial, to say, 'Oh, yeah, come on over and look at
all my evidence that I've developed as a result of interviewing witnesses.'
MR.
MOORE: Well, if you're stating in your
place there's no other bank records other than the ones you've already entered into
evidence that we can look at, then --
MR.
PORTER: Your Honor, there are bank
records, I assume, but -- or Mr. Smeal informs me there are copies of bank
records, but I do not intend to introduce any more bank records at this time. But we're in -- we're operating off of
copies, too. The only set of originals
that we have are the bank records for the Iron World Gym for April of 1993.
THE
COURT: Well, I think I'm going to leave
it -- Mr. Moore, why don't you, at the conclusion of today's hearing, discuss
it with Mr. Porter, make it known what you want, or if you want to inquire as
to what you think you're entitled to that you've not been provided and what's
not been -- if there's any failure to comply with any order that's been
entered, then we'll come back to it in the morning.
MR.
MOORE: Your Honor, if Mr. Porter says
the only original records he has are the ones that's been admitted into
evidence, then I would accept his word for it.
THE
COURT: All right.
MR.
PORTER: Your Honor, I had no knowledge
of the Federal Reserve bringing that, but we had shown the defense a copy. But I think that brings us to another
point. At what point does my -- I have
no statutory duty of disclosure. I have
taken upon myself in the interest of fairness to provide the defense counsel
with a copy of the police report, a copy of the scientific report, and the
copies of statements of any witnesses which have been developed in the course
of my investigation, but evidence which either supports those witnesses'
stories, and I give the example of the Federal Reserve or the photograph of
Eren Chapel, which I developed in the course of my preparation for trial, I
feel under no obligation to provide.
If
I can -- if I tell Mr. Moore that I find certain reserve notes, and I inform
him of that, I give him copies of it, but yet on my own initiative we go to the
Federal Reserve, we ask the Federal Reserve, 'Can you trace those bills,' and
they say yes, that's mine. I don't have
to provide that. And I feel under no
moral or ethical obligation to provide that.
If
I provide Mr. Moore with the statement of Kendon Curtis, but yet I feel it's
important to have him look at a photograph or obtain a photograph in case it
becomes important, that's my investigation, just like he has an investigator
doing his. And I feel under no
obligation to provide that.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we just want to know
where we're playing here. I mean, we
were told we were going to get to see everything. And if we're not, then we know that, that's --
THE
COURT: Well, I guess -- what did you
understand the agreement to be insofar as some point in time? I guess -- is it your understanding that Mr.
Porter is supposed to disclose everything that comes in his possession? For example, if he has other evidence
develop tomorrow or evidence he develops with respect to rebuttal, perhaps, is
all that supposed to be disclosed?
MR.
MOORE: Your Honor, it may not be, but
we want to know where we stand with Mr. Porter, and that's why I'm trying to
clarify that. You know, we were told we
were going to get to see everything and then other things showed up.
THE
COURT: Well, my suggestion would be,
again, just discuss the matter with Mr. Porter when we conclude today. If there's any question about what he's got
or any disagreement about what you think you're entitled to, you can discuss
it.
If
you want to file a motion, renew your motion, or anything else with respect to
what you've been provided or not provided, then make it known and we'll take it
up in the morning or anyplace else along the way. MR. PORTER: Your Honor, for
the record, I have stated my position as to that. I have assumed the duty to provide them with the original
information or the root information.
Information that I developed to either support or rebut them, I feel
under no obligation to provide.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: I'm not going to argue any
further, Your Honor.
THE
COURT: All right. Okay.
Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll be in recess until nine
o'clock in the morning.
[Proceedings
were recessed for the evening at 5:05
p.m. on August 25, 1995.]
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