P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Friday, September 1, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]

[Proceedings resumed outside the presence of the jury.]

MR. PORTER:  Your Honor, Mr. Moore and Ms. Rogan are outside talking to Lieutenant Powell regarding some of the records that we provided.

THE COURT:  Okay.

[Pause in proceedings]

THE COURT:  Ready, Mr. Moore?

MR. MOORE:  Your Honor, we were outside talking to Lieutenant Powell trying to sort these things out.  We apparently still don't have the telephone records.  We've got some of the other records, but we apparently don't have the telephone records, and we were trying to sort out who's got them and where they are.

THE COURT:  What are you requesting?

MR. MOORE:  Well, if you can give us about five or ten minutes to try to figure out who's got them, if they exist, where they are. 

THE COURT:  Okay.

MR. MOORE:  I mean, nobody's determined that yet.

THE COURT:  Okay.  I don't have a problem with that.  If -- you might also, since we're going to be here today and tomorrow, you might -- if you want to shift witnesses and bring somebody else in, and bring Officer Powell back tomorrow or whatever to tie in the records, I guess some of those are prospects, whatever you want to do. 

Do you think if we take fifteen minutes and give you time to discuss the matter with him that that would resolve the problems with the records and go forward with his testimony or --

MR. MOORE:  Your Honor, if we will be able to determine if the records exist, where they are, and who's got them, maybe.  That's the problem we're having.  Nobody seems to know.

THE COURT:  Okay.

MR. PORTER:  Your Honor?

THE COURT:  Yes, sir?

MR. PORTER:  For the record, I have provided to Mr. Moore copies, and we made them last night, of all the records in my possession in regard to the MDT traffic, the telephone records, and the actual bluebook entries of the telephone calls that were referred to in the analysis.

I would also state that when we delivered those to his investigator, Mr. Miller, Mr. Miller examined them and acknowledged that they had previously received a copy of this, and that Mr. Miller didn't know where it was, but he said, yes, he recognized the documents.  So this is the second copy we've delivered.

THE COURT:  Okay.  Well, I understand the difficulty with -- I mean, my office is stacked up with paper from this case in all directions.

MR. PORTER:  I'm not implying anything about this and I'm not saying anything about this, but this is the second time we've done this.

THE COURT:  Yes.  Okay.

MR. PORTER:  And I had stated earlier yesterday that I believe we had provided copies.

THE COURT:  All right.  Let's do this, Mr. Moore.  Let's take fifteen minutes and give you the opportunity to see what records you have or discuss the matter with Officer Powell, and then let's either go forward with Officer Powell or else bring in the next witness and come back to him at a later time.  Is that sufficient?

MR. MOORE:  We can do that, Your Honor.

THE COURT:  All right.

MR. PORTER:  Your Honor, is the Court going to want to talk about the Blige issue today before we begin with the jury?

THE COURT:  I think so.

MR. PORTER:  Because there is one thing that occurred to me that is part and parcel of the state's argument, and that is, for everybody else in the world except us this weekend is a holiday, and I think there's a practical consideration involved here as well as the strict legal consideration that I'd like to address to the Court in terms of the state's access to a rebuttal expert, if necessary.

THE COURT:  And what is that?

MR. PORTER:  Your Honor, if I don't get notice until tomorrow, then I'm going to have to ask for a continuance on Monday so that I can arrange for an expert and interview them, and ask to continue this case on Tuesday.  Because I think I'm entitled to the rebuttal, but the likelihood -- if I don't know where they're coming at me, then I'm going to have to locate, interview and prepare an expert after their expert testimony, and on a holiday weekend, that's going to be well nigh impossible. 

So I think that the name of the expert does no prejudice to the defense.  I'm not -- I agree that Thornton says that there's no requirement that their expert reduce their test to writing, but I think the state is entitled to some notice not only on a legal basis, which we argued yesterday, but on the simple practicalities of a fair trial in this case.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I would request the Court defer that issue until we can have Ms. Rogan in here.  She's outside talking to a witness, and she's been handling that portion of the case.

THE COURT:  Okay.  Well, I mean, I don't know what the balance of the evidence is going to be for the defendant or rebuttal or surrebuttal, but I guess the question that comes to mind is there was really two DNA experts who testified for the state.  What's the likelihood of requiring anybody besides one of those two?

MR. PORTER:  Significant, Your Honor.  I mean, I don't think, if I'm going to come in in rebuttal, and hypothetically Mr. Moore attacks the procedures of the Georgia state crime lab, I think it's then incumbent on me to bring in an independent scientist to say the procedures of the Georgia state crime lab are scientifically accepted and they are within the confines of scientifically accepted procedure, whether that goes to match criteria or whether it goes to lab procedures, whether it goes to population databases, whether it goes to any of the number of issues that can come up in DNA.

There are other issues that may come up in the course of this trial, and if I'm ambushed with them tomorrow, on Saturday, the likelihood of my being able to obtain an expert would be slim and none, and I would be requesting that the Court recess till Tuesday to allow me to prepare my rebuttal case.

THE COURT:  All right.  Well, we'll have Ms. Rogan in and we'll address that this morning as well.

All right.  We'll take fifteen minutes and then we will commence with the evidence.

MR. MOORE:  Thank you, Your Honor.

[Break taken]

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:  All right.  Where do we stand with Mr. Powell's testimony?

MS. ROGAN:  Well, Your Honor, last night we were provided with a stack of copies of material which appear to include the complete MDT records which Mr. Powell has identified this morning outside of court, and agrees that these are the documents he was provided, and that, as far as he knew, they were complete for the time periods that were specified.  So I don't think we have a problem with the MDT records.

The balance of what I received last night are documents that I've been told are from the phone company.  They comprise five pages of actual printouts of phone records that indicate local calls from a specific number, and Mr. Powell explained to me that he would identify who the call was made to, and who the call was from, and derived the information used in his database accordingly.  But there are only five pages of them, and some of them are redacted, and for reasons that he didn't know, and that was the basis on which he felt like the records weren't complete, and that this was the form that that came from the phone company in. 

There were far more than just these five pages, however, because he has hundreds of calls documented, and these just comprise a few days and five different numbers, so that clearly these are not the complete phone records.

The balance of documents I got were directory information about specific subscribers.  They don't indicate anything about who calls were made to from the number.  They just indicate who the person is, where they live, what their phone number is.  And this also was information he used to put his database together, but it's not complete information here.  He has told me that there have to be far more of these other documents.

Now, just moments ago Mr. Porter handed me another stack of documents, some of which appear to be long distance phone records.  Some appear to be a computer printout, I guess from the phone company, that again indicate specific phone numbers, but they don't give any information in terms of who was called on a specific date.

So I don't know where we stand with the phone records.  They don't seem -- no one seems to have any complete records of whatever it was Mr. Powell used, and I don't know that what he got was complete, either, but I have no way of telling without getting everything that he looked at.  And it appears to me from our endeavors to get this that nobody knows where those records are, the records he used.  He acknowledged that there were hundreds of these that he looked at because there were so many different people he was looking at and different phone numbers that he -- that calls were made to that he was making his analysis from.  So I don't know where the rest of these are.

[Brief comments between counsel]

MS. ROGAN:  Yes, that's a good -- Mr. Porter is suggesting that I mark these, at least for the record.

MR. PORTER:  Mr. Moore said that.

MS. ROGAN:  I'm sorry.  Mr. Moore suggested it, which is a good idea, to mark these for the record.  I really -- I'm at a loss to know what to do in terms of the phone records.  I definitely want to get into the information.  I think it's pertinent.  I think that the -- well, there are two other things I want to say. 

This report -- it's a notebook that I've been using -- has many, many phone calls documented, and there's clearly a pattern discernable in terms of who is calling who when.  And that's something that I think is relevant to the case, particularly inasmuch as there have been allegations that Mr. Chapel was calling the victim quite a bit.  It's also relevant to who the victim was calling in terms of the friends who testified, provide information about the phone conversations with her.  There are certain phone conversations documented here, and I believe the absence of other phone conversations on particular days is very relevant to issues that have been presented in the case.

The other thing is that Mr. Powell's daily report which -- summary report, which we were referring to yesterday and which I'd also like to have a copy marked for the record, indicates that at the very end he said that his analysis is complete with the exception of the financial records, which he's made several references to throughout the summary as having been incompletely provided, but he doesn't say anything in his report about the phone records being incomplete.  And as far as his report stands, the phone records he got were complete, I contend, and that analysis he made based on the phone records is an accurate reflection of -- it's a limited time period we're talking about, too, Your Honor.  He measured data from April 3 through about April 23 of 1993.  It's not a -- it's not an extensive period of time.  And his belief, I contend, from the time -- at the time he wrote his report is that the phone records he'd gotten at that time were reflective of the phone calls that had actually been made.

THE COURT:  All right.  Mr. Porter?

MR. PORTER:  Your Honor, this is precisely why the state was explaining to the Court the origin of the documents.  Not the record, but the report and the computer printout created by Lieutenant Powell to the Court, because we think the origin of that is relevant to its admissibility. 

And I will state again that this whole document, first of all, is not discoverable under any theory of law and was not discoverable but was provided to the defense.  But it is simply a document that takes whatever information Lieutenant Powell was given, without basically any concern for accuracy, and gave him the information and he did with it as he chose on an experimental basis that was discontinued during the course of the case.

And so I think to draw or allow this jury to hear conclusions which were drawn from essentially flawed data is misleading; and, therefore, the state believes that none of this evidence is admissible.  None of Lieutenant Powell's conclusions are certainly admissible.  And Lieutenant Powell's testimony yesterday was that he was under the impression, even as he was working with the phone records, that they were not complete.  So any conclusion he draws from that information is necessarily flawed.  And I don't imply anything to Lieutenant Powell's work ethic, I don't imply that there was any misconduct on the part of the police, I don't imply anything other than it was an experiment, and because of the nature of the issues that have been brought up it was discontinued.

THE COURT:  So what are you asking for, Ms. Rogan?

MS. ROGAN:  I'm asking, Judge, number one, to be allowed to question him about the MDT records, which I think have been provided and established.

THE COURT:  Any objection to that, Mr. Porter?

MR. PORTER:  Your Honor, subject to particular questions and particular relevance objections, once again, we're back into are his conclusions valid or any more valid than -- for the jury.

THE COURT:  Well, it seems to me some of the examination --

MR. PORTER:  It may be relevant to say, 'Did you review the record and does it show an MDT call between Unit 341 and 320?'

THE COURT:  Yeah.  Well, during the course of the trial we've got investigators who were out talking to people and obtaining information, getting all kind of statistics together and all kind of information together, making calls and interviewing folks, and I think during the course of trial we've had examination by both sides as to what their investigation showed, some of which, I guess, has been hearsay, but part -- and I don't know exactly where in all ways you draw the line between, 'Well, what did you see, and what did they say, and what did you do,' as being admissible as opposed to being inadmissible hearsay.

But, it seems to me, some of what Officer Powell's -- Lieutenant Powell's inquiry is in this nature, which would be the nature of the same investigation we've had other witnesses and maybe the examination of those witnesses would be appropriate just like -- of this witness just like some of those as to what he did and what he saw, what facts he -- what he knows and the basis of it. 

But his opinions, I think, you know, maybe some of them will come in and maybe they won't, but I think his opinions may well be irrelevant.  The question is, what does he know?  And I think what he knows you can inquire into.  And it seems to me, on the basis of his investigation and those -- the examination of those documents, the police records, that if you want to ask him about what calls he can ascertain were made, it seems to me those kind of questions would come in.  His opinions and what his conclusions were, I guess, we'll see what the questions are.

MS. ROGAN:  I understand.  I've tailored my questions according to our discussions.

THE COURT:  So insofar as MDT, it seems to me, that's a permissible line of inquiry.  And you can interpose objections however you think -- however you think they ought to be, Mr. Porter, and we'll resolve them as we get to them.

MR. PORTER:  That's the point of the state.  I'm not disagreeing in regard to the MDT records.

THE COURT:  All right.

MR. PORTER:  I don't want to just say she can go into it anywhere she wants as far as the MDT records.

THE COURT:  Okay.  And the financial records, that's a matter -- they're his records.  You can obtain those.

MS. ROGAN:  That's correct.  I'm not going to elicit any information from this witness about those.

THE COURT:  All right.  What about the -- so that brings us to the phone records.

MS. ROGAN:  The phone records.

THE COURT:  All right.  What do you -- what about them?  What are you requesting?

MS. ROGAN:  My request is to be allowed to elicit from Lieutenant Powell whether he was provided with telephone records to put into his database to make an analysis of what calls were being made from particular numbers and who was calling who, and whether those records still exist.  And if they don't exist, I'd like to be able to make the argument to the jury that they were destroyed and let them draw from that whatever they choose.

MR. PORTER:  Your Honor, I think that's an improper line of questioning.  They were destroyed in the course of business.  The police -- that's an implication that the police are responsible for the destruction.

MS. ROGAN:  Well, I don't know who else is responsible for it.

MR. PORTER:  Southern Bell destroyed the original record.  There would be no other way that the defense could get these in under a legitimate theory of law if the state didn't agree than through the records of Southern Bell as a business record.

THE COURT:  Well, that brings us to another point.  If -- what rule of evidence are we operating under with respect to the phone records?  If the phone records, if they are -- I think surely they are the business records and would be admissible under the Business Records Act if the phone company were here with their records.  But if we have a circumstance where an officer -- an investigator for the police department has them, and he's got them not because the police department makes those kind of records in the ordinary course of police business, and these were made in the ordinary course of police business, I don't think that's where we are.  But if somebody strolls up and hands them to Lieutenant Powell and says, 'Here's the phone records,' I don't think that makes them -- it doesn't seem to me that makes them business records of the police department such that you can put them in as business records of the police department.  It's just a stack of papers that somebody gave him to look at during the course of the investigation, it seems to me.

MS. ROGAN:  Well, there are two aspects to that, Your Honor, and we may be in completely uncharted territory with this, but it seems to me that to the extent that they were generated in the course of an investigation and kept for a period of time for the purpose of that investigation, I think that --

THE COURT:  Does that make them a business record of the police?

MS. ROGAN:  -- they do qualify as a business record of the police department.

THE COURT:  You can make that argument, I'm sure.

MS. ROGAN:  Secondly, to the extent that the records that he used and any conclusions that he drew therefrom or the pattern that he observed are exculpatory to Mr. Chapel, I think that constitutes Brady material, which I think the state had an obligation to disclose to us, and they did provide us a report --

THE COURT:  They gave them to you, didn't they?

MS. ROGAN:  I don't -- I don't -- I never saw these documents before.

MR. PORTER:  Your Honor, I will state in my place, and Mr. Miller acknowledged last night when we delivered the second copy, that we have provided this to the defense.  It was provided over a year ago when Mr. Moore first came into the case.

MS. ROGAN:  But if this is --

MR. PORTER:  And it's been provided.

MS. ROGAN:  If this is the extent of what was provided, it's not complete.  It's not everything that Mr. Powell looked at.  He's told me that already.

THE COURT:  Did you give them everything you had, Mr. Porter?

MR. PORTER:  I gave them everything I had.  I don't know -- I don't know whether -- Your Honor, that goes back to the issue of the nature of the document.  The document itself was not used in the investigation of the murder of Michael Chapel.  It was a project that was attempted.  For all I know, the phone records that were gathered at such expense and effort were shredded.  I don't know that.  The project was discontinued before the investigation was completed because the way of dealing with the information was too unwieldy.  People had to drive to the northside precinct, deliver it to Lieutenant Powell, he only had him and -- himself and Investigator Browning to input this data.  It was slowing the investigation down, and the detectives eventually began to stop delivering the information.

THE COURT:  So they just dumped it altogether.

MR. PORTER:  And they just dumped it and the project ended.  And, therefore, Your Honor, I think that's relevant as far as the issue of the admissibility of this document.  It is as I described it yesterday, a flawed document.

THE COURT:  Well, how would this information be any different from any other information that the police department acquired during the course of the investigation insofar as it being subject to cross-examination by defendant's counsel?

MR. PORTER:  Your Honor, I think -- I don't know that it is different than any other information that's subject to cross-examination, but there's two things here:  Ms. Rogan wants to put Lieutenant Powell on the stand to prove or -- actually prove a negative, that there weren't any calls from the precinct to Emogene Thompson's house, that there weren't any calls from Emogene's Thompson's house to Dolores Burel's.  And our point is is you can't prove that with flawed information, with incomplete information, and information we knew was incomplete from the beginning.

THE COURT:  Well, my inclination is to let her inquire into it to the extent that he knows.  If they -- if they had a third of the data that they needed to look at, and they looked at that one-third, and it didn't show whatever it is that she wants to show it didn't show, and he testifies, 'Well, we looked at the third of it that we had and it didn't show a call to whatever, but we didn't have the other two-thirds so we really don't know,' I think that's a matter -- I'm inclined to let her inquire into that on direct, and you can inquire on cross as to the other two-thirds and demonstrate that the conclusions you can draw is zero from it.  I think if that was part of the investigation, that was one of the things they looked at to the extent it showed or didn't show anything, I'm inclined to let the defendant inquire into it on cross -- or on direct, I guess, in this case.

MS. ROGAN:  That was another request I was going to make, if I might have a little latitude with Lieutenant Powell in terms of treating him as a hostile witness inasmuch as he is a police officer.

MR. PORTER:  Your Honor, I don't think simply because a man is a police officer and works in the Gwinnett County police department that they're entitled to cross-examine every witness they have.  I know they've made that statement over and over and over, but there has not been a single witness who has displayed an uncooperative attitude and who hasn't been willing to come and testify.

THE COURT:  There hasn't been much constraint on leading questions anyway, at this point, I don't think.

MS. ROGAN:  Well, the other --

MR. PORTER:  But, Your Honor, I still believe that this is a direct examination and it's their witness.  They're going to have to get their evidence out of him in a non-leading fashion.  I've already -- and I'm particularly concerned since I've already made objections to the manner in which leading questions are asked in this case.  I don't think I want to see Ms. Rogan get up and testify to what she wants out of these records, given the fact that I except to the Court's ruling and given the fact that I think that any conclusions drawn is flawed from them.

THE COURT:  I'm not talking about conclusions.  I'm saying I think she's -- I'm going to let her inquire as to what he looked at, what he saw, and, you know, what he didn't see or what he doesn't know.  I think that's a proper matter for cross-examination by the state.  Let the jury hear it.

MS. ROGAN:  The other problem I have, Your Honor, and I just don't know logistically how to do this, and that's one of the reasons for my request for some latitude.  I have this notebook which is the compilation of -- it's just a listing of data, and then he had a general summary report, which is about fourteen pages long.  I made a copy of that for him.  As you could see, Lieutenant Powell brought nothing with him yesterday.  And in speaking to him this morning outside court, he doesn't have any personal recollection of any of this, and he'd need to have his memory refreshed as to what data he entered for a particular day.

THE COURT:  Well, he's your witness, and you can examine him however need be, I guess.

MS. ROGAN:  Well, I'd like to maybe provide him with this for use during his testimony if that --

THE COURT:  Any problem with that, Mr. Porter?

MR. PORTER:  Yes, Your Honor.  She can have as much -- Your Honor, this comes back -- they sat Lieutenant Powell out here all day yesterday,  They've never spoken to him, and now they want to refresh his memory with a document that is inadmissible, and what will happen is he'll testify from it.  They haven't refreshed his memory.  They want him to read out of the document.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, I object to Mr. Porter's inference that we haven't been diligent with our witnesses.  We started court yesterday at nine o'clock, we were in court till about six or after six.  We were with witnesses and other people until about ten o'clock last night, and there just aren't any hours in the day to talk to people sitting outside the courtroom.  If the Court will give us recesses, we'd be glad to talk to them.

THE COURT:  I understand, Mr. Moore, but I'll point out that we're on trial here at the defendant's statement back a couple of months ago saying, 'I'm ready for trial and we want to impanel a jury and proceed with this case,' and that's where we are.

MS. ROGAN:  But we also subpoenaed Lieutenant Powell to bring all of his documents, and I assumed, erroneously, that he would bring a copy of the report he made that was pertinent to this case.  He failed to.  I mean, I -- we asked him to bring it.  He says he doesn't have it anymore; he gave everything to the DA's office.

THE COURT:  Well, I guess if he doesn't have it, he doesn't have it.  Well --

MR. PORTER:  Your Honor, and I think that's the problem is we're going to go with memory refreshed.  That doesn't just give license to testify from what is an inadmissible document.

THE COURT:  Well, I suppose, but I think if she can show it to him, if that refreshes his memory, he can testify.  If it doesn't, he can say it doesn't, and he doesn't know.  And we'll hear from him.

I think the time has come to do something with it.  So the order of the Court is going to be, with respect to the -- let's see, what was the first issue?  The first issue was --

MS. ROGAN:  The MDT records.

THE COURT:  -- the MDT.  You can ask him about the MDT.  You can show it to him and refresh his memory.  If it refreshes his memory, fine.  If it doesn't, fine.

With respect to the telephone documents, you can ask him what he knows or what he learned, what he knows with respect to his investigation as it may have come from the phone documents, whatever that is or however much or however little it is.  And Mr. Porter will have the opportunity to pose his questions along with it.

With respect to --

MS. ROGAN:  Well --

THE COURT:  What else?

MS. ROGAN:  Well, I'm just concerned about -- I'd like to enter these into the record and have him identify them, but the state, I'm anticipating, is going to object that they're not complete and, therefore, they shouldn't be admissible.

THE COURT:  Well, they're aren't going out to the jury anyway.

MS. ROGAN:  No, they're not.  But I wanted --

THE COURT:  If you want to make them part of the record, I don't have a problem with making them a part of the record.

MS. ROGAN:  I want to be able to ask the witness if he consulted more documents than this to compile the data that he has.

MR. PORTER:  What's the relevance of that?  That's not relevant.  He could have looked at a thousand more documents.

THE COURT:  Well, he can answer.  You can admit them.  You can ask him about it.

MS. ROGAN:  Okay.

THE COURT:  Whatever he knows, he knows.  If he doesn't, he doesn't.

MS. ROGAN:  All right.

THE COURT:  We'll proceed on with it.  What about the issue of the defendant's expert?

MS. ROGAN:  I looked up the cases we were discussing last night, and as I suspected from the cites to Blige v. State, the case went up twice to the Georgia Supreme Court, is basically the situation.  The case that the state was relying on yesterday --

THE COURT:  And went to the Court of Appeals, and then it went on cert to the Supreme Court, didn't it?  Did it go to the Supreme Court again?

MS. ROGAN:  Yes. 

THE COURT:  Okay.

MS. ROGAN:  There were two.  I think what happened was it got sent back the first time --

THE COURT:  Okay.

MS. ROGAN:  -- and then Blige was tried again and it went back up again.

THE COURT:  Okay.  With the net result being what?

MS. ROGAN:  The net result being that the first time it went up, it went to the Court of Appeals, that was the case the state was citing yesterday which indicated that the name and address, I guess, of the experts have to be disclosed.  That case went up to the Georgia Supreme Court in 1993.  The Georgia Supreme Court affirmed that ruling based on Sabel, and it's a very short reference to that.

THE COURT:  Well, that was with a written report; right?

MS. ROGAN:  It says -- this is the Georgia Supreme Court, Your Honor, in the 263 Ga. 244 case:

'Blige also contends that the trial court erred when it required him to reveal the name of his expert and provide the state with a copy of his expert's report.  The holding in Sabel expressly authorizes such disclosure,' citing to Sabel.

The case of Blige then went back down on another ground, and I guess he got tried again.  He went back up to the Georgia Supreme Court, and the next Georgia Supreme Court decision was 264 Ga. 166, which is the case the Court was reading from yesterday which refers to the state's reference to the fact that a particular expert was originally retained by the defense, which is not the issue we're dealing with here.

The Court, at that time, said nothing about the other issue.  I don't think it was raised before it at that time, the issue in terms of disclosing the name.

In the meantime, the Rower case came along after both Blige decisions.  The Rower case dealt precisely with the issue we're dealing with here, which was basically is Sabel still the law. 

The Supreme Court in Rower said, no, Sabel is not the law because it expands the state's discovery rights beyond those that are permitted by the statute, and the state will have only those discovery rights --

THE COURT:  Boiling Rower down, what it says is the defendant has the same rights under the discovery statute as the state has.  That's what it -- boil it down and that's what it says.  What the state's got is what the defendant's got.

MR. PORTER:  And the same obligations.

THE COURT:  Yeah.

MS. ROGAN:  Right.  Which pertain only to --

THE COURT:  Written reports.

MS. ROGAN:  -- providing written reports.  It says nothing about providing the name of the witness.  And the name of the witness goes to a constitutional obligation the state has which is in no way reciprocal on the defendant.

THE COURT:  Well, there's one question I have.  It seems to me that Rower is really an extension of the statute by virtue of case law.

MR. PORTER:  That's correct, Your Honor.

THE COURT:  I mean, there is no statute that says that the state's got that right.  And the question, it seems to me -- for example, if the defendant has the right to a list of witnesses of the state, why doesn't the state -- you know, what's the difference in the statutes?  You know, that's discovery in a sense.  What's the difference?  That's not an issue before the Court, but that's just sort of -- from a logical sense, you know, it's hard to make a distinction in my mind.

But anyway, that's it.  I don't mean to digress.  Go ahead.

MS. ROGAN:  Well, my reading of Rower is that to the extent that Sabel brought in the state's discovery rights, it is overruled.  That's what the court says.

THE COURT:  I think we all agree Rower says what the state's entitled to is the same thing the defendant's entitled to under the statute.  So where does that leave us?

MS. ROGAN:  That leaves us with -- well, I don't know where that leaves us, Your Honor, because we're entitled to the names and addresses of all the state's experts under the Constitution.

THE COURT:  Let me hear from Mr. Porter. Mr. Porter, what do you think?

MR. PORTER:  Your Honor, our position is, both on a legal basis, number one, that issue in Blige is still good law, that the requirement of providing the name and report is still a valid requirement --

THE COURT:  What if you don't have a report?

MR. PORTER:  -- even under Rower.

THE COURT:  What if you don't have a report?

MR. PORTER:  Your Honor, then I think the cases that we discussed when we were talking about the issue of the RG come into play, the Wellborn case, the --

THE COURT:  I agree that's where we are.

MR. PORTER:  -- those types of cases.  And there is a case, Walls v. State, at 169 Ga. App. 80, which is a 1983 case.  It says, 'Oral communications of the contents of a scientific report are not substantial compliance which would free the state -- free the state to allow them to call the witness.'

So we think if Rower stands for the proposition that under 17-7-211 the rights and obligations are reciprocal, then we think under that -- under that right and obligation, and the cases which interpret that as far as the state's obligation, we believe the obligation is on the defendant to supply us with the name.

THE COURT:  What do you understand the cases to say if, for example, the state has an expert who's not making an evaluation?  What if you have a DNA expert who you want to come in and just talk about DNA, where he isn't going to make any kind of report, isn't going to evaluate any particular test, but just is simply going to come in as an expert and talk about DNA?  Is that a -- is that a scientific report?  Is that any disclosure requirement under the scientific reports?

MR. PORTER:  The name of the -- the name of the witness --

THE COURT:  But that would be by a different statute, though.  That would be the requirement to disclose a list of witnesses to the defendant.

MR. PORTER:  That's correct, Your Honor.  But we believe that if a witness -- if a witness is going to give an expert opinion about a scientific test or scientific report, and the court has held that various things are scientific reports or the courts of this state have.  They've held everything from arson investigations to ballistics tests --

THE COURT:  Is there any -- is there any expert for the state that would not require disclosure?  I mean, don't we have some of the cases that say, well, there was no report, and that's why you didn't have to send it to them?

MR. PORTER:  There was a case, Your Honor, in which an arson investigator testified to general accepted standards of accelerants and burn tests which were not -- they were not tests that were done in the contemplation of the litigation then pending and, therefore, they said they were not disclosable under 17-7-211 by the state, and he never reduced those to writing because they were basically standard tests.  And I think that's along the analogy of the Court's example of if somebody wanted to come in and just talk about DNA in general.

THE COURT:  All right.  Well, the ruling of the Court is I'm going to decline to order disclosure of the defendant's expert, and if that requires a continuance along about Monday or so for the state to prepare rebuttal, then that's a matter I'll give reasonable consideration to.

MS. ROGAN:  All right.  There's one other issue that, in an abundance of caution, given the Court's ruling, we have an accountant, a financial analyst, who has evaluated the bank statements in this case, Mr. Chapel's bank statements, and he will be testifying about his conclusions regarding those bank statements.  He did not compile a report.  What he did was create some charts that we're going to have him testify from.

I can provide those to the state if the Court believes those constitute a report.  I do not consider them a report, but I don't want to have a situation once the witness comes in and Mr. Porter objects on the basis that he wasn't provided with this information.  It's a graphic -- it's demonstrative evidence, it's not a -- it's not a report.

MR. PORTER:  We'd better start with the more basic issue, Your Honor.  An expert opinion is only admissible if it goes to a matter which the jury is incapable of determining for themselves.  This -- the expert testimony that has been described by Ms. Rower -- or excuse me, by Ms. Rogan, is not a matter that this jury cannot figure out for themselves.

THE COURT:  Well, I don't know.  I don't know what he's going to say.  So, at this point, I'm not going to say your witness can't testify because -- I don't think I know enough at this point to judge.  I think that's a matter -- you can make your objection when they call him.

This is -- you've got a summary of -- what's he going to do?  He's going to summarize the income, expenditures, and deposits, and all that sort of thing?

MS. ROGAN:  He tracks patterns of deposits and withdrawals based on the bank records that he evaluated.

THE COURT:  All right.  Disclose it to the state and bring him in.

MR. PORTER:  Your Honor, we're going to ask that there be a proffer outside the presence of the jury based on that.

THE COURT:  You can make your motion when they call him.

THE COURT:  All right.  Anything else at this point, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  Ms. Rogan?

MS. ROGAN:  No, Your Honor.

THE COURT:  Ready?  All right.  Bring the jury in, please.

MS. ROGAN:  Your Honor, would it be all right if we start over with Lieutenant Powell?  I think that we'd only gotten as far as where he works.

THE COURT:  That will be fine.  Yes.

[The jurors were escorted to the courtroom.]

THE COURT:  Good morning, ladies and gentlemen.

[Jurors respond]

THE COURT:  I hope everybody's well this morning.  Do you wish to recall Lieutenant Powell?

MS. ROGAN:  Yes, Your Honor.

THE COURT:  All right.  If you'll have Lieutenant Powell come in, please. 

[The witness was called to the courtroom.]

THE COURT:  You've already sworn in the witness, have you not?

MS. ROGAN:  I did, your Honor.  I was just going to ask if you wanted me to re-swear him.

THE COURT:  I don't believe so.

MS. ROGAN:  All right.

THE COURT:  Lieutenant Powell, if you'll retake the stand, please.  

[The witness stepped to the stand.]

THE COURT:  I remind you you've been sworn and remain under oath.

THE WITNESS:  Yes, sir.

Whereupon,

     MICHAEL D. POWELL

having been recalled as a witness and previously duly sworn, was examined and testified further, as follows:

     DIRECT EXAMINATION - RESUMED

BY MS. ROGAN:

Q.   Good morning, Lieutenant Powell.

A.   Good morning.

Q.   I'm going to start over again since we didn't actually get very far into your testimony yesterday.  Would you tell the jury, please, where it was you were working in April of 1993?

A.   In the intelligence unit.

Q.   Of the Gwinnett County police department?

A.   Gwinnett County police department.

Q.   And what were your specific duties in that capacity?

A.   We work complex case organized crime and do support work for the other units of the -- enforcement units of the police department.

Q.   Were you involved in the investigation into the death of Emogene Thompson?

A.   Yes, I was.

Q.   What was your role in that investigation?

A.   Simply as a support to put together information furnished by the investigators who were actually working on -- working the case.

Q.   Did the investigators who were working the case then furnish you with information for you to evaluate or analyze?

A.   To put into a database to compile the information for them so they could take a look at it in various different ways, yes.

Q.   What types of information were you provided?

A.   Phone records, MDT records -- and I would have   to --

Q.   Were you provided with financial records?

A.   Yes.

Q.   Could you tell us, please, what MDT means?

A.   No, I can't.  It's an acronym for the computer system at the police department that works from car to car.  I'm not -- I'm not familiar with what the technical -- or what the full name --

Q.   What the actual letters mean?

A.   Yes, ma'am.

Q.   But can you describe for the jury what the communication consists of?

A.   Basically, yes.

Q.   Or how it works?

A.   Yeah.  There's a -- there's a console in each car and there's a console at headquarters in the communications room.  Officers have communications between cars by this -- by the use of this -- it looks like a computer with a keypad or a keyboard, and they type in their message and they can send it to other cars or they can send it to headquarters -- and I'm not sure how the --

THE COURT:  The jurors can't hear.  You need to just maybe come a little closer to the microphone and speak up so everybody can hear, please.

THE WITNESS:  I'm sorry.  Okay.

BY MS. ROGAN:

Q.   To your knowledge, does every squad car have now, or in 1993, a computer terminal?

A.   That I'm not aware of, whether all of our cars are fully equipped with that or not, no.

Q.   Are most of the newer cars equipped with that?

A.   Most of them, from what I understand, are equipped with it.

Q.   Okay.  Were you a patrol police officer at one time?

A.   Yes, I was.  But we didn't have this type of equipment when I was a --

Q.   And when was it that you were a patrol officer?

A.   I believe it was around '85, '86, somewhere around in there.  I'm not -- I'm not real sure on that.

Q.   I'm going to hand you what's been marked for identification as Defendant's Exhibit 148, and ask you if you recognize what this stack of papers is, and if you could identify them for the Court.

A.   When officers use the MDT or they use that MDT, that computer system we just described from car to car, the records are centrally kept at a location for a certain length of time.  And I'm not familiar with the exact lengths of time.  But they can make printouts of communications sent by these computers from car to car or from headquarters to cars, all the communications that go across these --

Q.   Is this a stack of records of communications for a particular period of time?

A.   This one's dated 3/16 of '93.  Are they in any kind of order?

Q.   I can't vouch for what order they're in.  This was the order that I got them in.

A.   We go back as far as 3/15 of '93 on that.

Q.   Do you recall, Lieutenant Powell, the period of time you were asked for focus on in your investigation?

A.   It would have been several weeks prior to and several weeks after the Emogene Thompson homicide.

Q.   Okay.  So would that be roughly the month of April of 1993?

A.   Yes.

Q.   The latter part of March as well?

A.   It would -- that would be the area that we would be concentrating on, the dates.

Q.   Do these look like a copy of the MDT records that you were provided in order to do your database?

A.   That's correct.

Q.   All right. 

MS. ROGAN:  At this time, Your Honor, I'd like to tender --

THE COURT:  A few jurors cannot hear your testimony.  We need to move that microphone up a little bit.

MS. ROGAN:  Just move it up and --

THE COURT:  Yes, and just speak louder.  Speak louder so everybody can hear, please.

MS. ROGAN:  All right. 

THE COURT:  What's your question?

MS. ROGAN:  I'd like to tender for the record Defendant's 148, which is the printout of the MDT records that Lieutenant Powell was provided with.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, the state has stated it's objection to the entry of those documents.

THE COURT:  All right.  Defendant's 148 is admitted for the record only.

BY MS. ROGAN:

Q.   To your knowledge, Lieutenant Powell, when you were provided with the MDT printouts, was it a complete accounting for the period of time that you were asked to look at?

A.   Was it a complete accounting?  I do not recall -- as I said, I'd have to go through and look at each -- each record, or each record that was entered to make sure what time period was involved in the actual entry of the database -- or entry of the data from those records.

Q.   I guess my question is were you informed at the time by anybody that these were incomplete records?

MR. PORTER:  Your Honor, that would be hearsay and we would object to that.

THE COURT:  Objection is sustained.

BY MS. ROGAN:

Q.   Did you have any reason to believe that the records were not complete?

A.   I took -- I took all the records that I was furnished with and put them in the database.

Q.   Okay.  Now, you also mentioned that you had been provided with telephone records?

A.   That's correct.

Q.   I'll show you what's been marked for identification as Defendant's Exhibit 149 and ask if you recognize these and can identify what they are.

A.   Okay.  These are copies of microfiche records I received that were entered into the database.

Q.   Do you know where they're from?

A.   I cannot tell you where they're from.

Q.   If you know.

A.   No, I don't.  I don't know where they came from.

 [Pause in proceedings]

 THE COURT:  What was your question?

 MS. ROGAN:  I was going to -- I was asking if he recognizes these documents.

      THE COURT:  Okay.  Well, do you recognize them?

 THE WITNESS:  These -- if they're all these -- the same as -- these records and these records are different.  These are subscriber information from phone numbers that is furnished by Southern Bell.

BY MS. ROGAN:

Q.   Are those records that you received in order to do the investigation that you were asked to do in this case?

A.   These would be the type of records that we received to enter into the database.  Now, there was no marking of them or anything.  If there are names in the database and they came from the subpoenaed information, this would be the form that they would come in that I was given to enter into the database.

Q.   You've seen those types of records before or those records?

A.   Yes.

Q.   Are these all of the records that you used to compile the telephone database?

A.   These here?

Q.   Yes.

A.   I don't believe so.  I think we had more of this type of information.

Q.   Okay. 

 MS. ROGAN:  Your Honor, at this time I would like to tender for the record Defendant's Exhibit 149, which is a partial compilation of telephone records that Lieutenant Powell used.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, we would renew our objection.  And we would renew our objection that they're incomplete, that they have not even been properly identified by Lieutenant Powell.  He cannot state that those records are even contained in the database.  They're just records similar to what he used, and we believe there's been no foundation laid for them, even through the identification of Lieutenant Powell.

THE COURT:  Ms. Rogan?

MS. ROGAN:  Your Honor, Lieutenant Powell has identified the records that were provided to him this morning as records that -- as a portion of the records that he used.

THE COURT:  Defendant's 149 is admitted over objection for the record.  What's your question?

BY MS. ROGAN:

Q.   Lieutenant Powell, did you compile a report at the end of this project that you had engaged in?

A.   Yes, I did.

Q.   I'm going to show you what's been marked as Defendant's Exhibit 150 and ask you if you recognize that and can identify it for the Court.

A.   Yes, I can.

Q.   And what is that?

A.   This is a -- all the information that was entered into the database, this is a summary of what we run across of the information inside the database.

Q.   And is this a true and accurate copy of the report that you made?

A.   Yes.

MS. ROGAN:  Your Honor, at this time I'd like to tender for the record Defendant's Exhibit 150, which is a copy of Lieutenant Powell's report.

THE COURT:  What's its relevance?

MS. ROGAN:  I'm going to be asking if he needs to refresh his recollection by consulting it, and I'd like to have it as part of the record in light of our previous discussions.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, we stand by our objection that it's not relevant, but for the record I suppose the state can agree to its admission.  The Court has already indicated it's going to allow Ms. Rogan a limited trip into the contents of it, and we've stated our objection to that.

THE COURT:  All right.  It's admitted for the record.

BY MS. ROGAN:

Q.   And lastly, I'd like to hand you what's been marked as Defendant's Exhibit 151 and ask you if you recognize what is in that notebook.

A.   These are the phone records that I entered into the database.

Q.   Are they also MDT entries?

A.   That's correct, there are MDT entries, also.

Q.   Is that a day-by-day listing of information that you --

A.   Day by day and also by hour, daily.

Q.   And hour by hour, okay.  Is that a true and accurate copy of the --

A.   With this amount of information, as far as I can tell from here, yes, ma'am, it is.

Q.   Okay.  You've seen -- you've seen that before?

A.   Yes.

Q.   Okay.

A.   Except for the --

Q.   The tabs.

A.   -- the tabs.

Q.   I understand.

MS. ROGAN:  At this time, I'd like to tender for the record Defendant's Exhibit 151, which has been identified by Lieutenant Powell.

THE COURT:  Mr. Porter?

MR. PORTER:  Your Honor, we've stated our objections as to the relevancy and the admissibility of it.  For the record we have no objection, but we continue to maintain our previous objection.

THE COURT:  It's admitted for the record.  Go ahead, please.

MS. ROGAN:  All right.  Thank you, Your Honor.

BY MS. ROGAN:

Q.   Okay.  I'm going to turn to the MDT communications first.  You've -- did you -- you analyzed the MDT information that was provided to you, particularly as it pertained to Mr. Chapel?

A.   We took the information and put it in that chronological order so we could look at it, yes.

Q.   And why did you do that?

A.   To give us an accurate picture, as accurate as possible, of all the information that we had in reference to the MDT traffic and where people might be in their communications with each other.

Q.   Okay.  Were you looking to see both where people might be at a particular time, and --

MR. PORTER:  Objection, Your Honor.  She's leading the witness.

THE COURT:  Ms. Rogan?

MS. ROGAN:  I will endeavor to rephrase the question, Your Honor.

BY MS. ROGAN:

Q.   What were you hoping to discover by analyzing the MDT traffic?

A.   Where the vehicles were during the time period of the crime committed, prior to, and after.

Q.   And were you looking at the entire span of the two weeks prior to and two weeks after that you referred to?

A.   As I stated, we -- and without going through -- there were -- you know, there were six thousand -- nearly six thousand records in this.  I do not remember the exact dates that we started with and we ended with, and I will have to -- I would have to look again and go through and make sure, but, yes, it should have been in that time period of, maybe more or less, but two weeks before and two weeks after.

Q.   Were you able to identify which unit was Mr. Chapel's in the communication?

A.   With those MDTs you don't use names, as I explained to you, you use unit numbers.  These unit numbers change daily and are in correspondence with the daily roster, or should be in correspondence with the daily roster of patrol assignments and zones that the people are working.

Q.   Were you able to consult the daily rosters to determine for each day whose -- who was in which unit?

A.   We were -- there again, I received this from other people, so it's -- yes, we got records that indicated who worked on that particular day.

Q.   Were you able to make a determination based on doing that as to whom it was Mr. Chapel might be communicating with over the MDT?

A.   The MDT does -- just because they use that number doesn't identify who is actually using it.  If his console was used, yes, it would indicate a record there.

Q.   I understand.  So it would be who -- would it be whoever was in the car that you were just able to identify?

A.   If we -- from that transmitter, using those numbers, yes.

Q.   Would the code that was assigned depend on the unit, the actual patrol car unit, that the officer was in?

A.   I don't -- I'm not familiar enough with the system to know how each unit is identified.  The numbers -- there's a line of numbers there that I don't know the ID of, but the numbers that I was concerned with was the zone numbers or the numbers used by the officers at that particular time to identify supposedly themselves and talking -- and whoever they were talking to or transmitting to.  There's no voice communication.  It's all --

Q.   Okay.  Did you make a determination for each day who was in which unit as far as you could tell --

A.   As best -- as best we could, yes, ma'am.

Q.   -- and make a conclusion from that as to who the communication was between?

A.   That's correct.

Q.   Okay.  From your analysis of the MDT traffic for this period of time with regard to Mr. Chapel, did you draw any conclusion as to whether he was a frequent or heavy user of MDT traffic?

MR. PORTER:  Your Honor, we're going to object to a conclusion by this witness.  His conclusions are irrelevant to the testimony.  I think Ms. Rogan can ask on a specific day was there a specific call, and the jury can draw its own conclusions.  But Lieutenant Powell's conclusions are no better than any member of this jury as to whether it was frequent or not.

THE COURT:  I'm going to sustain the objection to the question as posed.

BY MS. ROGAN:

Q.   Did you identify a large quantity of MDT traffic by Mr. Chapel?

MR. PORTER:  Your Honor, 'a large quantity' cannot be defined.  It is the same question asked a different way.

THE COURT:  I think it's awfully vague.  Restate your question, please.

BY MS. ROGAN:

Q.   Did it appear to you that Mr. Chapel used MDT traffic every day that he was on duty?

A.   Every day that he was on duty?  I can't say that every day without looking at the results, but it was -- it was -- they're frequently used.

Q.   Did you do any comparison of Mr. Chapel's use of the MDT with any other officer?

A.   No, I didn't.  With any other officer who was communicating --

Q.   With any of the other officers that you had identified in your database.

A.   By compare -- you've lost me here.  I'm sorry, can you rephrase -- repeat that?

Q.   Did you make a comparison of Mr. Chapel's MDT communication traffic with that of any other officer in the precinct from which he was operating?

A.   To show the frequency of use?

Q.   Yes.

A.   No.  Not that I'm aware of, no.

Q.   Were you able to tell from your analysis with whom Officer Chapel communicated?

MR. PORTER:  Your Honor, again, this is -- this would be a conclusion by this witness and a summary of the evidence.  Ms. Rogan can ask who did he communicate with and how many times, but to enter into the summary of this witness is inadmissible.

THE COURT:  Restate the question.  I'm not sure I recall it.

MS. ROGAN:  My question was, if I can remember, did you make a determination as to whom Mr. Chapel was communicating with?

THE COURT:  Objection's overruled.  Go ahead.

BY MS. ROGAN:

A.   [Continuing]  As to who he was communicating with?

Q.   Yes.

A.   As in the names of the other officers that he was communicating with?

Q.   Yes.

A.   As far as the frequency, I don't remember.  But there was -- that was a frequently used form of communication between all the officers.  And --

Q.   Would it refresh your recollection to look at your report?

A.   Yes, it would.

Q.   All right.  And I'll direct your attention to what I'm getting at.

A.   Okay.

Q.   I'll direct your attention to --

MS. ROGAN:  Sorry, Your Honor.  I thought I had it right here.

BY MS. ROGAN:

Q.   -- Page 4, the beginning of the page.

A.   Page 4?

Q.   Yes.  Of your report.

A.   Which portion of it?

Q.   Beginning -- the middle of the page, excuse me.

A.   Are you talking about the registration checks or the phone --

Q.   Just before that, in terms of who he communicated with.

A.   From the phone analysis?  Are we talking phone analysis or for MDT?

Q.   MDT.

A.   [Witness examines records]

Q.   I can expedite this.  Why don't we move on to specific entries.  Did you pay attention during your analysis to whether or not Mr. Chapel was running registration tags, which also appears on Page 4?

A.   That's correct.

Q.   Okay.  And did you note in your report that, for instance, on April 3rd of 1993, he ran a tag at 15:16?

A.   Is this -- which report?

Q.   If you'd like to refresh your recollection with this, that would probably speed things up.

A.   What was the date?

Q.   April 3rd of 1993.

A.   And the time?

Q.   Fifteen-sixteen.

A.   Yes.  There's an entry at that date and time on Saturday.

Q.   Okay.  Is there also an entry at 17:23?

A.   On Saturday the 3rd at 17:23, yes, that's correct --

Q.   Is there also an entry at --

A.   -- but that's not -- that's not a tag that was ran.

Q.   What was that entry?

A.   This is a -- this is an entry of a communication.  I believe it's -- it shows the numbers 3130 to 332C.  Those are the numbers that I was talking about that they are identified by depending on which area they're working at the time.  And I don't know who 3130 was on the communication.  That's not one of our numbers.

Q.   Who was 332C?

A.   We would have to go back to the -- it's not shown on here, so we would have to go back to the daily roster to see who was working.

Q.   From your report, whom have you identified as 332C?

A.   From the report I identified it as -- as Mike Chapel.

Q.   Is there a tag entry at -- tag check entry at 20:04 on that day?

A.   On Saturday the 3rd at 20:00 -- or 20:04 hours, yes, ma'am.

Q.   All right.  And is there a tag entry that day at 23:21?

A.   On Saturday the 3rd at 23:21, yes.

Q.   And is there a tag entry that day at 23:28?

A.   That's correct.

     Q.   I'd like to draw your attention to April 4th, the following day.  Is there a tag entry that's at 13:28?

A.   That's correct.

Q.   Is there a tag entry at 13:23 -- 29, I'm sorry.

A.   That's correct.

Q.   Is there a tag entry at 14:19?

A.   That's correct.

Q.   Is there a tag entry at 14:24?

A.   That's correct.

Q.   Is there a tag entry at 19:15?

A.   19:15 on the 4th?

Q.   Yes.

A.   That's correct.

Q.   Is there a tag entry at 19:21?

A.   That's correct.

Q.   Is there a tag entry at 21:07?

A.   At 21:07 on the 4th?

Q.   Yes.

A.   No, I don't show one.

Q.   There's not an entry for 21:07 on the 4th for a tag check?

A.   There's one at 21:03.

Q.   That will do.  Just so the jury knows, these numbers we've been referring to, what do they indicate?  What's 21:03?

A.   That's the time of day by military time.

Q.   And would that -- how would one convert that to the time that most of us use?

A.   Okay.  It starts at 0000 hours at midnight, right after midnight, and runs 24 hours.  When you get back to midnight again, it's 24:00.

Q.   A couple more dates.  April 5, 1993, is there a tag entry at 18:37?

A.   That's correct.

Q.   Is there a tag entry at 18:46?

A.   That's correct.

Q.   Is there a tag entry at 20:11?

A.   That's correct.

Q.   Is there a tag entry at 23:06?

A.   At 23:06 on --

Q.   The 5th.

A.   I do not show one in the order that it should be in this as being at that time.

Q.   Is there one at 23:10?

A.   On the 5th?

Q.   Yes, April 5th.

A.   I don't -- I don't see one.

Q.   You don't see that on there?  One more day.  April 7, 1993.

A.   Okay.

Q.   15:15?

A.   April 7th at 15:15 hours?

Q.   Yes.

A.   That's correct.

Q.   15:18?

A.   That's correct.

Q.   15:27?

A.   That's correct.

Q.   15:33?

A.   That's correct.

Q.   15:36?

A.   That's correct.

Q.   16:50?

A.   That's correct.

Q.   17:48?

A.   17:48?

Q.   Yes.

A.   That one would be -- that one appears to be a return on the tag, not a tag --

Q.   Not a running of one?

A.   Yeah.  That tells all the information of the vehicle data, it's not -- doesn't appear to be one that he ran one.  It's the information --

Q.   It was the information coming back on one?

A.   Or the information coming from -- yeah, it should be the information coming back on one.

Q.   If we were to go through every day that you did your analysis for, would we find similar entries for tag checks for his unit?

A.   We would -- we would have to go through every day because every day is different.  The amount and frequency of the traffic varies, and it would --

Q.   From what we have gone through, do you feel like there was a pattern on intensive checking of tags?

MR. PORTER:  Your Honor, I'm going to object to that.  That's a conclusion that the jury can draw from the evidence.

MS. ROGAN:  I think he's entitled to give us his opinion as to what he thought from the data he looked at.

MR. PORTER:  Your Honor, this was discussed at the bench.  His conclusions are no more valuable to this jury or no more relevant or -- he's not an expert and he's not able to give that conclusion.

THE COURT:  Restate your question.

MS. ROGAN:  My question is, based on the data that we've just reviewed, did he believe that showed a pattern of frequent tag checks.

THE COURT:  Objection sustained.

BY MS. ROGAN:

Q.   I'd like to direct your attention as to your report and to the date of April 15, 1993, and specifically at 17:34 on that day.

A.   April 15th at 17 --

Q.   April 15th, that's correct.  Are you there?

A.   [Nodding affirmatively]

Q.   Did you make an entry on the MDT transmission -- or did you record an MDT transmission from the unit that you've identified as Mr. Chapel's to units that you identified as officers -- Sergeant Stone and Officer Reddy regarding the fact that Testron had arrived and he'd already sold 184?  And I direct your attention to Page 7 on your report as well.

A.   I see the two entries in reference to 'the Testron has arrived' at 17:34 and another entry that says, 'most outstanding.'  But I don't see where the -- that he'd already sold 184.

Q.   Is that in your report?

A.   That was in this report, but I don't see it here at 17:34 hours. [In other words, the report stated 184 bottles sold, but that was a typo. The MDT transmission said 18-4 or 18 plus a bonus of 4 from the manufacture had arrived and all 22 had been sold. See below for Porter’s re-cross that confirms this.]

Q.   Did you identify in your report that Unit 321C on that day was Officer B. P. Reddy?

A.   That's correct.

Q.   And that officer -- and that Unit 361C was Sergeant D. E. Stone?

A.   That's correct.

Q.   Did you determine that based on looking at the log sheets for that day?

A.   That's correct.

Q.   Later on in the evening of April 15, 1993 at 22:49 through 22:54 --

A.   On the 15th at --

Q.   The 15th of April.

A.   Twenty-two --

Q.   At 22:49 and continuing on through 22:54, did you indicate some MDT traffic back and forth between two units?

A.   That's correct.

Q.   Okay.  Was one of the units Mr. Chapel?

A.   Is it shown in this report?  Because I --

Q.   His unit number is -- if that would refresh your recollection as to what number you had determined was Officer Chapel.  Was it 332C?

A.   332C?  That's correct.

Q.   And you've previously identified 321C as Officer Reddy?

A.   That's correct.

Q.   Is there some dialogue at 22:49 between those two units?

A.   That's correct.

Q.   And does that continue until 22:54?

A.   Between each other, yes.

Q.   And at 23:02 is there another communication between those two units?

A.   Between 321C and 332C, yes.

Q.   Yes.  And till 23:03?

A.   Till?

Q.   Between those two units.

A.   At what time?  I'm sorry.

Q.   23:03.

A.   23:03?

Q.   Right.  One minute after the previous one.

A.   That's correct.

Q.   Were those communications along the lines of signing off, saying goodnight?

A.   Well, it says 'Bab's already signed off.'  I don't --

Q.   Do you know who Bab is?

A.   No, I don't.

Q.   Would it refresh your recollection to look in your report to see who Bab is?

A.   [Examines document]

Q.   I'll withdraw that.  I'm not sure that it is in your report.  There's a reference to Bab, though, as already signing off?

A.   That's correct.

Q.   Is the communication between these two units that you've identified as Officer Reddy and Officer Chapel conversational?

A.   Conversational?

Q.   Yes.  Just conversations about signing off for the evening.

A.   It says, 'Bab's already signed off.'  The second transmission is 'Later.'  And then the next transmission is 'Roger.'  And signing off to me would be -- would be an official signing off.

Q.   Okay.  I didn't mean to mis --

A.   This is --

Q.   I understand what you're saying.  When I said 'signing off' I mean saying goodnight.  Lastly, on April 16, 1993, is there a communication among -- at 17:22, 17:23 and 17:34?

A.   Beginning at 17 --

Q.   17:23 -- 22 is the first one.

A.   There's a -- there is a transmission log in the records at that time, yes.

Q.   Okay.  Is there communication at that time between the officers that you have identified as Officer Chapel, Officer Reddy and Sergeant Stone?

A.   They were -- they were identified on the -- it was on the 15th as working those zones.  Now, on the 16th --

Q.   The numbers might not be the same?

A.   That's correct.

Q.   Is there communication between those three unit numbers?

A.   That's correct.

Q.   Is there also communication between those three unit numbers at 18:05 on that --

MR. PORTER:  Your Honor, I'm going to object to this.  There has been no establishment that those three unit numbers correspond to the three officers that were discussed, and to raise the inference that they were is misleading.

MS. ROGAN:  Well, I think I should have the opportunity to tie it up with other witnesses who could establish it if he is unable to.

MR. PORTER:  But, Your Honor, to allow the communications now with the inference that it was the same officers on the 3rd -- on the 15th is improper.  If she had wanted to go into this, that would have been the proper foundation for the entire document and the basis of the conversations.

THE COURT:  Your objection is she's asking about what the conversations are saying and we don't know who's saying them?

MR. PORTER:  That's correct, Your Honor.

MS. ROGAN:  I'm not asking what the conversations say.  All I'm trying to elicit is whether there was communication among those three units.

MR. PORTER:  But we don't know who those units were, and it doesn't -- so that doesn't -- there's no establishment on the record.

THE COURT:  Your question is was there communication between those three numbers?

MS. ROGAN:  That's correct, at those particular times.  That's the extent of my question.

THE COURT:  Objection's overruled.  Go ahead.

BY MS. ROGAN:

A.   [Continuing]  Now, between which --

Q.   18:05 to 18:28.

A.   18:05?

Q.   Yes.

A.   We were on 17:20 just a moment -- 18 --

Q.   We were.  I thought you had answered that.

A.   Oh, okay.

Q.   And I was moving on to the next segment of times.

A.   Eighteen --

Q.   At 18:05.

A.   18:05 there is an entry, yes.

Q.   And then continuing on through 18:28.

A.   There on entries on MDT traffic at 18:05, 18:11, 18:12 -- and you wanted to go through 18:28?

Q.   Twenty-eight.

A.   18:13, 18:27 and two at 18:28, yes.

Q.   Are those communications between Units 332C, 321C and 361C?

A.   That's correct.

Q.   Okay.  That's it on MDTs.  I just want to turn briefly to the telephone records, and if I could direct your attention to April 4th of 1993 at 12:37.

A.   April 4th at 12:37?

Q.   Thirty-seven, that's correct.

A.   There's an entry of a phone record that they called from the residence of Emogene Thompson to a Bobby D. -- or the subscriber information is Bobby D. Burel.

Q.   Burel?

A.   That's right.

Q.   On April 5th of 1993 at 17:58?

A.   There's a call recorded in the database from the residence of Emogene Thompson again to the same subscriber information.

Q.   Okay.  And at 19:15 on that same day?

A.   There's another entry and another phone call from the same location to the same location.

Q.   All right.  And on April 8th of 1993 at 14:57?

A.   April the 8th at 14:57 of 1993?

Q.   That's correct.

A.   There's another phone call in the database reference to the call from Emogene Thompson's residence to the number in the bluebook as the Bobby D. Burel residence.

Q.   All right.  I'd like you to try, if you would --

THE COURT:  Mr. Powell, try to speak up.  I'm having trouble hearing and I know the jurors are, too.  Speak up, please.

THE WITNESS:  I'm sorry.

BY MS. ROGAN:

Q.   Turning your attention to April 15th of 1993.

A.   Okay.

Q.   Do you see any entry throughout that day from the home of Emogene Thompson to the subscriber Bobby D. Burel?

A.   No.  I do not see a call from the Emogene Thompson residence to the Burel residence on the 15th in these records.

Q.   Finally, Lieutenant Powell, was one of your assignments in this case to determine whether or not a call had been placed by Mr. Chapel to Emogene Thompson during the two-week period prior to the homicide?

A.   That would have been things that we would be looking for, yes, is contact.

Q.   Okay.  And I'll direct your attention to your report on this, Page 1.  From your analysis of the data that you had, were you able to determine whether or not Mr. Chapel had ever called Emogene Thompson from the precinct?

A.   From Page 1?

Q.   Page 1 of your report.

A.   No.  There was no indication that the victim was called from the northside precinct.

Q.   Were you able to determine whether there was any indication that Mr. Chapel had ever called the victim from his home?

A.   Not that I recall, no.

Q.   If you had recalled that, would you have put that in your report?

A.   Yes.

Q.   Is there anything in your report that indicates that he had ever called the victim from his home, his residence?

A.   No.

Q.   Is there anything in your review of the data as reported in your report that reflects whether or not there was an indication that Mr. Chapel ever called the victim from his gym?

A.   Not that I recall, no.

Q.   If there had been such an indication --

A.   It would have been in the report.

Q.   All right.

MS. ROGAN:  That's all I have, Lieutenant.  Thank you.

THE COURT:  How long is your cross going to be?

MR. PORTER:  Your Honor, I don't expect it to be very lengthy, depending on where we go.

THE COURT:  Okay.  We'll go ahead, then, and take a recess after that.  Okay.  Go ahead, please.

MR. PORTER:  Do you want me to go ahead with my cross, Your Honor?

THE COURT:  Yes.

MR. PORTER:  I'm sorry, Your Honor.  I thought you said to take a recess.

THE COURT:  No, I'm sorry.  You had indicated it wouldn't be long enough for a recess.

MR. PORTER:  I thought you said, 'Take a recess,' and I heard everybody --

THE COURT:  Yes, we've been here a while.  If any of the jurors want to take a recess now -- anybody have any -- do you want to -- okay.  We'll go ahead.

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Lieutenant Powell, in 1993 you were working in the intelligence section of the Gwinnett County police department along with Investigator Browning, weren't you?

A.   That's correct.

Q.   And, basically, the document that you've been referring to, the computer printout and the reports you prepared, was an idea that you had that you thought might help support homicide investigations, in general, wasn't it?

A.   That's correct.

Q.   So, essentially, the document you're talking about here was an experiment to see if the intelligence section could help the homicide section; right?

MS. ROGAN:  Your Honor, I'm going to object.  Can we approach for a minute?

THE COURT:  Yes.

[Counsel approached and a conference was held at the bench, as follows.]

MS. ROGAN:  I don't know that the fact that it was an experiment that they decided not to pursue further in other cases is relevant to -- I mean --

MR. PORTER:  This is relevant to the credibility of the entire document which has been brought in.

THE COURT:  I'm inclined to agree.  I think why they did it, whether they completed it or not, if there's --

MS. ROGAN:  He completed it in this case.  I mean, the end of his report says --

MR. PORTER:  It was not.

THE COURT:  Well, I think that's a proper matter for cross-examination.

MS. ROGAN:  Okay.

[Bench conference concluded]

THE COURT:  Go ahead, please.

BY MR. PORTER:

Q.   And getting back to my question, this was basically an experiment where you thought that if you could get all this data and your data was complete, then it might help in a homicide investigation; right?

A.   If the data was complete, yes.

Q.   And from the very beginning in this case the data was never complete, was it?

A.   That's correct.

Q.   Because you relied on the detectives to bring it to you?

A.   That's correct.

Q.   And the detectives had other things to do, right, and they couldn't drive to Buford and deliver it or they just forgot or whatever?

A.   We had -- we had problems with communications on it, yes.

Q.   So from the very beginning, the document that you prepared, as complete as it is, is incomplete, isn't it, and you knew that when you prepared your report?

A.   Yes.

Q.   So your report is basically your conclusions on the information you had available to you?

A.   Just the information that was entered in the database.

Q.   Now, let's talk about the different segments that we've talked about today.  Let's talk about the MDT.  Are you familiar with the mobile display terminal that's in police cars?

A.   I have seen them.  I have not used them.

Q.   You've never used them?

A.   No, I haven't.

Q.   And did you see in your review of the -- first of all, the MDT itself does not identify the user, does it, except by zone number?

A.   I'm not sure.  You would have to ask somebody else how the MDT identifies itself to a -- to the computer that it's working through.  I'm sure there's an identification code for each --

Q.   Unit.

A.   -- unit.  And, in addition to that, what's printed out is the user's own code.  There should be a machine code and a user code which would be those three 321Cs that we were discussing a while ago.

Q.   So generally in the traffic that you evaluated, it would say something like '321C to 341C'?

A.   That's correct.

Q.   And then there would be whatever traffic it was?

A.   Whatever traffic it was.

Q.   Or it would be '321C to radio,' and so essentially, the MDT is a supplement to the radio traffic, isn't it?

A.   Yes, it is.

Q.   And did you find MDT traffic from 321C that you identified as Michael Chapel where he was out of the assigned zone of 321C?

A.   I would have to go back and --

Q.   So you don't have an independent recollection of it?

A.   No.  No, I don't.

Q.   And in running the tags on an MDT, wouldn't you just have to type the information in and the computer will run the tag through the system and give you back an answer?

A.   The way I understand it, yes.

Q.   Why would you have to write a tag down, then, if you had an MDT in your car?

A.   For a record of it to -- if you were going --

Q.   That's the only conceivable --

A.   -- if you were going -- if you were going to run it later on or -- I don't know -- you would write it down   and --

Q.   So there would be no legitimate reason to write a tag down because you can just type it in the MDT?

A.   That's correct.

Q.   It gives you your information and you do with it what you're going to do?

A.   That's correct.

Q.   Now, you stated that on the MDT traffic you responded, that you reviewed with Ms. Rogan, there was no traffic that said that he had sold 184 bottles of Testron.  You testified to that?

A.   Yes.

Q.   But she was mistaken when she asked you that?

A.   Yes.  In those -- in those conversations that were -- are the -- what was in the record, there was no mention of the -- in those specific conversations of that amount.

Q.   Now, let's go to the telephone records.  The telephone records that you were provided were only outgoing calls from specified places; is that correct?  They were the outgoing calls from the precinct, the gym, Chapel's house, and Emogene Thompson's house; right?

A.   That's correct.

Q.   You can't -- you couldn't at that time nor can you now track incoming calls, can you? 

A.   [No response]

Q.   You could -- the phone company can't give you the records --

A.   No.  The phone company --

Q.   -- of incoming calls to any phone?

A.   No.

Q.   To the phone that's sitting right over there.

A.   No.

Q.   They can't do that?

A.   No, sir.

Q.   And so the testimony you've given about calls being made from Ms. Thompson's house to Ms. Burel's house, you don't know whether there were any calls and you can't track it to any calls that were made from Ms. Burel's to Ms. Thompson's house?

A.   That's correct.

Q.   Now, you've also said that Defendant's Exhibit Number 149 are the telephone records, or at least a portion of the telephone records you reviewed, including subscriber information; is that correct?

A.   That's correct.

Q.   When you reviewed those, you knew at the time they were incomplete, didn't you?

A.   Yes.  I believe if you'll -- if you'll look at it, we had a --

Q.   Let me give you one page.  You can demonstrate it for the jury.

A.   These records that we receive like this have blanks in them, and you can -- this one -- this one doesn't here, but some of them will have numbers that were traced or numbers that they identified skipping spaces, and then other numbers that were identified as coming from this phone.  And we had -- we had questions at the time we received these, since this was something that we hadn't seen before as to why these blanks were in there.

Q.   And when you -- did you -- did you get the answer to your question?  Why were the blanks in there?

A.   I did -- I did not.  We -- as I said, ours was a support role.  We requested that someone find out.

Q.   But, Lieutenant Powell, isn't it true, even as you were doing -- as you were doing this analysis, number one, you knew the information was incomplete?

A.   That's correct.

Q.   And, number two, you knew that there was a problem with the capability of even capturing local telephone calls and reporting them back?

A.   That's correct.

Q.   And that at the time Southern Bell didn't have the ability to tell you how many local calls had been made from any number because they didn't keep track of it?

A.   I was not aware of it, no.

Q.   You were not aware of it when you were doing your analysis?

A.   No.

Q.   So you -- even from your analysis you cannot testify here in court today that no calls were made from Emogene Thompson's house on the night of her murder to Ms. Burel, can you?

A.   No.

Q.   And you can't testify, based even on the information you have, that Mike Chapel didn't call Emogene Thompson from the precinct on April the 4th, 1993, can you?

A.   That's correct.

Q.   And if -- given the choice between your information and Mike Chapel saying that he made the phone call, and given the fact that your information was incomplete, would that lead you to believe that Mike Chapel made the phone call?

A.   You'll have to rephrase that one.

Q.   All right.  Given the fact that your information is incomplete and there's been evidence in front of this jury that Mike Chapel said he called the victim from the precinct, would that lead you to believe that he called her from the precinct?

A.   Yes, it would.

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

THE COURT:  Redirect?

MS. ROGAN:  Just briefly, Your Honor.

     REDIRECT EXAMINATION

BY MS. ROGAN:

Q.   On that running a tag issue and writing the tag number down, I think you stated that if you were going to run it later, that would be a reason for writing it down?

A.   That's correct.

Q.   So if someone were busy doing something and saw a tag that they wanted to check, is it unreasonable that they would write it down for checking later?

A.   It's not -- no.

Q.   On these phone records as well, Mr. Porter showed you a page here that has a blank area.  I'm going to show you these two pages, which seem to have a memo on them.  Do you know who wrote that memo?

A.   No, I do not.

Q.   Does that indicate to you that there were no local calls pertaining to that particular number?

A.   That's what it says in the handwriting, 'No local calls.'  But I don't know who wrote it or where it came from.

Q.   Would that be a reason, perhaps, for the calls -- those portions of the records not being provided?

A.   I don't know.  You would have to have somebody that is familiar with this, as I said, and knows we have the blanks, and there's no writing in it.  I don't know where this writing came from that's in here, so --

Q.   And I'd just like to draw your attention to April 15th of 1993, the communication regarding the Testron at 17:34. 

A.   April 15th?

Q.   That's correct.

A.   At 17:34?

Q.   That's correct.

A.   At 17:34.  Okay.

Q.   Okay.  Is there a communication between 332C and 321C regarding 'Testron has arrived'?

A.   321 and 322C, yes, Testron had arrived.

Q.   And, also, at 17:34 is there a communication between 332C and 361C?

A.   That's correct.

Q.   With the same message?

A.   That's correct.

Q.   And you indicated at 17:34 there's a message from 321C to 332C indicating 'most outstanding'?

A.   That's correct.

Q.   And at 17:43 is there a communication between 332C and 361C that '184 gone already'?

A.   That's correct. 

Q.   And from that --

A.   But you -- but you asked me previously about the ones up here.

Q.   That's correct.

A.   I did not -- I did not look down there, see --

Q.   That's correct.  I didn't direct your attention to that.

A.   -- but it is in here and on there.

Q.   All right.  And in your report you indicated that you had identified 332C as Officer Chapel, 321C as Officer Reddy, and 361C as Sergeant Stone?

A.   That's correct.  If you're reading it from the report.  It's not right here, no.

Q.   Okay.  Okay.  I know it's not on the MDT.  That's what you extrapolated from, the information.

A.   Okay.  Yes.

Q.   And that your reading of that message was that 'Testron has arrived; 184 gone already'?

A.   Yes.  And all of that, and not just that at the top.

Q.   Right.  Taking all of the messages.

A.   That's correct.

Q.   Okay.  Lastly, Lieutenant Powell, Mr. Porter asked you a great deal about the completeness of the information that you had received to do this analysis.  I direct your attention to Page 1 on your report.  Did you indicate that you had used 4.8 million bits of information?

A.   That's correct.

Q.   Containing 5,952 records?

A.   That's correct.

Q.   And at the very conclusion of your report you indicated that not all of the information you received was complete, and that included financial statements, statements received from witnesses, evidence reports, et cetera?

A.   Et cetera, that's correct.

Q.   Okay.  And then, if necessary and that information was furnished, you would continue the analysis?

A.   That's correct.

Q.   But that otherwise you considered the analysis complete?

A.   That's correct.

Q.   And is there any indication in your report that the phone record information you'd received was not complete?

A.   That I received was not complete?

Q.   Yes.  Yes.

A.   It was -- it was brought to the attention of the investigators at the time, and would not -- probably would not be mentioned in a summary report that sums up the whole thing.  As we discovered it when they first came in, we made the request to the investigators, and there would be no reason to bring it up in a report.  This --

Q.   Okay.  My question is did you indicate it in your report that the --

A.   Did I -- no.  No, I did not.

Q.   Okay.  Did you indicate in your report that your financial information, though, was incomplete?

A.   In this report?

Q.   Yes.

A.   I believe -- I would have to -- I would have to go through and read it to see.  There was a report --

Q.   I'll direct your attention --

A.   -- that it was incomplete, yes.  But I'm not sure what -- whether it's this report or --

Q.   Okay.  Let me just -- Page 8 at the bottom.

A.   That's right.  It does indicate that there are missing records, that it's not complete.

Q.   Okay.  So you indicated in your report that the financial information you'd gotten was not complete?

A.   That's correct.

MS. ROGAN:  That's all I have.

THE COURT:  Recross?

     RECROSS EXAMINATION

BY MR. PORTER:

Q.   Lieutenant Powell, has this grand experiment ever been repeated in any homicide case since 1993?

A.   No, it hasn't.

Q.   And it was found to be too unwieldy to work with the speed that you have to work a homicide investigation; right?

A.   Yes.  That and the communications between the computer and our -- the information that goes into the database and the information received, how it should be placed in the database, the verification, and validity, the accuracy, those four things are problems with it, yes.

Q.   And, in fact, there's a great deal of information that was revealed in the investigation, and revealed perhaps in this courtroom, that never made it into your database?

A.   That's -- that's correct.

Q.   Thank you.

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

THE COURT:  Do you wish this witness to remain on call?

MS. ROGAN:  Yes, Your Honor.

THE COURT:  All right.  You'll be subject to being recalled later.  You can come down.

THE WITNESS:  What about these?

THE COURT:  Just leave it.

[The witness stepped down.]

THE COURT:  Would you approach the bench, please?

[Counsel approached and a conference was held at the bench, as follows.]

THE COURT:  I think I may take 15 minutes, let them get a cup of coffee or something, and then go till about 12:30, one o'clock.  Have you got plenty of folks you can call?

MS. ROGAN:  Got plenty till lunch.

MR. MOORE:  We've got plenty of witnesses, Your Honor.

THE COURT:  Okay.

MS. ROGAN:  Got a bunch of them.

MR. MOORE:  And we're still going to finish tomorrow, too.  We're fine.

THE COURT:  Okay.  Okay. 

MS. ROGAN:  Yes, we're moving on.

THE COURT:  Okay.  We'll take 15 at this point.

MS. ROGAN:  Okay.

[Bench conference concluded]

THE COURT:  We're going to take a 15 minute recess at this point here to get a cup of coffee or something to drink, if you wish, and we will recommence and proceed on till 12:30 or one o'clock before we recess for lunch.  We'll take 15 minutes at this point.

[The jury was 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:  Nothing from the defense, Your Honor.

THE COURT:  We'll be in recess 15 minutes.

[Break taken]

THE COURT:  Ready, Mr. Moore?

MR. MOORE:  Your Honor, if we might approach for a minute?

THE COURT:  Yes, sir.

[Counsel approached and a conference was held at the bench, as follows.]

MR. MOORE:  Your Honor, we've had one matter come up with a witness that -- we intend to call Mr. Britt to show how he was paid, that he was not paid in cash.  There's been an inference here that he was paid in cash and perhaps that's where the money came from.  And one of the witnesses contributed a small portion of the fee, and wrote a check for $1,000, and we had believed, based on what they told us, that it was the husband that wrote the check.  It turns out it's the wife, Ms. Lutz, who's been in the courtroom.  And our proposal is to call the husband, have her -- have him to identify her handwriting, identify the check, and Mr. Britt's going to testify that's the check he received, and I don't know if Mr. Porter's going to object to that or not, Your Honor.

MR. PORTER:  What's the relevance of how -- what was paid?

MS. ROGAN:  It establishes that there wasn't a large amount of cash floating around to pay for his defense.

MR. PORTER:  How does it establish that?

MR. MOORE:  That it wasn't paid in cash.

MS. ROGAN:  Because people chipped in -- wrote checks to chip in for the defense.

MR. MOORE:  I mean, you've called Walt yourself and asked him how it was paid, so we feel like that --

MR. PORTER:  But I haven't -- there hasn't been any inference.  I picked up the phone myself and called them.

THE COURT:  Well, it seems to me that part of the state's case is showing motive, and that being the financial circumstances he was in, it strikes me as being admissible.

MR. PORTER:  Your Honor, he -- I'm not going to make him put the checks in unless they want to.  Walt told me he was paid in cash -- I mean a check.  If they want -- if they want to elicit the testimony that he got the checks and he got them from family and friends, I don't care about that.

THE COURT:  Yeah, I think it's admissible.

MS. ROGAN:  Okay.  Well, I --

THE COURT:  I don't have a problem with it.

MS. ROGAN:  Our issue is in terms of the particular check.  We have Mr. Lutz, Paul Lutz, outside with this check.

MR. PORTER:  Walt said those are the checks.  I'll stipulate that those are the checks and those are true and correct copies of the checks.

MS. ROGAN:  Okay.  Okay.

MR. PORTER:  I don't care.

MS. ROGAN:  All right.

THE COURT:  I don't have a problem with it.  I think that's --

MS. ROGAN:  All right.  All right.  We just --

THE COURT:  I think it's relevant.

MS. ROGAN:  -- we got misinformation in terms of which of the two had written the check, and it turns out Ms. Lutz has been sitting here for the whole trial --

THE COURT:  Okay.  I don't --

MS. ROGAN:  -- and violating the rule of sequestration.

THE COURT:  Sounds like a non-problem.

MS. ROGAN:  Okay.  We just wanted to make sure, and we didn't want to have these things in front of the jury.

THE COURT:  Okay.

MR. PORTER:  There has been one problem.  One of my investigators works in the Juvenile Court,  Kathy Ellington works in the Juvenile Court.  Apparently, she told him today she's going to be called as a character witness.  She sat in court through a whole day of testimony.

MS. ROGAN:  During the trial?

MR. PORTER:  Yes.

MR. MOORE:  That's right.  She did come up here one day.  I forgot about that.

MS. ROGAN:  Oh, I didn't realize that.

MR. PORTER:  She sat here through a whole day.

THE COURT:  Well, if that's the case, I guess you'll be wanting some instructions.  I think you'd be entitled to it if you've got a witness who's failed to comply with the rules.

MS. ROGAN:  I wasn't aware she'd been here.  I mean, we can't see who's behind us.

MR. MOORE:  I wasn't either.  We don't see who's behind us and I didn't realize she -- I knew -- I realize now she was, but I'd forgotten it.

THE COURT:  Well, anyway, that's a matter we'll take up if you call her.

MS. ROGAN:  All right.  The last thing is with Mr. Britt.  We wanted to call him to establish this.  We are in no way waiving the attorney-client privilege that Mr. Chapel has with Mr. Britt.  And I just wanted that to be clear.

MR. PORTER:  I'm not sure in a trial, Judge, in front of the jury they can put -- they can put him up for a limited purpose.  Now, at a pretrial hearing, at a bond hearing, at a motion to suppress, I understand that.  But I don't think in front of a jury they put somebody up --

THE COURT:  Well, let me ask, if he testifies, are there other matters you want to inquire into?

MR. PORTER:  I don't know.

MS. ROGAN:  Well, my -- the law is, and this I feel pretty secure on, because I've done a lot of ineffective assistance of counsel claims, the privilege is not waived until the defendant raises an issue regarding the effective assistance of counsel.

THE COURT:  Well, attorney-client privilege --

MS. ROGAN:  And it belongs to the defendant.

THE COURT:  -- anytime I've looked at it, I didn't find it to be altogether simple, you know.  It's an area that --

MR. PORTER:  But technically, an argument could be made that by putting this up, they're going into the information of the client privilege.  There's been cases in regard to attorney fees forfeitures that talk about that fee information is privileged information, and the federal government's been fighting that for years.  So if they breach the --

THE COURT:  Well, I guess it'd be nice if we could sort of see where we are before we get in the middle of a free-for-all after we get the witness on the stand.  You want to put him up for the limited purposes just with respect to the method of payment; right?

MS. ROGAN:  That's correct.

THE COURT:  Do you want to go beyond that or in other areas?  Do you think that opens it up in areas you want to go to?

MR. PORTER:  Well, Your Honor, I found out when I walked up this morning and saw Walt standing there and he told me he was going to testify.  I have to -- you know, I don't know.  I'm in the position that Mr. Moore was in last week.  He's taking them as I throw them at him, and I'm catching them as he throws them at me.  It may very well be I want to say that 'what did you and Mike discuss at the jail,' or 'did he ever show any remorse, has he ever -- '

MS. ROGAN:  I think that would be completely inappropriate and --

THE COURT:  Well, I don't know.

MS. ROGAN:  -- privileged information that the defendant has not waived.

THE COURT:  I don't -- you know, I don't know.  Like I say, any issues -- and when you get lawyers -- former lawyers testifying with respect to their former clients, I've never found that to be a simple issue trying to sort out what they can do and what they can't do and what the privilege does for it, you know, so I guess we'll get into that.  What we'll do is have an hour or two's worth of recess and sort out the law.  I think that's where we'll be.

MS. ROGAN:  I think that's unnecessary because it is the defendant's privilege until he waives it.

THE COURT:  Well, I guess that's the question.

MR. PORTER:  But has he waived it by opening up the fee agreement?

MS. ROGAN:  No, he has not.

MR. PORTER:  Well, that's a pretty blanket statement without any basis.

MS. ROGAN:  He's -- this is part of his defense.

THE COURT:  Well, I don't know -- the question is what's the law?

MS. ROGAN:  It doesn't have anything to do with Mr. Britt's performance as his attorney.

THE COURT:  Well, the question is what's the law at this point?  And my answer is I don't know.  When we get into it we'll be taking a recess to sort it out.

MR. PORTER:  You know, I can't -- I don't know the law, either, but I'm familiar with the cases where attorneys have asserted the privilege that their fee schedule is privileged information.  And if you put that up, you're breaching opening that information.  You can't claim the privilege, 'Oh, well, fees aren't privileged, but everything else is.'  Once you breach the relationship, have you breached the privilege, period?

THE COURT:  Well, I don't know.  But if you want to put him up, you can put him up, and whatever we get into in cross, we'll just get into, I guess.

MR. MOORE:  Judge, I think we need a ruling before we put him up as to what Mr. Porter can go into.

THE COURT:  Well, I don't know.  I mean, at this point, I frankly do not know.  I mean, like I said to start with, you know, any time that's been an issue in a civil or criminal case, it's sort of been a quagmire of sorting out what the law is.  What do you think the law is?  I mean, have you looked at any cases on it?

MS. ROGAN:  On attorney-client privilege?

THE COURT:  On this kind of situation.

MS. ROGAN:  When it's breached?

THE COURT:  If he goes up, are there any cases you're aware of that controls -- you say, well, he can testify about where he got the money, but you can't ask him anything else?

MS. ROGAN:  I don't know cases on that specific issue.  I know --

THE COURT:  I mean, that's the issue we're addressing.

MS. ROGAN:  I know issues of when the privilege is breached or not, and --

THE COURT:  Well, I mean, we've got a specific question here.  The question is how does that apply to the situation we've got here?

MR. PORTER:  What's the threshold?  When do you -- I mean, is the information sought by the defendant privileged information that by him putting that witness up, does he waive --

THE COURT:  You're asking the question what's Mr. Porter's right to inquire on cross about anything else between Walt and between -- I don't know.  I've not researched it, so I do not know.  If you want to put him up, you can put him up, and see what Mr. Porter inquires, and at which point if it goes beyond the money, then I contemplate a recess, maybe take an hour and a half for lunch and we'll all spend it in the library.  That's sort of what I'm contemplating.  I mean, I don't know the answer, and I can't make a ruling without knowing some law, and I don't hear anybody else citing controlling authority.

MS. ROGAN:  I personally think it's a red herring.  And I think it's another example of the state trying to hamper our presentation of a defense for Mr. Chapel.

THE COURT:  Well, I don't know.  I mean, it's a -- it's a -- who you call next is up to you.  What Mr. Porter asks on cross, that's up to him.  And the rulings will be -- whenever I've got enough information to feel like I can make a ruling, that's when I'll make it.  I don't think it will be Johnny on the spot.

MR. PORTER:  When we get to that point, Judge, what I would request is that we send the jury out, what we've done with some other witnesses here, and have Mr. --

THE COURT:  Well, what you might -- what you might do is proceed on with some other witnesses.

MS. ROGAN:  Yes.  We weren't going to have him next anyway.

THE COURT:  And call that after lunch.

MR. MOORE:  Make a proffer and let Mr. Porter ask what he's going to ask, and have some ruling before we put him in front of the jury.

THE COURT:  Well, I think -- let's do this.  If you've got your other witnesses ready, let's hear the other witnesses.  Let's go for about another 45 minutes, we'll break for lunch, and during lunch everybody can take a look at it and see if we can sort it out the law

MR. PORTER:  That's fine with me, Your Honor.

THE COURT:  Okay. 

[Bench conference concluded]

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 back, please.

[The jury returned to the courtroom.]

THE COURT:  Call your next witness, Mr. Moore.

MR. MOORE:  Your Honor, we'd call Ms. Ruth Cronic.  Cronic.  Ms. Ruth Cronic, C-r-o-n-i-c.

MR. MOORE:  Your Honor, it may take her a minute. She's an elderly lady, so it may take her a little while.    THE COURT:  We'll pause.

[The witness was called to the courtroom.]

THE COURT:  Ma'am, if you will come up and be seated on the witness stand.  Mr. Allen, if you'll give her assistance, please. 

 [The witness was assisted to the stand.]

THE COURT:  You can go ahead and be seated and make yourself comfortable, please.  Mr. Moore, if you'll administer the oath.

MR. PORTER:  Your Honor, may I approach the bench?

THE COURT:  Yes, sir.

[Counsel approached and a conference was held at the bench, as follows.]

MR. PORTER:  Your Honor, the witness who testified yesterday about the Testron who was watching the testimony in the media room has been in and out of the courtroom about three times during testimony today.  I'd just ask the Court to reinstruct somebody about the rule of sequestration here.  I understand that there are some problems with it in keeping track of witnesses and everything else, but this woman's flipping in and out of the courtroom about as fast as she can get in and out.

MR. MOORE:  Your Honor, I don't think it was intentional.  She came in to talk to our investigator --

THE COURT:  Okay.

MR. MOORE:  -- but I'll make sure that she doesn't --

MR. PORTER:  Either that, or --

MS. ROGAN:  She's helping shepherd our witnesses outside.

THE COURT:  Okay.  Well, make sure she understands the rules.  And, also, make sure she understands the rule with respect to talking to other witnesses who may be not yet testifying about what her testimony is or anything else, okay?

MR. MOORE:  And I would say we don't intend to recall her either, Your Honor.

THE COURT:  Well, you ought to caution her about -- since she has testified as a witness, have her don't discuss with other potential witnesses who've not testified yet.

MS. ROGAN:  We will, Your Honor.

THE COURT:  Okay.

[Bench conference concluded]

[A brief discussion was held between Sergeant Parr and the Court off the record.]

MR. MOORE:  I don't believe I've sworn the witness yes, Your Honor.

THE COURT:  I don't believe so, either, Mr. Moore.

MR. MOORE:  Ms. Cronic, would you hold -- Ms. Cronic, would you hold up your right hand, please.  Do you solemnly swear the testimony you're about to give in this court will be the truth, the whole truth, and nothing but the truth so help you God?

THE WITNESS:  I do.

MR. MOORE:  Can you speak up just a little bit maybe where the jury can hear you?

THE WITNESS:  Yes.

THE COURT:  You can take your hand down, too, Ms. Cronic, if you wish.

Whereupon,

     RUTH CRONIC

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

     DIRECT EXAMINATION

BY MR. MOORE:

Q.   Ms. Cronic, state your name, please.  State your full name, please.

A.   Ruth Cronic.

Q.   And that's spelled C-r-o-n-i-c?

A.   That's right.

Q.   Okay.  Ms. Cronic, about two years ago, back on April the 6th of 1993, do you recall an incident at the Buford post office?

A.   That's right.

Q.   Could you tell the jury what happened there at the Buford post office?

A.   Well, I was pulling in there to park, and when I applied for my brakes, I didn't have any.

Q.   And what happened as a result?

A.   I went over a wall, seemed to me like this deep.

Q.   You're gesturing to the witness stand.  Was it that high, the wall that you went over?

A.   Sir?

Q.   Was the wall that you went over as high as the witness stand there?

A.   It felt like it was.  I don't know.

Q.   Okay.  Did you get hurt?

A.   Huh?

Q.   Did you get hurt?

A.   Yes.  I had two holes in my head and broke my back --

Q.   And were you bleeding?

A.   I broke a vertebra.  Huh?

Q.   Were you bleeding?

A.   Yes.  For a while it was just spouting out.

Q.   And do you remember whether or not any police came out?

A.   I don't remember the police.

Q.   And did you go to the hospital?

A.   Yes, sir.

[Defendant's Exhibits 152 and 153 were marked for identification by the court reporter.]

BY MR. MOORE:

Q.   I'm going to show you a picture that's been marked Defendant's Exhibit Number 152 and ask you if you can identify that photograph.

A.   It looks like my car.

Q.   Okay.  I'm going to show you Defendant's Exhibit Number 153 and ask if you can identify that.

A.   Do you have a flashlight?

Q.   That's okay.  We've got the man that took the picture, so --

MR. PORTER:  Your Honor, the state will stipulate those are photographs of Ms. Cronic's automobile.

THE COURT:  Are you going to offer them, Mr. Moore?

MR. MOORE:  Your Honor, we'd go ahead and tender them.  It's Defendant's Exhibit 152 and 153.

THE COURT:  Okay.  At what point in time are they?

BY MR. MOORE:

Q.   Were these pictures taken back in 1993 when the accident occurred?

A.   They look like the same place and the same car, yeah.

THE COURT:  Okay.  Is that the stipulation?

MR. PORTER:  That's the stipulation.

MR. MOORE:  We're going to have the postmaster testify anyway, Your Honor.

THE COURT:  So stipulated.

MR. MOORE:  That's all the questions I have for Ms. Cronic.  Thank you.

THE COURT:  Mr. Porter?

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Good afternoon, Ms. Cronic.

A.   Hi.

Q.   My name is Danny Porter and I'm the district attorney.  I want to ask you a couple of questions.  You said you were hurt in the accident and cut your head?

A.   Yes, sir.

Q.   And you were bleeding?

A.   Yes, sir.

Q.   Do you know Emogene Thompson?  Do you know a lady named Emogene Thompson?

A.   No, I don't.

Q.   And you're not her twin sister, are you?

A.   No, sir.

Q.   You don't have a twin sister, do you?

A.   I don't have a twin.  I don't even have a sister neither.

Q.   Okay.  Thank you.

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

THE COURT:  Redirect?

MR. MOORE:  That's all we have of this witness, Your Honor.  We'd ask that she be excused.

THE COURT:  Do you want her released?

MR. MOORE:  Yes, Your Honor.

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

MR. PORTER:  No, Your Honor.  We'd ask that she be allowed to leave.

THE COURT:  Ms. Cronic, you're released from any further attendance in this case.  You won't have to come back.

THE WITNESS:  Sir?

THE COURT:  You're free to go.  You won't have to come back and testify again in this case.

THE WITNESS:  I won't?

THE COURT:  No, ma'am.  You can come down.

THE WITNESS:  Okay.  Thank you.

THE COURT:  Thank you.

[The witness stepped down.]

THE COURT:  Who do you call next?

MR. MOORE:  We'd call Mr. Maddox, Mr. Maddox the postmaster.

[The witness was called to the courtroom.]

THE COURT:  Mr. Maddox, if you'll be seated up here at the witness stand, please.

[The witness stepped to the stand.]

MR. MOORE:  Mr. Maddox, 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,

     HORACE FRANKLIN MADDOX

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.   Horace Franklin Maddox.

THE COURT:  Would you spell your last name, please?

THE WITNESS:  M-a-d-d-o-x.

THE COURT:  Thank you.

BY MR. MOORE:

Q.   Mr. Maddox, how are you employed?

A.   I work at the post office in Buford.

Q.   Okay.  And were you working there on April the 6th, 1993?

A.   Yes, sir.

Q.   Okay.  And was there an accident there at the post office April 6, 1993?

A.   Yes.

Q.   Okay.  Tell the jury, if you would, what happened there.

A.   There was a lady parking in the front parking lot, and when she went to hit her brakes she hit the gas pedal, evidently, instead, and went over the retaining wall at the front there -- it's about four or five feet tall -- and landed on the pavement below there.

Q.   Okay.  And have you seen that lady here today at court?

A.   I saw her outside, yeah.

Q.   And did she just leave the courtroom?

A.   Yes, sir.

Q.   Now, were the police called?

A.   Yes, they were.

Q.   And do you remember the police responding?

A.   They did come, yes.

Q.   Now, what was the weather like that day; do you remember?

A.   I can't recall.

Q.   Do you recall whether or not the officers were wearing raincoats?

A.   No, sir.  I do not.

Q.   And was Ms. Cronic, the lady that just left the courtroom, was she injured?

A.   Yes, she was.

Q.   Okay.  And how was she injured?

A.   She evidently hit her head or her face on something inside the car when it went over because there was blood trickling down her face in several places.

Q.   I'm going to show you Defendant's Exhibit Number 152 and ask you if you can identify that.

A.   Yes.

Q.   Okay.  And what's that a photograph of?

A.   It's the accident site, apparently, the day of the accident.

Q.   Okay.  Now, the wall doesn't look very high in that photograph.  Is that photograph -- does the angle it's taken at make the wall look lower?

A.   Yes, it does.

Q.   Okay.  And other than that, is that photograph a true and accurate representation the way it looked the day you took the photograph?

A.   Yes.

Q.   I'm going to show you Defendant's Exhibit Number 153 and ask if you'd look at that, also.

A.   Okay.

Q.   And is that photograph a true and accurate representation of the scene it depicts?

A.   Yes, it is.

Q.   And what is -- what does it depict?

A.   Well, that's the car after it came to rest from coming over the wall.

Q.   Okay. 

MR. MOORE:  Your Honor, I don't have any other questions for Mr. Maddox.

THE COURT:  Mr. Porter?

MR. PORTER:  I have no cross-examination for Mr. Maddox.

THE COURT:  Do you wish this witness to remain on call?

MR. MOORE:  Your Honor, we'd ask he be excused.

THE COURT:  Any objection?

MR. PORTER:  No, Your Honor.

THE COURT:  You're released from any further attendance in this case.  You can come down.

[The witness stepped down from the stand.]

MR. MOORE:  Your Honor, at this time I would tender Defendant's Exhibit Number 78, which is a certified -- some certified copies, including -- which is the accident report from the accident April 6, 1993.

MR. PORTER:  Your Honor, we've reviewed these and we would submit that they're admissible for the record only.

THE COURT:  Mr. Moore?

MR. MOORE:  Your Honor, we would tender them, and we can take up later what goes out with the jury.

THE COURT:  What number is that?

MR. MOORE:  Defendant's Exhibit Number 78, Your Honor.

MR. PORTER:  Your Honor, I think that's been previously marked.

MR. MOORE:  It's got several papers in it, Your Honor, and it was previously marked for another witness.  When we requested these documents the police department put a number on them together and certified them all together as one document.

THE COURT:  Okay.  I was going to -- I show another report that --

MR. PORTER:  That is part of that.

THE COURT:  That's part of the same report?  Okay.

MR. MOORE:  That's part of that certified package, yes, sir.

THE COURT:  All right.  It's admitted for the record.  Who do you call next?

MS. ROGAN:  The defense calls Cassandra Rice. 

[The witness was called to the courtroom and stepped to the stand.]

THE COURT:  You can go ahead and be seated, ma'am.  Go ahead, Mr. Rogan.

MS. ROGAN:  Thank you, Your Honor.

Ms. Rice, 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, ma'am.

Whereupon,

     CASSANDRA RICE

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?  And speak in the microphone so we can all hear you.

A.   Cassandra Rice, R-i-c-e.

Q.   Okay.  Ms. Rice, do you know Michael Chapel?

A.   Yes, ma'am.

Q.   Okay.  For how long have you known him?

A.   Seven, eight -- seven and a half, eight years.

Q.   How did you come to know him?

A.   At one point in high school I was in the Gwinnett Police Explorer Post and I met him through that.

Q.   Was he a police officer at the time?

A.   Yes, ma'am.

Q.   Okay.  Did you work out at the gym that Mike owned?

A.   Yes, ma'am.

Q.   What all did you do there?  Did you help Mike out at the gym as well?

A.   Yes.  I helped -- on the days he wasn't there I'd be there, cleaned, cleaned up stuff, and took money, made -- you know, took calls, things like that.

Q.   Okay.  When you say 'took money,' you accepted membership fees?

A.   Yes, ma'am.

Q.   Were membership fees collected on a monthly basis or bi-weekly basis?

A.   Mainly it was monthly.

Q.   How often would you say or how frequently were you at the gym?

A.   Almost every day.

Q.   And what hours, generally, were you there?

A.   It was mainly in the morning.  Sometimes in the evening, because, at the time, I was also -- I was substitute teaching, so it was -- it depended on if I worked or not.

Q.   What do you do for a living?

A.   I work at an avionics company right now.

Q.   An avionics?

A.   Yeah.

Q.   And what do you do there?

A.   I'm a, I guess, an administrative assistant in the contracts department.

Q.   Are you also a part-time teacher?

A.   No.  I'm still in school.

Q.   Okay.  What school are you at?

A.   DeKalb.

Q.   I'd like to draw your attention to April of 1993.  Do you recall an incident when a man came to the gym with a paper bag?

A.   Yes.

Q.   Do you recall when that was, approximately, or exactly, if you do?

A.   Time of day or --

Q.   What day of the month it was.

A.   No.  I don't remember.  It was --

Q.   Would it help you at all to look at a calendar of that month?

A.   Probably not.

Q.   Okay.

A.   I mean, that was some time ago.

Q.   Do you recall if it was in April of 1993?

A.   I would say so.

Q.   Can you describe for the jury, please, what happened that day?

A.   It was myself and I'm pretty sure my friend Valerie were working out together, and a gentleman came in.  He had a bag, and he wanted to speak to Mike.  And he went to the office of the gym, and Mike came out a couple of minutes later and asked me to make a phone call for him to a detective.  And if I got through -- if I got through to the detective, he was supposed to call Mike back at the gym, which I didn't -- I wasn't able to get through to him.

Q.   Okay.  But he gave you a phone number to call and you tried -- did you try to make the call?

A.   Yes, ma'am.

Q.   Do you know anything else about what that man was doing there?

A.   Not -- not really, no.

Q.   Okay.  Or what was in the bag?

A.   No.  It was, you know, rumored to have money in it, but he -- I wasn't -- I mean, I didn't know for sure.

Q.   I'd like to direct your attention to another time in April, and that's April 16th of 1993.

A.   Uh-huh.

Q.   Do you have a recollection of that day?

A.   What day was it?

Q.   That would be Friday, the 16th of April.

A.   Not off the -- I mean, that whole week there was a lot of things but not that coincided with the day.

Q.   Okay.  Do you recall whether on that day Mike learned about a murder that had happened the night before?

A.   Yes.

Q.   Do you recall who else was at the gym at the time that Mike learned about that?

A.   It was two officers that he worked with.

Q.   Okay.  Do you know who, what their names were?

A.   Not off -- I thought one of them was -- is it Reddy or -- Reddy -- it was two officers that always worked out there with him. 

Q.   Okay.

A.   The same two.

Q.   And were those officers -- were they there frequently working out at the gym?

A.   Yeah.  Yes.

Q.   And were they there that day?

A.   Yes, ma'am.

Q.   Do you recall approximately what time of day it was that Mike learned about the murder?

A.   I would say it was the morning, that morning, I mean, sometime maybe before ten.

Q.   Okay.  And do you recall what Mike's reaction was to the news of hearing about this murder?

A.   Well, their first, I guess, statement to him was whether or not he had heard about the -- I guess, if I recall correctly, if he heard about the woman they had found shot at Gwinnco, and he said no.  And then they kind of went into detail, which I didn't -- I mean, I really didn't listen because they were working out at the same time, and I didn't pay much attention.

Q.   Do you recall anything about Mike's reactions to learning this news?

A.   No.  He -- after they had left he told me that he was glad that -- he said, 'At least this time they have a body to work with.  Maybe they will find who did it.'

Q.   And about a week after this incident that was on the 16th, do you recall going to the gym after it had been searched by the police department?

A.   Yes, ma'am.

Q.   Were you present while it was searched?

A.   No.  I'd come -- I guess I came in a little while afterwards.

Q.   And what did you find when you arrived at the gym that day?

A.   A mess.

Q.   Could you describe it for the jury, please?

A.   The main -- the main thing I saw was there was a -- there's like an office area before you walked into the main office of the gym, and in that area it's usually kept locked, and it wasn't anything really secure because it was just like plywood board.

One of the things I noticed, because I had just cleaned up the day before, had it all nice and organized, is everything was thrown all over the place.  One of the cabinets there was basically like a hollow box-type cabinet, I'd say, yea high [demonstrating], two sides to it, and one side had a lock on it, one side didn't.  And, basically, you could see in the whole thing with -- through one side, and they had busted the door, busted the lock on the other side, and busted the cabinet up to get into it.  And the stuff that was in his foot locker there was thrown all over the place, and his office was kind of a wreck.

Q.   I have just a couple more questions.  How long did you say you've known Mike?

A.   It's about seven, seven and a half years.

Q.   Do you know whether he has a good or a bad reputation in the community?

A.   I would say yes.

Q.   Okay.  Are you aware of other people who know Mike?

A.   Yeah.

Q.   If Mike were to testify under oath, would you believe his testimony?

A.   Yes, ma'am.

MS. ROGAN:  That's all I have.  Mr. Porter may have some questions.

THE COURT:  Mr. Porter?

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Ms. Rice, the incident about the man with the paper bag, you never saw any -- other than the guy with the paper bag, you never saw anything, did you?

A.   No.

Q.   And then the incident on the 16th, the day after the murder, there was some discussion between Chapel and some other officers about the murder?

A.   Yeah.  And they just were basically, I think, telling him what had happened.

Q.   Did you hear any discussion of whether or not he should go and come forward with what he knew about it?

A.   No.

Q.   Did he indicate that he had had any contact or knew Emogene Thompson prior to the murder?

A.   At that point, no.

Q.   So he didn't say anything even when he first learned about that?

A.   Uh-uh.  [Negative]

Q.   Now, you said you believe him under oath.  You're his friend, aren't you?

A.   Yeah.

Q.   Or you consider yourself his friend?

A.   Yes, sir.

Q.   And, in fact, you visited him in custody, didn't you?

A.   Once, yes, sir.

Q.   And so you honestly want to try and help him if you can, don't you, within the confines of telling the truth?

A.   Yes, sir.

Q.   And if the evidence were to show beyond a reasonable doubt that Chapel shot Emogene Thompson twice and then robbed her of $7,000, would you still believe him under oath?

A.   Yes, sir.

Q.   Thank you.

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

THE COURT:  Redirect?

MS. ROGAN:  No, nothing.

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

MS. ROGAN:  She can be released.

THE COURT:  Any objection?

MR. PORTER:  No, Your Honor.

THE COURT:  You're released from any further attendance in the trial of this case.  You can come down.

[The witness stepped down.]

THE COURT:  Call your next witness, please.

MR. MOORE:  We would call Monica Hack, H-a-c-k.

[The witness was called to the stand.]

THE COURT:  If you will be seated up here on the witness stand, 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:  Yes, I do.

Whereupon,

     MONICA HACK

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.   Monica Hack.

Q.   Ms. Hack, back in April --

THE COURT:  Spell your last name, please.

THE WITNESS:  H-a-c-k.

THE COURT:  Okay.

MR. MOORE:  Excuse me.

BY MR. MOORE:

Q.   Ms. Hack, back in the first week of April 1993, were you employed by the Gwinnett County police department?

A.   Yes, I was.

Q.   And how were you -- what did you do for the police department?

A.   I'm a background investigator.

Q.   And what, specifically, was your job at that time in 1993?

A.   Background investigation.

Q.   Did you have occasion that first week of April to receive a phone call from Mike Chapel?

A.   I believe it was in April, uh-huh.

Q.   And who did he ask for when you spoke to him?

A.   It was either Lieutenant Powell or Greg Browning.  It was one of the intelligence people.

Q.   Okay.  And did you ask if you could help?

A.   Yes, I did.

Q.   And then what took place?

A.   I checked different phone numbers and gave them different phone numbers, because I'm at headquarters and Lieutenant Powell, at that time, was up in -- up in Buford.

Q.   Did you ask if you could help him?

A.   Try to find Lieutenant Powell, uh-huh.

Q.   And did he tell you why he wanted him?

A.   Yes.   He said that there was a gentleman in the -- in the gym that had a paper sack, and in that paper sack there was $20,000, and it was allegedly for a hit.

Q.   Did he tell you whether or not he recognized that man?

A.   He knew him, yes, sir.

Q.   And how did he know him; do you know?

A.   He was a local, and I think he used to come in the gym or whatever.

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

THE COURT:  Mr. Porter?

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Investigator Hack, as a background investigator, what your job is is to look into the backgrounds of people who apply for jobs with the Gwinnett County police department; right?

A.   Yes, sir.

Q.   And you're a certified police officer?

A.   Yes, sir.

Q.   Now, in regard to this call in April, did Chapel ever bring the $20,000, to your knowledge, and turn it in?

A.   No.  The man had -- what I recall him saying was the man had left the gym.

Q.   All right.  Did he ever, to your knowledge, meet with investigators to try and initiate an investigation?

A.   Not that I know of, sir, no.

Q.   So all you know is that Mike Chapel called and said some guy was in the gym and he had $20,000 for a hit?

A.   Uh-huh.

Q.   Okay. 

MR. PORTER:  Thank you.

THE COURT:  Redirect?

     REDIRECT EXAMINATION

BY MR. MOORE:

Q.   Ms. Hack, at the time he called you, he was trying to report this to intelligence, wasn't he?

A.   Yes, sir.

Q.   That was the purpose of the call?

A.   Definitely, yes, sir.  That's what he said, uh-huh.

Q.   And I believe he got transferred to you by mistake, too.  He wasn't calling you, was he?

A.   I think he was transferred by mistake.

MR. MOORE:  That's all I have.  Thank you.

THE COURT:  Recross?

MR. PORTER:  No recross, Your Honor.

THE COURT:  Do you wish her to remain?

MR. MOORE:  Your Honor, I believe she can be released.  I don't think we need her back.

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

MR. PORTER:  No, Your Honor.

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, please.

MS. ROGAN:  We call Ledoris Chandler.  Ledoris Chandler.

[Pause in proceedings]

MS. ROGAN:  I have the wrong name, Your Honor.  It's Nanette Cross.   

[The witness was called to the courtroom.]

THE COURT:  Ma'am, if you'll come up to the witness stand up here and be seated, please. 

[The witness stepped to the stand.]

MS. ROGAN:  Ms. Cross, 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,

     NANETTE CROSS

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.   Nanette Cross, C-r-o-s-s.

Q.   And Ms. Cross, how are you employed?

A.   I work with the Peoples Bank & Trust in Buford, Georgia.

Q.   And what is your position there?

A.   I'm the head bookkeeper, assistant vice president.

Q.   And how long have you been employed in that capacity?

A.   Ten years, since the bank opened, going on eleven.

Q.   Ms. Cross, I'm going to show you what's been marked for identification as Defendant's Exhibit 154.  I ask if you could take a look at this and tell us if you recognize what it is, and if so, what it is.

MR. PORTER:  Your Honor, the state will save Ms. Cross some time.  We will stipulate that those are copies of the bank records from Iron World The Gym from  August of 1991, and Ms. Rogan's going to have to tell us the last date.  I believe it's through about August of '93.

THE WITNESS:  I was going to say it's '91, '92 and '93.

MS. ROGAN:  Yes.  Through -- it's April of '93, through the end of April of 1993.

MR. PORTER:  April of '93.

THE COURT:  What are the inclusive dates?

MS. ROGAN:  It begins on August of 1991 and it goes through April of 1993.

THE COURT:  All right.  Is that the stipulation?

MS. ROGAN:  Yes.

THE COURT:  So stipulated.

MS. ROGAN:  All right.  At this time, I would tender in evidence Defendant's --

THE COURT:  Those are the records at the -- that account, the gym's account --

MS. ROGAN:  This is the gym account.

THE COURT:  -- at the Peoples Bank for that time period?

MS. ROGAN:  That's correct.

THE COURT:  All right.

MS. ROGAN:  That's correct.

THE COURT:  Is that the only account they had?

MS. ROGAN:  Yes.

THE COURT:  Okay.  Mr. Porter, is that the stipulation?

MR. PORTER:  Your Honor, we'll stipulate to that.  And we had a witness who said they're kept in the regular and customary course of business --

THE COURT:  So stipulated?

MR. PORTER:  -- and contemporaneous with the transactions.

THE COURT:  So stipulated.

MR. MOORE:  Your Honor, we don't want to mislead the Court.  I'm not sure Ms. Rogan understands you.  Did you ask if that was the only account that they had?

THE COURT:  Yes.

MS. ROGAN:  It was the only account that's included in this --

MR. PORTER:  Book.

MS. ROGAN:  -- in this book.

THE COURT:  Well, I was just -- for identification purposes, what account is it?

MS. ROGAN:  It's the account for Iron World The Gym.

THE COURT:  Okay.  And that's the only account Iron World The Gym had at that bank?

MS. ROGAN:  Yes, it is.

THE COURT:  Okay.  That was my question.

MS. ROGAN:  Yes, it is.  Yes.  That was --

THE COURT:  All right.  So stipulated.  They're in.

MS. ROGAN:  All right. 

BY MS. ROGAN:

Q.   I just have two more short questions for you, Ms. Cross.  When someone comes to the Peoples Bank and cashes a check that someone's written, and the person cashing the check is a customer of the bank, is there any recording made within the bank's records as to that transaction?

A.   The only thing, it is just filmed as it leaves the bank.  We just microfilm it.  There's nothing written down as to who cashes the check.  It is just filmed.

Q.   Okay.  And similarly, if someone brought in a traveler's check to cash --

A.   Correct.

Q.   -- would there be any record in the bank's statements for that person's account --

A.   No, not in the bank --

Q.   -- to reflect that transaction?

A.   No.  If they cashed it, no.

Q.   Okay.

MS. ROGAN:  That's all I have.  Thank you.  Mr. Porter may have some questions.

THE COURT:  Cross-examination?

MR. PORTER:  I have no questions for this witness, Your Honor.

THE COURT:  All right.  Do you wish this witness to remain?

MS. ROGAN:  She can be released.  I understand she's going out of town.

THE COURT:  Any objection?

MR. PORTER:  No, Your Honor.

THE COURT:  You're released from any further attendance in the trial of this case.  You can come down.

[The witness stepped down.]

THE COURT:  Call your next witness, please.

MS. ROGAN:  Your Honor, may we approach for a moment?

THE COURT:  Yes.

[Counsel approached and a conference was held at the bench, as follows.]

MS. ROGAN:  Our next witness is another bank witness who was here and evidently is not here at this moment.  We do have another witness we could go forward with.  I sort of wanted to do the bank all together, but it doesn't matter.  I mean, if you -- we do have another witness we can go forward with.

THE COURT:  I don't think it makes a lot of difference, but I'd like --

MS. ROGAN:  Push on?

THE COURT:  One o'clock is a nice round number.

MS. ROGAN:  Okay.

THE COURT:  If you've got one we could knock out --

MS. ROGAN:  All right.

MR. PORTER:  What's the bank?

MS. ROGAN:  It's the other bank, their personal accounts.  And if we stipulate --

MR. PORTER:  It was -- we can stipulate.

MS. ROGAN:  Okay.  I didn't even think of doing that.  So maybe we can just dispense with that.

MR. PORTER:  I'll just take a look at them while you're doing this other witness, and maybe we can stipulate to them.

MS. ROGAN:  That's fine.  Okay.

THE COURT:  Okay.  Thank you.

[Bench conference concluded]

MR. MOORE:  We call Greg Chapel.

[The witness was called to the courtroom.]

THE COURT:  Mr. Chapel, if you'll take the stand, please, Mr. Moore will administer the oath.

[The witness stepped to the stand.]

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:  Yes, I do.

MR. MOORE:  Be seated, please.

Whereupon,

     GREG CHAPEL

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.   Greg Chapel.

Q.   Would you spell your last name for the court reporter?

A.   C-h-a-p-e-l.

Q.   Now, Mr. Chapel, are you related to Mike Chapel?

A.   Yes, I am.

Q.   And how are you related?

A.   He's my brother.

Q.   And do you live in Gwinnett County?

A.   Yes, I do.

Q.   How long have you lived in Gwinnett County?

A.   Since 1989.

Q.   Are you married?

A.   Yes, I am.

Q.   Do you have children?

A.   Yes, I do.

Q.   How many children?

A.   I got two, a boy and a girl.

Q.   How old are they?

A.   Spencer's -- will be four in October, and Ashley will be ten.

Q.   And how long have you been a deputy sheriff?

A.   Since 1989, about six years.

Q.   And were you in law enforcement prior to that?

A.   No, I was in the military.  I was a fireman.

Q.   Which branch of the military did you serve in?

A.   Air Force.

Q.   And is Mike Chapel older or younger than you?

A.   He's my older brother.

Q.   Now, in your duties as police -- in your police work, have you ever had occasion to work with Mike?

A.   Many times.

Q.   There was an incident back in 1993 where he was injured.  Do you recall that incident?

A.   Yes, I do.

Q.   Okay.  Would you tell the jury what happened then?

A.   It was late.  I believe it was raining that night, and I was working my zone, which was Buford, as a warrant deputy, warrant service.  I usually work by myself.  A call went out that there was a guy riding through the stadium pointing a gun, supposedly pointing a gun at the crowd.  We were on the same radio frequency at the time, and I heard Mike put out the call that he was behind the vehicle, the suspect's vehicle at the time, and a chase ensued.

I was headed to his -- I was listening to Mike on the radio, and the radio dispatcher put out the call, and I was headed towards Mike's direction.  He finally got the car stopped up -- I believe it was the Housing Authority up on Circle View.  I got there just -- it couldn't have been 15, 20 seconds later, and I noticed the driver's side window had been smashed, and Mike was bleeding severely from his right hand.

Q.   Did you administer first aid?

A.   Yes, I did.

Q.   And what did you do?

A.   I immediately went to my car, got out my first aid kit, which are in all the patrol cars in our division, got out my first aid kit and started wrapping his hand up.  He was bleeding pretty good, like on your hand.

Q.   Okay.  And what kind of -- what patrol car was he driving at that time?

A.   Well, he was driving the new one.  I was still driving the old one.  I was giving him a hard time about that.

Q.   Okay.  So he was driving Unit 197, that new 1992 Ford Crown Victoria?

A.   Yeah.  Yes, sir.

Q.   Based on what you observed, do you have an opinion as to whether he may have gotten blood in his patrol car?

A.   Well, the way it was bleeding, from my experience with -- you know, yeah, there was a lot of blood and it was bound to get there.

Q.   Now, there's been a reference at one point to a federal court case, do you know what I'm talking about, that you were involved in?

A.   Yes, sir.

Q.   Would you tell the jury what that was?

A.   Back in '91, I believe, or '90, I was involved in an incident in a jail where a DUI task force Officer Meadows Hondo brought in a DUI suspect, and the guy was belligerent, obnoxious, and so forth.  I was working in the book-in area at the old jail.  It was me and Deputy Greenway.  The guy was just ranting and raving and so forth, and I had him up against the wall, and he turned around, swung, and hit me.  So we took him to the ground -- or I took him to the ground, handcuffed him, put him in isolation by himself, and, to make a long story short, I guess, he ended up suing me because he said I collapsed one of his lungs.  This happened on a Friday- Saturday morning, and his lung didn't collapse till Monday.

Q.   And what was the outcome of that federal suit?

A.   Testified three days in federal court, and it took a jury 20 minutes to find me innocent.

MR. MOORE:  That's all I have.  Thank you.

THE COURT:  Mr. Porter?

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Greg, I know this is a difficult position for you to be in, and I've just got a couple of questions.  Since your brother's arrest you've been active in law enforcement and you've worked with the sheriff's department, haven't you, since --

A.   Before and during, yes.

Q.   And you've continued that?

A.   Yes, I have.

Q.   And, in fact, you've prosecuted felony cases and you've prosecuted them through my office, haven't you?

A.   Yes, I have.

Q.   Now, on the night that you -- the incident in October, I think Mr. Moore asked you -- I think he said '93, but it actually happened in '92, didn't it?

A.   I believe so.

Q.   In October.  And do you remember when -- how early in October it was?

A.   I know it was during football season.

Q.   Okay.

A.   Because Buford was playing that night, I believe.

Q.   And when you administered the first aid, what did you do?

A.   I wrapped his hand.  All we had, at that time, was the gauze and then the wrap, and I just wrapped his hand and his fingers.

Q.   Okay.  And did that stop the blood?

A.   No.

Q.   So it was just pouring out?

A.   It was bleeding severely, yes.

Q.   But he never reported that, did he, to your knowledge?

A.   I don't know.

Q.   And he never reported it to his supervisors that you know, did he?

A.   I don't know.

Q.   This serious injury that he had?

A.   It was -- yeah.

Q.   Thank you.

MR. PORTER:  That's all I have.

THE COURT:  Redirect?

     REDIRECT EXAMINATION

BY MR. MOORE:

Q.   Was Sergeant Stone there when this happened, Deputy Chapel?

A.   Yes, he was.

Q.   And did he observe what you observed, too?

A.   Yes, he did.

Q.   Now, do you know whether or not Mike went to the hospital?

A.   I think he mentioned something about going because they had -- Buford had an emergency room up there at the time.  It was -- I believe it was the Buford Hospital up there at the time.  It's closed now.  I'm not sure if he went --

Q.   Was it something that appeared to you that he needed to go to a doctor?

A.   Yeah.  I told him, I said, 'You need to get to a doctor real soon.  You may need stitches.'

MR. MOORE:  Thank you.

THE COURT:  Recross?

MR. PORTER:  Nothing, Your Honor.

THE COURT:  Do you wish this witness to remain on call?

MR. MOORE:  Your Honor, I don't expect to call him back, but I would ask him to remain on call.

THE COURT:  You'll be subject to being recalled.  You can come down.

THE WITNESS:  Thank you, Your Honor.

[The witness stepped down from the stand.]

THE COURT:  Would you approach the bench, please?

[Counsel approached and a conference was held at the bench, as follows.]

THE COURT:  Have you got another witness you want to put up, a short one, or is now a good break point?

MS. ROGAN:  Well, what's the answer on the bank records?

MR. PORTER:  We'll stipulate to the records.

MS. ROGAN:  We'll stipulate to them so that eliminates that witness, then.

THE COURT:  Okay.  All right.  Let's do the stipulation then.  Do you want to do it in front of the jury?

MS. ROGAN:  That will be fine.

MR. PORTER:  That's fine.

THE COURT:  All right.  Do the stipulation, then we'll recess for lunch for an hour.

MS. ROGAN:  Okay.

THE COURT:  How are we doing as far as afternoon witnesses?

MR. MOORE:  We've got enough to take up the afternoon, Your Honor.

MS. ROGAN:  We have plenty.

THE COURT:  Do you still think -- do you have any idea what time tomorrow -- are we looking at tomorrow morning, tomorrow afternoon?

MR. MOORE:  Probably the afternoon, Your Honor.  I can't say for sure.

THE COURT:  Okay. 

MR. MOORE:  It may not take the entire day, but even if it doesn't, I assume that Mr. Porter will either have a rebuttal or we've got other matters to take up before the --

THE COURT:  Okay.  Well, my big concern, I guess, is Monday.  I'd just like to -- you know, we're going to take Sunday off.  I'd just like to proceed on with Monday and not have that a vacant day, so --

MR. MOORE:  You'd mentioned us researching this thing on Walt.  Could we maybe have a little extra time at lunch to do that?

THE COURT:  Hour and fifteen minutes.  Okay.  We'll do that then.

MS. ROGAN:  Okay.

THE COURT:  Okay.

[Bench conference concluded].

THE COURT:  Do you have a stipulation you wish to place on the record at this point, Mr. Moore?

MR. MOORE:  Ms. Rogan will do that. 

THE COURT:  Okay. 

MS. ROGAN:  Yes.  I need to get this marked.

[Defendant's Exhibit 155 was marked for identification by the court reporter.]

MS. ROGAN:  Your Honor, at this time I would tender Defendant's Exhibit 155, which are copies of the bank records of the account of Michael and Eren Chapel at First American Bank, which became South Trust Bank, for the period of November 1991 through August of 1993 -- I mean April, excuse me, April of 1993.

MR. PORTER:  Your Honor, the state stipulates that those are true and correct copies of the documents, and we would have no objection to their admission.

THE COURT:  Defendant's 155 is admitted.

MS. ROGAN:  I'd also tender at this time, Your Honor, Defendant's 156 which are certified copies of a business license for Mike's gym, which in 1990 -- Mike's gym for 1990 and '91, which became Iron World The Gym in 1992 and 1993.

THE COURT:  All right.  So that's the license for '92 and '93 as well?

MS. ROGAN:  That's correct.

THE COURT:  All as Defendant's 156?

MS. ROGAN:  That's correct.

THE COURT:  All right.  Mr. Porter?

MR. PORTER:  Your Honor, I have examined those documents, and the state has no objection to their admission.

THE COURT:  Defendant's 156 is admitted without objection.

MS. ROGAN:  Thank you. 

THE COURT:  Anything else as far as the stipulation at this point?

MR. PORTER:  Not as far as the stipulation, Your Honor.

THE COURT:  All right.  Ready for lunch?

We're going to recess at this point for lunch.  We'll take -- we're going to take a little bit of extra time to allow us to take up some matters during the course of lunch as well. 

We'll take an hour and fifteen minutes, and we will recommence at 2:15.  So leave your pens, pads and notes in your seats; they'll be waiting when you return.  And I'll ask you to go with the bailiffs at this time, please.

[The jury was excused for the lunch recess.]

THE COURT:  Anything else at this point from the state?

MR. PORTER:  No, Your Honor.  I would offer for the defense to consider the state is prepared to stipulate that Mr. Britt's fees were not paid in cash.

THE COURT:  Just a plain stipulation?

MR. PORTER:  Yes.

THE COURT:  Mr. Moore?

MR. MOORE:  Would the state be willing to stipulate that the documents that Mr. Britt has provided us are true and accurate and show it was paid in a number of different -- it wasn't one check for one amount, it was a number of small amounts.

MR. PORTER:  Your Honor, I'm prepared to stipulate that they were not paid in cash.  I'm not prepared to go any further than that.

MR. MOORE:  Your Honor, we'll consider that.

MS. ROGAN:  We'll consider that at lunch.

THE COURT:  You might want to review the legal matters we discussed earlier, just in case, and be prepared to argue.  All right.  We'll be in recess till 2:15.

[Lunch recess]

-

-

-

-

-

-

-

-

-

-

-

-

-

 

5797

 



     AFTERNOON SESSION

THE COURT:  Is the state ready?

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

THE COURT:  Defendant ready?

MR. MOORE:  The defense is ready, Your Honor.

THE COURT:  We -- there was a discussion of stipulation on the attorney's fees before we recessed.  Has that been resolved or where do we stand?

MR. PORTER:  They haven't discussed anything with me, Your Honor.

MS. ROGAN:  We're intending to call our witness, Your Honor.

THE COURT:  All right.  That would be fine.  All right.  Ready to call your next witness?  Is he ready?

MS. ROGAN:  We're ready.

THE COURT:  Everybody ready?  Okay.  Bring the jury back, please.

[The jury was escorted to the courtroom.]

THE COURT:  Call your next witness, please.

MS. ROGAN:  The defense calls Walt Britt.

[The witness was called to the courtroom.]

THE COURT:  Mr. Britt if you'll come up and take the stand, Ms. Rogan will administer the oath. 

[The witness stepped to the stand.]

THE COURT:  Go ahead and be seated, if you like.

MS. ROGAN:  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,

     WALTER M. BRITT

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.   My name is Walter Michael Britt, B-r-i-t-t.

Q.   How are you employed, Mr. Britt?

A.   I'm a self-employed attorney with the law firm of Chandler & Britt.

Q.   And how long have you been employed, self-employed in that capacity?

A.   I've been self-employed as an attorney since June 8th of 1981.  I was with the firm of Pruitt & Britt up until April the 1st of 1993, when Chandler & Britt was formed.

Q.   Do you practice in Gwinnett County?

A.   I practice in Gwinnett County at -- Pruitt & Britt was located in Buford, Georgia.  Chandler & Britt, from April 1, 1993, until yesterday was located in Suwanee, and we're in the process of moving into our new office today.

Q.   And where is that new office located?

A.   That new office is in Buford, Georgia, on South Lee Street.

Q.   Did you represent Michael Chapel?

A.   Yes, I did.

Q.   And what were the time periods during which you represented Mike Chapel?

A.   I represented Mr. Chapel from on or about Saturday following his arrest on Friday night until Mr. Moore was appointed, which I believe was in July of 1994.  And I had been previously removed by the Supreme Court of Georgia from the case.

Q.   When was that removal?

A.   I believe that the date of that was sometime in May of 1994.  I don't remember the exact date.

Q.   Were you retained, that is, hired, to represent Mr. Chapel or were you court-appointed?

A.   It was bifurcated.  There was a period of time that I had been retained by Mr. Chapel's family.  And then I was later appointed by Judge Clark, at a motions hearing in September of '93, I was appointed to represent him.  But prior to that time, the Chapel family was trying to pay me to represent Mr. Chapel.

Q.   And when were you formally retained by them?

A.   I received a telephone call early on the morning of Saturday after Mr. Chapel's arrest.  I discussed the matter with his brother Greg and his father, and then I went to the detention center to talk to Mr. Chapel.

Q.   Were you paid by the family to represent Mr. Chapel?

A.   I was -- I entered into an agreement to represent Mr. Chapel for a $25,000 retainer fee to be billed back against at $150 an hour, and they were, depending upon how much time was involved, as to how they would -- how much they would pay and -- but I was not paid at that time, no.  But I did undertake the case.

Q.   Do you recall when it was you received the first payment in the case?

A.   It was in the early part of June.  I want to say June the 5th of 1993.

Q.   And was that payment made by cash or by check?

A.   There was a payment that was made by three separate checks.  There was one check from Harold L. Chapel, who was Mike Chapel's father; there was one check drawn on the account of Michael Chapel and Eren Chapel; and there was one check drawn on an account of a Linda Lutz, who since that time I have come to know is a friend of the family.

[Defendant's Exhibit 157 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   I'm going to show you what's been marked by -- marked for identification as Defendant's Exhibit 157 and ask you if you recognize what those are.

A.   Yes.  Those are -- it's three pages.  The first page are the copies of the receipts from -- of the checks I just described.  The second page is the copies of the checks themselves with my handwriting down at the bottom for a total amount.  And then the third page is a receipt and copy of the check that I was paid in July -- July the 24th of 1993.

Q.   Okay.  Are those copies a fair and accurate representation of what the receipts and the checks that you've been identifying look like?

A.   Yes.  These were all -- these were contained within my file.  What we do is when a receipt is written we make a copy of the check or money order or whatever it is, and we put them together.  At this time we only had a two-part receipt book.  Now we have a three-part receipt book, where the client is given one, we keep one, and then one is kept in the receipt book.  But, at that time, we were just making usually copies of the receipts to go with the checks so we could keep up with everything.

Q.   Were those checks and receipts kept in the regular course of your business as an attorney?

A.   Yes, they were.

MS. ROGAN:  Your Honor, at this time I'd like to tender into evidence Defendant's Exhibit 157.

THE COURT:  Any objection, Mr. Porter?

MR. PORTER:  Your Honor, based upon Mr. Britt's representation, we have no objection.

THE COURT:  Defendant's 157 is admitted without objection.

BY MS. ROGAN:

Q.   Mr. Britt, if you could just refer to the checks again and tell us, please, the amount of the first check you received, the retainer amount?

A.   The amount of the first check, the date of it was June the 5th of 1993, and that was from Michael H. Chapel and Eren Chapel, is the way the receipt is written, which corresponds to the check, and it's in the amount of $1,200.

The second receipt is dated June the 5th, 1993, and that's Number 388250, and that is from Linda Lutz, L-u-t-z, in the amount of $1,000 which corresponds to the check.

And receipt Number 388251 from H. L. Chapel in the amount of $5,448.21, which corresponds to the check from H. L. or Marilyn Chapel.

Then another check -- excuse me -- another receipt in the amount -- receipt number of 388307 in the amount of $2,000 from Michael H. Chapel and Eren Chapel.

Q.   And what's the date on that?

A.   That is dated July the 24th, 1993.

Q.   And do you know who H. L. Chapel is?

A.   That's Harold Chapel.

Q.   What was the total amount that you received in payments?

A.   The first payment was $7,648.21, and added to that is $2,000 to be applied back to the $25,000 that I was to be retained with.

Q.   Were you ever paid in cash?

A.   Never.

Q.   Is that the total amount that you received as compensation from the family for this -- and friends for this case?

A.   That's the total amount I received from the family and friends for compensation in this case.

Q.   And when was it that you became court-appointed?

A.   In September of 1993.

Q.   And what was --

A.   I think it was September 24th or September 23rd.

Q.   What was the reason for your appointment to the case?

A.   The case had taken on a complexity in what I was to be involved in the case that there was no way that a family of the means of the Chapel family -- and I'm talking about all the brothers and all the friends -- that they could sustain that type of litigation.  It's hard enough for a family to sustain a regular murder trial, which can run up way in excess of a $25,000 retainer.  But there was no way that they could sustain what would have to be put on for a defense, so we applied to the court to declare Mr. Chapel to be indigent and have me appointed to represent him.  And, also, because of the turn of the state's position as to what type of punishment they were seeking.

MS. ROGAN:  That's all I have.  Thank you, Mr. Britt.

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Mr. Britt, it's so odd to see you in that position, I think I can barely restrain myself from questioning you.  But let me ask you, when you say you were removed from -- by the Georgia Supreme Court, you were in fact removed because you had a conflict with representation of the county; is that correct?

A.   That's correct.  I had filed a initial motion -- when the police department sought to terminate Mr. Chapel's employment, I filed a motion with the court for determination of a conflict.  Judge Bishop issued his ruling, which was then appealed to the Supreme Court.

Q.   And it was upheld?

A.   And it was upheld.

Q.   Now,  in terms of -- you were retained early on in the case, and you familiarized yourself with the case pretty quickly, didn't you, or at least the allegations at that time?

A.   Yes.  I think I contacted you about the allegations.

Q.   And you were aware that the allegation was that Mr. Chapel had robbed Emogene Thompson of $7,000, most of it in hundred dollar bills; isn't that correct?

A.   I knew that was the allegation from talking to you, yes.

Q.   Now, according to your understanding of your relationship with Mr. Chapel, if he had walked in with 7,000 in one hundred dollar bills to pay you, you would have been under a legal obligation to turn that over to the state as evidence of a crime, wouldn't you agree, under your ethical obligation and your understanding of the case law?

A.   I sort of might -- I think there may be a gray area there, Mr. Porter, about what I have an obligation to do.

Q.   Well, don't you have an obligation, even as a defense attorney, to turn over potential physical evidence to the state if it comes into your possession even from your own client?

A.   I think that there's two lines of cases on that, Mr. Porter.

Q.   But you would agree there is some authority for that position?

A.   Oh, yes, there is some authority.  I just think there's some authority both ways for that.

Q.   So it wouldn't be particularly surprising that you wouldn't get paid in 7,000 -- 7,000 in one hundred dollar bills.  You didn't find that particularly surprising, did you?

A.   I don't -- whether it's surprised or not surprised, I was just paid $7,000 -- $7400 or whatever it was.

Q.   And you don't have any idea of the ultimate source of that money --

A.   All I know --

Q.   -- of your own personal knowledge.  You just got the checks --

A.   I got the checks.

Q.   -- from the people you got them from?

A.   Wrote the receipts, and I would beg to say -- I would probably say that the -- that the days I was paid the money, this was probably a Saturday morning or a Saturday afternoon or late one night because I actually wrote the receipts.

Q.   And you -- you just went out and took the checks, wrote the receipts, and may have had a meeting of some kind --

A.   Right.

Q.   -- but you don't know the ultimate source of that cash?

A.   No.

Q.   Or those checks?

A.   No.

Q.   Thank you.

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

THE COURT:  Redirect?

MS. ROGAN:  Just briefly.

     REDIRECT EXAMINATION

BY MS. ROGAN:

Q.   Directing your attention to the check you received in July of 1993, were you aware of the sale of Mr. Chapel's gym --

A.   Yes, I was.

Q.   -- at the time?

A.   Yes, I was.

Q.   And are you aware for how much the gym was sold for at that time?

A.   Not the exact amount, but I think it was some type of -- some amount around this amount of money for the $2,000.

Q.   And the first check you received in this case, the first payment of any kind, you received in June?

A.   June the 5th of 1993.

Q.   Of 1993, okay.

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 under subpoena or do you want to release him?

MS. ROGAN:  He can be released, Your Honor.

THE COURT:  Any objection, Mr. Porter?

MR. PORTER:  No, Your Honor.

THE COURT:  You're released from any further attendance at trial of this case.  You can come down, Mr. Britt.

THE WITNESS:  Thank you, Judge.

[The witness stepped down from the stand.]

THE COURT:  Call your next witness, please.

MS. ROGAN:  The defense calls Ian Ratner.

[The witness was called to the courtroom.]

MR. PORTER:  Your Honor, may we approach?

THE COURT:  Yes, sir.

[Counsel approached and a conference was held at the bench, as follows.]

MR. PORTER:  Your Honor, I'm going to object to Mr. Ratner testifying, if he is the financial analyst, on the basis of two -- on two bases.  One I'm not going to insist on is that we believe that these displays, which we have been given regular size copies of, are written reports. 

Second of all, in a review of this, what Mr. Ratner has done is gone through and just basically added and subtracted numbers from the documents which are already in.  It is not testimony which is applicable to expert application. 

It is not testimony beyond the ken of an average juror.  It is not testimony which the jurors require assistance to understand.  It is nothing more than a breakdown of the deposits and withdrawals in the bank accounts from the information which is already before the jury; therefore, it is a summary and does not require expert testimony.  A summary is cumulative evidence and is this witness's opinion based upon that summary, and we believe that it is not the basis for expert testimony.

THE COURT:  Ms. Rogan?

MS. ROGAN:  Your Honor, I think it's classically the type of evidence that an expert is useful in for a jury.  If this jury were to spend a week, or however long Mr. Ratner spent, looking through all the bank records, maybe they, too, could come to the same conclusions that he's come to. 

But what he did is precisely what Mr. Porter said.  He analyzed the data that is contained in the bank records, and he mapped it out on various charts to show what the financial activity was over a period of two years, which is a much longer period of time.

The state has introduced evidence that relates to activity within the bank accounts in April of 1993, and they're trying to make an inference to the jury that there was a pattern of cash deposits and things of that sort that were indicative, in their view, of acquisition of money by Mr. Chapel through illegal means.

Our purpose here is to demonstrate for the jury that an analysis of the two years worth of financial records shows a fairly consistent pattern.  It also shows the type of banking activity that Mr. Chapel and his wife in their personal account had.  It is precisely because the information is so unwieldy that an expert is -- that's the purpose of his job, is to take data, synthesize it into something that is more understandable, and put it into a presentable fashion so that --

THE COURT:  Well, what is he going to testify to?  What's his testimony going to be?

MS. ROGAN:  He has -- he has compiled the data.  He's just really listed numbers and added and subtracted, like Mr. Porter said, looked at the deposits, looked at the withdrawals.

THE COURT:  And for what purpose is it offered?

MS. ROGAN:  It's to show the pattern of activity in the bank accounts, to rebut the state's allegations that there was indication of financial struggling, that there were an inordinate number of deposits immediately after the crime, that somehow Mr. Chapel's possession of cash is improper, all of which have come into the case through the direct evidence.

MR. PORTER:  We agree with that, Your Honor.  But our position is this is not evidence which is beyond the ken of the average juror; and, therefore, an expert opinion is not allowed to do this type of interpretive work.  The evidence is before the jury.

MS. ROGAN:  It's not before them in a form that they can decipher, Your Honor.

MR. PORTER:  Your Honor, it's the bank statements and the checks and the deposits.

THE COURT:  Well, I don't think it requires any particular genius to look at the records and see what amount of money is in the bank at the end of every month.  But, on the other hand, when you've got -- the last one admitted, it seems to me, on behalf of the defendant, was a 3 or 4 inch thick stack of statements that -- my inclination is that if somebody has sorted it out, looked at the cash flows, it would help the jury understand.

MR. PORTER:  But, Your Honor, that's the position of the state is that to allow the expert to give his opinion, that goes to an issue that's ultimately before the jury. 

THE COURT:  That's a separate --

MR. PORTER:  And it's the attorney's job to straighten it out.

THE COURT:  That's a separate issue, though.  And what opinion -- are you going to ask him to render any kind of opinion?

MS. ROGAN:  Render -- I'm going to ask him to render an opinion as to whether there was unusual activity in the bank account around April or whether it was consistent with activity preceding that date, whether he noticed anything unusual in terms of the financial status.  Also, you know, establish what quantities of money we're talking about here.  And the state has introduced evidence of six or seven cash deposits during April, and he's able to track back to see that that was not an unusual pattern --

MR. PORTER:  Your Honor --

MS. ROGAN:  -- given the cash existence that Mr. Chapel and his wife had.

MR. PORTER:  The defendant can point out the relevant records at any time.  That evidence is before the jury by stipulation with the state.  The question now becomes is that evidence that requires an expert opinion, and we insist that it doesn't.

THE COURT:  Well, I think it's admissible.  What opinions he may render, that may be a different question, depending on what you ask him.  But as far as him just sorting through them and looking at the cash flow during the course of it to assist the jury in seeing what the history of it was, how it went up and down, and that sort of thing, I think that's an aid to the jury, and I think that's admissible.  I just think that's appropriate, considering the overtones of the case about the -- which I think the state's raised insofar as the financial means or the necessity or the need for the money.  I think that's -- I think that whatever benefit that may provide the jury in assessing his financial circumstances, I think that's an issue the jury is going to be hearing about and has heard about.  And I think that's -- I don't think it's -- I don't know how much help it will be and how much weight it will carry, but I don't think it's impermissible.  I'll allow that.  Insofar as the conclusions or opinions, you know, that may be a horse of a different color.

MS. ROGAN:  Well, I'm going to endeavor to qualify him as an expert.

THE COURT:  Well, even so, even if he's an expert, that doesn't say he can testify to whatever happens in his head.  So -- well, let's just talk about that.  What sort of -- if he's qualified as an expert, what sort of -- what are you going to ask him?

MS. ROGAN:  Well, I'm going to ask him to explain what the charts indicate, which doesn't require his opinion.

THE COURT:  I mean, what does that mean?  What do they indicate?  What do you expect him to say?

MS. ROGAN:  Well, they -- what they indicate is what the daily balances were.

THE COURT:  I mean those are facts.  He can testify to that.

MS. ROGAN:  That's correct.  That's right.  I wasn't characterizing it as an opinion.

THE COURT:  I mean, I don't anticipate you asking him, 'In your opinion, did he have reason to commit a crime because of his financial circumstances.'

MS. ROGAN:  Enough money -- yeah.  Right.  No, I wasn't planning to ask him that.

THE COURT:  Okay.

MS. ROGAN:  The only opinions I was going to elicit were -- are, 'Do you notice any unusual pattern of activity in April of 1993 as opposed to the previous periods that are indicated on the chart?'

MR. PORTER:  I think that -- I think that would probably be a permissible question if it was put in the frame of, 'Did you see any significantly higher number of cash deposits, unusual activity --'

THE COURT:  I think it would be helpful if you put some specifics in it as opposed to seeing anything unusual.

MS. ROGAN:  Right.  Well, I won't -- I will try and tailor it so that it's as specific as possible.

THE COURT:  Okay.  All right.  Okay?

MS. ROGAN:  Okay.

[Bench conference concluded]

THE COURT:  If you'll take the stand, please.

[The witness stepped to the stand.]

MS. ROGAN:  Would you raise your right hand for me, 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,

     IAN RATNER

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.   Ian Ratner, R-a-t-n-e-r.

Q.   Okay.  Mr. Ratner, where do you work?

A.   I work for Lindquist Avery MacDonald Baskerville, Inc.

Q.   And what is that organization?

A.   It's a professional service firm which specializes in forensic and litigation accounting.

Q.   Where did you work before that?

A.   Prior to working at Lindquist Avery, I worked at Ernst & Young, which is an international accounting firm in Atlanta and in Toronto.

Q.   What is your educational background, Mr. Ratner?

A.   I have a commerce degree and a graduate degree in public accounting, both from McGill University.

Q.   And where is McGill University located?

A.   In Montreal, Quebec.

Q.   Are you from Canada originally?

A.   Yes, I am.

Q.   How long have you lived down here in the states?

A.   Over two years.

Q.   Did you work in the field that you're in now in Canada?

A.   I've been in this field since late 1989.

Q.   What certifications do you have?

A.   I am a certified public accountant, a certified fraud examiner, and an accredited member of the American Society of Appraisers.  I am a chartered accountant, which is a Canadian equivalent of the CPA.  And I'm also a CFE, which is a certified fraud examiner, if I didn't mention that. 

Q.   And what organizations are you a member of?

A.   I'm a member of the American Institute of Certified Public Accountants, the Association of Certified Fraud Examiners, the American Society of Appraisers, Business Valuations Section.  I'm a member of the Canadian Institute of Chartered Accountants, the Canadian Institute of Chartered Business Evaluators, and the Ontario Institute of Chartered Accountants.

Q.   Have you written any articles in the field of financial analysis or forensic accounting?

A.   Yes, I have.

Q.   And what articles have you written?

A.   I've written an article on the general area of forensic accounting and what it means, and the types of cases that forensic accountants get involved in.  And I've written another article comparing forensic accounting to litigation support and damage calculations.

Q.   What is forensic accounting?

A.   The area of forensic accounting involves fraud investigation, financial investigations, tracing assets, tracing funds, money laundering cases, this whole area of financial investigation.

Q.   Have you taught any courses or seminars in this field?

A.   Yes, I have.

Q.   And what are those?

A.   I taught a day seminar at the Georgia State School of Law.  I've also taught a day seminar at York University, and a number of law firm presentations and courses to young attorneys or students studying for the bar.

Q.   What have been the subject matters of those presentations?

A.   Generally, the same types of items that I've mentioned earlier, including business valuations and understanding financial statements, understanding financial records, what to request in document productions, really just helping attorneys get comfortable with financial records.

Q.   Have you appeared as an expert witness at any proceedings?

A.   Yes, I have.

Q.   And can you tell the Court what proceedings you've appeared in?

A.   I've appeared as an expert in front of a special master in a shareholder dispute type case, and I've appeared in a number of mediation -- private mediation arbitration hearings.

Q.   Do you do any work in the tax area?

A.   I've had occasion to prepare tax returns and, in fact, work on a number of tax fraud investigations for clients.

MS. ROGAN:  At this time, Your Honor, I would tender Mr. Ratner as an expert in the area of financial analysis and tax accounting.

THE COURT:  Do you wish to voir dire the witness, Mr. Porter?

MR. PORTER:  No, Your Honor.  We have no objection to his tender.

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

MS. ROGAN:  Thank you, Your Honor.

BY MS. ROGAN:

Q.   Mr. Ratner, were you provided with bank records relating to Michael Chapel?

A.   Yes, I was.

Q.   I'm going to show you what has been previously entered into evidence as Defendant's Exhibits 154 and 155, and ask you if you recognize these documents.

A.   Yes, I do.

Q.   Okay.  And what are those documents?

A.   These are the bank statements and supporting documentation for the Chapels' personal account, checking account, and their -- the gym account.

Q.   Okay.  And which bank was each account at?

A.   The gym account was at Peoples Bank & Trust, which is the Iron World The Gym, and their personal account was at First American, later South Trust.

Q.   What were you asked to do with these documents?

A.   We were asked to review the documents and help prepare analyses which would generally cover two areas: one relating to the daily balances in these accounts over the period --

Q.   And what period was that?

A.   Generally, from mid- or late 1991 through April 1993, through the end of April 1993.

Q.   Okay.  Continue.

A.   And the second area, in addition to the analysis of the daily balances, was to review these bank accounts and analyze the deposits to determine the level of cash activity in those accounts.

Q.   And how did you do that?

A.   For each case or -- generally, we work from the bank statement and the supporting documentation, and we accumulate the information and then summarize it through schedules, and then finally present it in chart format to communicate the detail.

Q.   Did you reduce the information for each account to a chart?

A.   Yes.

 [Defendant's Exhibit Number 158 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   Mr. Ratner, I'm going to show you what's -- I'm going to show you what's been marked for identification as Defendant's Exhibit 158 and ask you if you recognize this.

A.   Yes, I do.

Q.   And what is this?

A.   This is a chart which communicates the daily --

Q.   I'm sorry. 

MS. ROGAN:  I'm sorry, one moment.  Okay.  Let's try again.  Let me just make sure we've got this on the board.

[Defendant's Exhibit 159 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   Okay.  Here we go.  Can you -- this has been marked for identification as Defendant's Exhibit 159.  Can you tell us what this is?

A.   Sure.  That's a chart which communicates the daily balance in the Iron World The Gym account at Peoples Bank & Trust through the period August 1991 through April 27, 1993.

Q.   Did you create this chart?

A.   Yes, I did.

MS. ROGAN:  Your Honor, at this time I'd like to tender for the record Defendant's Exhibit 159.

THE COURT:  Mr. Porter?

MR. PORTER:  We have no objection, Your Honor.

THE COURT:  It's admitted.

MR. PORTER:  Your Honor, pursuant to the discussion regarding demonstrative evidence that the Court will hold later. 

THE COURT:  Well, we'll revisit all that.  It's admitted.  Go ahead, please.

MS. ROGAN:  All right.  I'd like the witness to identify some things in front of the jury, if that's permissible.

THE COURT:  That would be fine.

MS. ROGAN:  Mr. Ratner, can you come down, please?

[The witness stepped down.]

BY MS. ROGAN:

Q.   All right.  I'm going to give you the pointer.  If you would just explain to the jury, please, what this chart shows?

A.   This is the -- the black line represents the daily balance in this account between the period August 19, 1991, all the way through April 27, 1993.  And what this shows is it shows the balance at the end of that day in the account, which is after deposits and withdrawals and any transactions that cleared the bank on that day.

 So, for example, we see that the account generally had a balance anywhere between zero or, in one case, slightly overdrawn, to as high as $1500 at this point in 1992.

Q.   And what is the point at which the account reached $1500?

A.   That's in the July -- in the June 1992 period.

Q.   And when is the time where the account was overdrawn?

A.   The account is slightly overdrawn in August 1992 and possibly slightly overdrawn -- I have to add the details, and we can verify that -- slightly overdrawn here in September 1992.  And then here's our more significant overdraw, which again, is not greater than $100 overdrawn in the January 1993 period.  But, generally, the chart shows the level of activity where there's funds in the account, funds are spent, then there's more deposits, and those deposits are spent, a pretty regular series of transactions in this account.  No real -- the daily balance doesn't fluctuate unexpectedly.

Q.   Did the daily balance change significantly in April of 1993 --

A.   No.

Q.   -- from the prior periods?

A.   In fact, we have another chart which blows up the period January through April 1993, and by blowing it up we get more details, because here there's literally, you know, hundreds of transactions condensed into this period.

Q.   Why don't we go to that chart next. 

THE COURT:  Why don't you have him identify them before you show it to the jury.

MS. ROGAN:  Yes, I will.  I'm endeavoring to not show them to the jury yet.  All right.

[Defendant's Exhibit Number 160 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   Mr. Ratner, I'm going to show you what's been marked Defendant's Exhibit 160 and ask if you recognize this chart.

A.   Yes, I do.

Q.   And what do you recognize it to be?

A.   To be a chart that I prepared for trial.

Q.   Okay.  And what does it depict?

A.   It depicts, as I mentioned earlier, we've blown up the daily balances for this account from the period January 1993 through the end of April 1993 to get a better look at that period.

Q.   And is this for the Iron World The Gym account?

A.   Yes, it is.

Q.   At the Peoples Bank & Trust?

A.   Yes, it is.

Q.   All right.

MS. ROGAN:  Your Honor, I would tender at this time Defendant's Exhibit 160.

MR. PORTER:  No objection, Your Honor.

THE COURT:  It's admitted.

MR. PORTER:  Subject to the previous issues that we discussed.

THE COURT:  Yes.

MR. PORTER:  And, Your Honor, for all of these exhibits, those will all be subject to --

THE COURT:  We'll revisit all of that.

MS. ROGAN:  Okay.

BY MS. ROGAN:

Q.   If you could just come and point out to the jury what you are describing on the larger chart, what's depicted in this chart?

A.   So we can see, this -- this -- the black line here is, again, the daily balance, which is the exact same line as this little quarter here, but what we've done is we've taken that -- we've taken that 10 inches and we've blown it up so that it's easier to look at.  We've magnified it.  And, in fact, here you can see the detail a little more clearly, and we've got it charted here from January 1993 through April 28, 1993.

And then in this period, because it's magnified, it's a little bit easier to look at, and we can see that the daily balance, generally, in this period, fluctuated between zero to as -- again, as high as just under $1500.  And, again, we see pretty regular, you know, funds deposited and then funds being spent out without any significant or unusual changes for that period.

Q.   Did you notice any significant change in the daily balance, particularly in April of 1993 in this account?

A.   No.  Just the daily balance is indicated by the -- by the black line, and you can see it's just funds are available and they're spent, and then redeposited.  Typical business activity.

Q.   And what is the maximum daily balance for the period of April 1993?

A.   The maximum daily balance for April 1993 is below $1,000.

Q.   If I could direct your attention to this account and the -- if you can resume the stand for a second, we'll come back to the chart.

A.   [Witness complies]

Q.   In your examination of the accounts for the gym at the Peoples Bank & Trust, did you identify the number of times that a transaction took place at the Peoples Bank in March of 1993?

A.   Yes, we did.

Q.   Okay.  Can you tell us how many times and on what dates there were transactions at that bank?

A.   Okay.  In March of 1993 there were -- there were 11 deposit transactions in the Iron World The Gym account at Peoples Bank & Trust.

Q.   Can you tell us, please, what dates those transactions occurred?

A.   Those 11 deposit transactions occurred on March 3, 1993; March 5, 1993; March 9, 1993; March 10, 1993; March 11, 1993; March 12, 1993; March 17, 1993; March 18, 1993; March 25, 1993, March 30, 1993; and again on March 31, 1993.

Q.   Do you have any indication in the records that you've reviewed whether those transactions would have been done in person or electronically?

A.   Based on the records that we've reviewed, these transactions appear to have been done in person as opposed to an electronic deposit.

 [Defendant's Exhibit Number 161 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   I'd next like to draw your attention to -- let me show you what's been marked for identification as Defendant's Exhibit 161 and ask you if you recognize what this chart depicts.

A.   Yes, I do.

Q.   Okay.  And what is that?

A.   This depicts the Michael and Eren Chapel checking account at First American Bank, and then later South Trust Bank, for the period November 1991 all the way through May 14, 1993.

Q.   And did you create this chart?

A.   Yes, I did.

MS. ROGAN:  Your Honor, I'd like to tender this exhibit, Defendant's 161, into evidence at this time.

THE COURT:  Any objection?

MR. PORTER:  No objection to the exhibit, Your Honor, but I would like to approach the bench.

THE COURT:  Yes, sir.

[Counsel approached and a conference was held at the bench, as follows.]

MR. PORTER:  Your Honor, it was represented to us that these displays constitute the totality of the witness's written report, and we agreed to that.  But he's got a binder up there that he's referring to from his testimony that we believe constitutes an expert's work that we're entitled to.  And it was represented to us that --

MR. MOORE:  Your Honor, the books up there and stuff he didn't provide to us either.  We just got a simple report is all we got from him.

MS. ROGAN:  They're lists of numbers.  I mean, it's not -- it's not -- there are no conclusions drawn.  They're just lists of numbers.  He's just taking the bank records and then put them in his own list.  It's not a report.  He's not drawn any conclusion from them and he's not -- he's just referring so that he can be clear on dates.

THE COURT:  Well, quite frankly, I have -- my excitation level with this is kind of low any way you look at it, you know.  I mean, basically --

MR. PORTER:  Well, Your Honor, you're not the one getting ambushed.  I am.

THE COURT:  But what I'm saying is what this witness is doing, it seems to me, is he's saying, 'Okay, if I go and look at these checking accounts, and I look at, whatever you want to say, the average daily balance or closing balance or whatever,' he's saying, 'okay, if I look back --' then he'd plot them on a graph, the amount as a function of time, 'Here they are.  This is what the average balances were.'

MR. PORTER:  I understand that, Your Honor, but all I'm saying is is that I'm entitled to certain things under the law, just like every other litigant that walks into this court.  It was represented to me that these charts constituted the extent of the report.  And now -- now he's got a report there.  I guarantee you if the Court looks through it, he's got a letter of analysis stating his conclusion.

MS. ROGAN:  No, he doesn't.

MR. PORTER:  Because that's what that is.  It looks like an audit report.  And we haven't been provided with any of it.

MR. MOORE:  Your Honor, the case law provides that we -- we're not entitled to the notes of the lab people.  They bring their notes in here and they testify to them.  We're not entitled to their notes.

MR. SMEAL:  Well, Your Honor, we filed a motion for reports in this case that's been pending for a long time, and no written reports have ever been provided by the defense.

MR. PORTER:  Except the one ordered by the court from the engineer.

THE COURT:  Well, the other thing, I guess the question in my mind is, is this a test or a scientific report that falls within the requirement?  I just -- I guess my own feeling is that I'm not at all really sure it falls within the statute.  It's not real -- I think it's not -- it's not clear -- I told them to disclose it or required them to disclose it when the issue came up, but I think there's some question, well, you know, is it clearly one that's required to be disclosed --

MR. PORTER:  On the basis of an expert's opinion.

THE COURT:  Well --

MR. PORTER:  Your Honor, I realize your excitation level is low, but you knew about this.  They requested the funds in camera.  They told you what they wanted.  Now, I get -- now I get bagged on the tenth day of trial.  Your excitation would naturally be a lot less than mine.

MS. ROGAN:  It's not anything that you couldn't have figured out yourself, as you were just arguing before, if you --

THE COURT:  Well, that's one of my -- I guess one of my -- that's the reason I say my excitation level is not so high is that all he's saying is something -- it's what the jury knows, if they say, well, I mean, what's he saying?  All he's saying is, 'I just plot this stuff out, you know, this is a graph of it.'  I mean --

MR. PORTER:  He can explain the graphs and I don't have a problem with that.  The graphs can be self-explanatory and he could demonstrate it.  But when he starts saying on such and such a day there was this, and such and such a day there was this --

MS. ROGAN:  It's all in the records.

THE COURT:  All that's basically a matter of record, and everybody knows it.

MR. PORTER:  But that goes back to the original agreement.  That goes back to the original statement he made.  If it's so simple, why is he here?

MR. MOORE:  Your Honor, Mr. Porter made an impassioned argument that we weren't entitled to the programs, computer programs from the crime lab because he said that any mathematician should be able to take those figures and work them out for themselves who's qualified, and the same thing with these financial records.  Any qualified accountant or financial person could take the same records and arrive at the same conclusion.

MR. PORTER:  Well, but then I'd be required to turn it over.

THE COURT:  Yeah.  Well, I understand what you're saying, and I understand everybody likes to know what's coming before they get there if they possibly can.  But I just think where we are in the case that what this is, what the nature of what he's testifying to, I just don't see -- at this point, I'm not going to keep it out.  I'm not going to sustain the objection to it.

MR. PORTER:  Your Honor, I'm not -- I guess what I'm really doing is for the record.  I'm lodging a protest here.  You know, I've heard a lot of griping about how everything's been withheld from the defense and, to tell you the truth, I'm frankly a little sick of it.  Now, at their first opportunity, they've withheld information, and I don't want hear anymore bitching about it, to tell you the truth.  That's basically my position.  And I'm going to put that on the record.

MS. ROGAN:  The obligations are somewhat different.

MR. PORTER:  Your Honor, I don't think they are.

MR. MOORE:  Your Honor, if he wants to put that on the record, I'd request the jury be sent out.  I don't think he's allowed to make speeches like that in front of the jury.

THE COURT:  I don't think the jury's hearing it, but --

MR. MOORE:  I'm talking about if he's going -- he said he's going to put that on the record, and he's acting like he's going to walk away and go back to the table.

THE COURT:  Well, we'll have a recess shortly and everybody can lodge their protest however they want or state your positions or whatever.  But I think, at this point, we're going to proceed on with it, and you can cross-examine.

MR. PORTER:  That's fine.  That's fine with me.

THE COURT:  Okay.  All right.

MS. ROGAN:  Okay.

[Bench conference concluded]

THE COURT:  What's your question?

MS. ROGAN:  I'd like to tender Defendant's Exhibit 161 into evidence.

THE COURT:  Any objection?

MR. PORTER:  No, Your Honor.

THE COURT:  It's admitted for the record.

BY MS. ROGAN:

Q.   Mr. Ratner, if you'll come down and take a look at this.

A.   [Witness complies]

Q.   All right.  Now, if you'll just tell the jury again what this chart depicts.

A.   This is the same form of analysis as the prepared charts where we're interested in the daily balance in this account over the period that we have here, from November 1991 through May 14, 1993.  And, again, the black line represents the daily balance in this account at those given dates.

Q.   And what would the maximum daily balance for this account during that period of time be?

A.   The maximum daily balance in this account was over $2500 in the period of June 1992.

Q.   And what was the maximum daily balance during August -- I mean, excuse me -- April of 1993?

A.   Again, we have -- we have another chart which magnifies that period, but even here we can see that the maximum daily balance in April 1993 was about -- under -- in between $1500 and $2,000.

And, again, in this chart we see a similar pattern of activity as we did in the gym account, where funds are available, the balance increases, those funds are spent, the balance is drawn down, and again increases.  And this is not inconsistent with an individual's checking account where their pay would come in twice a month, they'd pay their bills and it would be reduced to a lower level, and then their pay would come back in, their next paycheck, and again their daily balance would rise.

In fact, in this account, the fluctuations are slightly more erratic because Michael and Eren have more than one source of income, for example, just the couple that has one person with a salary.  Here they have Michael's paycheck, they have his part-time work, Eren works as a waitress, and also there's tips coming for this account, so there's more fluctuation than generally one person getting a paycheck, spending it, and then getting the next paycheck.  But, generally, it follows the same kind of activity.

Q.   Would you point out, please, the periods of -- in which -- during which the account is overdrawn during this time period?

A.   As you could see here, the account is again slightly overdrawn in January 1992, and again we can see the overdraw is not more -- not significantly more than $100 in January of 1992.  And then, again, over here we have a slight -- well, a slight overdraw in February 1993, and then in March 1993 again.

Q.   Did you indicate anything in your review of the documents to explain why there was an overdraw on this account in March of 1993?

A.   Yes.  In March of 1993 we saw that Michael Chapel's Gwinnett County paycheck was deposited in the gym account, not in this account, and perhaps Eren wrote checks thinking that that paycheck was in this account when it wasn't.  So that would have caused -- of course that would have caused the account to be overdrawn because she was thinking that the check was in this account when, in fact, the paycheck was deposited in the gym account March, both in March.

Q.   Into which account were the April paychecks deposited?

A.   The April paychecks are deposited into this account.

Q.   Does that account for the higher daily balance in April than in May on this account?  March and then --

A.   That could account for part of the increase in daily balance.  You know, including the paychecks, there was, you know, cash deposits from waitressing and --

MR. PORTER:  Your Honor, I'm going to object to this.  Mr. Ratner's laid no basis that he knows that that's the basis for the cash deposits.

THE COURT:  Objection sustained.

MS. ROGAN:  We'll move on to the chart that shows the period of time from January to April. 

[Defendant's Exhibit 162 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   I'm going to show you what's been marked Defendant's Exhibit 162, and if you could just tell us what that depicts.

A.   This is a similar chart that I've mentioned.  This is the personal checking account magnified --

THE COURT:  What number is that, Ms. Rogan?

MS. ROGAN:  One-six-two, Your Honor.

BY MS. ROGAN:

A.   [Continuing] -- magnified for the period January 1993, through April 29th, 1993, the four-month period.

Q.   Did you create this chart?

A.   Yes, I did.

Q.   All right.

MS. ROGAN:  I'd like to tender Defendant's Exhibit 162 into evidence.

MR. PORTER:  If I can just see it, Ms. Rogan.  I don't know which one it is.

MS. ROGAN:  I'm sorry.

MR. PORTER:  No objection, Your Honor.

THE COURT:  It is admitted for the record.

BY MS. ROGAN:

Q.   I'll just put it on top of the other one.  If you could come and just explain to the jury again what this represents.

A.   As we've seen before, what we've done is we've taken this 10 or 12 inch section of the previous chart, which is January through April, the past April 1993, and then what we've done is we've blown up that little period of this chart, so that now we have an easier time to look at the daily balance in this account between the period January 1993 and April 29, 1993.  And, again, we see the daily balance just, you know, hovering the maximum under $2,000 and just up and down during that period.

Q.   And when was that maximum daily balance for this account?

A.   In fact, the maximum being the balance as of the end of April.

Q.   What -- can you identify on this chart what date that is?

A.   It would be some point after April 25, 1993.

Q.   Okay.  I'd like to next go to -- this has previously been marked.  I'd like to show you what's been marked as Defendant's Exhibit 158, and if you could identify what it is.

A.   This is another chart depicting the daily balance of combining the Iron World The Gym account, the business account, and the personal checking account.  So here what we've done is we've put the two sets of charts that we just looked at together into one chart.

Q.   And did you create this chart?

A.   Yes, I did.

MS. ROGAN:  Your Honor, at this time I tender Defendant's Exhibit 158 into evidence.

THE COURT:  Any objection?

MR. PORTER:  No, Your Honor.

THE COURT:  It's admitted for the record.

BY MS. ROGAN:

Q.   If you could come and just show the jury what you did.

A.   Okay.  [Stepping down from the stand]  Again, we've charted the daily balance, which again is the black line, for the period December 1991 through April 27, 1993.  And what we've done here is combined -- as I mentioned, we combined the gym account daily balances with the personal checking account daily balances to get an aggregate daily balance.

Q.   And what is the highest daily balance that's reflected on this chart?

A.   The highest daily balance is approximately $3500, and that's in the period of May 1992.

Q.   All right.  And what is the next highest daily balance that's reflected in this chart?

A.   The next highest daily balance would be in the February-March 1993 period, and that's about slightly over $2,000.

Q.   Based on your review of the records as reflected in this chart, did you perceive any large infusion of funds into the account, either account, during the period between April 15th of 1993 and April 23rd?

A.   Well, these charts reflect the daily balance, so --

Q.   Did the daily balance change significantly during that period?

A.   No.  It's just as it's marked here.  The daily balance fluctuates between these points.  It's changing every day.

Q.   Is the daily balance significantly higher during this period of time than it has been at previous times during the period you were analyzing?

A.   Not any higher than any point earlier in the period.

Q.   Okay. 

[Defendant's Exhibit Number 163 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   I'm going to show you what's been marked Defendant's Exhibit 163.  If you could just identify what it is without explaining.  Just identify it.

A.   That's a chart that I prepared.

Q.   And what does it depict?

A.   It's a summary of cash available in the Iron World The Gym account.

Q.   Okay.  And did you create this chart?

A.   Yes, I did.

Q.   Okay.

MS. ROGAN:  At this time I'd like to tender Defendant's 163 into evidence.

THE COURT:  Any objection?

MR. PORTER:  No objection, Your Honor.

THE COURT:  It's admitted for the record.

BY MS. ROGAN:

Q.   All right.  If you could come down at this time, Mr. Ratner.

A.   [Witness complies]

Q.   Explain to the jury what this chart depicts.

A.   This chart -- in this chart we are categorizing the cash transactions from the available information supporting the bank statements.  What we're doing here is accumulating for each given month between August 1991 and April 1993 the cash deposits in those accounts, which is the dark green area, and it's marked up here.  The dark green is cash deposits.  And the lighter green area we've accumulated for those same months the cash withdrawn at the time of deposit, which would be a transaction where someone goes into the bank with $1,000 check and deposits $500 and takes back $500 in cash.

Q.   And what does this chart indicate to you in terms of the life style or spending habits of Michael Chapel through the gym account?

MR. PORTER:  Your Honor, I'm not sure this witness can testify as to the life style or spending habits.  He can testify to the cash deposits and cash withholding at the time of checking deposits.

THE COURT:  Ms. Rogan?

MS. ROGAN:  I believe that based on this witness's evaluation of two years worth of records, he's qualified to express an opinion as to habits or spending patterns.

THE COURT:  Objection sustained.

BY MS. ROGAN:

Q.   What is the significance of identifying cash deposits versus cash withdrawn at the time of the deposit?

A.   The significance of this exhibit, this chart, is to show that it would not be unusual for whoever was making these deposits and withdrawals to have cash available, either cash in their pocket on the way into the bank from these cash deposits, or cash in their pocket on the way out from the cash withdrawn at the time of the deposit.

So what we see in this chart is that in the Iron World The Gym account there is significant -- or not -- there is cash transactions.  And these cash transactions are charted out between August 1991 and April 1993.  And we see, for example, that in January 1992 there is a total of $1400 of cash transactions.  And part of that $1400 of cash transactions are cash deposits, and part of those cash transactions, the top part up here, are cash withdrawals at the time of -- at the time of depositing a check.  So from this analysis we're able to capture the level of cash activity in a given month.

Q.   And can you tell us, please, what the cash available was for April of 1993?

A.   For the entire month of April 1993 in the Iron World The Gym account, it's about $1200.

Q.   Okay. 

[Defendant's Exhibit 164 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   I'd like to show you what's been marked for identification as Defendant's 164 and ask you what this represents.

A.   This is a chart, a summary of cash available for Michael and Eren Chapel's personal checking account.

Q.   Okay.  Did you create this chart?

A.   Yes, I did.

MS. ROGAN:  Your Honor, at this time I'd like to move -- tender Defendant's Exhibit 164.

THE COURT:  What time frame is it?

MS. ROGAN:  Excuse me?

THE COURT:  What is the --

MS. ROGAN:  The title is the summary of cash available for the --

THE COURT:  For what period of time?

MS. ROGAN:  Oh.  It's the period of time of December '91 to April of '93.

THE COURT:  Any objection?

MR. PORTER:  No objection, Your Honor.

THE COURT:  It's admitted for the record.

BY MS. ROGAN:

Q.   Okay.  If you could just come down and explain what this chart represents.

A.   [Witness complies]  This is the same form of analysis as the one that we just looked at which we looked at for the gym account.  This is the same form of analysis for their personal checking account, for Michael and Eren Chapel, between the period December 1991 and April 1993.

And, again, we have the two categories of cash transactions.  We have the cash deposit category where they're depositing cash with a teller, and the other form of transaction where they're withdrawing cash at the time of the deposit, check deposit.

And we've gone ahead and put the total amounts per month on this chart.  Again, the dark green amount being the cash deposits and the lighter green amount being the cash withdrawn at the time of deposit.

Q.   And where is the highest amount of cash available depicted?

A.   In October 1992, the total amount is over $1800 in their personal checking account.

Q.   And what is the total cash available during April of 1993?

A.   The total amount for April 1993 is over $800 -- approximately $800.

Q.   All right.  We've got one more chart. 

 [Defendant's Exhibit 165 was marked for identification by the court reporter.]

BY MS. ROGAN:

Q.   Mr. Ratner, I'm going to show you what's been marked for identification as Defendant's 165.  Can you identify what this chart is?

A.   This is the combined summary of cash available for the Iron World The Gym account and the personal checking account.

Q.   And did you create this chart?

A.   Yes, I did.

Q.   All right.

MS. ROGAN:  Your Honor, I'd like to tender into evidence Defendant's Exhibit 165 at this time.

THE COURT:  Any objection?

MR. PORTER:  No objection, Your Honor.

THE COURT:  It's admitted for the record.

MS. ROGAN:  Okay.

BY MS. ROGAN:

Q.   If you could just come down and explain to the jury what this chart represents.

A.   [Witness complies]  What we've done here is we've taken the two previous charts, which represented the gym cash activities and the personal cash activities, and combined them into one chart between the period December 1991 and April 1993.

Q.   And what is the maximum amount of cash available for a particular month that's depicted on this chart?

A.   Based on combining the two accounts, the maximum cash available is indicated in September 1992 of approximately $2,000.  And, again, we have the dark green being the cash portions of these months and the lighter green being the cash withdrawn at the time of deposit.

Q.   And for the period of April of 1993, what is the maximum amount of cash available?

A.   For April 1993 the maximum is slightly over $2,000.  And, again, that's the combination of the two earlier charts.

Q.   Okay.  From your review of all of this financial information, did you draw any conclusions about the amount of cash available to the Chapels during the two-year period you analyzed?

A.   Yes.  As indicated on the charts, what the banking records tell us is that it would not be unusual, based on my review, for either Michael Chapel or Eren Chapel to have cash.

Q.   Was there a pattern that you determined in which cash was frequently being deposited or withdrawn in the accounts over a period of time?

A.   You see that, based on the charts we just looked at, consistently there is amounts of cash being deposited and withdrawn when checks are deposited in the bank.

Q.   Do you have any way of telling from the bank records that you analyzed whether or not Mr. or Mrs. Chapel had credit cards?

A.   Based on the records that I've looked at, it doesn't appear that they've been making any payments to credit card companies from these accounts, from the business or the personal checking account.

Q.   And would that be for the two -- approximately two-year period that you were looking at?

A.   Yes.

Q.   Do you have any indication from the records that you reviewed whether they had any significant liabilities or debts?

A.   From the records that I've looked at, you know, they appear to have these various sources of income and spend them on a current basis without paying any credit cards and really, you know, living on what they have in those accounts.  They have the salaries and the other sources of income and they spend those currently.

Q.   I'd like to just shift gears for a moment and ask you a couple of questions about tax matters and, in particular, a notice of audit.  Are you familiar with notices of audit?

A.   Yes.

Q.   Are there different types of notices of audit?

A.   There's different types of audit, of tax audits.

Q.   And what are the different types of audits?

A.   There are field tax audits, there are office -- office tax audits.

Q.   Okay.  What's the difference between a field audit and an office audit?

A.   In a field audit, the subject of the audit would get a notification that, you know, the IRS is notifying them that they're going to come out to their place of business and perform an audit.

In an office notice of audit, the subject of the audit would receive a letter in the mail or a notice indicating -- requesting, you know, further detail on certain items or certain matters.

Q.   Would those include certain deductions?

A.   They can.

Q.   Would someone receive a notice of audit that informed them that certain deductions may be disallowed?

A.   Yes.

Q.   And what -- would they be informed at that point as to how much tax they would actually owe?

A.   Not that I've ever seen.  What they would be notified is of the deductions or the items that are in question, or the items that the IRS is requesting further documentation on, further support, at that time.

Q.   And have you seen these types of audits that you're describing?

A.   Yeah.

Q.   And if the person can provide the documentation to support the questioned items, would there be any tax liability?

A.   If the taxpayer or the subject of the audit could supply satisfactory documentation, information to satisfy the IRS, you know, there may be no increased liability -- and that's hard to say, depending on the facts.

Q.   Okay.  So if the notice of audit were indicating that certain deductions were going to be disallowed, would it necessarily indicate how much tax liability there was going to be?

A.   No.

Q.   Would receiving such a notice indicate that any tax at all was actually going to be owed?

A.   At that point in the stage, I've not seen the IRS notify that you owe this amount.  That's typically after you've had a chance to comply with providing further documentation, or they've come out and visited with you, or there's been some interaction.

Q.   And what is the time period during which a person can respond to receiving such a notice?

A.   There's different time periods available.  I'm not aware of all the specifics of the 30 days or 90 days.  I'm not aware of all the specifics.

Q.   Would it be an immediate response required?

A.   Typically there's a time available.

Q.   To provide the documentation?

A.   Right.

MS. ROGAN:  That's all I have for Mr. Ratner.

THE COURT:  We'll take a 10 minute recess at this point and then proceed with cross.  We'll take 10 minutes.

[The jury was excused from the courtroom.]

[Break taken]

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

MR. PORTER:  Mr. Smeal's going to handle the cross-examination of this witness, Your Honor.

THE COURT:  All right.  Mr. Smeal. 

     CROSS EXAMINATION

BY MR. SMEAL:

Q.   Good afternoon, Mr. Ratner.

A.   Good afternoon.

Q.   My name is Scott Smeal.  I'm an assistant district attorney here in Gwinnett County.  We've never met, have we?

A.   No.

Q.   Mr. Ratner, how much were you paid to do all of this, to prepare the charts and to testify today?

A.   We haven't finalized that amount yet.

Q.   Okay.  But is it based on an hourly fee or how are you -- how are you charging Mr. -- the defense in this?

A.   Our firm charges on an hourly basis.

Q.   Well, how many hours has it taken you to date to prepare for this case?

A.   You know, somewhere more than 100 hours.

Q.   Okay.

A.   I don't know -- I don't -- I don't have the exact number.

Q.   And what will the firm charge per hour for those 100 hours, approximately?

A.   Approximately $100 an hour.

Q.   And then there will be today's testimony, however long that is?

A.   That's, yeah, included in the whole.

Q.   So 100 hours times $100 an hour; is that correct?

A.   If that's what -- if that's what it comes out to.

Q.   Ten thousand dollars?

A.   If that's how much time we have.

Q.   And for that money have you prepared a written report or analysis in this case?

A.   No.  I have the charts, and I have a summary of the data, which is in this binder.

Q.   You mean you have no put your conclusions into writing?  For $10,000 you don't write out conclusions in the case?

A.   Not in this case.  We've --

Q.   Okay.  Why is that?  Why wouldn't you?

A.   We've analyzed -- we've analyzed, you know, many bank statements and many supporting detail, and what we've done is we were asked to prepare these analyses.  And all we prepared was these summaries of data, which are the basis for these charts.  We've not prepared a written report or any written opinion.

Q.   Is that typical when you testify in court?

A.   It depends on the matter.

Q.   Okay.  Were you aware that the state had filed a motion for production of any written reports the defense offered at trial?

A.   No.

Q.   You were not aware of that.  Has anyone from the police department or connected with law enforcement ever interviewed you about this case?

A.   No.

Q.   Have you ever offered any financial information to the police department about this case?

A.   The information that we're using, as I mentioned, is the bank statements and the supporting data.

Q.   Right.

A.   I've not offered that to anybody.

Q.   No.  I'm talking about your conclusions.  I'm talking about your conclusions about financial patterns --

A.   No.

Q.   -- that you're testifying to today.

A.   No.  This is the first time I've testified.

Q.   The first time.  In this courtroom today is the first time you've ever produced that information for the state; is that correct?

A.   Yes.

Q.   Now, you're familiar with financial investigations; is that correct?

A.   Yes.

Q.   Fraud investigations?

A.   Yes.

Q.   Money laundering investigations?

A.   Yes.

Q.   And isn't it true that persons, for example, who deal in drugs often deal in cash transactions?  Is that a fair statement?

A.   Sometimes.  However, if you're dealing in drugs and in cash transactions, you typically don't take the proceeds of those drug transactions and deposit them in the bank account or have them reflected in those banking records.

Q.   And why wouldn't you do that?  Why wouldn't they do that?

A.   So that they would be traceable.

Q.   Right.  Okay.  So criminals who steal money don't often put cash into bank accounts, do they, because they know that's the first place the police are going to look?

A.   That's fair.

Q.   Okay.  Would it surprise you to hear that in this case in April of 1993 that one of the first steps that occurred in this case was for the Gwinnett County police department to subpoena those records there?  Would that surprise you?

A.   No, not at all.

Q.   In fact, one of the bank custodians has already testified in this case that they still had the original documents, the April statement, in their possession when they received the subpoena, and they supplied those to the state.  That wouldn't surprise you, would it?

A.   No.

Q.   Did you prepare any charts about income from any source to Mike or Eren Chapel?

A.   No.

Q.   Okay.  Did you prepare any charts about assets of Mike and Eren Chapel?

A.   No.

Q.   Did you prepare any charts about liabilities of Mike and Eren Chapel?

A.   Nothing other than what we've seen in the disbursements with regard to those liabilities.

Q.   Okay.  Did you receive any information about loans that they may have received?

A.   No.

Q.   Okay.  Does your chart for January of 1993 reflect the fact that Mr. Chapel received a $1400 loan from a Mr. Dudley?  Would your chart for January '93 reflect that?

A.   If the proceeds of that loan were deposited or in part deposited in January 1993, then it would be reflected in those accounts.

Q.   Okay.  And if he chose not to deposit it, then it wouldn't be reflected in any of these charts?

A.   Depending on the form of the loan.  Was it a cash loan or a check or --

Q.   A cash loan.  If he received a cash loan and chose not to deposit that in any account, then none of these charts would reflect that, would they?

A.   If he just held the cash, that's correct.

Q.   Correct.  If he illegally obtained currency and did not deposit it in the bank account, would that be reflected in any of these charts?

A.   The legality -- I mean, I could only comment on what was transacted in those accounts.  So whether it was legal or illegal, I could just comment on what was transacted in those accounts.

Q.   Okay.  Listen to my question again.  If he obtained cash illegally and chose not to deposit it in these bank accounts, would that money be reflected anywhere in these charts?

A.   No.

Q.   Okay.  Let me ask you about this one chart here, State's Exhibit 165.

 MR. MOORE:  Defendant's exhibit.

BY MR. SMEAL:

Q.   I'm sorry, Defendant's Exhibit 165, which is the combined available cash for that time period. 

A.   Here.

Q.   I need it a second.  If there has been evidence in this case that Mr. Chapel had a $100 bill and spent that on a car wash on April the 16th of 1993, and that none of that money ever went through a bank account, would that amount be reflected in this column?

A.   Can you repeat the question, please?

Q.   If there was evidence in this case that Mr. Chapel had in his possession a $100 bill which he spent at a car wash, and none of that hundred dollars went through the bank accounts, would that transaction be reflected in this column?

A.   No.

Q.   If there was evidence in this case from Mr. Kendon Curtis that on April the 18th that he saw Eren Chapel with at least $3,000 of $100 bills in an envelope, and none of that $3,000 was deposited into the accounts, would that be reflected in this column?

A.   No.

Q.   If there was evidence in this case that on April the 19th that Mr. Chapel had six $100 bills and purchased almost $600 worth of shirts, and none of that $600 ever went through these bank accounts, would that be reflected in this column?

A.   No.

Q.   If there was evidence in this case that on April the 24th, 1993, at the time of Mr. Chapel's arrest, that four $100 bills were found in his ledger, and that those four $100 bills never went through the accounts, would that be reflected in this column?

A.   If the $400 had never gone through the account?

Q.   Right.  If there was evidence that he possessed on April 24th four $100 bills and that money had never gone through these accounts, would that be reflected in this column?

A.   But if you have -- if you notice in April 1993 there is a portion of cash withdrawn at the time of deposit, it's not clear -- I mean, it wouldn't be clear to me where that cash came from.  It's possible that it was there or it's possible that it wasn't.

Q.   You have no way of knowing whether a given $400 in his possession on April 24th ever went through this bank account, do you?  You can't trace that particular $400, can you?

A.   Not from the records that we have available.

Q.   So, then, taking the $100 at the car wash, the $600 worth of shirts, the $3,000 in Eren's possession, and the $400 in the ledger, by my calculation that adds up to $4100 of available cash in April of 1993.  Does that sound correct, the addition of those four figures?

A.   The addition of those figures, yeah, sounds correct.

Q.   Okay.  So if the evidence has established beyond a reasonable doubt that that currency was in the possession of Mike and Eren Chapel in April '93, then we have an additional $4100 of available cash in April of 1993; isn't that correct?

A.   In fact -- that is correct.  And, in fact, one of the points of this chart is that these are the two forms of transactions that go through the account, although there's other cash transactions, for example, where there's a bunch of smaller bills that perhaps Eren had where they could be converted at the bank, a series of $25 bills or $50 or whatnot, where you can go in the bank and convert that into hundreds, that's not here.

Q.   Mr. Ratner, my point is, and I just asked you, with respect to the transactions that I've described, you have no way of knowing whether that money ever went through the bank account, do you?

A.   No.

Q.   Okay.  And if you add the $4100 to what your available currency is on this chart, which is about $2,000, we'd be up here somewhere, wouldn't we?

A.   But as I just mentioned, I don't know if it's in there or not.

Q.   Just -- if you'd answer the question.

A.   But it might be included in the --

Q.   $4100 plus $2,000 would put you up here somewhere, wouldn't it?

A.   If it's not already included in the cash deposits or some other portion of that.

Q.   Okay.  And you have no evidence that it was?

A.   No.

Q.   In fact, you weren't looking at the source of money, were you?  You weren't looking at the source of any of these deposits?

A.   For the cash withdrawn at the time of deposit, we're looking at the check, for example, if it's a paycheck or what the check was that created that cash.  So just from the records we had, we could tell from those the cash withdrawn.  The other cash, it's just indicated on the deposit ticket that it's cash.

Q.   Okay.  For example, on State's Exhibit 48, which is a deposit of $475 on April the 16th, $300 in currency, you don't know where the $300 in currency came from, do you?

A.   Exactly.

Q.   You don't know?

A.   We don't.  That's what I just said.  Right.

Q.   Do you know whether that came from his paycheck?

A.   No.

Q.   No.  And with respect to State's Exhibit 50, which is an April 19, 1993, transaction, $285 in currency deposited, do you know where that $285 came from?

A.   No.

Q.   And with respect to April the 29th of 1993, a total of $503 deposit of which $400 even was currency, do you know where that currency came from?

A.   No.

Q.   So shortly -- so in mid- to late April, we have $985 currency deposits, some of those in even amounts, and you don't have any idea where that money came from, do you?

A.   What we know -- we don't know those specific amounts, but we do know that over the period they do deposit cash from either the gym or from tips or whatever, and that's what we know.

Q.   But you don't know whether this currency came from tips or the gym or a robbery, for that matter?

A.   That's correct.  We don't know.

Q.   Did you break down April 1993 pre-April 15th and post-April 15th?

A.   Yes, I did.

Q.   And where does most of the money -- when is most of the money deposited in April 1993?

A.   For the -- for the checking account --

Q.   I'm talking about the Iron World account.

A.   Okay.  For the Iron World account the majority of the cash is deposited subsequent to April 15, 1993.

Q.   There are deposits on April 16th, 19th and 23rd, and the 20th, for over $1,000; is that correct?

A.   That is correct.

Q.   Other than the bank statements that you relied upon for your testimony today and for preparation of these charts, any other information you have about their financial situation has come from the defendant; is that correct?

A.   Can you repeat the question, please?

Q.   Okay.  Other than the bank statements that you have looked at and described and which are contained in those two books, any other information about their financial situation has come from the defendant himself, hasn't it?

A.   No.  It's come from understanding the financial -- the bank statements and the support that --

Q.   I'm talking about the source of the data, Mr. Ratner.  The source of the data was either the bank statements or the defendant himself?

A.   Yeah, the bank statements and the supporting documentation.

Q.   I mean, you seem to know something about the fact that they received tips and had extra income and that sort of thing.  That all came from the defendant, didn't it?

A.   Well, in fact, if you -- for example, looking at the deposits, we see her paycheck from the restaurants.  So from that, if you take those deposits from restaurants and then you combine that with the fact that there's cash deposits, you can say that those cash deposits may relate to her work at those restaurants and they might be tips.  There's information that you can derive from understanding the records, and that's what I've done.

Q.   All right.  In other words, some of the bank statements corroborate some of the information that you have otherwise received from the defendant; is that a fair statement?

A.   Yeah.  That's right.

Q.   If there was testimony in this case from a tax preparer that Mr. Chapel received information on April the -- April the 10th of 1993, and that he had was receiving or undergoing or about to undergo what's called a verification audit --

A.   Uh-huh.

Q.   -- and that he faced a tax liability of $4,000, is that possible that he would receive that type of information, based on your experience?

A.   It depends who the information was coming from.

Q.   Okay.  Would the receipt of a verification audit and the possible liability of $4,000, based on your experience and your experience with dealing with tax preparers, is that something that would have and should have caused him concern?

A.   I think that depends.

Q.   Okay.

A.   You know, if --

Q.   Do most people understand what the difference is between the various types of audits through the IRS?

MS. ROGAN:  I'm going to object to that question, Your Honor.  I don't think this witness has a foundation for answering what other people think.

THE COURT:  Restate your question.

BY MR. SMEAL:

Q.   Have you given financial advice and tax advice to people before?  You're a CPA; correct?

A.   Yes, I am.

Q.   And have you advised people about IRS tax liabilities to clients?

A.   Certain matters.  Certain matters.

Q.   You have?

A.   On certain matters, yes.

Q.   Well, based upon your experience, both your background and your financial experience and your tax experience in dealing with clients and customers, do most people understand the differences between the various types of IRS audits?

MS. ROGAN:  I'm going to object again, Your Honor.

THE COURT:  Objection sustained.

BY MR. SMEAL:

Q.   And you're not a -- you're not a psychologist, are you, Mr. Ratner?

A.   No, I'm not.

Q.   So you have no way of knowing what the state of mind of a person is who is considering their own financial situation, do you?

A.   No.

Q.   Would it be fair to say that a millionaire might be worried about his financial situation?

A.   I'm sure that happens.

Q.   Okay.  And notwithstanding what these charts show, there are many intangibles that would have gone into the state of mind of Michael Chapel in April of 1993?

A.   Can you repeat the question, please?

Q.   No matter what these charts show in terms of Michael Chapel's outlook of his financial situation, that's based upon a number of intangibles, is it not, such as his wants and desires and fears and all sorts of things; is that correct?

A.   That's correct. 

Q.   Isn't that correct?

A.   Although I would say that from my experience, when you analyze records over a period of time, it's very revealing about whether the daily balances are overdrawn consecutively or, you know, different things like that you can glean and you can understand a lot about people's activities from their financial records.  That would be my only insight into that.

Q.   Mr. Ratner, if the evidence in this case showed beyond a reasonable doubt that Michael Chapel murdered a woman on April the 15th, 1993, at approximately 9:45 p.m., and stole approximately $7,000, and he chose not to deposit that money in his bank account or only chose to deposit a portion of that money in the bank account, is that something that would be reflected in these charts?

A.   No.

MR. SMEAL:  I have no further questions, Your Honor.

THE COURT:  Redirect?

MS. ROGAN:  Yes, Your Honor.

     REDIRECT EXAMINATION

BY MS. ROGAN:

Q.   Mr. Ratner, on the fees that Mr. Smeal was questioning you about, the figure that you quoted, would that be the figure that you would charge a full paying client?

A.   Yeah.  Those are -- I failed to mention those would be our standard, you know, kind of corporate rates.

Q.   And are you aware that this is a court-appointed case?

A.   Yes, I am.

Q.   And have you and your firm agreed to adjust your fees accordingly --

A.   Yes, we --

Q.   -- in light of the fact of the status of this case?

A.   Yes, we have.

Q.   In the course of preparing for your testimony in this case, did I ever tell you anything about Eren Chapel's employment?

A.   No.

Q.   Did I ever tell you that she worked two jobs?

A.   Not that I can recall, no.

Q.   Is the information that you testified about regarding the sources of income for both Mike and Eren Chapel information that you've drawn from your analysis of the bank records?

A.   Completely.  Completely.

Q.   From your analysis of the cash available for both Michael Chapel through the gym and Michael and Eren Chapel in their personal account, would you consider it unusual for Michael Chapel to have cash?

A.   No.  That's what I was mentioning before that, you know, based on this analysis, it wouldn't be unusual for them to have cash in addition to the possibility of other cash not being deposited.

Q.   Did they do most of their transactions in cash?

A.   They did a lot of transactions in cash.

Q.   And in addition to some of the types of cash that wouldn't be deposited that Mr. Smeal was alluding to, if Michael Chapel were collecting cash dues from gym memberships, or if he were collecting cash payments for a vitamin supplement that he was selling, and that was in cash, would that be reflected in his bank accounts necessarily?

A.   No.

Q.   And if he were cashing checks that persons had written to him and just keeping the cash rather than depositing it, would that be reflected in this bank accounts?

A.   No.

Q.   From your review of the eighteen months to two years of records that you reviewed in this case, do you have an opinion as to whether Michael Chapel was struggling financially for the period of January of 1993 to April of 1993?

MR. SMEAL:  Objection, Your Honor.

THE COURT:  What's the objection?

MR. SMEAL:  The objection is that she has not laid a basis for him to be able to render an opinion as to whether he was struggling or not.  That would have to be based on much more financial information than has been offered in this case.

THE COURT:  Mr. Rogan?

MS. ROGAN:  Well, I think this witness is qualified to answer the question based on his review of the financial records of the two bank accounts for the person he's evaluating.

THE COURT:  Objection sustained.  Ask your next question, please.

BY MS. ROGAN:

Q.   Was there a significant pattern of overdrawn accounts during the period of January of 1993 to April of 1993?

A.   Nothing unusual.  We've talked about the paycheck being deposited in the other account.  Other than that, nothing unusual.

Q.   Was the pattern any different for that period of time than had been for the periods of time prior to that?

A.   No.

Q.   For the preceding two years?

A.   No.

Q.   And was there any indication that there was a larger than normal infusion of cash during that period of time?

A.   No.

Q.   Lastly, on this verification audit Mr. Smeal was asking you about, you testified briefly about that on direct.  In your experience, when the IRS is notifying you that -- or notifying a taxpayer that they're calling into question some of the deductions that have been claimed, in your experience does the IRS tell the taxpayer how much tax they're actually going to owe?

A.   Not at the initial stage of questioning those deductions.  That would come much later on.

MS. ROGAN:  That's all I have.  Thank you.

THE COURT:  Recross?

     RECROSS EXAMINATION

BY MR. SMEAL:

Q.   Did you see the notice of verification audit in this case from the IRS to Mr. Chapel in April of 1993?

A.   No.

Q.   Referring to Chart 161 -- and I won't bring out the big chart -- isn't it true, Mr. Ratner, that in mid-March of 1993 on their checking account, that they were -- apparently had a negative balance?

A.   Yes.  That's the overdraw, yes.

Q.   Okay.  They were overdrawn in mid-March of 1993?

A.   And that's the check item that I just mentioned, the paycheck going into the gym account as opposed to their personal checking account.

Q.   Looking at the Iron World account, there's a zero balance, apparently, around March 12th of 1993; isn't that correct?

A.   Yeah.  And one of the transactions in that --

Q.   Just answer the question --

A.   Yes.

Q.   -- if you can.

A.   Yes.  Yes.

Q.   There appears to be a zero balance in mid-March of 1993; is that correct?

A.   Yes.

MS. ROGAN:  And I think that he should be allowed to explain his answer.

BY MR. SMEAL:

A.   [Continuing]  There's a timing difference.  Because when the check -- for example, on this specific transaction that you're addressing, the paychecks go into the gym account, and then once they realize that they've cut all these -- they've written all these checks on their personal account, Michael Chapel draws a check on the gym account to transfer funds into the checking account.  So there could be an overdraw situation because of the timing difference between the clearing of the checks and the transfer of funds.

Q.   Mr. Ratner, on this combined available cash, what we see from December through March of 1993 is basically a steady decline of cash available, and then in April of 1993 a quite marked increase; is that correct?

A.   Yes.

MR. SMEAL:  No further questions.

THE COURT:  Do you wish this witness to remain on call?

MS. ROGAN:  He can be excused, Your Honor.

THE COURT:  Any objection?

MR. PORTER:  No objection, Your Honor.

THE COURT:  You're released from any further attendance at the trial of this case.  You can come down.

[The witness stepped down.]

THE COURT:  Call your next witness, please.

MS. ROGAN:  The defense calls Darryl Thompson.

[The witness was called to the stand.]

THE COURT:  Mr. Thompson, if you'll take the stand up here, Ms. Rogan will administer the oath. 

[The witness stepped to the stand.]

THE COURT:  Go ahead and be seated, please.

MS. ROGAN:  Mr. Thompson, will 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:  Yes, ma'am.

MS. ROGAN:  Okay.  I want you to pull forward and -- let me get this out of your way -- speak into the microphone so we can hear you.

Whereupon,

     LEONARD DARRYL THOMPSON

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.   Leonard Darryl Thompson, T-h-o-m-p-s-o-n.

Q.   Mr. Thompson, do you know Mike Chapel?

A.   Yes, ma'am.

Q.   How long have you known him?

A.   A good -- probably about 25 years.  We grew up together.

Q.   Twenty-five years?

A.   Right.  We were neighbors.

Q.   How did you learn -- how did you come to know him?

A.   We were neighbors, and he and his brother and I are the same age, and we all went to school together.

Q.   Okay.  Where did you grow up?

A.   Decatur.

Q.   Is Mike Chapel one of your friends?

A.   Yes, ma'am.

Q.   Okay.  I'd like to draw your attention to March 20th of 1993.  Were you riding with Mike Chapel that night?

A.   Yes, ma'am.

Q.   Did you often ride with him?

A.   Yes, ma'am.

Q.   And why would you ride with him?

A.   To observe.  And I enjoyed it.  It was interesting.

Q.   So would you patrol with him --

A.   Yes, ma'am.

Q.   -- on his beat?

A.   As a ride-along, yes, ma'am.

Q.   Okay.  Did Mike pull over a --

MR. PORTER:  I'm going to object, Your Honor.  She's leading the witness.  This is her witness.

THE COURT:  He's your witness.

BY MS. ROGAN:

Q.   Did something significant happen that you remember that night?

A.   A couple of things, but, yes, ma'am.

Q.   Okay.  What do you remember from that night?

A.   We went to one domestic disturbance, I believe, where they sort of got rough -- not, you know -- the person in the home, not the police officers.  And there was -- and we pulled some vehicles over -- a vehicle over.

Q.   I'm having trouble hearing.  If you could talk in the microphone.

A.   I'm sorry.

Q.   You pulled --

A.   Pulled a vehicle over.

Q.   Okay.  Why did you -- why did he pull a vehicle over?

A.   Appeared to be speeding and they were weaving just a little bit, and it was sort of late so --

Q.   What did that vehicle look like?

A.   It was an import pickup, either a Chevy or a Toyota.  It was hard for me to remember exactly the make.  But it was sort of -- it was an older model.

Q.   Okay.  Do you know what Mike did after he pulled the vehicle over?

A.   He ran the tag on the MDT, and then he walked up and talked to the person and said that, you know, we -- he suspected, I assume, that they'd been drinking, but he said they were all right.

Q.   Did he appear to know who the person was?

A.   It appeared so.  They seemed to talk for just a little bit, yes, ma'am.

Q.   I'm going to show you what's been previously entered into evidence as Defendant's Exhibit 124.  Could you look in that bag and tell me if you recognize what is in there?

A.   Yes, ma'am.

Q.   And what do you recognize that to be?

A.   It's a dome light bulb out of a Ford, four-door -- the new Fords, the Crown Vic, I think, is the actual model, but it's in several others.

Q.   Is that similar to a light bulb you would have seen in Mike's patrol car?

A.   Yes, ma'am.

Q.   Did you do anything to that light bulb --

A.   Not this one, but --

Q.   -- or to a different light bulb that was similar to that?

A.   Yes, ma'am.

Q.   And what did you do?

A.   We went by and picked up some model spray paint at the Kmart store and lightly spray painted it red, to sort of like dim the inside of the vehicle --

Q.   Okay.

A.   -- so you could see a little better inside.

Q.   All right.  Did you install the red light bulb in the car for Mike?

A.   Yes, ma'am.  And I bought a couple of extras because I was afraid I might break it getting it out, because I attempted to get it out when we pulled into the lot, and I said, 'Better safe than sorry.'

Q.   When was it that you installed the red light bulb for Mike?

A.   March 20th.

Q.   That same day?

A.   Yes, ma'am.

Q.   Okay.  All right.  And you indicated that you've known Mike for 25 years?

A.   Fairly well, yes, ma'am.

Q.   Do you know other people who know Mike?

A.   Yes, ma'am.

Q.   Do you know his family?

A.   Very well, yes.

Q.   Do you know if Mike has a good or a bad reputation in the community?

A.   As far as I know, he has a good one, yes, ma'am.  I haven't heard anything bad about him.

Q.   All right.  If Mike were to testify under oath, would you believe him?

A.   Yes, ma'am.

MS. ROGAN:  That's all the questions I have for you, Mr. Thompson.  One of the DA's may have a question.

THE COURT:  Mr. Porter?

     CROSS EXAMINATION

BY MR. PORTER:

Q.   Mr. Thompson, do you recall on March the 20th when you did the pull-over or when you were in the car with the pull-over?

A.   Yes.

Q.   Did Chapel write the tag number or did he just punch it into the MDT?

A.   Punched it in the MDT, the best I remember.  He may have -- he wrote something down.  I don't know whether it was the tag or not.  I couldn't really see that well.

Q.   But he just punched it in and that's how he read it up before the stop went down?

A.   Right.

Q.   And then if the evidence in this case -- you vouched for his good character is what that's called under the law.

A.   Yes, sir.

Q.   But if the evidence were to show that on April the 15th, less than a month after you rode with him, that he shot and killed a 53 year old woman and robbed her of $7,000, would you still believe him under oath?

A.   If he told me straight to my face, that's the only way I'd believe him, yes.

Q.   No matter what the evidence showed, you'd believe him?

A.   I know him very well, yes.

Q.   And the fact that he robbed and murdered a woman wouldn't change your opinion?

A.   That's not Mike that I know, no.

Q    Thank you.

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

THE COURT:  Redirect?

MS. ROGAN:  No, Your Honor.

THE COURT:  Do you wish this witness to remain on call?

MS. ROGAN:  No, he can be excused, Your Honor.

THE COURT:  Any objection?

MR. PORTER:  No objection, Your Honor.

THE COURT:  You're released from any further attendance at trial of this case.  You can come down.

[The witness stepped down.]

THE COURT:  Call your next witness, please.

MR. MOORE:  Your Honor, if I may approach for a minute.

THE COURT:  Yes, sir.

[Counsel approached and a conference was held at the bench, as follows.]

MR. MOORE:  Our next witness is going to be the DNA expert and we need the light box and everything for --

MR. PORTER:  It should be out there in the hallway.

MR. MOORE:  Is there something that we could set it up on with an extension cord like we had earlier?

MR. PORTER:  I have to get that, Your Honor.  I mean I'm -- how much did we pay for this.  I mean, I'll get the stuff up here if you want me to, but it will take a minute.

THE COURT:  Yeah.  What do you --

MR. MOORE:  Well, Your Honor, I understood they were going to let me use it.  I didn't ask to get one because I understood when they put it up there I could use it.  The offer was extended to me.

THE COURT:  What are you -- what do you want, a roll-in tray with a tray or something --

MR. PORTER:  Your Honor, I think the light box will balance on the podium.

MR. MOORE:  But the jury can see it from there, Your Honor.  The state had --

MR. PORTER:  No, not on, I'm sorry, not on the podium, on the easel.  He can set the easel up, and the light box will sit on it.  He can sit right over the plug and the plug will --

MR. MOORE:  The problem with that, though, you can't put the photographs up at the same time like y'all did and have them side by side for the jury.

MR. PORTER:  All right.  I'll go --

MR. MOORE:  I mean, I can go find Art O'Neill, and we can probably find something in the courthouse if the district attorney doesn't want us to use what he had.  I understood we were going to be allowed to use it.

MR. PORTER:  That's not what they asked me for.

THE COURT:  Okay.

MR. PORTER:  I don't know what they want.  I can get the stuff up here.  But they said they want the light box; I bring the light box.

THE COURT:  Okay.

MR. PORTER:  If they want the cart with it set up for display like we had, then we'll do that.

MS. ROGAN:  Well, what good would the light box be without the display?

MR. PORTER:  Goddamn, Elizabeth, I don't know.

THE COURT:  Just a moment, please.  Just a moment.  Let's just don't get into the -- stay out of that kind of stuff.  We don't need it.  All right.  Do you have any objection to it?

MR. PORTER:  No.

THE COURT:  Okay.  How long do you think we'll need?

MR. PORTER:  It will take me five minutes to get it up here, I guess -- 

THE COURT:  Okay.  Well, I'll give the jurors time -- by the time they all get in and out of the bathroom, it'll probably take them ten.  So we'll just -- we'll take ten.  How long do you think your witness is going to be?

MR. MOORE:  Not nearly as long as they were, Your Honor.  I'm going to have him go into some of the basics, but not as much as they did of the DNA, and then move on into his opinions and --

THE COURT:  Okay.  And you've got somebody else coming besides this one; is that right?

MR. MOORE:  I've got him here available, if we get to him, Your Honor.  I don't know how long they'll cross-examine Dr. Choi.

THE COURT:  Okay.

MR. MOORE:  They know who he is now, so there's no reason to --

THE COURT:  Okay.  Do you still think tomorrow is a good time?  Do you think in the morning, afternoon?

MR. MOORE:  It depends.  It's our intention at the present time, and I'm not putting this in stone, but it's our intention at the present time to call the defendant in the morning, and I don't know how long the state will examine him.  If we don't get to our other expert today, then he'd be in the morning, also.

THE COURT:  Well, we might be into rebuttal and surrebuttal before the day's out.  We may have the evidence in tomorrow, then, depending on what goes in.  I don't know what everybody's got in rebuttal and surrebuttal, but we may have it all in tomorrow, then.

MR. SMEAL:  As far as DNA rebuttal, I don't think we can offer that tomorrow.

THE COURT:  Okay.  Well, I mean, I don't know what everybody wants to put in by way of rebuttal or surrebuttal, but it sounds like we may be in a position to call some witnesses for it.  Okay.  Well, we'll see where we are.  Maybe at the end of the day let's just sit down and size it up and see if we can sort of anticipate where we're going to be tomorrow and Monday and all that.  Okay.  We'll take ten minutes at this point.

MS. ROGAN:  All right.

[Bench conference concluded]

THE COURT:  Before calling the next witness, we're going to take a ten minute recess.  I'll ask you to leave your pens, pads and notes in your seats.  They'll be waiting on you when you return.  We'll take ten minutes.

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

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

MR. PORTER:  No, Your Honor.  There's nothing now.

THE COURT:  All right.  Mr. Moore?

MR. MOORE:  No, Your Honor.

THE COURT:  We'll take ten minutes.

[Break taken]

THE COURT:  Is the state ready?

MR. PORTER:  The state is ready, Your Honor.

THE COURT:  Defendant ready?

MR. MOORE:  Yes, Your Honor.

THE COURT:  Bring the jury back, please.

[The jury returned to the courtroom.]

THE COURT:  Call your next witness, please, and have him come on in. 

MR. MOORE:  Dr. Choi, Your Honor.  That's Choi, C-h-o-i.

[The witness was called to the courtroom and stepped to the stand.]

THE COURT:  Go ahead and be seated.  Mr. Moore, if you'll administer the oath, please.

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 so swear.

Whereupon,

     JUNG CHOI

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

     DIRECT EXAMINATION

BY MR. MOORE:

Q.   Now, state your name, please, and tell the court reporter how to spell it.

A.   My name is Jung Choi.  That's spelled J-u-n-g, C-h-o-i.

Q.   All right.  And Dr. Choi, if you would, tell us how you're employed?

A.   I'm an associate professor in the School of Biology at Georgia Tech.

Q.   And how long have you been employed there?

A.   I've been there nine years now.

Q.   And what is -- what do you do at Georgia Tech?

A.   I do both teaching and research.

Q.   And what areas are your teaching and research in?

A.   Well, I teach primarily in the area of genetics and molecular biology, and my research is in the area of molecular biology of plant development.

Q.   Okay.  Tell us what your training and experience is in the field that you teach and you do research in.

A.   I got my bachelor of science degree in biology at the Massachusetts Institute of Technology in 1978.  I got my Ph.D. in Biology at the University of California in San Diego, and that was in '83.  From there I went on to postdoctoral studies in the field of genetics at the University of California at Berkeley.  And then in 1986 I started as a faculty member at Georgia Tech.

Q.   And what experience and training do you have in the area of the field of what's called DNA?

A.   My research from graduate school on has been working with DNA.

Q.   And how many cases or different -- I don't know if cases is the proper word or not -- but how many research projects or how many times have you had occasion to do DNA analysis?

A.   I've performed DNA analysis in hundreds of occasions.

Q.   And are you familiar with the manner in which it's done, which DNA is done?

A.   Yes, I am.

Q.   Okay.  And have you testified in court before regarding DNA?

A.   I've testified about a dozen times.

Q.   And did you testify in the Caldwell case in Cobb County?

A.   Yes, I did.

MR. MOORE:  Your Honor, at this time I would offer Dr. Choi as an expert in molecular genetics and population genetics.

MR. SMEAL:  We have no objection, Your Honor.

THE COURT:  Do you wish to voir dire, Mr. Porter, Mr. Smeal?

MR. PORTER:  Mr. Smeal's going to handle this, Your Honor.

THE COURT:  All right.  Mr. Smeal?  I didn't -- I'm sorry, I didn't understand you.

MR. SMEAL:  If I could just ask a couple of questions.

THE COURT:  Go ahead, please.

     VOIR DIRE EXAMINATION

BY MR. SMEAL:

Q.   Dr. Choi, with respect to the area of population genetics, have you done graduate work in that area as well?

A.   Not in population genetics.

Q.   Did you study population genetics at any college level, either under graduate, graduate or postgraduate?

A.   Undergraduate level.

Q.   Have you done any research or publication in the area specifically of population genetics?

A.   No.

Q.   Have you ever -- have you ever worked for a forensic laboratory?

A.   No, I haven't.

Q.   When you say that you have done DNA on hundreds of occasions, what sorts of DNA testing has that involved?

A.   Involves extraction of DNA from animal cells and plant cells, and going through various cloning procedures, Southern blotting procedures, Northern blotting procedures, sequencing, standard molecular biology.

Q.   Was that done in a research setting?

A.   Yes, it was.

Q.   Have you also done DNA in the diagnostic setting related to medicine or not?

A.   No.

Q.   And so your DNA experience has been confined to the research area?

A.   Yes, it has.

Q.   Have you ever -- you may have answered this, but -- so you have never done forensic DNA?

A.   That's right.

Q.   That's right that you have not done that?

A.   That's right.

Q.   So you have never had to deal with, for example, tiny or degraded or contaminated samples as far as a DNA analysis is concerned?

A.   Sometimes, yes, I have had to deal with those kinds of samples.

Q.   Okay.  Does your DNA experience and background include both RFLP and PCR?

A.   Yes.

Q.   And is -- out of the hundreds of times that you say you've performed DNA, has that been mostly RFLP or PCR, or can you say?

A.   PCR was developed more recently than the standard RFLP procedures, so probably more of the RFLP type of testing than PCR.

Q.   And have you yourself performed all the different steps of RFLP?

A.   Yes.

Q.   From extraction through electrophoresis?

A.   Extraction, digestion, electrophoresis, blotting, hybridization with probe analysis of the autoradiographs, yes.

Q.   Have those -- have those DNA tests been done with respect to samples collected from humans or from other types of plants or animals?

A.   Plant and animal cells, usually.

Q.   Has it included samples from humans?

A.   No.

Q.   So you have never -- you've never performed an RFLP DNA process on human blood?

A.   That's right.

Q.   Does that also mean that you have never been involved in the match criteria or frequency calculations with respect to human DNA?

A.   I've been involved in the sense that I have reviewed these match criteria.

Q.   Are you familiar with the practices and protocols at the Georgia state crime lab?

A.   Yes, I am.

Q.   Are you acquainted with Dr. George Herrin, Jr.?

A.   Yes, I am.

Q.   Okay.  Have you worked with him before?

A.   I'm not sure what you mean by worked with him.

Q.   Have you ever been a consultant to the Georgia state crime lab?

A.   I have been a consultant in DNA cases that involved the GBI.

Q.   Okay.  Have you ever testified -- I'm sorry, how many times have you testified in criminal cases before?

A.   About a dozen times.

Q.   And with respect to those dozen times, how many were for the state and how many were for the defense?

A.   One for the prosecution, which was actually the U.S. Department of Justice.

Q.   Okay.  That was a federal case?

A.   Yes, it was.

Q.   And on the other eleven occasions it was for the defense?

A.   That's correct.

Q.   With respect to those dozen times, how many of those involved RFLP?

A.   I'd say about ten of them.

Q.   Just a couple of other questions, Dr. Choi.  Are you a member of the National Academy of Sciences?

A.   No, I'm not.

Q.   Did you serve on the first National Research Council?

A.   No.

Q.   And are you serving on the second National Research Council, which was reconvened more recently?

A.   No.

Q.   Are you a member of the National Academy of Forensic Scientists?

A.   No.

Q.   Okay.  And are you a member of TWGDAM?

A.   No.

Q.   Okay.  You are familiar with TWGDAM?

A.   Yes.

Q.   That is the Technical Working Group on DNA Analysis Methods; is that correct?

A.   That's right.

Q.   And that consists of scientists scattered across the United States who are involved with the development of DNA forensic protocols and practices?

A.   As I understand it, that group consists entirely of forensic scientists.

Q.   And I believe you've indicated you've never actually worked in a forensic laboratory; is that correct?

A.   That's correct.

Q.   Have you attended any of the FBI forensic training in the area of DNA analysis?

A.   No.

Q.   What specific training and experience have you had in the reading and evaluation of autorads?

A.   Most of my research training has involved reading and interpretation of autorads.

Q.   Have you spent any time at the FBI Academy in Quantico?

A.   I've had no reason to.

Q.   Have you been -- have you taken any certification tests in the area of forensic DNA analysis?

A.   Again, I've had no reason to do that.

Q.   Have you participated in any studies or projects mapping the human genome?

A.   No.

Q.   Have you ever been a paid consultant to any private laboratory, such as Cellmark, Lifecodes, Promega, Genetic Design?

A.   Actually, I've been a paid consultant for the U.S. Army criminal lab.

MR. SMEAL:  Your Honor, at this time the state -- the state would maintain that it appears that this witness is qualified in the area of molecular biology.  I'm not certain to what extent Mr. Moore intends to get into population genetics, human population genetics.  There may be a -- in the state's opinion, there may be some question as to the qualifications in that specific area.

THE COURT:  Mr. Moore, do you wish to examine the witness in that regard?

MR. MOORE:  Your Honor, I don't intend to get into the statistical calculations with this witness, although he has done them and perhaps might be qualified on a limited basis.  We have another expert for that purpose.

THE COURT:  All right, so you're offering him for the field of -- as an expert with respect to what, then?

MR. MOORE:  In molecular genetics, Your Honor.

THE COURT:  Any objection, Mr. Smeal?

MR. SMEAL:  Not in that area.

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

     DIRECT EXAMINATION - RESUMED

BY MR. MOORE:

Q.   Dr. Choi, in response to questions that Mr. Smeal was asking you, have you had occasion to examine the work of the Georgia Bureau of Investigation's crime lab, their autorads, their test results?

A.   In numerous cases.

Q.   Okay.  And those -- do the procedures they use, are you familiar with them?

A.   Yes, I am.

Q.   Okay.  Are the procedures and the methodology and the test results any different from what you do in your cases?

A.   They're generally very similar.

Q.   Okay.  In other words, DNA technology is pretty similar no matter who's doing it; is that correct?

A.   Actually, DNA, once you have isolated it, no matter from what source, what you do with it and the technique involved in working with DNA are exactly the same.

Q.   And even though you haven't published anything in the field of forensics, you have published numerous publications regarding DNA in other areas, haven't you?

A.   That's right.

Q.   And currently -- are you working on any research grant right now, currently?

A.   Yes, I'm working on a few research grants.  One -- the major one is funded by the National Science Foundation, and I have two smaller grants as well.

Q.   Now, the jury's already heard from some of the other experts that testified about DNA, but could you just refresh their memory and go through the basics of DNA and how it works, how you come to a result with it?  You can use that chart if you need to if you need to draw any examples or anything.

A.   Okay.  I'm sure the jury remembers that DNA is the molecule that encodes all of the hereditary information and determines how a human being is built and will look like.  And that the basis of this type of DNA identification involves looking for certain DNA fragments in human chromosomes that differ in size from person to person.

So what -- essentially, what we're doing is we extract DNA from the evidence or from blood samples, and once the DNA has been extracted, first of all, it has to be pure and it has to be of good quality, meaning that it can't already have been degraded or broken down.

So once the DNA has been extracted in good shape, then we deliberately cut it using these so-called restriction enzymes, which you might have heard referred to as molecular scissors or smart scissors, which search along this DNA strand for particular sites and cut the DNA at those sites.  Now, these are sites that are present in every person or every human being, and as a result of this cutting process, you end up with millions of different DNA fragments from an individual.  Then -- yes --

Q.   And -- go ahead.  Okay, go ahead.

A.   Then -- all right.  So the first step is extraction of the DNA.  The second step is cutting the DNA with molecular scissors.  The third step, once you have this assortment of DNA fragments, is to separate them by size using gel electrophoresis.  Then the fourth step is to figure out -- is to find the particular DNA fragment you're looking for, and that's called the hybridization step.  So what you need to remember is that the hybridization step simply involves locating a particular DNA fragment, and then you can actually see this DNA fragment as a result of the x-ray film that you get, without getting into the details.

So what you're looking for is actually the size of a particular DNA fragment, and this size varies from person to person.  And that's what this RFLP test is all about, is comparing the sizes of particular DNA fragments among various people compared to an evidence sample.

Q.   Okay.  And then basically -- are you familiar with the process where you visually read the autorads?

A.   Yes.

Q.   Okay.  Would you tell the jury how that's done, and are you familiar with bio-imaging?

A.   Yes.  At this point, can I use --

Q.   Sure.

A.   -- one of the evidence autorads --

Q.   Certainly.

A.   -- as an example?  [The witness steps down from the stand.]

Q.   Certainly.  Dr. Choi, I'm going to show you State's Exhibits Number 139 through 151, which are the original autorads.  And you've seen these before, copies, and ask you to select the one you'd like to use.  Those have already been admitted into evidence.

A.   Let's use State's Exhibit 140, which are the DNA tests results for a particular DNA fragment called YNH-24.  What you see -- what we're doing is comparing the bars, and each bar is a particular DNA fragment between the various samples of DNA.  And what we're looking for is not how dark or light each bar is, or how fat or skinny each bar is.  We're simply looking for where this DNA bar is on the vertical dimension, because that determines what its size is.  Bars that are lower are smaller DNA fragments.  Bars that are higher are bigger DNA fragments.  So what we're looking to do is determine when we do comparisons is to look at the positions of these bars. 

Here we see the DNA extracted from the spot of blood found on the car seat, and that's in this lane.  In this lane, labeled Number 2, we see the DNA extracted from the blood of E. Thompson.  And in this lane, Number 21, we see DNA extracted from Mr. Chapel.

Fortuitously, we see -- or just by sheer coincidence, in this case we see that these bars representing these DNA fragments are actually located in approximately similar places for both the victim, Ms. Thompson, and Mr. Chapel.  That's just sheer coincidence.

Now, if we look at the DNA from the evidence, what we see is a very complex pattern.  If the test works, if everything in the test works, the DNA extracted, the cuts, it's hybridized well, and it shows up in the autorad, you will get, at most, one band or two bands.  For any given person, it should generate a pattern consistent with one band or two bands.

What we see in the car seat is not one band or two bands, but we can clearly see one, two, three, four, five, six, seven, eight different bands.  And this --

Q.   What's the significance of that, Dr. Choi?

A.   Well, that tells me that something is going on in this test that we can't really explain or clearly understand at this point.  Either -- there are a number of different explanations.  One explanation is that this represents actually a mixture of bloods from a number of different people.  There may be two people, three people, or more that contributed to this blood stain.  And that's from looking at YNH-24.

Another possibility is that this DNA did not cut.  Remember, the second step, once you've extracted the DNA, is to cut the DNA.  And so there's a possibility that we're generating extra bands because the DNA cut only partially.  Some of the sites cut and some of the sites didn't.

Q.   Is that what's referred to as partial digestion?

A.   That's what's called partial digestion.

Q.   And can that be caused by contaminants or errors in the lab procedures?

A.   Partial digestion, I've seen in my lab as a result of either contamination of the DNA sample with some chemical or careless lab procedures.  If during the cutting you do not mix the enzyme carefully with the DNA sample, it can result in a partial digestion as well.

Q.   Go ahead.

A.   So, at this point, we have an unresolved question about why this evidence pattern is so complex.

Now, we can look at some of the other DNA fragments.  That was YNH-24.  State's Exhibit 141 looks at a different DNA fragment located in a different chromosome, and this fragment carries the name TBQ-7.  And, again, if we look at those three critical lanes, we see that in this instance Mr. Chapel's DNA bands clearly differ from Ms. Thompson's DNA bands.

In the car -- in the blood from the car seat, again, we see a complex DNA pattern.  We see multiple bands, in this case, one, two, three, four, five, six, seven, and I think I can clearly see about eight different DNA bands again.

And complex patterns are also seen with two other DNA probes.  State's Exhibit 143 shows a DNA fragment called V-1.  Here we see one band with Mr. Chapel, two bands with Ms. Thompson, and now four bands from the car seat.

Q.   Is that once again evidence of partial digestion?

A.   Either partial digestion or a mixed sample.  And then State's Exhibit 139 looks at a DNA fragment called MS-1, and here the interpretation is a little more complex because in each of these lanes we see multiple DNA samples with DNA bands.  In Mr. Chapel's DNA we see two clear or dark bands, and then we see two lighter bands below it.  In Ms. Thompson's we see this band here and this band here, and then we see at least one other faint DNA band and maybe another one right there.

 And then, again, in the car seat we see -- I think I see at least three bands, perhaps a fourth band there, again indicating a complex DNA pattern.

 Now, having reviewed and compared all of the other radiographs together, I can tell you that these minor bands in Mr. Chapel's blood and Ms. Thompson's blood are sort of carry- over bands from a previous visualization.  So --

Q.   Is that what's called improper stripping?

A.   Improper stripping.  They couldn't completely erase the image from the previous probe, and that's why it's showing up.

 Now, since I can identify these bands as being the result of improper stripping, I don't have to pay attention to them.  But these extra bands in the car seat are not the result of improper stripping; and, therefore, again, I have to consider either that the DNA, these extra bands, arise from partial digestion or, again, from a complex mixture.

 And then I'd like to briefly talk about the last two probes.  In all, the GBI looked at six different DNA fragments. 

 State's Exhibit 142 shows the result that we would expect if everything has worked exactly the way it's supposed to.  We see, essentially, two bands in every lane.  There are Mr. Chapel's two bands, there are Ms. Thompson's two bands, and the two bands from the car seat, which look similar to Ms. Thompson.  So this is what it should look like if everything worked.  And then with -- this is another copy of the PH-30.

 And then with LH-1, again we see two bands of Mr. Chapel, two bands of Ms. Thompson, and two bands in the car seat, again what a DNA test should look like.

 Now, we come to a question here as to why does it look like the DNA test worked with these two probes, PH-30 and LH-1, and why are we getting such complex results with the other four probes?

 Well, the GBI tested the hypothesis that the complex banding pattern was a result of partial digestion.  So we can take TBQ-7, as an example.  They took some of Ms. Thompson's DNA and subjected it to a series of partial digestion.  Instead of cutting the DNA to completion, meaning allowing it to take a very long time to make sure that every segment of the DNA molecule is cut, they cut it for a very short time, varying lengths of time.

Q.   Is that what the GBI refers to as a partial digestion experiment?

A.   Yes.  This is their partial digestion experiment.  And what they were -- what they decided was that the result of one of their partial digestions was fairly similar to what they saw on the radiographs where the evidence lay.  So you have to remember that if this is a result of partial digestion, then we have to conclude that one of the early steps in this DNA test did not work the way it was supposed to.

Q.   And is this partial digestion experiment that the GBI Lab has in their protocol, is that an accepted -- is that accepted in the scientific community, generally accepted?

A.   It is not generally accepted in the scientific community, and I'll talk about that in just a bit.

 So if we compare the two samples now with the partial digestion here with TBQ-7 versus the evidence, the GBI concluded that these two patterns were sufficiently similar that they could declare a match based on this partial digest.

 Now, in my opinion, that's a good start to proving the GBI's contention that there was a partial digest and that these samples match.  It's a good start, because what it shows is that you can get similar results.  But what they did not show is that if you subjected anyone else's DNA to a series of partial digests, that you cannot get a similar pattern.

Remember, we're now deviating from the way this DNA test is supposed to be conducted.  The test is supposed to be conducted so you do a full digest, and you can compare patterns from full -- fully digested DNA.  Now they're comparing two partially digested DNA.  There has been no work, no extensive studies, showing that you can get valid matches between partially digested DNA samples.  It is not in the literature, and I know of no scientists outside the forensic community who would accept the validity of matches based on two partial digests.

Q.   Do you have an opinion whether it's valid or not to lower the standards for forensics?

A.   If the forensic community is practicing DNA technology and claiming that it has a scientific basis, then they have to meet the same scientific standards as everyone else.

Q.   And after you examined all six of those autorads, did you come to any conclusions?

A.   In my opinion, this still does not prove that this was a partial digest, only that it could have occurred.  They still have not eliminated the possibility there is a -- this is actually a mixed sample.  And if it is a mixed sample, then it actually complicates all of the statistics and all of the interpretations of the autorads a great deal.

Q.   Do you have any opinion as to how many of those autorads are good enough to be called a match or to be interpreted?

A.   In my opinion, because of the complexity of these patterns and because of the unresolved questions, for at least the four probes where you get complex patterns, meaning TBQ-7, YNH-24, MS-1 and V-1, those results simply should not be used one way or another.  In my opinion they're uninterpretable, you cannot use the numbers that you get from them, and the results simply should be discarded.

Q.   And is that what you would do if you got a result like this in your lab?

A.   Yes.

Q.   Okay.  And the two that are valid, LH-1 and PH-30?

A.   Well, LH-1 and PH-30, I would use those results only if you could show that they were -- that the other results were actually a result of partial digestion.  If there is some question still about whether we're dealing with a mixed blood sample, then the interpretation of LH-1 and PH-30, even those are open to other interpretations, and we have to interpret the statistics very conservatively.

Q.   So it's your opinion, then, that none of these should have been considered because of the problems with the four that --

MR. SMEAL:  I'm going to object. Your Honor, to leading question.

THE WITNESS:  In my opinion --

THE COURT:  Just a minute.  Restate your question, Mr. Moore.

MR. MOORE:  Okay.

BY MR. MOORE:

Q.   Tell us if you have an opinion as to whether or not any of those autorads should be considered; and, if so, what that opinion is.

A.   I think that further needs -- work needs to be done before any of these autorads are considered.  I believe that LH-1 and PH-30 can be considered if you can show that there is not a mixed blood sample.

Q.   So what is your overall conclusion here of the -- do you know the results that the GBI has given from these autorads and these tests?

A.   Yes.  The GBI is reporting a match for all six probes with a statistic of no more than one in ten billion people would have this type of pattern.

Q.   Do you agree with their overall conclusions?

A.   Absolutely not.

Q.   And why not?

A.   Because of the reasons I explained, that at least with four of those probes the matches are meaningless.

Q.   You know -- you've been told that the source of one of the bloods on those autorads is from Ms. Thompson's car, her car seat; is that correct?

A.   Well, from a car seat.  I don't --

Q.   From a car seat, yes.  Now, if there was blood on another piece of evidence, a raincoat, for example, if I gave you a hypothetical, if there was blood on it and there was small portions that could not be tested with RFLP but could be tested with PCR, and if the state was seeking to prove that the two came from the same source, then would you want the PCR test done on the raincoat?

MR. PORTER:  Your Honor, I'm going to object to that.  That's a conclusion that this gentleman can't make.  He can testify as to the reliability of PCR, he can testify as to whether or not PCR would work, but he cannot testify as to whether he would want them or what they would prove.

MR. MOORE:  Your Honor, the state's trying to prove that those two bloods came from the same source, and I'm asking him what tests he would run to determine that if he had both pieces of evidence.

THE COURT:  Objection's sustained to the question as posed.

BY MR. MOORE:

Q.   If you had two pieces of evidence and there was samples on each one, and you wanted to determine if they came from the same source, and one sample did not have sufficient quantity for RFLP, how would you go about determining if they came from the same source?

A.   I would use the PCR test.

Q.   Tell the jury what a PCR test is.

A.   A PCR test is useful for analyzing very small quantities of DNA where you simply don't have or can't get enough to do an RFLP test.  An RFLP test is much more definitive, it's much more powerful, but requires larger amounts of DNA.  The PCR test is not as definitive, but you can do it with very small amounts of DNA.  And what it actually involves is making in the test tube copies of a particular DNA fragment.  So you can start out with a very small amount of DNA and then make copies of a particular DNA fragment and amplify that a million-fold or more.

Q.   And if you were asked to determine whether or not the blood on one sample and the blood on the other sample came from the same source, what test would you perform if there wasn't a sufficient quantity to do an RFLP to determine that?

A.   If -- my first choice would be the RFLP.  But if I couldn't do the RFLP, I could still get useful information using a PCR test.

Q.   Now, you testified you've had occasion, I believe, to review the GBI's laboratory results, their tests, in the past?

A.   Yes.

Q.   How many times would you say you've done that?

A.   I've done that probably over thirty times.

Q.   And what kind of work does the Georgia state crime lab do, generally?

A.   In general, they do an -- they do excellent work.  In most cases that I review, I generally agree with the GBI conclusions, and that's why I've only testified a dozen times, whereas I've reviewed over thirty cases.

Q.   In this particular case, do you agree with them?

A.   No, I do not.

Q.   Is that for reasons you've already told the jury?

A.   Yes.

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

THE COURT:  Mr. Smeal?

MR. SMEAL:  May we approach the bench, Your Honor?

THE COURT:  Yes, sir.

[Counsel approached and a conference was held at the bench, as follows.]

MR. SMEAL:  The state would ask for a brief recess.

THE COURT:  How long do you want?

MR. SMEAL:  Ten minutes.

THE COURT:  That's fine.

MR. SMEAL:  In light of the fact that this is the first time we've ever heard this testimony.

THE COURT:  How long do you think you'll be on cross?

MR. SMEAL:  I don't know yet, Your Honor.  That's one of the things I want to think about during the ten minutes.

THE COURT:  Well, I'll give you fifteen, because I want to -- I'm going to let the jury stretch their legs a little bit and maybe get something to drink.

MR. MOORE:  If he's going to be lengthy, Your Honor, we wouldn't object if he wanted to proceed in the morning, because we've only got Dr. Choi and Dr. Shapiro, and then one other witness, possibly, so we're going to finish tomorrow under any circumstances.

THE COURT:  Well, I've got the kids -- some of the jurors got their kids coming to visit --

MR. MOORE:  I understand their visiting night is tonight.

THE COURT:  Yes.

MR. MOORE:  I mean, I don't want --

MR. PORTER:  Your Honor, it's 5:30.

THE COURT:  Well, I don't know, maybe now -- yeah -- well, we're going to be knocking off about six because they've got to eat and the kids are coming at 7:30, so that's sort of --

MR. PORTER:  Your Honor, another way of looking at this is I think that it would be appropriate, perhaps, to give the state the total morning to cross in light of the fact that we're, as I said --

THE COURT:  I think the time of day maybe ought to dictate that anyway, because of the constraints -- I really hadn't paid much attention.  I'd forgotten about the kids --

MR. MOORE:  I knew it was visiting night for the jurors.

THE COURT:  Yeah.  We've got --

MR. PORTER:  I would suggest we break.

THE COURT:  Yeah.  I don't have a problem with that.  How long -- once we get this witness out of the way, how long do you think you'll be with the rest of your case in chief?

MR. PORTER:  I would suspect that Dr. Shapiro's going to take about the same amount of time.

MR. MOORE:  About the same.  I'd guess we'd be through about one o'clock or around that time.

THE COURT:  Do you have any idea as far as rebuttal or surrebuttal what we're looking at?

MR. PORTER:  We're working on that as we speak.

THE COURT:  Okay.  Do you think there's a   prospect --

MR. PORTER:  If I have any rebuttal, I'll have witnesses, unless I have a problem with the DNA.

THE COURT:  All right.  If we have them -- if everybody's got their witnesses for rebuttal and surrebuttal, do you think we'll have the evidence in tomorrow, concluded?

MS. ROGAN:  Well, Your Honor, we have no way to know what we'd have on surrebuttal until we find out what Mr. Porter puts up in rebuttal.

MR. PORTER:  Your Honor, if we have to get -- if we have to get into a DNA battle, then we may end up having to have an expert not show up till Monday.  I don't know.

THE COURT:  Yeah.  Well, we'll see where we are tomorrow.

MR. MOORE:  Your Honor, if they're talking about Dr. Atkinson, our expert, they've been talking to her since July, and there shouldn't be -- you know, they should have made arrangements if they want her here, you know.

MR. PORTER:  Well, I don't have to reveal my experts.

THE COURT:  Yeah.  All right.  We'll start again in the morning.

MS. ROGAN:  Okay.

[Bench conference concluded]

THE COURT:  We may be a while with the balance of Dr. Choi's testimony, and I think we're at a good point to break for the day.  I think we're going to recess at this point -- hold on just a moment.

[Pause]

THE COURT:  We will -- it appears -- well, we'll just address it tomorrow.  We're going to recess today and recommence in the morning at nine o'clock.  It appears we're going to have a full day tomorrow, so we'll start in the morning and proceed till either we get through with the evidence tomorrow, which is a possibility, or proceed on till in the neighborhood of five o'clock or so and recess at that point.

At this point, I would remind you that you've heard a good portion of the evidence in the case, you've heard a good portion of the case presented, but you've not seen and heard all of it.  I remind you that you ought to continue to keep an open mind, you ought not to make up your own mind, you ought not to commence any deliberations or discussions amongst yourselves or with anybody else, or allow anybody else to discuss the case with you or in your presence.  There ought not to be any discussion about the case with anybody else in any form whatsoever.

If you'll leave your pens, pads, notes in your seats, they'll be waiting on you when we commence in the morning.  And we'll be in recess until nine o'clock in the morning.  I'll ask you to go with the bailiffs at this point, please.

[The jurors were excused for the day at 5:50 p.m.]

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

MR. PORTER:  Nothing for the state, Your Honor.

THE COURT:  Mr. Moore?

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

THE COURT:  Okay.  We'll be in recess till nine o'clock tomorrow morning.

[The proceedings were adjourned for the day, September 1, 1995, at 5:50 p.m.]

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

 

Reporter's Certificate this page

 

5932