[In
the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m.,
Thursday, August 31, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL,
93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]
THE
COURT: Ready Mr. Moore?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Ready, Mr. Porter?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Bring the jury in, please.
[The
jurors were escorted to the courtroom.]
THE
COURT: Good morning, ladies and
gentlemen.
[Jurors
respond]
THE
COURT: Everybody doing okay this
morning? Good.
Mr.
Moore, call your first witness, please.
MR.
MOORE: Your Honor, the first thing I
would do is, I've shown this to Mr. Porter, I would tender Defendant's Exhibit
Number 98, which is an affidavit from Windy Howe of the Law Enforcement
Technology Center from the U. S. Department of Justice certifying the
Defendant's Exhibit Number 99, which is a 1992 Model Year Patrol Vehicle
Testing done by the Michigan state police, and we would tender Defendant's
Exhibits Number 98 and 99 at this time.
THE
COURT: What is 99?
MR.
MOORE: 99 is a -- it's a booklet put
out by the U. S. Department of Justice, 1992 Model Year Patrol Vehicle Testing.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, the state would
agree that it is a true and correct copy.
We do not agree that the data is accurate, and it has not been
established, or we don't know whether the data is accurate, and I don't think a
proper foundation has been laid for the admission.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I would tender it to
the Court and let the Court look at it and make that determination.
MR.
PORTER: We stipulate that it is an
official publication of the United States Department of Justice. We stipulate that it is, in fact, what it
says it is, but I don't think, number one, the accuracy of the data has been
found. And second of all, I think it's
only admissible for the record.
THE
COURT: For what purpose is the
affidavit offered?
MR.
MOORE: The affidavit and the booklet
put out by the Department of Justice are offered for the purpose of having an
expert witness, Your Honor, testify regarding the performance of that vehicle
and various distance and time computations.
Now, we have a witness standing by that we can fly in if necessary.
THE
COURT: Well, in this instance, what's
been marked as Defendant's 98, the affidavit, it would not appear to be a -- I
mean, it would appear to me that that affidavit would not make it a certified
document admissible on the basis of being a certified document. And if it's an affidavit, it seems to me
there's an issue as to whether or not what does it say can it be cross-examined
as is it inadmissible. Would you
approach the bench, please.
[Counsel
approached the bench, and a conference was held outside hearing of the jury, as
follows]
THE
COURT: I guess my question is, where
are we headed with it?
MR.
MOORE: Well, I have an engineer, Your
Honor, who is going to testify, based on the performance of that vehicle, about
times and distances and everything.
I've got a witness from Michigan that we can fly in. It's probably going to cost about a thousand
dollars to do it, but I mean he's standing by to come in if necessary.
MR.
PORTER: Your Honor, I think in this
circumstance if the witness testifies and he uses that document, then that's
fine. That's admissible testimony just
like any other expert who testifies to the basis of his opinion using certain
data, and if I have the opportunity to attack that. I'm standing here today, I don't have any real objection to that
going into the record as the basis of the expert opinion, but I can't -- I'm
not going to agree to the accuracy of the data. I think that's a subject for cross-examination. That's a subject for verification by the expert.
MR.
MOORE: Your Honor, I'm not contending
it ought to go out to the jury or anything, merely that the expert could use
that --
MR.
PORTER: I'm not quibbling that it's an
authentic document.
THE
COURT: Okay. All right. So, well,
maybe we can reach a stipulation here that satisfies everybody. What you want is the document used in
conjunction with the testimony of the expert.
MR.
MOORE: Yes, Your Honor.
THE
COURT: And you want to be able to --
you don't have any problem with that document going in as an exhibit for the
record only, and then you use it on direct or cross-examination, but you're not
stipulating to the --
MR.
PORTER: Content.
THE
COURT: -- to the accuracy of the
contents.
MR.
PORTER: That's correct.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, that should be fine.
THE
COURT: Okay. So stipulated.
MR.
MOORE: Your Honor, we'd call Mary Ann
White to the stand.
THE
COURT: Let me ask, with respect to
Defendant's 98 and 99, the affidavit and the document marked Defendant's 99, I
believe the stipulation is that those both be admitted for the record to use in
conjunction with examination of your witness or on cross-examination or with
respect to any witness the state may wish to call in rebuttal. Is that correct?
MR.
MOORE: That's correct, Your Honor. We intend to offer an expert who will give
opinions based on matters in the booklet there, Defendant's Exhibit Number 99.
THE
COURT: All right. But there is no stipulation as to the
accuracy or the contents in Defendant's 99?
MR.
PORTER: That is correct, Your
Honor. We agree that that is a true and
correct copy of that particular document, and it may be the basis for an expert
opinion, but we reserve the right to question the basis of that opinion, and we
do not stipulate that those are true and correct numbers as they apply to the
defendant's vehicle.
THE
COURT: All right. Mr. Moore, is that the stipulation?
MR.
MOORE: Yes, Your Honor.
THE
COURT: So stipulated. Which witness do you call next?
MR.
MOORE: Mary Ann White.
[The
witness was called to the courtroom.]
THE
COURT: Ms. White, if you'll take the
stand up here.
[The
witness stepped to the stand.]
THE
COURT: I believe you've been sworn, and
you remain under oath.
THE
WITNESS: Yes, sir.
MR.
MOORE: Your Honor, I've had this
plastic bag marked as Exhibit Number 101.
It contains various miscellaneous papers. At this time we intend not to get the various papers inside
marked individually, but if we do cross-examine anybody about them or use those
papers individually, Mr. Porter and I have agreed we'll take them out and have
them marked as we use them.
THE
COURT: All right. What's the -- what are the documents? What are they about?
MR.
MOORE: It's various documents that were
taken from Mr. Chapel's car.
THE
COURT: All right. So the plastic bag is marked as 100, and the
documents --
MR.
MOORE: D-101, Your Honor.
THE
COURT: All right, D-101. Is that -- restate what 101 is, please.
MR.
MOORE: That's the plastic bag
containing the various miscellaneous documents. It's labeled 'miscellaneous papers.'
THE
COURT: All right. Collectively it's 101?
MR.
MOORE: Yes, your Honor. And if we use any of them individually we'll
get them marked as we take them out.
THE
COURT: Okay.
MR.
MOORE: You were already sworn, I
believe, but would you hold up your right hand, please. Do you solemnly swear the testimony you're
about to give before this 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. MOORE:
Q. Would you state your name, please?
A. Mary Ann White.
Q. Okay.
And Technician White, I'm going to show you what's been marked as Defendant's
Exhibit Number 101 and ask if you can identify that.
A. These are miscellaneous papers that I got
from Unit 197, and this is my handwriting.
Q. And you gathered those on what date?
A. 4/29/93, I believe.
Q. And you gathered all those various items and
placed them in that plastic bag which is labeled Defendant's Exhibit 101?
A. Yes.
Q. And each of them came out of Unit 197?
A. Yes, they did.
Q. I'm going to show you two other documents,
Defendant's Exhibit 72 and 73, and ask you if you can identify those.
A. No.
I don't remember these.
Q. You don't know whether those were in the
plastic bag or not?
A. No, I don't know.
Q. Okay.
MR. MOORE:
Your Honor, we have two exhibits here, Defendant's Exhibit 72 and 73,
which were removed from Mr. Chapel's car, and Mr. Porter and I have agreed to
stipulate that these were removed from the plastic bag that Technician White
has. And we would tender those at this
time, Defendant's Exhibits 72 and 73.
MR.
PORTER: Your Honor, that is
correct. We would stipulate that those
documents were removed from the bag recovered by Technician White, and they
were removed to show them to defense counsel, I believe, outside the Gwinnett
County police department on July the 25th of 1995.
THE
COURT: Any objection to Defendant's 72
and 73 being admitted?
MR.
PORTER: No. We have no objection.
THE
COURT: Defendant's 72 and 73 are
admitted without objection.
BY
MR. MOORE:
Q. Technician White, without reading what's in
those, could you identify what Defendant's Exhibit 72 and 73 are?
A. They're incomplete incident reports.
Q. And is that the type of incident report
that's normally filled out by an officer when he goes out on a call?
A. As far as I know it is, yes.
Q. And those, it appears, have never been
filed; is that correct?
A. That's correct.
Q. Now, when you gathered up the papers and
everything out of Officer Chapel's car, did you gather up everything in there?
A. As far as I know I did, yes.
Q. And you placed it either in that plastic
bag, or else some of the items were in a briefcase; is that correct?
A. I didn't see the briefcase.
Q. You never did see the briefcase?
A. No.
Q. It had already been removed at the time you
---
A. Yes.
Q. Did you gather any other items up? I believe you removed the seat, you
testified earlier; is that correct?
A. Yes, I did.
Q. Did you gather up any other items to be sent
to the crime lab?
A. From -- from Unit 197?
Q. Yes, ma'am.
A. Just the seat and the arm rest.
Q. That's the only thing you gathered and sent
to the crime lab?
A. That's correct.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 76 and ask you if you've ever seen that item before.
A. I don't remember it.
Q. Would you have any knowledge as to how it
got into a briefcase in the car?
A. No.
Q. I'm going to show you what's been marked as
Defendant's Exhibit 102 and ask if you can identify that. There's a tag on the side there.
A. This is the pursuit pack that I took out of
Officer Chapel's car.
Q. And tell the jury what is a pursuit
pack? What's it for?
A. It's for holding papers and forms. It fits over the seat and you can keep blank
forms and ticket books and that sort of thing in it.
Q. Could you come down and show the jury how it
fits over the seat?
A. [Witness complies]
Q. Is that the way it was in Officer Chapel's
car in Unit 197 when you retrieved it?
A. Yes, it was.
Q. And did it contain anything at that time
when you went into his car?
A. Yes.
Q. And what was in it?
A. Papers, ticket books, ink pens, just
miscellaneous personal items.
Q. And you did the Luminol of the car; is that
correct?
A. Yes, I did.
Q. Okay.
Did you Luminol the pursuit pack or any of the things there?
A. No, I didn't.
Q. So none of that was checked or sent to
the crime lab? A. No.
Q. Okay.
MR.
MOORE: Your Honor, at this time I
tender Defendant's Exhibit 102.
MR.
PORTER: No objection, Your Honor.
THE
COURT: Defendant's 102 admitted without
objection.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 103 and ask you if you can identify this.
A. It looks familiar to me. I believe I got it from Unit 197.
Q. Technician White, I'm going to show you a
couple of property records and let you look at it and see if they refresh your
memory regarding --
A. Yes.
I listed a plastic figurine on the property sheet.
Q. And do you remember where you removed that
from in the car?
A. No, I'm sorry, I don't.
Q. Was it up on the dash of the car?
A. I don't remember. I don't remember if it was sitting on the dash or not.
Q. If you look at it on the bottom it's got a
Velcro type strip here where it sticks onto something?
A. Yes, it does.
Q. And you don't recall that sitting up on the
dash of the car?
MR. PORTER:
Your Honor, he's leading the witness.
It's his witness.
THE
COURT: [No response]
BY
MR. MOORE:
A. [Continuing] I'm sorry. I don't
remember where it came from out of the car.
Q. Okay.
But you did take that out of Officer Chapel's car?
A. Yes.
MR.
MOORE: Your Honor, at this time we'd
tender Defendant's Exhibit 103.
THE
COURT: Any objection?
MR.
PORTER: No, your Honor.
THE
COURT: Defendant's 103 is admitted
without objection.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 104 and ask you if you can recognize that.
A. Yes. I listed a shoulder holster that was made out of cloth on my
property sheets.
Q. Okay.
And did you remove that from Officer Chapel's car?
A. Yes.
MR.
MOORE: At this time, Your Honor, we'd
tender D-104.
MR.
PORTER: Your Honor, at this time we
would object. There's been no -- the
only evidence is that it's been removed from the patrol car. There's been nothing to connect it to this
defendant in terms of ownership.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, if it's removed from
this patrol car by this technician, there's a presumption that things that are
in the vehicle in Georgia belong to the person in possession of that vehicle,
and we would contend that it should be admitted.
MR.
PORTER: Your Honor, that only applies
to the owner of the vehicle. It does
not apply to someone who has a vehicle assigned, particularly in the case of a
police officer who may have evidence, who may have items that belong to someone
else. I don't think a patrol car fits
under that exception of the ownership presumption.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we'd just tender it
to the Court.
THE
COURT: Defendant's 104 is admitted over
objection.
BY
MR. MOORE:
Q. Now, Technician White, did you remove a gun
belt like that from Officer Chapel's car?
A. Yes, I did.
Q. Okay.
Was that gun belt sent for any testing or anything?
A. No.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 105 and ask you if you can identify that.
A. Yes.
I believe that's the Living Bible that I removed from Officer Chapel's
car.
Q. And was that removed on the date -- the same
date as the other items in 1993?
A. Yes, it was.
Q. And do you know where in the car that was
removed from?
A. No, I'm sorry, I don't.
Q. But you did remove that from his car?
A. Yes.
Q. I'm going to show you Defendant's Number 106
and ask if you can identify that.
A. Yes.
I listed a pair of -- let me find it -- leather and mesh fingerless
gloves that was -- that I removed from Officer Chapel --
Q. Did you remove those from Unit 197, Officer
Chapel's car, in 1993?
A. Yes, I did.
MR. MOORE:
Your Honor, at this time we'd tender Defendant's Exhibit 105 and 106.
THE COURT:
Would you approach the bench, please?
[Counsel
approached the bench, and a conference was held, as follows.]
THE
COURT: Let me ask, insofar as the
contents of the car, I'm not anxious to refuse things that may have some
relevance. I guess my question is, is
the fact that everything that came out of that car, including the lint from the
glove compartment or something, does the fact that it's in the car make it
admissible?
MR.
MOORE: Your Honor, we believe that
particularly the gloves and everything are going to be relevant. There's going to be other testimony
regarding those at a later time.
MR.
PORTER: Your Honor, I think there's two
questions, particularly about 106, the Bible.
We've already had a discussion about the Bible and the access of jurors
to Bibles, and the defense is putting in a Bible. We'd argue that it's not relevant.
MR.
MOORE: Your Honor, I'm not contending
the Bible should go out to the jury.
I'm not asking it go out, just the fact that it was in his vehicle. They've gone into the contents of the
vehicle in detail.
MR.
PORTER: In relevant -- for the relevant
portions of testimony.
THE
COURT: Well, that's my question, I
guess. The fact that it's in the
vehicle, it seems to me -- it sure makes me inclined to liberally construe
what's relevant if it comes out of the vehicle. But I think the simple fact that anything comes out of the -- out
of the vehicle doesn't in and of itself mean it ought to be admitted into
evidence.
MR.
MOORE: Your Honor, they selectively
tested certain things in the vehicle and didn't test other things, and I think
we have a right to show what they didn't test as well as what they did. I mean the state showed what they did test.
MS.
ROGAN: Yeah. I mean their allegation is that there was blood inside the
car. I think we're entitled to show the
number of other things that were inside the car that don't have blood on them.
THE
COURT: What other items are we going to
be looking at?
MS.
ROGAN: How many, did you say?
THE
COURT: What other items are we going to
be looking at out of the car?
MS.
ROGAN: Well, there's quite a list. There was a lot of stuff in that car.
MR.
PORTER: Well, Your Honor, there's been
no testimony regarding the location of those items and their relevancy as to
the testing. Maybe the pursuit pack. But they haven't said where the gloves
were. If it was in the glove
compartment, what relevance is it that it wasn't tested? If it was in the trunk, what relevance is it
that it wasn't tested?
THE
COURT: Well, that's my question.
MR.
PORTER: I mean particularly --
MS.
ROGAN: We think there is some
relevance.
MR.
PORTER: Well, I understand they think
that, but they haven't shown it.
THE
COURT: Well, I think my inclination is
let's go ahead and identify them, where they came from, and then when you have
some connection, when there's some relevance demonstrated, then we will rule
whether or not they're coming in or not.
MR.
PORTER: Your Honor --
THE
COURT: It seems to me -- it just seems
to me that if we have 500 items that came out of the trunk or out of the wheel
well or out of the glove compartment or anyplace else, just the simple fact
that they're in the car doesn't make them admissible.
MS.
ROGAN: Well, but her testimony, Your
Honor, is that she just removed the stuff from the interior of the car on the
seats. She didn't go into the trunk,
she'd said previously, and I don't believe she ever said she went into the
glove compartment, so that's not even an issue. This is stuff that was on the seats.
THE
COURT: Well, I mean I don't know what's
-- that's what I'm asking. I don't know
where we're going.
MR.
MOORE: Well, Your Honor, I don't know
whether I can ask her whether or not she conducted any tests on them if they're
not in evidence. I mean I'm not going
to be allowed to question her about whether tests were run on them --
MR.
PORTER: Your Honor, the state would
object to this parade of stuff in front of the jury if it -- particularly if
it's going to be subsequently ruled out.
I think if we're going to -- if we're going to follow that procedure, we
ought to ask the jury to step out, let Mr. Moore make his proffer with Mary Ann
White --
THE
COURT: Well, on one hand, you know, I
don't want to handcuff the defendant from putting up their case. On the other hand, if it's not relevant and
it's not admissible, then it ought not to be piled up in front of the
jury. So, you know, that's sort of my
quandary.
MR.
MOORE: But, Your Honor, I can't very
well cross-examine the witness about whether they tested it or not unless --
MR.
PORTER: He's not cross-examining this
witness, Your Honor. This is his
witness.
MR.
MOORE: Your Honor, she's a police
department witness, and we believe we'd have the right -- she's not a friendly
witness to the defense.
MR.
PORTER: I don't think there's been any
--
THE
COURT: At this point she's your
witness. At this point.
MR.
MOORE: I understand.
THE
COURT: What other items are you going
to have her identify? Where are we
going? What other kinds of items are we
talking about?
MS.
ROGAN: Well, she removed probably
thirty items from the patrol car, much of which was returned because the state
didn't think it was relevant to its case.
That doesn't mean we don't think it's relevant to our case. And we have it here in court and we'd like
her to identify the items that are on her inventory sheet that she removed from
the interior of the car.
THE
COURT: Well, the fact that -- the fact
-- maybe he's got the key to his house or his apartment and that was removed
from him or removed from the car and given back to his folks, does that make
that relevant evidence to put here in front of the jury just because they took
it from the car?
MS.
ROGAN: It is, under our theory, if they
didn't test it for blood, and it was in a location in the car that it could
have -- we're going to have other witnesses testify as to where in the car
these things were even though she doesn't remember.
MR.
PORTER: Your Honor, that only gets --
that only moves further to necessitate the offer of proof outside the presence
of the jury. This is prejudicial,
particularly evidence they can't get in.
The car had to be cleaned up and returned to the fleet.
MR.
MOORE: Your Honor, I don't have any
problem with doing it outside the presence of the jury if the Court wants to,
but we do feel like --
THE
COURT: I think that might be good. Let's just see where we're going and then
just sort of get the lay of the land and lay out some boundaries here, what
we're about to do. And I think maybe
that will -- maybe that will help everybody.
Okay. Let's do that.
[Bench
conference concluded]
THE
COURT: We're going to take up a matter
that won't require the presence of the jury.
Mr. Allen, I'm going to ask you to take the jurors out for a few
minutes. We'll recommence in a moment.
[The
jurors were excused from the courtroom.]
THE
COURT: Mr. Moore, where -- where are we
going with the items in the car?
MR.
MOORE: Your Honor, the state has put
forth before the jury a theory that blood was -- somehow got into Mr. Chapel's
car as a result of Ms. Thompson being killed.
We intend to show that there were numerous items that were located in
close proximity to the area where they claim the blood was, and we intend to
question witnesses about whether or not any of these items were tested.
The
state's been allowed to put in evidence of tests which they selected a certain
area they wanted to test. We think we're
allowed to put in items in close proximity to show whether or not they tested
those items, whether any tests were conducted on them which might have -- might
have excluded Mr. Chapel or might have shown that -- in fact, we don't know
what it would have shown because we don't believe they tested them, and we
think we have a right to question about that.
And
furthermore, Your Honor, the evidence in this case, certain items, for
instance, the gloves that we had there, we intend to present evidence that Mr.
Chapel wore those all the time, particularly when it was a rainy time, and it
was a rainy night when this occurred, and determine whether or not the state
ever tested those gloves or not, whether or not any tests were ever conducted
on them.
THE
COURT: What other items are we talking
about offered in that vein?
MR.
MOORE: Your Honor, my proposal would be
we've got a plastic container here of various items, and to save time, my plan
was to have the plastic container marked and then have Technician White see
which, if any, items she could identify, and then we can -- if she can identify
them, then we can discuss whether or not they're admissible. All these were removed from Mr. Chapel's car
when she did the --
THE
COURT: All right. Do you want to go ahead and do that now?
MR.
MOORE: Yes, sir.
DIRECT EXAMINATION RESUMED - JURY OUT
BY
MR. MOORE:
Q. Technician White, I'm going to show you
what's been marked as Defendant's Exhibit Number 107 and ask you if you would
look through that and see which, if any, items in there you can identify. And if you'd tell us when you find one you
can identify, I'll get it marked, each one, as you -- if there is anything you
can identify in Defendant's Exhibit 107.
A. Okay.
First of all, the box is listed on the property sheet. This -- and I know where this was. It was in the trunk.
Q. So you did remove Defendant's Exhibit Number
107 from Mr. Chapel's car?
A. Yes.
Q. And did you use that as a storage container
to put other items in?
A. Yes, I think I did. I don't see these listed separately. This is the metal clipboard.
Q. Is that something you can identify? If it is, I'll get it marked.
A. Yes.
[Defendant's Exhibit 108 was marked for
identification by the court reporter.]
BY
MR. MOORE:
Q. The metal clipboard that you just referred
to, that's Defendant's Exhibit Number 108, can you identify that?
A. Yes.
I removed it from Officer Chapel's car. This is the metal ticket book holder. [Presenting]
Q. Now, D-108, that's the metal clipboard. Do you remember where you removed that from
in the car?
A. No, I don't.
Q. You had picked out Defendant's Exhibit --
[Defendant's Exhibit 109 was marked for
identification by the court reporter.]
BY
MR. MOORE:
Q. You had picked out Defendant's Exhibit 109 as
something you could identify, too.
Could you identify that?
A. Yes.
That's the metal ticket book holder.
THE
COURT: Okay. What number is that, Mr. Moore?
MR.
MOORE: 109, Your Honor.
BY
MR. MOORE:
Q. And did you remove that from Unit 197, Mr.
Chapel's car, in 1993?
A. Yes, I did.
And here's the $6.31.
[Presenting]
MR. MOORE:
Let me get that marked.
[Defendant's Exhibit 110 was marked for
identification by the court reporter.]
BY
MR. MOORE:
Q. Okay.
Showing you Defendant's Exhibit Number 110 that's been marked now, could
you identify that?
A. Yes.
That's $6.31 that I removed from Officer Chapel's car.
Q. Okay.
Do you remember where you removed that money from?
A. No, I -- I don't remember. I think it was just scattered around. It wasn't all together. This is a book of raffle tickets that I
removed from the vehicle. [Presenting]
Q. Okay.
The book of raffle tickets, Defendant's Exhibit Number 111, could you --
is that the raffle tickets you're referring to?
A. Yes.
Q. And did you remove that from Officer
Chapel's car, Unit 197, in 1993?
A. Yes, I did.
Q. Okay.
We'll get that marked. A.
Yeah, that's a -- that's the TV set I removed.
[Defendant's
Exhibit 112 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 112. Is that
the TV set you referred to?
A. Yes.
Q. And did you remove that from Mr. Chapel's
car, Unit 197, in 1993 when you searched it?
A. Yes, I did.
Q. And do you remember where Defendant's
Exhibit Number 112, the TV set, was located?
A. I believe it was in the trunk.
Q. It was in the trunk.
A. Let's see.
This is the glasses case that I removed.
[Defendant's Exhibit 113 was marked for
identification by the court reporter.]
BY
MR. MOORE:
Q. Okay.
Now, the glasses case has been marked as Defendant's Exhibit Number
113. Is that the glasses case you're
referring to?
A. Yes.
Q. Is that the one you removed from Mr.
Chapel's car, Unit 197, in 1993 when you searched it?
A. Yes.
And here's a box of two cigars.
[Defendant's Exhibit 114 was marked for
identification by the court reporter.]
BY
MR. MOORE:
Q. Okay.
The two cigars you referred to in a box, Defendant's Exhibit Number 114,
is that the same ones you're referring to?
A. Yes.
Q. And did you remove those from Mr. Chapel's
car, Unit 197, when you searched it in 1993?
A. Yes, I did.
This is a cup holder, and I removed it, also.
[Defendant's
Exhibit 115 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. The cup holder you referred to, Defendant's
Exhibit Number 115, consists of two pieces; is that correct?
A. Yes.
Q. And is that the cup holder you removed from
Mr. Chapel's car, Unit 197, in 1993?
A. Yes.
Q. Where was it located? Was it in the car or --
A. I don't recall. I don't -- I don't think it was hanging up. Okay.
Here's two right-hand gloves that I recovered.
[Defendant's Exhibits 116 and 117 were marked
for identification by the court reporter.]
THE COURT:
Is that 116?
BY
MR. MOORE:
Q. There's two separate gloves, so I'm going to
show them to you separately.
Defendant's Exhibit Number 116, could you identify that?
A. Yes.
That's one of the gloves that -- one of the right-hand gloves that I
removed.
Q. Okay.
You removed that from Mr. Chapel's car, Unit 197, in 1993 when you
searched it?
A. Yes, I did.
Q. Defendant's Exhibit Number 117, would you
look at that, please?
A. Yes.
That's another right-hand glove.
Q. And did you remove that from Mr. Chapel's
car, Unit 197, in 1993 when you searched it?
A. Yes, I did.
[Presenting] Coffee mug that I
found in the car.
[Defendant's Exhibit 118 was marked for
identification by the court reporter.]
BY
MR. MOORE:
Q. Okay.
I'll show you what's been marked as Defendant's Exhibit 118 and ask you
if you could identify that.
A. Yes.
That's the coffee mug that I removed from Officer Chapel's car.
Q. Okay.
And that's when you searched Unit 197 in 1993; is that correct?
A. That's correct. And these are two pairs of sunglasses.
[Defendant's
Exhibits 119 and 120 were marked for identification by the court reporter.]
BY
MR. MOORE:
Q. I'll show you what's been marked as
Defendant's Exhibit Number 119. Can you
identify that?
A. Yes.
That's a pair of sunglasses that I got out of Officer's Chapel's car.
Q. Okay.
And that was Unit 197 which you searched in 1993?
A. Unit 197, correct.
Q. Defendant's Exhibit Number 120, could you
identify that?
A. That's the other pair of sunglasses that I
got out of Officer Chapel's car.
Q. Okay.
And was that also in 1993 when you searched it?
A. Yes.
There's a clipboard.
[Defendant's
Exhibit 121 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. I show you Defendant's Exhibit Number
121. Is that the clipboard you referred
to that you removed from Officer Chapel's car in 1993 when you searched it?
A. Yes, it is.
And a Crown Royal bag.
[Defendant's
Exhibit 122 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. Defendant's Exhibit Number 122, which is a
Crown Royal bag, is that the bag you removed from Officer Chapel's car in 1993
when you searched it?
A. Yes, it is.
Q. Do you remember where it was located?
A. No, I don't. I'm sorry. This is the
miscellaneous personal items and papers, and I believe that this may have
fallen out. It has been opened. Looks like a light bulb -- a little -- a
light bulb.
Q. Okay.
Did this --
A. Yeah, I believe they -- I believe they came
out of there. Mr. Moore?
Q. Yes?
A. This may have come out of it, too, because I
don't see it listed separately. It's a
cigarette lighter.
Q. Do you know whether it did or not?
A. No, I don't. The bag's been opened, and I really don't know.
Q. If you don't know then, I won't try to put
it in. Just leave it.
A. Okay.
[Defendant's
Exhibits 123 and 124 were marked for identification by the court reporter.]
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 123, which is a plastic bag containing some
things. Could you identify that?
A. This is what I listed as miscellaneous
items, personal items on when I first -- that I got out of Officer Chapel's
car.
Q. Okay.
And that was in 1993 when you searched it; is that correct?
A. Correct.
Q. I show you Defendant's Exhibit Number 124
and ask if you can identify that.
A. I got this out of the -- Officer Chapel's
car. I believe it came out of here.
Q. You believe that originally was in
Defendant's Exhibit Number 123, the plastic bag?
A. Yes, sir.
Q. And that's an envelope containing what?
A. It looks like a light bulb, like a flash
light bulb. There's a hand mirror.
[Defendant's
Exhibit 125 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. Okay.
Showing you Defendant's Exhibit Number 125, what's been marked, is that
the hand mirror you're referring to?
A. Yes.
Q. Okay.
And did you remove that from Officer Chapel's car in 1993 when you
searched it?
A. Yes, I did.
A package of soup.
[Defendant's
Exhibit 126 was marked for identification by the court reporter.]
THE
COURT: Do we have a 124?
MR.
MOORE: That was 124, Your Honor, the
envelope containing a light bulb.
THE
COURT: What was 123?
MR.
MOORE: 123 was a plastic bag of
miscellaneous papers, Your Honor.
THE
COURT: Okay. You marked the white bag separately as 124 [sic]?
MR.
MOORE: Yes, sir.
THE
COURT: Okay.
MR.
MOORE: Yes, sir.
BY
MR. MOORE:
Q. Showing you Defendant's Exhibit 126, is that
the package of soup that you just referred to?
A. Yes, it is.
Q. And was that removed from Officer Chapel's
car when you searched it in 1993?
A. Yes, it was.
Q. And is that all the items that you --
A. I found two packs of gum. I don't see them listed. And these are not listed, I don't believe,
on either one of these sheets, but I remember listing them. There's probably another sheet.
Q. I'm going to give you another property
sheet. That will perhaps refresh your
memory. And let you look at it before
you --
A. Here's the two packages of gum.
[Defendant's Exhibits 127 and 128 were marked
for identification by the court reporter.]
BY
MR. MOORE:
Q. Defendant's Exhibit Number 127, is that one
of the packages of gum that you're referring to?
A. Yes, sir, it is.
Q. Is that -- did you remove that from Officer
Chapel's car in 1993 when you searched it?
A. Yes.
Q. And Defendant's Exhibit Number 128, that's
another package of chewing gum. Did you
remove that from Officer Chapel's car in 1993 when you searched it?
A. Yes, I did.
Apparently I miscounted these. I
listed ten brown envelopes, and now I'm counting eleven.
Q. So the brown --
A. They're -- right.
[Defendant's
Exhibit 129 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. I'm going to hand you what's marked as
Defendant's Exhibit 129, which is a group of brown manila envelopes. And I've added a paper clip here, which is
not on there, to hold them together.
But other than the paper clip, can you identify those?
A. Yes.
I believe these are the envelopes that I removed from Officer Chapel's
car.
Q. Okay.
Were they removed in 1993 when you searched the vehicle?
A. Yes, they were.
Q. Is that everything you can identify,
Technician White?
A. Yes.
THE
COURT: Are these items that were
retained by the state after the taking of these items that were returned over
to the defendant? Mr. Moore?
MR.
MOORE: I'm sorry, Your Honor?
THE
COURT: Were these items given back to
the defendant or --
MR.
MOORE: They were returned to the
defendant, Your Honor.
THE
COURT: Okay. These have not been in the custody of the police department since
his arrest or at least shortly after?
MR.
MOORE: They were in the custody of the
police department up until the time of the hearings and the search warrant, and
at that time a number of items were returned to the family.
THE
COURT: All right.
MR.
MOORE: The state, at that time, decided
they were not going to use the items so they were returned.
THE
COURT: That includes all of these that
we're in the process of marking now?
MR.
MOORE: That's correct, Your Honor.
THE
COURT: Okay. All right. Go ahead,
please.
[Defendant's
Exhibit 130 was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 130 and ask if you can identify that.
A. This is an evidence tag that I filled out.
Q. Okay.
Do you know what that was used for?
A. I believe it was tied to the box.
Q. Okay.
You pointed to Defendant's Exhibit 107, which is a plastic box. Was that tied to the box?
A. Yes, I believe it was.
Q. Okay.
And was that attached when you searched the car in 1993?
A. Yes.
Q. Now, Technician White, why did you remove
all those items that we've talked about, from D-107 up through D-129, all these
items spread out in front of you? Why
did you remove those from Mr. Chapel's car?
A. Because they were -- most of them were
personal property.
Q. Okay.
Were you looking for anything that might be evidence?
A. No.
Q. What were your instructions when you
searched the car?
A. To search for a car wash receipt and do
presumptive blood tests.
Q. And were your instructions to -- did you
have any instructions about what to seize or what not to seize?
A. No.
Q. Nobody gave you any instructions?
A. No.
Q. Then tell us why you decided to take these
items in?
A. Because they were personal property, and I
was just getting the rest of the stuff out of the car.
Q. Did anyone discuss with you whether or not
to have any of these items tested?
A. No.
Q. And did you make a list of these and make it
available for the investigating officers in the case?
A. Yes.
Q. And that would have been -- who did you turn
that over to?
A. Well, actually, when I turn in the property
sheets, these, they make copies. I mean
they're -- sorry. I can't think of the
word. It's this kind of paper that
makes copies. And they get a copy back
from the property room.
Q. Do you know whether or not any tests were
conducted on any of the items, D-107 through D-129?
A. No.
Q. Particularly with respect to D-106, which
are gloves, were any tests conducted on those, to your knowledge?
A. No.
Q. And did you at any time use the chemical
Luminol on any of those items in front of you there --
A. No.
Q. -- D-106 through D-129?
A. No.
THE
COURT: What is 107, Mr. Moore?
MR.
MOORE: I thought it was, too, Your
Honor, but the gloves apparently had been marked before the box, and D-106 is
the gloves.
THE
COURT: But 107 is the box?
MR.
MOORE: It's the box.
THE
COURT: Okay. I just did not know.
MR.
MOORE: I didn't realize the gloves had
been marked earlier, but the other items did come out of the box.
BY
MR. MOORE:
Q. Did you perform any other kind of chemical
test on any of the items D-106 through D-129?
A. No, I didn't.
Q. Did anyone request that you perform any
tests on them?
A. No.
THE
COURT: Were all these items taken from
the -- where in the car were these items removed?
THE
WITNESS: Some of them were in the
trunk, and some were in the pursuit pack in the front seat.
THE
COURT: Do you know which was taken from
the trunk and which from the seat?
THE
WITNESS: No, sir. I know that this was in the trunk and the
coffee mug and the TV set.
THE
COURT: All right, that's fine. Go ahead, Mr. Moore.
THE
WITNESS: I'm sorry.
BY
MR. MOORE:
Q. Now, when you first observed Mr. Chapel's
car, did you have to remove a number of items that are in front of you from the
seat before you could test it with Luminol?
A. Yes.
Q. Okay.
Do you remember which items you removed from the seat?
A. Well, of course I removed the pursuit pack
and all the papers that were in it. I
don't remember everything that was in the front seat.
Q. Was the front seat neat and clean or was it
cluttered or what did it look like when you got the car?
A. It was -- I mean it had some papers in it,
but it wasn't -- it wasn't extremely cluttered.
MR.
MOORE: That's all we have at this time,
your Honor.
THE
COURT: Mr. Porter?
CROSS EXAMINATION - JURY OUT
BY
MR. PORTER:
Q. Mary Ann, I just want to ask you some
questions to complete the record. In
regard to the gloves which have been labeled State's Exhibit Number 107 -- 106,
do you recall where in the car you found those?
A. No, I don't.
Q. And going to the Bible, which is 105, do you
recall where in the car you found that?
A. No, I don't.
Q. What about the shoulder holster, which is
D-104; do you remember? That's that cloth
shoulder holster.
A. No.
I'm sorry, I don't.
Q. All right.
You've already talked about 107, which is the box that was in the trunk;
correct?
A. Correct.
Q. And the metal clipboard which is D-108, you
indicated you don't recall where that was found?
A. I don't recall.
Q. Now, what about 109, which is the metal
ticket book?
A. I don't recall.
Q. All right.
You've already said that the money was scattered throughout the car; is
that correct?
A. The change was, yes.
Q. Do you remember where the five dollar bill
was?
A. No.
Q. What about the raffle tickets, which are
D-111?
A. No.
Q. You've already said the portable TV was in
the trunk in the box; right?
A. I don't recall if it was in the -- in the
box, but it was in the trunk.
Q. What about the glasses case, which are
D-113?
A. I don't recall for sure.
Q. And what about the box with the two cigars?
A. I don't recall.
Q. Now, you also said there were two
right-handed gloves that you found, there on the sunglasses. Do you remember where those were?
A. No.
Q. You said D-118, which was the coffee mug,
was in the trunk; is that correct?
A. It was in the trunk in the box.
Q. The two pairs of sunglasses, which are 119
and 120, do you recall where they were?
A. No.
Q. Defendant's Exhibit 121, which is the
clipboard, the fiberboard clipboard, the brown clipboard, right --
A. I know it's here. Oh, yes.
Q. Do you recall where that was?
A. No, I don't.
Q. You've already testified you don't recall
where the Crown Royal bag came from; is that correct?
A. Correct.
Q. What about the miscellaneous papers and
items that are contained in the plastic bag in D-123 and 124?
A. I don't recall. I just --
Q. You said there was a hand mirror, which was
Defendant's Exhibit 125.
A. Yes.
Q. Do you remember where that was?
A. No.
Q. What about the soup packet?
A. No.
Q. And what about the envelopes, which are D --
what did we mark all those envelopes -- D-129?
I'm sorry.
A. No, I don't remember.
Q. What about the two packs of gum, which are
27 and 28?
A. No, I don't remember.
Q. And you say that the evidence tag, which is
D-130, was tied to the box. Was that
tied after you conducted your search?
A. Yes.
Q. Now, I'd also like to ask you on these
items, you Luminoled the entire vehicle; is that correct?
A. Yes.
Q. And did you find any evidence of blood other
than the indications which have been marked here on the car seat which you've
previously identified?
A. No.
Q. Did you find any indications or splatter
anywhere around on the seat?
A. No.
Q. Would that have shown up with Luminol?
A. It should have, yes.
MR.
PORTER: Your Honor, that's all the
state would have.
THE
COURT: All right. Mr. Moore, what's your argument at this
point, and what do you want to say with respect to --
MR.
MOORE: Your Honor, two points. There's some Polaroid photographs -- let me
ask her first where I think they are, if I could.
THE
COURT: Okay. Go ahead.
REDIRECT EXAMINATION - JURY OUT
BY
MR. MOORE:
Q. Technician White, were Polaroid photographs
taken of all the items in the car before they were removed?
A. No.
There were some photographs taken, but I believe I had removed most of
the personal items.
MR.
MOORE: Mr. Porter, do you have those
Polaroids that were taken?
MR.
PORTER: They're down in my office, Mr.
Moore. It will take a minute to get
them.
THE
COURT: Let me ask, Mr. Moore, what do
you propose to do with these exhibits or -- does this -- are these the exhibits
that you want to offer in?
MR.
MOORE: These exhibits, Your Honor, we
would offer them for the purpose of showing that the police did not do a
thorough investigation, that they did not test these other items, that they
tested certain items and did not test others, and there was no reason to test
one item and not test another item. They
just arbitrarily chose certain items and tested them, and did not test other
items that were equally relevant.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, we argue on two
points. Number one, this witness cannot
bring -- this witness cannot bring those items in. She has no recollection of where the items were; so, therefore,
their argument about whether or not it's relevant can't be supported by this
witness.
Second
of all, the state, through the questioning of Mary Ann White, if the defense
theory was true, there would have been indications of blood spatter somewhere
else on the seat, and it would have shown up on the Luminol, which would have
then made those items relevant. The
only evidence of blood that we have is the one small spot in the entire
vehicle, the one small spot on the armrest.
THE
COURT: All right. Well, I --
MR.
PORTER: And, Your Honor, that goes
particularly for the items that were in the trunk.
THE
COURT: Well, I believe they may have
some -- I think they may have at least some -- may provide some benefit to the
jury, and I think they're at least collaterally relevant, and I'm going to
allow them in if you can lay the foundation to put them in. So I'll allow --
MR.
PORTER: But, Your Honor --
THE
COURT: -- at least I'll allow that line
of inquiry.
MR.
PORTER: Is this witness sufficient to
lay that foundation?
THE
COURT: Well, she said she got them
either from the inside or the trunk, one or the other, and I think that's -- I
think that's a matter for the jury to take up what that's worth to them, if
anything. So I'm going to allow you to
inquire into it, and you can offer them, and we'll hear any objection at that
point.
Anything
else, Mr. Moore?
MR.
MOORE: Your Honor, I would like to have
a look at those photographs that Mr. Porter sent for.
THE
COURT: Well, is that matter you're
entitled to them? Does Mr. Porter have
any objection to producing them?
MR.
PORTER: No. I have to look at the photographs. I don't know which one he's referring to.
THE
COURT: Okay.
MR.
PORTER: I have original Polaroid
photographs. The witness has
testified. I can't make my objection
until I see what he wants to do.
THE
COURT: Well, I'm inclined at this
point, let's proceed on. Let's take
about five minutes, take a short recess, and we'll bring the jury back and you
can proceed on with the line of inquiry that you want to, Mr. Moore.
MR.
MOORE: Thank you, Your Honor.
[Break
taken]
MR.
MOORE: Mr. Moore, we have -- this is a
witness who has testified before. Are
you going to be calling other witnesses that have already been to the stand?
MR.
MOORE: There's going to be a couple of
them, Your Honor.
THE
COURT: Okay. Do you want to re-swear them or not? I don't really care. I
don't think it makes any difference.
MR.
MOORE: I don't think it makes any
difference either, Your Honor. I just
didn't know how the Court wanted me to proceed. We had somebody re-sworn the other day, so I didn't know if you
--
THE
COURT: Yes. It makes no difference to me.
If you want to re-swear them, that's fine. All right. Are you ready?
MR.
MOORE: Yes, Your Honor. Let me get these marked.
[Defendant's
Exhibits 131, 132, 133 and 134 were
marked for identification by the court reporter.]
THE
COURT: All right. Bring the jury back.
MR.
MOORE: Your Honor, does the Court want
me to elicit the foundation testimony again in front of the jury or do you want
me to just go ahead and --
THE
COURT: Mr. Porter?
MR.
PORTER: I'm sorry, Your Honor?
MR.
MOORE: My question was do you want me
to elicit the foundation testimony again in front of the jury or just go into
the items that she found in the car?
MR.
PORTER: Your Honor, we object to the
foundation. We think the foundation's
been laid, but we -- given the Court's ruling, I don't think it's going to be
necessary to go into the foundation for those items.
THE
COURT: All right. I think if he repeats those questions and he
offers them, they're coming in.
MR.
PORTER: Your Honor, you've already made
your ruling and the state has -- I except to that ruling, but I can -- I live
with it.
THE
COURT: All right. What exhibit numbers are those photographs
going to be, Mr. Moore?
MR.
MOORE: D-131, 132, 133 and 134, Your
Honor.
THE
COURT: All right. Thank you.
[The
jurors were escorted to the courtroom.]
THE
COURT: Proceed when you're ready, Mr.
Moore.
DIRECT EXAMINATION RESUMED - JURY IN
BY
MR. MOORE:
Q. Now, Technician White, have you had occasion
-- did you have occasion to search Unit 197, Mike Chapel's car, in 1993?
A. I inventoried it.
Q. You inventoried the vehicle?
A. Yes.
Q. And in the course of that inventory, did you
take possession of certain items?
A. Yes, I did.
Q. Looking at Defendant's Exhibit 107 which is
a plastic container --
A. Yes.
Q. -- did you use Defendant's Exhibit 107 to
store those items in?
A. Yes, I did.
MR.
MOORE: Your Honor, we'd tender
Defendant's Exhibit Number 107.
THE
COURT: Mr. Moore -- or Mr. Porter?
MR.
PORTER: Your Honor, the Court's already
ruled on that over our objection.
THE
COURT: It's admitted.
MR.
MOORE: Has 106 already been admitted,
your Honor?
THE
COURT: No, sir.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 106 and ask if you can identify those.
A. It's a pair of fingerless gloves.
Q. And where did those gloves come from?
A. Inside Unit 197.
Q. And was that in 1993 when you took
possession of those?
A. Yes, it was.
Q. And did you take possession of this property
all on the same day?
A. Yes, I did.
Q. And do you know approximately what day or
month that was?
A. It was 4/29/93.
MR.
MOORE: Your Honor, we would tender
Defendant's Exhibit 106.
THE
COURT: Same objection, Mr. Porter?
MR.
PORTER: Your Honor, we stated our
position as to all these items.
THE
COURT: All right. Do you want to -- we'll go ahead. Defendant's 106 is admitted.
BY
MR. MOORE:
Q. I'm showing you Defendant's Exhibit Number
105 and ask if you can identify that item.
A. Yes.
It's a Living Bible that I removed from Unit 197.
Q. Okay.
And this was on the same date when you retrieved all the other items in
1993?
A. That's correct.
MR.
MOORE: Your Honor, we'd tender
Defendant's Exhibit Number 105, for the record. We understand it will not go out to the jury.
THE
COURT: All right. Mr. Porter, anything you wish to add?
MR.
PORTER: No, Your Honor.
THE
COURT: It's admitted.
MR.
MOORE: I believe Defendant's Exhibit
Number 103 was previously admitted; is that correct, Your Honor?
MR.
PORTER: That's correct, Your
Honor. It's been admitted without
objection.
THE
COURT: And 103 is in.
MR.
MOORE: And Defendant's Exhibit Number
104, which is the gun belt and everything, we would tender that if it hasn't
been previously admitted, Your Honor.
THE
COURT: It's been admitted.
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit 109 and ask if you can identify that.
A. Yes.
This is the metal ticket book holder that I removed from Unit 197.
Q. Okay.
And that was in April of 1993?
A. Yes, it was.
MR.
MOORE: We'd tender Defendant's Exhibit
109, Your Honor.
THE
COURT: Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: It's admitted.
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 110 and ask if you can identify that.
A. This is $6.31 that I removed from Unit 197.
Q. And was that in April of 1993 that you
removed that from Officer Chapel's car?
A. Yes, it was.
MR.
MOORE: We'd tender Defendant's Exhibit
Number 110, Your Honor.
THE
COURT: Anything you wish to add, Mr.
Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: 110 ten is admitted.
BY
MR. MOORE:
Q. I show you Defendant's Exhibit Number 111
and ask if you can identify that.
A. This is a book of raffle tickets that I
removed from Unit 197.
Q. Was that in April of 1993 that you removed
that?
A. Yes, it was.
MR.
MOORE: Your Honor, we tender
Defendant's Exhibit Number 111.
THE
COURT: Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: 111 is admitted.
BY
MR. MOORE:
Q. I'm going to ask you to look at Defendant's
Exhibit Number 112 and ask if you can identify that.
A. That's the Bentley TV set that I removed
from Unit 197.
Q. Okay.
And was that in April of 1993 that you removed that?
A. Yes, it was.
MR.
MOORE: Your Honor, we'd tender
Defendant's Exhibit 112.
THE
COURT: Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: 112 is admitted.
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 113 and ask if you can identify that.
A. This is the glasses case that I removed from
Unit 197.
Q. Okay.
And was that in April of 1993 when you removed that April 29th?
A. Yes, it was.
MR.
MOORE: Your Honor, we'd tender
Defendant's Exhibit 113.
THE
COURT: Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: 113 is admitted.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 114 and ask if you can identify that.
A. It's a box containing two cigars.
Q. Okay.
And where did you get that from?
A. Unit 197.
Q. And was that in April of 1993 that you took
possession of it?
A. Yes.
MR.
MOORE: Your Honor, we'd tender
Defendant's Exhibit 114.
THE
COURT: Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: 114 is admitted.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 115, which consists of two pieces.
Can you identify that?
A. It's a cup holder for a vehicle.
Q. Okay.
And where did that come from?
A. Unit 197.
Q. Was that in April of 1993 that you took
possession of it?
A. Yes.
MR.
MOORE: Your Honor, we'd tender
Defendant's Exhibit 115.
THE
COURT: Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: 115 is admitted.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
116 and ask if you can identify that.
A. Yes, it's a right-handed glove.
Q. Okay.
And where did that come from?
A. Unit 197.
Q. And was that in April 1993 that you removed
that?
A. Yes, it was.
MR.
MOORE: Okay. We'd tender Defendant's Exhibit 116, Your Honor.
THE
COURT: Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: 116 is admitted. Would you approach the bench, please?
[Counsel
approached the bench, and the following conference ensued.]
THE
COURT: With these all coming in, if you
want to --
MR.
MOORE: Do them collectively.
THE
COURT: -- zip through them and, you
know, lump them together as coming from the car. And you're not going to -- aside from that you're not going to
discuss them with her anyway, are you?
MR.
MOORE: Just that they didn't test them
or anything.
THE
COURT: Just that that came from --
MR.
MOORE: The car, and as far as she knows
they didn't test them.
THE
COURT: As far as putting them in, if
you want to lump them together, I don't have a problem. Mr. Porter, do you have a problem?
MR.
PORTER: I don't have a problem, Your
Honor. As a matter of fact, I think
it's somewhat prejudicial to go through them one at a time and make me have a
statement that I object to them.
MS.
ROGAN: Uh-huh.
THE
COURT: Yeah. If you want to offer them together and put them in --
MR.
MOORE: I'll put them together.
THE
COURT: It'll just help expedite things,
it seems to me.
MR.
MOORE: Okay.
[Bench
conference concluded]
THE
COURT: Go ahead, Mr. Moore.
BY
MR. MOORE:
Q. Technician White, you've had a chance to
examine all these items that are exhibited here in front of you?
A. Yes.
Q. Okay.
And you've identified each of these items. I believe we have D-108, D-117, D-129, D-122, D-127, D-126,
D-124, D-123, D-125, D-121 and D-128.
Have you had a chance to examine all --
A. [Indicating]
Q. Excuse me.
You're right. Also, D-119 and
D-118 and Defendant's Exhibit Number 130.
Have you had a chance to examine each of those items?
A. Yes, I have.
Q. And did you remove each of those items from
Officer Chapel's car in 1993 when you searched it?
A. Yes, I did.
Q. Okay.
MR.
MOORE: Your Honor, we would tender
those items I just went through at this time.
THE
COURT: I believe that's Defendant's 107
through -- sequentially through D-130.
MR.
MOORE: I believe that's correct, Your
Honor. Some of them may have already
been admitted, but that's the -- they're included.
THE
COURT: I believe those are the ones
that have not been admitted yet.
All
right. Anything else from the state?
MR.
PORTER: No, Your Honor.
THE
COURT: Defendant's 107 through 130 are
admitted.
BY
MR. MOORE:
Q. Now, Technician White, those items that you
just examined, D-107 through D-130, which are in the blue plastic container,
were any tests run on any of those items, to your knowledge?
A. No.
Q. Were you requested to perform any sort of chemical
tests, Luminol or anything like that, on any of those items?
A. No.
Q. I'm going to show you three photographs,
Defendant's Exhibit Number 131, Defendant's Exhibit Number 133 and 134, and ask
if you can identify any of those. If
you can identify them, identify them by number.
A. There's four.
Q. Was it four? I'm sorry.
A. Yeah.
Two of them were stuck together.
Q. What was the number on the other one?
A. Sorry, I didn't hear your numbers. It's 131 through 134.
Q. Defendant's Exhibits 131 through 134. Would you examine those and see if you can
identify any of them?
A. I didn't take any of these pictures, and
they don't have the unit number written on them.
Q. So your testimony is you can't identify
them; is that correct?
A. That's correct.
MR.
MOORE: Your Honor, I believe we've
previously tendered Defendant's Exhibit 101, which is a bag of miscellaneous
papers.
THE
COURT: I show it as being identified in
some manner, but I don't show it being offered or admitted.
MR.
MOORE: We would offer it.
THE
COURT: And I'm not sure -- I'm not sure
it was identified by the witness.
MR.
MOORE: I'll ask her again.
BY
MR. MOORE:
Q. Defendant's Exhibit 101, could you identify
that for us, Technician White?
A. These are miscellaneous papers that I removed
from Unit 197. This is my handwriting
on the back.
Q. Did you remove those in April 29th of 1993?
A. Yes.
Q. And how do you know that?
A. Because that was the night that I did
everything to his car.
Q. But is there anything on that exhibit that
allows you to identify it? Is there any
markings or anything you've placed on it?
A. No.
I mean I have the date on here that I put it into the property room, and
I have the case number, and I have where I collected it from.
Q. Okay.
Is that how you identify the writing on it?
A. Yes.
MR.
MOORE: We would tender Defendant's
Exhibit 101 at this time, Your Honor.
MR.
PORTER: Your Honor, the agreement of
the state in the stipulation was that those were authentic documents, but I
have not reviewed each individual document.
There are blank reports, there are blank pieces of paper, there are pay
stubs from the defendant, there's any number of miscellaneous personal papers
which may --
THE
COURT: Issue of relevance, is that what
you're saying?
MR.
PORTER: There's an issue of relevance,
and there's a significant issue of hearsay in regard to the contents of the
documents.
THE
COURT: Okay.
MR.
MOORE: Your Honor, if any individual
documents are going to be gone into and have testimony about them or going out
with the jury, I will state to the Court I will take them out and have them
individually marked and allow the Court to make a ruling at that time whether
or not the individual documents --
THE
COURT: Okay. You're offering -- you're offering Defendant's 101 at this point
for the record only?
MR.
MOORE: Yes, sir.
THE
COURT: Mr. Porter?
MR.
PORTER: Well, Your Honor, even for the
record, I have no objection with the procedure described by Mr. Moore that the
documents themselves -- and I've stipulated that it is authentic, but I don't
think it needs to be admitted. It can
be drawn from as long as it's been properly identified.
THE
COURT: I'm inclined to agree, Mr.
Moore. It's refused at this point.
MR.
MOORE: Okay. No further questions of this witness, Your Honor.
CROSS EXAMINATION
BY
MR. PORTER:
Q. Ms. White, I want to talk about some of the
items that were removed from the vehicle, and I'm going to refer to them by the
same defendant's exhibit numbers. When
we talk about the pursuit pack, you've already stated that it fits on the car
seat like that, and is that where you removed it from?
A. Yes.
Q. The doll or the figurine?
A. Yes.
Q. You don't recall where you removed that
from, do you?
A. No.
Q. And the shoulder holster, do you remember where
you took that from?
A. No.
No.
Q. What about the Bible? Do you remember where that was from?
A. No.
Q. And the mesh gloves, do you remember where
that was from?
A. No.
Q. So they could have been anywhere in the car?
A. That's right.
Q. And I believe you testified outside the
presence of the jury that the box itself, the blue box, came out of the trunk;
is that right?
A. Yes, it did.
Q. And what about the big metal clipboard? Do you know where that came from?
A. No.
Q. And the metal ticket book?
A. No.
Q. What about the $6.30 in the -- with the five
dollar bill and various change?
A. No.
Q. You also described Defendant's Exhibit
Number 111 as the raffle tickets. Do
you know where that came from in the car?
A. No.
Q. And 112, which is the portable TV, I believe
you said that came from the trunk; is that right?
A. Yes.
Q. And the glasses case, D-113, do you know
where that came from?
A. No.
Q. And the box with the two cigars, do you
remember where that came from?
A. No.
Q. The -- let me just list them out. The cup holder, do you remember where that
came from?
A. No.
Q. The two right-handed gloves?
A. No.
Q. The coffee mug?
A. It was in the trunk.
Q. Do you remember the two pairs of sunglasses,
where they came from?
A. No.
Q. The clipboard?
A. No.
Q. The Crown Royal bag?
A. No.
Q. Do you remember where the miscellaneous
items and papers that were contained in the plastic bag were from?
A. No.
Q. What about the hand mirror?
A. No.
Q. And what about the packet of soup?
A. No.
Q. What about the two packages of gum?
A. No.
Q. And the brown envelope, do you remember
where that came from?
A. No.
Q. And then D-130 was an evidence tag that you
tied to the box once you collected all this stuff up; right?
A. That's correct.
Q. Now, let me ask you, you testified earlier
that you Luminoled the entire vehicle of the car -- the entire interior of the
vehicle; is that right?
A. That's right.
Q. And the only spot that indicated blood was
right here; right?
A. That's correct.
Q. Was there any blood anywhere indicated by
the Luminol test anywhere else on the seat?
A. There was a glowing on the back, just
adjacent to the armrest.
Q. Right here?
A. Yes, coming down, and then on the armrest.
Q. All right.
So it was right here?
A. Right.
Q. Okay.
Now, when you do a Luminol test, do you begin with the lowest level of
the substance and then work your way through whatever may have been piled on
it, or do you just do it as it is?
A. [No response]
Q. Well, let me rephrase my question. Was there anything about -- was there
anything about or there wasn't anything about what you saw in the results of
your Luminol that would have indicated that any blood got on anything that
you've testified to here today, was there?
A. No.
Q. And if there had been anything that
indicated that blood had gotten anywhere else in that patrol car, you would
have Luminoled it, wouldn't you?
A. Yes.
Q. So all of this stuff that was taken out of
the car, was it in police custody when you took it?
A. Yes.
Q. And it was taken the same night you did the
Luminol; right?
A. That's correct.
Q. And if you had done the Luminol and said,
'Gee, it looks like there's the outline of a clipboard here,' wouldn't you have
thought maybe some of the blood went on the clipboard?
A. Yes, of course.
Q. And wouldn't you have Luminoled the
clipboard if you had seen what I just described?
A. Yes.
Q. So -- and you didn't do any of that, did
you?
A. No.
Q. Now, all of this stuff was eventually
returned to the defendant, wasn't it?
A. Yes.
Q. And it's been in his custody?
A. That's correct.
Q. And do you have any idea -- can you look at
it and see if there's any indication of any scientific tests that have been
done on it? Does it look like it's been
sprayed with Luminol, based on your examination?
A. No.
Q. Now, you can buy Luminol almost anywhere,
can't you, from the proper chemical houses?
A. Yes.
Q. It's not a secret chemical that's hidden
away, is it?
A. Not to my knowledge.
Q. And, as a matter of fact, the Gwinnett
County police buy it in big barrels, don't they?
A. Well, we buy it in bottles.
Q. Yes.
So it's not hard to find?
A. No.
MR.
PORTER: Thank you. That's all the questions I have.
THE
COURT: Redirect?
REDIRECT EXAMINATION
BY
MR. MOORE:
Q. Yes, ma'am.
Technician White, Mr. Porter asked you about did you see any blood
anywhere. Did you see any blood
anywhere in that vehicle when you first went and looked at it?
A. No, I didn't.
Q. Wasn't that the reason for using the
Luminol?
A. Yes.
Q. Because you can't see blood a lot of times;
it's not visible?
A. Right.
[Defendant's Exhibits 135 and 136 were marked
for identification by the court reporter.]
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 135 and 136 and ask if you can identify those.
A. This is a photograph of --
Q. Would you identify it by number so we know
which one you're talking about?
A. Oh, I'm sorry. Defendant's Number 136 is a photograph of the pursuit pack, and
135 is a photograph of the inside of the trunk.
Q. And do you know who took those photographs?
A. I did.
Q. And are both those photographs, Number 135
and 136, are they a true and accurate representation of the scene that they
depict?
A. Yes.
The pursuit pack had been removed from the vehicle.
Q. And were those taken in December -- I mean,
excuse me, in April of 1993?
A. Yes, they were.
Q. Was that at the time that you conducted the
search where you removed all these other items?
A. Yes.
Q. And Mr. Porter asked if you'd Luminoled the
entire car, and I don't recall, did you Luminol the trunk?
A. No.
Q. Did you Luminol the back seat of the car?
A. No, I didn't.
Q. Okay.
And did you Luminol the pursuit pack, which was on the seat right beside
where you did find blood?
A. No.
MR.
MOORE: I would tender Defendant's
Exhibits 136 and 135, Your Honor.
THE
COURT: Mr. Porter?
MR.
PORTER: No objection, Your Honor. The foundation's been laid.
THE
COURT: Defendant's 135 and 136 admitted
without objection. Go ahead, please.
BY
MR. MOORE:
Q. I'm going to show you Defendant's Exhibit
Number 135 again. That's a photograph
of the trunk of the car?
A. Yes.
Q. And it shows the container, the blue
container. It's that plastic container
that's here on the floor of the courtroom, isn't it?
A. Yes, it does.
Q. Okay.
Had the TV set already been removed at that point or do you know?
A. I don't believe it had. It doesn't show the entire trunk. I don't remember. I don't think it was in this box. I think it was laying on the floor of the trunk, if I recall
correctly. I'm not --
Q. Okay.
I'm going to show you D-136 and ask -- that's the photograph that you
identified as being the pursuit pack?
A. Yes.
Q. Is that the same pursuit pack that's here in
the courtroom?
A. It appears to be, yes.
Q. And does it have anything additional that
this one doesn't have?
A. It looks like it has a billy club.
Q. A billy club or a night stick?
A. Yes.
Q. Now, the night stick that was in that
photograph, was it with the pursuit pack when you photographed it?
A. Yes.
Q. Okay.
And was it tested in any way, the night stick?
A. No.
Q. Does the night stick that's in the pursuit
pack, did you put that on the inventory sheets anywhere?
A. It's not listed on these. These are only the personal items.
MR.
MOORE: No further questions, Your
Honor.
THE
COURT: Recross?
MR.
PORTER: I have no other questions for
Technician White, Your Honor.
THE
COURT: You can come down. Call your next witness, please.
[The
witness stepped down from the stand.]
MR.
MOORE: We'd call Sergeant D. E. Stone.
THE
COURT: Sergeant Stone, if you'll take
the stand up here. Mr. Moore, if you'll
readminister the oath.
[The
witness stepped to the stand.]
MR.
MOORE: If you'll hold up your right
hand, please. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been recalled as a witness and duly sworn, was further
examined and testified as follows:
DIRECT EXAMINATION
BY
MR. MOORE:
Q. State your name, please.
A. Donald E. Stone.
Q. Okay.
Sergeant Stone, how long have you been a Gwinnett County police officer?
A. Twenty-one years.
Q. And how long have you worked in the Buford
area or Buford precinct, the northside precinct it is now?
A. Approximately eighteen years.
Q. Now, during the eighteen years that you've
been a police officer, how long have you -- are you Mike Chapel's -- were you
Mike Chapel's supervisor?
A. Yes.
Q. Okay.
And how long were you his supervisor?
A. The majority of the time he's been
here. He worked at other precincts when
he first arrived, went through the academy, made his rounds through the other
precincts, then transferred to Buford, and since he's in Buford I was his
supervisor most of the time there.
Q. And did you get to know Mike Chapel?
A. Yes.
Q. And how well did you get to know him?
A. I was good friends with him, yes.
Q. Now, during the time that he worked for you
as a police officer, how would you evaluate Mike Chapel's abilities as a police
officer?
A. I would give him --
MR.
PORTER: Your Honor, I'm going to object
to this. This is in the form of good
character reference, and there is a statutory method of introducing evidence of
good character, which is required by law, and is of a limited value. To go into Officer Michael Chapel's
evaluation as a police officer is, in effect, good character evidence through
the incidents of specific good acts, which is forbidden by law.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we believe Mr.
Porter's opened it up because he's gone into the fact -- he made a big deal out
of the fact that he may have violated procedures by not turning in reports, not
doing various police procedures that were supposed to be done, that he didn't
follow them, and we believe we're entitled to go into with his supervisor as to
whether or not he, in fact, did follow police procedures.
MR.
PORTER: Your Honor, that is relevant to
the issue of motive and intent to commit the crime, and as long as
cross-examination is limited to that, but here we have an attempt that was done
earlier through cross-examination of this witness, and now through the direct
of this witness to introduce evidence of good character.
THE
COURT: The objection is sustained to
the questions as posed, Mr. Moore.
BY
MR. MOORE:
Q. Over the years, did Officer Chapel ever fail
to turn in any reports?
A. Not that I'm aware of. He would hold some reports till the next day
gathering information, but far as I know he's always turned in reports.
Q. Did you ever have to remind him?
A. Not that I recall.
Q. Now, in this particular case, when did
Officer Chapel first tell you about going to Ms. Thompson's?
A. The day that he received the call to go to
her house on the burglary.
Q. And did you discuss it with him?
A. Yes.
Q. And do you recall what he told you?
A. Yes.
Q. And what did he tell you?
A. He told me that the -- he didn't believe it
was a real burglary, that it was probably an inside job, that burglars don't
operate going in and taking money from a residence and leaving significant
amounts of money still at the scene.
Q. And did you give him any advice?
A. I told him he should write a report. He said he would wait -- would like to wait
and see if Ms. Thompson could gather some more information from her son since
he said -- Chapel told me that there's only two people that knew where the
money was hidden, and it was Ms. Thompson and the son, and he was going to -- she
was going to talk to him and see if she could get more information.
Q. Do you know whether or not he talked to
anyone else about it?
A. That Officer Chapel talked to anyone else?
Q. Yes, sir, in your presence.
A. Not in my presence, no.
Q. Did anyone else mention to you that he'd
been out there?
MR.
PORTER: Your Honor, that would be
hearsay. We would object.
MR.
MOORE: Your Honor, I'm not asking what
they said. I'm asking if they --
anybody said something to him.
THE
COURT: Objection's overruled. Go ahead, please.
BY
MR. MOORE:
A. [Continuing] Not that I'm aware of.
Q. Now, tell the jury what a Code 32 is.
A. Code 32 is a code the department uses for
when a victim calls for an incident and they don't want a report. It's stated on the -- on our log sheets, 'No
report requested.'
Q. Is it uncommon to have a Code 32?
A. No, not at all.
Q. In your opinion, based on what Mike Chapel
told you, was a Code 32 appropriate in this case?
A. It could be. Gathering -- the necessity to have more information, it could be.
Q. Did you -- did you suggest or did you order
Mike Chapel to write a report.
A. I suggested he write a report.
Q. Okay.
So that wasn't ordered?
A. No.
Q. There's an item laying there on the table in
front of you, Defendant's Exhibit Number 76.
Have you ever seen an item like that?
A. Not that I recall.
Q. Do you know whether or not Mike Chapel had
an item like that to carry his keys in?
A. Not that I'm aware of. He had several different key rings. That could possibly be one of his key rings.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 103 and ask if you can identify that.
A. This is a figurine that Officer Chapel
sometimes carried on the dash of his patrol car.
Q. Was there a name for it?
A. I believe it's called the Terminator.
Q. And it's got some Velcro or something on the
bottom. How was it on his dash of his
car? How would it be carried on the
dash of his car?
A. It would be carried if -- a piece of Velcro
would be across the top and it would be stuck down like this.
Q. And where on the dash would it be?
A. As I recall, it would be somewhere in the
center of the dash.
Q. Was it visible from outside the car?
A. Yes.
Q. Was it visible from the side if you looked
in the side window of the car?
A. It could be, yes.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 106 and ask you if you've ever seen anything like
that.
A. These are gloves that appear to be the style
and nature that Officer Chapel sometimes wore.
Q. Okay.
When did you -- how many times did you see him wearing gloves like that?
A. Numerous times.
Q. Were there any occasions in particular when
he wore gloves like that?
A. No, not in particular.
Q. Were there any weather conditions or anything
that he would wear gloves like that?
A. If it was cold he would wear gloves, yes.
Q. Any other weather conditions that he would
wear them in you ever saw him wear them?
A. Probably when it was raining.
Q. Do you know why an officer would wear gloves
like that when it was raining?
A. It would probably help him on his grip.
Q. Okay.
And why would that be important?
A. If he had to secure someone and he wouldn't
slip away from him, he'd need all grip power that would be necessary for him to
--
Q. And if he had to use a weapon, would that be
-- could that be a reason for the gloves?
A. Yes.
If he was using a metal flashlight, that would probably keep the
flashlight from slipping out of your hands.
Q. Was Mike Chapel good friends with Officer
Reddy?
A. Yes.
Q. Did he talk to him about the things that
went on on the shift just like he did you?
A. Yes, he did.
Q. Do you know whether or not he talked to
Officer Reddy about the call at Ms. Thompson's house?
A. No, I do not.
Q. Who all worked on the shift that you and
Mike Chapel worked on?
A. I'd have to see a roster to remember them
all exactly, but they would be Reddy --
Q. I'm talking about 1993, too. I'm not talking about 1995.
A. Yeah.
Yeah. It would be Officer Reddy
at that time, Officer Yonker, Officer Martin, Officer Geidner, I believe. That's all I can recall right off the top of
my head without seeing a roster.
Q. Now, Officer Chapel's car was Unit 197, back
in 1993?
A. His new patrol car, yes.
Q. That was his patrol car; right?
A. Yes.
Q. Do you recall if there was anything unusual
or unique about the dome light in his car?
A. No, I don't recall for sure.
Q. You don't know what color the lens was that
was in the dome light?
A. When it's issued to him it's -- it's white
or off-white color.
Q. Did the officers sometimes change it?
A. They sometimes do, yes.
Q. And why do they change it?
A. To cut down the glow in the car.
Q. Okay.
What color would they change them to?
A. Most of them would change them to red. That's been my experience.
Q. And do you know whether or not Mike Chapel's
car had been changed to red?
A. I don't recall if it's red or not.
Q. Now, on the night of April the 15th, 1993,
what was weather like that night?
A. April the 15th it was a thunderstorm,
lighting and rain. We had tornado
warnings issued by the National Weather Service that night.
Q. And what time did the weather start getting
bad that night?
A. Just before dark. I'd say around 8:30.
Q. And where were you when the weather started
getting bad?
A. I was on Main Street in downtown Buford at
the Methodist Church.
Q. Was anyone else there present with you?
A. Officer Chapel and Officer Reddy.
Q. And did y'all have a discussion about
whether you were going to continue patrolling or what you were going to do?
A. As the weather started getting bad, the
National Weather Service broke in on the radio and stated the warnings. I told Officer Chapel and Reddy I was going
to the fire station and watch the thunderstorms move on the radar.
Q. Was anybody wearing their rain gear
equipment at that time?
A. Not when we went to the fire station, I
don't believe, because it wasn't raining exactly then.
Q. At the church, back at the church, was
anybody wearing rain gear then?
A. No, I don't think so.
Q. Now, what kind of rain gear did you have and
what kind did Officer Reddy have?
A. I have a -- it's yellow with a police mark
on the back, police lettering.
Q. Is it a full-length raincoat or is it a
jacket?
A. It's -- it's a jacket, probably three-quarter,
goes just below the waistline. It would
cover up your weapon.
Q. And what kind of rain gear did Officer Reddy
have at that time?
A. If he was issued one, that would be the same
kind he had.
Q. In other words, everybody was issued the
same type of raincoat?
A. Yes, sir.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number -- excuse me, State's Exhibit Number --
MR.
MOORE: Is it 129, Mr. Porter?
MR.
PORTER: 129 is the right number.
BY
MR. MOORE:
Q. -- State's Exhibit Number 129.
A. That's the same jacket that's issued by the
police department.
Q. And that's the standard issue that everybody
has?
A. Yes.
Q. Is there anything unique about Officer
Chapel's?
A. It has the badge pinned to the outside. That was his -- his style of putting his
badge on the outside.
Q. But other than the badge, is there anything
unique about his coat?
A. No, other than size.
Q. And Officer Reddy would wear about the same
size coat, wouldn't he?
A. Yes.
Q. Now, after you left the church, what did you
and the other officers do?
A. We went to the fire station.
Q. And what did you do at the fire station?
A. We watched the weather on the TV.
Q. Was there a movie or anything on?
A. I don't recall one, but there probably was
when we arrived.
MR.
MOORE: Your Honor, at this time,
Defendant's Exhibit Number 137, which is a certified copy of microfilm of TV listings from the Atlanta
Constitution and weather statistics from local climatological data housed in
the Lawrenceville branch of the library here in Lawrenceville, Georgia, and
they're certified by Ms. Kathy Crone, and we would tender that into evidence at
this time.
MR.
PORTER: Your Honor, we would stipulate
that those are official documents within the -- within the custody of the library
and we stipulate to their admission.
THE
COURT: All right. Defendant's 135 is admitted without
objection.
MR.
MOORE: It's 137, Your Honor.
THE
COURT: 137, yes. Thank you.
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 137 and ask if you can look at those TV listings and
see if that refreshes your memory.
A. No, sir.
At that time -- at the time that's stated here, it doesn't bring back
anything.
Q. Okay.
So you still don't remember it?
A. No.
Q. Okay.
Now, did you have the occasion on the subsequent nights of April 15th,
16th and perhaps the 17th to participate in road checks up at Gwinnco Muffler
Shop?
A. Yes.
Q. Who all was participating in those?
A. There were several of the traffic cars. Lieutenant Latty, myself, Officer Chapel was
there. It seems like there was four or
five traffic cars. I wouldn't remember
exactly who they was.
Q. Who was stopping the motorists and talking
to them?
A. All of the officers there were stopping
them.
Q. Were the people stopping them in uniform?
A. Yes.
Q. And where were the detectives?
A. They was parked in the driveway away from
the road.
Q. And how far away from the road were they?
A. I'd say 20 or 30 feet, probably.
Q. Can I get you to come down from the stand
for a minute?
A. [Witness complies]
Q. This is State's Exhibit Number -- is there a
number in the corner there?
A. Two.
Q. State's Exhibit Number 2, which has been
admitted into evidence. It's a drawing
of the Gwinnco Muffler Shop. And the
vehicle here is magnetized. Would you
place the vehicle where the detective vehicle was parked?
A. I would say it was parked probably in this
area right here. The traffic was being
stopped up in here, in an area, say, below this intersection of the driveway,
down here. The officers were stationed
back and forth, north and southbound.
Q. Thank you.
A. [Witness returns to stand]
Q. Did you know where Ms. Thompson's car was
parked at when she -- when her body was found?
A. No.
Q. Now, in April of 1993, is there any kind of
hunting season open that time of year?
A. It might be turkey season.
Q. Did you and Officer Chapel ever discuss
turkey season and going turkey hunting?
A. Yes.
Q. And do you recall when you were making
business checks or checking for stolen property, did you ever look at anything
related to turkey hunting?
A. Yes.
Q. What did you look at?
A. We looked for signs.
Q. Was Officer Chapel looking for any kind of
gun for turkey hunting?
A. Not that I'm aware of.
Q. Now, up at the precinct there, there's been
testimony that Officer Chapel -- one of his lockers was locked. Do most of the officers lock their property?
A. Most of them do, yes.
Q. Okay.
And why do they lock their property up?
A. If they have uniforms, most of the time you
change clothes and uniforms in there, and you'd want to keep your uniform
secure.
Q. Okay.
And is there anybody that cleans up or works in the precinct there that
you'd have reason to believe might take clothes or anything?
A. The inmates clean the precincts.
Q. Would that be the trustees?
A. Yes.
Q. Those are inmates that are allowed to work
at the police station cleanup?
A. Yes.
Q. And if there are clothes in there, why would
the police department be concerned if they got hold of clothes?
A. They might could use -- possibly use them
for a change of clothes and maybe escape, possibly.
Q. Okay.
So as a supervisor, you approved of keeping those lockers locked?
A. It would be my practice. I kept mine locked, yes. Q. Do
you know what the term 'running the boo' means?
A. That would be a bluff on somebody.
Q. And have you ever observed Mike Chapel do
that kind of thing?
A. Yes.
Q. How many times?
A. Numerous times.
Q. Was that a standard practice of his?
A. Yes.
Q. Was he successful at it?
A. Most of the time, yes.
Q. Now, in your duties as a police officer,
have you ever had occasion to have an injured deer or dog that's been hit by a
car and you had to put them down?
A. Yes, many times.
Q. And how did you do that?
A. We used the service weapon, or sometimes
they'd use a shotgun if they wasn't proficient enough with their revolver.
Q. Was that for the purpose of putting the
animal out of misery?
A. Yes.
Q. And when you used a revolver, how would you
do that?
A. We would find the spot on the deer that
we're sure would kill it and go for that spot.
Q. Okay.
Would you get close to them to do it?
A. Yes.
Q. And why would you get close?
A. To make sure you wouldn't have a ricochet
from the round.
Q. Could you come down and demonstrate, maybe,
to show the jury how you would have done that?
A. [Witness complies]
Q. Assume that like this box here was a dead
animal and you were going to -- it had been injured seriously and you were
going to put it down. How would you go
about it with a revolver?
A. Okay.
If this was a deer on the side of the road and it was down, I'd walk up
just behind the neck, walk up like that and fire. [Demonstrating]
Q. Okay.
Thank you. You can go back up.
A. [Witness complies]
Q. Do you know whether or not Officer Reddy
ever had to do that?
A. Not that I recall.
Q. Okay.
You didn't personally see it?
A. No.
Q. Would it have been unusual for something
like that to happen?
A. No.
Q. Are there a lot of deer in Gwinnett County?
A. There are many deer in Gwinnett County.
Q. Okay.
How frequently do they get hit by cars at night?
A. Sometimes it can be nightly, two or three
calls a night. It depends on the
weather and the time of day.
Q. Do you hunt deer? Do you know about deer?
A. Yes.
Q. Okay.
What time of day or night do deer come out and usually move around?
A. Usually at night.
Q.
Now, going back to the fire station
there, do you know what time Officer Reddy left the fire station?
A.
I would -- as I recall, it was probably around quarter till ten.
Q.
Sergeant Stone, I'm going to
show you what's been marked as Defendant's Exhibit Number 138 and, first of
all, without saying what's in it, can you identify what that sheet is?
A.
It's probably some type of printout.
Q.
Drawing your attention to -- in particular to this, would you look at that and
see if that refreshes your memory regarding any phone calls?
A.
Yes.
Q.
And did you make a phone call on April the 15th, 1993?
A.
Yes.
Q.
And what time was that phone call made?
A. I believe it's -- it says 22:17.
Q. That would be 10:17?
A.
Yes.
Q.
Okay. And who did you call?
A.
I called my wife.
Q.
Was that your routine, to call your wife before you leave for home?
A.
If -- not on a routine basis, but being in the weather that night, I did call
home.
Q.
And how long before you called your wife did Officer Chapel leave the fire
station?
A.
As I recall, he left sometime between twenty after and 9:30.
Q.
But how long -- when you made the phone call, working back, how long was it --
from the time he left to the time you made the phone call, how much time
elapsed?
A.
You lost me there. I didn't understand.
Q.
From the time he left until you called your wife, how much time elapsed?
A.
I would say about 45 minutes.
Q. Do you recall the conversation on Tuesday,
April the 20th, 1993, with Captain R. L. Davis?
MR.
PORTER: Your Honor, I'm going to object
to this. This is cumulative. Mr. Moore questioned Sergeant Stone about
this on cross-examination. It's
cumulative of his previous testimony, which is not appropriate for recall of a
witness.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I questioned him
regarding a statement that was made to -- that was made to Chief Carl White,
but I don't recall questioning about the conversation with Captain Davis.
MR.
PORTER: Your Honor, Mr. Moore brought
that out through the testimony of Captain Davis, also, and that would also make
it cumulative, and that's not the purpose of the recall of a witness.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I believe I'm
entitled to ask this officer, since he was a party to that conversation with
Davis, what his recollection of it is.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench, and the following conference ensued.]
THE
COURT: I don't recall this document,
and I don't know what you're going to ask him.
What is this document?
MR.
MOORE: It's a -- Captain Davis talked
to Mike Chapel, and the state brought out that he thought it was unusual and
might have said something to the effect, 'I've got an alibi.' And then I went into, on cross, to the fact
that he also talked to Sergeant Stone about what time he left, and he noted the
time because he said it was -- he thought it was important at the time.
THE
COURT: Captain Davis's statement.
MR.
PORTER: Captain Davis.
MR.
MOORE: It's Davis, but I want to ask
him what his recollection of it is and use that document to refresh his memory.
THE
COURT: Well, was he present? What was -- what's Stone's connection with
Davis?
MR.
MOORE: Stone was talking to Davis. That's the one that Davis wrote it down in
his records. He recorded what his
conversation with Sergeant Stone was.
THE
COURT: With Stone.
MR.
PORTER: But Davis's document can't --
he can ask him about the conversation, but he can't refresh the collection of
this witness with Davis's document.
MR.
MOORE: Your Honor, I think you can show
a witness any document to refresh a memory.
They didn't have to make it themselves.
MR.
PORTER: It's got to be the witness's
own document. And, Your Honor, this is
also cumulative. This is evidence that
Mr. Moore brought out through the testimony of Davis.
THE
COURT: Well, it may be cumulative, but
I don't -- I'm not going to keep it out because it may be cumulative or it may
have been -- I won't keep it out on that basis. What is it you want to do with this witness? What do you want to do?
MR.
MOORE: I want to ask him about whether
or not he remembers the time that he told Captain Davis.
THE
COURT: Okay.
MR.
PORTER: Well, I think he can ask that.
THE
COURT: Yeah, I agree. But I think if -- I think if you show him
the document and he says, 'well, this is what Officer Davis said, ' is this the
truth -- you know, I --
MR.
MOORE: No. I'm not going to do that.
I'm going to ask him if his memory is refreshed by it and if he
remembers it after seeing the document.
MR.
PORTER: That's what we object to, Your
Honor.
THE
COURT: Well, it seems to me that's
tantamount to having a transcript, somebody else's transcript or something, and
saying, 'Well, here's what somebody else said.
Does this refresh your memory?'
Is that permissible?
MR.
MOORE: Your Honor, I think I could use
any document to see if it would refresh a person's memory. I'm not going to ask him to read it. I'm not going to ask him to say what's in
it. If he says, 'No, it doesn't refresh
my memory,' I think that ends it.
THE
COURT: I'll allow it. Go ahead.
[Bench
conference concluded]
THE
COURT: Go ahead, please.
BY
MR. MOORE:
Q. Sergeant Stone, do you remember a
conversation with Captain Davis on April the 20th, 1993, where you talked about
Mike Chapel?
A. I've talked with Captain Davis many
times. Specific dates and times, I
don't recall that.
Q. I'm going to show you what's been marked as
Defendant's one hundred and -- don't read it out loud, and don't say what's in
it, but see if that refreshes your memory.
A. [Reading document] I remember -- vaguely remember this, yes.
THE
COURT: What's your question, Mr. Moore?
BY
MR. MOORE:
Q. And do you remember what time you told
Captain Davis that Mike Chapel was at the fire station?
A. No, I don't.
Q. You would agree that your memory was fresher
then of events than it is now?
A. That's correct, yes.
Q. And that whatever Captain Davis, if he
testified --
MR.
PORTER: Your Honor, I'm going to object
to this. This witness cannot comment on
what another witness's testimony is.
MR.
MOORE: I'll withdraw that, Your Honor.
BY
MR. MOORE:
Q. Now, on the same night, April 15, 1993, did
you and Officer Chapel get a call to the Sugar Hill city marshal's office?
A. On April the 15th?
Q. Yes, sir, the night of the bad weather.
A. Sugar Hill city -- not that I'm aware of.
Q. There wasn't an alarm there that you went
out on a call?
A. The city hall was alarmed. I just don't remember going to the call, an
alarm there.
Q. You do remember the alarm going off, though,
at city hall that night?
A. Not -- no, I don't remember -- I knew that
-- the building is alarmed. I'd have to
see log sheets to answer that, if there was one there that particular night.
Q. Now, do you know what Mike Chapel's routine
was every night about -- around ten o'clock?
A. Around ten o'clock, he'd usually go and
check his gym, make sure it was locked up.
Q. Okay.
And where is that gym located at?
A. It's Moreno Street and Garnett Street in
Buford.
Q. Officer Stone, if I could get you to come
down again.
A. [Witness complies]
Q. I've got a map here I want to get you to --
if you would, take a look and get yourself oriented. Here's Peachtree Industrial Boulevard.
A. Okay.
Q. Okay.
Could you show the jury where the gym was located?
A. Here is Georgia 13, also known as Buford
Highway. Here's south Lee Street going
north into town. We have Lee Street
here. Starting right here is Moreno Street. Traveling -- I guess it would be northbound
through town, his gym would be in this area right -- right here, I believe.
Q. And where is that in relation to --
A. Basically, here's Garnett Street. It would be between Garnett Street and
Harris Street, right in this area here.
Q. And where would that be in relation to the
precinct, the northside precinct?
A. The precinct is --
THE
COURT: Sergeant Stone, I think the
jurors are having trouble hearing.
MR.
MOORE: Let me see if I can get a
pointer here, maybe.
THE
COURT: But I think the jurors are
having trouble hearing your voice. You
have a soft voice. If you'd make an
effort to speak up, please, so all the jurors can hear you.
MR.
MOORE: It will make it a little easier
if you stand to one side where the jury can see it.
THE
WITNESS: The trouble is I can't see it
that far away.
MR.
MOORE: I have that problem, too.
BY
MR. MOORE:
A. [Continuing] So here's Lee Street.
Going up Lee Street, the gym would be in this area right here, from
Garnett Street and Harris Street, right there in that area there. And the precinct would be in this area right
here, Georgia 20 and then 13. It would
be right in this area here.
Q. How far away is that in distance, in miles,
approximately?
A. I'd say approximately a mile and a half, two
miles.
Q. Thank you.
A. [The witness returns to the stand]
Q. How long have you lived in the -- where do
you live at, Officer Reddy [sic]?
A. I live in Cumming, Forsyth County.
Q. Okay.
And how far away is that from Buford?
A. That's approximately 22 miles.
Q. And how long have you lived in that area?
A. All my life.
Q. And how old are you?
A. Forty-six.
Q. Are you familiar with the Buford area up
there when the Bona Allen plant was operating?
A. Yes.
Q. And when did the Buford community start to
grow a lot?
A. Probably about seven years ago.
Q. And what was the Buford community like back
in -- when you were growing up back in the forties and fifties, or fifties and
sixties, whenever that was?
A. I would say it was a mill type town.
Q. And do you mean by mill type town that most
people worked at the Bona Allen plant?
A. As I recall, they did, yes.
Q. Were there a lot of people moving in and
out?
A. There wouldn't be not at that time. I wouldn't think so.
Q. Did most of the people who lived there live
there for a long time?
A. Yes, they tend to be -- do so.
Q. I'm sorry?
A. They tend to do so, live in that same area.
Q. Did children tend to stay there or did they
tend to move away?
A. It would be my opinion that they stayed in
town.
Q. So was that a closed type community?
A. Yes, it was.
MR.
MOORE: That's all the questions I have
for Sergeant Stone.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Sergeant Stone, let's talk about the figurine
that was on the car that you previously identified as the Terminator. Didn't the defendant often wear sunglasses
and cut his hair to sort of look like the figurine?
A. Yes.
Q. And with his size, didn't he sort of look
like the same thing as in the movie 'The Terminator'?
A. I think so, yes.
Q. What was the Terminator in the movie? It was a killing machine from the future,
wasn't it?
MR.
MOORE: Your Honor, I'm going to
object. I think this is getting pretty
far afield. Mr. Porter's trying to suggest
that some movie has some effect or influence on this trial.
MR.
PORTER: Your Honor, Mr. Moore has
opened that door.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. PORTER:
A. [Continuing] Yes, I believe that movie is based on a killing machine from
outer space or whatever.
Q. And, in fact, that was one of Chapel's
favorite movies, wasn't it?
A. I believe so, yes.
Q.
Let me ask you specifically about Brian Reddy.
You said you got to fire station at about 8:30, 8:35; right?
A.
Yes.
Q.
And Reddy walked in right behind you, didn't he?
A.
He -- Officer Chapel and Officer Reddy arrived about the same time. They would've come in behind me, yes.
Q.
And that was within, according to your previous testimony, about five minutes;
wouldn't you say that's right?
A.
I would think so, yes.
Q. And Reddy stayed with you the whole night,
didn't he?
A. He left a few minutes before I did.
Q. All right.
But that was around 10:15, 10:17, right after you called your wife;
right?
A. Yes.
Q. So Reddy didn't even walk out of the fire
station until after ten o'clock; isn't that correct?
A. That's probably correct, yes.
Q. Now, as a supervisor, it's probably not a
great idea for you to sit in a fire station from 8:30 at night till 10:15 at
night out of the weather, wouldn't you say?
A. Yes.
Q. And probably if your lieutenant had found
out about that, he wouldn't have been too happy, would he?
A. Probably not. But based on the conditions of the weather and the people I was
-- had working that day, that's why I chose to go to the fire station and see
what we was going to have to deal with.
Q. Well, Sergeant Stone, I'm not really
questioning your judgment.
A. Yes.
Q. I mean, you made the call. I wasn't there. You made the call.
A. Yes.
Q. But, in fact, you knew that if you turned in
a log sheet that showed you didn't do anything, that you were at the fire
station between 8:30 and 10:15, there was going to be a problem with Lieutenant
Knight; right?
A. Yes.
Q. And, in fact, you put in your own log sheet
that you made an area check of the Buford mall between 8:30 and ten o'clock,
didn't you?
A. Yes.
Q. And that wasn't true?
A. No.
Q. So it doesn't really surprise you, does it,
that Officer Reddy, who was sitting with you the whole time, put in that he
made an area check?
A. No, it wouldn't surprise me.
Q. And he was, in fact, sitting with you the
whole time?
A. Yes.
Q. And he left about five minutes before you
did, and you called home at 10:17, right?
A. Yes.
Q. So it took you a little while to get your
gear together and get out to the car and -- and so you probably could have left
as late as 10:25, if you made the call at 10:17; wouldn't you agree with that?
A. When I left the fire station?
Q. When you actually left to go home, when you
went off shift.
A. We wouldn't leave to go home until around
11:00 or after.
Q. And so the phone call doesn't really say
when you left. You actually went home
that night about eleven o'clock?
A. Yes.
Q.
So Reddy didn't leave the fire station until about five minutes of eleven,
then, wouldn't you agree?
A.
No. Officer Reddy left a few minutes
before me.
Q.
All right. And by that time your memory
of it is is that Chapel had left between 9:20 and 9:30?
A.
Yes, it is.
Q. And was gone about how long?
A. I didn't see him till -- from that time till
the end of the shift when he come in.
Q. And that would have been about eleven
o'clock; right?
A. That would have been about quarter till, ten
till eleven when we changed shifts. The
morning watch would come on and we would come in.
Q. Now, let's talk a little bit about the
raincoat that you've looked at. You
said today, the big raincoat that Mr. Moore showed you, that looks like Mike
Chapel's raincoat to you, doesn't it?
A. Yes, it does.
Q. And can you say, based on your knowledge of
Mike Chapel, that that is his raincoat?
A. With the -- with the badge wore on the
outside of it, that's his style of wearing his raincoat.
Q. So you're pretty certain it's his raincoat?
A. Pretty certain, yes.
Q. So it wouldn't surprise you that it was
found in his locker that only he had access to?
A. No, it wouldn't.
Q. And Mr. Moore was talking about turkey
hunting, and I'm not a hunter myself, but would you normally wear a bright
yellow raincoat with a police badge on it when you went turkey hunting?
A. No.
Q. And when you had to shoot one of those
animals, and I understand that's a bad part of a police officer's job, would
you gather out your rain gear before you shot the animal just so you wouldn't
get any blood on your uniform, or would you just walk over and shoot it?
A. I'd just walk over and shoot it.
Q. So unless Officer Chapel got out his rain
gear on a clear day in order to shoot an animal so that there would be blood on
the coat, it had to be raining the night that he supposedly shot this animal?
A. Yes.
Q. Now, you also said that Officer Chapel
worked on the road checks; isn't that correct?
A. He worked the road check --
Q. The first night.
A. -- the first night, yes.
Q. And that was the only night he worked,
wasn't it?
A. It's the only one I'm aware of, yes.
Q. When the officers were running the road
checks the uniform officers were down on the street, weren't they?
A. Yes.
Q. And they were interviewing the motorists;
right?
A. Yes.
We was asking questions if they'd seen any activity at the time in
question there.
Q. And if somebody said, 'Yeah, I saw
something,' you would send them up to the detectives to be interviewed; right?
A. Yes.
Q. Did you see how many people Officer Chapel
interviewed that night?
A. I'm not --
Q. Or were you even paying attention?
A. I was interviewing people as they come
through. I wasn't --
Q. And so it's entirely possible that he didn't
interview -- that he didn't send anybody to the detectives that night, isn't it?
A. That's possible.
Q. It's also possible that he talked to someone
who saw something and sent them on, isn't it?
A. Yes, that's possible, too.
Q. And you wouldn't have ever known?
A. No.
Q. Now, let's talk about running the boo,
bluffing. Cops do that all the time,
don't they?
A. Yes.
Q. You tell a suspect, 'Look, I've got some
evidence on you, you need to give back the stolen property,' that type of
thing?
A. Yes.
Q. And you say that is something that Chapel
did routinely with people?
A. Yes.
Q. And he was pretty successful at it, wasn't
he?
A. Yes.
Q. So he would tell people that, 'Look, we've
recovered some of the stolen property and it's going to link you to the
crime. You need to give it up.' Right?
A. I would say so, yes.
Q. And then they would admit the crime?
A. Yes.
Q. Or he might even say, 'Look, we've got a
band and a hundred bill that matches,' you know. 'We're going to pin this on you, so you'd better give it up. You'd better tell us what happened'?
A. That could happen, yes.
MR.
PORTER: Thanks. That's all the questions I have.
THE
COURT: Redirect?
MR.
MOORE: Just a few questions, Your
Honor.
REDIRECT EXAMINATION
BY
MR. MOORE:
Q. When Officer Reddy left the fire station,
where did he go?
A. I don't know.
Q. Did he just go back on patrol?
A. He went -- yeah, he would go out on patrol,
but I didn't see him any more -- him, also, till he came in at the watch
change.
Q. Now, did you observe Officer Chapel at the
end of the shift?
A. Yes, I did.
Q. And did you notice anything unusual?
A. No, sir, I did not.
Q. You said you know him well; is that correct?
A. Yes, sir.
Q. Did he appear to be upset or anything?
A. He didn't appear to be that night, no, sir.
Q. Was he normal?
A. It would be normal. I would say so, yes.
Q. And I believe you -- when did you testify
that more action would happen with deer?
What kind of weather?
A. It would be at night, and deer have feeding
times at certain times of the day, and more wrecks happen at night than they do
in the daytime, it's been my experience.
Q. Would it be unusual for it to happen during
bad weather?
A. No, it wouldn't be unusual.
Q. When the visibility's poor for motorists and
that sort of thing?
A. Yes.
Q. Thank you.
MR.
MOORE: That's all I have.
THE
COURT: Recross?
RECROSS EXAMINATION
BY
MR. PORTER:
Q. Sergeant Stone, I have one -- I have two
other questions. On a Code 32 where the
officer notes that the victim didn't want a report, does anybody go back and
check to see if the victim really wanted a report?
A. Not usually, no.
Q. So they rely on the officer?
A. Yes.
Q. So the only thing that you have for your
information is based on your conversations with Chapel, and any other records
you might have looked at, is what -- is he says the victim didn't want a
report; right? A. Yes.
Q. Now, you mentioned that you're a deer
hunter?
A. Yes.
Q. Do deer usually move in bad weather or do
they bed down?
A. It's been my experience they would bed down
at night in the bad weather.
Q. And so would you say, based on your
experience, it's much less likely that deer would be up moving around on a bad
rainy night, or would they tend to bed down?
A. They would tend to bed down.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: Yes, sir.
FURTHER REDIRECT EXAMINATION
BY
MR. MOORE:
Q. If you had a bad night, though, and the
weather was breaking up, it was getting better, is that the time the deer would
come out?
A. Yes, they would.
MR.
MOORE: Thank you.
THE
COURT: Mr. Porter?
MR.
PORTER: No other questions, Your Honor.
THE
COURT: You can come down.
[The
witness stepped down.]
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench, and the following conference ensued.]
THE
COURT: Have you got long witnesses,
short witnesses coming up?
MS.
ROGAN: They're relatively short. The next ones -- I really have to go to the
bathroom, so if we could have five minutes.
THE
COURT: I'll tell you what. Let's take ten minutes and then let's push
on to along about 12:30 or maybe a little after.
MS.
ROGAN: Yeah. That would -- that would suit us fine.
THE
COURT: Okay.
[Bench
conference concluded]
THE
COURT: We're going to take a ten minute
recess at this point, then we'll -- we're going to continue on until in the
neighborhood of 12:30, 12:45, sometime along about then before we recess for
lunch.
If
you'll leave your pens, pads and notes on your seats. They'll be waiting on you when you come. We'll take ten minutes at this point.
[The
jurors were excused for the recess.]
THE
COURT: Anything else at this point, Mr.
Porter?
MR.
PORTER: Nothing from the state, Your
Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, your Honor.
THE
COURT: We'll take ten minutes.
[Break
taken]
THE
COURT: Is the defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Bring the jury back, please.
MR.
MOORE: Ms. Rogan is going to be
handling this witness, Your Honor.
THE
COURT: Who is this?
MS.
ROGAN: Robert Sloan.
THE
COURT: All right. Have Mr. Sloan come on in, please.
[The
jurors returned to the courtroom.]
[The
witness was called to the courtroom.]
THE
COURT: Call your next witness, please.
MS.
ROGAN: The defense calls Robert Sloan.
THE
COURT: Mr. Sloan, if you'll take the
stand up here, Ms. Rogan will administer the oath.
[The
witness stepped to the stand.]
MS.
ROGAN: Mr. Sloan, would you raise your
right hand, please. Do you solemnly
swear the testimony you're about to give in this case shall be the truth, the
whole truth, and nothing but the truth?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Could you state your name for the record and
spell your last name, please?
A. Robert Garth Sloan, S-l-o-a-n.
Q. How are you employed, Mr. Sloan?
A. I'm a firefighter with Gwinnett County Fire
Services.
Q. And what -- what precinct or fire station do
you work out of now?
A. My station assignment is Station 17 in
Harbins at this time.
Q. In Harbins?
A. Yes.
Q. And where were you assigned in April of
1993?
A. I was assigned at that station then, but we
do travel around quite a bit to other stations.
Q. Were you present at Station Number 14 on
April 15, 1993?
A. Yes, I was.
Q. And why were you present at that particular
station then?
A. It was a manpower -- they needed someone
there to do -- to fill out the equipment, make sure we had enough people, and I
was assigned there that day.
Q. Okay.
Was it common for you to be assigned to a precinct other than the one
that was your regular assigned precinct?
A. Yes.
Q. Have you spent time at that precinct
previously?
A. Yes, I have.
Q. Had you been there regularly during that
period of time in April of 1993?
A. No.
It was probably maybe once a month or every two months I'd end up at
Station 14.
Q. Were you familiar with the other
firefighters who were assigned to that --
A. Yes.
Q. -- fire station? Can you describe for us, please, what -- where that precinct is
located -- where that fire station, excuse me, is located in relation to the
northside precinct, police precinct?
A. It's in a single-standing building, but
there's -- the police precinct unit is in that building and the fire station is
in that building.
Q. Okay.
So it's one building --
A. It's a single building, one building.
Q. -- that houses both --
A. Right.
Q. -- the fire station and precinct?
A. That's correct.
Q. And is there anything in between the two
buildings, a covered area of any kind?
A. At one time there was a library in
there. I don't know if there's -- if
that's still there or not. I don't
believe it is. So I don't really know
what's in between there.
Q. Is there an area where fire trucks are?
A. Oh, yes.
We have the bay area where the fire trucks are.
Q. Okay.
Is that sort of an open air area?
A. Yes.
Yes. There's like garage doors
in the front, garage doors in the rear, where you can just drive the apparatus
right through.
Q. And what street is that on?
A. That's on Highway 20 and 23. It's on 23 at the intersection of 20, or
close to it.
Q. Okay.
If I could just have you -- would you mind just stepping down from the
witness stand for a moment?
A. [Witness complies]
Q. And look at this map for a second to orient
yourself. This is a map of the City of
Buford.
A. Yes.
Q. Okay.
Can you see on the map -- if you want to use the pointer, that's
fine. I can hold this up if you'd like
to step back and use the pointer.
A. And what would you like me to point out?
Q. If you could point out the location of the
--
A. The station?
Q. -- the fire station?
A. It's right here.
Q. Okay.
There's a fourteen on the map?
A. Yes, there's a fourteen.
Q. Why don't we just step down here a little
bit so that the other jurors can see, too.
If you would point out for them, also, where you're talking about. That's the location of both the Fire Station
14 and the northside precinct?
A. That's correct.
Q. Okay.
A. It's in one building.
Q. Okay.
Thank you. You can resume the
stand.
A. [Witness complies]
Q. Next I'd like to show you some photographs
-- they're Defendant's 139, 140 and 141
-- and ask you if you can recognize what those photographs depict.
A. This is pictures of Fire Station 14, the
area we call the day room which --
THE
COURT: Which exhibit are we talking
about, Ms. Rogan?
MS.
ROGAN: Defendant's Exhibit 139.
THE
COURT: Okay. Why don't you --
MS.
ROGAN: Do them one at a time?
THE
COURT: -- ask him about each one so we
know which one you're talking about.
MS.
ROGAN: All right, that's fine.
BY
MS. ROGAN:
Q. We'll focus first on Defendant's 139. Can you tell us what that is a picture of?
A. Yes.
This is the day room at Fire Station 14 located in Buford. And a day room is the same thing as a living
room.
Q. Okay.
Is that an accurate depiction of what that room looks like in Fire
Station 14?
A. Yes, ma'am.
It looks like Fire Station 14.
Q. Does this appear in the same way that it
would have looked in 1993? Are there
any significant changes that you can see?
A. Well, I recognize the chairs there. These chairs are in every fire station but
-- and the paneling in it. Yeah, it
looks -- in 14 one of the distinguishing things is the decoration on the wall.
Q. Okay.
And that was there in 1993?
A. Yes.
Q. Next I'm going to show you Defendant's
140. Can you tell us if you recognize
what that picture depicts?
A. This is also in the corner of the day room
in Fire Station 14.
Q. Okay.
And does that look the same as it did in 1993?
A. Best of my recollection, yes.
Q. And Defendant's 141?
A. This is the day room taken from the kitchen
area of Fire Station 14.
Q. Okay.
Does that look the same as it did in 1993?
A. Yes, it looks the same.
MS.
ROGAN: Your Honor, at this time -- I'm
sorry, I didn't show you.
MR.
PORTER: I'd like to see them.
[Ms.
Rogan presenting]
MR.
PORTER: I don't have any objection to
those photographs, Your Honor.
MS.
ROGAN: Your Honor, I would tender these
into evidence.
THE
COURT: You're offering 139, 140 and
141?
MS.
ROGAN: That's correct, Your Honor.
THE
COURT: They're admitted without
objection.
MS.
ROGAN: All right. May I publish them to the jury --
THE
COURT: Yes.
MS.
ROGAN: -- while I proceed?
THE
COURT: Yes.
[Ms.
Rogan presenting to the jury]
BY
MS. ROGAN:
Q. Is the day room that's depicted in those
photographs an area where firefighters gather during their downtime, as it
were?
A. In our downtime, yes, we gather in that
area. That's the TV viewing area.
Q. And are the chairs rather comfortable for
sitting in?
A. Yes.
Q. It's sort of like a living room, is it sort
of like?
A. Yes, they're very comfortable.
Q. Okay.
Do you recall firefighter Sloan what you were doing on April 15th of
1993?
A. I know I was at the fire station, and I was
performing duties as a firefighter there at that location.
Q. Okay.
Do you have specific recollection of things that happened that night?
A. Yes, I have a recollection of things that
happened that night.
Q. Okay.
Do you -- well, first of all, do you recognize Mr. Chapel?
A. Yes, I do.
Q. Okay.
Had you seen him at the fire station prior to that night?
A. No, I did not.
Q. Okay.
Do you recognize him from being at the fire station that night?
A. Yes, ma'am.
Q. Do you recall who all was at the fire
station that night?
A. As far as?
Q. Police officers, I'm sorry.
A. There was Officer Chapel, Officer Stone, and
another officer. I do not know his name
or remember it at this time.
Q. So there were three police officers there at
the this station?
A. At least three.
Q. Okay.
And what were they doing there?
A. They were there watching television.
Q. Okay.
Do you --
A. I don't remember if they ate or what.
Q. Okay.
Do you remember what, specifically, they were watching on television?
A. No.
I wasn't watching the television in that room. I spent very little time in that room.
Q. Okay.
What were you doing then?
A. We have another area on the other side of
the bay, and I was -- and that area has a TV and a couch and a chair and an
exercise area. It has weights, bicycles,
that type of thing, and I was primarily over there.
Q. Were you in and out of --
A. Yes.
Q. -- the day room some?
A. I moved in and out of there several times
during the course of the evening.
Q. Approximately how many other firemen were
there that night; do you remember?
A. At the station?
Q. Yes.
A. Well, we have an engine and a ladder and a
med unit assigned there. I would say
that we were at minimum staffing because I was moved there. Nine, plus a battalion chief and an aide,
that would be 11, 11 fire uniform personnel.
Q. Okay, who were present that night or was --
A. Would be in and out. Would be assigned at that station.
Q. Okay.
Do you have a recollection of what time the police officers arrived?
A. Yes.
I believe it was around seven -- around seven o'clock at night,
something like that.
Q. Do you have a recollection --
A. No, correction. I believe it was earlier than that, than seven o'clock. I remember at the seven o'clock time, they
was definitely there.
Q. Do you recall whether it was still light out
or not?
A. No, I do not.
Q. Do you have a recollection of what time the
officers left that night?
A. Best of my recollection, it was between ten
and 10:30. I was on my way to the bunk
room to retire for the evening when I saw police officers still there. I was just passing through to go to the bunk
room.
Q. And around what time did you normally retire
for the evening?
A. Usually around ten o'clock in the evening.
Q. Okay.
Were you interviewed by anyone from the police department in the week or
two after that evening, April 15th of 1993?
A. From the police department, no, I was not.
Q. Okay.
Did anyone request that you provide a statement?
A. I was informed that I needed to write a
letter of what I remembered of the evening and submit it.
Q. Okay.
And you submitted it to whom?
A. That would have went through the chain of
command. I would have sent it to -- it
would have went to the battalion chief, and where it went from there, I have no
idea.
Q. But if I understand you correctly, no one
from the police department ever came to speak to you personally?
A. I can't recall a police officer asking any
questions about this whatsoever.
Q. Okay.
Has the district attorney or someone from his office spoken to you more
recently?
A. Yes.
Q. And when was that, if you recall?
A. Maybe a month ago. We had a meeting that I went to.
It was at Fire Station 14 and talked with the district attorney's
office.
Q. Okay.
And was everyone who had been present on April 15th present at the
meeting?
A. There were people there that was present
when I was there that were at the station that night, and I can't -- I couldn't
say it was everybody, but there was people there.
Q. But you met in one group --
A. Yes.
And --
Q. -- that night?
A. [No response]
Q. Or that day. Okay. Officer Sloan, I'm
going to hand you what's been marked as Defendant's Exhibit 142 and ask you if
you recognize what that document is.
A. Yes.
This is a letter, a memorandum, that I typed and submitted to Captain
Hunnicutt with the Gwinnett County Fire Services.
Q. Okay.
And that's Captain Hunnicutt of the Fire Services?
A. Correct.
Q. Okay.
And was he your superior in the chain of command?
A. He is a captain assigned to Station 14. And, yes, when I was there, he was in
charge. Captain Hunnicutt sometimes
rides as a battalion chief, and this letter may have been directed to him
because he was -- as the battalion chief that day, as an acting battalion chief.
Q. And is that an accurate copy of the letter
that you prepared --
A. Yes.
Q. -- at the request of your superior officer?
A. Yes.
I was told by my supervisor to make a letter out to what happened that
evening.
Q. Okay.
MS.
ROGAN: Your Honor, at this time I would
tender State's Exhibit D-142 for the record.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, for the record
only, it is a true and accurate copy of the statement of firefighter Sloan.
THE
COURT: 142 is admitted for the record.
BY
MS. ROGAN:
Q. One last thing. Do you recall the date -- and you may refresh your recollection
if you don't -- the date that you prepared this letter?
A. Yes.
That's -- I'm sure it was accurate.
Q. Okay.
And what date -- what date?
A. April the 27th, 1993.
Q. Okay.
So that was approximately twelve days after the events that you're
describing in the letter?
A. Correct.
Q. Okay.
MS.
ROGAN: That's all I have. Thank you, Mr. Sloan.
THE
COURT: Mr. Porter?
MS.
ROGAN: Mr. Porter may have some
questions for you.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Hello, Mr. Sloan. How are you?
A. Fine.
Q. We've met before, haven't we?
A. Yes, we have.
Q. I was dressed a little different.
A. Yes, you were.
Q. When we met at the fire station, we
basically discussed the case -- the status of the case; and then wasn't it true
that we interviewed each of the firefighters individually?
A. Yes.
Q. And so we didn't put people together and get
them to discuss their testimony?
A. Oh, no.
No.
Q. I want to ask you, basically, on the night of
the 15th, was it any different than any other night? Was there anything significant about it until you were asked to
remember it?
A. I really can't say there was anything
significant that I remember or recall at this time.
Q. So it was just a -- it was just a regular
night. You worked your call --
A. It was another day at the fire station.
Q. It was another day at the fire station until
you were asked to remember back; right?
A. Correct.
Q. Now, prior to that, you knew Chapel by
sight?
A. Correct.
Q. But you had never talked to him; is that
correct?
A. No.
Q. And you weren't really friendly with him?
A. No.
Q. And did you know the other two officers
personally, Sloan and Reddy?
A. No.
Q. And Reddy is the big one with the New Jersey
accent. So do you recall him being
there that night?
A. I would -- I recall another officer there,
but I wouldn't say it was Reddy. I
don't know.
Q. You don't know?
A. I just don't remember now at this time.
Q. And basically, your testimony here today is
that you were on the other side of the fire station working out and watching TV
--
A. Correct.
Q. -- away from the day room?
A. I made several trips, like I say, into the
kitchen area to get coffee. That was
the only place that our coffee pot was.
Q. Now, in fact, there are two televisions at
the fire station, aren't there?
A. There's probably more than that. I can't remember. Some fire stations have quite a few and some have none.
Q. And, correct me if I'm wrong, in Station 14
in Buford there's the day room that has the big television in the corner?
A. Yes.
Q. And then down the hall as you go out towards
the bay, there's another room on the right that has a big television?
A. Conference rooms, classroom.
Q. Right.
And then there may be another television up there in the front, isn't
there?
A. There's -- at one time there was the TV in
the day room, then a TV in a classroom, and then on the other side of the bay
in the workout room there's a TV in there and a couch in there, too, so --
Q. So you were all the way over on the other
side, where they park the fire truck, for most of the night?
A. Yes.
Q. And are all those TVs hooked up to cable?
A. I couldn't answer that. I don't know.
Q. Do you know if any of them are?
A. Yes.
Q. And, in fact, firefighters in the downtime
-- and there's nothing wrong with this -- they watch TV, don't they?
A. Yes.
Q. And some of the things they watch are movies
on TV?
A. Correct.
Q. And they watch them on HBO or Cinemax or
Showtime or whatever?
A. Correct.
Q. Because you're not always out on a fire
call; right?
A. Oh, no.
Q. And so really, you don't know Mike Chapel's
comings or goings the night of April the 15th really at all, do you?
A. No, I do not.
Q. And he very well could have left the fire
station at 9:20 or 9:30 and be gone until 10:15, and you would have wrote --
really never noticed it, would you?
A. That's correct.
Q. And so he -- you weren't really paying that
much attention, were you?
A. I was giving it no attention.
Q. Right.
And you were over working out, having a regular night, over watching TV
or whatever you were doing?
A. That's correct.
Q. So, in all honesty, you can't tell this jury
that Mike Chapel was at the fire station from seven in the morning -- or seven
in the evening until you went to bed at 10:30, can you?
A. No, I couldn't say that.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
REDIRECT EXAMINATION
BY
MS. ROGAN:
Q. Mr. Sloan, I'd like to show you what's
previously been admitted as Defendant's Exhibit 26. Do you recognize the person depicted in that photograph?
A. That was the officer that was there. Yes, I recognize him, but I don't know his
name.
Q. Is that the third officer?
A. Yes.
Q. Okay.
Who you -- you don't know his name?
A. No, I do not.
Q. Okay.
But that's a picture of him?
A. I believe so.
Q. Okay.
This officer Mr. Porter described as a big guy. Could you -- how would you characterize his
size in relation to Mr. Chapel's?
A. Comparable.
Q. Okay.
They're both big guys?
A. Yes.
Q. Okay.
Do you have a recollection as to how big this officer is? How tall?
A. How tall?
Six-one, six-two.
Q. Okay.
Do you have a recollection as to how tall Mr. Chapel is?
A. I'd say maybe a little shorter than that,
maybe six foot.
Q. Do you think Mr. Chapel's a little shorter
than the other officer?
A. I'm -- I really don't know, but I --
Q. But they're roughly the same size?
A. Roughly the same size.
Q. And would you characterize them both as big
guys?
A. I would.
Q. Okay.
Husky guys, would you say?
A. It's hard for me to characterize anybody
big.
Q. How tall are you, Mr. Sloan?
A. Six foot-two.
Q. Are they larger men than you?
A. No.
Q. About your size?
A. I think that they are as tall or as close
as, but they carry theirs a little bit different than I do mine.
Q. And how is that, Mr. Sloan?
A. Well, they work out tremendously on upper
body strength, apparently.
Q. Okay.
So would you say they're both very muscular men?
A. Sure.
Q. Okay.
One last question. This
statement, the letter that you submitted at the behest of your superior
officer, do you recall saying in the statement that at the time you went to bed
you saw all three officers watching TV?
A. Yes, I do remember saying that.
Q. Okay.
And would you say that your memory of what happened in April of 1993,
specifically on April 15th of 1993, was better at that time than it may be now?
A. Oh, yes.
MS.
ROGAN: Okay. That's all I have. Thank
you, Mr. Sloan.
THE
COURT: Recross?
MR.
PORTER: I have no recross for this
witness.
THE
COURT: Do you wish this witness to
remain on call?
MS.
ROGAN: All right. If he could remain on telephone call, that
would be fine.
THE
COURT: You'll be subject to being
recalled. You can come down.
[The
witness steps down.]
THE
COURT: Call your next witness, please.
MS.
ROGAN: The defense calls David Pierce.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Pierce, if you'll take the
stand up here, Ms. Rogan will administer the oath.
[The
witness stepped to the stand.]
MS.
ROGAN: Would you have a seat, Mr.
Pierce, and raise your right hand, please.
Do you solemnly swear the testimony you're about to give in this case
will be the truth, the whole truth, and nothing but the truth?
THE
WITNESS: Yes, I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Would you state your full name and spell
your last name for the record, please?
A. David E. Pierce, Jr., P-i-e-r-c-e.
THE COURT:
Mr. Pierce --
BY
MS. ROGAN:
Q. I'm going to ask you to speak up a little.
THE
COURT: Yes. Speak up so all the jurors can hear you, please.
BY
MS. ROGAN:
A. [Continuing] David E. Pierce, Jr., P-i-e-r-c-e.
Q. Okay.
Can you tell us, please, Mr. Pierce, what you do for a living?
A. I work for Gwinnett County fire department.
Q. Okay.
Are you a firefighter?
A. I'm a firefighter and an EMT.
Q. Okay.
A. I'm on the dive rescue team.
Q. And the dive rescue team?
A. Rescue team, yeah.
Q. Could you speak up just a little more? I'm even having trouble hearing you. What fire station are you assigned to now?
A. At Station 14 in Buford.
Q. Okay.
And is that the same fire station that you were assigned to back in
April of 1993?
A. That's correct.
Q. For how long have you been a firefighter,
Mr. Pierce?
A. For fourteen years.
Q. How long have you been assigned to the Fire
Station 14?
A. The latter part of 1988.
Q. So you've been there for approximately seven
years now?
A. That's correct.
Q. Is the Fire Station 14 adjacent to or
connected to the northside police precinct?
A. Yes, it is.
Q. Are they in the same building?
A. Yeah.
Yes.
Q. Have they been in the same building for some
time?
A. Yeah.
Q. Are you familiar with the officers who work
out of the northside precinct?
A. Just by seeing them every now and then as
they change shifts, and a few of them that came over to the station to sit for
10 or 15 minutes to watch TV or just to have some camaraderie.
Q. Okay.
Was it uncommon for police officers to stop by --
A. No.
Q. -- and watch TV at the fire station?
A. No, it wasn't.
Q. Okay.
Do you -- do you know Mr. Chapel?
A. Yeah.
I know him from running calls with him and seeing him during a shift
change when we're outside doing stuff with the truck.
Q. For how long a time before April of 1993 had
you known or recognized Mr. Chapel?
A. I'd say probably three years, I guess.
Q. I'm going to ask you to look at some
photographs. I show you what's been marked
as Defendant's Exhibit 139. Do you
recognize that photograph?
A. Yes, I do.
Q. Okay.
And what does that picture depict?
A. It's our day room at Station 14 with the TV
and stereo.
Q. Okay.
Is that an area where firefighters gather during their downtime and
watch television?
A. That's correct.
Q. I'd like to show you Defendant's Exhibit
141. Tell me what that depicts.
A. That's a bigger picture of our day room and
kitchen area where we cook and eat our suppers and watch TV.
Q. Is this the area where the police officers
would come and join you to watch TV?
A. Yes.
Q. I'd like to direct your attention to the
evening of April the 15th of 1993. Do
you have a personal recollection now of what happened that night?
A. As far as when the police officers came into
the station?
Q. Yes.
A. Well, we were all sitting around watching a
movie, and sometime after the movie had started, the officers came in and set
down, and we -- sometimes we'll just say hello, you know, 'how're you doing,'
and go on back to watching our TV show or whatever we're doing. We really don't, you know, carry on a
one-to-one conversation.
Q. Okay.
Do you recall what the weather was like that night?
A. It was cloudy.
Q. Do you recall whether it was raining or not?
A. It had been raining off and on all day.
Q. Do you recall whether or not there were
tornado warnings?
A. I don't recall that.
Q. Do you recall whether or not there was a
time when the officers were watching the weather station or the TV news for
weather updates?
A. No, I don't.
Q. You don't recall?
A. Uh-uh.
[Negative]
Q. And you said you were watching the movie?
A. That's correct.
Q. Do you recall a time when Officer Chapel
left the fire station?
A. After viewing the TV schedule and finding
out that it did go off at 9:30, I'm not exactly sure what time he left.
Q. Okay.
I'll get to that in just a moment.
Do you recall making -- writing out a statement?
A. Yes, I do.
Q. I'm going to show you, Mr. Pierce, what's
been marked for identification as Defendant's Exhibit 143. Do you recognize what -- do you recognize
that document?
A. Yes, I do.
Q. Okay.
And what is that document?
A. It's a statement that I made on 4/27 of '93
about the events that happened that night, to my best recollection.
Q. All right.
Do you recall now what you said in the statement?
A. As far as --
Q. Would it refresh your recollection to look
at the statement --
A. No, I --
Q. -- as to what you said in the statement?
A. I'm pretty sure what I said in the
statement.
Q. Okay.
What did you say in the statement, then?
A. That around or about 9:30 the officers came
into the station, and between that time and the time that the movie went off
Officer Chapel got up and put his raincoat on and walked out the door, and then
I went back to the bunk room.
Q. Do you recall who you gave this statement
to?
A. I gave it to our captain at our station.
Q. Okay.
And is that Captain Hunnicutt?
A. Yes, it is.
Q. Do you know whether he's related to
Detective Hunnicutt of the police department?
A. Yes, he is.
Q. Okay.
What is the relationship between the two?
A. They're brothers.
Q. They're brothers. Do you recall whether or not Detective Hunnicutt of the police
station came to pick up the statements?
A. I don't recall.
Q. Okay. Do you have any knowledge as to who picked up the statements?
A. No, I don't.
Q. Did anyone from the police department
interview you personally at that time in 1993?
A. Not that I can recall.
Q. And have you met with the district attorney
or representatives from his office since that time?
A. Yes, I have.
Q. And when was that, Mr. Pierce?
A. About a month ago, I guess.
Q. And were you asked to assemble at the fire
station for a meeting?
A. Yes.
That's where they met with us.
Q. And then were you interviewed by someone as
to the events of that night?
A. That's correct.
Q. And I believe you made reference just before
to being shown the TV listings for that evening?
A. Yes.
Q. Did someone from the district attorney's
office bring you a TV listing from that day?
A. No.
They made a phone call to me later on, a couple of days after that, and
we discussed what the movie was about and picked out what show it was, because
I didn't recollect the name of the show, and found out that the time it went off
was 9:30.
Q. Okay.
So someone from the district attorney's office told you that movie had
gone off at 9:30?
A. Yes.
MS.
ROGAN: That's all I have at this time.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Hello, David.
A. Hi.
Q. Do you remember speaking to me about a month
ago that day at the fire station?
A. Yes.
Yes, I do.
Q. In fact, we talked to you as a group and
then individually interviewed you?
A. Yes.
Q. Now, let me ask you, the TVs at the fire
station, they're equipped with cable, aren't they?
A. That's correct.
Q. And it's not really uncommon for y'all to
watch cable movies, is it?
A. Not at all.
Q. And normally when you watch a movie on
cable, it plays it all the way from the credits at the beginning to the credits
at the end, doesn't it?
A. Yes, it does.
Q. Do you normally watch the credits or do you
switch to another channel?
A. That depends on who has the remote.
Q. But it wouldn't be surprising that on the
night of the 15th that because of the weather -- and usually, even though
there's a time schedule on the TV guide, don't the movies usually end earlier
than the allotted time?
A. Sometimes, yes.
Q. And don't they usually have a station break
sort of thing, upcoming attractions, and all that?
A. Yes.
Q. So on the night of the 15th, you testified
that y'all were watching a movie; right?
A. Yes.
Q. Do you specifically remember Chapel being
there?
A. Yes.
Q. And do you specifically remember Stone being
there?
A. Yes, I do.
Q. And do you specifically remember the big guy
with the flat top and the New Jersey accent?
A. Yes.
Q. Now, when you gave your statement -- when
you gave your statement in April of 1993, didn't you key the time that Chapel
left to the ending of the movie? Didn't
you tie those two together?
A. Yes, somewhat -- within five or ten minutes
of that time.
Q. So he left either five minutes before the
movie ended or five minutes after, would you say?
A. After the movie was over, it was, you know --
it could have been -- I could have set there five or ten minutes, I don't know,
but I know that he left before I got up and went into the bunk room.
Q. So would it be your -- would it be your
testimony that he probably left before even the movie was over or as it was
just ending?
A. I would say as it was ending.
Q. And do you remember him putting anything on
as he left the fire station?
A. Yes.
He put on a raincoat.
Q. And what did he do after he put the raincoat
on?
A. He walked out the door.
Q. Now, I'm going to show you -- I'm going to
show you what I've had previously marked as State's Exhibit Number 154, and
turning to the first page, can you take a look at that and see if you can
identify what it is.
A. [Witness complies]
Q. Do you recognize that at all?
A. It looks like a TV guide.
Q. And what week is that for?
A. April 11th to the 17th.
MR.
PORTER: All right. Your Honor, at this time the state would
tender into evidence State's Exhibit Number 154, which is a certified copy of
the Atlanta Journal-Constitution TV listing.
It's commonly called the Tweek -- or TV Week, I'm sorry -- that is a
certified copy of that document which is contained on microfiche at the
Gwinnett -- the Lake Lanier Regional Library, and it has a certificate of
authenticity attached to it.
THE
COURT: For what year?
MR.
PORTER: For April the 11th through the
15th of 1993.
THE
COURT: Mr. Moore?
MS.
ROGAN: We would stipulate to its
admission.
THE
COURT: State's 154 is admitted.
BY
MR. PORTER:
Q. Now, Mr. Pierce, could you flip through to
that, particularly to the night of Thursday, April the 15th. And the pages are basically in order, so you
can use it just like you would. Do you
see the television listing for that?
A. Yes.
Q. Can you look through that television listing
and identify is the movie you were watching that night listed on that
television listing?
A. Yes.
Q. And what channel was it on?
A. It was on Cinemax.
Q. What time did it begin?
A. Eight p.m.
Q. And what time did it end, according to the
time slot?
A. Nine-thirty p.m.
Q. What was the name of that movie, Mr. Pierce?
A. 'A Time to Die.'
Q. Do you recall what it was about?
A. Yes.
It was about some bad cops.
Q. And were there any specific acts that these
bad cops did that you remember?
A. It was just like a crime spree where if
somebody got in their way they would kill them.
Q. Thank you.
MR.
PORTER: I don't have any other
questions for Mr. Pierce.
THE
COURT: Redirect?
MS.
ROGAN: Yes, just briefly, your Honor.
REDIRECT EXAMINATION
BY
MS. ROGAN:
Q. Mr. Pierce, correct me if I'm wrong, but I
believe you said you didn't know the name of the other officer or not? Do you know his name?
A. I know his first name. Brian.
Q. Brian?
Okay. I'm going to show you
what's been previously admitted as Defendant's Exhibit 26. Is that the person you're referring to as
Brian?
A. Yes.
Q. The big guy with the flat top?
A. Yes, it is.
Q. All right.
And I'd like to direct your attention back to your statement again, if I
could. Do you recall making the
statement that Officer Chapel did not act any differently that night than he
had on other occasions that you had seen him?
A. Yes, I did.
Q. Okay.
And can you tell me whether or not you mentioned anything in your
statement about what it was you were watching on TV?
A. I think I just said we were watching a
movie.
Q. Okay.
And you didn't -- do you remember saying anything specifically about
what movie it was?
A. No, I don't.
Q. Or what channel it was on?
A. No, I don't.
Q. And I believe you testified that you don't
recall anyone watching the weather that night?
A. No, I didn't.
Q. So do you recall at all Mr. Chapel making
fun of the officer you've identified as Brian for not knowing where Gwinnett
County was on the large weather map that was showing the current conditions?
A. No.
I don't recall that.
Q. You don't remember that happening?
A. Uh-uh.
Q. Okay.
MS.
ROGAN: That's all I have. Thank you, Mr. Pierce. While you're here, I'd like to tender
Defendant's Exhibit 143 in evidence for the record.
THE
COURT: Mr. Porter?
MR.
PORTER: For the record only, Your
Honor, the state has no objection.
THE
COURT: It's admitted without objection
for the record. Recross?
RECROSS EXAMINATION
BY
MR. PORTER:
Q. Mr. Pierce, after the movie, did you go on
and go to bed?
A. Yes, I did.
Q. Were the other two policemen that you've
described still there when you went to bed?
A. Yes, they were.
Q. And that was Sergeant Stone and the guy you
know as Brian; they were still there?
A. Right.
Q. But Chapel left before the end of the movie?
A. Yes.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
FURTHER REDIRECT EXAMINATION
BY
MS. ROGAN:
Q. I believe your testimony was that Mr. Chapel
left after -- shortly after the movie ended; is that correct?
A. That's correct.
Q. And you said it could have been five or ten
minutes after the movie ended?
A. That's correct.
Q. Okay.
MS.
ROGAN: That's all I have.
THE
COURT: Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: Do you wish this witness to
remain on call?
MS.
ROGAN: On call would be fine, yes, Your
Honor.
THE
COURT: You'll be subject to being
recalled at a later time. You can come
down, Mr. Pierce.
[The
witness stepped down from the stand.]
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench, and the following conference ensued.]
THE
COURT: Do you have another short
witness?
MS.
ROGAN: Well, I have several more
firemen, and they're not going as quickly as I thought.
THE
COURT: Okay. Well, if we've got -- we may as well break now as later, then.
MS.
ROGAN: Okay.
MR.
PORTER: And they're all going to be
about the same.
MS.
ROGAN: Yeah. Yeah.
THE
COURT: Okay. Okay. An hour? Anybody need more than an hour?
MS.
ROGAN: No.
MR.
MOORE: The only reason I would request
it, Your Honor, we've got some expert witnesses --
MS.
ROGAN: Oh. We do have some witnesses.
MR.
MOORE: -- we need to get some
hypotheticals set up. It might save
time if I could speak to them.
THE
COURT: Two o'clock?
MR.
MOORE: That would be good, Your Honor.
MS.
ROGAN: That would be fine.
THE
COURT: Okay.
MS.
ROGAN: Thank you.
[Bench
conference concluded]
THE
COURT: Ready for lunch? We're going to recess a little bit longer
than usual so -- for a few minutes longer than usual. We're going to recommence at two o'clock.
So
I'm going to release you at this time for a lunch recess and remind you again
that you've heard a good portion of the case presented, you have not heard all
of it, you ought to continue to keep an open mind, and you ought not to make up
your own mind until such time as you have seen and heard all the evidence in
the jury room with your fellow jurors to commence your deliberations. There ought not to be any discussions
amongst yourselves or with anybody else, or allow anybody else to discuss the
case with you or in your presence until that time.
If
you'll leave your pens, pads and notes in your seat, we'll recommence at two
o'clock.
[The
jurors were excused from the courtroom for the lunch recess.]
THE
COURT: Anything else, Mr. Porter?
MR.
PORTER: Nothing from the state, Your
Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: Nothing from the defense, Your
Honor.
THE
COURT: We'll be in recess till two
o'clock.
[Lunch
recess]
-
-
5436
AFTERNOON SESSION
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Bring the jury back, please.
[The
jurors were escorted to the courtroom.]
THE
COURT: Call your next witness, Mr.
Moore.
MS.
ROGAN: The defense calls Stanley
Wilson.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Wilson, if you'll take the
witness stand up here, Ms. Rogan will administer the oath.
[The
witness stepped to the stand.]
THE
COURT: Go ahead and be seated.
MS.
ROGAN: Would you raise your right
hand. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth?
THE
WITNESS: Yes.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Pull up toward the microphone so we can hear
you, and if you would state your name and spell your last name for the record,
please.
A. My name is Stanley Wilson. Wilson, W-i-l-s-o-n.
Q. And, Mr. Wilson, how are you employed?
A. I'm a fire engineer for Gwinnett County Fire
Services.
Q. By fire engineer, what do you mean?
A. I drive the apparatus. I'm a driver.
Q. How long have you been employed as a fire
engineer?
A. I'm with the department for over sixteen
years.
Q. What fire station are you assigned to?
A. The Buford precinct, Station 14.
Q. Is Fire Station 14 adjacent to or connected
to the northside police precinct?
A. Yes, it is.
Q. And where is that located, Mr. Wilson?
A. 1600 Buford Highway in Buford.
Q. Is that also known as Highway 20?
A. Highway 23, I think.
Q. Twenty-three?
A. Uh-huh.
Q. Is that where 20 and 23 intersect?
A. Yes.
Q. Were you assigned to that precinct on April
15th of 1993?
A. Yes, I was.
Q. Do you recall the night of April 15, 1993?
A. Yes.
Q. Were you requested to make a written
statement --
A. Yes.
Q. -- about a week after that?
A. Yes.
Q. Do you recall what you said in the
statement?
A. I recall there was three police officers
came by the station that evening. We
were watching TV. During that time, one
left, during the period of time, I think, Sergeant Stone, and he came back. They were all three there. And then somewhere between -- right near ten
o'clock Officer Chapel said he had to go check on something. He left.
The other two officers were still in the station at the time.
Q. Now, you've mentioned Officer Chapel. Is it Mike Chapel who's sitting at the table
here?
A. Yes.
Q. Okay.
Do you -- did you recognize Mike Chapel before he came in -- let me
rephrase that. Did you know Mike Chapel
before that evening?
A. Yes, I did.
Q. Had you seen him around --
A. Yes.
Q. -- the fire station?
A. Yes.
Q. Was he one of the officers in the northside
precinct?
A. Yes.
He was assigned there.
Q. Was it common for the officers in the
precinct to come by the fire station?
A. They would stop in every once in a while
just to talk with us, but not for any length or period of time.
Q. Okay.
Who else was there that evening?
You've mentioned Sergeant Stone.
A. I believe the other patrolman was Officer
Reddy.
Q. Okay.
So it was the three of them who came in that night?
A. Yes.
Q. Okay.
And you mentioned people were watching television?
A. Yes.
Q. Do you recall what it was they were watching
on television?
A. During one period of time we was watching a
movie, and that was on one of the cable channels. I also recall watching the local news or television during that
time because of the -- there was some bad weather in the area, I guess, and
they were -- kept flashing warning signals on the TV.
Q. Okay.
So you were watching -- keeping track of the weather --
A.
Yes.
Q. -- as it -- was it a stormy night?
A. I believe it was raining at that time in our
location, but I don't think the storm was around really in our location there.
Q. Do you recall if there were warnings of a
storm coming in?
A. Not necessarily in our area, but around --
around the location, I guess.
Q. Do you recall there being a weather map on the
screen?
A. I don't recall a big weather map, maybe a
small one in the corner like they'll post sometimes.
Q. Was it one of these things where they break
into the television show and give a warning with a map of the areas that are
going to be affected?
A. Yes.
I believe that's what it was.
Q. Do you have any recollection, Mr. Wilson, of
Mike Chapel making fun of Brian Reddy for not knowing where Gwinnett County was
on that map?
A. I don't recall that.
Q. Now, you indicated that the movie that you or
the others were watching was on cable TV?
A. Yes.
Q. Does the weather report break in to the
cable station?
A. I haven't -- I don't recall that it
does. I haven't seen it before do that.
Q. Okay.
Is it possible people were switching back and forth between stations?
A. I guess that could be a possibility.
Q. Okay.
But you do remember seeing that there were weather reports that were
breaking into whatever you were watching?
A. Yes.
Q. You indicated that Mr. Chapel had got up to
leave and said he was going to go check on something?
A. Yes.
He -- I think the statement was he was going to check on the Van man,
and nobody seemed to know what exactly that meant at the time, then nobody else
said nothing else about it.
Q. Okay.
Do you know now what he meant by that?
A. No, uh-uh.
Q. Okay.
And you said it was about ten o'clock that he went to do that?
A. Yeah, I -- for some reason I think it was
around ten o'clock. That's what I put
in my statement.
Q. Okay.
MS. ROGAN:
If I might, just for the record, have this marked.
[Defendant's Exhibit Number 144 was marked
for identification by the court reporter.
BY
MS. ROGAN:
Q. Mr. Wilson, I'm going to show you what's
been marked for identification as Defendant's Exhibit 144. Do you recognize that document?
A. Yes, uh-huh.
Q. Okay.
Is that your handwriting?
A. Yes.
Q. Is that a statement that you made for --
well, for whom did you make this statement?
A. I'm not exactly sure. It seems like our station officers came back
and requested that we do something --
Q. Okay.
So someone --
A. Yes.
Oh, yes.
Q. -- someone asked you to write down what you
recalled from that night?
A. Yes.
Q. Do you remember when it was you were asked
to do this?
A. I don't recall. It was shortly after, you know, within probably a week or two, I
guess, maybe, afterwards. I'm not sure
of the date. It's probably on there.
Q. Okay.
Would it refresh your recollection to look at the statement and see the
date that you wrote the --
A. It's say 4/27, so that's when it was
written.
Q. Four twenty-seven?
A. Uh-huh.
Q. And that was in 1993?
A. Uh-huh.
MS.
ROGAN: At this time, Your Honor, I'd
like to tender Defendant's Exhibit 144 for the record.
MR.
PORTER: No objection for the record,
Your Honor.
THE
COURT: Defendant's 144 is admitted for
the record only.
BY
MS. ROGAN:
Q. Mr. Wilson, did anyone from the police
department interview you personally back in April of 1993?
A. There were some police officers. I don't know when it was or what time it was
or how long ago it's been, but there were some that did come by the station and
talk to us.
Q. Someone came out to the station to talk to
you?
A. Yes.
Q. At that time?
A. Whether you'd say police officer or
detectives or whatever, I guess.
Q. Have you spoken since then with
representatives from the district attorney's office?
A. Yes.
We spoke a month or so ago, probably, and I'm not sure exactly when.
Q. Was there a meeting up at the fire station
--
A. Yes, it was.
Q. -- one day with all the people who'd been present
that night?
A. The ones that were working that day, yes,
they were present.
Q. Okay.
MS.
ROGAN: Thank you. That's all I have, Mr. Wilson.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Mr. Wilson, do you recall meeting with me about
a month ago?
A. Yes, uh-huh.
Q. And were you interviewed separately -- we
met together and then we interviewed you each separately; is that correct?
A. Yes, uh-huh.
Q. Now, let me ask you a little bit about the
layout of the fire station. There are
two televisions up there, aren't there?
A. There's more than that. Yeah, there's actually three, I think.
Q. So there are a number of TVs. Are they all hooked up to cable?
A. I think so.
Q. And so on a cable TV you can, depending on
how much channel surfing you do, you can flip between local news and Cinemax
almost as fast as you want to, can't you?
A. Yes.
Q. And so if there was a slow part of the
movie, somebody might say, 'Let's check what the weather's doing,' check it for
30 seconds, and then come back, wouldn't you say?
A. Sure.
Q. So wouldn't you agree that it's entirely
possible that during the time of this movie y'all could have been flipping back
and forth?
A. It's possible.
Q. Let me ask you a little bit about
memory. Wouldn't you agree that memory
is usually tied to -- and particularly memory of times, it's tied to specific
events?
A. Yes.
Q. Like if I told you -- if I asked you to
remember a call from last night -- were you working last night?
A. Yes.
Q. And if I asked you to remember a call, and I
said, 'Do you remember that call you went out on where you went to the car
accident at wherever the car accident was and the fire truck went out, what
time would you guess that time was,' you would key the time for the memory of the
event?
A. Yes.
Q. When you gave your statement, were you
keying your memory of the time that Officer Chapel left the station to the
movie that you were watching?
A. I -- I don't recall that. I just recall, for some reason, I was -- the
reason I put the time down there is because I either looked at my watch or
looked at the clock on the wall, for some odd reason, because I was standing
there.
Q. But you all were watching a movie?
A. Yes, we were.
Q. And David Pierce was there?
A. Yes.
Q. And do you recall whether Chapel left before
or after the movie left? Or ended,
excuse me.
A. I would say it would be after the movie
ended. I'm pretty sure it wasn't before
the movie ended.
Q. But you don't have any independent recall of
that night at all, do you, other than reviewing your statement?
A. As far as?
Q. As far as the time.
A. No, uh-uh.
Q. And you haven't keyed it to any event, like
a movie?
A. No, uh-uh.
Q. But you do remember the movie?
A. I was in and out part of the movie. I seen some of it and, you know, didn't
watch the whole thing.
Q. Now, let me show you what's been marked
State's Exhibit Number 4 -- excuse me, 154.
And if you'll turn it -- this has been previously identified and
stipulated as the TV guide for that week.
Now, you're aware of the information that's contained in this, aren't
you? You've been told about the movie;
is that correct?
A. No.
Q. The movie that you were watching?
A. What do you mean told about it?
Q. Well, take a look at the TV schedule for
Thursday, April the 15th, 1994. And I
don't know where I opened it. You'll
have to just look through. I may be
further on than Thursday. That's a
correct copy of the TV guide.
A. Okay.
This is Thursday here.
Q. All right.
And if you could turn it to the page that actually has the schedule for
all the channels laid out as opposed to the description. Right here.
A. Okay.
Q. If you'll look on the page with the Cinemax
-- if you'll look on the line with Cinemax, there was a movie playing that
night, wasn't there?
A. Yes.
Q. And what time did that movie end?
A. Nine-thirty it says on there.
Q. And when Chapel left, did he put anything
on?
A. Uh-huh.
I recall -- it seems like he had a raincoat on, top, top hat. To the best of my knowledge, that's all I can
remember.
Q. And you don't remember -- do you remember
whether the other two officers stayed until you went to bed?
A. The other two officers were there. I don't know if they stayed there till I
went to bed. I'm not sure if I went
directly to bed or if I went to another part of the station at the time.
Q. So you were --
A. I don't recall when they left.
Q. So you were sort of wandering in and out of
the room. You had other things you were
doing that night. Wouldn't you say?
A. Probably, yes.
Q. And April the 15th really wasn't any
different than other night until it assumed some significance because of this;
right?
A. Sure.
Q. And the fire station is kind of like your
house, isn't it?
A. Yes.
Q. You're there for how many -- what are you,
twenty-four on and forty-eight off?
A. Yes, uh-huh.
Q. And so what did you do last night?
A. Last night?
Q. You just sort of went home and --
A. This morning, yeah.
Q. -- watched TV and did whatever you do,
right, and there was nothing that stood out about last night, was there?
A. No.
Q. So you weren't really paying any degree of
attention as to what time it was or what time anything was happening that night
on the 15th, were you?
A. As far as -- if I wrote 22:00 hours, which I
did, which is ten o'clock, ten p.m., for some reason I did look at a time, for
some reason or another. I remember that
time somehow.
Q. But you don't know what that reason is?
A. No.
Whether I just looked at my watch or looked at the clock on the wall at
the time. But for some reason, he was
leaving or something, and I just happened to look at my watch, I think, or
something, you know. That's -- that's
what I was saying, so I don't know why, but I did.
Q. But you didn't -- you testified here today
that that night was no different than anything else. What was significant about Chapel getting up and leaving?
A. I don't know. I guess I was just standing there at the time or something or
other.
Q. So you don't even know what was significant
about it?
A. No.
Q. And you can't say what caused your
attention?
A. No.
Not other than if I was just standing there in the doorway when he was
getting ready to leave or something or other.
Q. And so the only reason that you think it's
ten o'clock today is because you said it was ten o'clock then?
A. Well, I'm not saying it was exactly ten
o'clock. It was, you know, around ten
o'clock.
Q. Could it have been 30 minutes?
A. I would think -- I wouldn't think 30 minutes
before I would've -- I would have probably put 9:30 instead of ten o'clock.
Q. Could it have been 20 minutes?
A. I'm not saying -- anything could be possible
there. But for some reason I would say
it was closer to ten than it would be 9:30.
Q. But you don't know that today?
A. No.
I mean, that's been two and a half years ago, three years ago.
Q. And there was nothing significant that
night?
A. Not that I can recall.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
MS.
ROGAN: Briefly.
REDIRECT EXAMINATION
BY
MS. ROGAN:
Q. Mr. Wilson, would you say that your memory
of what happened on August 15th was better on August 27th or better now?
A. It's probably a lot clearer August 27th than
it would be now, since that's --
MS.
ROGAN: That's all I have. Thank you.
THE
COURT: Recross?
MR.
PORTER: No, Your Honor.
THE
COURT: Do you wish this witness to
remain on call?
MS.
ROGAN: Yes, Your Honor, telephone call
would be fine.
THE
COURT: Okay. You'll be subject to being recalled. You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MS.
ROGAN: Jeffrey Westbrooks. Jeffrey Westbrooks.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Westbrooks, if you'll be
seated up here, Ms. Rogan will administer the oath.
[The
witness stepped to the stand.]
MS.
ROGAN: Mr. Westbrooks, would you raise
your right hand, please. Do you
solemnly swear the testimony you're about to give in this case will be the
truth, the whole truth, and nothing but the truth?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Would you state your full name and spell
your last name for the record, please?
A. Jeffrey Todd Westbrooks,
W-e-s-t-b-r-o-o-k-s.
Q. Mr. Westbrooks, would you tell us, please,
how you are employed?
A. I'm employed as a firefighter paramedic for
Gwinnett County.
Q. Okay.
How long have you been employed in that capacity?
A. Since 1988.
Q. Okay.
Are you assigned to a specific fire station?
A. Yes, I am.
Q. And what fire station is that?
A. Fourteenth.
Q. Okay.
How long have you been assigned to that fire station?
A. Since 1988.
Q. Okay.
So you've been there throughout the duration of your career?
A. Yes, ma'am.
Q. Tell us, please, where that fire station in
located.
A. It's located at 1600 Highway 13, Buford,
Georgia.
Q. Okay.
Is it connected to or adjacent to the northside police precinct?
A. Yes, ma'am.
Q. Okay.
Are you familiar with the officers at the northside precinct?
A. Some of them. Mostly by sight.
Q. Okay.
Do you know Mike Chapel?
A. Yes, ma'am.
Q. Did you know him back in April of 1993?
A. Yes, ma'am.
Q. I'd like to direct your attention to the
evening of April 15th, 1993. Do you
recall that evening?
A. Yes, ma'am.
Q. Can you tell us, please, what happened that
evening that you recall?
A. That evening we were watching television at
the -- stationed in the day room, several firefighters and several police
officers.
Q. Do you remember how many police officers
there were?
A. Three.
Q. Do you know who they were beside -- well,
was Mr. Chapel one of the police officers?
A. Yes, ma'am.
Q. Okay.
Do you know who the other two were?
A. Yes, ma'am.
Q. And who were they?
A. Sergeant Stone and Officer Reddy.
Q. Did you know both of those two prior to that
night?
A. Yes, ma'am.
Q. Or know who they were, at least?
A. Yes, ma'am.
Q. Okay.
Do you recall what time the officer -- the police officers arrived at
the fire station?
A. It was at various times, but after eight
o'clock up to right around 8:30 or so.
Q. They didn't all arrive together?
A. No, ma'am.
Q. Was it uncommon for the police officers to
come by the fire station to watch TV?
A. Not -- not real uncommon.
Q. Do you recall if there was a particular
reason why they were there that night?
A. I couldn't answer that.
Q. Do you recall if they were interested at all
in the weather, the weather reports on TV?
A. That could be very possible.
Q. Okay.
Do you remember whether or not they were watching weather reports?
A. Yes.
I remember there being severe thunderstorms, warnings being flashed
across local television.
Q. Okay.
So is it the kind of warnings that come on, sort of interrupt the show
or come across the bottom of the screen?
A. Yes, like the scrolling kind across the
bottom of the screen.
Q. Okay.
And that was on the local news station?
A. Yes, ma'am.
Q. Do you recall a time when Officer Chapel
left the fire station?
A. Yes, ma'am.
Q. Okay.
And do you recall what time it was he left the fire station?
A. Yes, ma'am.
Q. What time was it?
A. Approximately ten, 10:15 p.m.
Q. And do you recall if he said anything before
he was going to leave the fire station?
A. Best of my memory is something that sticks
out was just 'a man in a van.' What
that means, I, you know, did not know or pay any attention to really.
Q. Okay.
You didn't understand what he meant by 'a man in a van'?
A. No, ma'am.
Q. Okay.
Were you asked, Mr. Westbrooks, to write out a statement of what had
happened that night?
A. Yes, ma'am.
Q. Okay.
And who asked you to do that?
A. I believe it would have been my officer.
Q. Your superior officer at the fire station?
A. Yeah.
Yes, ma'am.
Q. And who would that be?
A. Captain Hunnicutt.
Q. Captain Hunnicutt. Do you know, Mr. Westbrooks, if Captain Hunnicutt is related to
Detective Hunnicutt?
A. Yes, ma'am.
Q. Okay.
And was is the relation between the two?
A. Brothers.
Q. Do you have any knowledge as to who picked
up the statements?
A. After the fact, yes.
Q. Who did -- who did you learn picked up the
statements?
A. Detective Hunnicutt.
Q. Detective Hunnicutt.
[Defendant's
Exhibit 145 was marked for identification by the court reporter.]
BY
MS. ROGAN:
Q. Mr. Westbrooks, I'm going to show you what's
been marked for identification as Defendant's Exhibit 145 and ask you if you
recognize what the document is.
A. Yes, ma'am.
Q. Okay.
What do you recognize that to be?
A. Just our explanation of what we remembered
the night of April 15th.
Q. Okay.
Is that your -- your explanation of what you remember?
A. Yes, ma'am.
Q. Okay.
Is that in your handwriting?
A. Yes, ma'am.
Q. And did you sign it?
A. Yes, ma'am.
Q. Okay.
Did anyone interview you personally about the contents of this
statement?
A. Recently, no, except for today -- or today.
Q. Today.
Did someone interview you back at this time in April of 1993?
A. The best of my knowledge, I'd say no.
Q. Do you recall when exactly it was you made
this -- wrote out this statement?
A. April '93.
Q. Okay.
Would looking at it refresh your recollection as to the date?
A. Yes, ma'am.
Q. And what is the date?
A. April the 27th of '93.
Q. Okay.
MS.
ROGAN: Your Honor, at this time I'd
like to tender Defendant's Exhibit 145 for the record.
THE
COURT: Mr. Porter?
MR.
PORTER: No objection, Your Honor.
THE
COURT: It's admitted for the record
only.
MS.
ROGAN: I think that's all I have. Thank you.
THE
COURT: Mr. Porter?
MR.
PORTER: Thank you, Your Honor.
CROSS EXAMINATION
BY
MR. PORTER:
Q. Mr. Westbrooks, up until you were asked to
give a statement, did April the 15th have any special significance, other than
it was tax day?
A. No, sir.
Q. So it was like just about any other night
when the cops came in to watch TV, and y'all sat around and watched TV; right?
A. Yes, sir.
Q. And when you're watching TV, do you clock
the time and watch the time pretty carefully?
A. Not unless I'm waiting for a particular show
to come on or something.
Q. Were you that night?
A. No.
Q. Do you recall what you were watching on TV
that night? I mean the show.
A. At which time?
Q. Well, in the time period -- in your
statement you talked about the time period between nine and ten. What specifically were you watching?
A. At that time, I couldn't tell you
exactly. It was, I believe, I'd say
something on a local station, because the weather things were, you know, being
seen. I remember those.
Q. And how many TVs are there in the station?
A. In the station we have three in three different
locations.
Q. And they're all hooked up to cable, aren't
they?
A. Yes, sir.
Q. And so it's entirely -- well, was David
Pierce there?
A. Yes, sir.
Q. And was Sloan there?
A. Yes, sir.
Q. And do you recall -- it's entirely possible
that y'all could have been watching a movie, isn't it?
A. Yes, sir.
Q. And flipping back and forth between the
channels?
A. Yes, sir.
Q. Or it's entirely possible that your memory
of the weather channels could have been from another TV, couldn't it?
A. Very possible.
Q. And so, basically, it was a normal
night. The cops were watching TV when
they should have been patrolling, and you were -- and the firefighters were
waiting for a call; right?
A. I wouldn't go so far as to say they watched
TV with us every night. It was -- I
mean, it kind of come and went in spurts.
Q. Now, if the evidence showed that the movie
that you were watching on TV ended at 9:30, would that change your estimate of
when Chapel left?
A. No, sir.
Q. Why not?
A. Because I can look back from what I had
written at the time two years ago to refresh my statement, and the best I can
remember it was around the time I had stated, and it was basically right before
I went to bed.
Q. But you don't have any independent memory of
it?
A. Well, I mean, yes, I remember it being
around ten. Q. But 'around ten,' could it have been 9:40?
A. Very possible.
Q. Could it have been as early as 9:30?
A. I wouldn't think so.
Q. Could it have been as early as 9:35?
A. I wouldn't think so.
Q. So you would say that he could have left as
early as 9:40, and that's what you mean by 'around ten'?
A. Well, basically, I had wrote ten to 10:15,
you know, and that was when my memory was a lot fresher. Now, I just, you know, two years ago, I'd
just have to say around ten, because right now that's the best that I can
actually remember.
Q. But you didn't really remember it even then,
did you?
A. Yes.
I mean, what I wrote down was the best I remember.
Q. Well, I understand that, and I'm not saying
that you didn't. But there's nothing
significant that makes ten, 10:15, 9:45, 9:40 stick in your mind much one way
or the other, is there?
A. No.
Q. And so ten seemed about as good a guess as
any based on your reconstruction of the events, doesn't it?
A. Yeah, within a, you know, 30 minute time
frame. So if I, you know, would say
ten, I'd give it plus or minus 15 minutes.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
MS.
ROGAN: No, I have nothing.
THE
COURT: Do you wish this witness to
remain on call?
MS.
ROGAN: If he'd remain on telephone
call.
THE
COURT: You'll be subject to being
recalled. You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness.
MR.
MOORE: We call Deputy Sheriff Rapien.
[The
witness was called to the courtroom.]
THE
COURT: If you'll come up and be seated,
please, Mr. Moore will administer the oath.
[The
witness stepped to the stand.]
MR.
MOORE: Would you hold up your right
hand, please. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth, so help you God?
THE
WITNESS: It is.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MR. MOORE:
Q. State your name, please.
A. Robert E. Rapien.
Q. And how are you employed?
A. Gwinnett County sheriff's office.
THE
COURT: Would you spell your last name,
please?
THE
WITNESS: R-a-p-i-e-n.
THE
COURT: Thank you.
BY
MR. MOORE:
Q. And how long have you been a deputy sheriff?
A. A little over six years.
Q. And how long have you been in law
enforcement?
A. Counting the military, about nine, nine
years.
Q. Which branch of military did you serve in?
A. U.S. Army.
Q. You've been a deputy sheriff in Gwinnett
County for six years; is that --
A. Yes.
That's correct.
Q. Okay.
Now, Deputy Rapien, drawing your attention to April the 15th, 1993, do
you know if you were on duty that night?
A. I believe I was.
Q. I'm going to show you Defendant's Exhibit
Number 91, it's a blowup of a log sheet, and see if you could identify that.
A. It appears to be my log sheet on that
particular night.
Q. For April 15th, 1993?
A. Yes.
Q. And examining your log sheet, did you have
occasion to answer a call up in the Buford area?
A. Yes.
I went on a warrant up in the Buford area, yes.
Q. And where was that at?
A. It was at the Buford Manning -- Buford Manor
Nursing Home.
Q. And if I could get you to come down off the
stand a minute, I've got a map here.
A. [Witness complies]
Q. Just take a minute and orient yourself to
this map, where -- this is Peachtree Industrial. Let's see --
A. Do you want me to point out where I went to?
Q. Yeah, where you went to.
A. At that point in time, I'd only been up
there once. I believe it was up in this
section of Peachtree Industrial, up there at the county line, I believe, if my
recollection is right.
Q. And how far would that be on Peachtree
Industrial from down where 20 crosses?
A. Right here.
I'm going to say it's about four miles, possibly.
Q. Do you recall what route you took to get
there?
A. I believe I came up Highway 20 and made a
right on Peachtree Industrial Boulevard.
[Witness returns to stand]
Q. And what time of day or night was that call?
A. My log shows it to be at 9:20 p.m.
Q. Is that in the evening?
A. Yes.
Q. Okay.
And did anybody from the Gwinnett County police department ever
interview you regarding that?
A. No, they did not.
Q. Okay.
MR.
MOORE: That's all I have.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Deputy Rapien, you were in a warrant car
that night, weren't you?
A. Yes.
Q. You were assigned to warrants, so your job
that night was driving around all over the county and arrest people on warrants
you had in your car; right?
A. Yes, sir.
Q. And so you were up at the Buford Manor
Nursing Home to serve a warrant on somebody; is that correct?
A. I was.
Q. Now, the Buford Manor Nursing Home is all
the way up here by Waterworks Drive, almost to the county line, isn't it?
A. I believe it is, sir.
Q. And you were there about 9:20?
A. That's what my log shows, sir.
Q. And then where did you drive from from
there?
A. My next stop is on my log, shows it to be
Shoreland Drive.
Q. And that's up there by the lake, five or six
miles from the nursing home, isn't it?
A. I don't recall how many miles it is, sir,
but it's up in that area by the lake.
Q. And so you were searching out people to
arrest?
A. Yes, sir.
Q. Well, Deputy Rapien, let me ask you, did you
kill Emogene Thompson?
A. No, I did not.
Q. Was there any blood found in your patrol
car?
A. Was not.
Q. Have you been picked out of a photographic
lineup as having driven by the Gwinnco Muffler between 9:30 and ten o'clock at
night on April the 15th?
A. Not that I know of.
Q. Well, do you think you'd be sitting there if
you had been?
A. I don't know.
Q. I mean, you're familiar with the process,
aren't you? You serve warrants.
A. Yes.
Q. Do you believe that if you had been picked
out of a lineup you'd be sitting there testifying?
A. No.
Q. Where do you believe you'd be sitting?
A. [No response]
Q. You'd be sitting over there where Mike
Chapel's sitting, wouldn't you?
A. Could be.
Q. There ain't no 'could be' about it.
MR.
MOORE: Your Honor, I'm going to object
now. He's badgering the witness. He's arguing with him now. He's not asking questions.
THE
COURT: What's your question, Mr.
Porter?
BY
MR. PORTER:
Q. So you haven't been picked out of a lineup,
to your knowledge; is that correct?
A. That's correct.
Q. You haven't been -- you weren't at the
Gwinnco Muffler at any time that night, were you?
A. No, I was not.
Q. You didn't even drive by the Gwinnco
Muffler, did you?
A. Not that I recall.
Q. Do you even know where the Gwinnco Muffler
is?
A. I do know where it's at, yes, sir. I know --
Q. Now -- but you didn't drive -- you know
where it is and you didn't drive by it that night?
A. I knew where it was prior to, also.
Q. Okay.
And you didn't drive by it that night?
A. No, I did not.
Q. And you were five miles away from the murder
scene at twenty minutes after nine, according to your own log sheet, which I
assume is true?
A. Yes.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
MR.
MOORE: No further questions, Your
Honor.
THE
COURT: Do you want this witness to
remain on call?
MR.
MOORE: Your Honor, he can be on
telephone call. I don't think we'll
need him again, but --
THE
COURT: But you want him on call?
MR.
PORTER: Your Honor, I -- I'm not going
to recall him.
THE
COURT: You want him available for
recall if you need him?
MR.
MOORE: If we need him. I don't think we will, Your Honor.
THE
COURT: All right. You'll be subject to being recalled, and you
can come down.
[The
witness stepped down.]
THE
COURT: Call your next witness, please.
MR.
MOORE: We would call Deputy J. J.
Hogan.
[The
witness was called to the courtroom.]
THE
COURT: Mr. Hogan, if you'll take the
witness stand up here, please, Mr. Moore will administer the oath.
[The
witness stepped to the stand.]
THE
COURT: Go ahead and be seated.
MR.
MOORE: Hold up your right hand,
please. Do you solemnly swear the
testimony you're about to give in this case 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. MOORE:
Q. State your name, please.
A. J. J. Hogan.
Q. Okay.
Deputy Hogan, how long have you been a deputy sheriff?
A. Approximately fifteen years.
Q. Was that all in Gwinnett County?
A. Yes, sir.
Q. Okay.
Have you been in law enforcement prior to that?
A. Yes, sir.
Q. And what -- where were you before that?
A. Up in Chicago for about four years with the
Chicago police department.
Q. And what did you do with the Chicago police
department?
A. I worked in the crime lab.
Q. And what were your duties in the crime lab?
A. What we did was process crime scenes, major
crimes: homicides, rapes, arsons, things like that.
Q. Now, calling your attention to April of 1993
or around that time, were you assigned to investigate Emogene Thompson's death?
A. No, sir.
Q. The sheriff's department was not investigating
that death, were they?
A. No, sir.
Q. Did you receive a call from a witness in
that case?
A. No, sir.
Q. A potential witness in the case, perhaps I
should say?
A. No, I personally didn't.
Q. Okay.
Did you have occasion to interview a Mr. Kendrick Dye?
A. Yes, sir.
Q. Okay.
And since you weren't investigating that crime, could you tell the jury
why you were interviewing Mr. Dye?
A. It was a Sunday afternoon. I received a call at my residence from
Sheriff Carsten, who instructed me to go interview this individual, Kendrick
Dye. Supposedly, Mr. Dye had tried to
contact the Gwinnett County police on at least one occasion to let them know
the situation or what he observed, and his calls were never returned.
Q. And did you interview Mr. Dye?
A. Yes, I did.
Q. And did you tape record that interview?
A. Yes, sir.
Q. And without going into what the information
was, did you think the information was important enough to pass it along?
A. Yes, sir.
Q. Okay.
And what did you do with the information?
A. I contacted Mr. Porter at the DA's Office,
wrote him a cover letter, and gave him the tape recording.
MR.
MOORE: That's all I have.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Lieutenant Hogan, based on your experience,
at that point in the investigation would you have thought any information was
important?
A. Absolutely.
Q. Did you have any familiarity with the
particular facts of the investigation?
A. No, sir.
Q. And basically, no matter what Mr. Dye had
told you that he had seen at the Gwinnco Muffler on the 15th, you would have
turned over either to the DA's Office or police department, wouldn't you?
A. Correct.
I didn't think any information should be dismissed.
Q. And you don't know whether or not that
information had any relevance one way or the other -- and I'm not using
'relevance' in the most legal term. You
don't know whether it was important one way or the other in the investigation,
did you?
A. No, sir.
I just took the information for what it was worth.
Q. Right.
And if, in fact, Mr. Dye didn't even get by the Gwinnco Muffler until
11:30 at night, you don't know whether that was important or not, do you?
A. No, sir, I don't.
Q. And you don't know whether or not he more or
less missed everything, do you?
A. I'm not sure what you mean by --
Q. Well, you don't know --
A. -- whether he missed everything.
Q. -- you don't know the time frame of the
incident that we're here on trial, do you?
A. No, sir.
Not at that time, I didn't.
Q. And you don't know whether or not he got
there afterwards or before or anything else?
A. No, sir.
Q. So you were just doing the job the sheriff
told you to do; right?
A. Yes, sir.
Q. And you passed it on to the appropriate
authority?
A. That's correct.
MR.
PORTER: That's all I have. Thank you.
THE
COURT: Redirect?
MR.
MOORE: No questions, Your Honor. We'd ask that he be on call in case we need
him back.
THE
COURT: All right. You'll be subject to being recalled to
testify later. You can come down.
THE
WITNESS: Thank you.
[The
witness stepped down.]
THE
COURT: Call your next witness, please.
MS.
ROGAN: The defense calls Dana Blount.
[The
witness was called to the courtroom.]
THE
COURT: Ma'am, if you'll come on up and
be seated on the witness stand, please, Ms. Rogan will administer the
oath.
[The
witness stepped to the stand.]
THE
COURT: You can be seated.
MS.
ROGAN: And pull yourself up to the
microphone. Would you raise your right
hand, please. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth?
THE
WITNESS: Yes.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Would you state your full name and spell
your last name for the record?
A. Dana Blount, Dana Lynn Blount, B-l-o-u-n-t.
Q. I wanted to ask you a couple of questions
about Mike Chapel. Do you know Mike
Chapel?
A. Yes, ma'am.
Q. Okay.
How long have you known him?
A. Since about '85 -- '84, '85.
Q. Okay.
How did you come to know him?
A. I lived over at Lanier Harbor, and I had an
incident with my children that were taken away from me, and when I called
Gwinnett County he was the officer that came out and took the report; and he,
you know, checked in after that to see what was going on, if I got my kids
back.
Q. When you say Lanier Harbor, what are you
referring to?
A. Lanier Harbor Marina. I lived over there. I did the security over there, and I lived
over there.
Q. Okay.
Is that in Gwinnett County?
A. Yes, ma'am.
Q. Is it in Buford?
A. Yes, ma'am.
It's off Peachtree, I think -- no, Pinetree Drive, right off Buford Dam
Road before you cross the county line, the Forsyth County line, over that way.
Q. Did you have occasion to encounter Mike
Chapel after he responded to that call he made?
A. Yes, ma'am.
My mother was -- she still is the resident manager of the Lanier
Townhouses over on Shadburn Avenue, and a lot of calls -- you know, we would
see him over there, and from there, you know, we'd just become friends, because
it was like he was an everyday person because there was always something going
on in that area.
Q. So you saw him around the area in his
capacity as a police officer quite a bit?
A. Uh-huh.
[Affirmative]
Q. Ms. Blount, I want to show you what's been
previously admitted into evidence as Defendant's Exhibit 103. Do you recognize this?
A. I've seen it.
Q. Okay.
Where have you seen this?
A. I think it was at the gym on the desk.
Q. Do you know where it is this came -- does
this belong to Mr. Chapel?
A. As far as I know, it does.
Q. Do you know where he got it?
A. If I'm not mistaken, some of the children
gave it to him.
Q. Okay.
And what children would those be?
A. The children from Lanier Townhouses. They were called his bubble gum bandits,
because when he pulled up, all the kids would run to the car, and he'd always
have to have bubble gum for them.
Q. I'd like to direct your attention back to
April of 1993. Was there an occasion when
you had to call Mr. Chapel again for help?
A. Yes, ma'am.
Q. Can you tell the jury, please, what was the
occasion and when it was, to the extent that you can remember?
A. I was working for Buford Auto Plaza, and
we'd set up a new system, a Reynolds & Reynolds computer system. And Angela and I, the lady I work for, she
had a -- was doing the deposits, and earlier that day she had messed up some
deposits, so we were there pretty late.
It was around 9:30 or ten. They
had locked my truck in the back at the body shop, so I had to call, you know,
Mike to come up there and help me get the truck out. And so he come up there, and I crawled out the window, and he
helped me get over the fence, and I got my truck out.
Q. All right.
Do you remember when this was?
A. It was about two nights before the murder
happened.
Q. Okay.
So it was roughly April 13th, to the best of your recollection?
A. Around about that area, right. It was during the same week.
Q. Okay.
Was there anything else significant about that incident in terms of him
helping you?
A. Okay.
I don't understand.
Q. Did he have to go into the building to help
you get --
A. No.
He was right there behind Angela's desk where she was doing the deposit,
and he was right behind the desk.
Because it was a desk and it was like a little, you know, area behind
her. You'd have to really see the
office to understand. And then there's
a big window, a double window.
Q. Okay.
So I want to make sure I understand your testimony. He -- he helped you get in through the
window?
A. Well, I had to go out the window. And then he went around to check, and he had
found one of the locks unlocked or something, and that's when I went around and
got my truck. And I asked him, I said,
'Would you please stay here to make sure --' you know, because I was
scared. It was dark. And then I brought my truck back around.
Q. Okay.
So it was nighttime.
A. Uh-huh.
Q. All right.
Were you the only people in the building?
A. Angela and I was, yes.
Q. Okay.
And Mr. Chapel?
A. Yeah.
Right.
Q. Okay.
And inside the room where you said Angela's desk was, what was on the
desk?
A. A lot of money, because what we were doing,
like I said, she had messed up the deposit on the new system, and she was
having to redo it for the next morning, and she had all the cash out of the
safe, and she was there counting it and redoing her deposits. And I would -- my guess, just looking at it
-- because, you know, I wasn't doing the deposit -- it was close to ten
thousand is what it looked like.
Because she had it stacked up.
She had her twenties here, hundreds here, her fives and her tens, you
know. She had everything stacked out.
Q. Okay.
And it was in cash?
A. Right.
There was cash and checks.
Q. Okay.
And Mr. Chapel was, to your knowledge, able to see the cash on the
table?
A. Uh-huh.
[Affirmative]
Q. And he was in the room?
A. He was in -- he was in where if he wanted
it, he could have reached and got it.
He could have got access to the money.
Q. Are you familiar with Michael Thompson?
A. Yes, ma'am.
I've met him on two occasions.
Q. Okay.
Can you describe the occasions on which you have met Mr. Thompson?
A. On the first occasion was right after he had
picked up his mother's car, he came to a shop that I was working at. I was working at Jacket's Automotive, and he
had come up there and was driving his mother's car and was talking to some of
the guys up there. He had association
with one of the guys that worked there.
And I walked out, because I thought it was a customer pulling up, and
that was my job to go out and make the work orders up and get the car ready to
put in the shop, but he wasn't. He was
just visiting.
On
the second occasion, I had went to my brother-in-law's house to pick up his
little four-year-old girl, because there was a lot of stuff going on over there
that my mother and I was trying to get her out of. It was not a place for her to be. And I was sitting on the porch waiting for them to get her
clothes together, and they brought her out to the porch, and I was sitting
there, and I was talking to my brother-in-law, and Mr. Thompson pulled up in
his, you know, black Corvette then, because this was a little over a year
ago. And so I was continuing talking to
Roger. We was talking about the, you know,
deposits and stuff that had to be made, and a green car, what they call a
hooptee [phonetic spelling], I don't know --
Q. I don't know what a hooptee is.
A. -- but it's supposed to be just a -- it's a
big green car, and there were two black guys in it. And Michael went out to the car and he had reached in his pocket
and got some money --
MR.
PORTER: Your Honor, I'm going to object
to this. This is not proper impeachment
of a witness.
THE
COURT: Would you approach the bench,
please.
[Counsel
approached and a conference was held at the bench, as follows.]
THE
COURT: Where are we going?
MR.
PORTER: They're going to try and imply
that Michael --
THE
COURT: No, I'm asking Ms. Rogan. Where are we going?
MS.
ROGAN: Well, she saw a drug transaction
--
MR.
PORTER: She doesn't know that. She doesn't know what she saw.
MS.
ROGAN: -- in which Mr. Thompson was
engaged.
MR.
PORTER: How is that relevant?
THE
COURT: Is any --
MS.
ROGAN: I can go into a different area.
THE
COURT: The objection to that's
sustained. I mean, that just strikes me
as just, on the face of it, so irrelevant it ought not to be inquired
into. It shouldn't have been brought up
to start with.
MS.
ROGAN: Well, I think Mr. Thompson's
credibility is somewhat relevant --
THE
COURT: That's not the way to do it.
MS.
ROGAN: -- to the issues in this case,
but --
THE
COURT: Objection sustained. Do you have any other areas like that you're
going to contemplate going into?
MS.
ROGAN: No.
THE
COURT: All right. Let's move on.
[Bench
conference concluded]
THE
COURT: The objection is sustained. What's your question?
BY
MS. ROGAN:
Q. Did there come a time, Ms. Blount, when you
were interviewed by investigators from the Gwinnett County police department?
A. Yes, ma'am.
Q. Do you recall when that was?
A. A little over a year ago.
Q. And do you recall who it was that came to
interview you?
A. Detective Latty and a Detective Burnette,
Barnett, something like that. I never
was formally introduced to him. He was
in the front seat of the car they put me in.
Q. Okay.
Can you describe him?
A. A big guy and -- I can describe the back of
his head. It was kind of grayish hair,
balding, and a real big guy.
Q. And what was it that they wanted you to
speak to them about?
A. It was something about something Mike was
supposed to have told me, and they wanted to see a letter he had wrote me, and
wanted to know what I had wrote him about.
And -- because they said that they had been told by an inmate --
MR.
PORTER: Your Honor, I'm going to object
to this. They can't -- this is hearsay
in the third degree. She can't testify
to what the officer said an inmate told him.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached and a conference was held at the bench, as follows.]
THE
COURT: I'm not sure I heard everything
that she said. What was the -- what was
the question?
MS.
ROGAN: Well, the question was -- and I
can direct her to answer the question more directly -- is what it was they
wanted her to speak to them about.
MR.
PORTER: And she started going --
MS.
ROGAN: And she got into some of the
context as to why.
THE
COURT: Well, what is it she's going to
say?
MS.
ROGAN: Well, she's going to describe
their discussions with her about the fact that Mike had confessed and was guilty,
and basically trying to get her to implicate Mike as well.
MR.
PORTER: What's the relevance of that?
MS.
ROGAN: Well, I think the conduct of the
police in this case is a relevant issue.
MR.
PORTER: But it was a year ago.
MS.
ROGAN: Well, the investigation has been
ongoing, as we have learned in this case.
As recently as two weeks ago there's been further investigative
developments, and it's certainly part of our defense that the police did not do
a thorough job in this case.
MR.
PORTER: Your Honor, there's been no
showing that this witness has any relevant information as to the night of the
murder. And, also, the methodology of
the police in attempting to get that information has already been discussed. And to put some implication that Mike has
confessed as some kind of implication is not relevant to this case. How they questioned --
THE
COURT: This occurred about a year ago?
MS.
ROGAN: Yes.
THE
COURT: It was about a year after the --
more than a year after --
MS.
ROGAN: Yes.
THE
COURT: And she's going to say the
police misrepresented what had happened --
MS.
ROGAN: In her mind.
THE
COURT: -- to get her to say what?
MS.
ROGAN: Uh-huh, and badgered her.
THE
COURT: It seems mighty remote to me.
MR.
MOORE: Your Honor, it's two officers in
this case, and it was about this case they were trying to get information.
THE
COURT: Who were the officers?
MR.
MOORE: Latty and Burnette.
MS.
ROGAN: Latty and Burnette.
MR.
PORTER: Your Honor, she's not even --
she's not even the state's witness. She
hasn't given any relevant information regarding that interview. There's no evidence she gave any relevant
information during that interview, so the methodology becomes irrelevant.
THE
COURT: So what is it you're expecting
her to say?
MS.
ROGAN: She's going to describe the
fairly coercive atmosphere in which they questioned her about whether she --
THE
COURT: Well, what does that mean? What's she going to say?
MS.
ROGAN: They put her in the back seat of
their patrol car, which was locked from the inside, and questioned her about
what she knew about Mike and whether she knew that he'd confessed, --
MR.
PORTER: Their detective car.
MS.
ROGAN: -- trying to get information
from her about Mike. I mean, I don't
think the state's entitled to just show one aspect of these officers, that they
were completely on the up and up with citizens in terms of investigating this
case.
MR.
PORTER: But the defendants only show --
we're restricted to the proper show of evidence, and we've made that proper
showing. The defendant is restricted by
the same rules of evidence. Those don't
change merely because he's the defendant.
This has -- there's been no showing of relevance. For one thing, the witness didn't give any
information, so how coercive could it have been? The mere fact that she didn't like it or the mere fact that the
officers may have made misstatements to her about the quality or quantity of
evidence is not a matter that is relevant to the guilt or innocence of Michael
Chapel. And merely because the defendant
wants to say the police did a bad job doesn't make it relevant.
MS.
ROGAN: Well, I think we're entitled to
bring in witnesses --
MR.
MOORE: It goes to the credibility of
the two key witnesses from the state, John Latty and Jack Burnette.
THE
COURT: How does it go to their
credibility?
MR.
MOORE: If they're going out there and
giving false information and coercing witnesses --
MR.
PORTER: Your Honor, they've
acknowledged that that's an accepted police practice.
MS.
ROGAN: But they've denied doing it.
MR.
PORTER: Also, your Honor, they weren't
questioned about talking to Dana Blount.
There's no impeaching value to the testimony of Dana Blount.
THE
COURT: Well, the sole issue would seem
to me to be, if it's relevant at all, would be as to the -- as to the -- well,
let me hear your argument again, Mr. Moore.
MR.
MOORE: Well, Your Honor, these are the
two officers that have heard the state's key investigators in this case. They were investigating the case that's
before the Court and not some other case, and they were misstating facts to
this witness in trying to coerce her to get information out of her. And we think that goes to their credibility
in how they treated other witnesses, how other witnesses have been perhaps
encouraged to give information that may or may not be true, and we just believe
we're entitled to go into it.
MR.
PORTER: Your Honor, that's not --
THE
COURT: Objection is sustained.
MR.
MOORE: Your Honor, could we have the
jury go out and make a proffer of what this witness would show for the record?
THE
COURT: Yeah. We can either do it now or do it at the next recess. Now will be all right. We'll do it now if you'd like and go ahead
and get it done.
[Bench
conference concluded]
THE
COURT: I'm going to excuse the jurors for
just a few minutes. If you'll leave
your pens, pads, notes in your seats, they'll be waiting on you when you
return.
[The
jury was excused from the courtroom.]
THE
COURT: Go ahead, Ms. Rogan.
DIRECT EXAMINATION RESUMED - JURY OUT
BY
MS. ROGAN:
Q. Ms. Blount, I was directing your attention
to the interview that you had with Investigators Latty and Burnette.
A. Uh-huh.
Q. Could you describe, please, for us -- well,
first, you know, what happened when they came to your house that day.
A. Well, they didn't come to my house. They had called my house. I lived in Jefferson at the time, in Jackson
County, and they kept wanting to come to my house and talk to me. I didn't, you know, know what to do, so I
told them, I said, 'No, I will meet you in Buford.' I said, 'I'm coming to Buford today.' And he said, 'Well, we can meet you at your house.' I said, 'No, I'll meet you at my mom's.' Because my mom had had dealings with
Detective Latty, so he knew where she lived and he knew who she was.
So
when I got to Mom's, they come in, and Detective Latty walked in the door and
asked me could I step outside. And
Mother said, 'Well, I'll go upstairs.'
And I said, 'Well, I can talk right here,' because no one else was in
the room. And he said, 'No, let's step
outside.' And when we stepped outside
on the porch, you know, he led me to a car and put me in the back seat of a
car.
And
the other officer, I was never formally introduced to him, because he was just
sitting there looking straight ahead.
And finally, I just --
Q. Where was he sitting?
A. He was sitting in the passenger's seat and
Detective Latty was on the driver's side.
And so I kind of looked around and I said, 'Hi, I'm Dana Blount.' And then, you know, Detective Latty said,
'This is Detective Burdette,' or something.
And so they started talking to me and asking me questions and telling me
that they were told that they knew that I knew Mike, and that we were close,
and that he was -- they were told by an inmate that he had called and confessed
to me or told me some stuff, and they wanted to see letters he wrote. And I offered to give them the letters. And wanted to know what we had talked about
on the phone.
And
then they were telling me that he was a cold-hearted person. And I was telling them about the incident at
Buford Auto Plaza, you know, asking them why would he have --
Q. It's all right. Go ahead.
A. -- why would he, you know, take money when
he could have had more money and perfect opportunity. It was a dark place, nobody knew he was there, I was there, or
anything else. And they said, 'Well,
he's not going to hurt you because he cares too much for you.' I said, 'Well, how does a cold-hearted
person care for somebody?' I said,
'Money's money.' And they told me to
get out of the car, but he had to go around and let me out of the car.
Q. You weren't able to get out of the car on
your own?
A. No, uh-uh.
I was not able to get out.
Q. Did it have any handles on it at all?
A. No.
Because he had to -- well, get out of the driver's side. And see, the other guy that's on the
passenger side, Burdette, he never once turned around, but I know they were
trying to record my conversation or something because I kept hearing something
clicking. And -- but then, you know,
Officer Latty, after they told me they didn't need me anymore, got out, went
around, and let me out.
MS.
ROGAN: That's essentially -- I would
offer it in an abbreviated fashion because I realize it contains a fair amount
of hearsay. But the major context of
what I would seek to offer would be the circumstances of the questioning and
the information that was provided by the investigators.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, I would like to
cross-examine for the record, but I'm not waiving any objection to this testimony. I've -- either that or I'll make my
objection now. But we've maintained
that what this witness has said, by her own testimony, is a legitimate
follow-up by the two lead investigators on information that they say they
revealed which -- or that they had obtained.
This witness has no idea whether that information is true or false. She is here to say she didn't like the way
she was questioned. She doesn't say she
was threatened. She doesn't say she was
coerced. She doesn't say that -- she
just didn't like being put in the patrol car, in the back of -- and it wasn't a
patrol car. It was a detective's
car. She didn't like the fact, but she
didn't -- but --
THE
COURT: What is your objection?
MR.
PORTER: My objection is that the
testimony as to this issue is that it is irrelevant to the trial of this case.
THE
COURT: Objection is sustained. Anything else, Ms. Rogan?
MS.
ROGAN: I do have one other line of
questioning with her, but nothing more on that issue.
THE
COURT: All right. You're talking about proceeding on with your
direct examination when the jury comes back?
MS.
ROGAN: That's correct.
THE
COURT: Okay. Bring the jury back, please.
[The
jury returned to the courtroom.]
THE
COURT: Go ahead, please.
MS.
ROGAN: All right. Thank you, Your Honor.
DIRECT EXAMINATION RESUMED - JURY IN
BY
MS. ROGAN:
Q. Ms. Blount, I believe you said you've known
-- well, how long did you say you've known Mike Chapel?
A. '84, '85.
Q. Okay.
So that's maybe 10 or 11 years now?
A. A long time.
Q. Do you know whether Mike Chapel has a
reputation in the community?
A. With the kids, as the cop with the bubble
gum.
Q. Okay.
A. A lot of the tenants at the apartment I
live, you know, they think a lot of him because he's always --
MR.
PORTER: Your Honor, if I may -- if I
may, there are specific questions that need to be asked and Ms. Rogan ask them,
but the witness needs to be instructed that specific good acts cannot be gone
into in establishing --
THE
COURT: State your question, Ms. Rogan,
and listen to the question.
MS.
ROGAN: I will --
THE
COURT: And respond to the question,
please.
MS.
ROGAN: I will direct the question.
THE
COURT: Answer the question.
BY
MS. ROGAN:
Q. Okay.
Do you know whether or not -- whether Mike Chapel has a good or a bad
reputation in the community?
A. Good.
Q. And is that -- is that based on your
familiarity with other people who he knows and who --
A. Yes, ma'am.
Q. If Michael Chapel were to testify under
oath, would you believe his testimony?
A. Yes, ma'am.
MS.
ROGAN: That's all I have. Thank you.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Ms. Blount, you would consider yourself
pretty good friends with Mr. Chapel, wouldn't you?
A. Yes, sir.
Q. And you care a lot about him?
A. Yes, sir.
Q. And you're interested in helping him, if you
can, aren't you?
A. I just tell the truth.
Q. Now, let's go to the doll that you were
shown. Do you know which character this
is, this doll?
A. Arnold Schwarzenegger, The Terminator.
Q. The Terminator?
A. Uh-huh.
Q. And why would the kids pick that movie and
that doll to give to --
A. They said he looks like Arnold
Schwarzenegger.
Q. In The Terminator?
A. Well, they say he looks like Arnold
Schwarzenegger, and kids automatically connect him to the Terminator.
Q. Did he dress like that a lot?
A. I've never seen him dressed like that.
Q. You never have?
A. No, I have not ever seen him dress like
that.
Q. And yet you say you're familiar with him?
A. Right.
Q. So you've basically seen him in uniform most
of the time?
A. Right.
Q. Now, let's talk a little bit about the
Buford Auto Plaza.
A. Uh-huh.
Q. Now, that's a big car dealership --
A. Right.
Q. -- right there at the corner of Buford
Highway and Georgia 20; right?
A. Right, on Highway 20.
Q. And it's got a big, well-lit parking lot;
right?
A. It does in the front. But in the back where the offices are at,
no, sir.
Q. So it's dark back there?
A. Yes, sir.
Q. But it opens every day -- it's open six days
a week; right?
A. Every morning, right.
Q. And it opens early. The service department, in fact, opens
earlier than the rest of the dealership?
A. Yes, sir.
From what I remember when I was working there, it opened around seven in
the morning.
Q. So on the night that you were there with all
this money laying out, there was going to be somebody there the next morning at
seven o'clock; right?
A. The service manager.
Q. And there were two of you there while you
were there?
A. Right.
Q. And you and -- I don't remember the --
A. Angela.
Q. Angela.
So you were both sitting there --
A. Well, at one time --
Q. -- with all this money around.
A. At one time. Because I went on and pulled my truck around, and he stayed there
and was talking to her.
Q. Now, you stated that you believe that Michael
Chapel's reputation was good in the community?
A. Yes, it's excellent.
Q. And that you would believe him under oath?
A. Yes, sir.
Q. Would your opinion change if the evidence in
this case proved beyond a reasonable doubt that he murdered and robbed Emogene
Thompson?
A. No, sir, because I know Mike.
Q. So even if the evidence were to show that he
was a murderer and an armed robber, you would still believe him, you would
still support him?
A. The Mike I know, yes, sir.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
MS.
ROGAN: No, I don't have anything, Your
Honor.
THE
COURT: Do you wish for this witness to
remain on call?
MS.
ROGAN: I do. She can remain on telephone call.
THE
COURT: You'll be subject to being recalled. You can come down.
THE
WITNESS: Thank you.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MS.
ROGAN: The defense calls Van Parker to
the stand.
[The
witness was called to the courtroom.]
THE
COURT: Sir, if you'll take the witness
stand here, Ms. Rogan will administer the oath. Come up and be seated, please.
[The
witness stepped to the stand.]
MS.
ROGAN: Hello, Mr. Parker.
THE
WITNESS: Hi.
MS.
ROGAN: Would you raise your right hand,
please. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Would you move up to the microphone so we can
all hear you, and state your name and spell your last name for the record,
please?
A. My name is Schyler Van Parker, P-a-r-k-e-r.
Q. And you go by Van?
A. Yes, ma'am.
Q. Okay.
Do you know Michael Chapel?
A. Yes, ma'am.
Q. Can you tell us how you know him?
A. I used to work out at the gym he ran, he
owned, and I would help him out some.
Q. And you would help him out some?
A. Yeah.
Q. Is that what you said? I'm just having trouble hearing you.
A. Yes.
Q. In what way would you help him out?
A. During the time that he was on his shift for
the police force, I would watch the gym for him, and I -- that's the best way
to put it, watch the gym.
Q. Okay.
You were sort of the person who ran the gym when he wasn't there?
A. Yeah.
Yeah.
Q. Okay.
Were you generally there when the gym closed?
A. Yes, ma'am.
Q. Okay.
And did people have keys to the gym?
A. There were a few people that had keys.
Q. For after hours --
A. Yes, ma'am.
Q. --
working out? So was it unusual
for people to be working out at the gym late into the evening?
A. No.
Q. Was Mr. Chapel in the habit of stopping by
the gym?
A. Yeah.
He would always stop by at some point on his shift. Not a particular time, but at some point in
his shift, he would always stop by.
Q. Okay.
And do you know what his shift was?
A. It was from three or 3:30 till about eleven,
I think, the evening shift.
Q. And would he stop by while the gym was still
open or after it was closed?
A. Normally while it was still open.
Q. Did he stop by at times after it was closed
to --
A. Well, normally, I was gone, so if he did, I
-- I don't recall a time -- I don't recall very many times I was there after
hours that he stopped by. Maybe he rode
by, but he, you know, never came in, that I recall.
Q. Okay.
Do you recall the evening of April 15, 1993?
A. Not very well, I don't.
Q. And so you don't really recall that night in
particular?
A. There's nothing out of the ordinary that
stands out in mind about that evening.
Q. So do you recall whether or not you saw Mr.
Chapel that evening?
A. I -- if he was on duty, if it was during the
week, I'm sure that he stopped by, but I can't say for a hundred percent sure
that he did because I don't remember.
Q. Do you recall seeing Mike the day after
April 15th?
A. I don't remember if I seen him the very next
day. The next week -- this is hard to
remember, it's so long ago. The week
after the murder -- I don't even remember if I seen him that week.
Q. Were you -- you've mentioned the
murder. You heard about the fact that a
woman had been murdered?
A. Yeah, I had heard about it. If I'm not mistaken, the first time I'd
heard about it was when the gym was searched.
That's -- that's -- that's about the first I remember. I can remember that day because the gym was
searched and things were --
Q. Okay.
And that would have been after Mr. Chapel was arrested?
A. That -- yeah. Yes.
Q. Okay.
Were you there, to your recollection, during the day of April 16th when
--
A. What day would that have been on? Monday, Tuesday, Wednesday or --
Q. Let's use a calendar. I'm going to show you what's been entered as
State's Exhibit Number 1. The 16th is a
Friday. The 15th is a Thursday.
A. If it was a Monday through a Saturday, I was
there. I don't -- I don't particularly
remember that day, but I'm sure I was there.
Q. What hours were you generally there, Mr.
Parker?
A. I would usually come in just a little bit
before he would leave to go on -- to go on his shift.
Q. And you've indicated that that was about
3:30 in the afternoon?
A. I would come in anywhere from twelve to
3:30, anywheres right in there.
Q. Okay.
Do you recall being there earlier in the day on that Friday the 16th?
A. I'm not -- there's no way I'm going to be
able to remember that.
Q. Do you -- so you -- do you have any
recollection of him finding out that there had been a woman murdered?
MR.
PORTER: Objection, Your Honor. Ms. Rogan is leading him. This is her witness.
THE
COURT: It's your witness. Let him testify.
MS.
ROGAN: Well, I thought I said, 'Do you
have any recollection?'
THE
COURT: Restate it. It sounded leading to me.
MS.
ROGAN: Okay.
BY
MS. ROGAN:
Q. Do you recall being there when -- when Mr.
Chapel received a telephone call from the precinct?
A. No.
I don't remember being there for that time.
Q. Is it possible you weren't there at that
time and that you came in later?
A. I don't -- what time was it?
MR.
PORTER: Objection, Your Honor. She's still leading the witness. I know what Ms. Rogan wants to do, and I'm a
prosecutor, and I know how to ask non-leading questions, and I've given some
leeway on this, but it is her witness.
MS.
ROGAN: I will -- I will rephrase my
question.
BY
MS. ROGAN:
Q. Do you have any recollection at all of the
events of April 16th?
A. Not of that particular day, no.
Q. Do you recall that it was approximately a
week -- let me rephrase this. Do you
recall when Mr. Chapel was arrested?
A. I don't recall the date. I remember finding out the next day. If I'm not mistaken, that was the same day
that his gym was searched.
Q. Okay.
So you found out at some point -- because the gym was being searched,
you found out that he was being arrested?
A. Yes.
Q. Did you notice anything unusual in Mr.
Chapel's behavior during the week prior to the time he was arrested?
A. There was nothing -- if there was, it wasn't
enough for me to take a notice to it. I
don't -- no, I don't notice any change in him.
Q. Okay.
So did he appear the same to you during that week prior to the time he
was arrested?
A. Yes, ma'am.
Q. Now, you've made reference to the gym being
searched. And who was the gym searched
by?
A. The police department.
Q. Was that the Gwinnett County police
department?
A. Yes, ma'am.
Q. Were you present when that happened?
A. Not at the time. Afterwards.
Q. Okay.
Did you arrive at the gym sometime later the day that --
A. Yes.
Q. Can you describe what the condition of the
gym was when you arrived?
A. The office had been went through and, you
know, the drawers were out, and things were out on the desk out of the
drawers. Some of the cabinets had been
busted open and the things were out. And
a room in the back of the gym, a door had been busted out, and went through --
and went through. Pretty much just
things were lying around where they had went through things and just left them
lying there.
Q. Were things in disarray in the gym?
A. Yeah.
Q. And I believe you said a door was broken?
A. Yes.
Q. How long after that time did the gym remain
open?
A. The gym stayed open through -- I believe it
was -- it was almost to the end of the year, but it was -- the gym, of course,
was sold to another owner, so -- and it remained open by that owner for a few
months afterwards.
Q. Okay.
So there did come a time -- the gym was sold after a particular period
of time?
A. Yes.
Q. Mr. Parker, did Mike sell a product called
Testron?
A. Yes, ma'am.
Q. Was he selling that product around April of
1993, to your recollection?
A. Yeah, he was selling it about that time.
Q. Okay.
Do you recall how much he would sell a bottle of Testron for?
A. It was $30.
Q. Thirty dollars a bottle?
A. Thirty dollars for a bottle.
Q. Do you have any recollection as to how many
bottles there would be in a particular shipment of Testron?
A. I don't remember the exact number. It wouldn't have been any more than thirty,
at the most, but I don't remember the exact number -- exact number.
Q. Mr. Parker, did anyone from the Gwinnett
County police department ever speak to you back in April of 1993?
A. Not in April, no.
Q. And you've told us your name at the
beginning was, I believe, Scott Van?
A. Schyler.
Q. But you go by Van?
A. Yes, ma'am.
Q. Did Mr. Chapel ever call you the Van man?
A. Yes.
He would call me the Van man or Junior.
MS.
ROGAN: That's all I have. Thank you, Mr. Parker.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Mr. Parker, let me -- let me just make sure
I understand. You don't remember
anything specifically about April the 15th, 1993?
A. No.
There's nothing out of the ordinary that stands out in my memory about
that day.
Q. And so if Mike Chapel had said in a previous
statement that you were going to provide him with an alibi that night, then you
can't do that, can you?
A. No.
Q. You can't say he was there or not or what
time?
A. No.
I can't say for sure whether he was or whether he was not.
Q. And you say you usually stayed until
closing?
A. Yes.
Q. Wasn't that nine o'clock?
A. Yeah.
Q. Didn't you usually close the gym at nine
o'clock?
A. Well, it wasn't on the dot at nine. Nine, you know, 9:30.
Q. So you don't know whether Chapel was there
that night because you didn't stay until -- any later than about 9:30 if that
was a regular night that --
A. Yes, that's right. That's true.
Q. And a lot of nights you were out of there by
nine o'clock, weren't you, if it was slow?
A. Yeah.
Q. And so you can't say one way or the other if
he came by the gym?
A. Not -- not to be one hundred percent sure, I
can't.
Q. And you weren't there when the police
actually did the search, were you?
A. No.
I wasn't there when they did the search.
Q. Now, -- and you didn't come forward to the
police, did you?
A. No.
Q. There wasn't anything -- you knew that Mike
had been arrested?
A. Yeah.
After the gym had been searched I had found out that same day.
MS.
ROGAN: Your Honor, I'm going to object
to this line of questioning. I think
it's shifting the burden onto the defendant.
MR.
PORTER: Your Honor, the -- I haven't
said anything about the defendant. What
I'm going to ask this witness is, if he had had information, could he have come
forward --
THE
COURT: What is the objection?
MS.
ROGAN: I believe that's a
burden-shifting question, Your Honor.
THE
COURT: Objection's overruled. Go ahead.
BY
MR. PORTER:
Q. Now, Mr. Parker, you and Mike were pretty
good friends, weren't you?
A. Yes.
Q. And you worked for him?
A. I wasn't employed by him. I helped him.
Q. Well, you got a gym membership and you
worked out at the gym --
A. Yeah.
Yeah.
Q. -- and you watched the gym for him; right?
A. Yeah.
Q. And so when you were arrested [sic], if you
had -- if it had occurred to you, if you had said, 'No, that can't be; Mike was
up at the gym with me that night,' you would have come forward, wouldn't you?
A. Yes, if I thought that it would have made a
difference if I -- yes, I would have.
Q. Because he's your friend; right?
A. Right.
Right.
Q. And if you had had information that he
didn't do this, that he was with you at the gym, you would have gone to the
police. You would have said, 'I can
clear him,' and you would have done that for your friend, wouldn't you?
A. If I could have proved that he was there at
the exact time of the murder, I would have.
Q. And you didn't have anything to come forward
with, did you?
A. I didn't feel that I had anything that would
make a --
Q. Difference?
A. No.
No. No.
MR.
PORTER: Thank you.
THE
COURT: Redirect?
MS.
ROGAN: Yes, your Honor.
REDIRECT EXAMINATION
BY
MS. ROGAN:
Q. Mr. Parker, do you know what time the victim
in this case was murdered?
A. No, ma'am, I don't.
Q. Okay.
Did you know at the time what time?
A. No.
I still don't know.
Q. Do you know really anything about this case?
A. I just -- well, I know Emogene Thompson was
murdered on April the 15th, and that covers it. That's all I really know.
Q. And where have you learned that information?
A. Through the news, of course, on TV.
Q. At the time that Mike Chapel was arrested,
did you know any of the facts and circumstances of the allegations against him?
A. No.
Q. So you really weren't in any position to
know if you had information that would be useful to the police?
A. No, ma'am.
Q. And no one ever came to ask you if you had
any information?
A. No one.
Q. Do you think if someone had come to speak to
you a week after the time of this incident, you might have been able to
remember whether you'd seen Mike that night or not?
A. Yes, I would have been able then.
MS.
ROGAN: That's all I have.
THE
COURT: Recross?
MR.
PORTER: No recross, Your Honor.
THE
COURT: Do you wish this witness to
remain on call?
MS.
ROGAN: If he can remain on telephone
call.
THE
COURT: You'll be subject to recall, Mr.
Parker. You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MR.
PORTER: Your Honor, at this time the
state would request a brief recess, if possible. We've been going about an hour and a half.
THE
COURT: Yeah. We're due, I guess. Would
you approach the bench, please?
[Counsel
approached and a conference was held at the bench, as follows.]
THE
COURT: Do you have plenty of witnesses
to go to 5:30, six o'clock?
MS.
ROGAN: We should.
MR.
MOORE: I think we'll go after five
o'clock, Your Honor. I can't say exactly
how long.
MS.
ROGAN: Yeah. Yeah.
THE
COURT: Okay. Is this as good a point as any to break for y'all?
MS.
ROGAN: Yes. Yeah, I would request one, too.
I was going to make that request if Mr. Porter didn't.
MR.
MOORE: Your Honor, if the Court would
consider it, we need to talk to Mr. Chapel about some things. If you'd consider giving us about 15 minutes
we'd appreciate it.
THE
COURT: All right. I'll send the jurors for coffee and give
everybody 15 minutes.
MS.
ROGAN: Okay. Thank you.
THE
COURT: Okay. Good enough.
[Bench
conference concluded]
THE
COURT: We're going to take a 15 minute
recess at this point. If you want to
let the jurors get something to drink, smoke a cigarette maybe, then we'll have
time to do it.
Leave
your pens, pads and notes in your seats.
We'll take 15 minutes and then we'll recommence. If you'll go with the bailiffs, please.
[The
jury was excused for the recess.]
THE
COURT: Anything else at this point, Mr.
Porter?
MR.
PORTER: Your Honor, only to note that
it appears that Juror Flowers is in some discomfort.
THE
COURT: She strained her back, I think,
so we'll -- I think she's okay.
MR.
PORTER: We need to keep an eye on that.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll take 15 minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Is the defendant ready?
MR.
MOORE: Yes.
THE
COURT: Bring the jury back, please.
[The
jury returned to the courtroom.]
THE
COURT: Call your next witness, please.
MS.
ROGAN: The defense calls Penny
Mauterer.
THE
COURT: Could you repeat the last name,
please?
MS.
ROGAN: Mauterer.
THE
COURT: All right.
[The
witness was called to the courtroom.]
THE
COURT: If you'll take the witness stand
up here. You can come ahead and be
seated. Ms. Rogan will administer the
oath.
[The
witness stepped to the stand.]
MS.
ROGAN: Would you raise your right hand,
please. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Would you say your name and spell your last
name for the record, please?
A. Penny Mauterer, and the last name is
M-a-u-t-e-r-e-r.
Q. And who do you work for, Ms. Mauterer?
A. I'm self-employed.
Q. And what do you do?
A. I'm a researcher, a consultant, and a
private investigator employee.
Q. Have you participated at all in the
investigation into this case on behalf of the defendant?
A. Yes.
Q. I'd like to show you what's been marked for
identification as Defendant's Exhibit 146.
Can you tell us what that is and if you recognize it?
A. It's a bottle of Testron. I purchased this last night at a body
building gymnasium type of store that also sold products.
Q. Okay.
Do you remember the name of the store?
A. Pumping Iron.
Q. Okay.
I'd like to show you what's been marked for identification as
Defendant's Exhibit Number 147. Can you
tell us if you recognize this and what it is?
A. It's my receipt from last night, the cost.
Q. And this is -- this is the receipt. You got it when you purchased this item?
A. Yes.
Q. What was the purchase price of this item?
A. Thirty-five or thirty -- $35.95.
Q. Would it refresh your recollection to look
at the receipt?
A. Uh-huh.
Q. [Presenting]
A. Yes, $35.95 plus tax.
Q. And what is the name of the product?
A. Testron.
MS.
ROGAN: Your Honor, at this time I would
like to introduce state's -- Defendant's Exhibit 146 and 147.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, although there has
been mention of Testron, this is not evidence of the price of Testron in 1993,
and I don't -- I think it can be -- with that stipulation, it can be admitted,
but I don't think it's relevant as far as the price of Testron in 1993, and
there's been no evidence of that.
THE
COURT: Well, I guess the question is
for purpose is it offered? What is its
relevance?
MS.
ROGAN: It's the price of Testron now,
and also that --
THE
COURT: How is that relevant?
MS.
ROGAN: Well, Your Honor, 1993 was only
two years ago. We had no opportunity to
establish the price in 1993.
MR.
PORTER: Your Honor, there would have
been numerous opportunities. One would
have been some records of the manufacturer.
It certainly wasn't impossible to do.
THE
COURT: Is there an objection from the
state?
MR.
PORTER: Your Honor, I think my concerns
I need to make known, but I don't necessarily have an objection to the
admission of the evidence for whatever weight and credit the jury wants to give
it.
THE
COURT: All right. Well, is there an objection?
MR.
PORTER: No, Your Honor.
THE
COURT: All right. Defendant's 146 and 147 are admitted without
objection.
MS.
ROGAN: That's all I have. Thank you.
[The
witness steps down from the stand.]
THE
COURT: Just a moment. Just a moment.
MS.
ROGAN: Oh, you need to stay.
THE
WITNESS: Sorry.
MR.
PORTER: I get to ask you some
questions.
CROSS EXAMINATION
BY
MR. PORTER:
Q. Let me ask you, based on the discussion we
just had, you don't have any idea what the price of Testron was --
A. Well, actually --
Q. -- in 1993, do you?
A. Not exactly, but I had a clue because I've
made about a dozen phone calls the night before last to establish the places
that sell it, because I wasn't sure if it was health food stores or if it was
--
Q. A gym?
A. Yeah, power houses.
Q. Well, and you don't really know what Testron
is, do you, I mean other than what maybe somebody has told you?
A. It's a -- it's a mass -- muscle builder or
mass builder. It's a -- animal products
are included in the --
Q. So it's kind of a fake steroid?
A. I -- I don't know.
Q. And, on the other hand, couldn't you agree
or don't you -- or do you even know, does the price of these products fluctuate
according to the demand?
A. I don't know.
Q. And wouldn't it be reasonable to believe
that if a product had just come out, they would offer it at a reduced price,
and as the demand grows they might try and make a little more money off of it?
A. From what I could tell from my calls, it's a
lot like a lot of other products. Some
producers consider their products better products, so they have a higher
price. Some maybe use lesser quality products
within the product, so they have a lower price. I didn't find it at too many places.
Q. But the bottom line is you don't know what
it cost in 1993; you only know what it cost last night over in Roswell?
A. [Nodding affirmatively]
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
MS.
ROGAN: Just briefly. Just one more.
REDIRECT EXAMINATION
BY
MS. ROGAN:
Q. Did you require a prescription to purchase
this item?
A. No.
Q. You've indicated that it was somewhat difficult
to find. Once you found it, you were
able to go in and buy it over the counter?
A. Yes.
MS.
ROGAN: That's all I have.
THE
COURT: Recross?
MR.
PORTER: I don't have any other
questions. She can leave the stand now.
THE
COURT: Just a moment, please. Just a moment, please. Do you wish this witness to remain on call?
MS.
ROGAN: She can remain on telephone
call, Your Honor.
THE
COURT: All right. You'll be subject to being recalled. You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MR.
MOORE: We'd call Ms. Terri Duncan.
[The
witness was called to the courtroom.]
THE
COURT: Ma'am, if you'll take the stand
up here and be seated, Mr. Moore will administer the oath.
[Bench
conference concluded]
THE
COURT: You can go ahead and be seated.
MR.
MOORE: Would you hold up your right
hand, please. Do you solemnly swear the
testimony you're about to give in this case 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. MOORE:
Q. State your name, please.
A. Terri Duncan.
Q. And how are you employed, Ms. Duncan?
A. I'm a contractor. I am a paralegal with several companies.
Q. Now, tell the jury about your training and
background, if you would, please.
A. I went to the University of Alabama. I obtained a bachelor's degree in
communications. My specialty was in
photo journalism.
Q. And in connection with the photo journalism,
tell the jury what experience you've had with photography and light meters,
that sort of thing.
A. Throughout my photography in school, we were
required to use light meters to read the light when we were photographing. I also worked for the local newspaper in
Tuscaloosa. I've done some free-lance
work on local magazines and the yearbook and newspapers and stuff around that
area and community.
Q. Okay.
And in your work for the newspaper, did you have occasion to use light
meters?
A. Yes.
Q. And what did you use them for?
A. Various assignments, just measuring the
light whenever it was needed, or any sort of studio type work.
Q. And was that for the purpose of taking
photographs, et cetera, for newspapers?
A. Uh-huh.
It sure was.
Q. Okay.
Are you familiar with the function of light meters, how they work?
A. Yes.
Q. And do you know how to use them in
connection with photography?
A. Yes.
MR.
MOORE: Your Honor, at this time, we'd
offer her to offer her testimony as an expert in the area of measuring light.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, I'm going to object
to her testimony. Pursuant to Rower v.
State, the defense intends to introduce a scientific conclusion, and the state
is entitled to a receipt of that report.
The defense has not provided us with a report, and we have no notice of
this -- of this testimony or of this expert to enable us to rebut it, if
necessary. We are taken by surprise,
and pursuant to Rower, we would ask that this testimony be excluded.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I had seen no report
from this witness before today myself.
THE
COURT: I'm going to let the jury to
step out for just a moment. We'll
recommence in just a moment.
[The
jury was excused from the courtroom.]
THE
COURT: What is she going to testify to,
Mr. Moore?
MR.
MOORE: Your Honor, she would testify
that she went out to the scene of the Gwinnco Muffler shop up at Peachtree
Industrial Boulevard to First Avenue and to the intersection at Georgia 20
there, and that she went out there with a light meter, she measured the light
levels that -- basically, her testimony is going to be at the Gwinnco Muffler
-- she measured it on a cloudy night, too, like it would have been at the time
that the crime occurred here, and that the light levels were so low at the
muffler shop as to be not measurable there.
And then the light levels were very low further up at First Avenue and
at Georgia 20 where the eyewitness claims to have been able to identify
somebody driving by in a car.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, our position is
that this is a scientific experiment and scientific testimony given by this
witness, and that we are entitled to previous notice of this under Rower v. The
State.
THE
COURT: What's the specific language in
Rower as to what it requires? I don't
have the case in front of me.
MR.
PORTER: Your Honor, I don't have the
case in front of me, but the case requires that if the defense is in possession
--
THE
COURT: I understand the general
requirement, but does it require written -- writing of any and every
expert? I don't -- I don't recall the
specific language. What does --
MS.
ROGAN: It's only -- Your Honor, it's
only if the writing is going to be -- the report itself is going to be entered
into evidence.
MR.
PORTER: Your Honor, I don't think -- I
don't think that is a correct statement of the case.
MR.
MOORE: Your Honor, I'd defer to Ms.
Rogan. She participated in the Rower
case, so I'll allow her to argue this point.
MR.
PORTER: Your Honor, it applies in
general. It removed the requirement
that the state was required to put the state on -- or that the defense be
required to put the defense on -- or the state on any notice of any expert
that's going to be called. But it does
put the defense and retains the defense under the same burden of disclosure as
the state is in regard to defense experts.
THE
COURT: Basically, it applies the
statutory requirement of a scientific report the state's obligated to, the case
law makes that applicable in reverse to the defendant.
MR.
PORTER: That's correct, Your Honor,
only to -- and Rower modified a previous rule that required the defense to
disclose all defense experts whether they called them or not, and restricted it
to only those experts which are -- which are actually called at trial. But the law is clear that the burden on the
state is to provide the -- the state cannot evade its responsibility by not having
a written report, and the defendant cannot evade his responsibility by not
having a written report.
THE
COURT: I'm not -- I'm not sure it boils
down in my mind that simple with respect to the written reports. It seems to me there's a more fundamental
question, and that is the relevance and whether or not there's any probative
value in the testimony you offered. I
mean, I guess my question is if her testimony's going to be, 'Well, I went out
with a light meter on some cloudy night --' and this was when? This week?
Last week?
MR.
MOORE: Your Honor, I believe it was --
MS.
ROGAN: A month ago.
MR.
MOORE: About a month ago, Your Honor.
THE
COURT: Why don't you -- why don't you
examine her and let's see what she's going to say.
DIRECT EXAMINATION RESUMED - JURY OUT
BY
MR. MOORE:
Q. Ms. Duncan, directing your attention, could
you tell us when you went out to Peachtree Industrial Boulevard to the Gwinnco
Muffler Shop?
A. It was on August the 7th about nine o'clock
at night.
Q. Okay.
And what were the weather conditions that night?
A. It was overcast.
Q. Was there any moonlight or anything?
A. No.
It was pretty overcast.
Q. And when you went out there, did you take a
light meter with you?
A. Yes.
Q. And did you know how to operate that light
meter?
A. Yes.
Q. Are you familiar with the operation of it?
A. Yes.
This is the only kind of light meter I've used before.
Q. And using that light meter, did you attempt
to measure the light levels there at the Gwinnco Muffler Shop --
A. Yes.
Q. -- on Peachtree Industrial Boulevard?
A. Yes.
Q. What time of night was that?
A. It was between -- I went to three different
locations. The first reading was about
five after nine, and I was done by 9:30.
Q. And when you took the first reading or
attempted to take the first reading there at the Gwinnco Muffler Shop, what, if
any, results did you get?
A. I put the light meter so that the film speed
was at the highest I could, at 8,000, which is the film speed, and I put it so
that the shutter would stay open on the camera for 30 minutes, and I could not
get a reading on it. It said it was
still underexposed.
Q. Okay.
A. There was not enough light.
Q. Okay.
And when you went to the second location, what did you do?
A. It was the same -- same exact readings. The film speed was 8,000 and the shutter
speed was still at 30 minutes, and I still -- it was still underexposed. The light meter -- there wasn't enough light
for the light meter to read.
Q. And that was at First Avenue where you did
that?
A. Uh-huh.
[Affirmative]
Q. And then you went to the intersection of
Peachtree Industrial Boulevard and Georgia 20; is that correct?
A. Right.
Q. And what did you do there?
A. Same thing.
Eight thousand speed film, the shutter speed was set at 30 minutes, and
it still said underexposed; there wasn't enough light for it to read it.
Q. Okay.
And your experience at photography, is it possible to take pictures at
night with cameras?
A. Yes, it is.
Q. Okay.
And how much light do you need to do that?
A. It just sort of depends on the situation. You know, you can always do it flash
photography and stuff. I was doing this
without a flash or anything. I was just
trying to use the available light to try and get a reading, and I couldn't.
Q. Can you take photographs at very low levels
of light?
A. Yes.
Q. Okay.
How low of levels of light would that be on the light meter that you
could get -- after a 30 minute exposure you could get photographs?
A. I don't know that there really is a definite
answer to give you. It's sort of
relative to your conditions and the light around. And, generally, the largest F stop you're going to be able to get
is about a 1.8, and I couldn't even get that.
That's wide open. So 1.8 at 30
minutes.
Q. Okay.
If the light conditions are sufficient for one person to see another
person and identify them, can you photograph them at night?
A. Not necessarily, no.
Q. If the light conditions were such that a
person -- you could clearly see them, would you be able to, with the right kind
of camera, to photograph that person?
Without a flash I'm talking about.
A. Without a flash? I mean, you could always use infrared film, which, you know, is
used often for night photography and stuff like that. But, at least in my experience, especially where I was, like at
the muffler shop and everything, there just wasn't enough light to take a
picture without a flash.
Q. Okay.
But I'm giving you a hypothetical question. If you were in a place where there was enough light to clearly
identify another person --
A. Uh-huh.
Q. -- would you be able, with an 8,000 type
film like you were talking about, would you be able to photograph that person
and get a picture?
A. Hypothetically, yes. I couldn't answer definitely without being
there and actually taking a reading and saying what the light meter says or my
camera says.
Q. Okay.
Have you had occasions to take pictures at night before?
A. Yes.
Q. Okay.
And have you successfully taken pictures without photos [sic] at night?
A. Yeah.
Without a flash? Yeah.
Q. Okay.
And with the type of film you're describing here?
A. I've never used 8,000 speed film, but I've
used a high speed film before in very low light situations and come out with
fine photographs, yeah.
Q. Okay.
And what levels of film did you use?
A. I used 3200 speed film.
Q. So 8,000 would be much more sensitive than
what you used?
A. Yeah.
Q. And you were able to get acceptable --
A. That's very unusual to use that high speed
of a film.
Q. And you were able to get acceptable
photographs at night with 3200 speed film?
A. Uh-huh.
[Affirmative]
MR.
MOORE: Your Honor, that's what we
intend to elicit.
THE
COURT: All right. Mr. Porter?
CROSS EXAMINATION - JURY OUT
BY
MR. PORTER:
Q. Ms. Duncan, you did this test on August the
7th?
A. Uh-huh.
[Affirmative]
Q. When were you retained by the investigator
for --
A. For that particular --
Q. -- for that job?
A. The day before.
Q. And had they asked you to reduce your --
your findings to writing?
A. Yes.
Q. And have you done that?
A. Yes.
I sent the investigators a report.
Q. And so there is a report?
A. Yes.
I typed one up.
Q. All right.
Let me ask you, when you were at the Gwinnco Muffler, were you able to
walk around without using a flashlight or any other ambient light?
A. Yes.
Q. And so you, with your eyes, could see;
right?
A. Right.
Q. So wouldn't you agree that the camera, in
almost every situation, is less sensitive than the human eye?
A. Right.
Q. And so the fact that a light meter at those
intersections tells you there's not enough light to expose film doesn't tell
you anything about what a person could see?
A. Right.
That's only what the -- it's only telling you from a camera's
perspective.
Q. And so you don't really have anything to say
about whether -- and you didn't add headlights, car headlights in this
equation, did you?
A. No.
I turned the car lights off.
Q. So you didn't even really run experiments of
what the lighting conditions at an intersection as two vehicles with their
headlights came through it would be?
A. Right.
MR.
PORTER: Your Honor, we'd renew our
objection to this testimony.
THE
COURT: Do you know how the moonlight
compared on August -- this is August the 7th when you were taking the
measurements?
THE
WITNESS: Uh-huh. [Affirmative]
THE
COURT: Do you know how the moonlight
compared on August the 7th of '95, 1995, when you were doing this, how it
compared to April 15, 1993?
THE
WITNESS: No, I would have no idea.
THE
COURT: Do you know what the light
conditions were -- insofar as ignoring moonlight and ignoring cloud cover what
the light conditions were, light intensity was on August 7th, 1995, compared to
April 15, 1993?
THE
WITNESS: No, I don't.
THE
COURT: Do you know what the comparison
as to any cloud cover that was on August 7, 1995, compared to April 15, 1993?
THE
WITNESS: No, I don't.
THE
COURT: Do you know what any rain
conditions were between those two dates?
THE
WITNESS: [Shakes head negatively]
THE
COURT: I believe you said you took
pictures and your basis was on the pictures, the results in the photographs --
THE
WITNESS: Right.
THE
COURT: -- you got based on various
exposures on August 7th?
THE
WITNESS: Right. I can only measure the light according to a
camera.
THE
COURT: Do you know the effect of the
film speed or film type on whether or not you get a picture in the
circumstances that you tried to take the photographs?
THE
WITNESS: The higher the speed of film
that you use, the less light that is needed.
THE
COURT: How does that relate to what the
human eye will see, do you know?
THE
WITNESS: No, I sure don't.
THE
COURT: What effect would -- the kind of
picture you got, if you got a picture, would be a function of what kind of
shutter speed you were shooting, too, would it not?
THE
WITNESS: The shutter speed, it being
open for 30 minutes, if there was any movement in the photograph or within the
frame of the picture, that would show up in the picture, any movement or
anything like that.
THE
COURT: And it would also be a function
-- whether you got a photograph or not would be a function of the lens
aperture?
THE
WITNESS: The shutter speed.
THE
COURT: Or the lens aperture as well,
would it not?
THE
WITNESS: The lens aperture, that --
that -- no, that really has more to do with letting light in. The amount of light that's left in, the higher
-- the higher the aperture number, the smaller the opening; whereas, the
smaller the number, the larger the opening of the lens. That has more to do with the depth of field
versus any movement or anything like that.
THE
COURT: Well, and the lens aperture
would also reflect on how much -- determine how much light's coming through to
the camera, would it not?
THE
WITNESS: Uh-huh. Uh-huh.
Right.
THE
COURT: And determine whether or not
you've got a picture or not?
THE
WITNESS: So basically what the light
meter was telling me was that even having your shutter open for 30 minutes with
8,000 speed film, even have -- you know, it couldn't even register -- it
couldn't register on its scale; it didn't have a lens that would open wide
enough to let enough light in.
THE
COURT: Do you know how the lens
aperture of the camera you were using would compare to the human eye insofar as
what --
THE
WITNESS: No.
THE
COURT: -- light would be transmitted?
THE
WITNESS: Uh-uh.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Mr. Porter?
MR.
PORTER: No, Your Honor. Only to renew our objection, both on the
issue of the failure to provide the report in a timely manner as it is in -- as
stated in Rower v. State.
Also,
Your Honor, this is evidence that is completely irrelevant. Its prejudice outweighs its probative
value. It is of no value in the
presentation of this case. This witness
cannot say that her experiment duplicates the conditions on April the 15th of
1993. She cannot state whether or not
she knows the conditions are the same as far as the ambient light, and she
cannot state that there is a correlation between her results and what the human
eye is able to see; and, in fact, it was just the opposite. And third of all, Your Honor, she has not
included in a factual replication of the situation that is described by the
eyewitness, and, therefore, we would move to exclude all of this testimony.
THE
COURT: Mr. Moore, anything else?
MR.
MOORE: Your Honor, we would submit the
witness and ask to be allowed to present the evidence.
THE
COURT: Objection is sustained. Did you wish to go further with her
testimony when the jury comes back?
MR.
MOORE: No, Your Honor. I don't believe there's anything else she
can testify to.
THE
COURT: All right. Do you want to cross-examine her, Mr.
Porter?
MR.
PORTER: Your Honor, I think she's only
been questioned as to her qualifications.
I would either like to question her about -- I think there should be
some instruction to the jury regarding why she has left the stand. Either that, or I should be able to ask her
has her testimony been excluded.
THE
COURT: Mr. Moore?
MR.
PORTER: Otherwise, she just disappears
from the stand.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'll leave that to
Court, however the Court wants to handle it.
THE
COURT: You can restate your objection
when the jury comes back and get a ruling in front of the jury, if you wish.
MR.
MOORE: Before the jury comes back,
though, Your Honor, there's another matter we might need to take up. Might we approach the bench?
THE
COURT: Yes, sir.
[Counsel
approached and a conference was held at the bench, as follows.]
MR.
MOORE: Your Honor, in light of Mr.
Porter's objections, we may need to have a ruling from the Court. We have a DNA expert who's going to
testify. We have not provided a name or
the report -- there is no report -- to Mr. Porter. We have not asked for a report and none has provided to us. We haven't done anything to prevent a
report.
Two
of our experts he has spoken to. He's
called and spoken to two of our experts.
Mr. Scott Smeal's called. And
we're not sure that that was right, either, because these witnesses were hired
to assist us in preparing for trial, and the state's been calling and trying to
talk to them.
I
haven't made any complaint about it, but what I'm concerned about is whether or
not this other expert, where there's no report, that I haven't provided a name
to the state, am I under an obligation to do so, I guess, is what I need to
know from the Court. I didn't think so
from reading Rower that I was under an obligation if there's no report.
THE
COURT: Mr. Porter?
MR.
PORTER: I think we're entitled to know
who they are, Your Honor, and if it's Dr. Shapiro and Ms. Atkinson, then we
need to -- we're entitled to know --
THE
COURT: Is that them or is there
somebody else?
MR.
MOORE: There's one other person besides
those two.
THE
COURT: Well, since we had the issue
about the engineer, you know, that was an issue. And I looked at Rower then.
That's the last time I've looked at Rower. We got into the issue on the experts -- let's see, on the cases
with the state's -- well, let's see.
I've forgotten the facts, but, anyway, I looked at the issue of the --
which piece of evidence was it? I can't
remember the -- part of the evidence now that we had the issue --
MR.
PORTER: The RG firearm, Your Honor.
THE
COURT: Yeah, okay.
MR.
MOORE: No, it was the --
MR.
PORTER: That was the test.
MR.
MOORE: It was the engineer's report
that we submitted to you in camera and you provided to --
THE
COURT: Yeah. Well, that was the first one, but there was one in the trial of
this case.
MS.
ROGAN: It was the RG and the absence of
a crime lab report.
THE
COURT: Yeah. And there was a line of cases that talked about, you know,
there's no report so there's no requirement.
MR.
PORTER: Well, Your Honor, there's a
final case, and I can get that for you, that says that the state can't evade
its obligation by saying there is no written report.
THE
COURT: But that was -- wasn't that a
case where they had notes and stuff and they just didn't bother to write them
and put them into the form of a final report?
MR.
PORTER: I think in that case they
instructed the witness not to create a report from his conclusions.
THE
COURT: Yeah.
MR.
PORTER: I think that was the facts of
that case.
MS.
ROGAN: But there's no requirement to
create a report just to --
MR.
PORTER: No.
MS.
ROGAN: -- have a report.
MR.
PORTER: And I'm not insisting on
that. But in this case, we have a written
report.
THE
COURT: Well, considering the ambiguity
in the cases, I guess, at least in my mind, to some extent, the ambiguity of
under what circumstances a written report may be an absolute requirement, when
you consider the gravity of this offense and the gravity of a ruling that would
say, well, because you didn't furnish it officially in a report you can't bring
any witnesses in on behalf of the defendant, you know, I -- you know, I am sure
not going to be anxious to keep out their experts on the basis of that kind of
problem --
MR.
PORTER: Your Honor, at this time, I --
THE
COURT: -- unless clearly -- unless it
is just black letter law that they don't come in.
MR.
PORTER: Under Rower it says clearly
written reports that are prepared. Now,
if Mr. Moore says there hasn't been a report --
THE
COURT: Well, I'll looked at Rower a
while, and, you know, it's like a lot of cases. It sort of depends on what you're looking for as to what you see,
it seems to me, some of it, so --
MR.
PORTER: I can say at this point, Your
Honor -- I can say at this point that on behalf of the state if they'll tell me
the names, I'll withdraw any objection.
MR.
MOORE: Your Honor, I'd ask for a ruling
from the court. If you tell me I have
to disclose them, I'll disclose them, but I'm not going to voluntarily give
them to Mr. Porter.
THE
COURT: Well, it's been a while since I
looked at Rower, so I don't frankly remember enough of the specifics of
Rower. The reason I asked what are the
specifics is because I don't remember it well enough to rule on it at this
point.
MS.
ROGAN: My reading is it's reports that
are to be entered into evidence.
THE
COURT: Well, you know --
MR.
MOORE: I'll tell the Court and Mr.
Porter that I intend to close with my next to the last witness with the witness
I'm talking about, and I don't want to get to Saturday afternoon and discover
that --
THE
COURT: Well, why don't we come back
this afternoon and everybody will break out Rower and anything else that
relates to it.
MR.
SMEAL: Your Honor, I would just like to
note for the record that approximately a month or so ago I did contact Dr.
Shapiro to see if he would discuss the case with me. He declined to discuss the case with me. But I'm aware of no rule that says that the
prosecution cannot contact a defense witness to interview him, and certainly
we're not able to instruct our witnesses not to talk to the defense, and
neither are they. So, I mean, that's --
MR.
MOORE: Your Honor, I don't know there's
any law that says that, but I think it's not very professional to contact -- it
wouldn't be for me to contact somebody in Mr. Porter's office --
MR.
PORTER: Well, let me ask -- let me ask,
Your Honor --
THE
COURT: Since when is professionalism a
basis for an objection?
MR.
PORTER: And Mr. Moore, let me ask you,
have you talked to Gwinnett County Police officers?
MR.
MOORE: Most of them -- most of them
won't talk to us.
MR.
PORTER: Have you contacted them?
MR.
MOORE: Yes.
MS.
ROGAN: But they're not expert
witnesses.
THE
COURT: Well, anyway -- anyway, let's
just everybody break out Rower --
MS.
ROGAN: Okay.
THE
COURT: -- and we'll come back to that
before the day's out and resolve that issue before the day's -- just don't let
me forget it.
MR.
PORTER: Okay. Well, that's -- if it is a problem, I want to disclose it if I
got to today.
THE
COURT: Let's come back to it this
afternoon and resolve it.
MS.
ROGAN: Thank you.
[Bench
conference concluded]
[A
conference was held between the Court and Sergeant Parr, as follows.]
SERGEANT
PARR: Deputy Childs advised me by radio
that that prior witness that was testifying on those pills was in the media
room watching the proceedings.
THE
COURT: Well --
SERGEANT
PARR: I just wanted to let you know.
[Bench
conference concluded]
THE
COURT: Would you approach the bench,
please.
[Counsel
approached and a conference was held at the bench, as follows.]
THE
COURT: Would you approach the bench,
please? We had a report that your lady
investigator is in the media room watching it TV. I don't know exactly how that fits into the rule of
sequestration.
MR.
MOORE: I wasn't aware that she was,
Your Honor.
THE
COURT: You might want to --
MS.
ROGAN: She's there now. I don't think she was previously.
SERGEANT
PARR: No, but Deputy Childs called me
on the radio when she left the courtroom, and told me the one coming out was in
the media room. He didn't know she was
a witness.
THE
COURT: Well, you might remind
them. That's about as good as talking
to the -- talking to your witnesses, I expect, so you might --
MS.
ROGAN: Yeah.
THE
COURT: -- you might remind them that's
the rules in effect.
MR.
MOORE: Your Honor, I wasn't aware she
did.
THE
COURT: Okay.
MR.
MOORE: Was that Ms. Mauterer?
MS.
ROGAN: Yeah.
THE
COURT: Yes. You might -- you might remind her of the rule.
MS.
ROGAN: Certainly.
THE
COURT: All right.
MS.
ROGAN: There was one other thing we
wanted to bring up at the bench.
MR.
MOORE: Yes, Your Honor. We're going to call Officer Carty, who was
Mike Chapel's supervisor, and in light of the Court's earlier rulings, I wanted
to get some direction. We intend to ask
him about his performance as a police officer, his investigative duties, how he
performed them. We intend to ask him
about a number of letters of commendation that he received while he was
supervising him. There are about
twenty-six of them. And I know Mr.
Porter objected earlier that that's injecting character, but he is a police
officer and they've called into question his -- doing his duties as a police
officer here and saying that he committed a crime while he was doing his
duties.
MR.
PORTER: Your Honor, I'm going to object
to that. That's good character about
specific acts of good conduct.
THE
COURT: Well, I think it's sort of prima
facie good character and prohibited unless it relates in some other way to this
case. I mean, I think that's a good
objection unless it's admissible some other way.
MS.
ROGAN: Well, it's our position that the
state has put his performance as a police officer into issue in this case, and
that we're entitled to rebut the allegations of that.
THE
COURT: Well, I think if the argument is
that every police officer who's charged with a crime is therefore, by the
nature of the charge, that's an inference of not doing his job right, and,
therefore --
MS.
ROGAN: It's not just that. It's things above and beyond that, Your
Honor.
MR.
MOORE: One of the key things, Your
Honor, that they've done here, they claim it's his failure to write a report in
this case that shows his guilt, you know.
MR.
PORTER: Your Honor, the failure -- the
failure to write the report is a specific limited issue about -- that tends to
show premeditation, planning, motive, intent and scheme. It does not -- will
not comment on whether Mike Chapel was a good or bad police officer. We have not claimed that he was a bad police
officer, that he didn't generally do his duty, that he didn't generally -- that
he was -- we haven't said anything about him cooping up at the -- at the fire
station on the night -- or not patrolling.
MS.
ROGAN: Yes, you did. This very day you made a comment about that.
MR.
MOORE: Mr. Porter, just a few minutes
ago, Your Honor, was saying -- telling in his cross-examination that he was
probably not conveying information to the detectives and that he was going down
there and perhaps getting information from people and --
MS.
ROGAN: Sending people away.
MR.
MOORE: -- sending them on their way.
MS.
ROGAN: And during cross-examination of
one of the firefighters he made a reference to the fact that he was holed up watching
TV instead of patrolling the streets like he was supposed to be. There have been a number of instances in
which innuendos have been made --
MR.
PORTER: Your Honor, from --
MS.
ROGAN: -- about him not being a good
police officer.
MR.
PORTER: -- from eight days of
innuendo? That position can be held
with a straight face? I mean, Your
Honor, this is a matter of the law.
This is a matter of fact. And
the matter -- and the law is you cannot inject someone's good character except
to general reputation in the community --
THE
COURT: Well, I understand that. I understand that. I'm --
MR.
PORTER: And there's no -- and there's
no showing of relevance as to the issue --
THE
COURT: Well, that's why I'm
asking. I think you're right to kind of
-- it's a prima facie matter unless there's something in the case that opens it
up a bit. That's my -- my question is,
what else is there?
MR.
MOORE: Well, Your Honor, we believe
that it has been opened up by the state in this case.
MS.
ROGAN: Well, in particular, too, there
-- Mr. Chapel had a distinctive investigative technique which he was employing
in this case, it is our contention. The
state is belittling that, but we can --
THE
COURT: I think if you want to, you
know, about the going back and -- you know, I think you've raised -- you've
posed those kind of questions, and I think those are legitimate questions about
technique, about telling folks you've got stuff and going back and sort of
extorting by misrepresentation or whatever, sleight of hand, whatever you want
to call it, inducing folks, guilty people to come forward and admit their guilt
to produce the things they've taken or whatever.
And
you've been doing -- you know, I think you've been doing -- you've been
eliciting that kind of testimony. I think
that's different than having a witness come on and say, now, tell us all the
great things he did and about the, you know, the times he's had citations for
this and citations for that. I think
that's clearly -- it strikes me as just clearly testimony as to good character outside the scope of the statutory
questions.
MS.
ROGAN: Well, in specific, Sergeant
Carty has written evaluations in which he's commented on Mr. Chapel's
investigative technique and --
THE
COURT: Well, I think he can talk about
his techniques. I think he can talk
about the ruses or whatever. And you've
been doing that with other witnesses, and I think you're entitled to do that.
But
I think if you want to say, now, this guy was a really good cop; he did a good
job and he had all these citations and he risked his life for this and got a
citation and, you know, he got the cat out of the tree, saved a kid, and
delivered a baby, and all that kind of stuff, I think -- I think those are
specific instances of good character, whatever specific acts that would -- that
are simply contrary to the law insofar as good character, it seems to me.
I
think that's an objection well made, unless it's opened up somewhere else, and
I don't -- I haven't heard it yet. So I
think that's going to be, you know, unless it's admissible through some other
theory or some other reason, because of some testimony that opens it up, you
know, I think they've got a good objection to it.
MS.
ROGAN: Well, the state has elicited
acts of misconduct that have nothing to do with the crimes charged here.
THE
COURT: Such as?
MS.
ROGAN: Such as huddling up in the fire
house watching TV instead of patrolling the streets.
MR.
PORTER: Your Honor, that goes to his
alibi.
MS.
ROGAN: No, that --
MR.
PORTER: That goes to the witness's
specific memory of that night.
MS.
ROGAN: Not in the context in which it
was raised.
THE
COURT: I don't think so. I don't think so. At this point, I'm going to -- at this point, that's going to be
a matter -- testimony I'm going to sustain the objection to, you know, unless
it comes in some other way. I mean, you
asked the question, and that's the answer at this point. Okay?
MR.
MOORE: Well, that's the reason I was
asking, Your Honor, before we got the witness up here and had the jury here --
THE
COURT: Okay.
MR.
MOORE: -- to go ahead and iron out what
you were going to --
THE
COURT: Well, that's the answer, unless
it changes, something changes it. Okay?
[Bench
conference concluded]
MR.
MOORE: May I have a minute to confer
with Mr. Chapel?
THE
COURT: Yes, sir.
[Pause
in proceedings]
MR.
MOORE: We're ready to proceed, Your
Honor.
THE
COURT: All right. When I bring the jury back, Mr. Porter, you
can state your objection, and you can respond however you wish, Mr. Moore, if
you wish, and we'll rule in the presence of the jury so they'll know what the
ruling is.
If
there are no other questions, this witness will come down. If there's any other questions you want to
pose, we'll proceed with them.
Bring
the jury back, please.
[The
jury returned to the courtroom.]
THE
COURT: What is your objection, Mr.
Porter?
MR.
PORTER: Your Honor, we would object
because the requirements of Rower v. State require that the defense provide the
state with a written report of an expert that they intend to testify, and that
report has not been provided.
The
second basis of the state's objection is that the experiment described by Ms.
Duncan, despite her expertise, does not duplicate the lighting conditions on
April the 15th of 1993 and, therefore, does not provide information to this
jury which would be accurate.
THE
COURT: Mr. Moore, anything you wish to
add?
MR.
MOORE: Your Honor, we don't believe
that Rower would require us to turn over anything in this case. We believe the information that this witness
would testify would be helpful to the jury.
We attempted to duplicate the conditions as closely as possible at a
later date.
It's
impossible for anybody to go back to April 15, 1993, and determine exact
conditions at that time. So we would --
we would ask that the witness be allowed to testify.
THE
COURT: All right, sir. Objection is sustained as to both
grounds. Any other question of this
witness?
MR.
MOORE: No, Your Honor.
THE
COURT: Any question on
cross-examination?
MR.
PORTER: No, Your Honor.
THE
COURT: Do you wish her to remain on
call?
MR.
MOORE: Not in view of the Court's
ruling, Your Honor.
THE
COURT: All right. You're released from any further testimony
in the trial of this case. You can come
down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MR.
MOORE: We would call Officer Carty,
C-a-r-t-y.
[The
witness was called to the courtroom.]
THE
COURT: Officer Carty, if you'll take
the witness stand up here, Mr. Moore will administer the oath.
[The
witness stepped to the stand.]
THE
COURT: Go ahead and be seated, if you
like.
MR.
MOORE: Would you hold up your right
hand, please. Do you solemnly swear the
testimony you're about to give in this case 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. MOORE:
Q. State your name, please.
A. Bill Carty.
Q. And what is your rank -- are you with
Gwinnett County police department?
A. That's correct.
Q. And what is your rank?
A. Sergeant.
Q. Sergeant Carty, how long have you been with
the Gwinnett County police department?
A. Eight years.
Q. And during that eight years, is that -- were
you in law enforcement prior to that?
A. Yes, that's correct.
Q. And where were you in law enforcement prior
to that?
A. City of Atlanta Police.
Q. And how long were you with the City of
Atlanta?
A. Eight years.
Q. What were your duties with the City of
Atlanta?
A. Narcotics and SWAT.
Q. And with the Gwinnett County police
department in 1993, what were your duties then?
A. Narcotics.
Q. And were you a supervisor in that division?
A. In narcotics?
Q. Yes, sir.
A. Yes.
Q. And were you a supervisor of Mike Chapel's?
A. Yes.
Q. Now, how long did you supervise Mike Chapel?
A. Directly, about four -- four, five months.
Q. Okay.
And you said directly. Now, did
you have occasion before that to observe his investigations?
A. Officer Chapel helped us on -- I was in
charge of a street suppression drug unit, and he helped us, along with other
officers in that precinct, at various times.
Q. And could you describe his investigative
techniques?
A. He provided information because he had a lot
of local contacts, and he was good at providing names on street dealers that we
were trying to locate.
Q. And are you familiar with the term called
'running the boo'?
A. No.
Q. Or, to put it another way, bluffing someone?
A. Yes.
Q. Could you describe whether or not Officer
Chapel used those techniques?
A. On suspects or what?
Q. On suspects, yes, sir.
A. No.
I can't describe that.
Q. Okay.
As his supervisor, you don't know anything about that?
A. No.
Q. Would you say that Officer Chapel has good
investigative techniques?
A. Yes.
Q. And did you have occasion to do evaluations
on his techniques?
A. Yes, I did.
One.
Q. Sir?
A. One.
Q. And were your evaluations of his
investigative techniques, were they good?
MR.
PORTER: Your Honor, I'm going to object
to this. This is improper injection of
good character, and it is not done in the statutory fashion.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'm not going into
his character. I'm going into his
abilities and his investigative techniques as a police officer. Those have been called into question in this
trial, and I think I have a right to ask questions about it.
MR.
PORTER: Your Honor, an evaluation
implies either a good or bad method or a person, and it is character evidence
thinly disguised. And Mr. Moore is
aware that there is a statutory method in which good character evidence can be
brought into evidence.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Objection is sustained.
BY
MR. MOORE:
Q. Because of his investigative techniques that
you observed, did you believe that Officer Chapel would be a good detective?
A. Yes.
I recommended him for the detective division when I did his evaluation.
MR.
MOORE: That's all I have of Officer
Carty.
THE
COURT: Mr. Porter?
CROSS EXAMINATION
BY
MR. PORTER:
Q. Sergeant Carty, were you present with other
members of the Gwinnett County police department when Chapel's gym was searched
on April the 24th of 1993?
A. Yes, I was there.
Q. And were you with Investigator Tkacik when
he discovered the clear plastic rain cap?
A. No, I was not.
Q. Were you -- did you observe that clear
plastic rain cap?
A. I don't recall that, no.
Q. Let me ask you, was that search done in the
standard accepted practice of the Gwinnett County police department or any
other police department which you've been associated with?
A. That's correct.
Q. Let me ask you, you stated you're not
familiar with Mr. Chapel's investigative techniques; is that correct?
A. That's correct. Officer Chapel was assigned to the uniform division. When I did his evaluation I recommended he
be transferred to detectives because he had been there five or six years, and
needed to expand his horizons, and I felt like that he had worked in Buford long
enough to go to detectives.
Q. So your evaluation wasn't really based on
any observation of his potential as a detective?
A. Well, he -- he was helpful to my unit in
providing information on street dealers and narcotics traffickers.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Redirect?
MR.
MOORE: Just one question, if I could.
REDIRECT EXAMINATION
BY
MR. MOORE:
Q. Sergeant Carty, is there anything
incriminating about a Gwinnett County police officer having a rain cover for
his hat?
A. Not to my knowledge.
MR.
MOORE: Thank you.
THE
COURT: Recross?
MR.
PORTER: I have no recross for Sergeant
Carty, Your Honor. We would ask that he
be released. I believe he has to work
tonight -- I'm sorry, he's on vacation.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we don't intend to
recall this witness, and since he's on vacation, we'd ask he be released, also.
THE
COURT: You're released from any further
attendance at the trial of this case.
You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness.
MS.
ROGAN: The defense calls M. D. Powell.
[The
witness was called to the courtroom.]
THE
COURT: Officer Powell, if you'll take
the stand, and go ahead and be seated, please, Ms. Rogan will administer the
oath.
[The
witness stepped to the stand.]
MS.
ROGAN: Officer Powell, would you raise
your right hand, please. Do you
solemnly swear the testimony you're about to give will be the truth, the whole
truth, and nothing but the truth?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY
MS. ROGAN:
Q. Would you state your name and spell your
last name for the record, please?
A. It's Michael D. Powell, P-o-w-e-l-l.
Q. What is your position at -- or, well, where
are you employed?
A. The Gwinnett County police department.
Q. And what is your position at the Gwinnett
County police department?
A. Currently signed to the special
investigative section.
Q. What is your rank?
A. Lieutenant.
Q. For how long have you been with the Gwinnett
County police department?
A. A little over 22 years.
Q. And what do your duties entail in your
current position?
A. Supervision of the narcotic squad, organized
crime units.
Q. What was your position or duties back in
1993?
A. Our intelligence unit was separate from the
narcotics unit, and I was in charge of it.
We acted as a support unit and worked organized crime, a support unit
for the other investigations in organized crime.
Q. You were in investigations? Is that -- I want to make sure I heard that.
A. [Nodding affirmatively]
Q. Were you involved in the investigation into
the death of Emogene Thompson?
A. As a support unit, yeah.
Q.
And what precisely was your role in that
investigation?
A. We compiled information that was gathered by
the investigators on the investigation.
Q. When you say you compiled information,
precisely what information did you compile?
A. Telephone records, checking accounts, MDT
records from radio, radio logs, all types of information.
Q. Did you bring those records with you today?
A. No, I didn't.
Q. Were you requested to?
A. Yes, I was, but they were turned over to the
district attorney's office with the investigation.
Q. Is there a
reason why they were turned over to the district attorney's office?
A. They were turned over to it at the time the
investigative reports were turned over to the district attorney's office on the
case.
Q. So you do not have custody of those any
longer?
A. No, I do not have custody of them.
MS.
ROGAN: Might I have one moment, Your
Honor?
THE
COURT: Yes, ma'am.
MS.
ROGAN: May we approach, Your Honor?
THE
COURT: Yes.
[Counsel
approached and a conference was held at the bench, as follows.]
MR.
PORTER: Your Honor, this is a computer
compilation of records that was conducted -- that the Court has conducted an in
camera inspection of. It is telephone
records, financial records. It is the
basest form of hearsay. It is not
complete. It is not accurate. It was an experiment that was attempted
during the course of this investigation and was terminated. And the state makes the strongest objection
of going into the contents of that document.
THE
COURT: Is this the -- is this the
northside precinct -- is that what it is?
MS.
ROGAN: No.
MR.
PORTER: No, sir. This is the -- this is the five volumes of
computer printouts.
MR.
MOORE: Your Honor, when the police
department does an analysis of something and draws conclusions from it and
passes that information on, we believe we'd be entitled to go into it on
cross-examination. We're not limited --
MR.
PORTER: You're not on
cross-examination.
MR.
MOORE: We're not limited to -- Your
Honor, this is obviously a hostile witness.
He's part of the investigation against Mr. Chapel, and we would ask the
Court to declare him so, and we believe that we are entitled --
THE
COURT: Let me ask, what records are we
talking -- I don't understand what we're talking about.
MR.
PORTER: Your Honor, I can get you -- I
can get you a copy of it.
MS.
ROGAN: Okay.
[Pause]
MR.
PORTER: Elizabeth, can I use yours?
MS.
ROGAN: Sure. Sure. Go ahead. It may take a minute.
MR.
PORTER: Your Honor, this will give you
an idea. It was color coded and it is
just printouts of various information.
MS.
ROGAN: Well, the point, Your Honor, is
that there were original documents that were obtained by the police department:
phone records, financial records, MDT logs.
Those documents exist. I had --
we had subpoenaed this witness to bring them.
I was under the impression that he had brought the original
documents. He's now telling us that he
turned them over to the district attorney's office. The documents exist. To
the extent that this witness evaluated the information and drew conclusions
therefrom, I think we're entitled to explore what his conclusions were.
THE
COURT: What does this show? I mean, my question is still what is it?
MS.
ROGAN: It shows a number of different
things. I mean, there's -- there's --
THE
COURT: I mean, I'm not asking
conclusions --
MS.
ROGAN: Okay.
THE
COURT: -- but what is this? What are these records?
MS.
ROGAN: Oh. These are records of -- it's a day-by-day summary or just
listing, really, of any telephone calls that were made that were deemed by the
district attorney's office to be relevant or the police department to be
relevant to the case. Financial records
--
THE
COURT: Whose financial records?
MS.
ROGAN: Mr. Chapel's.
THE
COURT: He knows what those are --
MS.
ROGAN: And Ms. Thompson's --
THE
COURT: -- doesn't he?
MS.
ROGAN: Excuse me?
THE
COURT: I mean, they're his records;
right?
MS.
ROGAN: Right. Right. The records we can
get in. Otherwise, the phone --
telephone records, as I said, of various parties in the case.
THE
COURT: Okay. Are these calls made from the police department?
MS.
ROGAN: Some were made from the police
department, some from Mr. Chapel's home, some from Ms. Thompson's home, some
from the gym. Those were the four.
THE
COURT: Okay. These are just -- where do these printouts come from?
MR.
PORTER: They were created from the
information that was given to Lieutenant Powell, and he printed them out.
THE
COURT: Okay. This is -- they went out and investigated, and they got all this
stuff together and then they put it in some kind of format and put it in a
computer?
MR.
PORTER: That's correct.
MS.
ROGAN: That's correct.
THE
COURT: And this is a printout of what
was put in the computer?
MS.
ROGAN: That's correct. Well, he has -- right, he has the original
information or he should have the original information.
THE
COURT: And this is a summary of the
investigative information in a computerized format?
MS.
ROGAN: That's correct.
MR.
PORTER: Your Honor, this would be
tantamount to admitting a police report.
THE
COURT: Well, I guess --
MS.
ROGAN: All I want to --
THE
COURT: -- I'm not talking about
admitting it.
MS.
ROGAN: No, I don't want to admit that.
THE
COURT: I'm talking you want to see it;
is that right?
MS.
ROGAN: I don't want to admit his
report. I wanted to admit the original
records from which he compiled the database there in the custody of the police
department, but I think we're entitled --
THE
COURT: Well, I wonder what those
are? That's probably ten boxes or something,
don't you imagine?
MS.
ROGAN: Well, I --
MR.
PORTER: Your Honor --
THE
COURT: I don't know.
MR.
PORTER: That's the problem.
MS.
ROGAN: I mean, if that's --
MR. PORTER: That's the problem with what it is. The information that's in there is not -- we
didn't pull telephone records. All we
did was we subpoenaed them and they were given to us, a list of telephone
numbers by the -- by Southern Bell.
Those telephone numbers were then blue-booked, and it was all entered
into the computer. I mean, it's just --
it is hearsay upon hearsay upon hearsay.
MS.
ROGAN: I'm talking about the original
records. That's what we wanted, were
the original phone records. By the time
Mr. Moore and I got involved in this case, Your Honor, a lot of those had been
destroyed. They don't keep them. This is our only access to that information.
THE
COURT: These are records furnished by
Southern Bell to the police department?
MS.
ROGAN: That's correct. Southern Bell provided these records to the
police department, and they were given to Mr. Powell, who then created a
database.
THE
COURT: Okay. And these are the -- this is basically a -- what you want is the
phone records; is that right?
MS. ROGAN: I want the phone
records that he used for the database, and I want the original MTD -- MDT logs
that he used for the database.
THE
COURT: What's an MDT log?
MS.
ROGAN: It's a computer --
MR.
PORTER: Mobile display terminal.
MS.
ROGAN: Right.
MR.
PORTER: It's the computer inside the
car.
MS.
ROGAN: It's the computer communication
system between patrol cars.
THE
COURT: Okay. I recall seeing references to it in camera, but I didn't even
know what an MDT was.
MS.
ROGAN: Yes.
THE
COURT: Okay.
MR.
MOORE: Phone records, Your Honor, they
destroy them, I understand, after six months.
MS.
ROGAN: We tried to get them.
MR.
MOORE: And by the time we got in the
case, they had already been destroyed by the phone company.
THE
COURT: Okay. So what you want to see is the Southern Bell records of the phone
records they had?
MR.
PORTER: I don't think that's what
Lieutenant Powell's -- is in reference to, Your Honor. He turned those original notebooks over to
us. I don't have custody of the
original telephone records.
MR.
MOORE: We subpoenaed them.
MS.
ROGAN: We subpoenaed them from the
police department.
MR.
MOORE: And he said he turned them
over. We don't know where they are.
MR.
PORTER: Well, Your Honor, I can't say,
but I'm objecting to getting into that book.
[Indicating]
MS.
ROGAN: Well --
THE
COURT: And -- well, what's the basis
for the --
MS.
ROGAN: -- the only reason -- I mean, I
wanted to lay the foundation for him being able to testify about his
conclusions by introducing the original records. If the state will let me question him about what his conclusions were
in the absence of having those records in the record, then I don't have to have
those records in the record.
THE
COURT: Well, what is it you want to ask
him?
MS.
ROGAN: I want to ask him about the
conclusions that he drew after analyzing the data that he'd put into the
database.
MR.
PORTER: That is the province of the
jury --
THE
COURT: But his conclusions about what?
MS.
ROGAN: About patterns, financial
patterns, MDT traffic patterns, phone calls.
THE
COURT: I mean, his opinion like
what? His opinion --
MS. ROGAN: Well, no.
He wrote a general summary report that was provided to us. I submit it was required under Brady. His conclusions are favorable to the
defendant, and I think we're entitled to elicit --
MR.
PORTER: Your Honor, but that would be
like asking --
THE
COURT: But what if he had a -- take it
to an extreme, sort of a logical extreme, and then what if this witness says,
'Well, you know, I reviewed all this in the investigation and I think he's
innocent,' or 'I think he's guilty.'
MS.
ROGAN: Well, that's -- right.
THE
COURT: You know, I mean, how is that
admissible?
MS.
ROGAN: He's making factual -- I'm not
-- he's not making any judgment on the case.
MR.
PORTER: Your Honor, he --
MS.
ROGAN: He's making factual conclusions
about whether there's a pattern.
THE
COURT: Well, that conclusion is a
judgment.
THE
COURT: I mean, by definition, that's
what a conclusion is.
MR.
PORTER: He makes conclusions, Your
Honor, like, 'By 1993 the defendant's financial position was improving.' There seems to be a mysterious infusion of
cash money into the accounts at appropriate times. One of the things --
THE
COURT: Those are the kind of things you
want to inquire into?
MS.
ROGAN: Yes. Also his findings. I
mean, this is not a -- this is a conclusion based on his expertise in working
at the --
THE
COURT: I mean, you say findings, but
basically what you're saying is that's his opinions; right?
MS. ROGAN: Well, no, not -- the point I'm about to get
to is, for instance, with phone records.
There is no record of Mr. Chapel making a telephone call to the -- to
the victim. Now, that is clearly
essential to our --
THE
COURT: Well, it seems to me that's a
fact. If you inquire --
MS.
ROGAN: Well, how else can we elicit it
other than through Mr. Chapel? I think
we're entitled --
THE
COURT: Well, if this witness knows and
he reviewed all the records --
MS.
ROGAN: Right.
THE
COURT: -- and he reviewed all the
records, he says, 'I went through all the records, and I didn't find a
telephone call,' it seems to me that's a legitimate question and answer you can
get. I mean, that's -- it seems to me
that's a fact.
MS.
ROGAN: Well, I'm anticipating that the
state's going to insist that the foundation for his finding be established, and
that's why I'm trying to establish.
THE
COURT: I mean, if you -- if you --
MR.
PORTER: Your Honor, I'll just say that
if they want to go through and they want to say, 'Did you review financial
records? Did you review phone records?'
and 'Did you review MDT records?' and they want to ask questions like, 'Could
you find a telephone call from the precinct to the victim --'
THE
COURT: Yeah. I think that's a legitimate question.
MR.
PORTER: I don't have a problem with
that.
THE
COURT: And I think they're entitled to
that.
MR.
PORTER: I don't -- I don't disagree
with that. But what I'm concerned about
here is, number one, some type of submission of the document, because the
document is clearly --
MS.
ROGAN: I wasn't intending to submit
that.
MR.
PORTER: -- and the second -- well, when
you go into the contents, you're submitting it. So, you know, if we get into a page-by-page follow-through of the
document -- and the second thing is, the conclusions of Lieutenant Powell, as
much as I like Lieutenant Powell and respect him, number one, in this case
they're flawed and they were ignored.
But, number two, they are -- this was a project. This was a -- this was a test program.
THE
COURT: Well, frankly, I don't, test or
not, I don't think that matters.
MR.
PORTER: But the second thing is, is his
opinion as to whether his financial statement was improving or getting worse is
--
THE
COURT: Well, I'm inclined to
agree. I mean, if you want to say,
'Well, what's your opinion of all this?'
Well, who cares what his opinion is of all this? I mean, what relevance is it? How has that got any probative value? How is that admissible?
MS.
ROGAN: Because he's -- he's a
quasi-expert in that field. That's why
he was asked to do this is because he has the expertise to evaluate data.
THE
COURT: I don't think so. I don't think he's a CPA, I don't think he's
a financial analyst, you know. I mean,
you can take any detective in Gwinnett County and tell him to go through these
financial records and tell me, you know, does he have more money, has he got
more money now in his bank account than he had then. You know, was there any tight squeeze at some point in time or
did he have plenty of cash at some point in time. I mean, I don't think that makes him an expert to represent -- give
a financial opinion as to, you know --
MR.
PORTER: Your Honor, and this is not a
matter that requires an expert opinion.
If they want to show an improving financial situation, they have
absolute access to the records.
THE
COURT: Well, I think that's a matter of
public -- that's a matter of fact, you know.
MS. ROGAN: I think it's
also relevant, Your Honor, that this witness created a report in which he
concluded that there was no unusual pattern of financial activity, which
completely flies in the face of the allegations the state is --
THE
COURT: I mean, insofar as his
conclusion, so what? I think you can
inquire as to his knowledge of the facts which show that, and you can argue it,
and the jury can conclude. But as far
as saying his opinions on -- you know, what's your opinion based upon all this,
you know, I don't think that's admissible.
I think if you want to inquire as to his investigation, what he knows
about the facts, you know, assuming it's, you know, not hearsay or assuming
there's not some objection to it, but as far as what he knows, what he knows of
this investigation and what he saw, what knowledge he has of those things, I
think you're probably entitled to inquire into that.
MS.
ROGAN: Well, his knowledge is derived
from looking at these reports, looking at the phone -- the records. So how do I get around asking him how he
learned what he learned without introducing the records?
THE
COURT: Well, I'm just sort of thinking
out loud, but it seems to me that if somebody reviews all the phone records and
there is no entry of a particular phone call, then he's entitled to testify
about that.
MS.
ROGAN: And what if there are entries of
other --
THE
COURT: I mean, how else would you prove
a negative? I mean, if he evaluated, if
he looked, he sat down and looked at all the records of the phone calls made
from a particular phone number, and there is not a call to some particular
place and he -- it seems to me he's entitled to testify to that.
MS.
ROGAN: Well, what if there are calls to
other specific places that I want to question about?
THE
COURT: Well, to expedite the matter, it
may be nobody cares. It may be -- it
may be that if, as a matter of fact, from looking at all of this, you know,
there is no record of a call to someplace, if there are two instances or
records of some places, it may be that everybody just wants to stipulate, well,
let him testify to that, and get on down the road with it, if that's what -- if
that's what you want to do.
MS.
ROGAN: Well, there are a number of
areas I want to go into. I mean, I
don't know --
MR.
PORTER: And I want to see the proffer
before I'm prepared to stipulate.
MR. MOORE: Your Honor,
also, I would insist that the police department produce the underlying of these
records, too, because there's been a lot of mistakes in this case, a lot of
things that didn't turn out to be the way they said they were, and I don't
think we ought to have to take their word for it that they didn't find anything
or that they did find anything. I think
we ought to be --
MR.
PORTER: Your Honor, now they're saying
they want to -- now they're saying -- they want to use that as the basis of the
testimony, and now they're saying it's not reliable. What's their choice?
MR.
MOORE: Your Honor, we want to see the
originals. I mean, I think we're
entitled to them, and we subpoenaed them.
MR. PORTER: I don't know where the originals are.
THE
COURT: Well --
MR. PORTER: The original file was brought over here from
the police department for the Court's review, and I still retain custody, but
there's nothing -- when the in camera was done, we directed all paperwork to be
brought over here. And it was. It was delivered to the Court. And it's now currently in my custody before
it's returned back to the police department in the appropriate time when this
case is over. There's not -- I'm not
hiding anything from anybody. I don't
have the records, to my knowledge.
THE
COURT: Okay. And those are the records of the phone --
MS.
ROGAN: The phone records. The financial records, I mean, we do have
access to ourselves.
THE
COURT: It's still not clear to me, I
mean, where we're going. I mean, I
don't understand where -- I don't understand.
We're kind of going around and around, and I don't understand much more
now than when we started about what it is you want and where we're going with
--
MS.
ROGAN: I want to elicit what his
findings were from the facts that were presented to him.
THE
COURT: You want his conclusions?
MS.
ROGAN: Yes.
THE
COURT: And how is that admissible?
MS.
ROGAN: And what patterns he saw.
THE
COURT: How are his -- how are his --
MS.
ROGAN: Because that was the job he was
asked to do.
THE
COURT: Well, every officer may have
that job, but that doesn't make it admissible.
MS.
ROGAN: But he looked at specific
data. He looked at facts.
THE
COURT: Well, so what? It seems to me that you can ask him
questions about what he knows and about facts, but that doesn't mean because he
knows some facts that his opinions come in along with it. For any witness, including a police officer,
how his opinions, his conclusions are based on, how is that prima facie
admissible just because he knew some facts about it?
MS.
ROGAN: Every police officer who's
investigated this case has testified to what his conclusions were based on
facts he learned somehow along the way.
THE
COURT: Such as?
MS.
ROGAN: I mean, Lieutenant Latty
testified that it was his conclusion that Mike was the one responsible for the
murder. I mean, that was a conclusion
of his. It's not -- it's not a fact --
it's not, you know, that's not hard data he's testifying to. That's his conclusion based on things he's
learned.
THE
COURT: I don't recall Lieutenant Latty
taking the stand and testifying, 'I think he's guilty of murder.'
MS.
ROGAN: Investigator Burnette -- he
didn't say that. You can be sure I
would have objected.
THE
COURT: Yeah. That's my point.
MS. ROGAN: But he said that he -- that they had no
other suspect. That's their
conclusion. That's not a fact. They clearly had other suspects that they
didn't look at. But that's their
conclusion that he was the only suspect, based on their evaluation of
information. I don't see how this is
any different.
MR.
PORTER: I didn't hear an objection, and
I'm objecting to this. I think the Court
has said clearly just because one side has gone into something that may not be
admissible doesn't mean it's right. And
I'm saying this ain't right.
THE COURT: I don't think
it's a quid pro quo. I don't think
that's a rule of evidence. But anyway
-- well, tell me what specific records you want. Let's just take them one by one.
What do you want?
MS.
ROGAN:
Okay. I wanted to look at MDT
logs. We can start with those.
THE
COURT: Okay. The originals?
MS.
ROGAN: Yes.
THE
COURT: And where do the originals come
from?
MS.
ROGAN: The police department.
MR.
PORTER: They come from the police
department, but I don't know if I have them.
As a matter of fact, I'm not sure, Your Honor, that there are MDT logs
in the sense that we think about them.
They're not paper, they're -- it's computer traffic. I think it's in the form of some kind of
tape.
THE
COURT: Okay. So one way or the other you get a printout.
MR.
PORTER: I think.
THE
COURT: And all the printouts are the
same. It's just a matter of punch --
you punch it and it spits it out.
MR.
PORTER: I can't answer that,
Judge. I don't know.
MS.
ROGAN: He's got page after page after
page of entries where it shows where people were at a specific time.
THE
COURT: Okay. Now, are you objecting to furnishing those?
MR. PORTER: No.
I just don't know that I can. I
don't know that I have them.
THE
COURT: All right. So if he's got them, he says he's going to
give them to you. And once you've got
them, what are you going to do with them?
MS.
ROGAN: I want to ask this witness
whether he evaluated them on a day-by-day basis.
THE
COURT: Well, if he says yes, then what?
MS.
ROGAN: And then I want to ask him, for
instance, did Mike Chapel use the MDT a lot?
THE
COURT: All right. And then what?
MS.
ROGAN: Did he communicate with anyone
in particular with some frequency?
THE
COURT: Any objection to that? I mean, that's what the records show. I guess it's a business entry.
MR.
PORTER: Up to that point, Your Honor, I
don't think so.
THE
COURT: Okay. All right. And what else?
MS.
ROGAN: Well, I want to find out -- ask
them then who --
MR.
MOORE: One thing, too, if the printout
doesn't exist right now, and the other tape will be printed out, we take the
position the subpoena requires a printed out -- I mean -- of the traffic data
--
THE
COURT: Well, that's a separate matter,
though. Let's just proceed.
MS.
ROGAN: Okay.
THE
COURT: All right. Then what?
MS.
ROGAN: Who did he speak to with some
frequency, and --
THE
COURT: That's part of the business
records and that's probably a good question.
Okay. Then what?
MS.
ROGAN: I wanted to go through some
specific nights that he evaluated, and whether it showed that Mike Chapel was
communicating with other specific officers at given times on those specific
nights.
THE
COURT: Those are business entries. Sounds like it's probably admissible.
MR.
PORTER: Unless it's not relevant.
THE
COURT: Well, except maybe
relevance. Okay. Then what?
MS.
ROGAN: Okay. That was basically it for the MDT.
THE
COURT: Okay.
MS.
ROGAN: I mean, I do have some specific
things I want to direct his attention to.
THE
COURT: All right. The question -- okay. The question now is, do you have the
original MDTs?
MS.
ROGAN: Right. Or do we need them. I
mean, if he can testify -- I don't -- he didn't bring his report in even he was
supposed to bring, you know. What I'm
looking --
THE COURT: Okay.
All right. What else do you
want?
MS.
ROGAN: Then I want to go into the
financial records that he was given through subpoena from the banks and whether
he evaluated those.
THE
COURT: Now, are those here? Has he got them? You got them?
MR.
PORTER: They're mostly in evidence.
MS.
ROGAN: Most of the ones are in evidence
already.
THE
COURT: Okay. So what --
MS.
ROGAN: And we have them
independently. That I didn't insist
that they --
THE
COURT: All right. So those records we got. All right.
MS.
ROGAN: Whether --
THE
COURT: So what do you want to ask him
about it?
MS.
ROGAN: When he looked at all the
financial records that he received, did he notice any unusual financial
activity on Mr. Chapel's part.
MR.
PORTER: I'm going to object to that,
unusual financial activity --
MR.
SMEAL: Your Honor, if they were
permitted to go into that with Lieutenant Powell, why couldn't the state have
asked Investigator Burnette to testify that there was unusual financial
activity immediately after the murder?
Clearly, that would not have been competent for Burnette to say because
he's not a financial analyst. I mean,
it would work both ways. Powell's not
competent to --
THE
COURT: Well, I think you can ask him,
well, what did you see, what deposits, what amounts, you know, how the cash
flow changed or any of that. I mean,
you know, 'What did you see? What do
you know?' I think you can ask him
that.
MS.
ROGAN: Was his bank balance greater in
April than it had been in February?
THE
COURT: I mean, you know, it's sort of a
subjective kind of thing, well, did it get better, did it get worse, was it --
you know, was it big, was it small, was it fat or was it thin or was it
what.
MS.
ROGAN: Well, he -- I mean, the reason
I'm on that issue is because he made a conclusion in his report, which I
understand may be objectionable, that he --
THE
COURT: Well, every report's got
conclusions; that's the function of them.
MS.
ROGAN: -- that he didn't notice any
unusual financial activity.
THE
COURT: Yeah. Well, you can ask him how it flowed, did it go up, did it go
down, go sideways, left, right, what. I
mean you can ask him about that.
MS.
ROGAN: Okay. All right.
THE
COURT: It seems to me those are facts.
MS.
ROGAN: All right.
THE COURT: All right.
And what else do want to --
MS.
ROGAN: The last area is the phone
records.
THE
COURT: Okay. Those are the Southern Bell records?
MS.
ROGAN: Southern Bell records that were
provided for the victim's number, Mike Chapel's home number, his gym number,
and the precinct.
THE
COURT: All right. And these are the printouts of the phone --
phone calls?
MS.
ROGAN: Presumably. I mean, I didn't see the original records.
THE
COURT: Okay. Have you got them?
MR.
PORTER: I don't think so, Your
Honor. I think the -- it was in
response to -- as I recall, it was in response to a subpoena from the police
department, and they asked for all numbers called from the precinct, the gym,
the house, and one other location.
Emogene Thompson's house.
MS.
ROGAN: Right.
MR. PORTER: In the last 30
days. With the caveat -- Southern Bell
just provided us with a list of telephone numbers, I think. It wasn't like a telephone bill that you
normally see. The caveat was they can't
recapture all local telephone calls that are called.
MS.
ROGAN: That caveat wasn't apparent in
his report.
MR.
MOORE: The ones that were captured
though, I think we're entitled to subpoena whichever ones were captured.
THE
COURT: Okay. And who's got them now?
MR.
PORTER: I can't say that I don't, but I
don't -- I don't know that I have.
THE
COURT: Okay. But that would just be a summary for given number?
MR.
PORTER: That would be a summary for a
given number.
THE
COURT: Well, I guess technically, it
seems to me, that would be business records that Southern Bell would have to
lay a foundation for, but if they ain't got them and the only ones existing now
are --
MS.
ROGAN: Right. See, we've tried to get them and they're destroyed.
THE
COURT: -- in the district attorney's
office, you know, then, where does that leave you? It seems to me maybe a good middle ground is if you've got them,
just count them as a business record, assuming they've got admissible
evidence. Count them as a business
record for the police department at this point and proceed on with it if
they're relevant and if it's otherwise admissible. Any problem with that?
MR.
PORTER: Not -- not as far as
considering them as a business record.
I've got -- I mean there's big time relevance problems with a lot of
this.
THE
COURT: Okay. What is the relevance?
MS.
ROGAN: Well, for instance, on the phone
records, if his evaluation of the records indicates that Michael Chapel never
called the victim from either his home, his precinct or the gym, I think that
flies in the face of a lot of the allegations the state has raised.
THE
COURT: Well, I mean, that's a simple
kind of question.
MS.
ROGAN: Excuse me?
THE
COURT: That's different from going
through a whole bunch of questions, a whole bunch of numbers, or a whole bunch
-- that was the impression I had.
MS.
ROGAN: Well, I wasn't going to go
through a whole bunch. There were some
specific numbers I wanted to direct his attention to in terms of --
THE
COURT: What's their relevance?
MS.
ROGAN: -- the number of times the
victim called some of the witnesses we had in this case, for instance.
THE
COURT: Okay. That strikes me as relevant.
MS.
ROGAN: I would think so. That's why I wanted to -- that's why I
wanted to ask.
THE
COURT: Why wouldn't that be
relevant? If he says he called every 30
minutes and there's one call, you know, it seems to me that's relevant, if the
records are good records.
MR.
PORTER: Your Honor, that's --
MS.
ROGAN: And that's our only way to prove
that.
MR.
PORTER: That's the point. They're not good records.
THE
COURT: What do those records show?
MR. PORTER: The records show a lot of phone calls, but
they don't show every phone call.
THE
COURT: How do you know who knows
whether they show all of them, part of them, or what?
MR.
PORTER: Southern Bell says they cannot
tell at the time -- that was one of the problems with the creation of this
document. The defendant is relying on
conclusions and information that's inadmissible.
THE
COURT: Well, let me just -- it seems to
me, you know, those, I think, if we got them, show them to them. But then you get into the issue, if this
witness says, well -- and I think maybe this is something I'll do out of the
presence of the jury -- if he says, 'Well, this is a summary of them, but I
don't know if it's all of them or 10 percent of them or just nighttime or just
daytime.'
MS.
ROGAN: Well, yeah. I mean --
THE
COURT: And you don't know, then I think
you've records that aren't -- don't come in simply because you don't know to
what extent -- what do they show? Who
knows?
MS.
ROGAN: I understand that, Your
Honor. But I'm --
MR.
PORTER: Your Honor --
MS. ROGAN: We're sort of forced to take the state's
word for it that these records were incomplete. His report indicates the bank records were incomplete at the time
he did his summary.
THE
COURT: I'll tell you what. I think maybe what I'm going to do, I think
I'm going to send the jury out. Let's
do a little voir dire of this witness.
MS.
ROGAN: All right.
THE
COURT: And let's talk about the records
and see what he knows and what we know about what, and then go from there as to
what records ought to come in and what questions ought to be asked of what's --
if these records have got any meaning or not.
MR.
MOORE: Your Honor, one thing I might
suggest, in view of how fast we've been moving today, I'm certain we're going
to finish by Saturday afternoon. The
Court might want to send the jury home and let us do this, and also we need to
take up the matter of the DNA expert and everything.
MS.
ROGAN: Yes, that's true.
THE
COURT: Yeah, it might be good. Yeah.
We may as well. It'll be pushing
six by the time we get through with that anyway, so, yeah, we may as well.
MR.
MOORE: And I feel certain we're going
to finish by Saturday afternoon, so I think we're within the time frames that
we --
THE
COURT: Let's see. What's today? Today --
MS.
ROGAN: Thursday.
THE
COURT: -- is Thursday. Okay.
Yeah, okay. We'll do that.
MS.
ROGAN: Okay.
THE
COURT: That's a good suggestion. Thank you.
[Bench
conference concluded]
THE
COURT: We have some matters we're going
to need to inquire into that won't require your presence, and it's going to be
15, 20 minutes, I guess, before we get through, so I think what I'm going to do
is just release you for the day at this point while we proceed on with the
other matters and get ready to recommence in the morning.
So
let me remind you again, 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 be in
deliberations or discussions amongst yourselves or with anybody else, and just
wait, look and listen until you've seen and heard it all in the jury room with
your fellow jurors.
We
will recommence in the morning at nine o'clock. I'm going to ask the bailiffs to proceed on for the evening meal,
and all that ought to be ready.
So,
Mr. Allen, Hughlon, if you'll take the jurors on down, we'll recommence in the
morning at nine o'clock.
[The
jurors were excused for the day at 5:25 p.m.]
THE
COURT: Let's come back to the issue of
the documents and just take them one at a time and see who has them, and let's
talk about whether or not they're going to be produced, and to the extent
necessary, voir dire this witness while the jury's out and see to what extent
we have partial records, complete records or what, and see if we can determine
the admissibility of it before the jury comes back in the morning.
MR. PORTER: Your Honor, if I might suggest a procedure,
I'm familiar with the creation of the document that we're discussing, and
perhaps it might be quicker for me to move through the questions on direct so
that the witness can testify rather than have Ms. Rogan work from the copies
that she has. If she would agree to
that, that might be faster.
THE
COURT: If you know how they're put
together, that might expedite the matter, because I don't know how they're put
together, and I don't know if anybody else does.
All
right. Let's take -- which documents do
you want to take first?
MR.
PORTER: Your Honor, I haven't heard
anything from counsel as to --
THE
COURT: Ms. Rogan?
MS.
ROGAN: Well, I'm a little
confused. Is Mr. Porter taking over the
witness or --
THE
COURT: Yes.
MS.
ROGAN: Okay. I was first going to address the MDT records.
THE
COURT: All right. Let's take the MDT first, and let -- Mr.
Porter, you can elicit testimony from this witness as to what's in them, how
they're put together and what's originals and what's copies, and where they are
and all that.
MR.
PORTER: Your Honor, it might --
THE
COURT: And then I'll give you an
opportunity, Ms. Rogan --
MS.
ROGAN: We appreciate it, Your Honor.
THE
COURT: -- to examine the witness as
well. And then we'll see what needs to
be produced and what's admissible, if part, all of it, or none of it should be
coming in then.
MR.
PORTER: Your Honor, it might be -- it
might valuable to do a little bit of background.
EXAMINATION - JURY OUT
BY
MR. PORTER:
Q. Lieutenant Powell, when you were in charge
of the intelligence section, during the course of this homicide did you propose
a pilot project using a computer to analyze various types of data to look for
patterns?
A. That's correct.
Q. And was -- did that end up in four or five
volumes that were made a part of the original report of this case?
A. That's correct.
Q. Now, in the course of that, did you rely on
investigators in the case -- Burnette, Latty, Tkacik, all the others -- to
provide you with complete data?
A. Yes, we did. That was -- we were not out investigating. We were just compiling information that was
given to us from them.
Q. And then you were looking for trends?
A. We were -- we were putting it in a date-time
order so it was easier to look at.
Trends will, if they're there, will show up. But it's in a date-time frame -- format.
Q. And that project or that experiment almost
-- sort of fell apart almost from the beginning?
A. Yes, it did.
Q. And the information that you received
specifically as to the MDT records, to your knowledge, was that complete as far
as the MDT traffic for Mike Chapel, and where did you obtain -- what did the
records look like?
A. The records were, if I remember, computer
printouts from the dispatch section of the police department. As far as completeness, we put in the
computer what we were given. I don't
know that there's any way as far as you can go back and say all of them were
there and all of them weren't there.
What we received we put in the -- put in the computer.
Q. And you don't know whether even the MDT
records were complete?
A. No, they --
Q. What did you do with the printout that you
received from the communication section?
A. Everything that we received was returned to
the investigators. When we received it from
the investigators, it was entered on the computer and sent back to the
investigators.
Q. And in regard to the financial records that
you reviewed and made a part of your summary, you acknowledge in your own
report that those were incomplete, don't you?
A. Yes.
Q. And you didn't get all the bank records --
A. No.
Q. -- that you might have liked or wanted?
A. No, we didn't.
Q. And then in regard to the telephone calls --
THE
COURT: Let's take the MDT. Let's take them one at a time, and I'll get Ms.
Rogan up here in just a moment to pose any questions she wishes. But the -- would you tell us what are -- the
MDT records are what?
THE
WITNESS: They -- in each -- or in most
of the patrol cars there's a computer that officers use to communicate with
each other, to dispatch through, from what I understand. I've never used one, but -- but all the
records, when you type in a message and you send it to another car or back to
radio dispatch or wherever is kept --
THE
COURT: Sort of like a computer -- the
computer is by modem?
THE
WITNESS: Yes, it's stored in -- stored,
yes, sir, stored in a -- in a computer.
THE
COURT: Is this voice transmission --
THE
WITNESS: No, sir.
THE
COURT: -- or is this -- it's all typed
in?
THE
WITNESS: It's all typed in.
THE
COURT: Okay. So it's kind of like -- kind of like e-mail, I guess --
THE
WITNESS: Yes.
THE
COURT: -- between patrol cars?
THE
WITNESS: Yes.
THE
COURT: Okay. So the information you were seeking was -- well, how are the
records kept as far as the MDT? How is
that kept by the police department?
THE
WITNESS: By computer, stored in the
computer. And what we received, if I
remember correctly, is a printout.
THE
COURT: Well, how -- if it's sent from
car to car, how does the police -- police department keep a copy of it or get a
copy of it?
THE
WITNESS: That I'm -- that I'm not aware
of, no.
THE
COURT: Okay. So the only records that the police department would have would
be the communications between the unit, the patrol car, and the computer in it,
and a direct communication with the police department?
THE
WITNESS: No. It would -- it -- in that printout were messages from unit to
unit.
THE
COURT: Okay. But this is the printout from the unit?
THE
WITNESS: From the -- from the
communications section.
THE
COURT: Well, is every --
THE
WITNESS: Every time -- every time there
was a message sent, it -- I'm assuming that it was sent through a central
location and back out to the car.
THE
COURT: Okay. So you got the -- the unit sends a signal to a central location,
like headquarters or wherever else, and then it's transmitted from there,
relayed from there, to another unit?
THE
WITNESS: Yes. It's recorded.
THE
COURT: So you would have a record of it
going through the central location?
THE
WITNESS: That's correct.
THE
COURT: Just like -- just like --
THE
WITNESS: And that's --
MR.
PORTER: Your Honor?
THE
COURT: Yes?
MR.
PORTER: If I might, the MDT works just
like a radio does. It is transmitted by
radio. And just like the central
communication office has the ability to monitor conversations between two
patrol cars on the radio, they have the ability to monitor the MDT traffic
between the two units.
THE
COURT: Okay. What you've got is a -- it's like a radio signal that sends a
computer signal -- or maybe a radio signal.
MR.
PORTER: It is a radio signal --
THE
COURT: Okay.
MR.
PORTER: -- that is then transmitted by
them.
THE
COURT: The computer sends it instead of
somebody on a microphone talking.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: Okay. So all those records are available at the police headquarters,
then?
THE
WITNESS: That I'm -- all the records
that I received were returned back to the investigator, but I don't know how
long they keep those records.
THE
COURT: Okay.
THE
WITNESS: Or if those records are still
available.
THE
COURT: Do you know what time -- what
period of time you got the records for or what it covered?
THE
WITNESS: No, sir, I don't. Without looking at it, I don't remember what
--
THE
COURT: Okay. Do you know whether some of them, the times expired such that
they were no longer available or you had an incomplete set, or do you know what
time frame you were furnished total records, or did you have total records for
any time frame?
THE
WITNESS: It was a certain time frame,
but I do not recall what exactly that time frame was.
THE
COURT: And were those total -- were
those total records within that time frame?
THE
WITNESS: Yes, sir. Those records that I received were within
that time frame.
THE
COURT: Okay. Okay. There's no issue
about being incomplete for that particular time, that particular interval?
THE
WITNESS: Not that I'm aware of.
THE COURT: Okay.
All right. Ms. Rogan?
EXAMINATION - JURY OUT
Q. Well, that's what I was going to ask
you. You were provided records by
Lieutenant Latty or Investigator Burnette; do you remember who they were --
A. That's correct.
Q. -- who provided them?
A. Who provided them? No. There's over -- close
to 6,000 entries in there. No, I don't
remember.
Q. Okay.
A. There's a field in the database that says
where they came from.
Q. And these were records of the MDT traffic
from the period of about April 3 through April 23?
A. It should have been in that time frame,
yeah.
Q. Is that -- is that -- I mean, would it
refresh your recollection to look at the report we have?
A. Yeah.
If we can -- in that report we can find where we started and where we
ended, if y'all have that.
Q. And to
your knowledge, the records that you were given were complete for that time
period?
A. To my knowledge, yeah. All the records we received --
Q. No one ever told you --
A. No, no one ever said that they --
Q. -- they were giving you only half of the
records?
A. No.
Uh-uh.
Q. All right.
And you didn't mention anything in your summary report, as you did with
the financial records, you didn't mention anything that the MDT traffic records
you'd been provided were incomplete?
THE
COURT: I believe he said they're
complete, to his knowledge.
MS.
ROGAN: Okay. That's all I wanted to establish. Mr. Porter has suggested that they were incomplete.
THE
COURT: He said -- he said that. I think that's clear.
MS.
ROGAN: Okay.
THE
COURT: Anything else?
MS.
ROGAN: Not as to the MDT traffic.
THE
COURT: All right. So what do you want with respect to the MDT
records, Ms. Rogan?
MS.
ROGAN: I would like to have them
produced from the district attorney's office, if that's where they are now, for
purposes of entering them into the record so that Lieutenant Powell can testify
as to what specific findings were regarding the MDT traffic that he evaluated
for that period of time.
THE COURT: Mr. Porter?
MR.
PORTER: Your Honor, if I have them,
I'll provide them. I think we're going
to have to substitute copies for the record, which it sounds like a massive
undertaking, and subject to any objection to relevance --
THE
COURT: Okay.
MR.
PORTER: -- I don't have a problem with
that.
THE
COURT: Well, copies are available;
right?
MR.
PORTER: I can't answer that, Your
Honor. I mean, at least one copy is
available because we made a copy of it when we -- all the documents were
delivered to me for delivery to the Court for the in camera inspection.
THE
COURT: Okay. And there was a copy -- there's one that is -- there's a copy, which
is a sealed copy --
MR.
PORTER: There's a sealed copy and I had
a working --
THE
COURT: -- in the Clerk's Office.
MR.
PORTER: -- and I had a working copy.
THE
COURT: Okay.
MR.
PORTER: There may very well be a copy
of the MDT records. I can't answer
that.
THE
COURT: Okay. So what you want -- you want to see a copy of the records, the
original -- a copy with some assurance those are the originals; right?
MS.
ROGAN: Yes.
THE
COURT: That is a true copy?
MS.
ROGAN: Yes.
THE
COURT: All right. All right.
Are we going to have any delays while being furnished that, or are you
ready to proceed with the examination?
MS.
ROGAN: I'm ready to proceed, assuming
that the information that is in the notebook that your Honor now has, that the
witness can confirm that the information that he placed into that notebook is
--
THE
COURT: Okay. What information from what notebook?
MS.
ROGAN: From those records.
THE
COURT: What information are you talking
about?
MS.
ROGAN: Well, Your Honor, the notebook
goes day by day through that period of time and lists a number of different
types of information, among them being the MDT traffic for the northside
precinct. And I would like to draw the
witness's attention to specific entries of MDT communication, specific persons
whom he was able to identify --
THE
COURT: All right. Mr. Porter, she thinks you've got a copy
that can be furnished. Could you
furnish that tonight, do you think, Mr. Porter?
MR.
PORTER: If -- Your Honor, I'm not
saying I think I have a copy. If I have
them, there is a copy.
THE
COURT: Okay. Well, and I guess --
MR.
PORTER: And I'll be happy to provide
that. That's not a problem.
THE
COURT: Well, one of my concerns is, Ms.
Rogan, I mean, I guess I have a concern about saying we want -- we want a
subpoena for all these documents, and now that we've got them, we'll need a
week to go through them in getting ready to examine witnesses.
MS.
ROGAN: Oh, I have no intention -- I
mean, I'm trusting that Lieutenant Powell will confirm that the --
THE
COURT: Okay. We'll see what we've got.
MS.
ROGAN: -- records that he used are the
records that --
THE
COURT: When we finish up tonight, Mr.
Porter, why don't you meet with Ms. Rogan and see if you have a copy of it that
can be made available overnight, and do that, and then give you the opportunity
to commence in the morning with cross-examination with respect to the MDT
records.
MR.
PORTER: Your Honor, I'll check on that
right now.
THE
COURT: All right.
MS.
ROGAN: Okay.
THE
COURT: Okay. What's next?
MS.
ROGAN: Next is the financial records,
which I do understand from Lieutenant Powell's report were not provided in
toto.
THE
COURT: And what records are those?
MS.
ROGAN: Those are records of Mr.
Chapel's personal and gym bank accounts.
MR.
PORTER: As well as the victim's
accounts.
MS.
ROGAN: As well as the victim's. I wasn't planning to ask anything about the
victim's bank accounts. I was going to
direct -- and it's really a very limited area of inquiry.
THE
COURT: Well, does Mr. Chapel not have
access to his own records?
MS.
ROGAN: Well, we do, and that was the
next point I was going to make. We --
THE
COURT: I mean, do his records -- does
he need a copy from the state?
MS.
ROGAN: No.
THE
COURT: Okay. So those -- okay. We
don't have any -- financial records are not an issue; is that correct?
MS.
ROGAN: No. No.
THE
COURT: Okay. What's next?
MS.
ROGAN: What I'd like to inquire of the
witness, though, whether, on the basis of evaluating the records that he did
have, he noticed any pattern in the financial activity by Mr. Chapel.
THE
COURT: Well, you can ask him any
question that's permitted under the rules of evidence, whatever that may be.
MS.
ROGAN: Well, I'm unclear, Your Honor,
as to what your ruling was at the bench along those lines, because --
THE
COURT: Well, I don't think I can -- I
don't think I can -- I don't know how long your examination's going to be, I
don't know what you're going to ask, I don't know what the records are, and I
don't think I can make a ruling that you can ask this and you can't ask
that. So you've got the financial
records, Mr. Chapel's records, and you can examine this witness tomorrow with
respect to what he knows, and anything the rules of evidence allow, you can ask
him.
MS.
ROGAN: All right.
THE
COURT: Mr. Porter can object however he
wishes.
MS.
ROGAN: All right.
THE
COURT: Okay.
MS. ROGAN: The last area,
Your Honor, are the telephone records which were provided to the police
department by a subpoena at the time, and I think as we've discussed at the
bench, those are now destroyed. And we
were unable to obtain them ourselves immediately upon both Mr. Moore and my
involvement in the case. We tried to
obtain them and they are destroyed, so --
THE
COURT: Okay. Which records are those?
MS. ROGAN: These are
telephone records of Ms. Thompson's phone, Mr. Chapel's home phone, residence
phone, his gym phone, and the records from the northside precinct telephones,
and there were several lines.
THE
COURT: Okay. Mr. Porter, do you know what form those were in or what -- were
they complete, incomplete, or any of that?
MR.
PORTER: Your Honor, Lieutenant Powell
can probably tell us better than anyone else, but it is my understanding that
they were provided to us in lists and --
THE COURT: All right. Well, since you had the list to prosecute
with and he prepared them, why don't you inquire what you know about it, and
I'll give Ms. Rogan an opportunity, and I'll do likewise, and maybe we
establish whether they're in a form or sufficient to have enough completeness
to them or whatever to make them admissible or whether we can rule that out.
EXAMINATION - JURY OUT
Q. Lieutenant
Powell, in regard to the telephone records that were analyzed by your unit,
do you know how those were obtained?
A. In what form or --
Q. Yes, sir.
Well, first of all, do you know how they were --
A. They were subpoenaed.
Q. And were they subpoenaed by members of your
unit, the intelligence unit?
A. Yes, sir.
Q. And do
you know what form they were provided in?
A. The -- and I'm recalling from memory now --
the records received from the precinct were in a -- on a sheet or printed form,
regular notebook size. The records from
the -- directly from the telephone company on the residences, I believe, were
just regular copies of what you would get in a phone bill, if I'm not --
Q. All right.
Like a fax?
A. Like a -- like what you would get in the
mail as a regular phone bill.
Q. Regular phone bill. Now, Lieutenant Powell, weren't those
provided to you with the warning that the technology did not allow for the
complete capture of all local telephone numbers that were made from any given
phone?
A. Yeah.
The Southern Bell on the -- and here again, recalling, the ones from the
precincts -- and let me -- let me correct myself since you mentioned that. The ones from the precincts and the ones
that -- we got two different sets, if I'm not mistaken, from the phone
company. There was one where it's some
type of trap and trace that is used by the phone company on phones that show
local numbers that they call. The
reliability of that, I'm not quite sure of.
And the other form was just the regular phone bill.
Q. And that would -- that --
A. Show long distance phone --
Q. That would show long distance, only?
A. Yeah.
Q. And, in fact, didn't Southern Bell tell you
that they might not be able to capture every local telephone call?
A. Yes, they did.
Q. So you can't say that the records upon which
you based your analysis -- you can say that you put in every record you had;
right?
A. That's correct.
Q. But you
can't say that you had every record of every telephone call that was made
from any of those locations, either the gym, the precinct, Emogene Thompson's
house or Michael Chapel's house?
A. No, I can't.
Q. And you can't say you have any local -- all
the local calls?
A. No.
MR.
PORTER: Thank you.
THE
COURT: Ms. Rogan?
EXAMINATION - JURY OUT
BY
MS. ROGAN:
Q. Lieutenant Powell, you did not indicate in
the report that you prepared that the telephone records that you had been
provided may not be complete?
A. The -- I'm not -- I don't remember the
report that you're -- I remember the one on the financial, but I don't remember
-- if you've got something that I can look at that --
Q. Do you remember creating something called a
general summary report?
A. Yes, I do.
Q. Did you prepare that report?
A. Yes, I did.
Q. Is your name at the back of it?
A. Yes, it is.
Q. Did you indicate in that report that the
financial information you were making findings about may not be accurate
because you had not been provided with complete information?
A. The financial --
Q. Did you make sort of a proviso that you
hadn't yet received all of the financial information?
THE
COURT: Is there some particular
provision that you're contemplating, Ms. Rogan? Do you know where it is?
MS.
ROGAN: I can find it.
THE
COURT: All right. Why don't you show it to him?
MS.
ROGAN: All right. Let me see this. [Examining document]
BY
MS. ROGAN:
Q. Okay.
On Page 12, I direct your attention to this sentence --
A. 'As stated earlier, the financial report is
not complete and the results of this are based on information received.'
Q. And there is a section earlier which I'm --
THE
COURT: I mean, what's the
question?
MS.
ROGAN: The question is --
THE
COURT: That's with respect to Southern
Bell records as to whether or not they're complete?
BY
MS. ROGAN:
Q. Is there anything in the report that
indicates that the information you got from Southern Bell was not complete?
A. No.
Because they -- there's -- what we got, we entered, and there's no way
to tell if there's -- if it's incomplete.
If you -- if there's -- there's no indication that I observed that said,
'No, we missed this one.' It would just
be the next call --
THE
COURT: Well, what is -- what are you
basing your feeling, your opinion and whatever that they're incomplete? What makes you think they're incomplete or
not complete or what causes the uncertainty?
THE
WITNESS: The -- the technology used,
when we were getting these records, I don't believe was advanced to where they
-- as it is now, and I didn't get a technical explanation from them for them.
THE
COURT: They just basically gave you
what they had?
THE
WITNESS: Yes, sir. They gave me --
THE
COURT: Was this an experimental program
on their part or do they routinely have these records? Were they just not complete or what?
THE
WITNESS: This is -- this is the first
time, as far as I know, that I've seen these type of records, local calls. Now, we have used long distance calls quite
frequently.
THE
COURT: But did Southern Bell indicate
to you the extent of their uncertainty --
THE
WITNESS: No, sir.
THE
COURT: -- or what caused their
uncertainty or --
THE
WITNESS: No, sir.
THE
COURT: -- what parts of the local calls
they may not have or don't have or --
THE
WITNESS: No. No, sir.
THE
COURT: They just said they don't --
they don't -- this is the best we've
got?
THE
WITNESS: They don't guarantee the
results.
THE
COURT: Do they know that some of them
are not on there? Do they know that
they're incomplete?
THE
WITNESS: Not so far as I know. I didn't -- I didn't go into that.
THE
COURT: I mean, do they -- when they
say, 'Here's the best we've got, it may not be all of them,' do they know that
some are missing but they don't know to what extent or are they just not sure?
THE
WITNESS: I don't -- I didn't get into
it with them.
THE
COURT: Well, okay.
MR.
PORTER: Your Honor, if I may, once
again, for clarification, and I realize -- I'll state in my place that it doesn't
have to do with as much technology as economics. Southern Bell doesn't care how many local phone calls you make,
and they don't bother to monitor it because it takes up too much computer
space.
THE
COURT: I'm surprised they monitor them
at all.
MR.
PORTER: They care about what long
distance phone calls you make because they charge you for those. So they just -- they just put the calls
through. They don't -- they don't
monitor it, so it's only information that they can just pull up that's in their
computer. The way they described it to
us was that it's sort of a floating data field that changes day to day and
minute by minute. And it's whatever's
in that data field when we ask, they'll give us, but they can't guarantee the
results.
THE
COURT: Well, it seems to me the
question is, is it complete within a given interval, and you dump off on one
end while you add on the other; or is the field, in the interval, is there some
inconsistency or uncertainty or --
MR.
PORTER: Your Honor, it's so much fluctuation
there is no interval. They don't dump
their field every six hours or twelve hours.
THE
COURT: They don't clear it by age.
MR.
PORTER: No.
THE
COURT: How else would you clear
it? Random?
MR.
PORTER: Essentially, that's it on local
calls. They just -- they just move it
through the system because of the volume of calls.
THE
COURT: Well, it seems to me that if
they drop them off they'd have to have some criteria for what you remove, you
know, either by age or by location or by something.
MR.
PORTER: Your Honor, I can only state in
my place that I had a conversation with the people at Southern Bell security
about the same issues that we are talking about and, basically, the way they
described it was, more or less, that the numbers are out there in the air and
they don't keep track of them and they're not guaranteeing any results.
THE
COURT: Well, what I'm hearing is you
don't know, and I don't know, and Mr. Powell doesn't know. And if nobody knows what numbers are there
and what numbers are missing or for what interval or how they're subtracted
off, then I don't think we've got information that you can put in front of the
jury.
MS.
ROGAN: Your Honor, I don't hear
Lieutenant Powell saying that he was told that the numbers don't exist. I hear Mr. Porter saying that because he
wants to keep this evidence out. But I
hear Lieutenant Powell saying he was told there's no guarantee. And you just asked the question, 'Well, were
you told we know specifically numbers weren't included or we are just not guaranteeing
that this is everything?' They
extracted an extraordinary number of local calls, and there are distinctive
patterns evident. And for Mr. Porter to
be able to block the evidence just by standing and saying, 'We know it's not
complete --'
THE
COURT: Well, I guess the question -- I
guess the question is what's the evidence going to be used for? It seems to me if the issue is was a local
call made at some particular time from some particular number to another
number, and if you can ascertain that from it, assuming you can lay a
foundation to get it in or it's otherwise admissible, and that's the question,
then maybe it has probative value and it ought to be admitted for that.
But
if the question is were there no calls made from some particular number or to a
particular number or at some particular point in time, how do you know? If the database is incomplete, then how do
you know one wasn't made?
MS.
ROGAN: You don't --
THE
COURT: That would simply say there's
not one shown, but if it's incomplete, how do you know? And I think the answer is you don't.
MS.
ROGAN: Well, Your Honor, I don't know
that we don't know that the database is incomplete. I think this is a red herring that has been created by the state
today. This report does not indicate
that the information we got from Southern Bell was not complete or that there
was any proviso.
THE
COURT: And also -- and also -- we've
got the questions here with Officer Powell, and I'm asking him, 'What do you
know about it?' and he says, well, what I know about it, as I understand it, is
this is what Southern Bell told me. So
we've got the wrong witness on the stand, really, to verify it.
What
we've got at this point is hearsay from Lieutenant Powell as to what he was
told about the validity of the records anyway.
It seems to me we got -- it seems to me we have no probative value to
anything in court today as to the validity of them, because all he's got is
hearsay; it's what somebody's told him.
MS.
ROGAN: May I ask him a couple more
questions on that?
THE
COURT: Go ahead.
EXAMINATION - JURY OUT
BY
MS. ROGAN:
Q. Lieutenant Powell, who -- did you personally
subpoena the information from Southern Bell?
A. No, I didn't.
Q. Did you have a conversation with anyone from
Southern Bell?
A. I had a conversation with Investigator
Browning, as I remember it, Investigator Browning. He's the one that --
Q. Of the police department?
A. Well, on these subpoenas, I would have to
look at the records and see. There was
so much. Investigator Browning, I
believe, was serving the financial subpoenas.
Q. Are you speaking of Greg Browning?
A. That's correct.
Q. Okay.
And he's a police officer?
A. That's correct.
Q. Okay.
My question, then, is did you personally speak to anybody at Southern
Bell about the reliability or completeness of the records you were getting?
A. Did I personally?
Q. Yes, that's my question.
A. No.
No.
Q. All right.
So were you told by someone within the police department what you're now
describing?
A. As I -- as I remember, yes. But our job was to take those and put them
on the computer.
Q. Take what you were given?
A. Take what we were given and put it on the
computer.
Q. And draw some conclusion from it?
A. That's correct.
Q. Okay.
And you actually got a tremendous number of phone records of local
calls?
A. We received quite a few phone -- phone
numbers, yes.
Q. And, in your report, there are -- every day
there are at least twenty or twenty-five calls, local calls, that you had --
A. I can't -- I can't --
THE COURT: Well, the
question is -- the question is what's the validity of those local phone call
records? What -- state again what's the
basis of your information, and what is your information?
THE
WITNESS: My information is that those
-- that with these local calls, it's not -- it's not assured that you would --
you would get them all. But we received
quite a few. Whether it's all of them,
I don't know. Whether it's all --
THE
COURT: And what's the source of your
information?
THE
WITNESS: My source is the officer that
I believe, that served the subpoena to get them.
THE
COURT: Okay. So another police officer told you that?
THE
WITNESS: Yes, sir.
THE
COURT: And somebody -- how does he
know; do you know?
THE
WITNESS: No, sir.
THE
COURT: Well, I guess it's a least
double hearsay.
MR.
MOORE: Your Honor, can I ask a
question?
THE
COURT: Yes, sir.
MR.
MOORE: Do we know whether the documents
themselves have this caveat on them and what it says? I mean, if it does, then, that might answer the question.
THE
COURT: Well, I guess if there -- again,
it gets to the foundation of the business records. If they're business records, somebody's got to lay a foundation
for business records. He doesn't work
for Southern Bell. He doesn't keep
these records. He just -- somebody
handed them to him, it seems to me.
MR.
MOORE: Southern Bell doesn't keep them
anymore either, apparently.
THE
COURT: Well, but if we've got a copy of
them, I suppose somebody from Southern Bell could lay a foundation and tell
what they are. It just seems to me we
got the wrong witness for the phone records.
MR.
MOORE: Your Honor, this is the first
we've heard that they were incomplete.
There was nothing in his report to indicate the Southern Bell records
were incomplete, and we may need time to get a Southern Bell witness here to
testify, and I don't know how much time that will take, but we could get
somebody served in the morning, probably.
THE
COURT: You might want to do it. I think at this point --
MS.
ROGAN: We also need the records
themselves, because, obviously, they're in the custody of the state, and we
don't have access to them.
THE
COURT: All right. Let's come back to that issue. Mr. Porter, you have the records. Any objection to providing those?
MR.
PORTER: If I have them, Your Honor, and
I have copies, I'll provide them.
THE
COURT: Okay.
MR.
PORTER: Your Honor, I've been given a
handout that I'm going to have to show Lieutenant Powell. I don't know if this is an MDT -- I don't
know if that's a printout of the MDT traffic or not.
THE
COURT: All right. Why don't you show it to Mr. Powell, then.
MR.
PORTER: I have a number of those, but I
can't tell you what that is.
[Presenting]
THE
WITNESS: Yes, this is what we took --
we entered in from the database onto the records.
MR.
PORTER: So if there are --
THE
WITNESS: That's what we received as a
record of MDT traffic.
THE
COURT: Okay. That's what you got out of the central computer somewhere, the
traffic, and you used that to input to another computer to format it -- to
reformat it?
THE
WITNESS: This is what I received from
an investigator or -- to put on the computer.
We didn't go and -- I didn't go and get this information. It was brought to us, and we entered it onto
the -- onto the computer.
THE
COURT: Okay. Do you know where that came from or whether it's complete or not
or whatever?
THE
WITNESS: My personal knowledge of going
to the communications -- this is -- this is what MDT traffic looks like. I did not pick it up. I did not go get it.
THE
COURT: Okay. You had several people working on it. Somebody handed you that as part of the record y'all were trying
to get together, and you put it in your computer?
THE
WITNESS: That's correct.
THE
COURT: All right. Do you have any objection to providing that
to Mr. Moore?
MR.
PORTER: Your Honor, I think there's
four or five sheaths of it, just like --
THE
COURT: Okay.
MR.
PORTER: But I'll locate all I have.
THE
COURT: All right. See if you can find it tonight, provide it
tonight, and let's be ready to proceed on it tomorrow.
MR.
PORTER: But with who?
THE
COURT: Well, whoever your next witness
is once you come around -- unless there's something else you want to ask
him. And anything you want to ask him
with respect to those records, ask him in the morning.
MS.
ROGAN: But with respect to which
records? Just the MDT records?
THE
COURT: Well, I think that's what we've
got at this point. I mean, as far as --
you can recall him later if you want to.
MS.
ROGAN: What about the phone --
THE
COURT: I guess my question is what
about them? I mean, we got -- we don't
have -- there's nobody here to lay a foundation. I mean, what I'm hearing, what he said is he doesn't know. Somebody handed them to him, and he doesn't
know the validity or anything else about the completeness. They're just some records he got.
MR.
PORTER: But, Your Honor, that's what he
says about the MDT records. I mean,
Lieutenant Powell --
THE
COURT: Well, I'm not saying it's
admissible. I'm just saying give it --
just make it available so everybody can take a look at it and see to what
extent you want to use it tomorrow, and if there's something that's usable,
admissible, and you want to use it tomorrow, then you'll have the opportunity.
MR.
MOORE: Your Honor, could we ask the
Court to direct Lieutenant Powell to bring to court in the morning whatever
phone records he has, whatever documents they received, because we need to
figure out who to subpoena, who to try to get.
And we don't know who generated those documents or --
THE
WITNESS: I have -- I have none of those
documents. The investigators brought
them to us, they were entered into the database, and I give them back to the
investigator.
THE
COURT: Okay. What did he do with them?
THE
WITNESS: This was just a tool that I --
THE
COURT: What did the investigator do
with them?
THE
WITNESS: That I don't know, Your Honor.
THE
COURT: Okay.
MR.
MOORE: Well, Your Honor, we've got a
subpoena for the chief of police to bring all the records that are needed in
this case, so he ought to be able to figure out who's got them and direct
somebody to bring them up here.
THE
COURT: You might want to -- the
subpoena was directed to you; is that correct?
THE
WITNESS: That's correct.
THE
COURT: You might want to discuss that
with the chief tonight and see who's got them so we can expedite this matter.
MS.
ROGAN: We subpoenaed Chief White --
MR.
MOORE: Your Honor, there was a subpoena
directed to the chief, too, for the same thing -- same type thing, Your Honor.
THE
COURT: Okay.
MR.
MOORE: Or his designee. We didn't say he had to come personally, but
whoever had the records.
THE
COURT: All right. Okay.
Well, I guess you can take a look at them tonight and see what
information there is or is not. And if
you want to examine this witness in the morning, then you can examine him
tomorrow. If you want to recall him
later, I'll give you the opportunity to do that.
MS.
ROGAN: Well, I'm still unclear, and I'm
sorry if I'm being dense, but have we -- have we established that he can
testify about the MDT traffic on the basis of the records that the district
attorney has acknowledged that he has?
THE
COURT: Well, I think we established
that whatever Mr. Porter's got with respect to MDT records he's going to give
you. So you'll either have -- you'll
have a copy which you can ascertain as being a true copy, and the records of
the local calls, if Mr. Porter's got them, he's going to give them to you.
MR.
PORTER: Your Honor, my information is
that I have provided that. I have
provided copies of the MDT printouts and I've provided copies of the telephone
records. The information I have from my
chief investigator is that we made copies of those and we provided them.
THE
COURT: All right. Why don't -- if you have them readily
accessible, why don't you show them -- make it known what they look like so
everybody knows what the form is, what kind of form or how thick they are or
what the printout looks like or that sort of thing, and then Mr. Moore and Ms.
Rogan, if you've got them, then you can use them, and maybe that will solve the
problem.
MS.
ROGAN: Well, I'm still unclear about
the bank records, though. What I heard
Your Honor saying was that we need to get someone from the bank to verify -- I
mean the telephone, I'm sorry -- someone from Southern Bell to verify --
THE
COURT: Well, I think so. I mean, what this witness says is he doesn't
know. What he's saying is -- what he
knows is double hearsay, at best. And
the fact that he works for the police department doesn't mean he can lay the
foundation for the records, and how do you establish -- so the question is, who
is it? Well, I don't know who it
is.
MS.
ROGAN: All right.
THE
COURT: It's not my witness.
MS.
ROGAN: All right.
THE
COURT: So I guess if you want to put
them in, somebody who knows something about them is going to have to be
here. I don't know who that is or what
records there are or what in form they're in if they have them.
MS.
ROGAN: Well, they don't have them
anymore is the problem. You know, we're
going to have rely on what the state --
THE
COURT: Well, whatever they had is in
the hands of the police department. And
I don't think there's anything that prohibits them from taking the records they
have previously sent to the police department, and if they've got somebody that
knows something about them, to testify about them.
MS.
ROGAN: To verify them, right. I understand that.
THE
COURT: I mean, it seems to me that
would be a logical way to do it.
MS.
ROGAN: Okay.
MR.
PORTER: Your Honor, they would be
admissible as long as -- the originals have been accounted for. If they're true and correct copies, then
they would be admissible as business records.
That's not a problem. I just --
MS.
ROGAN: Yeah, I'm not sure -- I guess
the major sticking point we have now is this proviso that the phone records are
somehow not complete, which has never been apparent from the information that
we've been provided.
THE
COURT: But even if they are complete,
you know, I don't know that you've got a witness here who can lay a foundation. What you've got is somebody here saying,
'Well, somebody handed me these.
Another police officer handed me these, and that's what I know about
it.'
MS.
ROGAN: But if they're business records
that we've all agreed can come into evidence, and those are what he consulted
to make his database --
THE
COURT: Well, if there's a stipulation
as to them, then I guess there's no problem.
I don't know if there's a stipulation or not. That's the first I've heard of a stipulation. If there's a stipulation, then we're wasting
our time arguing about it, it seems to me.
MR.
PORTER: Your Honor, I'm not -- I'm not
going to quibble about the method by which the -- I'm not going to quibble
about whether copies or originals have to be produced. That is not a problem for the state. I'm not going to quibble about that. But if they're incomplete, then I'm going to
argue that they're inadmissible and that any conclusions that this officer drew
from those documents are factually erroneous and therefore are inadmissible.
THE
COURT: Well, why don't -- Ms. Rogan,
why don't you and Mr. Moore talk to Mr. -- get together with Mr. Porter tonight
and see what -- see if you can't clarify what you've received and what you have
in your possession, and what you don't and what you're entitled to, and --
MR.
PORTER: Your Honor, the other thing is
that, you know, Lieutenant Powell has been sitting out here all day with a
subpoena and has never been spoken to by the defense. Now, that's their choice, but they can't claim surprise now,
because, as I told the Court at the bench, this was an experiment that we were
trying in a case that because of the information flow problems was discontinued
and has never been done again, and it is precisely this issue as to why we
didn't do it. And now for the defense
to claim, 'Well, we got sandbagged,' Lieutenant Powell could have told them all
this.
THE
COURT: I haven't heard anybody say
they've been sandbagged. I haven't
heard that.
MR.
PORTER: Well, but they're saying
they've been surprised. They haven't
gotten it. They haven't -- they didn't
know anything about all this.
THE
COURT: What else do you want from this
witness, Ms. Rogan?
MS.
ROGAN: That would be it. I mean, I want to ask him questions in the
three areas that we identified. I would
also like to state that it seems to me even if the phone records were
incomplete, which that is the thing we're surprised about because there's been
no indication of that from anything else, it seems to me that goes to the
weight of the information in his report or in his compilation rather than its
admissibility.
THE
COURT: I think it may very well depend
on what you want to use them for.
Again, if the issue is was a particular call made at a particular time
between two particular numbers, and the records come in, if they come in, and
it shows, yes, there was, then it may be admissible for that. But for purposes of excluding calls, for
example, do those records show that somebody never made a call to somebody else
in some time frame, it may not be admissible.
If you have incomplete records, you know, what does that show?
MS.
ROGAN: Well, but that gets back to the
report, then. It seems to me I should
be entitled to ask why did he put in his report that there is no indication
that a call was ever made by Mr. Chapel from any of the sources that they had
for him --
THE
COURT: Well, I guess, depending on what
the posture of the case is, you may or may not be able to ask it. But just simply because he drew some
conclusion doesn't make that admissible.
MS.
ROGAN: But why -- why shouldn't I be
able to ask him why he made that conclusion in his report when he didn't say,
'But this isn't really reliable because the phone company told us that their
records aren't complete'?
MR.
PORTER: Because it's a conclusion of
the officer based on an evaluation of the evidence that has no probative value
to the jury, Your Honor. That's the the
simple answer.
THE
COURT: Well, it seems to me what that
tack says is, he can't testify to that conclusion on the stand, but you can ask
him about why he said it, and open up a basis for impeachment. I mean, that seems to me the essence of it,
and I don't think you can do that.
MS.
ROGAN: I think that's depriving Mr.
Chapel of his due process right to a defense.
THE
COURT: Well, we'll see what -- well,
we'll see what we've got tomorrow. Take
an -- see what Mr. Porter -- let's see if he's got those records, and make them
available. We've been through the MDT
records, been through the phone records, it seems to me, as far as disclosing
that he's got them. Take a look at the
form, and if you've already got them, then you've got them. And the financial records, they're Mr.
Chapel's. That issue is withdrawn, as I
understand it.
MS.
ROGAN: Yes, it is.
THE
COURT: And the other question, as far
as what witness it takes to lay a foundation and get them in, once you got
them, as far as the phone records go, you know, that's --
MS.
ROGAN: To my knowledge, we never
received the actual records. We
received the compilation, the data compilation.
THE
COURT: Well, I don't know.
MR.
MOORE: Your Honor, with respect to what
they're going to bring, too, we need for them to bring whatever phone records
they did receive and what department they came from at the telephone company. The telephone company is a pretty big place,
and if we don't know who we're looking for, where to go to get a person, then
we don't know who to subpoena or who to try to get here to court. And we would ask the Court direct Lieutenant
Powell or somebody to communicate with the chief so he can find out who has
those records and get them here.
Otherwise, my only option is to tell the chief and 200 other police
officers we've got under subpoena to come up here tomorrow and say, 'Okay,
which one of you has got the records now?'
MR.
PORTER: Your Honor, I don't think --
that's not the problem. Because, as far
as I know, all the original paperwork was turned over to the Court for the in
camera inspection, and I have retained custody of it. It's not at the police department.
MR.
MOORE: All I want is it in court in the
morning so we can determine who to subpoena, Your Honor.
MR.
PORTER: And I'll provide copies of the
phone records if I have them. And I
can't say that I have them.
THE
COURT: Well, my suggestion would be to
take a look at that tonight, not in the morning. I mean, I don't contemplate taking a half a day recess so that in
the morning everybody can discuss what records they've got. That's the purpose of doing it tonight, so
in the morning we know who's got what records and we can proceed on however
need be.
MR.
PORTER: Your Honor, at this moment, I
am having the records pulled that we are aware of, and I will present them to
the defendant. That doesn't change --
number one, we believe we've already provided copies. Number two, that doesn't change anything about the legal position
the state has to their admissibility or anything else.
THE
COURT: Oh, I understand that. All right.
Well, Mr. Moore and Ms. Rogan, if you'll discuss that matter with Mr. Porter
tonight, see if you can resolve that issue tonight, and then in the morning be
in a position to go on from there, so at least in the morning we don't have a
question of who's got what records and what's been provided. That ought to be taken care of tonight.
All
right. Anything else, Ms. Rogan, of
this witness at this point?
MS.
ROGAN: No, Your Honor.
THE
COURT: Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: Anything else to take up this
afternoon?
MR.
PORTER: Your Honor, we have the Rower
issue, but I think we can resolve it fairly quickly.
THE
COURT: All right.
MR.
PORTER: The most recent case is
Thornton v. --
MS.
ROGAN: Can Lieutenant Powell come down?
THE
COURT: You can come down,
Lieutenant. Be back at nine o'clock in
the morning.
THE
WITNESS: Yes, sir.
[The
witness stepped down from the stand.]
MR.
PORTER: Your Honor, here's a copy of
the Rower decision.
THE
COURT: Okay. I've got those.
Okay. Is this yours --
MR.
PORTER: This is Ms. Rogan's copy of
that case.
THE
COURT: What was the issue, Mr.
Moore? I've forgotten which issue this
was now.
MR.
MOORE: Your Honor, we have a DNA expert
--
THE
COURT: The DNA, okay.
MR.
MOORE: -- which has not -- there've
been no reports generated. We did not
do it to purposely not have any reports.
There were none generated. We
didn't ask for any. We've met with him
several times. And the question I posed
to the Court was that if I was under some duty to disclose it, I wanted to know
that and do it ahead of time so that we wouldn't get till Saturday afternoon
when we were getting ready to rest our case and the Court would say that I
couldn't call the witness because we hadn't disclosed it.
THE
COURT: I understand. Thank you.
MR.
PORTER: Your Honor, at this time, the
state's position in regard to Rower, Rower was a case which narrowed the
holding of Sabel v. State, which is at 248 Ga. 10. We would concede that there is no requirement on the defendant to
require his experts to reduce their reports to writing, and we would concede
that issue. There is no duty on the
defendant to do that.
And
under Rower, there's a clear duty to provide a written report for any witness
that the defendant intends to call at trial, and that was reaffirmed in
Thornton v. State, 264 Ga. 563 at Page 574, Headnote 16. It said, although the Court says we held in
Rower that, quote, the state is entitled to only those discovery rights
specifically granted to the defendant by OCGA 17-7-211 in regard to scientific
reports. So Rower specifically made the
report requirement reciprocal.
There
is one case that we would like to bring to the Court's attention, and we would
insist on our rights under this case, is Blige v. State, which is at 205 Ga.
App. 133 at Page 136. And in Blige,
although Blige was prior to Rower, it held that there was a legitimate
requirement that the defendant provide the state with the name and report of
the expert witness.
And,
Your Honor, we would insist on our rights under Blige to have the name of the
expert witness disclosed to us prior to his testimony in order that we can
prepare for any examination of that witness just in the same manner that the
defendant does. And I think the
language to remember is in Rower is the state is entitled to only those
discovery rights specifically granted to the defendant by OCGA 17-7-211.
And,
Your Honor, we would agree that there's no requirement that Mr. Moore now call
his experts and require those experts to reduce their report to writing if he
intends to introduce them into evidence.
Of course, if they already have the way the witness who testified today
has, then we are -- we would be entitled to them, but I don't think there's any
requirement now.
But
we do believe we're entitled to the name of the defense expert in the event
that they are called to testify.
THE
COURT: Mr. Moore?
MS.
ROGAN: Your Honor, the citation to
Blige that Mr. Porter just provided you is the Court of Appeals citation. That case went up to the Supreme Court in
1993. It is cited along with Sabel in
the Rower decision. The Georgia Supreme
Court cite is 263 Ga. 244. I don't have
that in front of me, but it's in the context of Sabel which --
THE
COURT: Well, is that the same case as
Blige v. The State, 264 Ga. 166 that's cited in Rower?
MS.
ROGAN: My cite in Rower is to 263 Ga.
244. But it --
THE
COURT: Well, on Page 325 in the Rower
case, there's a --
MS.
ROGAN: That's what I'm looking at.
THE
COURT: Let's see.
MS.
ROGAN: What cite do you have there?
THE
COURT: It shows Blige v. State, 264 Ga.
Supreme Court Reports, Page 166.
MR.
PORTER: Your Honor, and the copy --
MS.
ROGAN: The cite in our copy is
different.
MR.
PORTER: The cite in my copy says 263
Ga. 244, Your Honor.
THE
COURT: And you're looking at Rower?
MS.
ROGAN: Yes.
MR.
PORTER: Yes, sir.
THE
COURT: You're looking at -- let's see.
MR.
PORTER: We're looking at a copy of
the Georgia Report --
THE
COURT: This is in the last sentence in
Paragraph 5.
MR.
PORTER: This is out of the bound
volume, Your Honor.
MS.
ROGAN: Yes.
MR.
PORTER: It's taken from my office.
THE
COURT: So is this one. You're looking at 264 Ga. 323 Rower?
MS.
ROGAN: Yes.
MR.
PORTER: Yes, sir.
MS.
ROGAN: No -- yes, 264 Ga. 323, Rower.
THE
COURT: Okay. And if I look at -- okay, wait a minute. I've got -- let's see, what do I have here?
MS.
ROGAN: Oh, you know what, Your
Honor? I see it here. It's -- Blige is cited twice in that
case. We're looking at the one at the
top of Page 325, and you're looking at the one just before Paragraph 6.
THE
COURT: Yes.
MS.
ROGAN: Okay. You're absolutely right.
It says 264 Ga. 160. It went up
again, I guess, because that's a 1994 cite.
THE
COURT: Right.
MS.
ROGAN: It could be.
MR.
PORTER: Your Honor, it's cited twice on
the page with two different cites.
MS.
ROGAN: That's right.
THE
COURT: Okay. Well, there may have been two different holdings that are
applicable, so that may be.
MS.
ROGAN: That's correct. So we really all need to look at what Blige
now says, because I don't -- I haven't read that case in a while.
THE
COURT: All right. So what do you contend, Mr. Porter? That if it's not reduced to writing, you're
entitled to the name if not the report?
MR.
PORTER: Yes, Your Honor. I'm entitled to the name if the report's not
reduced to writing. That's my position. But otherwise -- otherwise, on the issue of
expert witnesses, I think that's such a critical issue, and the holding of
Rower was to apply the same discovery rights.
I think we're now being basically ambushed.
THE
COURT: All right. I have a copy of Blige here.
MS.
ROGAN: Which one?
THE
COURT: This is the 1994 --
MS.
ROGAN: Okay.
THE
COURT: -- 264, 166.
MS.
ROGAN: All right.
THE
COURT: All right. That's certiorari from the 263, 244 Court of
Appeals case. We granted certiorari,
when posed the following question: when
an expert is hired by a party and not called by that party, but called by the
opposing party in a criminal proceeding, is testimony as to the expert's
original employment pertinent to the issues of criminal prosecution or should
such testimony be ruled inadmissible because it's irrelevant, prejudicial and
harmful as has been ruled in civil condemnation cases?
MR.
PORTER: Your Honor, I don't believe
that's the issue here.
THE
COURT: All right. Taking Blige and all the rest of it
together, what do you contend, Mr. Moore?
MS.
ROGAN: Well, Your Honor, we have not
had an opportunity to go pull our cases because I was here arguing about Mr.
Powell -- I mean, Lieutenant Powell. My
understanding of the law is that since Rower, and I think it was confirmed in
Thornton, the law is that the discovery of expert witness provision of the
statute is not, in fact, reciprocal; that to the extent that it imposes a
burden on the defendant, it is only to provide the state with written reports
that it intends to introduce in whole or part; that the name of an expert is
not discoverable by the state in the absence of a written report.
The
cite to Blige, which Mr. Porter made, was a Court of Appeals decision which I
believe is the Supreme Court decision that is cited at the top of Page 325 of
Rower, which is 263 Ga. 244, 1993. It
is a string cite to Sabel, quoting the reciprocality provision which the
Supreme Court is repudiating in Rower.
So I do not think that that Court of Appeals decision in Blige, which
the state has cited, is the law any longer on this issue.
But,
as I said, I haven't had a chance to look at the cases that Mr. Porter cited
because I haven't left the courtroom.
MR.
PORTER: Your Honor, I'll be prepared to
respond whenever the Court wishes.
THE
COURT: Go ahead.
MR.
PORTER: All right. Your Honor, Rower does not repudiate
reciprocity. Rower limited the Sabel
decision, which said that all of the defendant's experts have to be revealed to
the state. And Sabel relied on the
issue, very simply, or more basically put, had to do with disclosure of
witnesses, just like the state's burden to disclose all potential witnesses.
Rower
merely limited the concept of reciprocity back to that the defendant has the
same burden under 17-7-211 as the state does.
And it -- and the requirement of the trial court in the original Blige
case, which we have cited, to provide the name and report has not been
repudiated either in the later appellate decision or in Rower or in
Thornton.
And
it's our position, at this point, particularly at this point in the trial, that
we don't -- we don't believe that Rower or Thornton require that the defense
expert be required to put on a -- or create a written report. But we believe that the law requires in the
concept of reciprocity that was upheld in Rower and Thornton, require that we
be notified of who those experts are.
And that's our position.
THE
COURT: Let's come back to that first
thing in the morning.
MS.
ROGAN: All right.
THE
COURT: Give everybody an opportunity to
review the law and we'll have brief arguments in the morning and dispose of it.
MS.
ROGAN: Okay.
THE
COURT: Okay. And everybody can review their notes and review the cases, and
I'll do likewise.
All
right. Anything else, Mr. Porter?
MR.
PORTER: That takes care of it, Your
Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: Nothing else today, Your Honor.
THE
COURT: Do you think -- where we are at
this point, do you think, Mr. Moore, you'll be resting by Saturday still?
MR.
MOORE: Saturday afternoon, Your Honor.
THE
COURT: Okay.
MR.
MOORE: I mean, I feel certain we'll be
finished by Saturday afternoon.
THE
COURT: Okay. If we do that, it sounds like we're likely to be looking at
rebuttal and surrebuttal probably Monday, and argument and charge on Tuesday,
sounds like where we're headed.
MR.
MOORE: I don't know how much rebuttal
Mr. Porter will have. And he doesn't
either yet since we have completed our case.
THE
COURT: Yeah. Well, sounds like that's likely where we're going to be, though,
and throw in with it a charge conference and looking at the form of the verdict
and all that.
MR.
PORTER: If there's no rebuttal, Your
Honor, we could be arguing and charging by Monday.
THE
COURT: Well, true enough.
MS.
ROGAN: Well, yeah, I guess --
THE
COURT: If -- well, one thing you might
be prepared to do. If everybody rests
on Saturday afternoon, then I think what I'd be inclined to do is, if we do
that, is stay over Saturday, send the jury -- send the jury back to their
lodging, and then stay over Saturday evening and iron out the argument -- iron
out the charges, the form of the verdict, and any loose ends we've got left to
tie up and do that Monday morning. And
maybe have the jury come in at ten o'clock or something and give us an hour or
so to tie up any loose ends on Monday morning, and then start the argument and
charge on Monday morning.
Well,
I'm just sort of thinking out loud, but I think that might be what we'll do if
--
MR.
PORTER: Your Honor, that --
THE
COURT: -- the evidence is in, and that
will give everybody Sunday to get their argument ready.
MR.
PORTER: That's all well and good, Your
Honor, and I think that -- and we'll argue this in the morning, but I think
that goes back to the state's point on this issue. If I'm forced to scramble, then that puts me in a different
position than if I know.
THE
COURT: Well, the question is what does
the law require. I mean, that's the
issue.
MR.
PORTER: I understand that.
THE
COURT: Okay. All right. 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 adjourned for the day, August 31, 1995, at 6:35 p.m.]
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