P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Monday, September 4, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]

[Proceedings convened for the day with the jury not present.]

MR. DAVIS: Mr. Porter has stepped out momentarily, Judge. He'll be right back.

THE COURT: We'll pause.

[Pause in proceedings]

MR. PORTER: Sorry, Your Honor.

THE COURT: That's all right, Mr. Porter. Would you approach the bench, please.

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

THE COURT: I'm going to close the courtroom and go into a jury matter. We had Ms. Flowers, who's our juror with all the back problems. They took her to the hospital last night --

MS. ROGAN: Oh.

THE COURT: -- and I released her. Her doctor said she ought not to be doing prolonged sitting and all that, so she's gone.

And I've got another note from one of the other jurors, which I don't think is any serious problem, but I think we ought to go into as a matter of record, and I contemplate bringing him in and just making an inquiry.

MR. PORTER: There's only one matter that I want to put on the record this morning. I've looked at the cases and looked at Livingston v. State, particularly, and we're going to withdraw our intent to introduce victim impact evidence.

MS. ROGAN: Okay.

MR. PORTER: I'll put that on the record.

THE COURT: Okay. How do you think we stand as far as the rebuttal?

MR. PORTER: I've got three witnesses this morning. I don't -- I mean, one is to identify a photograph and explain the circumstances of it. Then there are two DNA people and I don't know how long they're going to be. We've got about eight or nine questions for each one, maybe ten.

THE COURT: Okay. Do you think we're going to have any surrebuttal?

MR. MOORE: Judge, I don't know what he's going to put up. I don't think so, but, you know, I don't know what he's going to be putting up.

I don't -- now, we would tell the Court and the DA, too, that we understand he's entitled to rebuttal, but we believe that it's limited to issues that were raised in our case and not redoing his case in chief over again.

THE COURT: Well, I think technically you're right, although practically it's usually pretty liberally construed for both sides, but anyway --

MR. PORTER: Well, given the time constraints that we're working under, and I think all of us are anxious to get this to the jury, some more anxious than others, we focused this pretty tightly on the issues that were raised in direct --

THE COURT: Okay. I'm not suggesting anybody ought not put up whatever they think they need, you know. Put up what you need. I just think you ought to put up --

MR. MOORE: We figure it's going to take a good while, Judge, to sort out all of the exhibits and figure out what's going to the jury and do the charge conference and everything.

THE COURT: Well, I think perfecting all that and getting that together, yeah. I guess, frankly, I'd rather see the -- have the jury go on for half a day or so, so they've got kind of something to do today as opposed to come in for fifteen minutes and send them back for the day, so --

MR. PORTER: No. It's going to be longer than that.

THE COURT: Okay.

MR. PORTER: I don't know that it will be half a day, but it will be longer than that.

THE COURT: Okay.

MR. MOORE: What we would request probably, if -- it sounds like they're going to finish by noon probably. We'd be requesting that we do all the exhibits, the charge conference, and then everybody argue and charge the jury tomorrow.

THE COURT: That's what I would anticipate doing, yeah.

MR. PORTER: We'd join in that.

THE COURT: Yeah. That's what I would be looking toward. Okay. Well, I'm going to close it down, and let's inquire into these matters, and then we'll crank up.

[Bench conference concluded]

THE COURT: We have a matter we're going to inquire into briefly that we're going to do with a closed courtroom.

So at this time I'm going to direct that the camera and sound be shut down and that the courtroom be cleared of anybody except the parties and attorneys. We will recommence very shortly.

[The courtroom was cleared.]

CLOSED HEARING - JURY MATTER

THE COURT: Let's look first at Ms. Flowers. Last night -- well, late yesterday afternoon I had a call from one of the bailiffs indicating that Ms. Flowers, Sherayne Flowers, was in a lot of pain and was requesting to be taken to see a doctor. She's our lady who has been -- the last three or four days has been hobbling around getting in and out of the jury box with back pain.

And so anyway, I directed them to take -- the bailiff to go with her with a deputy to go to get some medical care. They went to the Gwinnett Medical Center and her diagnosis -- the instructions were with her back to -- prescribed her pain medication, told her to elevate her legs, no prolonged sitting, and to sleep on a firm mattress. Those were her directions from the physician.

At that point I talked to her on the telephone, and she indicated that she really didn't want to quit except that she didn't think she could basically continue sitting with the pain she was in. She had been getting worse. At that point I excused her and had them take her home directly from the hospital, with directions to the bailiff to secure her belongings and hold those for her to pick up or her husband to pick up or be delivered to her or whatever. So that's where we stand with Ms. Flowers. Here's the record from the hospital. We'll make that part of the record as well. You can take a look at it if you wish.

Anything you wish to put on the record in that regard, Mr. Porter?

MR. PORTER: No, Your Honor. We've sort of seen it coming. She's gotten progressively worse every day.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Okay. The other matter is a note I received this morning from Mr. Edwards, and here's what his letter says, dated September the 3rd.

It says, 'Dear Judge Bishop, I must share the following with you. Today my wife Peggy visited me from 11:15 to 2:00 p.m. We had a very nice visit and lunch. I am fully aware that I should not discuss this case or trial with anyone. Today during my visit with Peggy, a few things came up that I must tell you about.

'Peggy told me that the jurors' profiles were listed in the paper without names. I asked if I was listed as a wildlife biologist. She said yes and told me two other things, my favorite reading is the Wildlife Society and my favorite TV show is Jeopardy.

'Peggy asked me if I had made my mind up yet or had I decided. I said of course I can't talk about that, but I have an opinion based on all the testimony during the past two weeks but it's certainly not made up because we haven't heard everything yet. I absolutely did not share my opinion with Peggy.

'I told her that the two jurors left due to the death of a mother-in-law and a wife that wasn't doing well. I told her it was a shame to lose these two guys as they were good people and not complainers like many of the other jurors.

'I told her that four of the jurors continue to be very loud, complain and bitch and moan and groan about everything and this complaining tends to spread to other jurors. I told her that I'm a person that tends not to complain much and one of the most difficult issues for me to deal with is being around these constant loud complainers.

'I asked Peggy if she and her mother enjoyed sitting in on the trial one day last week. She said yes and that she noticed the young man in the jury fiddling with his hair and looking around.

'I told Peggy that Chapel testified Saturday and this is going to be a very difficult decision to make as we are hearing both sides. I told her that I was praying to God to help me make the right decision. Peggy said something to the effect that people can be deceiving.

'Peggy said she was coming to the trial Monday. I told her the judge said we might finish testimony Monday and might start closing arguments on Tuesday. I told Peggy that the jurors and alternates had not been decided yet.

'These trial related items listed are a minor portion of our two hour and forty-five minute visit and at the time did not really seem like discussing the trial. But later this afternoon I realized that technically they are about the trial and I must bring it to your attention. I am a person that strives to follow all the rules to the tee, be fair and honest to everyone, and do the right thing.

'I am not requesting to be removed from the jury. I am asking that you review this information and if you find it inappropriate, please take the necessary action.

'I do not believe that the above conversation that transpired between Peggy and myself will have any impact on my ability to evaluate the information provided to the jury by the Court and to make a decision based on that alone.

'I take full responsibility for this occurring and wholeheartedly apologize for having to bring it to your attention. Sincerely, J. Kenneth Edwards.'

What do you request, Mr. Porter?

MR. PORTER: The state has no request in regard to the letter.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, we don't have a request either. It sounds like a fair-minded juror trying to do his job to me.

THE COURT: I don't think you can improve on it. Okay.

MR. MOORE: I'd be surprised if any juror didn't have some faults one way or the other about the case this far into it.

THE COURT: I'm sure. It also points out one of the potential problems in striking juries in cases like these, I think, with media attention where -- you know, this is the first case I've ever seen in Gwinnett County where you get juror profiles in it, and I think those kinds of things tend to get people wanting to participate. So be it.

MS. ROGAN: Were they made a part of the record, Your Honor, the questionnaires?

THE COURT: I don't know where they came from. I was surprised to see it.

MS. ROGAN: I was disturbed myself to see that article with that information --

THE COURT: I don't know where they got them. Matter of fact, the clerk had inquired of me when the media asked about it, and they had not filed them in and made them a part of the record, and they said if that's the case, you know, they're not part of the record yet, do we have to disclose them. I said I don't think so.

MS. ROGAN: We did not share them with the press, and yet I saw that article that was mentioned, and it had information we never elicited such as what their favorite reading material was and things of that sort, so --

THE COURT: I don't know how the --

MR. PORTER: Your Honor, Ms. Fernandez had asked me, and I allowed her to look at some of the limited ones, but I don't --

THE COURT: Okay.

MR. PORTER: She was asking me as she was going on and I allowed her to look at some.

THE COURT: Okay. It's Mr. Porter's fault. Now we know.

MR. PORTER: But I did, in fact, allow her in the course of it to look at some of them. But she also was taking very extensive notes on every juror with the intention of reporting that.

THE COURT: Yeah. Well, I think the thing that disturbs the jurors is things like what do you like to read and, you know, are you a Republican or a Democrat and --

MS. ROGAN: What their religious views are.

THE COURT: You know -- religion, yeah, those kinds of things. I think if those are kept out, we're all ahead of the game in cases like this.

Okay. Anything else before we open it back up, Mr. Porter?

MR. PORTER: Your Honor, only to place on the record that I have reviewed the pertinent case law, and the state will withdraw its notice of intent to introduce victim impact evidence should this case go to the sentencing phase.

THE COURT: So if we go into the penalty stage, then we're going to be hearing from the defendant's witnesses and that will be the evidence in the case?

MR. PORTER: No. There is some state's evidence, but we will not be putting up victim impact evidence.

THE COURT: Okay. All right. Mr. Moore, anything else at this point?

MR. MOORE: No, Your Honor.

THE COURT: All right. If you'll open the courtroom back up, please.

[Closed hearing concluded.]

[Proceedings resumed with the jury not present.]

THE COURT: One of the things we're going to be addressing, I'm sure, once all the evidence closes is the issue of what part of the record -- what's been admitted into evidence for the record goes out or doesn't go out, particularly those which have been marked on during the course of the trial or perhaps prior to the trial. If anybody has any cases on that or can turn up any cases on point with that about, you know, what's in evidence but doesn't go out by way of demonstrative evidence. If anybody has any cases, I'd appreciate you making them available to me along the way.

MR. PORTER: Your Honor, I have a series of cases on demonstrative evidence. I thought I left them in this note pad. I'll locate them. There's -- I have a memo along with them.

THE COURT: The question is, you know, what goes out and what doesn't. I've not found much. We've been doing some looking, and I have not found much.

[Pause]

THE COURT: Is the state ready?

MR. PORTER: Ready, Your Honor.

THE COURT: Is the defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jurors in, please.

[The jury was escorted to the courtroom.]

THE COURT: Good morning, ladies and gentlemen.

[Jurors respond]

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

MR. PORTER: The state would re-call Mary Ann White to the stand.

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

THE COURT: Mr. Porter, why don't you readminister the oath.

MR. PORTER: Yes, sir.

Welcome back. Let me readminister the oath to you. Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

STATE'S EVIDENCE IN REBUTTAL

DIRECT EXAMINATION

BY MR. PORTER:

Q. You are Mary Ann White; is that correct?

A. Yes.

Q. And you've been on the stand twice in this case?

A. Yes, I have.

Q. And we've gone over what your job is, so we won't do that again. Let me call your attention to the evening of April the 29th of 1993, the night you Luminoled Unit 197, the police car. First of all, let me let you look at State's Exhibit Number 162, and can you identify that, please.

A. Yes. This is a picture that was taken that evening, and I'm in it.

Q. All right. Is that a true and correct representation of the circumstances that are portrayed?

A. Yes.

MR. PORTER: Your Honor, at this time we would move to admit State's Exhibit Number 162, which we have previously shown to defense counsel and they have been previously provided with a copy of, in order to go into the contents.

THE COURT: Any objection?

MR. MOORE: Your Honor, we have no objection.

THE COURT: State's 162 is admitted without objection.

MR. PORTER: Your Honor, may I have permission to publish it to the jury as the testimony goes on?

THE COURT: Yes, sir. Yes, sir.

[Mr. Porter presenting to the jury]

BY MR. PORTER:

Q. Ms. White, calling your attention back to April the 29th and the photograph, State's Exhibit Number 162, can you describe the circumstances under which that photograph was taken?

A. Yes. It was taken by accident. We were -- I was spraying Luminol or had been spraying it, and Technician Jenkins had set the camera up in the passenger door to take photographs. Of course, when you close the door, there's the button that goes in that turns off the dome light, so -- but I had the door open and I had my foot out, my left leg, holding the button down and my foot slipped off of it, and when it did, the light came on inside the car.

Q. And was that photograph taken with the addition of any flash or any other attachment on the camera?

A. No.

Q. Was the dome light the only illumination in the vehicle that allowed that photograph to be taken?

A. Yes.

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

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MS. ROGAN:

Q. Good morning again, Ms. White. In the photograph that the jurors are now looking at, isn't there a little package for a light bulb along the side of the arm rest?

A. No. That's a -- it's a ruler.

MS. ROGAN: Could I borrow that picture a minute.

BY MS. ROGAN:

Q. I'd like to direct your attention to State's Exhibit 162.

A. That's a glow-in-the-dark ruler. It says 'clue finders' on it.

Q. Okay. Is Luminol a corrosive substance?

A. No.

Q. Okay. I see you're wearing rubber gloves in the procedure. What was the purpose for the rubber gloves?

A. I always wear rubber gloves if I'm handling any kind of evidence that --

Q. Okay. So there was no danger to the rest of your body?

A. Oh, no.

Q. It appears from the picture you're wearing just a T-shirt?

A. That's right.

MS. ROGAN: That's all I have.

THE COURT: Redirect?

MR. PORTER: I have no other questions for this witness, Your Honor. We would ask that she finally be allowed to be excused.

THE COURT: Any objection?

MR. MOORE: Your Honor, I can't imagine we'll call her back because I think we're going to finish up today, but I'd ask she be on call until we get finished.

THE COURT: We'll have her remain on call. You're subject to being re-called. You can come down.

THE WITNESS: Thank you.

[The witness stepped down from the stand.]

THE COURT: Call your next witness, please.

MR. PORTER: Your Honor, Mr. Smeal is going to handle the last two rebuttal witnesses.

THE COURT: All right. Mr. Smeal?

MR. SMEAL: The state calls Dr. Sidney Kushner.

[The witness was called to the courtroom.]

THE COURT: Sir, if you'll take the witness stand up here, Mr. Smeal will administer the oath. You can go ahead and be seated.

[The witness stepped to the stand.]

MR. SMEAL: Please raise your right hand, Doctor. Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Please state your full name.

A. Sidney R. Kushner.

Q. Would you please spell your last name for the court reporter.

A. K-u-s-h-n-e-r.

Q. And Dr. Kushner, what is your occupation?

A. I'm professor of genetics at the University of Georgia.

Q. And how long have you been so employed?

A. Twenty-two years.

Q. And what are your duties as a genetics professor at the University of Georgia?

A. I teach both undergraduates and graduate students in genetics. Until July 1st of this year for the past eight years I was head of the department, so I had administrative duties. And then I have my own research program. I currently have approximately twelve people who are working in my laboratory on various research projects.

Q. And could you describe generally the nature of the research projects that you supervise?

A. My area of specialty is molecular genetics. We work with a bacteria called Escherichia coli. It's an organism that normally resides in our intestine. It's a model organism for studying all kinds of biological processes. My major interest is in DNA repair, how the DNA in cells is able to be repaired after it's damaged by things like ultraviolet light or chemical mutigens. And the other area of research in my laboratory deals with messenger RNA's, which are the intermediate between the information in the DNA and the actual products in the cell that help the cell grow and things like that. And those are the two major areas that we study.

Q. Dr. Kushner, could you describe generally your educational background for the jury?

A. I went -- I received by bachelor's degree in chemistry from Oberlin College. I received my Ph.D. degree from the department of biochemistry, Brandeis University in Massachusetts. I spent three years as a postdoctoral fellow, one at University of California at Berkeley, two at the Stanford University School of Medicine. I came to the University of Georgia in 1973 as an assistant professor of biochemistry and microbiology.

Q. Dr. Kushner, have you published any articles in the area of molecular biology and -- or specifically DNA?

A. Yes. About a hundred.

Q. And can you describe generally what has been the focus of your interest as far as publications is concerned over the years?

A. Well, in the area of DNA repair, we have examined a number of the enzymes that are actually involved in recognizing and fixing damaged DNA after it occurs inside of the cell. In the area of messenger RNA, in the last ten years we've published a considerable amount of information taking apart the system and in the sense of understanding the process from the time that the messenger RNA is synthesized until it's actually broken down into its constituent components again.

Q. Are you a member of any professional organizations or associations?

A. Yes, I am.

Q. Would you describe that for the jury, please.

A. I belong to the American Society of Microbiology, the Genetic Society of America, the American Association for the Advancement of Science, the American Association of Biological Chemists and Molecular Biologists.

Q. And have you ever been a consultant on criminal cases where forensic DNA is at issue?

A. Yes, I have.

Q. Are you currently a consultant, I understand, in a case out of Florida?

A. Yes, I am.

Q. And are you familiar with a phenomenon known as partial digestion?

A. Yes.

MR. SMEAL: Your Honor, at this time the state would be offering Dr. Kushner as an expert in the area of molecular biology and DNA.

THE COURT: Do you wish to voir dire the witness, Mr. Moore?

MR. MOORE: Your Honor, since this is the first we knew about Dr. Kushner, I would like to ask him a few questions.

THE COURT: Go ahead, please..

VOIR DIRE EXAMINATION

BY MR. MOORE:

Q. Dr. Kushner, my name is Johnny Moore. I represent Mike Chapel. Mr. Smeal asked you about publications. What sort of publications specifically have you published? What areas was that in?

A. They're in primarily the areas of DNA repair and messenger RNA stability.

Q. Now, I may not understand that much, but DNA repair, is that the -- would that be a living person who somehow the DNA is damaged and the body repairs it as it repairs other things that become damaged?

A. That's a very simple explanation, yes. When you, for example, go out and spend a few hours in the sun and you don't put on any sun screen and you turn bright red, the ultraviolet light in the sunlight that we're exposed to causes damage to the DNA in the cells in your skin cells, and that has to be -- that has to be fixed. If it's not, you'll accumulate mutations in the DNA and eventually you'll develop some form of skin cancer.

Q. And how many times have you testified in court before?

A. Three or four.

Q. What kind of cases were they?

A. Both capital cases and paternity cases.

Q. Were you involved in the Caldwell case?

A. Yes, I was.

Q. Have you testified for the state each time you've testified?

A. Yes, although I have worked for the defense. But in the cases where I've worked for the defense, either the fingerprints were thrown out and so I never testified or the case never went to trial.

Q. Now, do you have any specific knowledge of the Georgia State crime laboratory?

A. Yes, I do.

Q. Have you had occasion to examine their work in the past?

A. Yes.

Q. How many times?

A. Several. When the lab was set up, my colleague Wyatt Anderson and I actually taught a molecular biology course for the original people who were hired on to work in the laboratory.

Q. Would that be Dr. Herrin and Keith Goff?

A. That's correct.

Q. Among others, I'm sure.

A. Right. We taught a course over ten weeks in the summertime about molecular biology and how DNA fingerprinting worked and the various -- we provided them the scientific background for the techniques that they were going to be using.

Q. Do you have any experience with a chemical called Luminol?

A. No, I do not.

Q. Do you know what it is?

A. No.

Q. Do you have -- have you had any experience with what effects it might have on genetic materials, DNA materials?

A. No, I do not. I mean, if you told me what was in it, I could tell you whether it would have any effect.

Q. I wish I could tell you, Doctor, but so far nobody has been able to tell me what's in it so I can't help you. Partial digestion that you mentioned earlier, what experience have you had with that being caused by contaminants?

A. Well, when you get partial digestion, it's never really clear exactly what causes it. More usually it's an empirical observation from one DNA sample to the next, and you really have no way of predicting whether you're going to get partial digestion unless you intentionally set up a reaction in order to get -- so that you won't get complete digestion of your DNA sample.

Q. Dr. Kushner, have you ever done any forensic testing?

A. No.

MR. MOORE: That's all I have, Your Honor.

THE COURT: Any other questions insofar as qualifications, Mr. Smeal?

VOIR DIRE EXAMINATION

BY MR. SMEAL:

Q. Did you testify in the Caldwell case, Doctor?

A. Yes, I did.

MR. SMEAL: I have no other questions, Your Honor.

THE COURT: Mr. Moore, any other questions?

MR. MOORE: No other questions, Your Honor.

THE COURT: Any objection to him being qualified, Mr. Moore?

MR. MOORE: Your Honor, we'd leave that to the Court.

THE COURT: All right. The Court finds him qualified. Go ahead, please.

DIRECT EXAMINATION RESUMED

BY MR. SMEAL:

Q. Dr. Kushner, this jury has already heard from at least three experts some description of partial digestion, so to some extent they've already been educated on that issue. But could you just briefly describe what you regard as a partial digestion situation? What is that?

A. Well, with a restriction enzyme, it recognizes, as you've already heard, a specific sequence of nucleotides, and these sequences occur at various locations in the DNA. And the DNA is a very long molecule that will contain large numbers of these sites. What they do in the crime lab is they add the restriction enzyme to their DNA sample, and they try to set up the reaction so that all of the sites are cut by the enzyme by the time that they stop the reaction.

Now, what is observed in the laboratory over many years is that -- let's say the DNA fragment had fifty sites, that some of those fifty sites would be cut almost immediately by the enzyme, and some of the other sites would take much longer in order to be cut, basically that not all the sites are created equal and some are cut preferentially over others. So you carry out the reaction long enough, you hope, so that all of the sites end up being cut. If they are not, you will expect to get fragments that are bigger than the ultimate size fragment that you would get if every last site was cut, because if you have -- your probe is looking for a fragment of defined length, and that would be defined by one site at either end. But if there's another site, say, that's five hundred nucleotides further downstream and it's not cut, you'd expect to find a fragment that's five hundred nucleotides bigger.

In partial digest, you never find fragments that are smaller than the ultimate end fragment, but you always find fragments that are slightly larger, and it's impossible to predict in advance what the pattern is actually going to look like. You have to go back. If you think you have a partial digest, you either have to do the digestion longer or if you don't have that ability to do that, for example, with forensic evidence where you don't have a lot of DNA, you don't have the luxury of going back and trying the digestion again. You have to go back and do a different kind of a test to try to establish whether you've got a partial digest.

Q. And during your years as a research scientist, is partial digestion a phenomenon that you have seen in your research?

A. Yes. And sometimes we've actually used it when we wanted to isolate larger DNA fragments. The restriction enzyme that's used here in this forensic laboratory recognizes a relatively short sequence, so it occurs rather frequently. And if you want to get larger DNA fragments, then you actually set up your reaction to give you a partial digest.

Q. And are there several methods for setting up a partial digest situation? In other words, if you want to deliberately partially digest something, are there several ways of doing it?

A. Yes.

Q. And would the use of EDTA accomplish a partial digestion, a deliberate partial digestion?

A. Well, EDTA will stop the reaction. Almost all restriction enzymes require a metalline, and EDTA reacts very strongly with the metalline to what's called a chelator, so it binds the metalline and takes it out of action, and you add EDTA to stop the reaction very quickly. It's kind of like if you were boiling an egg and you wanted to stop it, you'd plunge it into ice cold water to stop the egg from cooking any longer. That's what you use the EDTA for. Generally if you're going to do a partial digest, you do very short reaction times and then you stop the reaction by adding EDTA.

Q. Dr. Kushner, I'm showing you what's been marked previously and admitted as State's Exhibits 139A through 151A. Have you seen those items before?

A. Yes.

Q. And what are those?

A. These are autoradiograms of the forensic test, and also they're autoradiograms of a control that the state crime lab set up to examine the possibility of a partial digest occurring in this particular forensic test.

Q. I'm also showing you what's been marked as State's Exhibit 163. Can you identify that item?

A. Yes. It's labeled 'Procedure for Partial Digestion.' It describes what the state crime lab did to try to establish that, in fact, the extra bands observed in the forensic test arose from a partial digest.

Q. And have you had an opportunity to review both of those autoradiographs in front of you as well as that partial digestion protocol and, in addition to that, various other documents from the crime lab's work in this case?

A. Yes, I have.

Q. Dr. Kushner, directing your attention to the columns which are labeled 'car seat' in the original autoradiographs for the six probes, did you examine those items to arrive at an opinion as to whether or not partial digestion occurred with respect to each of those probes?

A. Yes, I did.

Q. And based upon your education, training and experience, and review of the autoradiographs and documents in this case, do you have an opinion as to whether the extra banding pattern in the column labeled 'car seat' with respect to four of the probes was in fact due to partial digestion?

A. Yes. I'm convinced that there was partial digestion there.

Q. And in arriving at that opinion, did you also consider the autoradiographs associated with the partial digestion experiment that was conducted by Dr. Herrin's crime lab?

A. Yes, I did.

Q. Could you explain to the jury the basis for your opinion that partial digestion did occur in this case?

A. As I indicated earlier, when you initially isolate DNA, it's very high molecular weight. It's very, very large. And when you start a reaction with a restriction enzyme, you should see the DNA getting smaller and smaller, and eventually it should end up resolving, in the case of these particular tests, into either two discrete bands or at most -- as few as one discrete band if the individual or the DNA from the sample for the particular marker had the same allele from both the father and the mother.

So the way these tests are set up, you expect to see two DNA fragments for each of the markers tested, one that was contributed by the father and one that was contributed by the mother. And when you look at a partial digestion pattern, you look for the appearance of the ultimate products as well as the pattern of the extra bands that start to be generated.

In the earliest digestions, as you saw, you just had a smear, because basically there was still a lot of high molecular weight DNA. And it was only until the digestion had proceeded a considerable period of time that you started to see the discrete bands, and then some of the larger discrete bands started to get smaller. And eventually if the reaction had run to completion, you would have ended up with only two bands in their entirety.

Now, the reason why I'm convinced that this was partial digest is that the pattern of bands that were observed in the car seat sample, both in terms of the number of bands and the relative intensities of the bands to each other, were identical in their size, relative intensity, and their electrophoretic mobility, how far they moved in the gel, in the car seat lane with the samples that were done with the victim's blood in the separate tests. And in two of the cases, there was patterns of five or six additional bands, some of which were really quite intense, and those patterns were identical.

So although you don't try to get partial digestion in these kinds of tests, because it obviously makes a complication, actually because those patterns were identical, they provided -- they suggested to me an even further confirmation that in fact it was a match.

Q. In your opinion, Dr. Kushner, does the existence of partial digestion in this case in any sense invalidate the entire test?

A. No.

Q. Did you observe -- looking at the original autoradiograms and the partial digestion experiments, did you observe any smaller DNA fragments which would be inconsistent with partial digestion?

A. No, I did not.

Q. Dr. Kushner, based upon your education, training and experience, and review of this case, do you have an opinion as to whether Dr. Herrin's partial digestion protocol is a reasonable protocol which would be accepted in the scientific community?

A. Yes. I think it would.

Q. And could you explain that answer for the jury, please?

A. Well, basically what the crime lab has tried to do is, under a controlled situation, reproduce the situation where they might see a partial digest. And so for each of the markers involved, they took the known blood of the victim and set up a reaction similar to what they did in the forensic test. The only thing is is that they stopped it at various points along the reaction time, took the samples out and ran them out, and then probed them with the same probe that they used in the forensic test. And what they were looking for is could they see in the known blood of the victim the same banding pattern that they saw from the car seat.

And the reason why I think this is legitimate is another possible explanation for the extra bands, of course, is that there was someone else's blood mixed in. And if there were someone else's blood mixed in, then the partial pattern would look very different than that of the known victim's blood. And the fact that those patterns are pretty much the -- those patterns are identical tends to rule that out as a possibility.

The other reason why one would -- it would be extremely suspect that there would be any other blood in there is that for two of the six alleles, there are no partial -- there are no extra bands. They look just the way you would like them to look if this were a textbook forensic test. Now, in the cases where there are partial digest, some of the larger bands are very high intensity, and if there was another blood sample mixed in there, it would be -- there would be a lot of other blood there. And in the two markers where there are no extra bands, you would have expected to see other bands.

In forensic tests where -- for example, in a rape test, if there were multiple sex partners, you would see the presence of the two donors' DNA in each of the markers tested. So, in other words, if there were in fact equal amounts of blood that were taken off of this car seat, you would expect to see three to four bands in each of the markers, and you do not on these.

So to the best of my ability and my experience in this, I believe I concur with the state crime lab's conclusion that the extra bands represent partial digestion.

Q. And the document that you have in front of you labeled as State's Exhibit 163 which sets forth the protocol specifically that they followed in deliberately partially digesting DNA, is that a reasonable procedure that would be accepted in the scientific community?

A. Yes. This is the way you normally set up -- if I were to ask a student to go into the lab and do a partial digest, I would tell them to set up a time course, take a fixed amount of DNA and a fixed amount of the restriction enzyme and take aliquots out at various time points, stop the reaction, run it out on a gel and see what it -- see what it looked like.

MR. SMEAL: I have no further questions, Your Honor.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Dr. Kushner, I have a few questions. Do you know Dr. Jung Choi at Georgia Tech?

A. I've never met him.

Q. Are you familiar with his work?

A. I've read about him in -- you know, I've read about his testimony in the newspapers.

Q. Now, do you work with human blood in your lab?

A. No, I do not.

Q. It really doesn't make any difference, though, does it? DNA is DNA, isn't it?

A. DNA is DNA, yes.

Q. Now, the partial digestion that was found here, could that be caused by a number of things such as contamination, a mixed sample, or even improper mixing of the sample in the lab?

A. You would expect to get -- you could get extra bands if you had more than one person's blood present. You could get extra bands -- the most likely explanation is because the DNA sample that you extracted from, whatever the forensic location was, might in fact contain some chemicals that would interact with the DNA and reduce the ability of the restriction enzyme to cut the DNA. Improper mixing is not -- is not a possibility.

Q. I'm not talking about mixing two samples together. I'm talking about improperly mixing the sample itself, not getting it properly distributed before you begin your DNA test on it.

A. Highly -- extremely unlikely.

Q. But it can happen; right?

A. If you don't mix the samples properly, in this particular -- you most likely wouldn't see any digestion at all; and, therefore, you would just see a smear. If you look at the artificially done tests to look for partial digestion, if you didn't mix all the components up, you'd just see a smear as you see in the very early time points when they actually tried to get a partial digest.

Q. Do you agree that the scientific standards for forensic and for research should be the same for DNA?

A. Well, that's a loaded question. In the laboratory --

Q. Could you answer yes or no, and then you can explain it then.

A. Okay. I'll answer the question. You need to have high standards for forensics.

Q. Is that a yes, they should be the same for research?

A. They should approximate as close as possible, yes.

Q. You can explain your answer. I'm not trying to cut you off.

A. No.

Q. I just want a yes or no. Should they be the same?

A. The standards should be as absolutely as high as possible because the stakes are high. Okay. So the idea that one should cut corners in forensics is -- you're not interested in cutting corners. But on the other side of the coin, in a laboratory setting sometimes you have enough material you can go back and repeat an experiment until you get it perfect.

Q. And if you were getting ready to publish a paper, and you did this test, and you had these six autorads, and you got these results, wouldn't you go back and run the test again?

A. If I could, yes. If I couldn't, I'd be willing to -- with the controls that were run here, I think that the data would be accepted for publication.

Q. And when you have a partial digestion occur, there's really no way to know what caused it, is there?

A. No.

Q. Now, I noticed that Mr. Smeal used the term when he asked you about this partial digestion experiment 'would be generally accepted in the scientific community.' Is it generally accepted in the scientific community now to verify results, the final result?

A. Well, generally speaking --

Q. Once again, I'd ask you to give me a yes or no and then you can explain.

A. Generally in the scientific community --

Q. Doctor, I don't want to argue with you, but I would please ask for a yes or no.

MR. SMEAL: Well, Your Honor, if the answer is that it cannot be answered yes or no, he can explain that.

THE COURT: Well, let me -- Dr. Kushner, if you can give him a yes or no, then give him a yes or no and explain your answer.

THE WITNESS: I don't think that this question is appropriate to answer with a yes or no.

THE COURT: Just a moment. Just a moment.

THE WITNESS: I'm sorry.

THE COURT: If it cannot be answered yes or no, then give him a responsive answer.

THE WITNESS: Okay.

BY MR. MOORE:

A. [Continuing] I don't think you can answer this particular question with a yes or no answer.

Q. Okay. But is the partial digestion experiment generally accepted in the scientific community to verify the final results?

A. What I object to in the question is what you're talking about -- what you mean by 'final results.'

Q. The final declaration of a match.

A. Okay. I am not familiar enough with nationally in terms of what is done in situations like this in terms of what's considered a nationally accepted practice. Is this particular test that the crime lab did acceptable? Yes.

Q. But the answer is you don't know whether it's generally accepted in the scientific community for that purpose?

A. In the forensic community, no, I do not.

Q. If I told you that the FBI didn't use it, would that make any difference in your opinion about it?

A. No.

Q. If I told you that there was possibly only one other lab in the United States that uses it, would that make any difference?

A. No.

Q. Now, four of the probes here did have problems, didn't they?

A. There's partial -- apparent partial digestion with four out of the six probes.

Q. Would you call that a problem if you ran into it in your lab?

A. Yes.

Q. And would you say that the two that didn't have partial digestion are of better quality?

A. No. All I would say is that for those particular probes, you got complete digestion.

Q. Do you use the same probes in your lab that they used here in this case?

A. No.

MR. MOORE: That's all I have, Your Honor.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Dr. Kushner, as what you've described as a problem with the four probes, do you believe that that problem affects the reliability of the results in this case?

A. No, I don't.

Q. And based upon your examination of the banding pattern in the car seat lane, do you believe that the extra bands were contributed by multiple sources of DNA?

A. No.

Q. And if they were contributed by multiple sources, should one be seeing those extra bands with respect to the other two probes in which there was not partial digestion, the LH-1 and the PH-30?

A. Absolutely. Based on the intensity of the bands and with the probes where there are the extra bands, I have no doubt that if they were contributed by the blood of another person, that they would have been picked up with the other two probes where they only see two bands.

MR. SMEAL: No further questions.

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. When did you first learn about this case, Dr. Kushner?

A. Late in July.

Q. When did the state first contact you about testifying in the case?

A. Friday.

Q. And do you do PCR testing, too? Are you familiar with that?

A. Yes.

Q. And if you had the sample we have here with the six autorads and you had another piece of material that was alleged to have the blood of the victim on it --

A. Uh-huh.

Q. -- then would you run PCR testing on that other, if it could be done, on that other sample?

A. PCR testing is not as informative as RFLP testing.

Q. I understand that. Maybe I didn't phrase my question fairly. If the other sample could not be tested with RFLP because the sample wasn't large enough, would it be appropriate to run PCR on the other sample to try to determine whether you had a match?

A. That's not a decision for me to make.

Q. But if you were doing it in your lab and you were trying to determine if these two samples came from the same source, is that a way to verify it?

A. The RFLP test is far more accurate, so I don't think I would do the PCR test.

Q. Okay. But if you didn't know whether the two came from the same source and that's what you were trying to determine, would you need the PCR test on the other sample to determine if they came from the same source?

A. There's no reason not to do it. Okay. I don't think it would be necessarily particularly informative. There's no way you get -- there's no way you get data from the PCR test that in any way approaches the level of reliability that you get from an RFLP test in this particular case where they've done six independent probes.

Q. I understand that the RFLP is much more discriminating and a much better test than the PCR. But the PCR is capable of excluding someone, isn't it?

A. Yes. But in this particular case, what would you be excluding?

Q. Well, if you had two different -- you haven't been told, but there's a raincoat involved in this case, too. If you had blood on that raincoat that was alleged to have also come from the same source as the blood on the car seat, then if you couldn't do RFLP on that raincoat because the sample sizes were too small, it would be a legitimate way to try to determine that to do a PCR on the raincoat, wouldn't it?

A. Yes. But it wouldn't invalidate -- it would not invalidate the fact that -- of where the blood stain on the car seat had come from.

Q. Okay. And, of course, DNA -- as a DNA scientist, that never tells you anything about how the blood came to be where it is or where the substance came to be where it is?

A. That's correct. All that this test does is establish that the blood that was found on that arm, with an incredibly high probability, belonged to the victim. It doesn't say how it got there. DNA testing doesn't do anything about motives. It just tells you whether somebody was there or they weren't there.

Q. And if you had run this test in your research laboratory and got the results you got here, you would run the test over again, wouldn't you?

A. If I had enough sample, yes, I would have.

MR. MOORE: Thank you.

THE COURT: Mr. Smeal?

FURTHER REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Dr. Kushner, you said that you would be prepared to also publish these results with an explanation of what occurred in this case?

A. Yes.

Q. And, Dr. Kushner, is a six probe RFLP DNA analysis a discriminating test to run, that number of probes?

A. Extremely. In the early days, people ran three or four probes. The more -- every time you add another probe, you increase the reliability of the test. Some -- they're now talking about running seven or eight probes. Each of these is on a different chromosome and they represent an independent event, so the probability of somebody being misidentified by using six probes is incredibly small unless they were an identical twin who would have the same pattern.

Q. And do you concur with the crime lab's result that the victim E. Thompson was the source of blood on the car seat based upon your review of this case?

A. Yes, I do.

Q. And do you also have an opinion as to whether M. Chapel's blood could have been a source of the blood on the car seat based upon his banding patterns in this case?

A. He's excluded.

MR. SMEAL: No further questions.

THE COURT: Mr. Moore, anything else?

MR. MOORE: Nothing further, Your Honor.

THE COURT: Do you wish this witness to remain?

MR. SMEAL: Your Honor, we would ask that this witness be excused to return to his duties in Athens.

THE COURT: Mr. Moore?

MR. MOORE: I don't intend to re-call him.

THE COURT: All right. You're released from any further attendance at the trial of this case.

[The witness stepped down from the stand.]

THE COURT: Call your next witness, please.

MR. SMEAL: The state calls Dr. George Herrin.

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

THE COURT: I'll ask you to readminister the oath.

MR. SMEAL: Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Would you for the record, Dr. Herrin, state your full name.

A. My name is George Herrin, Jr.

Q. And this jury has already heard about your background and experience, so I won't go into that at this time. But just to remind the jury, you are the head of the DNA unit of the Georgia state crime lab; is that correct?

A. That's correct.

MR. SMEAL: Your Honor, based upon Dr. Herrin's prior testimony in this case, the state would be offering Dr. Herrin as an expert in the area of DNA analysis.

THE COURT: Mr. Moore?

MR. MOORE: The Court previously found him qualified, so I think he would still be qualified.

THE COURT: I believe he is. Go ahead, please.

BY MR. SMEAL:

Q. Dr. Herrin, are you familiar with Martin Shapiro from Emory University?

A. I have met him on occasion, yes.

Q. And have you ever consulted with him about the results of this case?

A. No. He was provided with our data, but I did not consult with him concerning our conclusions or observations.

Q. And did he ever relay to you any conclusions or observations or any written data that he had created with respect to this case?

A. No, he did not.

Q. I'm handing you what's been marked as State's 156. Can you identify that document?

A. Well, a great deal of the information on these pages appears to be a printout of the black database for the probe V-1, and it's organized in a format. There is some additional information on here which Mr. Shapiro must have put on, which I don't really know what he was doing here.

Q. Is that a document that was supplied to you just a couple of days ago to review?

A. Yes, it was.

Q. And did the state at that time make you aware of Dr. Shapiro's testimony that there had been some samples duplicated in the black database with respect to V-1, the probe V-1?

A. Yes, it was.

Q. And have you had an opportunity over the past couple of days to attempt to either confirm or verify that information?

A. Yes, I did.

Q. Okay. Would you tell the jury what you have found out upon reviewing that document and comparing that with your V-1 black database?

A. Dr. Shapiro did, in fact, find some duplicates or samples that had been entered into the database twice, or in one instance four times, I believe, four of the samples in the black database for the probe V-1. So if you deleted those samples from the database, the database size would have been changed from 457 individuals to 445 individuals.

Q. And what would that do to the frequency calculation in this case that the Georgia state crime lab arrived at?

A. Well, it really would be inconsequential in the overall calculation. The original frequency for the V-1 probe for the pattern observed on the car seat in the black database was .0196, and the corrected frequency was .0201. Okay. And then for the blood sample identified as having come from Emogene Thompson, the original frequency which we calculated was .0328, and the corrected frequency would be .0338.

And then if you include the corrected numbers in the overall or the cumulative frequency estimate, which is obtained by multiplying all of the frequencies from all six of the probes together, originally we had calculated a frequency estimate from the black database of 1.4 trillion, and the corrected frequency was again 1.4 trillion. The overall difference was so small that it would have been into the second or third decimal place. So at that point I would say that the difference is fairly insignificant in the final conclusion.

Q. I believe, Dr. Herrin, you have previously testified that the state crime lab did report out a frequency calculation with respect to each of the databases, both Caucasian and black; is that correct?

A. That's correct. Well, it's in our notes, yes, sir.

Q. Okay. And as far as the figure that was reported out in this case, which I believe was a frequency of one in ten billion, how does that relate to the actual frequency calculations that you reported out with respect to each database? In other words, was it larger or smaller?

A. It's smaller. The actual calculated frequencies from the Caucasian database, the most -- more conservative of the two estimates that we arrived at was one in four, 4.7 times ten to the tenth or one in forty-seven billion, which we would -- even if we had reported that, we would have reported it as one in forty billion. But we have a policy of conservatively capping the frequency estimate at one in ten billion. So even though the number was one in forty billion, we would only report one in ten billion.

Q. Based upon your examination of those records and your testimony today, do you believe that the duplication of the samples in that database poses any issue as far as the reliability of this test in this case?

A. No, it does not. None whatsoever.

Q. Dr. Herrin, there has been testimony about single banded patterns in the database from Dr. Shapiro, and also he has referred to homozygotes. Could you digress for a second and briefly explain to the jury why one would find a single banded pattern to begin with with respect to DNA?

A. Well, there are three reasons that you can obtain a single banded pattern on a profile. The first is that when the person is conceived, their mother and their father donate the same exact DNA or size DNA fragment so that you will get the same fragment. It's like if you're being conceived from two parents which have O blood type, then you're going to have type O blood, and it's because they're both giving you an O gene. Okay.

The second reason would be is if the parents contribute pieces of DNA which are so similar in size that we cannot distinguish them on our test. And that's a possibility.

And then the third reason is that we just cannot detect the second fragment for a variety of reasons, either it's too small and it's run off the gel or it's just so small that it doesn't pick up any of the probe.

Q. Does the -- does your population database in fact contain samples with single banded patterns?

A. Yes, it does.

Q. And is there any particular problem with that?

A. No, it doesn't, because you're also going to see single banded patterns from your case work. And if you did not include the single banded patterns in your database, from the way we do our frequency calculations, then any time you saw a single banded pattern in a case, it would actually bias the frequency calculation against the defendant because it would make it seem more rare than it really, in fact, is.

Q. And were there, in fact, any single banded patterns found in this case as far as either the known samples or the sample from the car seat?

A. As far as Emogene Thompson and the sample from the car seat, no. They were all two banded patterns.

Q. Are all of the six probes which are currently being utilized by the Georgia state crime lab -- are those valid probes which are in use in the forensic scientific community in the United States today?

A. Yes, they are. We use the same probes as, oh, ninety percent of the rest of the laboratories in the country.

Q. Dr. Herrin, Dr. Shapiro testified about the difference between a match and what your protocol regards as a similar. First of all, were there any banding patterns in this case that were declared to be similar as opposed to a match?

A. No, there were not.

Q. And was the final frequency calculation on the six probes based upon a determination that there were, in fact, six matches between the car seat and Emogene Thompson?

A. Yes, it was.

Q. And were any of those based upon a finding that those banding patterns were only similar as opposed to a match?

A. No. If a banding pattern -- no, it wasn't, because if a banding pattern is declared similar according to our protocol, that probe's data is not included in the frequency calculation.

Q. So similar -- a finding of similar is excluded where it ever appears in another DNA analysis? In other words, you don't rely on similar to declare the final frequency calculations?

A. Oh. That's correct, yes, sir. Similar patterns are not included in frequency calculations.

Q. And that's a matter of crime lab protocol?

A. That's a matter of our protocol and procedures, yes, sir.

Q. But in any event, that did not apply in this case?

A. Did not apply whatsoever in this case.

Q. In discussing the so-called product rule which multiplies the frequencies of each probe to arrive at a final figure, Dr. Shapiro gave the example that gray-haired persons sometimes also have wrinkles; in other words, that those characteristics go together. Is that a good example to use to explain or to challenge the product rule?

A. No. It's a fairly ridiculous example.

Q. Why is that?

A. Well, because anyone by common observation can pretty much observe that if you've got gray hair, that gray hair is usually associated with wrinkles. A better example of the product rule is, for instance, if you want to just use something common, is the chances that you would live in a red brick house and also wear tennis shoes. Those are completely unassociated characteristics, and you could multiply those two things together and get a reliable frequency estimate of someone who lives in a red brick house and wears tennis shoes.

Q. And do the probes which were utilized in this case look for DNA sequences on different chromosomes?

A. Yes, they do.

Q. Okay. What's the purpose for that?

A. Well, the purpose for that is that you want to have the probes or the loci that you're looking at look at things which are not going to be affected by one another. In other words, as in Dr. Shapiro's example, wrinkles and gray hair do go together. I mean, most people that have gray hair are going to have some wrinkling. It depends on the person how much. But if you look at different things, for instance, if you looked at the gray hair and -- let's pick another characteristic -- whether or not they wear blue jeans, those two things might not be linked at all.

Q. Are you familiar with Dr. Wyatt Anderson?

A. Yes, I am.

Q. Who is Dr. Wyatt Anderson?

A. Dr. Anderson is the current dean of the College of Arts and Sciences at the University of Georgia.

Q. Is he a population geneticist?

A. Yes, he is.

Q. Has he testified previously in cases in the state of Georgia?

A. Yes, he has.

Q. Did he testify in the Caldwell case?

A. Yes, I believe he did.

Q. That's one of the leading cases in DNA?

A. It's the seminal or what they would call the primary case in the state of Georgia because it set forth the ruling on the acceptability of DNA in general.

Q. And, Dr. Herrin, does the crime lab follow the methodology proposed by Dr. Wyatt Anderson to determine frequency calculations with respect to DNA analyses?

A. Yes, we do.

Q. With respect to partial digestion, Dr. Herrin, I just have a few more questions on that issue. Does the existence of partial digestion banding patterns in this case invalidate the test results?

A. Not at all. Partial digestion is just a fact of life sometimes with forensic samples, and it's not something that we desire to see, obviously. We would like every case that we analyze to be the most perfect that we could get it to be, but it's a fact of life that sometimes you're not going to have things work out as perfectly as you would like them to. But partial digestions are something which are a recognized phenomena seen in molecular biology and can be controlled for or checked for, and I don't believe that the partial digestion observed in this case in any way invalidates the results that we obtained in the case.

Q. Dr. Herrin, with respect to your databases that you've utilized at the crime lab, have there been any reports or papers published which discuss those population database figures?

A. Yes, there have. Actually I've published two manuscripts which discuss our population databases. The first one describes and compares and contrasts our method of doing the frequency calculation compared to other methods of doing the frequency calculations in which I compared these methods using our databases to see what the differences in the overall cumulative answer that you would get would be.

And then the second would be -- the second paper that I've published includes our database in a larger Southeastern United States database for the examination and the effect of matched criteria on the probability of getting random unexpected matches between unrelated individuals; in other words, the chances that two people who were not the same -- or two patterns not originating from the same person would match utilizing different match criteria. So our database was included in that as well.

Q. Has the Department of Justice published any reports which include the Georgia population databases?

A. Yes, they have. We submitted or I submitted through TWGDAM, which if you'll remember was the technical working group on DNA analysis methods, as part of -- one of our projects as an organization was to gather population data from around the country and around the world, and I submitted our data through that group, and it has been published in actually what is now a six-volume compendium called VNTR Population Data, a Worldwide Study. Here I have a photocopy of the cover of the first volume, of the title page, the introduction to that, and then the actual histograms which describe our databases in that volume -- in those volumes.

MR. SMEAL: No further questions.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Dr. Herrin, I'm not quite clear on your testimony. The numbers that were provided to us from your database on the floppy discs down at the crime lab --

A. Yes, sir.

Q. -- are you telling the jury that those have been published?

A. The actual data was provided to -- well, not the actual numbers but the summary of the data. One thing you've got to understand is that no journal is going to publish the raw data from a database. It's just not going to happen. Even when I review -- as a member of the editorial board for the Journal of Forensic Sciences, when I review papers discussing databases, the raw data from those databases is not included. It's a summary of the data from the databases.

Q. So you're not telling the jury you published the entire databases, then?

A. No, sir. We published information about the databases.

Q. And, in fact, the crime lab refuses to release the actual numbers except under a court order and only for that case. You won't allow the scientist to use it for any other purpose, will you?

A. No, sir. We consider that to be our data, and it is our prerogative to publish any reports or conclusions concerning that data.

Q. What is your background in statistics, Dr. Herrin?

A. Well, I don't have a degree in statistics. I will freely admit to that. I have done quite a bit of self-study to bring myself up to speed as to what is necessary and relevant to the field in which I'm working.

Q. Would it be fair to say that most of what you know about population statistics came from a course you took from Dr. Kushner over at the University of Georgia?

A. I would say that he certainly gave us a foundation at the crime laboratory for doing population frequency estimates and population genetics, but I also have had other occasions to obtain information regarding that field.

Q. Would that be through reading and attending seminars?

A. Reading, attending seminars, talking with other population geneticists, yes.

Q. How many seminars have you attended on that?

A. On population genetics? Well, I know in addition to Dr. Anderson's course, we had a course taught by Dr. Lisa Foreman from Cellmark Diagnostics, who is a population geneticist.

Q. How long was that course?

A. It was two or three days, I think. And then at almost every TWGDAM meeting or American Academy of Forensic Sciences meeting or any other meeting that I go to, there is at least -- are at least one or two papers dealing with the issue of population genetics and their usage in forensic science.

Q. Now, when we came down to the crime lab, you reproduced the bio-image for us or Keith Goff did under your supervision. Do you recall that?

A. Yes, sir.

Q. Do you recall that Mr. Goff had difficulty in running the computer and you had to coach him and tell him which keys to push and everything?

A. I remember that I did tell him a quicker way to do something, yes.

Q. He was fumbling and couldn't get it to work and you told him which keys?

A. I believe so, yes.

Q. Dr. Herrin, do you recall testifying here under oath -- I believe it was last week; I've kind of lost track of time here -- that you were as sure that there were no duplications in your database as you were of your results in this case?

A. I don't recall exactly what I said. I do remember saying that I believe the database to be reliable and accurate, and I still believe that. I do not believe that the occurrence of those twelve duplicates in any way affects the conclusions which we draw.

Q. That wasn't my question, Dr. Herrin. My question was: When I asked you if there were duplicates in your database before and were you as sure there were none as you were of your results in this case, you said that you were as sure, didn't you? You said there were no duplicates?

A. As I said, I can't remember -- like you said, I can't remember exactly what I said last week, and at the time I did not think there were any duplicates, and I've been shown to be incorrect, so --

Q. And you were wrong about that, weren't you?

A. Yeah, I was wrong.

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

THE COURT: Redirect?

MR. SMEAL: Just a couple of questions. I'd ask if you would mark these as the state's next two exhibits.

[State's Exhibits 164 and 165 were marked for identification by the court reporter.]

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Dr. Herrin, I'm showing you what's been marked as State's Exhibit 164. Can you identify that article?

A. Yes, sir. This is the article which I published in 1992 in the Journal of Forensic Sciences entitled, 'A Comparison of Models Used for Calculation of RFLP Pattern Frequencies.'

Q. I'm handing you what's been marked as State's Exhibit 165. Can you identify that article?

A. Yes, sir. This is an article I published in the American Journal of Human Genetics in 1993 titled, 'Probability of Matching RFLP Patterns from Unrelated Individuals.'

Q. Dr. Herrin, to your knowledge, has Dr. Martin Shapiro ever published an analysis of a forensic population database?

A. Not of the population database, no, sir.

Q. Are you familiar with the one article that he has published with respect to the FBI database?

A. Yes, I am.

Q. And did that appear in the magazine 'Nature Magazine'?

A. Yes, it did.

Q. Do you recall what the length of that article was?

A. It was very short. It was approximately -- if it was all on one page, it would be a little over one and maybe one and a half columns, I believe, of one page.

Q. To your knowledge, is that the only article Dr. Shapiro has ever published with respect to forensic DNA?

A. As far as I'm aware, yes.

Q. And do you know -- based upon your membership in TWGDAM and your knowledge of the FBI, do you know whether or not the FBI altered any of its procedures or protocols as a result of that article?

A. I'm certainly not aware that they altered anything on the basis of that article.

MR. SMEAL: Nothing further.

THE COURT: Mr. Moore?

RECROSS EXAMINATION

BY MR. MOORE:

Q. One other thing, Dr. Herrin, I had forgotten about. Your databases -- when you were setting up your databases, you got the blood, I believe you testified, from various health clinics around the state?

A. Yes, sir.

Q. Were those public health clinics?

A. Yes, sir, they were.

Q. Those are the kind where people can get either low cost or free treatment?

A. I believe so, yes, sir.

Q. Do you know whether or not related individuals were included in your databases, mothers and children, for instance?

A. Well, the instructions given to the workers at the health clinic were to not draw -- if two people from the same family came in, not to draw both of those two people. But I can't guarantee -- because the samples are anonymous, I cannot guarantee that that, in fact, did not happen.

Q. Now, over what period of time were these samples collected?

A. Approximately six to eight months, I believe.

Q. So if the clinic worker didn't remember that they had drawn from the mother who was anonymous and then two months later they brought the child in and they drew a sample, you would have no way of knowing that?

A. I would really have no way of knowing that. It would be extremely difficult for me to check that.

Q. And you don't know whether the people at the health clinics kept up with or made any attempt to follow the instructions for collecting the samples?

A. I had no personal control over how they drew the samples, no.

Q. Now, getting back to your population databases here, you would agree that Dr. Shapiro found errors in your databases that you didn't know about, wouldn't you?

A. I would agree that he found some duplicates in that one database that I did not -- was not aware of, yes.

Q. And there may be other errors that nobody has found yet in your databases or your procedures; isn't that correct?

A. Well, I mean, I guess there's always the chance that other things can be found that people disagree with or that could be improved upon. But Dr. Shapiro certainly had the databases, and he had them for approximately six weeks, so I would assume that if there were any other errors in there, he would have found them.

Q. And if he found the evidence in there of related patterns and everything, you wouldn't disagree with that, would you?

A. I'd have to see his data before I could agree or disagree with that statement.

MR. MOORE: Thank you.

MR. SMEAL: Two more questions.

FURTHER REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Dr. Herrin, was the population database at the crime lab -- has it been increased?

A. Yes, it has. In either January or February of this year, I don't remember which month, we essentially dumped all of the known samples which we had analyzed during case work into the database, so we increased -- essentially doubled the size of our databases from approximately 450 to 500 for the black database to somewhere around 900 to 950, I believe. And for the Caucasian database, it went from around 275 to a little over 500, I believe. I don't have the numbers right here in front of me. But these samples included individuals from all over the state who were submitted in association with a crime or something.

Q. Is there any reason to believe that those known samples from various criminal cases would be related individuals?

A. No, sir. As a matter of fact, in those cases we would know when an individual was related because we would be able to get that information from the police and we would not include -- for instance, if we had two brothers submitted as suspects in a sexual assault case, we would only include one of the two brothers in the database.

Q. And did the doubling of the population database have any effect on your overall frequency calculations according to your information?

A. No, it did not.

Q. Did you tend to find the same relative frequency of the various DNA sequences with respect to the different probes in the larger database as to your prior database?

A. Yes, we did. If anything, about the only thing that increasing the size of the database did was, in fact, show that the patterns were even at least as rare as we had, you know, calculated from the original database.

MR. SMEAL: Nothing further, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No further questions, Your Honor.

THE COURT: Do you wish this witness to remain?

MR. SMEAL: We would ask that he be excused, Your Honor.

THE COURT: Any objection?

MR. MOORE: Your Honor, I don't intend to call him back.

THE COURT: You're released from any further attendance at the trial of this case. You can come down. THE WITNESS: Thank you, sir.

[The witness stepped down from the stand.]

THE COURT: Any other witness in rebuttal?

MR. PORTER: Your Honor, that rests the state's case in rebuttal.

THE COURT: Would you approach the bench, please.

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

THE COURT: Do you have any rebuttal you're going to put up?

MR. MOORE: Your Honor, I don't think so. But could we maybe take a short recess and let me and Ms. Rogan discuss it.

THE COURT: We're due for a recess.

MR. MOORE: I don't think so. I'm pretty sure we won't.

THE COURT: I think what I might do is take fifteen minutes for the jurors to get a cup of coffee, if they want. If there's anything you want to put up, we'll put it up. Then we'll know what we're going to do with the jurors. And if that's the end of it, then we'll crank up along with all the rest of it, and sort some things out and prepare for argument and charge and then start the first thing in the morning. Time-wise maybe if we're lucky, you know, the way things are going, I guess, that'll give the afternoon to sort out the things kind of without being in a big rush or staying over late tonight, and give everybody an opportunity to get their argument ready for tomorrow. Okay. We'll do that.

[Bench conference concluded]

THE COURT: We're going to take a fifteen-minute recess at this point before we commence with any other issues in the case. I'll ask you to leave your pens, pads, and notes in your seats.

Mr. Allen, if the jurors, we'll have time, if they want a cup of coffee or something to drink, if you'll make that available.

We'll take fifteen minutes. If you'll go with the bailiffs at this point.

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

THE COURT: Insofar as any surrebuttal, Mr. Moore, if we do have -- we'll come back and get your announcement after the recess. But if we do have any, do you think that's going to be relatively brief?

MR. MOORE: Your Honor, I don't anticipate having any at all. But right now I would like to have a few minutes to talk with co-counsel just to make sure we agree about everything.

THE COURT: All right. We'll take fifteen minutes before you make your announcement in that regard. Then we'll proceed on however need be. We'll take fifteen minutes.

[Break taken]

THE COURT: Ready, Mr. Porter?

MR. PORTER: The state is ready, Your Honor. I would note for the record that the state will not be tendering the exhibits other than the one that was admitted, State's Exhibit Number 162.

THE COURT: Okay. What I thought we would do is after we finish up everything else and as part of the charge conference is just go back through all the exhibits and sort out what's admitted and what's not. If there's any issue of what's been offered or any reservations on any of the exhibits, is sort all of that out this afternoon along with what's in and what's going out --

MR. PORTER: Yes, sir.

THE COURT: -- unless anybody wants to do that in the presence of the jury.

MR. MOORE: No, Your Honor.

MR. PORTER: We don't want to do that in the presence of the jury.

THE COURT: All right. What's your announcement going to be as far as any surrebuttal, Mr. Moore?

MR. MOORE: We have no further witnesses or evidence to present, Your Honor.

THE COURT: All right. I'll let you make that announcement and rest in the presence of the jurors. I guess they ought to have a meal prepared shortly for them. What I'm going to do, then, is just direct them that they'll be taken back over to their lodging after lunch.

And I think what we'll do is discuss some of the issues that we're going to have to resolve and then take a lunch recess and then come back this afternoon and sort out the exhibits and the charge and the verdict form and anything else that needs to be addressed before argument and charge.

So what I'm contemplating doing is let's do that this afternoon and commence with the argument and charge in the morning. Technically, I guess we've got a potential of four hours of argument. But I think that rather than break any argument up by way of a lunch recess, what I'd like to do is, if we have anything left over this afternoon that's not resolved, is maybe come in about eight-thirty in the morning. That'll give us a half hour to resolve any dangling issues and then start argument and charge at nine. Even if it ran four hours, that would put us at one o'clock, and then take a lunch recess and then do the charge and then let them start deliberating. That's what I've got in mind.

At any rate, we'll just see how all that fits together. But with your announcement, I'm going to go ahead and release them until nine o'clock in the morning. With the potentially longer argument, I think having them come in at nine o'clock -- that's about as late as I want to start tomorrow with all the things we'll have to do so that we have some prospect of some reasonable time tomorrow evening for deliberation.

Any request or objection or suggestion in that regard, Mr. Porter?

MR. PORTER: No, Your Honor. That's satisfactory with the state.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Okay. Bring the jury back, please.

THE BAILIFF, MR. ALLEN: May I approach?

THE COURT: Yes, sir.

[An off-the-record discussion was held between the bailiff and the Court.]

THE COURT: Bring the jury back, please.

MR. PORTER: Your Honor, as a reminder to the Court, there's also a Unified Appeal checklist hearing that's to be held at the close of evidence

THE COURT: Yeah. That's correct. We'll do that. Well, Mr. Chapel will be here anyway. We'll just come back to that during the course of it. Yes. Thank you, Mr. Porter.

[The jury returned to the courtroom and proceedings continued as follows.]

THE COURT: Any surrebuttal evidence, Mr. Moore?

MR. MOORE: No further evidence for the defense, Your Honor.

THE COURT: The defendant rests?

MR. MOORE: Yes, Your Honor.

THE COURT: Any other matter of evidence on behalf of the state except for the issue of exhibits?

MR. PORTER: No, Your Honor.

THE COURT: Any other matter of evidence on behalf of the defendant except as to the issue of the exhibits?

MR. MOORE: No, Your Honor.

THE COURT: The evidence is closed. Ladies and gentlemen, at this point you have heard all of the evidence there is to hear in the case as to the issue of guilt or innocence, in that phase of the trial of the case.

What we have to do this afternoon is to prepare the charges and go over the exhibits and all those kinds of things that are going to be -- that we'll have to do but won't require your presence. So we're going to do that this afternoon and continue on, but I'm going to release you for the balance of the day.

Lunch will be prepared for you and you'll be taken back over to your lodging and the evening meal there. We will recommence in the morning at nine o'clock with argument and charge, with that being the portion left in the case before you decide the issue of guilty or not guilty as to the four indicted offenses.

So at this point I would remind you that although you have seen and heard all the evidence there is in the case, you have not seen and heard all the case presented to you and that you ought to continue to keep an open mind in the matter until such time as you have seen and heard the balance of the case presented to you. I remind you that there ought not to be any discussions or deliberations commencing at this point. That ought to be deferred until such time as you're in the jury room with your fellow jurors to make up your mind and commence your deliberations to reach a decision in this matter. I also remind you that you ought not to discuss the case with anybody else or allow anybody else to discuss the case with you or in your presence, and there ought not to be any viewing of any media article of any kind with respect to the case.

So with that instruction, I'm going to ask you to leave your pens, pads, and your notes, and they'll be waiting on you when you return in the morning, and we will recommence in the morning at nine o'clock. If you will go with the bailiffs, please.

[The jury was excused for the day and retired from the courtroom at 11:20 a.m.; proceedings continued, as follows, with the jury not present.]

THE COURT: I'd like to just raise a few issues before we recess for lunch just as sort of a preliminary matter before we get into the, I guess, a full-scale charge conference. And I'd like to just reserve the issue of the exhibits, what goes out and what doesn't and all that, along with the Unified Appeal inquiry and commence with that immediately after lunch.

One of the questions in my mind that we're going to need to address this afternoon is to the form of the verdict. We have a one count malice murder and one count felony murder. I'm not suggesting we're going to resolve it before we recess, but one of the issues is there appears to be two lines of cases as to what you tell the jury in charge.

There's one line of cases say that the Court will charge the jury that you can -- if you find the evidence authorizes it, that you can convict the defendant on both offenses of murder but only be sentenced on one.

And there's another line of cases, which I think is consistent with the pattern charge, that say instruction to the jury is that you can only convict on one of the offenses, that is, malice murder or felony murder.

Is there anything you want to say about that at this point, Mr. Porter?

MR. PORTER: Your Honor, I'm not sure that the line of cases that the Court is referring to say that you can only convict. I think the cases that the Court is referring to is the sequential charge --

THE COURT: I don't think so.

MR. PORTER: -- that requires that you must consider in sequence before you get to felony murder. But I'm not aware of any cases that say you can't convict -- you can only convict on one.

THE COURT: Before we recess, I'll pull -- I don't have them at the bench with me, but I'll pull my notes on the cases and during the course of lunch you might take a look at them as well and we'll resolve that issue.

The pattern charge, as I recall -- I don't have it in front of me. I've done some quick looking at it. I think the pattern charge is you convict on one, with the other line of cases being consistent with, for example, DUI's where you've got the per se and the -- well, it escapes me at the moment. I've tried a couple hundred of them, I guess. But, anyway, the other --

MR. PORTER: The less safe?

THE COURT: The less safe, yes, with the direction being that you can convict on both -- you can consider both and you can convict on both when the accusation is two counts, two different DUI's, the same offense, but with the instruction that the defendant will be sentenced on one, so, anyway, that's -- Mr. Moore, is there anything you want to say about that before we recess?

MR. MOORE: Not at this time. We'll look into it at lunch, Your Honor.

THE COURT: Okay. All right. The other thing is with respect to the sequential charge you raise, Mr. Porter, in this case, do you contend that there are any lesser included offenses in any of the four counts?

MR. PORTER: No, Your Honor. The state would contend there are not, and I believe that the sequential charge only applies when the defendant requests a charge on a lesser included offense or the Court finds that there has been evidence of a lesser included offense. And then it goes they must consider murder and then voluntary manslaughter before they can even begin to consider felony murder.

And in this case, I don't believe there's been any evidence in either the state's case or the defense of voluntary or involuntary manslaughter, and there has not been a request thus far for a lesser included offense.

THE COURT: What do you think, Mr. Moore? Do you think there's any lesser included offense in this case or should that be charged?

MR. MOORE: Your Honor, it's my opinion there is no lesser included.

THE COURT: That's my opinion. I think this is a case the state says this defendant committed the offenses. He says, 'it wasn't me, I wasn't there.' I don't see that as an issue. I don't see any evidence in that respect, in which case, then, insofar as the instruction of the Court, then, there will be no lesser includeds. It will just simply be a matter of Count 1, 2, 3, and 4, with those defined to the jury as part of the charge, and it's either guilty or not guilty with respect to each of them unless there's a direction as to Count 1 and 2 that you may only find guilt on one no matter what.

I also have the charge that's out of the computer and I've done some redacting in it last night, striking inapplicable portions, and that's being prepared. I think what I'd like to do when we come back with the charge conference is go through the pattern charges that I contemplate giving, just go through that and then add to that however it appears to be appropriate with any requested charges or hear any objections you may have or any requests to add any charges that I don't contemplate giving, and have that such that we can adjust that up on the computer so that -- what I contemplate is having a copy of the charge to give the jurors, one of them each a copy of the charge. They can read it as we go along with it as I charge them and take it in the jury room with them. Any objection to that, Mr. Porter?

MR. PORTER: No, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Okay. Insofar as the form of the verdict, I think that's going to be pretty straightforward. I think we've got a suggested form earlier we looked that would appear to be appropriate, and we'll come back to all that. I believe on the argument and charge, Mr. Porter, you'll have opening and closing, a total of two hours under the Uniform Rules.

MR. PORTER: Yes, sir.

THE COURT: Mr. Moore, you'll have two hours, you and Ms. Rogan. I believe you had indicated you wanted to split that up.

MR. MOORE: Yes, Your Honor.

THE COURT: Any objection from the state?

MR. PORTER: No, sir.

THE COURT: I think you can -- so long as we're not playing tag team, you can go in any order you choose and split it up however you want so long as she argues once and you argue once with the total to be not more than two hours.

MR. MOORE: That's the way we intended to do it, Your Honor.

THE COURT: Okay. All right. Any other matters we need to -- preliminary matters before we commence the charge conference?

MR. PORTER: Your Honor, I would only inform the Court that there may be two requests to charge, and we're still researching it, regarding money in -- that there's no requirement that the state prove a specified amount regarding the armed robbery charge, there's no element of that, and that there's no requirement that the victim anticipate the injury or be in fear of receiving great bodily harm in order for there to be an armed robbery charge. The second part is somewhat different than the pattern charge.

THE COURT: Okay.

MR. PORTER: But those are the only two issues that we would address, and we'll have an answer on that.

THE COURT: All right. Any other requests that the state wishes to make or the defendant wishes to make either in writing or orally, we'll take them at the charge conference and resolve them.

It may be that after we have that resolved that maybe late this afternoon before I have the printout on the charge I contemplate putting in the hands of the jury, and that would include any requests made by either side or any adjustments, additions, or whatever from the state or the defendant, and then we'll put that in the charge as well.

It may be late this afternoon before that's ready, after we get through with the charge conference. So as soon as I have that ready, we can make that available either out at the bailiffs' station or deliver it to Mr. Porter's office if somebody will be there late today, and everybody can have that for tonight. That would be a matter we could sort out and come back to early in the morning on an expedited basis if everybody has it overnight to look at. I don't want to just hand you thirty or forty pages of something at eight-thirty in the morning to go through while we have all the other issues and everybody has got argument on their mind, so we'll try to resolve that this afternoon as well.

I think what I would like to do is recess for a couple of hours because I need to do some looking at -- gather my own notes and things together and give you the opportunity to do likewise. I think the actual charge conference -- I don't think that's going to be real lengthy after everybody has an opportunity to sort of sort out what they want this afternoon. I think that's going to be relatively straightforward.

I think we'll recess till one-thirty and commence with the charge conference at that point. How does that sound to you, Mr. Porter?

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

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, that's fine. There's just one matter that I probably need to do for the record. We would renew our motion for a directed verdict, particularly with regard to the felony murder and armed robbery in that it's our position that the state has produced no evidence that she had any money with her that night or that any money was taken in the alleged robbery. And that would be all the argument I'm going to make on that. I just want to renew the motion on all the grounds previously stated.

THE COURT: Yes. I understand. Mr. Porter?

MR. PORTER: Your Honor, of course, we would oppose that motion. The state's evidence has produced evidence that the victim had money that night. She was in a position where she habitually carried the money, the money was never recovered, the purse was never recovered, and we believe that the evidence is sufficient to show that an armed robbery occurred.

THE COURT: All right. Your motion stands denied, Mr. Moore. Anything else before we recess for lunch?

MR. PORTER: Your Honor, excuse me, I'd like to put one thing on the record, that we did provide the memo of law that I mentioned earlier this morning to the Court and to the defendant that cites some cases regarding demonstrative evidence.

THE COURT: Okay. If you have any you want to add to it, Mr. Moore, you can produce those as well.

Anything else, Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: All right. We'll be in recess till one-thirty. If you'll pause a moment, I'll just xerox off and send out the matters we talked about about the two lines of cases, and that will show you what I've looked at anyway and give you an opportunity to review that before we recommence the charge conference.

We'll be in recess till one-thirty.

[Lunch recess]

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6311

AFTERNOON SESSION

THE COURT: State ready?

MR. PORTER: The state is ready.

THE COURT: Defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: It's been a long two weeks. I know everybody is growing a little weary. Why don't we -- we're going to be here a while with the charge conference this afternoon. Why don't we just relax and be a little less formal and everybody remain seated, if you like, and save standing for argument in the morning, if you like.

Let me start with the Unified Appeal matter, and that is the provision that relates to the requirements to close the evidence.

The first issue is as to any written requests to charge, and I believe we have the state's request number one and number two, which have been offered during the course of the recess. Are there any others aside from that, Mr. Porter, from the state?

MR. PORTER: No, Your Honor. We've reviewed the standard charge in regard to the other issues in this case, such as reasonable doubt and circumstantial evidence, and although we have one brief argument on the circumstantial evidence charge, we request the standard charge from the charge book.

THE COURT: Okay. All right. We'll go through all that shortly. Mr. Moore, I believe we have had -- on behalf of the defendant, we have had defendant's requests number one through ten. We'll address those individually during the course of the charge conference. Are there any other written requests at this time?

MR. MOORE: No, Your Honor. Ms. Rogan is going to be handling that for us. It's come to our attention, too, that apparently number five and number six are duplicates in our requests.

THE COURT: Yeah. Well, better twice than not at all, I guess.

All right. The second issue is whether or not there are any issues that we have a tentative ruling or no ruling during the presentation of evidence. And except for the exhibits, I don't think of any. Mr. Porter?

MR. PORTER: No, Your Honor. I think the only one that's pending on behalf of the state is the submission of State's Exhibit Number 153 and then the issue of demonstrative evidence.

THE COURT: Yeah. Mr. Moore, anything else that you think of?

MR. MOORE: With the exception of the exhibits, Your Honor, I can't think of anything that hasn't been ruled on.

THE COURT: Okay. Are there any other motions or objections you wish to make, Mr. Moore, that have not been heretofore made or any tenders of proof that have not been made?

MR. MOORE: Your Honor, there is one matter that we'd like to bring to the Court's attention. Ms. Rogan will address that.

MS. ROGAN: I would like to put on the record that it's our position that during the questioning of the DNA experts that we presented and then again today with Mr. Kushner -- Dr. Kushner, the state made what I believe was a burden shifting implication, which is that the defense witnesses had an obligation to present their conflicting findings about the DNA to the state. I don't believe the defendant ever has an obligation to present evidence to the state.

THE COURT: That was a question this morning as to whether Dr. Shapiro had provided his information or whatever to the state's rebuttal witness?

MS. ROGAN: That's correct. There was also similar questioning of Dr. Choi as to whether he reported his findings to the GBI. I think the implication there is that there is some obligation on the defendant to do so, which of course there is none under the law, and I think that was objectionable.

THE COURT: So what is your motion or objection?

MS. ROGAN: My motion would be for the jury to be instructed, as I presume it will be anyway, that there is no such obligation to the state. We did not reduce this request to writing, but my request would be that there be particular attention drawn to that particular issue, that there's no obligation on the part of an expert retained by the defense to provide information about his findings to the state.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, we believe that it goes to the bias and credibility of the witness; and, therefore, we don't think it's burden shifting to ask that question, and we would object to any further emphasis or any specialized charge regarding an expert's obligation.

THE COURT: Well, I'm inclined to agree with Mr. Porter. I understand what you're saying, but I don't see that as burden shifting. I just don't see that that's burden shifting in nature. And I will, as a matter of routine, give the standard charge on the presumption of innocence and burden of proof, which I think, as I recall, includes a specific reference that the burden never shifts to the defendant or language to that effect. It seems to me that addresses that issue, so that motion or request is denied.

Anything else with respect to any motions or objections or any tenders of proof aside from the issue of the exhibits?

MS. ROGAN: Yes. Just an issue as to an exhibit.

THE COURT: All of the exhibits, we'll just reserve altogether and come back to those.

MS. ROGAN: Okay. Nothing else.

THE COURT: All right. And the next portion is and my question is directed to both parties as to whether or not you have reviewed Part 2, Parts I through Q of the checklist and are prepared to raise those issues in a timely manner. That includes the issues of -- that includes I, the reopening of the evidence. Any issue as to any reopening of the evidence for anything?

MR. PORTER: I don't believe that's applicable in this case, Your Honor. The state makes no request to reopen the evidence.

THE COURT: Ms. Rogan?

MS. ROGAN: No, Your Honor.

THE COURT: All right. Everybody reviewed those portions, those enumerated items in the closing arguments?

MR. PORTER: Yes, Your Honor.

THE COURT: Ms. Rogan?

MS. ROGAN: Yes. Yes.

THE COURT: And also the issue -- those with respect to the charge of the Court as to any requests, lesser includeds, presumptions, mandatory -- well, presumptions, confessions, admissions, and so on? Mr. Porter?

MR. PORTER: Your Honor, I've reviewed the checklist, and, of course, once the Court rules on the requests to charge, that issue will be closed.

THE COURT: Okay. Ms. Rogan?

MS. ROGAN: I've reviewed it also, Your Honor.

THE COURT: All right. Also on the conduct of the judge, conduct of counsel, conduct of the jurors, and the verdict. Everybody -- have you reviewed those, Mr. Porter?

MR. PORTER: Yes, sir.

THE COURT: Ms. Rogan?

MS. ROGAN: Yes.

THE COURT: Any issue on any of those at this time?

MS. ROGAN: Not at this time.

THE COURT: Mr. Porter?

MR. PORTER: No, Your Honor, not on behalf of the state.

THE COURT: Ms. Rogan and Mr. Moore, you're reminded and advised that any objections to the state's closing arguments will be waived if not raised as soon as the grounds for any such objection arise, unless that issue is reserved by express permission of the Court.

MS. ROGAN: Well, Your Honor, that is something I wanted to bring up. It has been our policy to the extent possible not to interrupt the state in the presentation of its case, and certainly at closing is a particularly inopportune time for the defense to appear to be trying to interfere with the state's presentation of closing argument.

On the other hand, to the extent there is something objectionable, we would request permission to make our objections at the end of the closing argument rather than interrupting Mr. Porter if there's anything objectionable.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, unlike other cases, in this case the arguments will be taken down. I think that Code -- or that part of the checklist is more appropriate and was contemplated when arguments were not taken down as a matter of course and would require perfection of the record right at that point.

The state has no objection to reserving any -- the defense reserving any objections to the close. However I think that would be the appropriate time. I think after that, it would be waived.

THE COURT: Well, I guess my question is -- I guess I was thinking in the context as well of if there is anything objectionable, usually an argument which includes objectionable material is usually followed immediately after by more objectionable material, and it doesn't tend to be an isolated reference, but tends to be a vein of argument, it seems to me, in which either side may want to raise it at the point. If you want to do it by way of a bench conference, then perhaps that would be a way to do it, although I would suggest interruptions ought to be clearly necessitated because everybody is entitled to argue their case without being interrupted during the course of it, unless there's a manifest reason for it. Mr. Porter?

MR. PORTER: Your Honor, I can say that I'm aware on behalf of the state that argument is one of the pitfalls that the appellate courts focus on, and I'm certainly not prepared to endanger a case of this magnitude intentionally. I have given arguments in these cases in the past, and I think I know the boundary lines.

THE COURT: Well, I know it's always tempting on either side to point out what witnesses didn't appear and who didn't testify and all those kinds of things, and I guess I always hold my breath in the middle of all those kinds of things as to where it's going. But, obviously, there's a lot riding on it, and I don't think anybody wants to have to do it all over again, so -- all right. Anything else in that regard, Ms. Rogan?

MS. ROGAN: Well, what is the direction of the Court in terms of contemporaneous objections versus waiting till the end of the argument?

THE COURT: Well, I think if it's clear an objection ought to be made, if it's improper argument, then it seems to me -- it's just my feeling that all of it is better done and everybody's interest is best served if the matter is cured at the time as opposed to waiting till the end when somebody is through and going back and trying to address the jury or give curative instructions for areas where thirty minutes ago one of the attorneys made an improper argument, and 'in that regard I'm giving you the direction' or whatever. Plus, instead of having three areas of improper argument, it might be limited to one, it seems to me, if the objections are made when it occurs.

Maybe I'm missing something, but I don't see the advantage of waiting till the end of two hours worth of summation to give them a curative instruction. You're doing the argument. If you'd rather do it at the end, wait till the end, then okay.

What's your preference, Mr. Porter?

MR. PORTER: I don't have a preference, Your Honor. It's been my normal course of business that I --

THE COURT: Don't give any improper argument?

MR. PORTER: Well, no. No, I'm not saying that, but it's been my normal course of business as far as defense attorneys are concerned that there are some fairly clearly defined limitations, and beyond that, I'm pretty laissez faire about argument.

THE COURT: Okay. Ms. Rogan?

MS. ROGAN: Well, obviously we have an interest in protecting our record and that's the basis for my concern.

THE COURT: My suggestion would be to do it when it occurs, and if there's a problem, head it off early either way. I think that would be the easiest way to do it and the best way to do it, so let's do that.

Mr. Chapel, let me ask you, do you have -- or give you the opportunity to state any objections that you may have to your defense counsel, Mr. Moore, Ms. Rogan, or to the manner that they have conducted or are conducting your defense.

THE DEFENDANT, MR. CHAPEL: Not being a lawyer, Judge, I just have to go on their word.

THE COURT: All right. Let's skip to the end for a moment and that is as to the verdict form. I've got several proposed verdict forms, and let me give you a copy. There's two sets of them. [Presenting]

THE COURT: Let's just take a quick look at that and see if that's a matter that we can agree on.

The first two pages is a form that sets out Count 1, murder, and then 'not guilty' or 'guilty' to check. Similarly with Count 2, check the line to the left. Count 3 the same way, and Count 4 the same way. Which is pretty straightforward. There's two pages.

The next form is one which has Count 1, murder, and then 'not guilty' or 'guilty' to the right. I don't like that form because the blocks are close together and if you get a juror that makes big X's or something, we may have a construction problem. So that one I don't care for.

The third form is one that's similar in form. It just simply says as to Count 1, murder, for example, 'not guilty' or 'guilty' with a place to check as opposed to a line, which seems to me that the first and the third both appear to be basically acceptable, from my perspective.

Does anybody have any strong feelings one way or the other about them or about another kind of form?

MS. ROGAN: We prefer number one, Your Honor.

MR. PORTER: I think the state does, too, Your Honor.

THE COURT: Okay. We'll use number one. I may shift that -- we're going to have two pages -- shift Count 4 so that all of Count 4 goes on the last page.

MS. ROGAN: That would be sensible.

THE COURT: I'd like to go through the pattern charges and charges I contemplate using, and then let's come back to the exhibits. We'll save that for last.

Also, I think somewhere along there, after we get the general charge out of the way, we'll and maybe take a look at the exhibits, I want to go back and finish putting together -- take a quick look at what I've got put together for the offenses themselves, take a short recess, and then come back to the substantive law as to the definition of the crimes themselves and do that, I think, last.

I'm going to use the pattern charge except where I have -- well, it's still the pattern charge, but several of them have the '95 updates with some relatively minor changes, and we'll go through those.

What I'd like to do is after we go through these and we sort out what's going to be charged is then make those changes on the computer and get all that put together sometime this afternoon and then either deliver that to Mr. Porter's office and you can pass a copy on or, Ms. Rogan, y'all can pick up a copy, or we'll put one in the bailiff's box out here or someplace this afternoon so everybody will have a copy tonight and can take a look at it tonight, and then if there's any disagreements as to its final form or any particular language in it, give everybody an opportunity to sit down and sift through it tonight, and we'll do a quick charge in the morning or a conference in the morning to iron that out, if need be.

All right. What I contemplate telling them in the pattern charge is that the defendant has been indicted by the grand jury for the four indicted offenses, read the indictment to them, tell them the date the indictment was returned into court, tell them he's entered a plea of not guilty to this and this makes the issue which they've been selected, sworn, and impaneled to try.

I'll tell them that the fact that the defendant has been indicted is no evidence of guilt, they shouldn't consider the indictment as evidence or implication of guilt, neither is the plea of not guilty to be considered as evidence. Then I'll charge them on presumption of innocence, burden of proof, and reasonable doubt, all out of the pattern charge, which will not include the use of the words 'moral and reasonable certainty' that was disapproved in Vance v. State, 262 Georgia 236.

I'll charge them on credibility of witnesses out of the pattern charge. I'll charge them on conflicts in testimony out of the pattern charge. Tell them they'll determine the law and the facts. Charge them on definition of a crime, charge them on criminal intent, which will include the portion that says 'criminal intent does not mean an intention to violate the law or to violate a penal statute but means simply to intend to commit the act which is prohibited by statute.' I'll tell them there's no presumption of criminal intent. We don't have any transferred intent.

I'll charge them on evidence. I'll charge them on direct and circumstantial evidence including that portion that says 'to warrant a conviction on circumstantial evidence the proven facts must not only be consistent with the theory of guilt but must exclude every other reasonable theory other than the guilt of the accused.'

MR. PORTER: That portion of the charge the state objects to.

THE COURT: And why is that?

MR. PORTER: Your Honor, I don't have the cite right in front of me, but the courts have recently held that that applies only in cases where there is no direct evidence. In this case, the state would submit there is direct evidence. That applies only in cases that are relying only on circumstantial evidence.

THE COURT: My recollection of the law is specifically the contrary. As a matter of fact, there's a -- it was out of the -- well, I've got the new sheet here. I can't remember. It was the Brown case, I guess, as I recall. It seems to me it was the Brown case that was historically the case that required or that said, well, if any element of the offense is proved by direct evidence, then you don't have to give a charge on circumstantial evidence excluding every other reasonable hypothesis and so on.

Then there was a case, and I can't remember the name of it, but a footnote in the case strongly suggested that if you -- basically, the essence of it was that if you charge -- if you tell the jury what direct and circumstantial evidence is, then this may well be a required charge. That was in the footnote of the case. That's been seven or eight years ago, and every jury I've charged since then I have given the circumstantial evidence charge fully.

As a matter of fact, there was a fairly recent case, it seems to me, that was about four or five months ago on a felony case somewhere in Georgia in which the trial court did not give the full charge, and the appellate court in that opinion basically excoriated the judge and said, 'what do we have to say for everybody to understand that if you're going to charge on circumstantial evidence, that charge is part of it.' I mean, it was a very direct, to say the least, language in the opinion that basically said, you know, everybody ought to know this now who's charging a jury and every judge in the state ought to.

I think the line of those cases, I think, say -- the essence of it is that if you charge -- if you tell the jury this is what direct evidence is and this is what circumstantial evidence is, I think it is absolutely reversible error not to include that in it. That's the cases as I understand it. Maybe there's cases I'm not aware of, but that's the law as I understand it.

MR. PORTER: Your Honor, I don't have the cases in front of me. Perhaps the best thing to do is to preserve that. If I need to bring it up tomorrow morning, I'll have the case.

THE COURT: That would be fine.

MR. MOORE: Your Honor, even -- okay, I'm sorry.

MS. ROGAN: I have some cases. Mims v. State may be the one you're referring to, Judge. It's a 1994 case from the Supreme Court. I don't have the Georgia Supreme Court cite. I have the Southeast Second cite, 443.

THE COURT: It's 264 Georgia 271. That's the Mims case. That's not the case that basically changed the flow. There was a footnote in the case that basically said -- and I guess my conclusion is how would you charge the jury on evidence if you don't charge them on circumstantial evidence and direct evidence. I mean, that's the pattern charge. So I don't know how you would not charge them on direct and circumstantial evidence, and those cases say if you tell them about what those are, you tell them all of it.

So I'll be glad to hear any cases to the contrary if there's something I'm not aware of, which may well be the case. But the law, as I've indicated, that's the law as I understand it to be. So barring a controlling case to the contrary, I'll charge it as I've indicated.

I'll charge on expert witness out of the pattern charge.

Let me look at -- what about alibi? Is that a charge that ought to be included? It seems to me that it ought to be, but I'll just ask if you want it.

MR. PORTER: Your Honor, the defense has requested it as one of theirs. There has been some evidence of alibi.

THE COURT: I think so.

MR. PORTER: The state can't disagree that it is at least part of the defense.

THE COURT: I think there's sufficient evidence in the record that that would be an authorized charge. Ms. Rogan?

MS. ROGAN: Did we request an alibi charge?

THE COURT: I don't believe you requested one.

MS. ROGAN: I don't think we did.

MR. PORTER: Maybe I'm just anticipating it.

THE COURT: Well, I don't see one requested. Do you want a charge on alibi?

MS. ROGAN: Well, just a second.

[Pause in proceedings while counsel conferred off the record.]

MS. ROGAN: I don't think -- we are not arguing alibi in this case, Your Honor, and my recollection of the charge is that it almost places the burden on the defendant to have proved an alibi, which we did not endeavor to do in this case, so it is not our request at this time for an alibi charge.

THE COURT: Do you object to one being given?

MS. ROGAN: That's a different issue.

THE COURT: I'm going to give it unless you object to it.

MS. ROGAN: Could we have until the morning for that or maybe have a recess? I don't have that --

THE COURT: We'll take a recess and come back to it, but I'm going to need to put this -- because we're going to need to basically put that charge together and then minimize any changes in the morning.

MS. ROGAN: All right.

THE COURT: Because we're going to have to have copies for our alternates and our jurors and the parties themselves and all that.

MS. ROGAN: If we could check on that this afternoon, we'll have an answer for you.

THE COURT: We'll come back to that this afternoon, then. Do you have any particular feelings one way or the other about alibi, Mr. Porter?

MR. PORTER: Well, Your Honor, I think that when the defendant says he left at ten o'clock and it's at least tentatively supported by -- they put up four witnesses, and the argument was 'we didn't leave till ten o'clock,' I think that presents evidence of an alibi.

THE COURT: The murder was sometime between nine and ten. I think so, too. I think the evidence raises the issue of alibi, and I'm not sure it wouldn't be reversible error to not give it. Although if you object to it and it's not given, then I guess that takes care of that, it seems to me.

MS. ROGAN: We'll have an answer for you.

MR. PORTER: Your Honor, in order to protect the record in that case, I think it would require a specific waiver by the defendant himself of that charge.

THE COURT: Well, that's a matter we'll come back to because I think the evidence authorizes it, and I'll give it, you know, unless you don't want it specifically. I may give it anyway. I think the evidence authorizes it.

Bare suspicion, I'll give that out of the pattern charge. What about the issue of -- we haven't had any request, I don't think, on the two theories, but I never give that.

MR. PORTER: Your Honor, if I may. I may be confusing -- and I think the Court may be right, going back to my objection to circumstantial evidence, the general objection was to the two theories charge, and I think that has been specifically disapproved.

THE COURT: That's disapproved where the full charge on circumstantial evidence is given.

MR. PORTER: Your Honor, in that case, the state has no objection to the 'exclude every reasonable theory.'

THE COURT: I think these days it is patently reversible error not to give it all.

MR. PORTER: I think my memory was as to the two theories charge, and I'll withdraw the objection.

THE COURT: Okay. All right. That will take care of that. Bare suspicion -- what about mere presence?

MR. PORTER: Your Honor, I don't think that's tailored to the evidence. He denies even mere presence.

THE COURT: I usually to give that. That's usually everybody wants that. Well, I guess we've got evidence of that, but I suppose in this case, then, all right. I won't give mere presence.

What about the presumption and inference that every person is presumed to be of sound mind, discretion, and so on? Do you want that or not, Ms. Rogan?

MS. ROGAN: No, Your Honor.

THE COURT: I seldom give it anymore, but it's still a legitimate charge, I think. All right. You don't want it?

MS. ROGAN: No.

THE COURT: I won't give it. We don't have any issue of similars or defendant's failure to testify. Also, we don't have any issue as far as prior difficulties between the parties either, do we?

MR. PORTER: No, Your Honor.

MS. ROGAN: No, Your Honor.

THE COURT: Impeachment. I believe you requested that, didn't you, Mr. Moore?

MS. ROGAN: We did, Your Honor.

THE COURT: Well, let's see.

MR. PORTER: Michael Thompson, Your Honor, was confronted with the -- well, a lot of the witnesses --

THE COURT: We've got a number of witnesses where the -- that at the very least, there were inconsistencies by virtue of prior statements or documents or depositions or whatever, so I think impeachment would be appropriate, and I'll charge that except we don't have any proof of general bad character, any impeachment for that, I don't think.

MS. ROGAN: No.

THE COURT: So I'll strike that portion out of it.

MS. ROGAN: That's correct.

THE COURT: We don't have any witness who's testified -- any impeachment by virtue of a crime involving moral turpitude that I recall.

MR. PORTER: Or a felony conviction.

THE COURT: Well, that would be within the crime involving moral turpitude. So that would lead to impeached by disproving the facts to which the witness testified or by proof of contradictory statements previously made by the witness and so on. That's the two methods out of the four, I think, that we've got. Okay. I'll charge on impeachment. I'll include all that which talks about prior inconsistent statements and all that.

What about the statement of the defendant? Are you requesting a charge on statements? I guess the charge on statements normally contemplates admissions and confessions. In this case we have literally a statement but not, at least by what was said, the words themselves constituting any kind of admission or statement. So do we have the circumstances where a charge on statements is appropriate or not, Ms. Rogan?

MS. ROGAN: Well, we certainly don't view the statement that was presented as being in the nature of an admission or a confession. On the other hand, we did present evidence to encourage the jury to view the voluntariness of that statement in their evaluation of what it's worth, and I would wager a guess that Mr. Porter will be making some arguments about the statement in an incriminating fashion, so under those circumstances we would request such a charge.

THE COURT: Mr. Porter?

MR. PORTER: I think the charge would be appropriate, Your Honor.

THE COURT: All right. I'll give that in its entirety. That will talk about Miranda, constitutional rights, burden of proof, conditions precedent, credibility, corroboration. I'll take a look and see if any of that appears to be inappropriate, but, otherwise, unless it's clearly inappropriate, then I'll give that charge in its entirety.

MR. DAVIS: Your Honor, we would indicate that we think paragraph three of that charge would be inappropriate, and I did not hear the Court say that you would give paragraph four.

THE COURT: Yeah. Paragraph three, after exercising -- yeah. That portion I'll strike since that's not adjusted to the facts of the case. Paragraph -- let's see. What was four? Voluntariness. I think paragraph four would be appropriate.

MR. DAVIS: I assumed the Court would give it. I just didn't hear it mentioned.

THE COURT: Yeah. Paragraph three I'll strike. Well, let's see. While we're talking about it, let's just look. Custodial statement -- that part, custodial statement, has been eliminated. Paragraph one has been deleted from the new pattern charge. Paragraph two is in. I'll give paragraph two, and I'll give paragraph four, I'll give paragraph five, and I think paragraph six, I believe. I'll give paragraph seven.

MR. PORTER: I don't think eight is applicable.

THE COURT: What do you think about paragraph eight, corroboration? 'A statement unsupported by other evidence is not sufficient to justify a conviction.' I mean, this is a statement. I guess we'll tell them if you find that a statement has been made --

MR. PORTER: But this does not fit within the definition of a confession, Your Honor. A confession is an admission of each and every element of the crime without legal justification, and that principle of law only applies to confessions themselves, and so I --

THE COURT: Well, that's the problem with giving the charge with the circumstances we have here. I mean, really there are no incriminating comments, you know, and the statement -- nowhere in the charge is there a charge on confessions or admissions. There's a charge on statements with inference that, well, it's an admission or a confession, that's what the statement means. So if we have a statement which authorizes the charge, then why would it not include paragraph eight as well, corroboration? It's up to the jury to find whether there was a statement made anyway or not.

MR. PORTER: Your Honor, I think the only analogy I could give is if -- that charge would not be appropriate in a case where a defendant gave a statement that was perhaps a partial admission or presented a justification. It would only be appropriate in a case where the defendant gave a complete confession to the crime because it sets out a standard of law as applicable only in those cases. It is not applicable in cases where there is a partial statement or a partial explanation or a partial admission, and I think that to put that in under these circumstances would be inapplicable to the facts of this case and would be somewhat misleading to the jury.

THE COURT: I don't think statement is defined in this charge anyplace anyway. What is a statement? You know, it doesn't say confession and it doesn't say admission. It never really says what it is anywhere in the charge, I don't think.

MR. PORTER: Your Honor, I think there's another problem with this is that probably in looking through the language, the Court should be careful and use the word 'statement' wherever 'confession' and 'admission' is used in the charge --

THE COURT: It's not. Confession and admission is not in the charge book.

MR. PORTER: Except in paragraph eight.

THE COURT: I don't think it's in paragraph eight, is it? I mean, I think if you look for confessions and admissions, you won't find them in the charge book in the language of the charges.

MR. PORTER: No, sir, you're right. You're right. It says just a statement.

THE COURT: Yeah. You don't see anything except 'statement,' I mean, with the inference being confession or admission, but it's never called that, because, I guess, of the burden shifting nature of it. I guess it would be a comment by the Court that there's been a confession or admission, I suppose. What about paragraph eight, Ms. Rogan? What do you think?

MS. ROGAN: Well, Your Honor, unfortunately I do not have the pattern charge in front of me. If I could --

[Pause]

MS. ROGAN: I tend to agree with the state on this, Your Honor, that it's somewhat misleading to the jury. It almost by implication suggests that the statement is of an incriminating nature.

THE COURT: Well, it is. I mean, that's the intent of it, we've got an incriminating comment here either by way of admission or confession or something along those lines. I mean, I think that's clearly what 'statement' means. You just don't call it that. That was my initial question is, do we have a statement as contemplated by this charge?

MS. ROGAN: Well, we do have a statement, and there are other aspects of the statement in terms of the voluntariness and those other issues that I think are important to --

THE COURT: But is it an admission? I mean, that's the whole point.

MS. ROGAN: But this sentence 'if you find there was a statement made by the defendant supported by other evidence,' it's inconsistent under the circumstances of this case to invite the jury to convict based on the statement since it wasn't an admission or a confession.

THE COURT: Well, but I mean -- I think that's what we're talking about, statement meaning an incriminating comment. That was my initial question. Is it appropriate to charge or not with the circumstances --

MS. ROGAN: Right. I understand that.

THE COURT: We have circumstances here, the essence of it is, 'I didn't do it,' and consistently that's the nature of the interrogation response, 'I didn't do it.' So that was my first -- my initial question is, well, if it's a denial throughout, is that a statement?

MS. ROGAN: Right. And I responded that to the extent that I believe the state is going to try and characterize some of the comments as incriminating, I thought it was appropriate to have the jury instructed as to how to evaluate the circumstances under which the statement was made.

THE COURT: Well, the charge is going to be the charge. Whether it's a total confession, admission, a somewhat incriminating remark, or whatever, you know, a statement is going to include all those, it seems to me, and the charge is going to be the same for all of them.

MS. ROGAN: Well, I think paragraph eight is unnecessary, but we will leave it to the Court.

THE COURT: I mean, for example, paragraph nine -- the title of paragraph nine is 'confession by one in joint trial.' But if you look at the charge, you don't see 'confession' anyplace in the language of the charge.

MS. ROGAN: That's correct.

THE COURT: I don't think you'll find statement -- confession or admission anyplace in the charge, period.

MS. ROGAN: No. I'm not arguing that. I agree with you.

THE COURT: For example, paragraph eight provides: Proof beyond a reasonable doubt that the crime has been committed may but does not necessarily constitute supporting evidence of the defendant's statement, if any. The law does not affix the amount of supporting evidence necessary. You must determine whether or not other evidence sufficiently supports a defendant's statement so as to justify a conviction.

MR. PORTER: Your Honor, I think in light of all concerned, I think any charge on statement at this point would -- I think it would be so difficult to fashion a charge that any statement -- I think that's a matter more for argument than charge of the Court.

MS. ROGAN: I think I might agree with that.

MR. PORTER: I don't think any of the charge on statements, admissions, or confessions, or however it's entitled, should be given. I think it would be misleading to the jury both from the state's perspective and from the defense perspective. And I think that that's a matter for argument because in the truth of the matter -- the truth of the matter is if they had brought Mr. Chapel in, put him under hot lights and beat him with rubber hoses, and he continued to deny that he did it, then that wouldn't fit under the -- that might not fit under the admissions and confessions portion in any event.

THE COURT: Well, my inclination is to give it if the defendant wants it, but if I give it, give it in its entirety including paragraph eight.

MS. ROGAN: All right. Along with the alibi, could we -- at a recess I'll go and consult the charge book and we'll get back to it this afternoon.

THE COURT: That'll be fine. All right. We've got the issue of good character. I'll give the pattern charge on good character. What about identification? Did you request a charge on --

MS. ROGAN: We did, yes. That was request number one.

THE COURT: Okay. I believe that's been --

MR. PORTER: Your Honor, I believe that defense request number one has been modified in the most recent --

THE COURT: I thought identification was one that had been changed, but apparently not. Identification is still the 7/91 revision. Is there any disagreement that identification ought to be included?

MR. PORTER: No, Your Honor, there's no disagreement.

THE COURT: I'll give that out of the pattern charge. The pattern charge includes the language that the defendant, beyond a reasonable doubt, was the perpetrator of the alleged crime or that the defendant was a party to it. We don't have any evidence with respect to any party, so I'll strike those kinds of parentheticals.

Okay. I believe we're all in agreement that there are no lessers.

MS. ROGAN: Yes.

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

THE COURT: I did not note any other special instructions. Are there any other issues that we've not addressed? I believe I've indicated the pattern charge -- I'm going to give the pattern charge which includes the ten requests by the defendant.

MS. ROGAN: I just wanted to inquire, Your Honor, and again I'm sorry I don't have the pattern charge book in front of me. We had a discussion with regard to the preliminary charge and this matter with the reasonable doubt charge. The language that you were originally giving, which I believe you indicated was in the pattern charge book, had to do with whether there was a duty to convict, and upon our request you modified that to 'would be authorized to convict,' which is our requested language in number eight.

THE COURT: Okay.

MS. ROGAN: And I wasn't clear and you didn't specify which language you were going to use in the final charge.

THE COURT: Well, the language in the pattern charge is as follows: If after giving consideration to all the facts and circumstances of this case your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law and you should acquit the defendant, but if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant.

MS. ROGAN: That is precisely what we're requesting.

THE COURT: The pattern charge uses the word 'authorized' in the charge to the jury at the end, but --

MS. ROGAN: Not in the preliminary.

THE COURT: --but did not -- as a matter of fact, even the updated preliminary charge did not include 'authorized,' yes, so it's in the pattern charge at the end.

MS. ROGAN: That's fine.

THE COURT: Okay. Are there any other areas like identification or any of that sort of thing, bare suspicion, that I've overlooked that we need to address, Mr. Porter?

MR. PORTER: Your Honor, no none from the state other than the alibi and the voluntariness, which the defense will get back to you on.

THE COURT: Okay.

MR. PORTER: One thing that the state addressed in its requests to charge numbered one and two has to do with definitions of an armed robbery, the statutory definition of armed robbery.

THE COURT: Let's hold that until after we recess, and we come back to the statutory provisions of the offenses themselves.

MR. PORTER: Yes, sir.

THE COURT: And we'll work that in with that.

Insofar as your requests to charge, Ms. Rogan and Mr. Moore, your request number one on identification is going to be refused as included. I will use the pattern charge, and that's going to include your request number one. If not verbatim, I think it will be a pretty close inclusion.

Your request number two on good character is refused as included. I'll be giving the pattern charge which I think fairly states your request.

Your request number three on expert is refused as included. If it's not verbatim, it will be close with the pattern charge.

Your number four on evidence may be identical. I don't know. Is that straight out of the pattern charge or not?

MR. MOORE: If it's typed correctly by my secretary, it is.

THE COURT: It's substantially the pattern charge, if not exactly. That's refused as included. I will use the pattern charge on direct and circumstantial evidence and the full charge as to circumstantial evidence.

Defendant's number five, circumstantial evidence, that's refused as included. I think I'll be giving that exactly.

Your number six which is a duplicate of number five --

MS. ROGAN: Withdrawn.

THE COURT: Okay. Your number seven which is bare suspicion, that's refused as included. That's verbatim out of the pattern charge. I'll be giving that. I'll be giving the pattern charge. If there's any differences, I'll be giving the pattern charge. If not, then it will be given.

Your number eight, presumption of innocence, burden of proof, reasonable doubt, that is in substance the pattern charge. That's refused as included. I'll be giving verbatim the pattern charge, and if there's any differences in them, then I'll be giving the pattern charge instead.

And your number nine, intent, is refused as included. I'm not giving that. I'll be giving a charge that will be close to it. That looks like the pattern charge. If there's any difference there, I don't see it. But, at any rate, that's refused as included because I'm going to be giving the pattern charge on that.

Your number ten on impeachment is refused as included. I'll be giving that out of the pattern charge. You have one portion that says on the second page 'however, if a witness shall swear falsely and knowingly falsely, then that witness's testimony shall be disregarded entirely unless corroborated by circumstances of other unimpeached evidence.' I believe that's not in the pattern charge, but your charge I'll give in substance out of the pattern charge, which will be mighty close to what you're asking for.

We'll come back to your number one and two, Mr. Porter, when we cover the specific statutes of Counts 1 through 4.

MR. PORTER: Yes, sir.

THE COURT: Okay. That leaves us with coming back, then, to identification and the statements and also the specific offenses.

MR. PORTER: Alibi and voluntariness, Your Honor, not identification.

THE COURT: Oh, okay. Yeah. Okay. You're right. So we'll come back to those shortly.

Let's look at the -- let's just talk for a moment about the exhibits, about the demonstrative evidence and all that. There's a number of exhibits where we've got documents and drawings or sketches and those kinds of things, some of them done in the courtroom while witnesses were testifying that I believe you have indicated an objection to going out with all of the -- admitted for the record and going out with the jury, Mr. Porter. And I guess we've got on both sides a considerable number of those. I'd like to just talk for a moment about what's the law in that regard.

We've done a lot of looking in the last week or so at that specific issue that was raised early, and I had a lot of difficulty finding cases that really say much. They kind of talk around it and talk in general kind of language that won't apply to a specific case. I just don't find any cases that are a lot of help.

MR. PORTER: Your Honor, I think probably the most succinct summary of law is in the case that's cited last in the state's memo of law, which is First National Bank of Atlanta v. First National Bank of Tucker at 158 App. 843 in its last quote: 'The question of whether a particular exhibit may be taken by the jury is widely viewed as a subject to the discretionary control of the trial court.'

I think that's the bottom line when you really get down to it, but I think that what the Court should consider is the cases that are cited. It seems to me at least, from a reading of the cases, that the distinction is twofold.

Number one, if it would unduly emphasize the testimony of any one particular witness over another or act as a continuing witness, then it should be excluded. And the second thing is if it is the basis of an expert's summary, then it can be excluded, the voluminous records summary exception, because as the Court instructed the jury when the statement was coming in, it is the statement, not the transcript, which is evidence, and I think that's an analogous situation here.

I think there are a number of demonstrative exhibits that have been used both by the state and the defense almost interchangeably that are probably technically excludable and it would not be error. However, I think it's those exhibits which constitute continuing testimony which the state would object to. And just because I happen to see one right in front of me, the financial tables that were made by Mr. Ratner, I think, would be demonstrative evidence of the continuing testimony type which should not go back to the jury. The jury would be authorized to come back and review those, but I don't think they should go back into the jury room.

The aerial photograph, which was stipulated into evidence, or the precinct map or the map of Buford or the diagram of Peachtree Industrial Boulevard or one of the diagrams of the muffler shop, I think, would be of some assistance to the jury, and I don't think that they would be testimony of a continuing nature which would unduly emphasize the testimony of one witness over another. I think that's sort of the dividing line that we have.

THE COURT: Ms. Rogan? Go ahead, Mr. Porter. I didn't mean to cut you off, Mr. Porter. Were you through?

MR. PORTER: Well, for instance, one of the objectionable exhibits that we would say should not go out to the jury are the overlays that were made when the witnesses were asked to position the car and draw. And I have a technical objection as well as a legal objection.

The legal objection is that that would be a continuing witness. That was in front of the jury, it demonstrated the witness's testimony, the jury saw it. But to send it back to the jury room overly emphasizes the testimony of those witnesses.

The technical objection is that in looking at those, there's no reference point to accurately put them back. They were put up, they were varying lengths, there's no set reference point by which they can be placed back by the jury into the position in which the jury saw them, and so I have a technical objection to them going to the jury and I have a -- I think this fits clearly within the continuing witness proposition that the state is arguing.

THE COURT: Ms. Rogan?

MS. ROGAN: Mr. Moore is going to handle this.

MR. MOORE: Your Honor, it seems to me that -- I think I probably agree with Mr. Porter. In most cases, it's within the discretion of the judge what's going to go to the jury, and I think that the Court has to take into consideration whether it's helpful to the jury or not and whether or not, if it is, that it should go out to the jury because the cases seem to go both ways. They're not real clear about exactly what should go and what shouldn't.

THE COURT: I think we can all agree on that.

MR. MOORE: And as far as like the old days, we believe that those fit almost exactly the size of that board and that they might be off a matter of a thirty-second of an inch or something, but we don't think that given the varying positions that the witnesses placed the cars, that we're -- we're down to that degree of accuracy. We never contended that any witness, I don't think, they were doing scale drawings when they were making those marks on there, and we believe that those should go out to the jury.

We believe that Mr. Porter is going to want his diagrams which he put the cars on to go out that's magnetic and have the jury to place the cars where they were. And we think they stand on the same footing, Your Honor. If one goes out, then the other one probably should.

THE COURT: Well, it seems to me that commonly -- I guess the easy place to apply the rule is in a civil case where you've got depositions used during the course of trials, and obviously you can't stand up and read that in the closing argument and you can't send it in the jury room, or confessions, for example, in criminal cases, you know. That never goes to the jury room. Or somebody's statements you may use for impeachment, they don't go back, those kinds of things. So it seems to me it's fairly easy to apply the rule in that circumstance.

But I'll pose the question: What if you have, for example, an exhibit like a diagram or an aerial map or a plat which is clearly admissible during the course of trial, but during the course of trial somebody's witness or witnesses take pen in hand and they put X's on it where the spot occurred or arrows on it or those kinds of things. Then what does that do insofar as that demonstrative aid? Does that then say that you now have continuing testimony because one of the witnesses marked on it during the course of testimony and it should not go out, or do you say it doesn't matter, that's just part of the evidence to aid the jury and it goes out? What do you think, Mr. Porter?

MR. PORTER: Well, Your Honor, I would refer the Court to the cases in the first page of our memo. In fact, that is exactly the situation. There was a multi-page diagram that was not allowed. There was an illustration drawn by a witness that was not allowed.

In McClure v. State, which is a 1982 case, the court held that it was not error to exclude demonstrative evidence in the form of an exhibit containing dates and figures from the jury room. The exhibit could be displayed for purposes of argument only. The court went on to say that charts and diagrams made and used during the course of the trial for the purpose of illustrating testimony or contentions but are excluded as being a continuing witness in the jury room.

I think that once the witness has used it to illustrate his testimony, that it can be used as -- it becomes demonstrative evidence, even though it might have initially been admitted for some other purpose. I think once the witness -- I think there might be an exception if the witness were to take a pointer and point to it to emphasize certain parts, but I think once it's been altered, so to speak, then I think it becomes a continuing witness, and we would continue our objection.

I think the overlays are really the only part which we strongly object to, and I think Mr. Moore's analogy regarding the magnetic part is a little bit different, because if we send back the magnetic diagram of the muffler shop, the jurors would be authorized to place the vehicles wherever their recollection of the testimony put it. I think in that case that's a significantly different issue than where six or seven overlays go back that are dated and signed by witnesses saying 'this is where I remember the car to be.'

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, our position is that they're simply the same. They're two different ways of doing the same thing, and we would say if one goes back, the other one should go back.

THE COURT: Well, let me pose a question, Mr. Porter. For example, with the raincoat, I presume you want that to go out with the jury.

MR. PORTER: Your Honor, I -- yes. It's been tendered into evidence. I don't think it fits into this category.

THE COURT: Well, let me pose a question with respect to the raincoat, for example. You've got, as I recall, three or more of the blue circles on it --

MR. PORTER: Yes, sir.

THE COURT: -- where the witness testified and said, 'now, this is where I drew the blue circles for the spots where I did the tests.' And Kelly Fite used a graphite pen and circled a whole bunch of points to put a pattern up there and said, 'well, these are where I circled the spots to look at what the pattern was.' What does it matter whether a witness has drawn the circles before they get to the courtroom or they draw them while they're in the courtroom? I think, for example, with evidence like that, why would that be any different from somebody marking on a diagram and saying, 'well, here's the coat and before I came in I circled these and we'll take a look at these.' I mean, I don't draw any distinction between circling them before you get to the courtroom or circling them when you get into the courtroom. And if you circle them and then that stops them from coming in because that's continuing testimony, what's the difference?

MR. PORTER: That -- I don't make a distinction between circling before or after or during or whenever. That's not the distinction that I'm making. The distinction that I'm making is that the overlays, to use the example that we are specifically objecting to, is an emphasis on one witness's testimony over and above the testimony of another. And I don't think the same association can be made between the circles which were made in the course of scientific testing. I think that's more closely akin to the fact that a big chunk of that tire was cut out and tool mark tests were made and the part is attached down there. I think that's part of the testing process that is different than where a witness describes what happened, describes the location, and uses the diagram to illustrate visually what their verbal testimony was and then goes down and marks it. I think that is the nature of a continuing witness, and I think that's the problem.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, we think that's exactly what Kelly Fite did. He marked all those spots and everything to show a pattern.

THE COURT: I thought you might agree with that. I don't see the distinction. I mean, it seems to me if a simple mark in itself on exhibits makes them continuing testimony, then it seems to me most exhibits would stay out because you wind up an awful lot of times at trial somebody puts an X or they make a mark here or a mark there or whatever.

In my -- I guess philosophically and what I've done in the past has been liberal as far as what goes out with the jury. I mean, I don't think they're stupid people, and I think those kinds of things are very helpful to them in the course of their deliberations. And I think as a practical matter what happens is if you apply strict construction of what's continuing testimony and keep it out, I think typically what happens is the jury is out five minutes, and they send a note back that says 'where is the other things,' and they want to know can we have these items and they'll be asking for them. I think they're helpful and I don't have a -- I think clearly things like the statements, confessions, the transcripts, those kinds of things, they don't belong in the jury room. I think the law clearly says they don't go in, and, you know, I think that's sort of black and white.

But I think the other matters where it's discretionary, I mean, I guess philosophically my construction is let the jury see it if it's going to be of some benefit. I just think that that's -- that's just sort of -- I think the law allows it, for one thing. For example, in one of the cases that you cite --

MR. PORTER: Your Honor, I don't disagree that there are cases that go both ways. I presented the -- the memo of law was written at my request and I presented it to the Court. I don't disagree. I'm not going to be like Bobby Martin and come over and kick sand on your shoes. The Court has to make the call.

THE COURT: Well, frankly, I was interested to see what your research showed because it's the first time that I have ever really tried to do extensive research on the question. I've always been liberal in letting them in, and most of the time it's never been any big issue, and I don't think it's been a big issue this time. But because of the nature of the case, I was concerned about if we're going to have any real argument about it, well, what is precisely the law.

We've done a lot of work the last week or so, and we just don't turn up much, you know. I mean it's a case I would've thought you'd had a half a dozen cases right on point that would have clearly given some guidelines, but I don't find it.

MR. PORTER: Your Honor, the only thing that we would request, and this goes to the technical nature of the objection, is before the Court makes the final ruling, that the defendant clearly demonstrate that it can be accurately reconstructed as it was in the courtroom. I think that's another danger.

THE COURT: Well, I think everybody has had their say as far as what they think the law is, and I think I've indicated what my rules are going to be on the issues as we go through them, at least from my construction of the rules of what goes out.

So let's just -- I think we're at the point that what we need to do is just take the exhibits and let's go through them one at the time and see. What's not been tendered by either side, we can tender it, rule on it. If there's any objection to what's going out, we'll do those likewise. Let's just start with the state's exhibits and take it from the top.

MR. PORTER: Your Honor, if the Court might, we've done all the way through State's 153. If you want to start with 153, I'm prepared to go forward from there.

THE COURT: Well, we've not talked about any of those as to whether there's any objection to them going out. I don't know if there was any objection to any of them. Does everybody have a list they're satisfied with going through them or can we stipulate to a block of them? Is everybody happy with just simply a ruling as to a block of them or not? Ms. Rogan, Mr. Moore?

MR. MOORE: Your Honor, we might be able to just go through these and as we go, we can agree that they go out or disagree and maybe you make a ruling on them.

THE COURT: Okay. We've got the time. Let's just, so we don't have any question about it in the morning, and if there's going to be a problem, let's have it while the jury is out this afternoon.

Let's just start from the top. I show State's 1 is the calendar. That's stipulated in. Any objection to it going out?

MR. PORTER: No, sir.

THE COURT: As I go through them, Mr. Moore and Ms. Rogan, what I'm going to do is indicate what my records show, whether they're in or they're out. And I'm going to assume if they're in, unless I say otherwise, they're going out with the jury, and if you have any objection to them going out with the jury, then you make it known. Okay?

MS. ROGAN: That's fine.

THE COURT: All right. 1 is in. 2, the diagram, is in. 4, the aerial photo, is in. I'm sorry. That's -- okay, that's 4. 3 is the Peachtree Industrial Boulevard diagram. That's in. We have photographs which are an exhibit, and all of them admitted, which start with State's 5 and go through State's 22. They're all in. State's 23 is the victim's eyeglasses. 24 is the tire, and that includes the cut out portion. I believe that's all one exhibit.

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

THE COURT: 25 is the test tube of the victim's blood. Starting with 25A commences photographs. 25A through State's 31 are photographs, all of them admitted.

MR. MOORE: Your Honor, we did have objections to some of those. We would object to -- I don't recall which ones right now. If we can have those here, I can tell you specifically there were two of them that we objected to being used.

MS. ROGAN: They were autopsy photos.

THE COURT: Oh, let's see. I thought we argued all of those earlier.

MS. ROGAN: We did.

MR. MOORE: We did argue it, Your Honor.

THE COURT: Okay. My ruling is going to be the same.

MR. MOORE: I just didn't want anything waived.

THE COURT: All right. I understand. All right. They were all admitted over objection, I note, and they'll be going out. 32 was a photo lineup that's admitted. Was the affidavit ever in with the photo lineup?

MR. PORTER: No, Your Honor. The affidavit was never placed into evidence.

THE COURT: Okay. 33, a check, is in. 34 is the victim's statement, in. 35A and B are bank records of the victim that are in. 36, the victim's account, in.

MR. MOORE: Your Honor, excuse me. Are you anticipating sending the victim's statement out with the jury?

MS. ROGAN: It's a bank statement.

MR. PORTER: A bank statement.

MR. MOORE: Oh, a bank statement. Okay.

THE COURT: Savings statement. I'm sorry.

MR. MOORE: Okay. I'm sorry.

THE COURT: That was my -- that was not clear. All right. 37 is the victim's savings account deposit. 38A, B, C, and D are checks from the victim to the Peoples Bank and so on. 39, the victim's savings withdrawal. 40 is the teller tape. 41 is the victim's checking account statement. 42A, B, C, D, and E are the banking records with respect to the victim. 43 is the defendant's gym account. 44, records of the gym account. 45 -- well, these are all gym account records. 45, 46, and then 47 is a deposit slip for the gym. 48, 49, 50, and 51 are gym deposit records. 52 is a check from the gym. 53 and 54 and 55 and 56 are checks on the defendant's account.

MR. PORTER: All the way down to 62, I think, Your Honor.

THE COURT: Let's see. I believe you're right. All the way down through State's 62, all the defendant's checks. 63A and B are the records, Federal Reserve records. 64 --

MR. PORTER: Your Honor, I believe that 63A and B are the bank records with the receipt of the money from the Federal Reserve, and 64 is the general ledger transfer from one branch of the bank to another.

THE COURT: Okay. I show 63A as the general ledger credit, March 11, '93 of the cash from the Federal Reserve of 228,000.

MR. PORTER: That's a Peoples Bank record. State's 81 is the printout from the Federal Reserve.

THE COURT: Okay. Those are the Federal Reserve -- okay. That's the Peoples Bank records.

MR. PORTER: The receipt.

THE COURT: Okay. All right. And I show those in. 64 is the general ledger credit, $60,000. I don't recall whether that's Federal Reserve or the Peoples Bank.

MR. PORTER: Your Honor, that's a Peoples Bank transfer from the main branch to the Main Street branch.

THE COURT: Okay. 65, 66, 67, 68 are the defendant and his wife's checking account records. 69A and B are the defendant's check and deposit records. 70A, B, and C are defendant's bank records, deposits, and cash out. 71A, B, C, and D are checks and cash deposit records with respect to the defendant's accounts.

72 is the 911 tape, and that tape will go out, but there will be nothing to play it on. We'll just send the tape itself out. They can't play it in the jury room.

73 is the call card 911 from the victim's burglary. 74 is the memo by -- that's a note from Winderweedle to the defendant as to the phone call. 75 is a photo of the defendant's vehicle, the new car. 76 is the same. 77 is a daily log sheet by the defendant.

MR. PORTER: For April the 3rd, Your Honor.

THE COURT: That's correct. 78 is a photo of the victim. 79 is a car wash receipt. 80 is the order form for the T-shirts.

MR. MOORE: Your Honor, we did -- do you want me to renew my objections where we objected before?

THE COURT: No, sir. The only issue at this point is I just want to go through and make sure everybody understands what's admitted and what's going out. If there's any issue about whether or not it's been admitted, then make it known -- about what the ruling was, and if there's any issue about whether or not it goes out to the jury room, then make it known.

MR. MOORE: Okay. I won't keep interrupting, then, if it's understood that we're not waiving our objections.

THE COURT: That's correct. All this is -- we're looking at clerical just to make sure everybody understands the rulings and what's going out.

Okay. 80 was the order form for the T-shirts. 81 is the currency database records. Was this Federal Reserve?

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

THE COURT: Okay. 82 is currency records. 83 is the citation. 84 is the bond that goes with it Kierstin Forg. 85 and 86 are the same for the obstruction offense. 87 is a photo of Eren Chapel. That was the small one and that will not be going out. 87S was the substituted photo which will be going out.

88, 89, and 90 are the

MR. PORTER: Original videos.

THE COURT: -- videocassettes of the defendant's statement. That's the unredacted ones. I was contemplating sending out the cassettes themselves with nothing to play them on, as they're supposed to be admitted as exhibits. But we also have the cassettes which are the redacted versions that have been played, and I'm not inclined to send them both sets outs. I guess since we have the -- what do the redacted versions say on them? Do they say anything on them?

MR. PORTER: Chapel tape number one edited.

THE COURT: Okay. It seems to me that ought not to go out, then, if it has a reference to being edited.

MS. ROGAN: What if they make a request to watch the tape again or portions of it?

MR. PORTER: We'll jump off that bridge when we come to it.

MS. ROGAN: They probably will. In my experience with videotapes, they always want to see them again.

THE COURT: Who knows. Who knows. Well, I don't know. After watching five hours worth, they might not want to.

MS. ROGAN: I believe there's already been a note to that effect as to whether they will be able to see it again.

THE COURT: Well, let's just wait and see. But as far as what goes out -- I guess we can keep them all out, and if they want to play them, and then if we play them, we'll have them without any indication of which set they are. Of course, they won't know. We'll cue them up anyway if they're replayed, and they wouldn't know what they're looking at anyhow.

MS. ROGAN: No, they won't.

THE COURT: What's your druthers, Mr. Moore, Ms. Rogan?

MR. MOORE: Your Honor, I don't mind if they go out, as long as it's not the redacted version that shows it's been edited. I think they've figured that out anyway. But to emphasize that, I don't think would be appropriate.

THE COURT: I'm inclined to agree. Mr. Porter?

MR. PORTER: Your Honor, that's fine. We'll send the originals and hold the redacted.

THE COURT: All right. 88, 89, and 90 will go out. 91, 92, and 93 are the redacted versions. Those will be in for the record only and will not be going out. 94 is the transcript of the defendant's interview redacted. That won't be going out. 95 is the original of page 38. It will not be going out. 96 is for the record only. That's pages 124, 125, and 126 of the transcript of the interview.

I guess somebody -- you've got the exhibits. What we're going to need to do, we've got a common list at this point, is to go through -- and I would suggest doing it this afternoon -- go through and segregate out the exhibits that are going out and those that aren't going out and put them in a separate pile so we don't have that to do in the morning. We may want to double check them in the morning.

What we might do this afternoon is to put them in numerical order so in the morning we can do a quick checklist to make sure what's going out as we're going through the day and that it's all in the right place so we don't let something slip out tomorrow that's not supposed to go out. So I would suggest this afternoon might be a good time to separate those and put them in numerical -- and have them set up so we don't have to fish them out and hunt and look for them.

Okay. That's 96. State's 97 is the briefcase. 98 is the evidence bag.

MR. PORTER: Your Honor, if I might. Some of these exhibits, for instance, the briefcase, have been removed from the courtroom and locked in my evidence room and I can't get in there.

THE COURT: That's fine. There probably won't be a lot of those anyway, so okay..

MR. PORTER: No, sir. It's the blood and the holster and the briefcase and the ledger and the -- I have all the documentary evidence here.

THE COURT: Okay.

MR. PORTER: But what I'll do is I'll use the list of the Court in the morning and I will just bring an evidence cart with just those documents that are going out with the jury and we'll have them on one cart.

THE COURT: Okay.

MR. PORTER: I believe the court reporter has retained custody of State's 94, 95, and 96.

THE COURT: Is that true, Mary? Have you got those?

THE REPORTER: I don't think so. I think I gave that back to you.

MR. PORTER: Well, they may be down in my evidence room, Your Honor.

THE COURT: I would suggest that when you bring them tomorrow, also have them in numerical sequence. Put them in order so we can kind of zip through them with a checklist and that won't take long.

MR. PORTER: Yes, sir.

THE COURT: And Ms. Rogan and Mr. Moore, you do the same with yours.

THE REPORTER: I do remember giving them back to you.

MR. PORTER: Okay. Then I have them.

THE COURT: All right. 99 is the gun belt.

MS. ROGAN: What was 98, Your Honor?

THE COURT: 98 is an evidence bag, brown bag.

MS. ROGAN: Oh. Okay.

MR. PORTER: It's the bag the gun belt came in. It's up here.

MS. ROGAN: All right. Okay.

THE COURT: 99 is the gun belt. 100 are the two tubes of blood drawn from the defendant. 101 is the pawn agreement, Michael Thompson, the rifle. 102 is the videotape of the victim in the motor vehicle. That again will go out. We'll just it out. That doesn't show edited or anything, does it?

MR. PORTER: No, sir, I don't believe so. I think it just says crime scene video.

THE COURT: Okay. Then we'll just put it out, the video by itself, the cassette. 103 is the bag containing the slug.

MR. PORTER: That was withdrawn.

THE COURT: That's correct. 104 is the bag --

MR. PORTER: Within the bag that contained the slug.

THE COURT: Okay. I sort of got lost in my descriptions here. It's in. 105 is the plastic bag that the slug was in along the way. 106 is the canister, and that had the slug in it; right?

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

THE COURT: 107, the brown paper bag, was withdrawn.

MR. PORTER: And then we go through the same sequence as to the second.

THE COURT: Okay. 108 was a bag, 109 was a bag, and 110 is the canister with the slug.

MR. PORTER: That's correct.

THE COURT: Okay. They're all in. Let's see. Then I ran out of paper and had to move to another pad. Let me see if I can find it. All right. That's 110.

111 is the photo -- well, 111, 112, 113, and 114 and 115 are photographs of the Luminol test.

MR. PORTER: Your Honor, only 111 is of the actual Luminol test. 112, 113, 114, and 115 are photographs of the car seat after the test had been run from various angles.

THE COURT: You're right. You're right. That's what my notes say as well. 116 is the passenger side car seat. 117 and 118 are wrapping papers that have been withdrawn. I guess that was the wrapping paper from the car seat. Is that what it was?

MR. PORTER: That's correct. Those were the bags.

THE COURT: All right. 119 is the driver's side arm rest from the defendant's motor vehicle. 120 is the bag for State's 119, the arm rest.

MR. PORTER: They're here, Your Honor.

THE COURT: 121A, B, C, and D, that's the four one hundred dollar bills. 122 is a photo of the defendant's locker number 34 in a locked condition. 123 is the defendant's clipboard and pad and note sheets. 124 is the flashlight. These were all taken from the motor vehicle, I believe.

MR. PORTER: That's correct.

THE COURT: 125 is the police hat. That was the plastic?

MR. PORTER: No. That was just the hat.

THE COURT: The hat, okay. It wasn't the cover. Okay. 126 is the yellow rain pants from the defendant's motor vehicle. 127 is the evidence bag the pants were in. 128 is the brown bag that had the raincoat in it. 129 is the rain jacket, and I'm going to let the rain jacket go in notwithstanding the marks on it by the test personnel.

MR. MOORE: Your Honor, for the record, we would object to that.

THE COURT: All right. On the grounds that it's continuing testimony? Is that the basis?

MR. MOORE: Yes, Your Honor.

THE COURT: All right. 130 is the envelope with the motor vehicle seat cloth swatch. 131 is the RG .38. 132 -- please in the morning double check -- as a matter of fact, let me double check it and just make sure it's empty. It always makes me nervous when people wave guns around the courtroom in summation.

MR. PORTER: Your Honor, it's never been loaded. The only thing that may be in the bag with it is two actual test slugs, but there are no live rounds.

THE COURT: Okay. Well, let's double check it in the morning before the jury comes in anyway.

MR. PORTER: Yes, sir.

THE COURT: All right. 132 is a brown evidence bag. 133 is the plastic rain-cap cover. 134 is a photo of the note pad and cover that had the hundred dollar bills in it. 135 is the note pad and cover that had the bills in it. What did I just say? Okay. 134 is a photo of 135.

MR. PORTER: One was the photo and one was the ledger. Yes, sir.

THE COURT: Okay. 136 is a photo of Burnette holding the note pad and cover. 137 is Officer Reddy's daily log sheet. I note that as being offered for the record only or admitted for the record only. Are you offering that to go out or not, Mr. Porter?

MR. PORTER: Your Honor, that's kind of an odd exhibit because on the back of that is Officer Chapel's log sheet from April the 15th, and the defense used that in its examination. Remember I handed you 137? It was offered, it was assumed to be admitted, and the state has no objection to it going out. But on one side is Reddy's and on the back side of the copy is Chapel's on 137.

THE COURT: Ms. Rogan?

MS. ROGAN: We had a copy we were going to offer. I mean -- on the back side is Chapel's from when?

MR. PORTER: April the 15th.

THE COURT: It seems to me log sheets are log sheets, you know. It seems if it's Officer Reddy's or Mr. Chapel's, if they're relevant to the issues in the case, it seems to me a log sheet is a log. I don't know how you keep one in and not -- put one in and not the other or vice versa.

MS. ROGAN: They're both in.

THE COURT: All right. 137 will go out. 138 is the paper with the victim's phone number taken from the motor vehicle. 139 -- okay. Here we are with -- A is copies of the autorads, B is prints of the autorads. If there's not an A, it has no A or B, then it's the original. What do you want to do with those, Mr. Porter?

MR. PORTER: Your Honor, because they are retained by the crime lab as original documents, I would like to hold on to the originals and send the copies to the jury.

THE COURT: Well, I'm inclined to agree with that unless there's some -- at least somewhere along the way do the substitution, either after the trial or during the course of the trial or whenever seems to be appropriate. I guess you've always got the potential for a retrial in any case, and those would be part of -- if there ever were a retrial, that would be sort of --

MR. PORTER: Your Honor, I just don't know. I mean, there's been a significant amount of handling of the rads, and I just don't know what the accumulation of people handing the originals around does to their subsequent use. I'm concerned about the possibility of tearing one or dropping it and rolling a chair over it or any number of things that could happen. They have been -- the A's have all been testified to and identified as true and correct copies, and the jury has seen the originals, so I think that -- I don't think it adds anything to send both the originals and the copies. I think that out of an abundance of caution, the state would request that we be allowed to maintain custody of the originals and send the copies and the photographs out with the jury.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I don't see anything particularly wrong with sending the copies and the photographs out. The originals would be available if for any reason they were needed, if the jury wanted to see them. I don't anticipate that the Court is going to send the light box out anyway, so they're going to have some difficulty probably in telling one from the other.

THE COURT: Yeah. I'm inclined to agree. Take the originals on all the rads. Take the originals and just simply secure those and keep them, and then we'll substitute copies of the autorads and have that go out with the jury along with the prints or whatever they're called of the autorads. What are they called?

MR. PORTER: Prints. Photos.

MR. MOORE: They're just enlarged photos of the autorads.

THE COURT: Okay. All right. So then we'll have 139, 140 -- well, 139 through 151 will have -- the number by itself will not go out. That will be retained by the state. Parts A and B of each of those exhibits will be going to the jury.

MR. PORTER: That's correct.

THE COURT: All right. I show 152 is the probe chart. I show record only. I don't know if that was offered for the record only or admitted for the record only at that time or issue reserved or what.

MR. MOORE: That's the one, if I recall --

MR. PORTER: Your Honor, that was the chart where Mr. Goff went down and did the calculations.

THE COURT: I don't remember.

MR. MOORE: He wrote on there the numbers and everything for the probes, the various probes. It's one of those that falls squarely within the cases that the Court cites.

MR. PORTER: It was this, Your Honor [indicating].

THE COURT: I'm inclined to agree. All right. 152 will not go out.

MR. PORTER: Your Honor, I think we only offered it for the record.

THE COURT: Okay. Some of them were offered for the record and some of them the issue was reserved. My notes all say the same.

All right. 153 is the photo of the sizing sheet, which has some other markings and whatever on it. Mr. Moore, any objection to that?

MR. MOORE: Your Honor, I believe we objected to that previously. It had additional writing on it which was not explained or testified to for the jury, and it's not a photograph. It's some sort of digital image produced by computer. I don't know exactly where that falls in the rules of evidence, but we would object to it going out to the jury.

MR. PORTER: Your Honor, I think that there's two things here. Number one, we would contend that it is a photograph, even though it is a computer generated image, and that the foundation would be the same, that it is a true and accurate representation of the digital image, the bio-imaging for the probe LH-1. The information that is below it I would submit is so incomprehensible as --

THE COURT: What is the information?

MR. PORTER: Your Honor, I think the best thing is to show the Court -- show the image number and then band number and then a series of numbers. I'm not sure that Mr. Goff could explain that, much less --

MR. SMEAL: Your Honor, I believe that those are the -- that's the sizing of the bands. Those numbers represent --

THE COURT: The fragment length or something?

MR. SMEAL: They represent base pairs.

MR. MOORE: That's correct, Your Honor. We just believe that we might have some amateur statisticians or something on the jury, and to send that out with them with that on there is not a good idea and we object to it.

THE COURT: Well, how about do this. How about -- well, it's taped on there. In the argument we had about what's continuing testimony, we came across that 1882 case, I think it was, that was on point that talked about if there's extraneous matter on the drawing or whatever, that basically it's -- you know, it's extra stuff aside from what it is you're supposed to be -- it's relevant to but is of no consequence, then that's no problem.

But since some of these other numbers relate to data, my inclination would be to redact it such that you just simply put that photograph on a -- the image on another sheet which is clean and mark it as an exhibit. That way you get rid of the numbers. I don't have a problem with that. Seems to me that takes care of any potential problem.

MR. PORTER: Your Honor, we can do that and just mark it as State's Exhibit Number 153 again and just do it that way.

THE COURT: That would be fine. Okay. Mr. Moore?

MR. PORTER: And I'll take care of that this afternoon.

MR. MOORE: Your Honor, I understand the Court's ruling, but I'm not going to consent to it.

THE COURT: All right. 153 redacted will be admitted over objection. 154 is the TV guide that's in. 155 is the article by Dr. Shapiro.

MR. PORTER: Your Honor, that was never offered.

THE COURT: I show it not being. Are you offering that?

MR. PORTER: No, Your Honor. Out of all of the rest of the state's exhibits from 155 to 165, the only document that we are offering that we would like to go out with the jury is State's 162, which is the photograph described by Technician White in this morning's testimony. The remainder were used just in questioning and were identified.

THE COURT: Okay. I show the last exhibit being identified as 165, and that was the article by Dr. Herrin. And starting with 155 and going through 165, I show none being offered except 162, the photo with the dome light on, and I show that as being admitted.

MR. PORTER: That's correct. That's what my record shows.

THE COURT: That will go out. Okay. Where is that photograph?

MR. PORTER: Your Honor, it's in my notebook with all the other photographs.

THE COURT: May I see it?

MR. PORTER: Sure.

MS. ROGAN: Judge, will you take a break soon or should I step out to the ladies room now?

THE COURT: Whenever you want to, we'll take a break.

MS. ROGAN: I mean I don't mind just going and coming back, if you don't want to --

THE COURT: Well, we'll just take five minutes for everybody.

MR. PORTER: Your Honor, it may take me a moment to locate it.

THE COURT: That's all right. It doesn't matter. It was just a matter of curiosity, I wondered what it looked like. It was just curiosity on my part.

MR. PORTER: I had it in a sleeve.

THE COURT: Well, don't worry about it. I'll take a look at it in the morning if it's handy. If it's not, it doesn't matter. It's in.

MR. PORTER: Your Honor, I may have it in --

THE COURT: Don't be concerned about it. It's admitted.

MR. PORTER: Oh. Here, Your Honor. [Presenting]

THE COURT: I just wondered what it looked like. Thank you.

MR. PORTER: Sure.

THE COURT: All right. That takes care of -- if we recap, then, let me just take a look at which exhibits are not going in for the plaintiffs -- or the state.

I show the exhibits expressly not going to the jury room will be State's 87, State's 91, 92, and 93, 94, 95, and 96, State's --

MR. PORTER: 152, Your Honor.

THE COURT: -- 152. And I believe that's it. That's all I show. Okay. Let's take five minutes, and then we'll come back to the defendant's exhibits and take those up. We'll take five minutes.

[Break taken]

THE COURT: Let's look at the defendant's exhibits.

MR. MOORE: Your Honor, Mr. Porter and I have been going over them. We may be able to save some time instead of going through them one by one.

THE COURT: Okay. Fine.

MR. MOORE: We've agreed that D-1 would not go out, Your Honor.

THE COURT: All right.

MR. MOORE: D-2 and D-3 would go out.

THE COURT: Okay.

MR. MOORE: D-4 would not go out.

THE COURT: All right.

MR. MOORE: 5, 6, 7, and 8 would go out.

THE COURT: Okay.

MR. PORTER: Subject to the state's prior objection, Your Honor.

THE COURT: Okay.

MR. MOORE: D-9 would not go out.

THE COURT: Okay. That was refused. That's not in evidence anyway, I believe. Okay.

MS. ROGAN: What was that?

MR. MOORE: Robertson's statement.

MS. ROGAN: Okay.

MR. MOORE: D-10 would go out.

THE COURT: Okay.

MR. MOORE: D-11 would not go out.

THE COURT: All right.

MR. MOORE: D-12 would not go out.

THE COURT: Okay.

MR. MOORE: D-13 would not go out.

THE COURT: Okay.

MR. MOORE: D-14 through 44 would go out. That's the photographs of the Buford precinct officers.

THE COURT: All right.

MR. MOORE: Did we agree on D-45, Mr. Porter?

MR. PORTER: Yes. Well, subject to the prior objection. That's the overlay.

MR. MOORE: That's the overlay. Okay. D-45 would go out.

THE COURT: Now, that's the overlay used with D-3. Is that all the overlays? Did you have one overlay that everybody marked or were there separate overlays?

MS. ROGAN: No. Separate overlays.

MR. PORTER: They were all separate overlays.

MR. MOORE: Separate.

THE COURT: All right. So 45 is going out.

MR. MOORE: Yes, sir.

THE COURT: Okay.

MR. MOORE: 46, 47, 48, 49, 50, 51, 52, 53, and 54 would not go out. 46 through 54 would not go out.

THE COURT: All right. Hold on just a moment.

MR. PORTER: No. You wanted 48 to go out.

MS. ROGAN: We want 48.

MR. MOORE: Oh, I'm sorry. 48 does.

MR. PORTER: That's the precinct map.

MR. MOORE: I'm sorry.

THE COURT: Okay. 46 and 47 are not out. Now, I don't show 48 being offered. Are you offering that?

MR. MOORE: Your Honor, we're offering anything now that hasn't been previously tendered.

THE COURT: Okay. Any objection to Defendant's 48, the precinct map?

MR. PORTER: No, Your Honor. No, Your Honor.

THE COURT: It's admitted.

MR. PORTER: Your Honor, I think the other items, I think they're offering them for the record only, and the state doesn't have any objection.

THE COURT: Okay. 49, 50, 51, 52, I don't show those being offered. Are you offering those for the -- how are you offering those?

MR. MOORE: We're offering those for the record, Your Honor. They would not go out.

THE COURT: All right. 49 through 52, then, are admitted for the record only.

MR. PORTER: With 48 going out to the jury.

THE COURT: Right. Okay.

MR. MOORE: We're at what number now, Your Honor?

THE COURT: 53.

MR. MOORE: 53 is a statement, and we tender it for the record. It would not go out.

THE COURT: All right. It's already been admitted, I show.

MR. MOORE: 54 is an incident report that --

THE COURT: Rudowski.

MR. MOORE: -- we agree should not go out, Your Honor.

THE COURT: All right. You want it in for the record?

MR. MOORE: Yes, sir.

THE COURT: It's admitted for the record.

MR. MOORE: D-55 would go out and that's a photo.

THE COURT: I show it's in.

MR. MOORE: 56, 57, 58, 59, 60, and 61 would go out.

MR. PORTER: 60 is the blowup of the log sheet which has already gone in.

MR. MOORE: That's the blowup of another exhibit that's already been admitted to go out to the jury.

THE COURT: Okay. So 55 is a photo. 55 through 59 have all been admitted and they'll be going out.

MR. MOORE: Right.

THE COURT: All right. And 60 is a blowup of Reddy's log sheet?

MR. PORTER: Yes, Your Honor.

THE COURT: I show that as admitted but for the record only.

MR. PORTER: Your Honor, the original log -- the regular sized log sheet has been admitted as State's 137 to go out with the jury, and we think that Defendant's 60 would be duplicitous.

THE COURT: Okay. This is a blowup of one that's already going out. Okay. So 60 is not going out; is that correct, Mr. Moore?

MR. MOORE: Your Honor, we tendered 60 first, I believe, before the state did. We'd like to have that go out.

MR. PORTER: Your Honor, in fact, it was tendered, but it was never admitted because it was not identified properly, and State's Exhibit Number 137 was the first time the document was admitted with Brian Reddy's testimony.

THE COURT: It's admitted otherwise as the log sheet of Reddy. Is that one that the back of it is the log sheet of the defendant?

MR. PORTER: Yes, sir.

THE COURT: And they're both already in?

MR. PORTER: Yes, sir.

THE COURT: Okay. 60 is in for the record only. It won't go out. 61 is the Buford map. That's a blowup of the map of Buford?

MR. PORTER: Yes, Your Honor. That's been stipulated.

THE COURT: It's going out?

MR. MOORE: Yes, sir.

THE COURT: Okay.

MR. MOORE: 62 would not go out. That's the crime lab report.

THE COURT: You want it in for the record?

MR. MOORE: Yes, sir. For the record, we do want it in.

THE COURT: Any objection?

MR. PORTER: No, Your Honor.

THE COURT: It's admitted without objection for the record. It won't go out.

MR. MOORE: D-63, Burnette's notes, admitted for the record only.

THE COURT: Any objection?

MR. PORTER: No, Your Honor.

THE COURT: They're admitted for the record and won't be going out.

MR. MOORE: 64, 65, 66, 67 --

THE COURT: Okay. Now, 64 is a blueprint of the county police headquarters. I don't show that as being offered. There was a stipulation as to its authenticity, but I don't show it ever being offered.

MR. MOORE: Your Honor, if it was not, we tender it at this time.

THE COURT: Any objection?

MR. PORTER: No, Your Honor.

THE COURT: It's in. Do you want it to go out with the jury?

MR. MOORE: Yes, Your Honor.

THE COURT: Any objection?

MR. PORTER: No, sir.

THE COURT: All right. It will be going out.

MR. MOORE: All these that I'm reading to you, Your Honor, I think Mr. Porter has stipulated to them unless he indicates otherwise to the Court; is that correct, Mr. Porter?

MR. PORTER: Or I didn't object, one or the other, Your Honor.

THE COURT: Okay.

MR. MOORE: 64, 65, 66, 67, 68, and 69 Mr. Porter and I have stipulated to would go out. And if I haven't tendered them, I would tender them at this time.

THE COURT: They have all been admitted. They're all photos, they've all been admitted, and they will all be going out.

MR. MOORE: 70 would not go out.

THE COURT: I show that as being admitted for the record only.

MR. MOORE: Yes, sir.

THE COURT: Okay. It will not be going out.

MR. MOORE: 71, 72, 73, 74 --

THE COURT: Well, 71, 72, and 73 are incident reports by the defendant.

MR. MOORE: Those are the ones that were in the car, Your Honor, at the time, those incomplete reports.

THE COURT: I show them all being admitted. Do you want them to go out?

MR. MOORE: Yes, Your Honor.

THE COURT: Any objection?

MR. PORTER: No, Your Honor.

THE COURT: They'll all go out.

MR. MOORE: 74 is a photo.

THE COURT: Iron World Gym?

MR. MOORE: I believe that's been admitted.

THE COURT: I show that as being admitted.

MR. MOORE: That would go out with the jury.

THE COURT: All right.

MR. MOORE: 75 is a bottle of dietary supplements. We haven't tendered that yet, I don't believe. We would tender it at this time, and we contend it should go out with the jury, too.

THE COURT: Any objection?

MR. PORTER: No objection, Your Honor.

THE COURT: It's admitted without objection. Any objection to it going out?

MR. PORTER: No, sir. They may need it.

THE COURT: It will be going out.

MR. MOORE: D-76 is the key ring and chain. I don't believe we tendered that, but we would tender it at this time and it should go out with the jury.

MR. PORTER: No objection, Your Honor.

THE COURT: It's admitted and it will go out.

MR. MOORE: D-77 was the property sheet, and it should not go out.

THE COURT: Okay. I don't show it as being offered.

MR. MOORE: We would tender it for the record at this time, Your Honor.

MR. PORTER: Your Honor, it was used to refresh the memory of Mary Ann White in regard to the items that are in D-107.

THE COURT: Okay. It's admitted for the record but won't be going out.

MR. MOORE: D-78 was a certified copy of -- it's actually several items from the police department. It was a report on a weapon that was found and was destroyed, and it was also the accident report of the accident that Ms. Cronic was involved in, I believe was her name.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, we have no objection for the record only, but we believe that it's inadmissible hearsay. It's been testified to by Mireya Middleton.

THE COURT: Well, it has the narrative of the officer that wrote it up. Well, I guess -- was it Mr. Chapel?

MR. PORTER: No, sir.

THE COURT: Whoever wrote it up, it has the narrative report of the officer who wrote it up, does it not?

MR. MOORE: Yes, sir.

THE COURT: I think that would be continuing testimony. It's refused as far as going out. It's admitted for the record, but it will be refused as far as going out.

79 is Kelly Fite's crime lab report. It's admitted. Any objection to it going out? I don't recall what it has in it.

MR. MOORE: Your Honor, I don't think crime lab reports ought to go out. That's like continuing testimony, too, of crime lab witnesses.

THE COURT: Okay.

MR. PORTER: I think that 79, 80, and 81 were three different crime lab reports on three different dates. They should all be admitted for the record, but none of them should go to the jury.

MR. MOORE: I agree with that.

THE COURT: Okay. 79, 80, and 81 are all admitted for the record only, and none of them will be going out. All right. 82 is Reddy's log sheet. I don't show that as being admitted or offered.

MS. ROGAN: Another Reddy log sheet?

MR. MOORE: Yeah.

THE COURT: Also, his log sheet -- the first one is 4/3 and the other one is 4/12, one with respect to the Subway shop and the other driving the spare vehicle.

MS. ROGAN: Right. We would certainly tender them. He identified each of them. We must not have tendered them at the time.

MR. MOORE: Your Honor, we would tender 82 and 83, Defendant's 82 and 83.

THE COURT: Any objection?

MR. PORTER: No objection, Your Honor.

THE COURT: They're admitted.

MS. ROGAN: And we'd like them to go out. Here they are.

THE COURT: Well, it seems to me they would be in the same category as the other log sheets, if they are relevant, the same kinds of things.

MR. PORTER: Yes, sir.

THE COURT: Okay. 82 and 83 will go out. 84 is a photo of the morgue table. It's been admitted.

MR. PORTER: No objection, Your Honor.

THE COURT: All right. It will go out. I don't show 85 as being identified. Was there an 85?

MR. MOORE: I believe we skipped 85.

MS. ROGAN: Yeah. 85 was a photograph that I had marked and then withdrew.

THE COURT: Okay. 86 and 87 are photos of inside the morgue. Well, 88, 89, 90 are all photos of the morgue, various aspects of the morgue, and they've all been admitted. Well, I don't show 89 being admitted. I show 86, 87, and 88 admitted of the morgue.

MR. PORTER: 89 was not properly identified, and subject to objection was withdrawn.

THE COURT: That was the photo of the OSHA regulation. That's what it was.

MS. ROGAN: That's correct.

MR. MOORE: They were not in effect at the time.

MS. ROGAN: Which were not in effect at the time, so it was withdrawn.

MR. MOORE: So 89 was withdrawn.

THE COURT: So 89 was withdrawn. 86, 87, and 88 are the photos. They've been admitted, and it seems to me they should go out.

MR. PORTER: Yes, sir.

THE COURT: All right. 90 is the photo of the Sugar Hill marshal and city hall. It's been admitted.

MR. PORTER: That's the blowup, Your Honor. We would have the same objection to that as to the blowup of Reddy's log sheet.

THE COURT: When you say a blowup, how big is it?

MR. PORTER: About eight or ten inches by about fourteen inches.

THE COURT: Okay. Well, all photos, I guess, are blowups in that context. They're all bigger than the negatives. I guess it's a question of how big a blowup are they.

MR. PORTER: Your Honor, I think the defendant -- I don't have an objection to one --

MS. ROGAN: One or the other? We'll send the blowup.

THE COURT: Okay. We've got two photos?

MR. PORTER: We've got two photos --

MS. ROGAN: Two photos of the same thing is what it is. We had one of them blown up.

THE COURT: Okay. Well, take your pick, Mr. Moore. Which one do you want?

MS. ROGAN: D-59 is the one we would withdraw.

MR. MOORE: We withdraw D-59 and ask that the blowup go out, Your Honor.

MS. ROGAN: In favor of D-90.

THE COURT: All right. D-90 will be going out, and the other one is what?

MS. ROGAN: D-59.

THE COURT: 59 is withdrawn. D-59 is the same as D-90?

MS. ROGAN: That's correct.

THE COURT: Okay. 59 is not in and that won't be going out. 91 is Deputy Rapien's log sheet. I don't show that as being offered.

MS. ROGAN: We'd offer it now, Your Honor. We had Sheriff Rapien on --

THE COURT: Any objection, Mr. Porter?

MR. PORTER: No, Your Honor.

THE COURT: It's admitted. Is it going out or not? Any objection? Are you offering it to go out?

MR. MOORE: We're offering it to go out, Your Honor.

MS. ROGAN: Yes.

THE COURT: Any objection, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: It will go out. 92, 93, and 94, and 95 are photographs. I show 92 and 93, that's the cigarettes and the case at the police department. I show 92 and 93 being admitted. I show 94 the same thing. That's a photo of State's 72 and 73, but I don't show it being offered.

MR. PORTER: Your Honor, I don't think anybody could read it or identify it. It was the photograph of two partial incident reports that are going out.

MS. ROGAN: Right.

MR. PORTER: That's the one where I had to stand up and say, 'Judge, I can read it.'

THE COURT: Okay. Are you offering Defendant's 94?

MR. MOORE: For the record only, Your Honor. We used it to try to identify 71 and 72 which are going out.

THE COURT: Any objection for the record only?

MR. PORTER: No, sir.

THE COURT: It's admitted without objection. It'll be for the record only.

MR. MOORE: That was the one where Mr. Porter demonstrated his good eyesight, with contacts, I might add.

MR. PORTER: With contacts.

THE COURT: Wait five or ten years and try it then. What about 92 and 93, the photos? They're admitted.

MR. PORTER: They've been admitted, Your Honor.

THE COURT: Any objection to them going out?

MR. PORTER: No.

THE COURT: They'll go out. 95 is a photo of the clothing at the GBI lab with Mr. Goff. That's been admitted. Any objection to that going out?

MR. PORTER: No, sir.

THE COURT: 96 is the book, National Research Council study on DNA. That's been admitted without objection for the record. Are you offering that to go out, Mr. Moore?

MR. MOORE: Your Honor, I can't in good faith say it could go out. I'd like to send it out, but I think that would be one of the things that should not go out.

THE COURT: I'm inclined to agree. It won't go out. 97 is a letter from Dr. Herrin to somebody.

MR. PORTER: Your Honor, that was the telephone notes from Jennifer -- of a message written by Jennifer Wilson saying, 'ask George Herrin if there would be any effect from Luminol,' and he said something like 'there might be.' Those were identified -- well, not identified but Dr. Herrin's knowledge of the statement. We would object to it going out with the jury.

MR. MOORE: We tender it for the record, Your Honor.

THE COURT: All right. It's admitted for the record only. 97 won't be going out. Defendant's 98 is an affidavit from the Department of Justice employee, and 99 is a booklet. I guess that was in conjunction with the engineer who didn't testify.

MR. MOORE: We never did present testimony on that, Your Honor, so it would be for the record only and I don't think it would go out.

THE COURT: All right. I show 100 -- I don't show anything for 100. Was that ever identified? Do you show a Defendant's 100, Mary?

THE REPORTER: Your Honor, I marked a 100, but it was never identified.

MR. MOORE: I don't remember what it was, Your Honor.

MR. PORTER: I don't have anything.

THE COURT: All right. There must not have been one. Okay. 101 was a bag with the miscellaneous documents from the defendant's motor vehicle.

MR. PORTER: Your Honor, I think by agreement that was admitted for identification and if any items were taken out of it, they would marked separately.

THE COURT: Did anything ever come out of it?

MR. PORTER: The partial police reports did, which are Defense 71, 72, and 73, but none of the other items. I don't think that item this should go to the jury.

MR. MOORE: Your Honor, since we all agreed that if we did get anything it would marked separately and identified, I don't think that bag and its contents should go out.

THE COURT: All right. Do you want to offer it for the record?

MR. MOORE: Yes, Your Honor.

THE COURT: Any objection?

MR. PORTER: No, sir.

THE COURT: It's admitted without objection for the record only. 101 won't go out. 102 is the pursuit pack that's been admitted. 103 is the male figurine, admitted. 104, shoulder holster, admitted. All those seem to me to be appropriate to go out. 105 is the Bible, admitted, record only. Anybody want that to go out?

MR. MOORE: It should not go out to the jury, Your Honor.

THE COURT: Mr. Porter?

MR. PORTER: No, sir.

THE COURT: It won't go out. 106 are the gloves. 107 is the blue box. 108 is a metal clipboard. 109 is a metal ticket holder. 110 is the bag with the $6.31. 111 is the raffle tickets. 112 is the TV set. All from the car. It would seem to me all those would be appropriate to go out.

MR. PORTER: Subject to our prior objection, Your Honor.

THE COURT: Yeah. No waiver. But based on the rulings at this point, it seems to me that would be appropriate. All right. They'll go out.

113 is the glasses case. 114 is the two cigars. 115 is the cup holder. 116 is the right-hand glove. 117 is the right-hand glove. 118 is the coffee mug. 119 is the sunglasses. 120 is the sunglasses. 121 is the clipboard. 122 is the Crown Royal bag. 123 is a bag with miscellaneous items. 125 is a hand mirror. 124 is the white bag and bulb. 126 is the package of soup. All of which have been admitted and seems to me all would be appropriate to go out.

All right. 127 is the gum. 128 is the gum. 129 is the manila envelopes. 130 is the evidence tag by Technician White. All those have been admitted and seems to me would appropriate to go out. Any objection, Mr. Porter?

MR. PORTER: No, sir, without waiver of the previous objection.

THE COURT: All right. And I show photographs of the interior of the defendant's motor vehicle, 131, 132, 133, 134, 135, and 136, all photographs being admitted. It would appear to me all those would be appropriate to go out.

MR. PORTER: Yes, sir.

THE COURT: Any disagreement, Mr. Porter?

MR. PORTER: No, sir. I don't know physically where they are right now.

THE COURT: Okay. I show 137 as the TV listings. It's been admitted. Any objection to that going out?

MR. PORTER: Your Honor, I think we substituted. Defendant's Exhibit 137 had one version of it and then the weather reports.

MS. ROGAN: Right. We have -- the weather for the month of April was also part of that.

MR. PORTER: We have no objection to it. There's also the state's exhibit, whatever it is, that has the full TV listings for the week. But we have no objection to it going out.

THE COURT: All right. Are you offering Defendant's 137 to go out?

MR. MOORE: Yes, Your Honor.

MS. ROGAN: Yes.

THE COURT: All right. It will go out. 138 is a printout of some kind. I've got a question mark by it. I don't know what it is.

MR. MOORE: I think that's part of the library document, isn't it?

THE COURT: I don't show it being admitted.

MS. ROGAN: I'll look for it if you want to go on.

THE COURT: What do you show, Mary?

THE REPORTER: I also have a question mark with nothing admitted.

THE COURT: Okay. Do you show anything, Mr. Porter?

MR. MOORE: Your Honor, if you want to move on to something else, Ms. Rogan is going to look.

THE COURT: Okay. We'll come back to 138. We'll put a question mark by that and take a look at 138. Apparently we don't have that identified.

139 is a photo of the fire station. 140 is a photo of the fire station. Both of those are admitted and should go out. 141 is a fire station photo and that should go out. 142 is a letter from Sloan to Hunnicutt. It's admitted at this point for the record only. Are you offering that to go out or not, Mr. Moore?

MR. PORTER: Those are the statements. The statements of the fire fighters, Your Honor, were in letter form.

THE COURT: Okay. That was the statements about what they saw on the evening of the 15th.

MR. PORTER: That's correct, Your Honor. Sloan was the first firefighter.

THE COURT: Okay. Well, that would be continuing testimony, it seems to me, and clearly ought not to go out. Mr. Moore?

MR. MOORE: Your Honor, I agree. The statements of any witness I think all fall in the same category.

THE COURT: And that would be for 142, 143, 144, 145, all of which are statements of firemen.

MR. PORTER: Which have been admitted for the record only.

THE COURT: That's correct. And none of which should go out.

MS. ROGAN: I found 138.

THE COURT: What is it?

MS. ROGAN: It's the MDT log from Lieutenant Powell. It was something specifically that I was using to --

MR. PORTER: Refresh his memory.

MS. ROGAN: Right. I can't even remember --

THE COURT: It doesn't sound like that ought to go out.

MS. ROGAN: -- what relevance it had at this moment.

THE COURT: Okay.

MR. PORTER: Your Honor, we think it's in the nature of a police report and shouldn't go out.

THE COURT: I'm inclined to agree.

MS. ROGAN: I can't even tell you why we were using it.

MR. MOORE: Your Honor, we agree that it should not go out with the jury.

THE COURT: All right. 138 does not go out. Do you want to offer it for the record, Ms. Rogan?

MS. ROGAN: Yes, I would like to offer it for the record.

THE COURT: Any objection?

MR. PORTER: No, Your Honor.

THE COURT: It's admitted for the record only and will not go out. I show 146 is the Testron bottle. What was the other bottle that went out? I thought that was already in.

MR. MOORE: One of them came out of his car, Your Honor, and the other one was the one that was purchased the night before.

MS. ROGAN: One was purchased, basically, to establish the price.

THE COURT: Oh, okay. All right. It's admitted. Any objection to that going out?

MR. PORTER: No, Your Honor.

THE COURT: It will go out. 147 is a receipt for the Testron bottle that's been admitted. Any objection to it going out?

MR. PORTER: No, Your Honor.

THE COURT: 148 is the MDT record that's been admitted for the record only at this point. Are you offering those to go out, Mr. Moore, Ms. Rogan?

MS. ROGAN: They can be for the record only, Your Honor.

THE COURT: Okay. They won't go out. 149 is the phone records received by Lieutenant Powell. They are admitted. Are you offering those to go out or not?

MS. ROGAN: No. They can be for the record only.

THE COURT: They will not go out. 150 is Lieutenant Powell's report. It's admitted. Are you offering that to go out?

MS. ROGAN: That I would like to go out.

MR. PORTER: Your Honor, Lieutenant Powell's report can't go out. It's a conclusion based on hearsay evidence.

THE COURT: Yeah. It won't go. 150 does not go out. 151 is the phone record of Lieutenant Powell's database. It's in. Are you offering that to go out, Ms. Rogan?

MS. ROGAN: What was it? The phone --

MR. PORTER: That's the notebook that has all the data.

MS. ROGAN: No. That would be for the record only. THE COURT: All right. It won't go out. 152 and 153 are photos of Ruth Cronic's motor vehicle. They're in and would appear to me to be appropriate to go out with the jury as well. 154 is gym bank records that have been admitted. That would seem to me to be appropriate to go out. 155 --

MR. PORTER: Those are the personal records of the defendant --

THE COURT: I believe so.

MR. PORTER: -- from 8/91 through April of '93.

THE COURT: Right. Okay. 155 and 156 -- well, 155 is the defendant and his wife's bank records that's been admitted. That will be going out. 156, the business license, admitted to go out. 157 are checks and receipts of the attorney's fees. Were those admitted to go out? It would appear to me they would be appropriate to go out.

MS. ROGAN: Yes.

MR. MOORE: They were tendered to go out.

MR. PORTER: I believe they were admitted without objection, Your Honor.

THE COURT: Yeah. I believe so. They will go out. I show the charts with respect to the gym -- let's see. Were these the expert's charts?

MR. PORTER: Yes, sir.

THE COURT: 158 through 165 have been admitted for the record only at this point. Are you offering those to go out?

MS. ROGAN: We would like them to go out, Your Honor.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, we would object to those as continuing testimony.

THE COURT: I'm inclined to agree. They've heard his testimony, and I think the charts are a summary of his testimony. They will not go out. 166 is a photo of the newer county police car and 167 the older, both of which have been admitted and would be appropriate to go out, it seems to me. 168 is the gym sign-in sheet, admitted for the record only. Are you offering that to go out?

MS. ROGAN: I would like it to go out.

THE COURT: Mr. Porter?

MR. PORTER: No objection, Your Honor.

THE COURT: All right. It will go out.

MR. PORTER: There were two of those, 168 and 169.

MS. ROGAN: Right.

THE COURT: All right. 169, okay, the gym sign-in sheet. Any objection to that going out?

MR. PORTER: No, sir.

THE COURT: Are you offering it to go out with the jury?

MS. ROGAN: Yes.

MR. MOORE: Yes, Your Honor.

THE COURT: It will go out. 170 is a photo of the victim's trailer, which is admitted and would appear it should go out. 171 is the county log sheet of the defendant which has been admitted at this point for the record only.

MR. PORTER: I think that's the radio log sheet, Your Honor, not of the defendant.

THE COURT: I don't know. I just show Gwinnett County police department log sheet of the defendant.

MR. PORTER: I believe that's his radio dispatch log, 173.

MS. ROGAN: 173?

MR. PORTER: No -- I'm sorry --

THE COURT: It's 171. What do you show, Mary?

THE REPORTER: I just have copy of log sheet of 4/93.

THE COURT: 4/11/93.

MS. ROGAN: That narrows it down. What's the number again? I'm sorry.

THE COURT: 171.

MS. ROGAN: 171.

THE COURT: 172 is a log sheet dispatch, I show. I don't know what the difference between the two is.

MS. ROGAN: Okay. Here's 171. It's the log sheet from April 4th, which we would be asking to go out.

THE COURT: What's the nature of it? It's the log sheet of what?

MR. PORTER: It's his personal log sheet.

MS. ROGAN: It's his personal log sheet similar to the other log sheets we've had. It's just from a different day.

THE COURT: Okay. Mr. Porter?

MR. PORTER: No objection, Your Honor.

THE COURT: It will go out to the jury.

MS. ROGAN: And 172 --

THE COURT: Dispatch log sheet, whatever that means.

MS. ROGAN: It's a log sheet that was reflecting the dispatch to the Arden Drive --

THE COURT: It's been admitted for the record. Are you offering it to go out?

MS. ROGAN: Yes, Your Honor.

THE COURT: Any objection?

MR. PORTER: Your Honor, we made an objection to its admission, that it was not filled -- that officer -- or Mr. Chapel identified it, and it was not filled out by him. It was not a document that was filled out by him, and we objected to the foundation. Since it's been admitted, it's not a document that we can object going to the jury, but we object to its admission.

THE COURT: Okay. It will be out with the jury. I don't show anything identified or offered beyond 172.

MR. PORTER: Your Honor, I show 173 as a daily summary report. I don't know what that means. Oh. This is another one of pages from the --

MS. ROGAN: It's another one of the MDT log sheets which we've dealt with before, so we would tender it for the record.

THE COURT: Any objection?

MR. PORTER: Your Honor, we have a continuing objection to the admissibility of any of the documents.

THE COURT: All right. Was there testimony with respect to 173?

MS. ROGAN: Yes, there was, Your Honor.

THE COURT: It was used in examination of a witness?

MS. ROGAN: Yes.

MR. PORTER: Lieutenant Powell, Your Honor.

MS. ROGAN: Yes.

THE COURT: Okay. It will be admitted for the record only. It won't be going out. Anything beyond 173?

MS. ROGAN: That's the end, as far as I know.

THE COURT: Okay. Do you show anything beyond 173, Mary?

THE REPORTER: That's it.

THE COURT: Okay. Let's recap for a moment, then, and make sure everybody understands where we are. The exhibits that will not be going out, then, are Defendants 1, Defendant's 4, Defendant's 9, Defendant's 11, 12, and 13, Defendant's 46 and 47, Defendant's 49 through 54, Defendant's 59 and 60, Defendant's 62 and 63, Defendant's 70, Defendant's 77 through 81, Defendant's 94 --

MR. PORTER: 89.

MR. MOORE: 89, too.

THE COURT: Okay. 89, yeah. I show that as withdrawn, but I didn't X it out. Thank you. 89 will not go out. Matter of fact, it's not in evidence at all. Defendant's 94, 96, 97, and 98, and 99 through 101, Defendant's 105, Defendant's 138, Defendant's 142, 143, 144, 145, 148 through 151, Defendant's 158 through 165 will not go out. Defendant's 168 will go out, and Defendant's 173 will not go out. All right.

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

THE COURT: Okay. That leaves us with coming back to the issue of -- the issues we reserved on the charge and also the statutes as far as the offenses go. I think I'd like to take -- have you had an opportunity to look at the --

MS. ROGAN: Yes. I'm ready to give our response to the open questions on the other parts of the charge.

THE COURT: Okay. All right. What do you want -- let's see. The issues, I don't have those in front of me anymore.

MR. PORTER: Those were alibi and voluntariness, Your Honor.

MS. ROGAN: It was the alibi and the statement.

THE COURT: What about alibi? What's the defendant's position?

MS. ROGAN: Our position, Your Honor, is that we would object to the Court giving a charge on alibi. We did not take upon ourselves a burden of establishing the impossibility of the defendant being there at the time that the state alleges the crime occurred. We have presented evidence to suggest that he might not have been able to be there. But the way the alibi charge is phrased, it implies that there must be an impossibility for the defendant to be there in order for the alibi to be a valid defense. And since that's not our defense, we don't believe it's an appropriate charge to be given and would prejudice Mr. Chapel.

THE COURT: All right. Mr. Chapel -- have you had an opportunity to discuss that matter with Mr. Chapel?

MS. ROGAN: I did discuss it with Mr. Chapel.

THE COURT: All right. Mr. Chapel, is that your -- you have -- is that your election? You have no objection to that matter not being charged or that your attorney object to it and it not being given? Do you have any --

MR. CHAPEL: I have no objection, Judge.

THE COURT: All right. Mr. Porter?

MR. PORTER: Your Honor, I think it would require a specific waiver by the defendant for there to be -- it's the state's position that there has, in essence, been evidence of an alibi, and I think the only way in which the Court cannot give that charge is by a specific knowing waiver by the defendant himself akin to the idea of failure to testify or testifying over the objection of counsel. So I think that the Court was correct in inquiring of Mr. Chapel.

THE COURT: Is there any other inquiry you ask that I make of Mr. Chapel in that regard?

MR. PORTER: Your Honor, the Court may want to inquire into does he understand what he's waiving and what he's giving up by not having this charge.

THE COURT: Ms. Rogan, Mr. Moore?

MS. ROGAN: We would object to that. I think that to the extent that any inquiry is necessary, it's an inquiry as to whether he's consulted with his attorney about the matter and whether he has an objection to the decision.

MR. PORTER: Your Honor, the courts have not allowed sort of a pro forma inquiry into the issue of whether or not the defendant elects to testify or not or waives that right, and I would think with an issue like this it would be along the same lines.

THE COURT: But I'm inclined to have the record clear and make sure that Mr. Chapel understands -- I think it's a good point -- as to what alibi is because unless there is, as I indicated, a waiver or an objection to it being given, I think the evidence would sure authorize a charge on alibi.

The charge on alibi is as follows. This would be the charge to be given in -- this is the March of 1995 revision. This would be the charge given on alibi if it's charged the jury:

The defendant contends that he was not present at the scene of the alleged offense at the time of its commission. Alibi as a defense involves the impossibility of the defendant's presence at the scene of the alleged offense at the time of its commission. The evidence presented with respect to time and place must be such as it reasonably excludes the possibility of the presence of the defendant at the scene of the alleged offense. Presence of the defendant at the scene of the alleged crime -- at the scene of the crime alleged is an essential element of the crime set forth in this indictment, and the burden of proof rests upon the state to prove such beyond a reasonable doubt. Any evidence in the nature of an alibi should be considered by you in connection with all the other evidence in the case. If in doing so you should entertain a reasonable doubt as to the guilt of the accused, it would be your duty to acquit the defendant. On the other hand, if you believe from the entire evidence that the defendant is guilty beyond a reasonable doubt, you may convict.

I think alibi is a charge adjusted to the evidence of this case, and I'm going to give it. I think it's an appropriate charge because that's exactly what the evidence is in this case, exactly his testimony that he was not present.

MS. ROGAN: Well, not being present and proving that you were somewhere else are two different things, Your Honor. I mean, obviously he's contending he wasn't present, but to imply that --

THE COURT: Well, if he wasn't present, then it would be impossible for him to have been there.

MS. ROGAN: Well, I don't think the time frame in this case is specific enough to place a burden on him to establish that he was somewhere else at a specific time when we've had no clear --

THE COURT: I don't think it takes that. I don't think it takes that. I don't think it takes a case of here's my six witnesses who testify I was, you know, in the backyard barbecuing chicken or something at the time of the offense.

MR. PORTER: Your Honor, if I may. In his own statement and in his own testimony, he said he never was on Peachtree Industrial Boulevard.

THE COURT: I think the evidence authorizes the charge on alibi and I'm going to give it. I think it would be error not to, and I guess the question is whether a waiver or objection is sufficient reason not to give a charge which ought to be given, and I think it ought to be given. I think it's one authorized by the evidence and I think it ought to be given.

MS. ROGAN: The other reason I think it's prejudicial, Your Honor, is that at the time of Mr. Chapel's interrogation, he said several times, 'well, I don't have an alibi.' Now, he had no idea at that point what the time frame was that the state was going to allege. And so I don't want to see the state be able to say he's admitted on the tape he doesn't have an alibi, and then you charge them what alibi as a defense requires and the jury able to make a determination that he somehow admitted that he didn't have an alibi when in the context in which he made the statement on the videotape, he was not aware of the relevant time frames. I mean, he wasn't using that as a legal term, we submit, and to the extent that that will now be used against him I think is extremely prejudicial.

THE COURT: Mr. Porter?

MR. PORTER: That's tactical. That's not legal. I mean, that's a matter of argument and tactics. That's not a matter of law.

THE COURT: Well, I'm inclined to agree. And besides that, parties -- you know, a party says, well, you know, I don't have an alibi. Well, you know, legally what is an alibi? I mean, the fact that a party doesn't understand what the legal requirements are doesn't make the statement by a party as to whether they've got an alibi or not -- I don't think that's indicative of whether they in fact do have one.

I think that's a matter for summation because -- if you find there's some controlling law, in the morning you can renew your objection or motion to exclude it, and we'll hear it again. But I think the circumstances of the case authorize the charge on alibi. I'll take another look at it as well, but I think it's an appropriate charge, and unless I see some law between now and in the morning that says it ought not to be charged, I'll give it.

MS. ROGAN: Well, I'd like the record to note our objection to your giving the charge.

THE COURT: All right. What about the issue as to the statement?

MS. ROGAN: Upon a more thorough reading of that section, we would request that that charge not be given. I agree with the state that under the circumstances of this case, given the type of statement that it is, this charge is somewhat misleading. It, though never uses the word confession or admission, it's clearly geared towards a statement of that sort.

THE COURT: That's what it's for. That's what it's for.

MS. ROGAN: And we would withdraw any request that we previously made that that charge be given.

THE COURT: Mr. Porter?

MR. PORTER: The state has always argued that it's inapplicable to this case, Your Honor, and so we would, I guess, now welcome the defense to our position.

THE COURT: All right. The charge on statements will not be given.

That leaves us with the count that -- the law as it applies to the statutes as to the four indicted offenses, does it not? That's where we are, I believe.

MR. PORTER: Yes, sir.

THE COURT: Let's take fifteen minutes and come back to that. I want to take a look at that. I've got them outlined, but I want to just go through them and get them straight in my own mind. We'll come back -- I don't think that will take long once we come back.

The other question I've got is we're working on the printout of the charge now, and I don't know how long it's going to be before that's ready. We'll have it ready tonight before I leave. Where do you want me to leave a copy if you want to take a look at it tonight?

MR. PORTER: Your Honor, as far as I'm concerned, there's a delivery system out at the bailiff's desk that says -- there's a little slot that says DA's office. You can leave it there.

THE COURT: Is that a basket at the bailiff's --

MR. PORTER: Yes.

THE COURT: Just outside the door?

MS. ROGAN: Where is the bailiff's desk?

MR. DAVIS: Right down by the elevators.

MR. PORTER: Right down by the elevators.

MS. ROGAN: On this floor?

MR. PORTER: Yes.

THE COURT: Yeah. It's on the -- as you come through the double doors, or whatever, to the right. It's the corridor to the right.

MR. PORTER: It's the partition right there at the end of the hall.

MS. ROGAN: Oh, okay. Where the receptionist is?

MR. PORTER: Yes.

THE COURT: Yeah. That's the bailiff. What I'll do is I'll just put in an envelope a copy with your name on it, Mr. Porter, and one for Mr. Moore. That will be a copy apiece, and you can take a look at them tonight and compare them with the pattern charge or whatever.

The updates to the pattern charge, I'm going to be incorporating, and they're sort of scattered throughout, but they're sort of nominal changes. So at any rate, they'll be incorporated in.

MR. PORTER: Your Honor, before the recess, is the Court going to take up the issue of the option of murder, felony murder?

THE COURT: Yeah, that's another issue.

MR. PORTER: Or has that been resolved?

THE COURT: No, it hasn't. I had forgotten about it.

MR. PORTER: I can state that the state has looked at the cases and we have communicated to the defense and I don't think there's any question here that the case that's cited in the pattern charge book was a situation where in one count of an indictment it alleged elements of malice murder and felony murder, and that is why the Court -- why the instructions are in there that the jury would have to elect because the jury returned a verdict that just said murder, and it was sent back in the Watkins case, I think is the name of it.

MS. ROGAN: Walker.

MR. PORTER: Walker. It was an odd indictment. But there are a number of cases since then that say that the jury is authorized to find a verdict on both malice murder and felony murder and, it'll be taken care -- they'll merge for sentencing purposes. So I think that both of us agree that the jury should be charged as to the elements of both malice murder and felony murder.

MS. ROGAN: Without being told to choose one or the other.

MR. PORTER: Without being told to choose.

THE COURT: Okay. Well, I think the thing that would be appropriate -- as a matter of fact, the copy I gave you was the charge I added to my pattern charge book from the case I tried where we had two counts of murder. Charge murder, charge malice murder -- charge malice murder, felony murder, and then give them the added instruction which is at the bottom of the page you've got, which says something to the effect of if the evidence -- something to the effect that if you find the evidence warrants it, you're authorized to bring back a verdict of guilty on both counts, but the Court would only impose a sentence on one so they know that no matter -- they can consider them separately and independently, but it's not going to matter if it's one or two because only one will be sentenced.

MR. PORTER: Your Honor, I think the best course in this is just to authorize -- is to explain the elements of each of the charges and then say you are authorized to bring a verdict back on each count of the indictment and just leave it at that.

MS. ROGAN: I don't think that charge is necessary or appropriate, particularly inasmuch as the Court is not going to be passing sentence in the event of a conviction. I don't see anywhere in the pattern charge that the jury is invited to render a verdict on both. I think the case law is it's not -- there's no need for a distinction to be made between -- there's no need for it to be charged in the alternative.

THE COURT: Well, the reason that -- the reason I like the prospect of telling the jury that is because typically, it seems to me, what jurors -- they go out and they say well, gee, whiz, there's two counts of the same thing. If we find this person guilty on both, then what? Then what? I mean, that's their question, you know: We've got one murder here, how can we find this person guilty twice on one murder.

And I guess -- I've only tried one other case where it was a murder, felony murder that went to trial, and that's what gave rise to my looking at it the first time. As a matter of fact, I think that's what I charged the jury in that case, which resulted in an acquittal, as a matter of fact.

MR. PORTER: Your Honor, I think that the first half of your statement, that you are authorized to return a verdict on each count of the indictment, is a correct statement of law, and I think it probably should be charged to the jury. The portion which says that the Court will sentence him only on one is the portion that's inapplicable.

THE COURT: Yeah. As far as the Court doing anything, that's certainly true.

MR. PORTER: I think that's inapplicable to this case.

THE COURT: Yeah. Yeah.

MR. PORTER: My point is I think that the Court should charge as to each of the elements of each of the crimes and then add the instruction 'you are authorized to return a verdict as to each count of the indictment.'

THE COURT: Ms. Rogan?

MS. ROGAN: I don't agree with that. What I object to is the language that says 'you are authorized to return a verdict of guilty as to each count of murder.' I don't think that that should be isolated. I think each count of the indictment is an accurate statement of the law and is an appropriate charge, so if that's the language, then I don't have any problem with it.

THE COURT: Mr. Porter?

MR. PORTER: I think that's the appropriate language, particularly since -- if there is a guilty verdict as to either Count 1 or Count 2, we'll move into a sentencing phase where the jury will impose sentence which makes it different than the average case, and it makes it different than the case that you've tried. I think in a case where the Court is going to impose sentence --

THE COURT: Uh-huh.

MR. PORTER: -- then I think that's an appropriate charge, the Court will handle the sentence.

THE COURT: Yeah. Okay. I think you're right.

MR. PORTER: But I think that resolves that issue in terms of it's not an alternate. It's you are authorized to return a verdict as to each count of the indictment.

THE COURT: Okay. I think you're right.

MS. ROGAN: We agree, Your Honor.

THE COURT: Ms. Rogan, you agree with that?

MS. ROGAN: Yes, I do.

THE COURT: Okay. Then we're all in agreement.

MR. PORTER: So the only thing that's left is the actual statutory definition of the crimes.

THE COURT: Yeah. Let's take fifteen minutes and take a look at those. I think we can wind the rest of it up pretty quick. Okay.

[Break taken]

THE COURT: Before we get to the statutory provisions and the other matters, it occurred to me -- I think one thing we need to go over this afternoon is who our jurors are presently since there's been kind of a parade through the jury box with three gone.

Our jurors I show, we had Ms. Williams who was the one that was excused before we could get them all in the jury box. Then we had Robert Bruce who, at this point, is juror number one. Mr. Edwards is number two. Mr. Franz, who was number three, is excused, so he is not with us.

Then we have Ms. Limratana, Ms. Bolden, Mr. Knowlson, Ms. Toney, Ms. Yarbrough, Ms. Miller, Ms. Hysler. Mr. Hogan was excused. He was the eleventh juror. Robert Blythe, who was the first alternate to move into the box. And then we have -- let's see. How many does that leave us? That's one, two, three, four, five, six, seven, eight, nine, ten. That's ten jurors, so the next two --

MR. PORTER: Ms. McAfee and Mr. Ford are the remaining two.

THE COURT: Well, the next two -- let's see. We had Ms. Flowers, who had moved into the box, who was excused last night. And we have Ms. McAfee who's our next juror.

Now, let's see where that leaves us, then. That leaves us --

MR. PORTER: Mr. Ford.

THE COURT: -- one, two, three, four, five, six, seven, eight, nine, ten, eleven. That leaves Ms. McAfee, with number twelve on the list as being Mr. Ford. So Mr. Ford is now in the box, the twelfth juror, and he is our third alternate. We've excused three, so that's got to be right.

Our fourth alternate being Ms. Clark if anything happens and then our fifth alternate, Mr. Sullivan, and our sixth, Mr. Albano. We went back and picked him up.

So our jurors one through twelve, then we'll skip over Mr. Albano since he was tagged on later, and we'll go through Mr. Ford, who is our third alternate, as we wound up striking them. Okay.

This brings us to another issue with the alternates. Once we -- if this goes to the jury tomorrow and they start deliberating, where does that leave us with our alternates? We've got twelve in the jury room and that will leave us with three alternates. Normally if I've got an alternate or so, I'll put them in separate jury rooms so we don't have them deliberating separately while the other twelve are deliberating, and I'm inclined to do that in this case as well, although one of the alternatives, I suppose, would be to put them in the jury room -- in a separate jury room by themselves and say, you know, you cannot talk about it. What do you think, Mr. Porter?

MR. PORTER: I think either procedure would work, Your Honor. I'll leave that to the Court's discretion. I think it also has to do with how much space is available.

THE COURT: Yeah. Mr. Moore?

MR. MOORE: Your Honor, I guess I'm just a little concerned. We've lost two jurors from having discussions with either outside people or --

THE COURT: It might be a good way to lose all three alternates.

MR. MOORE: Yeah. I mean, I think the temptation to talk about this case if you're back there is --

THE COURT: If one of them goes, they all go, I think, at that point.

MR. MOORE: I hate to put them in solitary confinement, which is what you're doing when you put them in a separate room. But on the other hand, I hate for us to lose --

THE COURT: That brings us to another issue. Once we -- if we don't have a verdict tomorrow afternoon and they go back to the lodging, I think the twelve, there's no problem with them eating together, watching a movie together, or whatever, but what about the three alternates? I don't think they're authorized to be with the other twelve at that point.

MR. PORTER: No, sir. I don't think they are.

THE COURT: So what does that mean? I'm going to have three different locations and three different bailiffs and three different sequestrations?

MR. PORTER: I think that's exactly what you've got, Your Honor.

THE COURT: One thing we could do, I suppose, is dismiss one or two of them and hold one alternate. Of course, who knows what may happen at this point. One alternate might not be enough even if they start deliberating. Has anybody had experience with that in the past?

MR. MOORE: I haven't, Your Honor, if you're looking at me. I don't know.

MR. PORTER: I never have, Your Honor. I've never gotten to the point where we lost three jurors, so we're all in uncharted water.

THE COURT: I think at this stage I'm inclined to keep them all and keep them separate. If we've got to have eight or ten bailiffs over there, then so be it.

MR. PORTER: Your Honor, none of us know where they are, so I don't know what the facilities are.

THE COURT: Well, they've got a separate wing separated off for them. I mean, they're isolated on a wing, but then that doesn't isolate the three. So I don't know exactly what that takes. I guess that's something we'll take up tomorrow morning with the court administrator's office and see what arrangements we can make.

MR. PORTER: Your Honor, there is one other practical matter, since we're talking about practical matters, that I brought up earlier on the record, is the sheer size of the evidence in this case. There's a couple of things that the Court might consider and that counsel has been discussing. One, which we don't really like and we don't agree, is what they did in the Mobley case because of the large number of exhibits, is allowed -- is seal the courtroom and have deliberations in the courtroom. I don't think anybody is really in love with that idea, but that's an alternative.

The other alternative is instead of using the jury room that you're now using, which I understand is around the corner, is use jury room 3E and allow access back into the courtroom for the jurors to view the physical evidence here in the courtroom. The courtroom can be sealed with the double doors outside with the equipment turned off.

THE COURT: Well, except for the tire, what have we got that takes up so much room?

MR. PORTER: We've got the car seat --

MS. ROGAN: The car seat.

MR. PORTER: -- and we've got all these charts, and, Your Honor, we just went back and looked and those tables are pretty tight in those rooms.

THE COURT: What do you think, Mr. Moore?

MR. MOORE: Your Honor, I wouldn't object to that. If we use the jury room that's right adjacent here, the bailiff could, you know, let them come back and forth if they want to.

THE COURT: Well, if we can find two jury rooms, we might put the evidence in one jury room and them in the other and they can go to -- you know, if they want to go to the other jury room and walk around.

MR. PORTER: The logistics of it, Your Honor, is that all you'd have to do is put a bailiff just outside this door of the courtroom, this back door of the courtroom, and they could keep access away. And if you have two jury rooms, you've got people wandering up and down the hall back there.

THE COURT: While the jury is deliberating, we're going to have the courtroom locked down anyway.

MR. PORTER: Your Honor, it would seem to me that it would be a relatively easy way to -- if we could get the jury room for Courtroom 3E, which is just outside of that door, you could certainly control access and -- both access to the jury and access by the jury a lot easier.

THE COURT: Well, except for the car seat and the tire, is the -- what kind of charts -- how big are the charts and maps?

MR. PORTER: Well, the aerial photograph is about three and a half feet by three and a half feet.

THE COURT: You can stick that against the wall.

MR. PORTER: The PIB chart is about eight and a half feet long. The rest of them are in the neighborhood of three or four feet.

THE COURT: I'll tell you what I'm inclined to do is take the charts, and they can set them against the wall, and they can pull them out one at a time if they want to, leave the car seat and the tire -- maybe put the tire in there with them and tell them if they want to look at the -- whatever we wind up leaving in here, if they want to come back and look at it, make it known, and they can come back and do all the reviewing they want. And that would give them all the rest except one or two items, because I think a lot of those items they're going to passing around and looking at and that sort of thing.

So my inclination is that if we can get everything except one or two items in there, then they can look at everything they want except one or two. Then if they want to come back and look at it, then they can do that. Otherwise, I think we may have them parading back -- spending half their time coming back and forth if they don't have any exhibits in there with them.

MR. PORTER: Well, I'm at the Court's pleasure, but I think that there are going to be some practical considerations.

THE COURT: I think the car seat is a problem --

MR. PORTER: Yes, sir.

THE COURT: -- and the tire maybe. But I think that car seat -- what do you think, Mr. Moore?

MR. MOORE: Your Honor, I think like the procedure you suggested where they can come into the courtroom and see if they want to. The car seat itself is not really relevant anyway. It's only the patch that was cut out of it that's relevant, so the car seat itself has no significance in the case, I mean --

THE COURT: And if they want it, make it known. If you want to come in and sit down on it, look at it, pick it up, turn it around, do what you want to, you know, make it known and you can come and do it.

MR. PORTER: That's fine with us, Your Honor. I'm at the Court's pleasure.

THE COURT: Okay. I mean, it's not unusual. We take, you know, in the jury room -- send some pretty good sized exhibits, a pile of papers and all kinds of things to put on the table, and that's never been a problem that I'm aware of.

MR. MOORE: Your Honor, I think it's important to have them in the jury room on a table somewhere because if you let those people in a big area like the courtroom, they may go off and stand in corners and not talk to each other, and I think they all ought to talk to each other.

THE COURT: Yeah. I think you're right.

MR. PORTER: Your Honor, that brings up the Court's proposal about a quick run-through of the exhibits in the morning. I've been thinking about that. I'm going to probably want to use some of the exhibits in my closing argument, and the defense may want to. I would suggest that trying to get them lined up in numerical order before we even begin our argument really is not a fruitful use of our time.

THE COURT: Well, I think we can do it one of two ways. One is -- well, I think we're going to have to take a look at them first so somebody is not, by accident if nothing else, using an exhibit which has been excluded.

My inclination would be, if you look at them tonight -- you're going to be looking at your exhibits tonight -- is put them in some kind of sequence tonight so that in the morning we can sit down and tick them off. And then those are the ones that will be going out.

You do the same, Mr. Moore, and let's go through them in the morning and see that we've got all of them here that's going out with the jury, put them on one side of the courtroom, and then everybody can use them, mix them up, pile them up, flip them around however you want to during the course of argument.

Once we ascertain at the start of the proceedings that they're all there and they're in a pile when you get ready to take them in the jury room, then take them in in a pile without having to re-count them so long as everybody keeps them over there close to the jury box so there's no question that they're mixed.

Is there any problem with that, Mr. Porter?

MR. PORTER: No, there's no problem with it, Your Honor. I don't --

THE COURT: I mean, I think before they go out, I think the Court is obligated to check them and make sure that they're all there.

MR. PORTER: And I think that will have to be done with the assistance of the court reporter and with the bailiffs ,in any event, and I was just thinking that to do it twice is not a particularly fruitful use of our time.

THE COURT: Except that I think if somebody uses something that's not permissible, then we may have a mistrial here. That's my concern. I think it's essential to see, before you put them before the jury for argument, that they're exhibits that can be used, and the same way when they go out. I don't know if there's any way to do it but just one at the time.

It seems to me that would be one way if everybody sort of keeps them over there and we go through them once and we know they're in the pile.

Mr. Moore, what do you think?

MR. MOORE: Your Honor, however the Court wants to do it, we'll do it. I tend to agree with Mr. Porter, though. During the closing arguments, we're going to get them mixed up anyway.

THE COURT: Yeah.

MR. MOORE: I mean, we can try to keep them in order.

MS. ROGAN: We would like them set up in some order so that to the extent we want to refer to them in closing arguments --

THE COURT: My point is just simply if we check them to start with, so long as they're not being laid down all over the courtroom so we've got a problem sorting them out again and getting them mixed up, if they're used in front of the jury and laid in a pile over there in front of the jury box, you know, then everybody -- we've checked them once and everybody knows they're over there in that pile, and then at the conclusion of it, put them in a wheelbarrow and take them to the jury room, you know, without bothering to check them again so long as they're all kept over there.

MS. ROGAN: Where exactly are you talking about putting them?

MR. MOORE: Your Honor, the case law seems to indicate too -- and maybe we don't agree about this. I don't know. But the case law seems to indicate that a lot of these things like charts and stuff that we can't send out with the jury, we can use during closing arguments.

THE COURT: I think so.

MR. PORTER: I think so, too, Your Honor, so --

THE COURT: Well, that's another point.

MR. PORTER: They're going to get mixed up.

THE COURT: Well, we'll just -- we'll go through them at the end of it. I think it's going to be essential to go through them at the beginning of it. So if you're looking at them tonight, just put them in order. There's not really all that many. Put them in sequence and we can just tick them off quick in the morning. And then after the jury goes out, we'll have time. At that point time won't be a big problem. Okay.

Speaking of the jury, it's interesting the way different -- just to digress for a moment -- the way different jurisdictions do this kind of thing. The state of Tennessee, for example, at the National Judicial College, in talking to judges from Tennessee, the exhibits there never go out with the jury. There are absolutely no exhibits at no time goes out with the jury. The jury goes and deliberates, and if they want to see the exhibits, they bring them back in and let them look at the exhibits and then go back to the jury room. Because of the nature of continuing testimony, nothing ever goes out. They were amazed that the exhibits go out in Georgia at any time. We were equally amazed that they didn't take them out. It's interesting how it goes. Anyway --

MR. DAVIS: We trust our citizens more than they do.

THE COURT: I guess. Well, anyway -- all right. Let's take a look at the statutory exhibits -- I mean, the statutory -- the statutes as to the offenses, if I can find them again.

One other question, as a practical matter when we're printing this out on the computer, the charges have citations for Code sections, the statutes, the cases. If you look at a charge, it comes out of the computer just like it's in the charge book, do you have any particular request or objection if those are left in or deleted or not or does it matter?

MS. ROGAN: I think they should be deleted.

THE COURT: I don't have any particular feelings one way or the other. The parentheticals about co-conspirators or 'charge only if' or 'this should be done when' or that sort of thing, I'll strike those. That surely ought not go out. But the others I don't really care one way or the other.

Mr. Porter, do you have a request? I guess it's cleaner if you get rid of them.

MR. PORTER: I think it would be safer to delete them.

THE COURT: Yeah. We'll delete them.

MR. PORTER: I think in the hands of the layperson -- for instance, in the homicide section, there's only one case for the section that says 'if a killing is done with malice, no matter how short a time the malicious intent may have existed, such killing constitutes murder,' it only cites one case. The next paragraph cites two. They may put more emphasis on one paragraph over another.

MS. ROGAN: Yeah. I think it's dangerous to keep them at all.

THE COURT: We'll delete all the references. Okay. Here's what I contemplate charging them on the Count 1 homicide. I'll tell them the defendant's charged with murder in Count 1:

In that regard I charge you the law in this state provides that a person commits murder when that person unlawfully with malice and forethought either express or implied causes the death of another human being.

Express malice is that deliberate intention to unlawfully take away the life of another human being which is shown by external circumstances capable of proof. Malice may but need not be implied where no considerable provocation appears or where all the circumstances of the killing show an abandon and malignant heart. It is for the jury to decide whether or not the facts and circumstances of this case show malice.

To constitute murder, the homicide must have been committed with malice. Legal malice is not necessarily ill will or hatred, but it is the unlawful intention to kill without justification, excuse, or mitigation. If a killing is done with malice, no matter how short a time the malicious intent may have existed, such killing constitutes murder.

Georgia law does not require premeditation and no particular length of time is required for malice to be generated in the mind of a person. It may be formed in a moment and instantly a mortal wound may be inflicted. Yet if malice is in the mind of the accused at the time of the act of killing and moves the accused to do it, such is sufficient to constitute the homicide as a murder.

There's a provision on premeditation with a notation to give only if that's requested by the jury, which I'm inclined to do. Any request or objection with respect to the charge on Count 1, murder, as I have indicated I'll give it, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: Ms. Rogan, Ms. Moore?

MS. ROGAN: No, Your Honor.

THE COURT: With respect to Count 2, felony murder, I'll charge them as follows:

A person also commits the crime of murder when in the commission of a felony that person causes the death of another human being irrespective of malice. Under our law armed robbery is a felony and is defined, as follows.

A person commits armed robbery when with the intent to commit theft that person takes property of another from the person or in the immediate presence of another by use of an offensive weapon -- well, and I also have 'or by any replica, article, or device having the appearance of such a weapon.' That's not really an issue in this case, is it?

MR. PORTER: I think that should be struck from that.

THE COURT: Does anybody disagree with that?

MS. ROGAN: No.

THE COURT: So I will stop, then, 'by use of an offensive weapon,' period, and then strike the balance of that sentence, and then continue on:

An offensive weapon is one which if used in its usual manner is likely to produce death. The character of a weapon may be established by direct proof or by other evidence sufficient to establish it to be an offensive weapon.

Now, it seems to me that I have charged before in cases of armed robbery, is in cases that seem to me to say a firearm is by definition an offensive weapon, and it seems to me I have charged in the past 'and I charge you that a firearm is an offensive weapon.'

MR. PORTER: Your Honor, we would request that charge. It is a correct statement of the law under per se offensive weapon.

THE COURT: That's my recollection of the cases, and I think it's appropriate. Matter of fact, I have charged it. I don't have my prior charges, but that's my recollection. Any objection, Ms. Rogan?

MS. ROGAN: No, Your Honor.

THE COURT: I'll add that. Any request or objection to the charge as to felony murder as I've indicated I'm going to give it, Mr. Porter?

MR. PORTER: No, Your Honor.

THE COURT: Ms. Rogan?

MS. ROGAN: No.

THE COURT: Then I'll charge from the pattern charge: If you find and believe beyond a reasonable doubt under all the evidence and the Court's instruction that the defendant is guilty of the offense of murder with malice aforethought, then you must specify such in your verdict. The form of your verdict in that event would be: We, the jury, find the defendant guilty of malice murder.

If you believe beyond a reasonable doubt under all the evidence and the Court's instruction that the defendant is guilty of the offense of felony murder, then you must specify such your verdict, and the form of your verdict in that event would be: We, the jury, find the defendant guilty of felony murder.

Proof of a particular motive is not essential to constitute the crime of murder. Evidence of motive, if any, is admitted for your determination as to whether or not it establishes a state of the defendant's mind at the time of the alleged homicide.

Now, that would be the charge with respect to murder and felony murder.

With respect to armed robbery, Count 3, I'll charge them, as follows: A person commits armed robbery -- I've charged them armed robbery once as the underlying felony in felony murder, but I am inclined to charge them in full, a short charge anyway, but charge them armed robbery all over again so that it's clear, and then simply repeat what I said a moment ago about the two paragraphs of armed robbery, except we'll say, okay, offensive weapon, period, and strike 'the replica and device' and so on, and then add to it 'a firearm is an offensive weapon.'

Any request or objection to that charge as far as for Count 3, armed robbery, Mr. Porter?

MR. PORTER: No. No objection to the language or the charge for armed robbery, but we would like to add the language of the state's request to charge number one and number two.

THE COURT: Okay. We'll come back to that in just a moment. Ms. Rogan, any objection or request with respect to the charge I've indicated I'm going to give on Count 3, armed robbery?

MS. ROGAN: No, Your Honor.

THE COURT: All right. Let's pause and look at state's request number one. The offense of armed robbery requires only that property be taken, regardless of its value. Any objection to that?

MS. ROGAN: The problem we have with that -- that is not an incorrect statement of the law, but the indictment specifies that it was currency that was taken. And to the extent that the state has obligated itself to prove that currency was taken as opposed to just property, we would object to that additional charge unless it specifies that it be currency. They haven't proven or set out to prove exactly how much currency it was, but --

THE COURT: Basically, the essence of your argument is that the defendant either took currency or he didn't take currency?

MS. ROGAN: That's correct.

THE COURT: And if he took currency, then he took something of value, because currency, by definition, has got value.

MS. ROGAN: That's correct.

THE COURT: As opposed to taking some article out of the car or something.

MS. ROGAN: That's correct.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, I think the most important thing is is that there be some statement -- and the state does not necessarily object to it being restricted to the allegation in the indictment -- but there be some statement about value, that there is no requirement of value. And I think it could be worked into the armed robbery charge by some language that says something like -- there are really two issues, and let me address them both at the same time.

One is the value issue and one is, in request number two, we were really anticipating that the Court might give some language on the robbery and the apprehension of receiving injury and those types of things.

And charge two is really aimed more in that direction. It's says: While the force used in armed robbery must be employed contemporaneously with the obtaining of property, where there is evidence that the victim died from the force used, the offense of armed robbery may be found to have occurred regardless of whether the victim died immediately or subsequently to the taking of property. It is not essential that the victim be conscious at the time of robbery.

That goes to the issue of can you rob a dead person, so to speak, and those are the two primary issues that we want to address and incorporate it into the armed robbery charge.

THE COURT: Okay.

MR. PORTER: We have no objection to restricting number one or modifying it to the extent that it says something along the lines of 'the offense of armed robbery in this case requires only that currency be taken, regardless of its value' or something like that. And then we would ask on number two that it be given in its essence regarding the timing of the robbery.

THE COURT: Ms. Rogan?

MS. ROGAN: I don't have an objection to that in general. I don't like the wording of state's request to charge number two because I think it's confusing. We don't object, as I said, in principle to the idea of incorporating some concept that it doesn't matter whether she was alive or not at the time the currency was taken, but I don't really have a suggestion as to how to modify that language so that it's not confusing.

MR. PORTER: Your Honor, despite the characterization as confusing of state's two, it is basically the -- it tracks the language of the cases cited.

THE COURT: Well, your request number two says the offense of armed robbery may be found to have occurred regardless of whether the victim died immediately or subsequently to the taking of property. It really doesn't address taking -- whether the victim died prior to the taking of property.

MR. PORTER: Well, the language that was used in the case is based on allegations that the victim died instantaneously as a result of the shots.

THE COURT: Okay.

MR. PORTER: They used the language 'immediately.'

THE COURT: Okay.

MR. PORTER: That's the case that's cited Young v. State. It actually uses the language --

MS. ROGAN: Was it proposing a charge or is it just stating what the law is?

MR. PORTER: It was approving of a charge and stating the law.

THE COURT: State's number one is refused. I think that's a matter of argument as far as whether or not any currency was taken. You know, I think the issue is was any currency taken or not taken. I think that's the issue, and I don't think there's any issue of -- I don't think value is an issue. State's one is refused.

State's number two I think is appropriate. I want to take a look at the cases. I've not looked at the cases you cite. But I'll either adopt your number two and add it in right behind what I've indicated I'll charge with armed robbery. As a matter of fact, I'll add it in both places behind the armed robbery. There's the felony and the felony murder, and add it behind the armed robbery charge, the pattern charge in Count 3, armed robbery, if it appears to be a fair statement of those cases. And if not, I'll adjust it up if it appears to be a correct theory of the law anyway. Okay.

All right. Count 4 is as follows: A person commits the offense of possessing a firearm during the commission of a crime when the person has on his person a firearm during the commission of or any intent to commit any crime against or involving the person of another, and which crime is a felony. The offense of murder is a felony under the laws of this state.

And I contemplate adding the following: 'I have previously charged you the elements of the offense of murder,' as opposed to reading murder again as an included offense. I can go either way with it. Does it make any difference to anybody?

MR. PORTER: Your Honor, I don't recall. Do the allegations in the indictment only allege --

THE COURT: Murder. It just says murder.

MR. PORTER: All right. That's fine with the state, Your Honor.

THE COURT: It just says murder. Count 1 just says murder, Count 2 is felony murder, and Count 4 just says murder. So I think that's Count 1, malice murder, it seems to me.

All right. I don't contemplate telling them the offense of murder is a felony under the laws of this state and murder is defined as follows, and tell them that again. I'll just incorporate by reference, 'I've already told you what the elements of murder are.'

MR. PORTER: Yes, sir.

MS. ROGAN: That's fine.

THE COURT: Any objection or request to that, Mr. Porter --

MR. PORTER: No.

THE COURT: -- the charge on Count 4, Ms. Rogan?

MS. ROGAN: No.

THE COURT: And then what I'll do is add the malice murder, felony murder issue we had earlier and tell them:

Count 1, murder, Count 2, felony murder, Count 3, armed robbery, and Count 4, possession of a firearm during the commission of a crime, are separate and distinct offenses, and you may convict on all if all are proven beyond a reasonable doubt.

Any request or objection in that regard, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: Ms. Rogan?

MS. ROGAN: No.

MR. PORTER: Your Honor, there is one matter to bring to the Court's attention. In the language that says -- in the murder charge --

THE COURT: Yes, sir.

MR. PORTER: -- it says: If you believe beyond a reasonable doubt under all the evidence and the Court's instruction that the defendant is guilty of the offense of murder with malice aforethought, then you must specify such in your verdict, and the form of your verdict in that event, we, the jury, find the defendant guilty of malice murder.

I would just note, although we have no strong objection, that the language of the verdict form does not track that language.

THE COURT: It just says murder?

MR. PORTER: It says: As to Count 1, parentheses, murder, We, the jury, find the defendant not guilty; We, the jury, find the defendant guilty as charged. It does not track: We, the jury, find the defendant guilty of malice murder.

THE COURT: Well, that's a good point.

MR. PORTER: I think it's clear it does not track the instructions of the Court exactly, but I don't think it's a problem, but I --

THE COURT: Ms. Rogan, Mr. Moore?

MR. MOORE: Your Honor, we ran into a problem with that, Mr. Porter and I did, in the Hardwick case and we were talking about it. The Code does not say malice murder anywhere in it. It just says murder, and then malice is one of the elements that has to be proved. We took the position in that case, because of the problems we had with the defendant, that malice murder is a term just loosely used, but there's really no such thing. It's either murder or felony murder.

THE COURT: It's kind of like murder one you see on TV all the time.

MR. MOORE: Yeah. It's really murder or felony murder.

THE COURT: Yeah.

MR. MOORE: And we would object to the word malice being used in there, because it may cause the jury to think that that's some kind of -- in some way that's a more serious offense, when they get to the sentencing stage, than just murder.

THE COURT: Well, the charge on murder does not say malice murder as far as the charge itself, except where Mr. Porter is talking about, I think.

MR. PORTER: I think you could probably just delete the word malice.

MR. MOORE: Yeah. We would request that malice be deleted.

THE COURT: Okay. Where it says 'if the defendant is guilty of the offense of murder with malice aforethought,' I think that's appropriate --

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

THE COURT: -- because that's part of the offense, 'then you must specify it, and the form would be: We, the jury, find the defendant guilty of malice murder.' And that ought to be just plain murder. And the other part as to felony murder would appear to be appropriate. Okay. That's a good point, Mr. Porter. Thank you.

MR. PORTER: That was Mr. Davis's point, Your Honor.

THE COURT: Thank you, Mr. Davis.

MR. PORTER: I don't want to take all the credit.

MR. DAVIS: Proof that I was awake, Judge.

MR. MOORE: Your Honor, this might be a good point to bring up something we wanted to ask about, too.

THE COURT: Yes, sir.

MR. MOORE: I don't know what your custom is as to how the verdict is published in the courtroom, but we would request that the Court or the jury foreperson publish the verdict. We feel like it would -- if the DA is allowed to publish the verdict, and I know some judges do, then if we do get to the sentencing stage, that gives him some greater stature with the jury than the defense if he's publishing the verdict.

THE COURT: Well, in nine years or so on the State and Superior Court bench, I have every single time had the prosecutor publish the verdict. And the reason I have done it is simply if you've got a layperson with the verdict, and I guess they see it on TV where the foreperson publishes it, but having them read it, I think, is a real invitation to problems.

But I think it's a good point in a case like this, if we're going to go forward to the second stage, and I'm inclined to agree you that that's not appropriate in a capital case, and I guess that would leave me. I've never done it before, but I think that's a good point. I think since if we're going to go into the second phase of it, I think that's a fair way to do it. What do you think, Mr. Porter?

MR. PORTER: I don't have a position on it, Your Honor. It saves me a long walk. A long, uncertain walk.

MS. ROGAN: An alternative to the Court doing it is to have a clerk do it, which is --

THE COURT: Well, who knows who the clerk would be, if we've got a clerk. I don't know if we'll have a clerk or not.

MS. ROGAN: Doesn't a clerk have to be present for the reading --

THE COURT: Well, that's debatable.

MR. MOORE: I would prefer that you do it, Your Honor, in case there's any problem with the form of it or anything like that.

MS. ROGAN: That's fine.

THE COURT: Well, that's the reason I always have the prosecutor do it. At least you've got somebody who knows what they're looking for or what the form is and, you know, sort of what ought to be coming one way or the other and what the options are.

Okay. I'll read the verdict. As a matter of fact, what I might -- let's see. I might make a copy of it, but I think -- I'll make a copy of it afterwards. That just gets to be kind of long with the pause and all that. I'll just -- okay. I'll do it, Mr. Moore. I don't particularly want to, but I will. Okay.

What does that leave? Anything else, Mr. Porter?

MR. PORTER: Your Honor, the sheriff's department has asked me to reintroduce the motion regarding the restraint belt at the time of the receipt of the verdict, and the state would request that.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, Mr. Chapel has been a model person in the courtroom and has not caused any problems or anything, and we just don't think that's proper procedure when there's been nothing to warrant it, just some unspoken apprehension on the part of the deputies or something.

THE COURT: I suppose my feelings are somewhat the same as they were in that I think Mr. Chapel has a vested interest in this case insofar as his own behavior in the courtroom. And I think if it's an acquittal, he walks, in which case it won't be needed.

If he's convicted, then we've got a second stage. And I think if he's convicted, his life is on the line, and I think if there's any misbehavior on his part, it will only prejudice him, and there won't be any mistrial or anything that would inhibit going forward. If there's any behavior on his part alone, that would cause him prejudice. I think that would be a matter that he would do on his own, and we would go forward with the sentencing phase of it regardless of anything he might do.

So at this point I don't see any change in things that would require it, so the motion is denied. However, that might change during the course of the trial as far as any other proceedings.

MR. PORTER: Yes, sir.

THE COURT: And you can renew it if you think it's appropriate during the course of proceedings should that become an issue on down the road.

MR. PORTER: Your Honor, I think also that the Court is going to have to -- is probably going to have to make or at least give some preliminary instructions prior to the receipt of the verdict on both sides.

THE COURT: I think so, too.

MR. PORTER: I'm not pointing out anyone, but I think it's going to be important, particularly after Saturday.

THE COURT: Well, it's a unique kind of case, you know. I understand. It's a very emotional case all the way around, and I understand that. But at the same time, everybody is going to have to just -- whatever the verdict may be, that's the verdict without any outbursts or disruptions in the courtroom.

MR. PORTER: Your Honor, this is just a question. Is there a right at the guilt-innocence phase to poll the jury in the event of a guilty verdict, and we're going to move into the punishment phase?

THE COURT: How do you mean?

MR. PORTER: Well, if a verdict of guilty was returned, would the defendant have a right to poll the jury at that point?

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I believe we would. I mean, at that point, that's the end of the guilt or innocence like any other trial.

THE COURT: I think so.

MR. PORTER: I don't know the answer to that. It seems to me that it would be prejudicial in the potential intimidation of jurors. I don't know the answer.

THE COURT: Well, it may be, but I think -- whether it is or not, I think the defendant has got a right to poll the jury. I mean, historically, that's the place where the jury is polled. I don't recall the express language of the statute insofar as polling, but I think my feeling is the defendant would just have an absolute right to poll the jury on any verdict of guilty, misdemeanor or felony. That's my understanding. I think it's reversible error to refuse it.

MR. PORTER: I don't know the answer to that.

THE COURT: It's discretionary in a civil case, but in a criminal case my understanding of the law is it's reversible error to decline to poll the jury. And the fact that it's bifurcated I don't think would change it.

MR. PORTER: Your Honor, it's resolved. You're right.

THE COURT: Okay. All right. Anything else at this point, Mr. Moore -- I mean, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: Mr. Moore, Ms. Rogan?

MS. ROGAN: I just wanted briefly to revisit the alibi charge. We continue to object to the Court's giving it. I wanted to cite Patterson v. State, which is cited in the pattern charge. It's 233 Georgia 724. It's a case from the Georgia Supreme Court, and it's discussing a charge that was clearly burden shifting in that case in terms of having to disprove or establish the alibi beyond a reasonable doubt.

But what's notable about it is that the court cites and points out that all seven justices of that court at the time approved the following charge on alibi, which was at that time the pattern charge, which is essentially the pattern charge that appears in the current pattern charge with the exception of one sentence, which is the one we actually find the most objectionable.

And that's the sentence: The evidence presented with respect to time and place must be such as reasonably excludes the possibility of the presence of the defendant at the scene of the alleged offense.

I don't know when that language was added. Patterson v. State approves a charge on alibi that does not have that sentence. It would be our request that if you were going to charge on alibi, which we still object to, that you delete that particular sentence from the charge, and charge the charge as noted in footnote two of Patterson v. State on page 730.

THE COURT: How old is Patterson?

MS. ROGAN: It's a 1975 case, and, as I said, it's still cited as authority for the giving of an alibi charge. And it's not clear to me -- the other case that's cited, Allen v. State, a Court of Appeals case, has nothing at all to do with alibi, and I have no idea why it's in this section.

THE COURT: Well, it's been a while since I really researched the issue of alibi. There's a case I wrote the brief on -- Mr. Moore may have been the prosecutor; it's been a long time ago -- where there was an armed robbery and the issue -- alibi was never expressly raised. It was basically three defendants or codefendants and an armed robbery in which, I believe, they just testified and basically said something like 'we drove from point A to the motel and, you know, we were never over in Norcross or wherever it was, we were just driving through the area and don't know anything about it and never saw it.' We didn't try the case. We did the appeal on it and the Supreme Court -- that was when -- Judge Merritt did not charge on alibi. Nobody ever said the word alibi in the course of trial. It was never raised. The issue of alibi was never raised until appeal.

The Supreme Court first reversed the case, saying well -- they didn't say alibi but, in fact, that's what it was and it should have been charged. And then Bryant Huff made a motion for reconsideration and said they didn't raise it expressly or whatever. But, anyway, before the ink got wet on the first one, they vacated it and issued another one saying, well, they didn't expressly raise the issue of alibi, and, therefore, the court wasn't required to charge on alibi.

So I don't know. I'm not sure what the requirements are at this point in the circumstances we've got, I guess, where we don't have alibi witnesses saying, okay, I'm raising the defense of alibi, as opposed to saying, well, I was never there, I was over here doing something else, although we've got the alibi witnesses. We've got two or three alibi witnesses.

MS. ROGAN: They're not technically alibi witnesses, Your Honor. They're -- it was not our intention to argue that it was impossible, because the timing is so vague, that it was impossible for him to have been there. Our purpose in eliciting --

THE COURT: Well, let's leave it at this. I'll take a look at those cases.

MS. ROGAN: All right.

THE COURT: And then I'll do a charge based on -- what I might do is, we'll put the alibi charge in, and we'll do it in a separate block such that we can just pull it out or put it in, and take a look at the law, and you might do likewise and see whether or not it's -- one is required or authorized.

MR. PORTER: Your Honor, the position of the state on this is that it would be required absent a request -- even absent a request under the evidence of this case. We think it's applicable, if -- that the pattern charge is a correct statement of the law. The real issue to the state here is is can the Court give a charge tailored to the evidence when the defendant has objected to it.

THE COURT: Yeah.

MR. PORTER: That's the real issue here, not the -- not --

THE COURT: Well, I guess my feeling is if a charge is authorized, whether or not a defendant requests it or objects to it, if it is in fact an authorized charge based on the evidence, then there's no error. And I guess the question is in this case is one authorized in the circumstances we've got here.

MR. PORTER: Your Honor, we would argue that he's done all but say the words.

MS. ROGAN: But, Your Honor, the pattern charge is written in the --

THE COURT: I understand your argument.

MS. ROGAN: All right.

THE COURT: Take a look at those cases, and we'll revisit it in the morning briefly.

MS. ROGAN: All right.

THE COURT: Okay. Anything else, Ms. Rogan?

MS. ROGAN: No.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Anything else, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: You've got two hours apiece. Do you think -- realistically, do you think we'll use two hours?

MR. PORTER: I don't believe I will, Your Honor.

THE COURT: Okay. Ms. Rogan, Mr. Moore?

MS. ROGAN: Between the two of us, we may use an hour and a half. I don't anticipate using all two hours of our time.

MR. MOORE: I don't think that we're going to use all two hours, Your Honor. I don't want to waive it, but I don't think we will.

THE COURT: I understand.

MR. PORTER: I don't think I can talk for two hours.

THE COURT: I was just sort of trying to get some idea of where we'll be tomorrow as far as taking a recess. If we've got two hours worth of -- I don't know whether Mr. Porter is going to divide his or not. But if we get a couple of hours into it and we've got another couple of hours to go, then we're going to take about a ten minute recess somewhere during the course of the argument, and may take a recess before the charge if the argument, I guess, is --

If we've got a half hour or so before lunchtime, then we may go ahead and charge the jury and then let them eat or let them serve them lunch in the jury room. Well, with all the other stuff, that will probably be too much. We'll send them to the cafeteria, I guess.

But at any rate, charge and then just let them proceed on with everything else including lunch, or whether to break for lunch and bring them back for the charge. But I would not like to split the argument with lunch, so that's the reason I was thinking if there is going to be three or four hours worth of it, then I'd like to be sure and get all that in one block even with a break but before lunch so they hear all the argument and not split it off during the course of lunch.

I think what I'd like to do is let's commence at eight-thirty in the morning. That will give us a half hour to take a look at any issue like alibi. And if there's anybody that's got a problem with the printout on the charge, then that will give us a little time to go over that and get that put together and reassembled if we have to make any changes in it so that we don't wind up starting at eleven o'clock with those kinds of things.

I'll put the -- I don't know how long -- we'll probably be another hour before we get the charge put together in the final form. We'll put it together. Do you want two copies, Mr. Moore, one for you and one for Ms. Rogan, if you're going to be here.

MR. MOORE: If you could, Your Honor.

MS. ROGAN: That would be good.

THE COURT: Do you want one copy or two copies, Mr. Porter?

MR. PORTER: One is fine, Your Honor.

THE COURT: Okay. We'll put those in -- what are the boxes labeled out there at the bailiffs' --

MR. MOORE: Your Honor, they seem to have moved those boxes around, I guess, where people can't reach them. I would suggest maybe leaving them with a deputy downstairs at information desk.

MR. PORTER: That would probably be best.

THE COURT: All right. That'll be fine. We'll leave them there. Anything else, Mr. Porter?

MR. PORTER: No, sir, nothing from the state.

THE COURT: Ms. Rogan? Mr. Moore?

MR. MOORE: No, Your Honor.

MS. ROGAN: No, Your Honor.

THE COURT: We'll be in recess until eight-thirty in the morning.

[Proceedings were recessed for the day, September 4, 1995, at 6:00 p.m.]

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Reporter's Certificate this page

6391