P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia; 8:30 a.m., Tuesday, September 5, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]

[Proceedings reconvened with the jury not present in the courtroom.]

THE COURT: Good morning.

COUNSEL: Good morning.

THE COURT: Mr. Allen, insofar as any other jury rooms, do we have any of those available? Is there anybody to ask?

THE BAILIFF, MR. ALLEN: I don't know, Judge. I'll go check and see, because everybody is having court today, but I'll go see what -- how many do you need? Three of them?

THE COURT: Well, you need three extras, I guess.

THE BAILIFF, MR. ALLEN: You're going to separate each one of them?

THE COURT: Yeah.

THE BAILIFF, MR. ALLEN: Okay. Well, I'll go see what I can find.

THE COURT: See what you can find on this floor and the second floor.

THE BAILIFF, MR. ALLEN: Okay.

THE COURT: Okay. Does everybody have a copy of the verdict form?

MR. PORTER: Yes, sir.

MS. ROGAN: Yes.

THE COURT: Any objection to the form of the verdict? I believe that's as we went through it yesterday, except 1 and 2 is on page one and three, and Count 3 and 4 are on page two.

MS. ROGAN: That's fine.

MR. MOORE: Are you asking Mr. Porter or are you asking us, Your Honor?

THE COURT: Both.

MR. PORTER: No objection from the state, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No objection from the defense, Your Honor.

THE COURT: Okay. That will be the form of the verdict. Did you have an opportunity to review the written charge I prepared for the jury?

MS. ROGAN: Yes.

MR. PORTER: Yes.

THE COURT: Does anybody have any objections to that this morning?

MS. ROGAN: None that we haven't already raised.

MR. MOORE: We continue our objections previously raised but no new ones, Your Honor.

THE COURT: All right. I left alibi in. I think alibi is appropriate. I took a look at some of the cases, and I just think alibi is adjusted to the facts of the case. Maybe you can waive it and maybe you can't, but I think all that notwithstanding, I think that's an appropriate charge. I did modify the language of it so that the last three or four words provide the March '95 update to the pattern charges so that -- I've forgotten what it was before, but I changed it to 'you may convict,' I think are the words.

MS. ROGAN: That's correct. We still, of course, object to the inclusion of the sentence that wasn't in the Patterson case, the last sentence on page seven, but I have nothing more to add.

THE COURT: Okay. All right. I have a copy of the charge to provide to each of the jurors when they come in, including the alternates, and I contemplate the charge going out with them, a copy of it, to take it with them along with their notes. Any objection to that, Mr. Porter?

MR. PORTER: Your Honor, we would ask that they be provided the charge immediately prior to the charge of the Court as opposed to when they walk in the courtroom.

THE COURT: Oh, I contemplate doing that. They'll have it when I charge them. Yeah. Yeah.

MR. PORTER: But not during the arguments.

THE COURT: Yeah. Yeah. But when I start the charge, we'll pass them out. Any objection to that and taking it out with them, Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: All right. Who has the original indictment?

MR. PORTER: I do. [Presenting to the Court]

THE COURT: Let's see. I have a copy I'll use in charging the jury. I'll leave this up here with the original charge, original of the verdict form.

What about the exhibits this morning? Do we have all those here and are they all in order?

MR. PORTER: Your Honor, on behalf of the state, they've been brought up and placed on the shelves right in front of the bench and alongside the court reporter. And I notice that the defense exhibits have essentially been placed over here.

I can state on behalf of the state that the documents which are to go with the jury, according to the Court's rulings, are here. The items which were excluded from the jury's presence were secured in my office, and we have brought them up and double checked them by numerical order.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, the defense exhibits are here in the courtroom. We got them in order last night, although Ms. Rogan is going to use some of them in her argument. They may not be in order now, but they're all here.

MS. ROGAN: We separated out the ones that aren't going to the jury, and they're behind us on the front row.

THE COURT: Do you want an opportunity to review the state's exhibits and make sure they're all here, Mr. Moore? And, Mr. Porter, do you want to take a look at the defendant's?

MR. PORTER: No, Your Honor. I trust Mr. Moore as to that detail.

MR. MOORE: Your Honor, before you came in we looked at everything. I think everything that everybody wants to use in their argument is here and available, and we can go over it all before it goes out to the jury just to be sure.

THE COURT: Yeah, we'll do that.

MR. MOORE: We checked it before, but we want to double check it probably before we send it to the jury.

THE COURT: Okay. The indictment will be going out. We've been through all the requests to charge, and we have the verdict form. The state will have two hours. You'll have opening and closing, Mr. Porter.

MR. PORTER: Yes, sir.

THE COURT: Mr. Moore and Ms. Rogan, you'll have two hours max. You can divide it however you want so long as you argue once, Ms. Rogan, and, Mr. Moore, you argue once, a maximum of two hours divided however you please.

MR. MOORE: Your Honor, we would request that the Court take a break about every hour. We hope it would be between when somebody is stopping, you know.

THE COURT: Well, I contemplate doing that. I think four hours is going to an awfully long time for -- three or four hours of argument with no recess, so I would -- every hour or hour and a half at a good break point, we'll do that, and then we'll take a short recess before we commence the charge.

Let's look at our jurors at this point. At this point we have juror number six, who's number one. Juror number 32 is the second position. Juror number 70 is third. Juror number 73 is in the fourth position. 74 is in the fifth position. Juror number 95 is in the sixth position. The seventh position is juror number 106. 136 is in position number eight. 137 is in position number nine. Juror number -- the tenth position is number 145. Juror number 182 is the eleventh juror. And juror number 206 is the twelfth juror. Those will be the jurors going in the jury room to deliberate. Does anybody have any disagreement with that?

MR. PORTER: Your Honor, I think we went over it yesterday, and we didn't have any disagreement with the names.

THE COURT: Okay.

MR. PORTER: I don't recognize the numbers and I don't have the document in front of me.

MR. MOORE: That sounds right to us, too, Your Honor.

THE COURT: That incorporates the three jurors that have been excused during the course of trial, and that leaves us with three alternates, with the next alternate being juror number 223, if for any reason one of the twelve can't proceed on.

Anything else at this point, Mr. Porter?

MR. PORTER: No, Your Honor.

MS. ROGAN: Just one thing, Your Honor. I want to make sure I'm clear on the Court's ruling with regard to particularly the financial charts which are not going out to the jury. The line of cases we were discussing yesterday indicates that it's appropriate to use such exhibits during argument, and I wanted to make sure that that was okay with the Court.

THE COURT: That's my recollection as far as the rulings yesterday in going through. Mr. Porter, any disagreement with that?

MR. PORTER: No, Your Honor. I believe they are appropriate for argument.

MS. ROGAN: Okay. I just didn't want to do it and then run into a problem.

THE COURT: All right. Is there anything else we need to take up before we bring the jurors in? We're going to take a short recess, but --

MS. ROGAN: Five minutes would be good.

THE COURT: But any other matters we need to address before argument and charge?

MR. PORTER: No, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Okay. Let's take five minutes and then recommence.

[Break taken; proceedings resumed with the jury not present in the courtroom.]

THE COURT: Let me caution the -- I know we have family and friends and relatives involved with the victim and defendant, and I know emotions are running high.

Let me suggest during the course of the argument by the state, if Mr. Porter is arguing, if Mr. Moore is arguing, if Ms. Rogan is arguing, there ought not to be any expressions. There ought not to be anybody making any kind of gestures or expressions or any of those kinds of things in the courtroom. There ought not to be any outcries and there ought not to be any disturbances of any kind. If there is, anybody who does that will be summarily removed from the courtroom and will not be allowed back in during the course of any of the proceedings.

Anyone who wants to stay and watch as a spectator is certainly welcome to, but that's with -- on the condition there be no disturbance, no interference of any kind with respect to either of the parties during the course of the balance of the case.

Is the state ready?

MR. PORTER: The state is ready, Your Honor.

THE COURT: Defendant ready?

MR. MOORE: Yes, Your Honor. Ms. Rogan will be handling the first part of our argument so the Court will be aware.

THE COURT: Are you going to waive opening, Mr. Porter?

MR. PORTER: No, Your Honor.

THE COURT: Okay. I thought Ms. Rogan was ready to proceed on. Okay. Bring the jury back, please.

[The jury was escorted to the courtroom.]

THE COURT: Good morning, ladies and gentlemen.

[Jurors respond]

THE COURT: Everybody find their pens, pads, and notes? Okay. Let me tell you what we're going to be doing this morning.

What we have left in this case is argument and charge. We have several hours of argument on behalf of the state and on behalf of the defendant, and then we'll have the charge of the Court as to the applicable law in this case.

We will be taking recesses every hour or hour and a half or so during the course of the proceedings this morning, but I hope to have all of it done before we take a lunch recess, and at that point the case will be yours to decide.

When we commence the charge, that will be the last thing we'll do this morning, and when we commence the charge, and that will be about thirty minutes worth by the Court, there will be a written copy of the charge which will be made available to you so that you can follow the charge as I read it to you. And that will go with you in the jury room, and you'll have that available to you along with the exhibits and your notes and the indictment.

Mr. Porter, do you wish to argue on behalf of the state?

MR. PORTER: Yes, Your Honor. Thank you.

OPENING ARGUMENTS BY THE STATE

MR. PORTER: Good morning.

[Jurors respond]

MR. PORTER: A hundred witnesses, three hundred exhibits later, our job is almost done, and your job will continue as you begin to deliberate what is the truth of this case.

And the Court referred to what we're doing here as argument, and I don't like to think of it as argument because I don't believe that I'm here to argue. I prefer to think of it by its old name, which is a summation, which is my opportunity and Mr. Moore's opportunity to bring together into a coherent whole unfortunately what the rules of evidence have required us to divide into its sub-atomic particles, because unfortunately the rules of evidence require that each fact be proven distinctly and discretely from every other fact.

And sometimes in a trial such as this, we start to see all trees, and we don't see any forest. And so the job of the attorney and the opportunity of the attorney at the end is to bring together the evidence that he believes will present a coherent theory of the case.

In order to do that, we need to begin at the beginning, and the beginning is the indictment, because this forms the issue that you will decide. You will decide the guilt or innocence of Michael Harold Chapel based upon these charges and the evidence that has been produced.

So in light of that, I'd like to talk -- use my first opportunity -- and I'll get to talk to you twice today under the rules. I'd like to use my first opportunity to begin with the indictment and talk to you a little bit about the applicable law in this case to which you will apply the facts to reach your verdict.

The indictment charges in the name and behalf of the citizens of Georgia that the grand jury charges and accuses Michael Harold Chapel with the offense of murder in that the said accused in the state of Georgia and county of Gwinnett on the 15th of April 1993 did then and there unlawfully and with malice aforethought cause the death of Emogene Thompson, a human being, by shooting her in the head with a firearm, contrary to the laws of the state, good order, peace and dignity thereof. That's Count 1.

Count 2 is that Michael Harold Chapel committed the offense of felony murder in that on the 15th day of April 1993 he did then and there unlawfully while in the commission of a felony, to wit armed robbery, cause the death of Emogene Thompson, a human being, by shooting her in the head with a firearm.

Count 3 of the indictment charges Michael Harold Chapel with the offense of armed robbery in that on the 15th day of April 1993 that he did then and there unlawfully, with the intent to commit theft, take United States currency, the property of Emogene Thompson, from the immediate presence of Emogene Thompson through the use of an offensive weapon, to wit, a firearm.

Finally, Count 4 of the indictment charges Michael Harold Chapel with possession of a firearm during the commission of a crime in that on the 15th day of April 1993 he did then and there unlawfully have on his person a firearm during the commission of a felony, to wit, murder, which is a crime against the person of another, contrary to the laws of the state, the good order, peace, and dignity thereof.

This document forms the issue that those of you -- all of you will decide. And in deciding that, the first order of business is to take the facts as you have heard them and apply the law as the Judge will give you in his charge, and I'd like to talk a little bit about that.

The first thing that I'd like to talk about are what are called elements of crime. Each crime under our law has certain separate and distinct elements that the state must prove, and we must prove them beyond a reasonable doubt.

In Count 1 of the indictment which charges Michael Harold Chapel with murder, the state must prove that Michael Harold Chapel intentionally caused the death of another human being with malice aforethought.

Now, one of the terms which is a term of art in that phrase is malice aforethought. Unfortunately, we have all grown up in the television generation, and we tend to listen to screen writers, and we tend to think about things like premeditation and preplanning as evidence of malice, and that's not true.

The Judge will charge you that malice under our law is the unlawful killing of another person. There's an old case that says that malice may be formed in an instant though it is regretted for a lifetime. So there's no requirement that the defendant preplan or premeditate. There's only the requirement that he unlawfully commits the act that causes the death of the other person. And that's malice and I want you to keep that in mind.

Premeditation, of which there is evidence in this case, is indication of malice. It is an indication of the proof of malice.

Count 2 of the indictment is felony murder. Felony murder is a theory that if you set out to commit a felony, you're responsible for the consequences of the action. If you set in motion a felony and someone dies as a result of that, whether you meant it or not, you're responsible. And Count 2 of this indictment charges this defendant with felony murder.

Count 3 is armed robbery. The elements of armed robbery is that with the intent to commit a theft, which is an unlawful taking, you take property of another person by use of force or an offensive weapon. Remember, under armed robbery, whether you take a penny, whether you take a dollar, whether you take approximately seven thousand dollars, it's all the same. There's no requirement for value or that the state prove value because it's up to you to decide, and the crime as charged is a crime against possession.

The other thing that you should keep in mind is that under the facts of this case, the armed robbery did not have to occur while the victim survived. It is legally possible, and the judge will charge you, that a person who has been killed for the purpose of robbery can be robbed. There's no legal technicality that says you can't rob a dead person, because you can, particularly if you carry out the crime for the purpose of the robbery.

And, then, finally, Count 4 of the indictment, which is possession of a firearm during the commission of a felony. It is a violation of our law to have a firearm during the commission of any crime against the person of another. And I would submit to you that murder is the ultimate crime against a person of another, and, therefore, the state has alleged that crime.

Now, in judging the evidence in this case, the first thing that you begin with is what's called the presumption of innocence. The presumption of innocence, the judge will charge you, the defendant starts the case with the presumption of innocence, and that presumption remains with him until it is rebutted by the state.

Imagine, if you will, that the presumption of innocence is a brick wall that can be battered down by the repeated shelling of fact and reality until it no longer exists, until it has been rebutted by the state. And that is the presumption of innocence.

The burden of proof, the judge will charge you, always remains with the state. It is the burden in our society for the state to prove a citizen guilty, and we must prove that citizen guilty beyond a reasonable doubt.

What is a reasonable doubt? The judge will charge you that a reasonable doubt is the doubt of a fair-minded and honest juror honestly seeking out the truth. It is not an arbitrary or capricious doubt. It is a doubt to which a reason can be placed.

What does that mean? Well, I can tell you one thing it doesn't mean. You always see on TV that we have to prove our case beyond the shadow of a doubt. Well, that's the -- a shadow of a doubt is the figment of an imaginative screen writer's imagination. It sounds good, but it has no place in a court of law.

A reasonable doubt is just what it says. It's a doubt to which you as a juror can place a logical, sound reason from the evidence or the lack of the evidence, and that which you decide is sufficient to believe that the defendant is not guilty. It's not a whim or a guess or a suspicion, but it's a reasonable logical doubt as to the defendant's guilt.

Now, why do we have this? Well, because the law recognizes that all criminal investigations are conducted by humans, and any time you have people involved, there cannot be an expectation of a hundred percent certainty. It would never be possible in any circumstance to present proof of any case to a hundred percent certainty, and so the law has given the burden to the state of proving the defendant's guilt beyond a reasonable doubt.

And when we selected you as jurors, one of the things that we looked for was your ability to reasonably assess the evidence, to reasonably consider the alternatives, and to reasonably reach a verdict that speaks the truth. And I'm confident that you can do that with an understanding of the burden of reasonable doubt.

Now, how does the state carry its burden? Well, we carry it through evidence, through the presentation of evidence to you as jurors. And there are really two types of evidence. There's direct evidence and there's circumstantial evidence.

Direct evidence is evidence where the witness testifies that they saw or heard or tasted or felt the thing to which they testify. Mr. Kautter's testimony was direct evidence.

Circumstantial evidence is a little bit more difficult. You always see on TV again, 'well, you don't have much of a case; it's all circumstantial.' And think about that for a minute.

Let me give you the definition of circumstantial evidence. Circumstantial evidence is evidence where you take two facts, and you draw what's called an inference from that.

An inference is where you take two facts together and you reach a conclusion from the two facts. Let me give you an example. If you had gone to bed last night and if you had been allowed to watch the TV news, you might have heard in a hypothetical situation that it was going to be below freezing last night. And if you woke up in the morning and the ground was covered with white frozen material, what is your inference? That it snowed last night. That's an example of circumstantial evidence, when you have to put two facts together and reach a conclusion. And you can see that in our daily lives, we operate off circumstantial evidence all the time. Most of the information that we process comes from circumstantial evidence from which we draw our inference.

And the law recognizes this. The law places no difference in the weight or credibility of circumstantial evidence versus direct evidence. They only place one additional burden upon the state. If the state relies on circumstantial evidence in its case to the exclusion of all others, then the state must exclude every reasonable hypothesis except the guilt of the defendant.

Now, what are the other types of evidence -- well, what are the types of evidence that we've heard in this case?

The defendant has put up evidence of what's called good character. Good character is a solid defense or is what's called a substantive defense by the defendant saying that he's a man of good character. The only way in which this evidence can be considered by you is evidence of what's called general reputation or his reputation in the community and would someone believe him under oath. But it is only one part of the evidence in this case, and like all other evidence, it can be overcome or rebutted by the evidence that's presented in other areas.

Another form of evidence that we've heard is eyewitness identification. And you as jurors are the sole judges of the credibility and believability and quality of the evidence that you've heard. And the Court will charge you that when you consider eyewitness identification, there are some factors that you need to look at.

One of those factors are the physical conditions surrounding the eyewitness identification, the lighting, the distance, the degree of attention which the person was paying to the person that they've identified, the specificity of their description.

Another thing that you consider in considering eyewitness identification is the degree of attention which the person was paying to the person that they've identified.

And, finally, the last thing that you'd consider is the consistency of their descriptions and the consistency of their identification from one time to the next to the next to the next. Have they remained consistent or have they wavered. And those are the things that you consider in eyewitness identification.

Another form of evidence that we've heard has to do with experts. Now, the law says that an expert is not entitled to any greater weight than any other witness, and that's a good statement of law. But there's one thing that you've got to consider. Not every witness can come in and testify about the things that experts do, and so you have to consider the testimony of experts because they're there to teach you. They're there to teach you about the things that are part of the evidence. So when you consider the testimony of an expert, they're no more worthy of belief than anyone else but they have knowledge that we don't have. And so you should consider that when you consider the testimony of experts.

The defendant has raised a defense, and the Court will charge you, of what's called alibi. Alibi is a legal defense that says it was impossible for me to be at the scene of the crime; I could not be there; I was somewhere else. And the defendant has presented witnesses to that. You should consider the testimony regarding alibi, you should consider the credibility of that testimony, and you should consider the quality of that testimony just like any other witness.

And you should also look at one basic fact. It's that the defendant's evidence is subject to the same scrutiny that the state's is. Once the defendant takes up the burden to bring you evidence, he's subject to the same scrutiny as the state.

And that brings us to the idea of credibility of witnesses or believability of witnesses. You've heard almost a hundred witnesses testify in this case of a variety of things, from Mr. Smith, who began the case saying that he discovered the body of Emogene Thompson to the last witness yesterday, Dr. Herrin. And they testified about things all over the -- all over the scale from expert witnesses to people who just happened by to evidence technicians to people who drew blood. All the people who were involved in this case. And it's your job as jurors to decide the credibility or believability of those witnesses.

Now, you ask yourself how do I do that. You do that the same way you do it in everyday life. You do it just like when you talk to your child or to your friend or to your spouse, and you make the decision as to whether or not they're telling the truth. You use your experience, the experience that you came into the jury box with.

And what are some of the factors that you look at? What's their interest in the case? What is their interest in misleading you or telling you the truth? Do they have a reason? Are they biased? Do they favor one side or the other? Do they have some other reason not to tell you the truth? Because the law presumes that when a person gets up on the witness stand and swears to tell the truth, that they do. And only you as jurors can make those decisions.

Another way to look at the credibility of witnesses is their demeanor, how did they act. How did they act under cross-examination? How did they act under direct examination? Was there a difference? Did it mean anything? Those are the considerations you make.

And I would add one more that the Court will not charge you because it's not part of the charge. Consider the interrelationships of the testimony. Consider how the testimony ties together from one witness to the next, how does one witness support another, in determining the credibility of each individual witness.

How does the testimony of Delores Burel tie to the testimony of Marsha Arnold that ties to the testimony of Michael Thompson that ties to the testimony of Virginia Chance?

How does the testimony of Keith Goff tie to the testimony of George Herrin that ties to the testimony of Sidney Kushner?

How does the testimony of Karl Kautter tie to the testimony of Paul Omodt, who ties to the testimony of the Guthries who heard the shots that ties to the testimony of the people who drove by?

And how do those people and how does their testimony form a mutually supportive whole? Because the law says that if you can take the testimony of the witnesses and reconcile it -- and you should. You should believe that everyone told the truth. But if you can't, and I submit to you in this case you can't, then you must decide who you believe. And as part of that decision, I urge you to consider the believability as it is supported by the various witnesses into an interlocking whole.

Now, when you take the law that I've just described to you and you take the facts, the conclusion which speaks the truth in this case is that Mike Chapel came into contact for the first time with Emogene Thompson on April 3rd, 1993, when he reported -- when he responded to the report of a theft of her money, that he decided at that time that she was a doper. He decided at that time that he needed the money, and so he stayed in contact with her.

And on the night of April the 15th, he lured her to the Gwinnco Muffler on the pretense of continuing to work her case. He was running the boo. And he got her out there at about nine-thirty or nine-forty that night, and with two shots, he ended her life. He stole her money, and in the process of taking the money out of her purse, he transferred her blood to the seat of his patrol car, and then he left. And he left and had the misfortune of driving by Karl Kautter. He went on -- he got a call. He went on to the call, but he left, saying he had problems of his own. And he did.

And within days -- as a matter of fact, the next day -- he was spending his ill-gotten gains, which was in the form of hundred-dollar bills. He was spending it at car washes. He was buying T-shirts. He had money to spare. In fact, the evidence has shown there was almost five thousand dollars. I said in my opening statement twenty-three hundred, but the evidence has shown there was almost five thousand dollars in unaccounted for funds that Michael Chapel had in the week after the murder of Emogene Thompson.

And, ladies and gentlemen, as we said in our opening statement, the state intended to prove the guilt of the defendant beyond a reasonable doubt through the presentation of credible, believable, convincing evidence. And when I come back and talk to you in the last part of my argument, we'll go into that in detail, and we'll talk about it, and you will be as sure as you can that the defendant is guilty beyond a reasonable doubt. Thank you.

THE COURT: Ms. Rogan?

MS. ROGAN: Thank you, Your Honor.

CLOSING ARGUMENTS BY THE DEFENDANT - MS. ROGAN

MS. ROGAN: Good morning, ladies and gentlemen. We've kept you here a long time, and I know you're tired. We've asked extraordinary sacrifice from you. We've kept you away from your families, away from your jobs, away from your celebrations of holidays and other special events, but we can tell that you have endured the sacrifices we've asked of you uncomplainingly and that you've taken your job seriously because you understand the seriousness of the matter before you. We have seen the careful attention that you've paid to all of the evidence in this case, and on behalf of myself and Mr. Moore, and especially of Michael Chapel, we appreciate your dedication through these weeks.

Michael Chapel has been accused of a heinous crime, the most serious offense of which a person can be accused in our state. Michael Chapel is on trial for his life. It does not get more serious than it is in this case.

Now, we have endeavored throughout the trial to give you some insight into who Mike Chapel is. Aside from being a devoted son, husband, and father, Michael Chapel was, until his career was so precipitously and tragically ended, a fine police officer. He was bad at paperwork admittedly, but he was a good cop.

He participated in special units, the SWAT team, the Delta unit, doing the dirty work that we count on our police officers to do, street level drug interdiction in some of this county's most crime-ridden neighborhoods.

He used his imposing size to advantage to intimidate when necessary, to be a forceful physical statement of the authority of the law. How many of the other police officers who came in to testify could match Mike's bulk? There were only a handful who were nearly as tall as he was and nearly as broad.

Significantly, how many of the other officers who came into this courtroom, even the state's most enthusiastic prosecution witnesses, refused when asked to admit that Mike Chapel was a good cop. He did some of the most dangerous work that we ask our police officers to do, and he did it well. He got twenty-six letters of commendation over an eight-year period.

So how is it that this fine police officer ends up before you as the defendant in a capital murder prosecution?

As Mr. Moore has told you in the opening statements, because he had the misfortune to be the one to respond to a call at Emogene Thompson's house. He answered a call on April 3rd of 1993, as you are all well aware. He encountered there a situation that did not really require police intervention. It was pretty clear to him, and it was pretty clear to Ms. Thompson who was responsible for taking her money. It wasn't a burglary, and she did not want to prosecute. She was a concerned mother, as Mike characterized her, with a son who had a host of problems. She did not want him to go to jail. She did want her money back.

True enough, Mike became a little suspicious about the large quantity of money that apparently was in Ms. Thompson's house, and, true enough, he did -- his drug interdiction antennae went up, and he thought maybe there's something more afoot here. He saw a relatively fancy car in the parking lot in front of a trailer, and it didn't really make sense to him.

So what did he do? He wrote down her tag number before he left. He wrote it down on this pad, and the state has made quite an issue out of the fact that he wrote her tag number on this pad. But I ask you to remember, ladies and gentlemen, how it is the state found out that he'd written her tag number on this pad. It was because he showed this pad to Sergeant Cline, during the week between the homicide and his arrest, to show him another piece of information on the pad, incidentally, the name Dennis Shelton, which is a name that came up from time to time during the trial, a friend of Michael Thompson's. He didn't try to hide the fact that he had written her tag number on the pad. If he had some master-minded plot to kill this woman, wouldn't he have taken steps to conceal the fact that he'd written her tag number on this pad?

The state has also made quite a big deal out of the fact that Mike did not log that particular call on his log sheet for April 3rd of 1993. I submit the state will argue and has argued that the failure to log that call was an indication that Mike was trying to conceal his contact with Ms. Thompson, trying to hide the fact that he knew she had all this money in her trailer.

He also failed to write a report. At least he failed to turn a report in. Under the state's theory, given these two omissions, Mike must have formulated, that very day while he was sitting in Ms. Thompson's trailer with her, a plan that he was going to rob and kill her two weeks later.

What really happened, ladies and gentlemen? Mike forgot to log the call on his log sheet. Not the first time he has done that and not the last time he had done that. In fact, when we got around to the day of the murder itself, April 15th, what did we find? Lo and behold, he forgot to log his first call out that day as well. He told you, as he testified, that he filled his log sheets out at the end of the day and that often the early calls of the day became a little foggy by then.

And what about the report? Well, ladies and gentlemen, he did write a report. He just forgot to turn it in. There was no need for a report if the lady didn't want to prosecute, so this report was found in his car after his arrest, along with this report from another call later that same day, another call that he forgot to turn his report in for. Is that evidence of murder, ladies and gentlemen?

The whole theory really falls apart when you consider the most significant part of the puzzle of that day, and that is that Mike told Sergeant Stone, his friend Rooster, almost immediately after the call to Ms. Thompson's house about the call, about the money she had, and about the fact that she didn't want to prosecute and he didn't feel like writing a report. Sergeant Stone advised him to write a report and he certainly should have turned his report in. But how does it make sense that he would tell Sergeant Stone about his connection to Ms. Thompson if he were simultaneously planning to kill her two weeks later? That's something the state, I submit, will not have a good explanation for.

It makes about as much sense, ladies and gentlemen, as the state's theory about what happened the night Ms. Thompson was killed. The scenario that they have presented that they want you to believe beyond a reasonable doubt is that Mike planned a meeting with Ms. Thompson to compare serial numbers on bills she still had with bills that he claimed to have found and to match a money band or maybe it was something about fingerprints. We're not really clear what this meeting was supposed to be about. But the plan was that he would pull her over by the side of the road to have this meeting.

Where did the idea of this meeting come from? It came from Ms. Thompson's circle of friends, other women to whom she had mentioned her predicament with the money, the troubles with her son, and her encounters with Officer Chapel.

One point I'd like to emphasize on that is that when you really think about it, the circle of people who knew about Ms. Thompson and her money was much wider than the state has implied through this trial. They have asked you to believe that Mike Chapel was the only person who knew about the money. Well, that's not true.

Sergeant Stone knew about the money. Any officer who overheard Mike and Sergeant Stone talking about the call knew about the money. All of Ms. Thompson's friends who you heard testify knew about the money. Her son Michael knew about the money. His friend Dennis Shelton knew about the money. It's really quite a wide circle of people who knew. But you heard testimony from three of Ms. Thompson's closest friends, who came in to this court and told you as best they could remember what she said to them about this meeting.

Remember when we asked each of you on voir dire whether you had ever had a situation where information got transferred orally incorrectly, where someone heard something that really wasn't what the other person had said. Well, we asked you that question for a purpose, and that was because it happened in this case, ladies and gentlemen.

There is no doubt that Ms. Thompson said something to her friends about hundred-dollar bills and money bands. There's no way these ladies could have made that up. But the context in which that information got transferred became like a game of telephone.

I'll start with Ms. Chance, Ms. Thompson's colleague at her place of employment, CIBA Vision. Ms. Chance was somewhat vague about the circumstances of what the money band -- she said there was something about money surfacing and money bands, and she really wasn't very clear on what was going on. She had no specific information about any alleged meeting.

Something else I'd like to point out about Ms. Chance, which I think is a very minor point, but it's indicative, nonetheless, of the attention she might pay to things and perhaps the closeness between the two.

We asked Ms. Chance what type of cigarettes her good friend smoked, and she said Pall Mall. Well, we've entered into evidence, ladies and gentlemen, the cigarette packages, and, in fact, the cigarette holder that came out of Ms. Thompson's car after she was killed, and you'll be able to see these photographs. She smoked Now cigarettes. As I said, a minor, minor detail, but indicative, nonetheless, of how observant a witness is, how well she really knew the person whose words through her you're being asked to believe.

Ms. Arnold, Ms. Thompson's neighbor, also knew something about money bands and a meeting. But remember, Mr. Chapel had told Ms. Thompson, number one, about a way to bluff Michael Thompson and, number two, that he would, if he ran into Michael Thompson again, endeavor to intimidate or bluff him into giving up the money.

Remember the videotape. He explained to Investigator Burnette and Lieutenant Latty what he was doing. As he said, he was trying to bluff the boy, a not uncommon tactic that might be used with, as he called them, the criminal elements, a tactic he used, remember, very successfully with Ms. Arnold's own daughter.

The last witness you heard from was Ms. Delores Burel, perhaps Ms. Thompson's closest friend. She alone is the one, ladies and gentlemen, who provided the information that there was actually to be a meeting that night, although, remember, she never knew whether there was a phone call to arrange the meeting. She had it in her head that Ms. Thompson was awaiting a telephone call.

I urge you, ladies and gentlemen, to review from your notes and from your recollections the testimony of Ms. Burel very carefully and very critically. Her statements about what Ms. Thompson told her are essential for the state's theory in this case to work.

How many times did Ms. Burel say in answer to a question I may have asked, 'well, if she told me, it went in one ear and then it went out the other.' How many times did Ms. Burel have difficulty answering a question I posed to her because she was hearing something different than the question I was asking her?

How many times did Ms. Burel refuse to acknowledge her statements to the police at the time, in April of 1993, remembering now that she had told the police certain facts, for instance, that she knew Ms. Thompson was going to be carrying her money with her, when, in fact, she never told the police that at all in 1993.

Mr. Porter asked you to weave together all of the different information that you got. I'm going to ask you to do something else, which is consider the source of the information you heard, and consider the fact, ladies and gentlemen, that these ladies have spoken to each other.

Remember, Ms. Burel had to get Mr. Chapel's name from Ms. Arnold before she met with the police. She didn't remember his name, although Ms. Thompson had told her his name. These ladies talked to each other, and then talked to the police, so of course their stories are going to coalesce in some way.

And I'm not ascribing any ill will to these ladies. They were searching desperately for an answer to the horrible news that their friend had been killed, but I submit that it begins to look exactly like a game of telephone.

There's also a credibility issue for you to resolve regarding the information about a meeting that night, and that is that Ms. Burel testified to you that she and Ms. Thompson spoke constantly, in her words, on the telephone that night between four-thirty and eight-thirty p.m., up to six phone calls.

Well, Michael Thompson came in and testified that he and his mother were out at the Waffle House having dinner that night between seven and eight-thirty. Which one is right? They can't both be right.

Ms. Burel said she never called the house and failed to find Ms. Thompson there. Either Ms. Thompson was at the Waffle House with her son or she was on the phone with Ms. Burel, but she couldn't have been doing both.

So who's telling the truth? Who's mistaken? Who's embellishing? The bottom line, ladies and gentlemen, is Ms. Burel, a reliable, a reliable witness as to exactly what it is Ms. Thompson said about those money bands? Is that the kind of evidence on which you can premise a conviction for murder? I submit that it is not.

There was no meeting, ladies and gentlemen. No one can ever identify that a meeting was planned, and the circumstances that we have heard about from that night suggest just the opposite of a meeting.

Among the many things that Investigator Burnette and then Lieutenant Latty badgered Mike about during the videotape that you watched so patiently a week ago was the presence of a patrol car at the scene, and that's evidently true enough and something that I'll talk more about in a minute.

But what other conclusion did the officers come to based on the evidence as they perceived it at the time? That the patrol car had flagged Ms. Thompson down at a traffic stop. There was a receipt in her lap, which suggested to them that she had either pulled from the visor or from the glove compartment her insurance and registration papers, the standard things that someone would do when they're stopped by the police in a traffic stop.

Two of the witnesses saw a police officer approaching the car, flashlight in hand, leaning over as if to look at the papers and make sure that the person was an authorized driver. It looks exactly what they said it looked like, a police pullover.

But what's wrong with this picture? If their scenario is correct, it would have to be virtually any other cop but Mike Chapel doing the traffic stop, because according to them, Ms. Thompson knew Mike Chapel and was meeting him on purpose.

If this were a planned meeting, why on earth would he be checking her license and registration? He knew who she was. He wasn't pulling her over for a traffic stop. He was pulling her over for a planned meeting, according to them. It doesn't make sense that he would be checking her credentials.

It would certainly make sense if it were a different officer who pulled her over on the pretext of a traffic stop to take advantage of the fact that she had this money in her purse.

And if Mike were actually meeting her that night to compare these illusory money bands and bills, why would he arrange it in the middle of the rainy night at the side of a road where, as you saw, twenty cars at least passed by? Why wouldn't he meet her at her trailer? At Waffle House? Why wouldn't he at least get in the car with her if he were going to be having a meeting? Why would he walk up to the car and lean over as if he were checking her license and registration? That's completely inconsistent with their theory that he was meeting her to compare the serial numbers on some money.

The evidence actually rules out Mike Chapel as the person who stopped that car, based on the traffic cop scenario. But that's not the only evidence that rules out Mike Chapel as the patrol car and the officer who was seen at the scene.

You heard from ten witnesses, the drive-by witnesses, the persons who were on PIB, no interest in this case whatsoever. Each one described or selected from this photo array a car that was not the car driven by Michael Chapel that night. You can recall the testimony, but each witness picked out either number six, which is blown up here, or number twelve. And everyone who knew the car that Mike drove, which we have pictures in evidence, said it looked like number eleven here.

And why did they identify the car? Most of them, it was because of the yellow stripe, a very distinctive yellow stripe up over the roof. Those that thought it were blue also said up over the roof. There's no up-over-the-roof marking on this car.

The witnesses also placed the car at the scene between nine-fifteen and nine-thirty. Some of them as late as nine-forty. None later than nine-forty. And I urge you to review the testimony that you heard.

Maryann Johnsa picked number six, the yellow car. She said coming home from church, she knows she was home by nine thirty-five. She looked at the clock. She estimated they passed Gwinnco Muffler about nine-thirty that night. Her daughter Stacy Turner picked number six or number twelve. She said they were driving by between nine-twenty and nine thirty-five. Sean Charles, Ms. Johnsa's son, picked number twelve and said it was one of the older model cars.

And you'll notice on the array which you'll have with you, these are boxy cars, not the rounded car like the new model.

Ed Schmanski picked number six. On his way out for a birthday drink with his sister, he left his house, he said, between nine and nine-fifteen, passed Gwinnco Muffler about two minutes later, nine-twenty at the latest, ladies and gentlemen.

Allen Robertson originally said it was closer to ten o'clock in his statement. But once the district attorney's office reminded him about what time closing hours were at North Fulton Hospital, where he was visiting a friend, he adjusted his time frame and said it was nine-forty at the latest. He picked out number six.

Paul Omodt, Karl Kautter's driver that night, said they passed by at nine-forty at the latest. He didn't recall much about the car.

Karl Kautter, a very important witness for the state, described to you, ladies and gentlemen, how big -- when we asked him how big the yellow stripe was on the car, he went like this [indicating], and he indicated it went over the top exactly like this car [indicating].

I submit the state is going to show you a picture of Mr. Chapel's actual vehicle, and I submit they're going to argue that the yellow glow you see here accounts for the yellow striping that the witnesses saw. I submit to you, ladies and gentlemen, that would be an endeavor to mislead you, to try to persuade you that it had to be Mike's car they saw.

But I ask you, ladies and gentlemen, what was this yellow glow reflecting off of? You heard the testimony outside the Gwinnco Muffler shop there was no streetlight illumination. Most of the witnesses said the cars in the driveway had no lights on. There's very little that could have illuminated and nothing that would have illuminated it up to four to six inches and nothing that would account for the witnesses seeing a yellow stripe up over the top of the car.

The car the witnesses saw, ladies and gentlemen, was the spare unit at the northside precinct identified by many witnesses, including Mr. Chapel, as the model that looked like this yellow car that was used when an officer's regular service unit was out of commission for some reason, the keys to which were easily accessible to anybody who could go in the back door of the precinct, and there was no one monitoring who used those keys.

Now, Mr. Porter has characterized Mr. Kautter's identification of Mr. Chapel as direct evidence in this case, direct evidence placing Mr. Chapel at the scene.

I'd first like to point out to you, ladies and gentlemen, that neither Mr. Kautter nor Mr. Omodt, who claim to have seen the patrol car pass by them, could tell you that it was the same patrol car they had seen in the driveway of Gwinnco Muffler. They never said. 'We saw the officer go back into that car, get into that car and pull out.'

Under the circumstances it doesn't make sense. The timing doesn't work for that to have happened because they were proceeding on up the road and suddenly there was a car passing them. The car would had to have been going at a very excessive rate of speed to catch up with them. And if that car were going at an excessive rate of speed, there's no way anybody could have seen who was inside. I submit the more likely scenario is that it was someone else who happened to be driving along PIB who caught up with them and passed them.

But, nonetheless, it's the person in that car that passed them who Mr. Kautter is endeavoring to identify. It's not the person he saw at the scene.

Well, who does he say the person in the car that passed them is? He was shown a photo lineup, which you'll have out with you, that included Mr. Chapel's photograph. Of all of the officers at the Buford precinct, whose photographs you'll also have out with you, Mike Chapel's was the only one that was placed in that lineup.

I'd like you to look at that photo lineup. Mr. Chapel was number three. I'd like you to compare how he looks in that photograph with the way he looked on the video a week later. There are some striking differences. At the time of his identification, Mr. Kautter said several important things. First, his selection was somewhat qualified by the fact that he said he did not think the person he saw had a mustache. That was a very important fact to Lieutenant Latty and Investigator Burnette at the time of the interrogation a week later. They kept hammering on that fact. It was such a precise identification. The guy didn't have a mustache. He looked like you but he didn't have a mustache.

The other important fact is that Mr. Kautter did not make an unequivocal identification even at that time. What he really said to Sergeant Cline was, 'I'll have to say it's number three.' It's precisely the process of eliminating other people in the lineup that Lieutenant Latty described as making for an identification that ain't worth a whole lot when you have to eliminate everybody else and settle on someone. It was by no means the firm identification that the state will have you believe now.

And what happened when Mr. Kautter got to court here? Well, now he's not so sure whether the person had a mustache or not, and he admitted that he might be mistaken in his identification.

And what else happened? When we gave him these photographs to look at to pick out whether someone else from the Buford precinct might resemble the person he saw, who did he pick? Officer Stratamyer, Defendant's Exhibit 38, who has a mustache. Now he's sure the person he saw had a mustache.

Now, we're accusing Officer Stratamyer of this murder. What we're doing is pointing out that the lineup that contained Mike Chapel's photograph was geared to have the witness pick him out.

Well, there's something even more significant about Mr. Kautter's testimony, ladies and gentlemen, and that was that he recognized Mike Chapel from a previous encounter two years earlier. Of course he's going to pick out the one person in the lineup whom he has seen before. That person looked familiar to him.

The only other drive-by witness who made a stab at identifying the person he thinks he saw was Dr. Brusie. He could not make a firm identification, but he picked out Mike Chapel's picture as somebody who it could have been. Well, what else did we learn when Dr. Brusie came into court? He, too, recognized Mike Chapel. They had been together when a wounded horse had to be put down.

It's not unusual for people to recognize even subconsciously someone they have seen before when shown their picture.

There's something else that is interesting about Dr. Brusie's testimony and his recollections of what he saw that night. He saw a man in a patrol car sitting with the light on doing paperwork, and he said the man had a white shirt on.

I'd like to show you a picture that we've introduced into evidence of the Sugar Hill city marshal, someone you've heard a fair bit about during the trial. I'd like you to note the striking resemblance in build, haircut, basic features to Michael Chapel. I'd like you to note that he's using his right hand to speak into the radio mike. I'd like you to note that he's got his watch on his left hand where most right-handed people wear their watch.

On the videotape, you heard Lieutenant Latty say, 'Well, we thought it might have been him but he's a south paw and so we didn't think it was.' You heard Investigator Burnette say that this particular officer is left-handed. But do we have any proof that he is? All the signs there are that he's not. And another interesting note is that he was the first one on the scene the morning the body was discovered. Just something to think about when you're thinking about how thoroughly the police investigated anyone other than Mike Chapel.

These so-called identifications that the state wants you to base a conviction of murder on have been essentially repudiated here in court. Mr. Kautter said by the end of his testimony, 'I really can't be sure.' So not only have they been repudiated, they're impossible, because the timing doesn't work.

Each one of the witnesses that I previously discussed with you who drove by saw a patrol car that does not look like the car that Mike drove, and they saw it at Gwinnco Muffler between nine-fifteen and nine-thirty on the night of April 15th. Nine-forty is the latest that any witness says they saw a car.

Sara Hutchins, wife of William Hutchins, the couple who heard the gunshots, looked at her clock and said she heard the shots around nine-thirty.

Well, we know where Mike Chapel was at nine-thirty. He was at the fire station, Fire Station 14, huddled up with the firemen, making fun of Brian Reddy because he didn't know where Gwinnett County was on the weather map, watching weather updates that were being blipped in on a movie they were watching.

All of the firemen who testified had originally written in statements that were provided to the police department, but never followed up on, that Mike had left the fire station that night shortly at or before ten p.m. Most of them confirmed that testimony here in court. The exception was Mr. Pierce.

Mr. Pierce freely admitted to having had his memory refreshed by the district attorney's office as to the times that various movies that night came on. And you'll have the TV listings out with you. The firemen evidently were watching a movie. Nobody else could remember which one.

I submit to you, ladies and gentlemen, there were three movies on that night. One ended at nine-thirty and the others ended closer to ten o'clock. One ended a little bit after ten.

Mr. Pierce was the only witness who could not remember anything about watching the local weather. He was the only one who said it was definitely the movie on Cinemax. And even given that he seems to have tailored his testimony in response to an interview at the district attorney's office, he has Mike Chapel leaving the fire station between nine thirty-five and nine-forty. Even Mr. Pierce makes it impossible for Mike Chapel to have been the person that these witnesses saw at the Gwinnco Muffler.

Now, there was another witness who changed the time from his original statement as to when Mike left, and that was Sergeant Stone. Sergeant Stone came in originally as a state's witness and said that Mike had left around nine-thirty, notwithstanding the fact that he had originally written in his statement that it was about ten or ten-fifteen.

Well, when we reminded him that he'd made a phone call at ten-seventeen, which is reflected in the phone records that he acknowledged, and when he remembered that he'd said that Mike had left about twenty minutes before that phone call, he realized that Mike probably left closer to nine forty-five than nine-thirty. Nine forty-five is the time that Mike told the investigators he left that night, somewhere in the neighborhood on the closer edge of ten than the earlier edge of ten.

So despite their best efforts to rehabilitate witnesses as to the time, the best they can do, ladies and gentlemen, is nine-forty. Nine-forty does not fit the time the other witnesses, all whom have nothing -- nothing, as I emphasize -- to gain and who have specific reasons for recalling the times that they recall. It doesn't give -- the timing doesn't work. It doesn't make sense that Mike was the person in the yellow car, because he wasn't.

Well, what else did Mike do that night? He went by the gym to pick up his receipts for the day, and the bank records will reflect that he made a deposit the next day of four hundred and seventy-five dollars, three hundred of it in cash, one twenty-five in checks, completely consistent with the bank receipts -- the gym receipts, excuse me, from the previous day or two.

Van Parker did not remember whether or not Mike came by that night but said he came by virtually every night. And maybe if someone had asked him at the time, which nobody did -- inexplicably, nobody talked to this man until two years later -- he might have been able to remember specifically whether Mike came by.

But in any event, Mike didn't stay long at the gym because he had a call. He had a call to go to Arden Drive. He's the only one who was working during that period of the night whose whereabouts we can confirm.

And what about this Arden Drive call? Mr. Juan Perdomo came in and testified that Mike came out to respond to his complaints about unruly neighbor children playing basketball loudly, that Mike didn't seem to want to be there and told him that he had his own problems.

I ask you, ladies and gentlemen, based on what you saw and heard of Mike Chapel, whether that seems like something he would say to a citizen in distress. The reality was, ladies and gentlemen, there wasn't a whole lot Mike could do for them in that situation. Once again, not a situation that requires police intervention. Mr. Perdomo seemed clearly dissatisfied with the service that had been rendered by Mike Chapel at that call, and he also seemed in an odd way to be enjoying the limelight of testifying at this high profile trial. You'll note that he knew Mike Chapel's name. He remembered it. He couldn't remember the name of the other two officers who came out the next week when he called again who he said had been much better and much more responsive. He knew Mike Chapel's name because he's been following this case in the press.

What's the other interesting fact about that Arden Drive call? No one ever spoke to this person when they were interviewing the respondents for that call. Investigator Burnette on the tape told you that he had spoken to the woman of the house at Arden Drive, who told him that Mike had -- was a tall guy, had been nice and courteous.

Don't you think if Ms. Perdomo had told Investigator Burnette that Mike appeared nervous, appeared to have blood on him, appeared to look like somebody who had just killed a woman in cold blood, don't you think she would have mentioned that to Investigator Burnette? She said he was nice and courteous, and no one ever spoke to Mr. Perdomo. His testimony on that stand was the first time that we have heard his recollections of that night.

I'm going to turn my argument over to Mr. Moore in a moment. But I just want to focus on another key element of the state's case against Mr. Chapel, and that is their allegations of his motive to commit this crime.

The state has tried to come up with a financial explanation to explain why Mike committed this otherwise senseless crime. They offered you Jack Dudley, a person who had loaned Mike fourteen hundred dollars back at the end of January of 1993 to invest in advertising and other necessities for the gym, Iron World Gym business. And they've made a big deal about the fact that that loan was not repaid by the time Mike Chapel was arrested.

Well, you heard Mr. Dudley. It was basically a no-terms loan on a handshake, terms roughly 90 to 120 days. Not even 90 days had elapsed, so the loan was not due. And what else did he say? He felt completely sure that Mike would have repaid him had he not been arrested.

Well, the state will ask, what was he going to repay him with? I submit he was going to repay him with proceeds from the sale of the T-shirts that he ordered with the balance -- the remaining balance of Mr. Dudley's loan. He bought those as an investment to generate revenue for the gym. That was the purpose of the loan. He might also have repaid him with proceeds from the sale of the Testron that had just arrived April 15th and on which he made a rather handsome profit, as he testified.

Now, Mr. Porter made a big deal about the Testron order during Mike's cross-examination on Saturday, implying that Mike was trying to mislead you about the fact that Lieutenant Powell had said, 'Testron has arrived, 184 gone.' Mike never said anything about there being a 184 bottles of Testron. Where would he have gotten the money to order 184 bottles of Testron at twenty or thirty dollars a pop in the first place?

I elicited that from Lieutenant Powell, and I did it for a purpose, ladies and gentlemen, and it was not to mislead you. It was to lay the groundwork for an argument.

Lieutenant Powell was charged by the police department to investigate various of the data in this case, financial records, phone records, and then MDT transmissions. It was an effort which the state now wants to distance itself from, but it was an effort to try to put all of this information, some of the same information you're going to have to slog through, put it together and try to come up with some patterns, come up with some evidence.

What did Lieutenant Powell's reading of this MDT transmission say? To him it said, 'Testron has arrived on April 15th, 184 gone.'

What does that tell us? At thirty dollars a pop, ladies and gentlemen, that's $5,520 that, according to the information they have, Mike would have from selling a 184 bottles of Testron.

My point in eliciting that is that if he had that kind of money prior to April 15th or on or about April 15th, why on earth would he need to go murder Emogene Thompson and take her money. It eliminates the financial motive they are so in need of.

Well, what else does it show? They didn't follow up on that lead at all. They ignored it because it was a fact that might have suggested they have the wrong guy. They ignored it and went on to pursue evidence that implicated Mike because that's what they needed to do.

The state also introduced testimony from Mike's so-called tax accountant about this verification audit that he allegedly received. We never saw the audit, but the testimony was that he received this audit sometime in April and that some of his deductions might be disallowed. Well, the figure was four thousand dollars in deductions that might be disallowed. The accountant had no idea what that would mean in terms of tax liability, but you can be sure that it would mean, if there were any liability, a lot less than four thousand dollars.

I think that was much ado about nothing. The verification audit was requesting documentation to verify deductions that that very accountant had previously thought were justified and had seen documentation to support, so there's no reason to worry that the deductions aren't going to be allowed unless this accountant doesn't know what he's doing. But he told Mike not to worry about it, and Mike wasn't worried about it. It certainly, certainly does not provide a motive for murder.

The state has also tried to present a picture to you by selectively showing evidence of some overdrafts during March, some checks that bounced earlier in the spring, that Mike was struggling financially. And I'd ask you to remember these charts that we submitted.

I ask you, ladies and gentlemen, whether looking at these charts you see any sign of a financial struggle during January, February, March in either account. To the contrary, Mike and Eren were holding their own. The gym was just starting to make money. April was the best time of year. There was a membership special going on. The Testron, the eighteen bottles he had, were selling like wildfire. There's no indication of financial distress. It's a figment of the state's imagination. It's something they need you desperately to believe in order to explain this.

Mr. Porter said that sometimes we lose the forest for the trees. I'd like you to keep that in mind. Look at the big picture, ladies and gentlemen. Certainly there were some overdrafts in March. And as you heard Mr. Ratner explain, that was easily explained by the fact that in March Mike had deposited his police paycheck into the gym account rather than into the personal banking account. Eren didn't know that and wrote some checks thinking that he had deposited his paycheck as usual. There's no indication of huge overdrafts. There's no indication of debt. Remember, these folks lived exclusively on cash. They have no credit cards.

I'd also like to remind you of two incidents which further repudiate the state's motive theory. Mike had two opportunities in the week or two prior to April 15th to get even larger amounts of money than Ms. Thompson was reported to have, under much easier circumstances, if he were that desperate for money.

April 8th, you heard testimony that a man with a bag came into the gym. He was a man Mike had been investigating. He was a man known to be dangerous. The bag was full of money. It could have been up to twenty thousand dollars in money. If Mike really needed that kind of money, he could have just blown that guy away and claimed it was self-defense because the police all knew who this person was, and he could have had twenty thousand dollars without question. What did he do instead? He did the thing that an honorable cop would do and reported the man to intelligence.

There was another incident the very week that Ms. Thompson was killed. You heard Dana Blount describe how she needed help getting into the Buford Auto Plaza office to get access to her truck that was in the back parking lot. On the table were proceeds from a deposit that hadn't been counted correctly, stacks and stacks of money, thousands of dollars. It was dark, it was night, two women, who anything could have happened to up there late at night. Mike could have easily, if he were such a cold-blooded killer, have blown them away and taken the money. He didn't, ladies and gentlemen, because he didn't need the money. There is no financial motive in this case.

Now, the state is also going to argue that there is some crime in having one-hundred dollar bills, that Mike's possession of one-hundred dollar bills in the week or two after Ms. Thompson was killed is proof beyond a reasonable doubt that he killed her.

I submit they will urge you to pay careful attention to the fact that there were four one-hundred dollar bills in the little notebook he had, and that those bills came from the Peoples Bank, and they hadn't been delivered to the Peoples Bank by the Federal Reserve until the middle of March 1993.

Well, here's a news flash, ladies and gentlemen. Mike Chapel banked at the Peoples Bank also, and you can look at his bank records, which will be out with you. You heard Mr. Ratner's testimony. Mike was in that bank eleven times during the month of March. He transacted a lot of business in that bank, all in cash or checks.

Did you notice something interesting? Both of the bank representatives who testified for the state to lay the groundwork for the records, Mr. Henderson, the vice president, and Ms. Evans, the teller, they recognized Mike as a banking customer. That's how often he was in that bank.

There is no crime in him having four one-hundred dollar bills that he had saved up for to buy himself a turkey shotgun in his notebook. That is not evidence of a crime, ladies and gentlemen.

It is not evidence of a crime that he paid for his T-shirt order on April 19th with six one-hundred dollar bills. You'll recall that Mr. Dudley gave him the loan back in January in one-hundred dollar bills.

Mike was a squirreler. You saw the amount of junk in his car. He was trying to make a go of his business. He was trying to use the money he had gotten to help build up his gym business judiciously.

Well, they'll say what about the money he used to bond out Kierstin Frazier-Forg. Where did that money come from? Well, for one thing, ladies and gentlemen, it was two hundred and forty dollars, not five thousand dollars. It was in mixed denominations. The representative from the jail did not say it was one-hundred dollar bills.

Mike told you how his wife had come home and had this wad of money from passing the hat, and he went off to jail to bond out this girl because he was the only one sober enough to do it that night. They had been having, evidently, a wild party while Mike was home taking care of his children.

That episode requires me to respond to a witness whom I think the state will ask you to rely upon fairly heavily, and that is Mr. Kendon Curtis.

Mr. Curtis would ask you to believe that a woman who was identified to him as Eren Chapel took out of her handbag an envelope with tens of hundred dollar bills and fanned through it in his presence, a virtual stranger, money that could only have come -- because these were not people of great means, the money could only have come from her husband who had just murdered someone, and she would have had to know that's where the money was from, and there's no other explanation for her to have that kind of money.

Does it make sense to you, ladies and gentlemen, that she would pull out of her purse and fan so ostentatiously in front of a person like Kendon Curtis all of that money? Doesn't it make more sense that he was messing with her purse. She came over to retrieve it. She had an envelope with some bills in it, her tip money?

You've heard testimony that she was a waitress. That was her livelihood. Waitresses make money in tips. They don't get -- when they leave at the end of the night, they get a stack. It's not a stack of hundreds, ladies and gentlemen. It's usually a stack of ones or, if they're lucky, fives or maybe even tens. She had a bunch of money, and she wanted to make sure he hadn't gotten into it, because he had no business in her purse in the first place.

The timing of Mr. Curtis's revelation is very important to consider as well, ladies and gentlemen. He did not come forward with this completely uncorroborated and, I submit, ridiculous story until January of this very year, coincidentally after he'd seen some press coverage of this case while we were doing our pretrial hearings. He came forward and told his story, I submit, to get attention. He knew this was a high profile case that's been on TV. Did you notice while he was testifying how many times he dropped the name of his tree service business? Use your common sense, ladies and gentlemen.

The state will surely go through, when Mr. Porter gets up again after Mr. Moore and I are finished, go through every single time that Mike was spotted with money during the early part of April 1993. But I submit to you, ladies and gentlemen, that the cold hard data from the bank records, from the charts, does not submit -- does not support their argument that he had an unusually large amount of cash. As I said, the gym was picking up, he was selling Testron, he had legitimate sources for the money that he had.

Well, the state may counter, he obviously wouldn't have put the money in the bank anyway, so the bank records aren't much use to us. It's too easy to trace.

Well, where did the money go, ladies and gentlemen? You heard testimony that the police searched Mike's car, his pickup truck, his home, his gym, his lockers at the precinct. Did they find any money anywhere? If he were squirreling it away somewhere and not putting it in the bank, you'd think after their thorough searches -- you heard how they tore the gym up -- that they would have found this elusive money.

It certainly wasn't used to pay for his lawyer. Mr. Britt came in and told you how he was paid. He didn't get his first payment until June. He was paid completely in checks, most of which came from Mr. Chapel's dad, who is in the audience. Do they think Mr. Chapel's dad is in on this, too? The balance of what little money Mr. Britt did get came from the eventual sale of the gym in July. There's absolutely no indication that there was a surplus of money hanging around.

Well, where is the money? The state cannot explain, ladies and gentlemen, what happened to that money. Actually they have not established that any money was ever taken from Ms. Thompson. There's been no evidence from any witness that she had her purse with her that night. They want you to surmise that she did. There's been no evidence from any witness that she had the balance of her money in her purse that night. We couldn't even get a description of what her purse looked like. The witnesses, her friends, were all over the map on what her purse looked like.

They haven't even proved there was a robbery. But more importantly, they haven't proved that Mike Chapel took that money, because he did not, ladies and gentlemen. He did not rob Emogene Thompson and he did not kill her. We don't know who did. It's not our obligation to explain to you who did or to come up with an alternative suspect, and the judge will be charging you accordingly. The state has not proven that it was Mike Chapel.

Well, I've spoken for long enough, and I'm going to turn over the balance of our argument to Mr. Moore. I thank you for your attention.

THE COURT: Before we commence with your summation or arguments, Mr. Moore, I think we'll take a ten-minute recess and then we'll recommence.

If you'll leave your pens, pad, and notes in your seats, they'll be waiting on you when you return, and I'll ask you to go with the bailiffs at this point.

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

THE COURT: We'll take ten minutes.

[Break taken]

THE COURT: Is the state ready?

MR. PORTER: The state is ready, Your Honor.

THE COURT: Defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jury back, please.

MR. MOORE: Your Honor, how much time do we have left?

THE COURT: I count 66 minutes used by Ms. Rogan.

MR. MOORE: I'll try to stay within the remaining time.

THE COURT: Fifty-four. And I'll give you a five-minute warning, if need be. You, too, Mr. Porter.

MR. MOORE: I don't think you'll need to, but I just wanted to make sure we were both in agreement.

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

THE COURT: Mr. Moore?

CLOSING ARGUMENTS BY THE DEFENDANT - MR. MOORE

MR. MOORE: Good morning, ladies and gentlemen. We've come to the final part of the case now, and I, too, want to thank you all for doing your duty. And like I told you in voir dire, it's kind of like being drafted, which y'all have gotten into in this case. Nobody particularly wanted to do it, but y'all have done it. You've listened, and I've noticed you've been very attentive, and you've been taking notes, and you've been trying to absorb all the evidence in the case. And I appreciate that, Ms. Rogan appreciates it, and most of all Mike Chapel appreciates that y'all are paying attention and listening and looking at the evidence.

Jury trials have been around for many, many years. They're in our constitution. You have a right to a jury trial. The reason they're there and the reason you're sitting here is that our forefathers did not trust the police. They did not trust the authorities. They said when they set the system up, we reserve the right, ourselves, you, to decide who's guilty and who's not guilty. We will not allow the police to make that decision, and we won't allow the district attorney. We will only allow you. It's a good system. It's necessary. It causes a hardship to you to have to serve, but it's still needed.

It's like Ms. Rogan said. You have here before you a good man, a police officer, a family man, who is accused of a terrible crime, and you, the citizens, are the people who will decide the guilt or innocence, not the police.

Now, one thing that sort of overlaps what Ms. Rogan mentioned, before I get into the main part of my argument I wanted to mention to you, is that -- the financial thing here. Do y'all remember on the videotape that they were interviewing him, and they asked him, they said, 'What did you do for your wife's birthday,' because they thought he did some big lavish thing or something like that. His answer was, an honest cop, he says, 'I took her out to dinner to a little cajun restaurant down the street. That's all we could afford.' That's a cop speaking, one that's telling the truth, that takes his wife where he can afford to take her.

The state's case here, as Mr. Porter pointed out, does rest on circumstantial evidence. When it does so, the state's evidence must be sufficient to exclude every other reasonable hypothesis. Every other reasonable theory must be excluded by the state. That's the burden of the state, beyond a reasonable doubt. If there's any broken link, any missing link in that evidence, it cannot stand, and the jury is instructed by the Court you should acquit.

Ladies and gentlemen, you've seen here from the evidence why the Gwinnett County police should not have investigated this case, why they should have called in an independent outside agency when they knew that a police officer was perhaps involved in this, when they had evidence the second night, first night or second night, that there was a police car involved.

The killer may have been involved in the investigation of this case. There's no way for you to know, and there's no way for the state to tell you. If so, then they certainly had a motive to get Mike Chapel convicted, to point the finger at somebody else and away from them.

The judge is going to charge you on credibility of witnesses, like Mr. Porter said. Who had an interest in this case? Who didn't have an interest? Mr. Porter is going to argue to you that Mike Chapel has got an interest in the case, and he certainly does. I'm not going to deny that to you. He's accused of a terrible crime.

But look at who else has got an interest in this case, and a big one. Put yourself back out at the Gwinnett County police department on April 15th, 16th, or 17th of 1993. They start finding out that a police car was out there. They check the records. Nobody admits being out there. They think maybe somebody made a traffic stop. They didn't. Suddenly the horrible realization starts sinking in that a police officer is somehow involved in this.

The police department was in a panic, I submit to you. Imagine what would have happened if the news media had gotten hold of it, if the word had gotten out that we have a police officer out there on the streets, and we don't know who he is, that killed somebody. You would have been afraid to stop for a speeding ticket. You would have been afraid to call somebody to your home.

The public would have been up in arms. They would have been demanding that the governor send in the National Guard or the State Patrol or somebody to take over until they figured out who this person was, so they had to have somebody and they had to have them quick. It had to be fast. They could not do a slow, thorough investigation. They had to rush in this case quickly, and they did.

They didn't interview any other officer up there about where he was. They said they didn't do it before the arrest because they were afraid it might somehow interfere with the police operations.

Well, what about after the arrest? They didn't go up there and investigate where anybody that was on duty that night or anybody who was in that precinct was that night or what they doing, even to this day.

Now, they rest their case on -- one part of it in this case is the blood that was supposedly found in Mike Chapel's car. You'll have the photographs out with you. All the photographs that they took, the ID technicians, the people there who testified that that's the way they found it when they got the car, the arm rests are up. They're in the up position, because if you'll look at the photos, you'll see that the computer and everything, all the stuff that he had there in the car and everything, that's the only practical way to operate his computer and to do things in his car there, is to have the arm rests in the up position.

The state's theory is that he somehow got the blood on that arm rest from her pocketbook or money or something. But I submit to you that that arm rest was always kept in the up position, and it would not have gotten there that way.

There were all sorts of other pieces of evidence in this case that were not tested, with no explanation. The gloves that Sergeant Stone said he wore them in bad weather. The reason he wore them is so he'd have a better grip on something like a weapon or if you had to -- if you had to struggle with someone, you would have a better grip with the gloves.

The gloves, if Mike Chapel had shot somebody, would have been right next to the wound. They would have been covered in blood. Those gloves were never tested in any way, never sent to the crime lab, nothing was done with them. The flashlight was never tested, never checked. They talk about all this blood splattering and everything. It would have been all over those things if there had been something like that happen.

Now, the raincoat that they submit to you as a big piece of state's evidence, they only tested a few little spots, and then they want you to make the leap in judgment that everything else on there is human blood for sure. They didn't test it, but they want you to infer that.

The evidence is that was about a six-year-old raincoat that Mike Chapel had worn in all kinds of conditions. Like Sergeant Stone testified, when they get deer that are hit by cars, to put the poor animal out of their misery, the police often shoot them. Sergeant Stone came down and illustrated it for you. That was not rehearsed. We had not discussed that before. He came down, and he said, 'This is the way you'd do it.' You'd lean over it and you'd shoot it. You would get those kind of patterns. Kelly Fite said, yes, that would cause the kind of patterns they want you to believe are human blood. They didn't test them, but they want you to believe that.

The DNA evidence in this case is going to be a big part of the state's case. They're going to contend that the DNA shows conclusively that that's Ms. Thompson's blood on that car seat.

The evidence is otherwise. You heard Dr. Choi come in here, a credible witness from Georgia Tech that does research in that area. He says those autorads simply are no good. He doesn't trash the crime lab and say that they do -- everything they do is wrong and they never do anything right. He says, 'I've examined thirty of their cases and most of them are good. I don't testify in court because I agree with them. The defense attorney doesn't want me up there saying I agree with the crime lab most of the time.'

But in this case, what did he tell you? He said despite their best efforts, the test didn't work. It simply didn't work. Nobody knows why it didn't work.

You've got this partial digestion phenomenon, and none of the scientists that have testified here before us can tell us what causes it. The most likely cause is contaminants.

Nobody seems to really know what Luminol is, either, of the scientists that are here, but they want to conclude that it won't have any effect.

Well, something had an effect on it, some contaminant. We don't know what it was. Maybe they Scotchguard those car seats or something at the factory. I don't know what they do to them. But the fact is there was some kind of contaminant, and you've got what's called a partial digestion. Dr. Choi says that that's not good enough, you can't interpret that.

Even the state's experts that they brought in to bolster Dr. Herrin, Dr. Kushner, he said that if it was in my lab and I ran that test, I'd want to run it again.

Now, the forensic people want to tell you the standards ought to be different. They want to say, 'We don't get a good sample very often, we get bad samples, we get degraded samples, we get contaminated samples, and we just can't get a good results like you do up at the research lab, so we want to lower the standards and say whatever we get is good enough. We'll call it.' It's sort of like the old saying, close enough for government work. That's what the state wants you to buy in this case. Even Dr. Kushner said their standards shouldn't be different. Keith Goff testified that they were higher at the crime lab, which clearly they're not.

Now, the crime lab made a lot of mistakes in this case. They're human. Those mistakes may have caused some of the problems in the case. Who knows.

The crime lab was under a court order to preserve the bio-images of the LH-1 probe, which was the last one that was run. After we got in the case, we got a court order to preserve that so we could have our experts look at it. What did they do with it? They erased it. I'm not going to stand here and tell you that Dr. Herrin did it on purpose and erased that, but it did happen. He made a mistake. He was wrong.

In the process of searching for LH-1 desperately, because they didn't want to look bad in court after they had been ordered to keep it and they erased it, they found that they had one they had told us previously that they didn't have, that wasn't erased. It was TBQ-7.

And the testimony was that -- you remember Keith Goff testified that you can manipulate the machine, and you can move it around if you don't like where the computer places the dot in the center of the dark part to measure it? If you don't like where it is and you don't agree with the computer, you can change it. Well, it's got a minus on all of them, if you'll recall, when it's not changed, when the machine does it. If you change it manually, it changes to a plus. And the TBQ-7 that we found had been manipulated and changed.

Now, we don't know about any of the other probes, whether they were manipulated, the measurements and everything, on them, because no notes or records were kept of whether or not they made manipulations or whether the machine did it.

I submit to you that is sloppy, and the crime lab ought to change it. They ought to keep notes and records on stuff like that. They don't have any backup, which is incomprehensible in this day and age that you've got computers and you don't back up your data.

They said the computer that they had at the time did not have the capability of printing out these bio-images. They admitted you can photograph them. They've got photographs of them hanging on the wall down there at the crime lab. But when I asked them about photographing them, what was their answer? Their answer was it's just too much trouble, and it costs too much and, 'look, y'all don't need to know that on the jury, you know, you don't really need that. I mean, you know, we're scientists. Trust us.'

Well, I'm sorry, ladies and gentlemen. They are scientists and they may be good. But doctors, scientists, anybody, when they get something that's wrong or it doesn't look right, they do it over again or they test it. It happens all the time. It happens in hospitals, it happens in labs, anywhere. And I don't think -- I submit to you it's not too much trouble to preserve that kind of evidence in a case like this.

One thing that was very disturbing, and I think you should find it disturbing, the analyst, who is supposedly an independent-doesn't-care-what-the-results-are kind of guy in this case, what did they do down at the crime lab? It came out during the testimony. They meet with the officer, presumably Officer Burnette in this case. They get all the facts in the case. They go over everything in the case. They know what they're trying to prove when they go in there to run these tests.

In fact, those people at the crime lab are not independent scientists. They're law enforcement. They're not sworn law enforcement, but they're GBI, Georgia Bureau of Investigation. That lab is in the headquarters of the Georgia Bureau of Investigation. They're trying to help their fellow law enforcement officers. They're not independent lab people that are just running tests.

Keith Goff seems like a nice young man, but they made mistakes in mislabeling one of the probes. They found that three or four months later and they corrected it. One of the technicians had used the wrong probe. Y'all remember that. They took the wrong one out of the box and they ran the wrong one. Nobody realized it till later on, and Keith Goff found it.

Keith Goff, when we were down at the crime lab -- you heard the testimony -- was unfamiliar with the computers. It was amazing. He was having trouble doing things on the computer, the computers that they use all the time, supposedly. Dr. Herrin had to coach him and help him.

The truth is, Keith Goff is a nice young man, but he doesn't know anything about those statistical calculations. He just puts the numbers in. He just puts them in and the computer spits them out. He doesn't understand the statistical things. You heard the testimony on it.

Dr. Herrin set up the things down at the crime lab. He's willing to take poor quality samples and say these are good enough and say you ought to accept them, the results on them. Dr. Herrin is the one that most likely made the mistake and erased the bio-image.

Looking at a further problem down at the crime lab is their databases. Once you -- even if you decide to accept these lower standards and problems that they have on these autorads and everything, the poor quality sample, it still doesn't mean anything until you make the statistical calculations about what's the possibility of a random match, what's the likelihood that just randomly that would come up.

That's where the database comes into effect. Your database has to be randomly drawn, and it has to be set up in such a way as to be reflective of the general population for it to be any good.

They went out and got volunteers from health clinics. Dr. Herrin wasn't even personally involved in it. They didn't go out there and carefully set somebody up to check these and make sure they were random. They sent out some instructions to the health care workers to please don't get any relatives in this.

Well, they did it over a period of like -- I believe it was six months, Dr. Herrin testified to. Well, these health care workers aren't sitting there keeping up with did Mother bring Susie in last month, and did we get blood from him or her, the father, the mother.

And you heard Dr. Shapiro. He testified that when he examined their databases -- now, a lot of what he testified to I didn't understand, and you probably didn't either. But the essence of it was that he found similarities in these databases that shouldn't be there. And the explanation of it, when I asked him about it, was that it would be explained if there were relatives in there, which would throw your database out of kilter, and it's not an accurate database to make those calculations from.

In order to check what he had done -- he had also done the FBI databases at one time -- he went back and checked the FBI databases. They didn't have that problem. Theirs was random. They didn't have these similarities in there that the Georgia crime lab has.

Dr. Herrin, once again, to illustrate that he's human, I asked him when he testified here before you the first time -- I already knew then that he had mistakes in his database. He didn't know it, but we did. I asked him, 'Are you as sure that there's no duplicates in your database as you are of your opinion to this jury that that's Ms. Thompson's blood?' He said, 'Yes, I am.'

You heard him yesterday. He came back and said, oh, well, I made a mistake, it doesn't make any difference, it doesn't really affect the results. That may be true that it doesn't affect the overall calculation in that case, but that's the errors we discovered. He didn't have any explanations for these similarities in there. He said he'd have to see the data about the relatives and everything. He didn't participate in it personally. He can't tell you that that database is good.

I suggest to you that what the crime lab ought to do is they ought to go out there and set up a database, they ought to employ crime lab people to monitor it and make sure that they're getting a truly random sample for their database, and then use it to rely on it. They shouldn't just send it out and anybody that volunteers or any health care worker that tries to remember not to get relatives, that's what they get for a database. I submit to you that their database is no good, just like the autorads Dr. Choi said are no good.

This partial digestion experiment -- and it is an experiment. Even the testimony from the state's experts, Dr. Kushner, is that that is not generally accepted in the scientific community for validating the results of DNA testing.

The state wants you to stretch the evidence in this case and believe that anything is good enough. If they've got any little thing, it's good enough. We could argue to you that a mosquito could have bitten Ms. Thompson, could have been swatted in Michael Chapel's patrol car, and that's where they get the little bit of DNA they got.

We're not trying to sell those kinds of things. The state is, though. The state is trying to convince you of all these things. They're reaching and reaching to get you to believe something.

The state has accused us of trying to mislead you about the Testron when Lieutenant Powell was testifying about how much was sold. Mike Chapel never -- if anybody misled anybody, it was the questions that we were asking, just the way they came out in the evidence. It doesn't all come out at the same time.

Mike Chapel never contended that he sold 184. In fact, when he read the MDT traffic there, it was eighteen dash four. It wasn't a 184 like Lieutenant Powell had put there.

But I want you to notice when it comes to things that they're doing, when the assistant DA put Dr. Kushner up there and asked him about this partial digestion experiment, he used the term 'would be accepted in the scientific community.' Do you recall when I asked Dr. Kushner is it accepted in the scientific community, and he wavered some and everything, but I think he finally said basically no.

And it doesn't matter -- the state may try to argue that Dr. Choi is not a forensics expert, and that doesn't matter. DNA is DNA.

Dr. Kushner, who is certainly not here to help the defense, agreed that DNA testing doesn't matter, that it doesn't matter whether you do human blood or not when you do the testing. He doesn't do human blood either, Dr. Kushner. He admitted that four of the probes in this case had a problem with them, four out of the six.

Keith Goff told you that two of them aren't good for anything. You'd never call it a match or testify about identification based on two probes, and that's what you've got here is two probes.

Another thing that comes into the statistical calculations when you do these databases is they're all based on a true random sample. The evidence is that the Suwanee Buford area was a mill community. There's almost nobody moving in and out. You remember Sergeant Stone testifying he lived up there all his life, and it was like that. The children stayed there, the parents stayed. It's a closed community was what Officer Stone said.

Dr. Choi or Dr. Shapiro, I can't remember which now, said that that would make a big difference if you've got a closed community like that. The chances of a random match are much greater where you've got relatives and people who have lived in the community there for a long time.

One thing that Dr. Shapiro testified to that is significant in this case: No other lab in the United States uses the statistical procedures they use in our crime lab, and that wasn't refuted by anybody. All the other labs, Dr. Shapiro testified, make their databases and make their data open to peer review to other scientists. Our crime lab refuses to open theirs up and let anybody look at it. I submit to you there may be a reason for that, and you can make your own determination as to what it is.

Now, the raincoat. The state wants to make a big deal about the blood spatter patterns and everything on there. They didn't do the PCR test, though. Even the crime lab reluctantly admitted that they might have gotten more valuable information for you in making a determination about that raincoat if they had run the PCR test. They elected not to do it to save nine hundred dollars to make you come here and sit for three weeks and listen to evidence and then have to wonder --

MR. PORTER: Your Honor, I'm going to object to this in Mr. Moore's argument. This is a misstatement of the evidence. That evidence was never produced.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, the evidence is that it was nine hundred dollars for the test, that they elected not to run it because of economics, and I think I can argue that.

THE COURT: Objection is overruled.

MR. MOORE: The state elected not to spend the nine hundred dollars, but they want you to believe -- but they want to say this is good enough, just like all the other evidence. This is good enough.

That's a six-year-old police raincoat that's been worn to automobile accidents, like Ms. Cronic, to all kinds of fights, domestic disputes, maybe shooting a deer or whatever for six years. It's filthy, to put it bluntly. There's no telling what you would find on that thing. The rain pants, if you'll look at them, and you'll have them out with you, appear to have blood on them, too. They weren't tested.

The cops were in a panic in the Gwinnett County police department. They needed an arrest and they needed it quick. You can take that into consideration in the credibility of witnesses.

Now, Officer Chapel testified to you that he believes that somebody had reason to have tried to frame him or plant evidence here, and not without good reason. Look at what's happened to him in this case.

The witnesses, the state's witnesses, the police, have come in here and lied to you under oath. Burnette and Latty lied on the videotape to Mike. They told him they had an eyewitness ID that was absolutely positive. They didn't say the man said 'I'll have to say it's number three.' They lied to Mike about that in trying to get him to confess. Burnette says, 'Oh, that was just something we were thinking about,' where he wrote in his notes, you know, that we're going to manufacture a witness.

Ladies and gentlemen, the evidence is absolutely clear. They did manufacture a witness. That witness was officer Brian Reddy. They went out there -- they were so sure Mike did it that they went out there -- and I don't know if they coerced Reddy or if Reddy was in on it, if they used rank to make him do it, or how it came about.

Brian Reddy signed a statement saying that Mike Chapel wasn't at the fire station that night. They went running back up there, Tkacik and Cline and Burnette, and they confronted Mike with this, sure at that point that he was going to break down and say, 'okay, you got me, I did it.'

Mike told the truth and says, 'I don't know what you're talking about. I was up at the fire station.' And eventually, when it didn't work, they went ahead and admitted that they knew that he was up at the fire station.

Reddy says that he told Tkacik and Cline that he falsified his log sheet and put on there that he was at the Circle K, which you remember was pointed out to you, and it was within probably -- it's probably within a mile or two of where the murder was committed at about the time it was committed. But they just took his word for it that he falsified it, that he wasn't really out there. Nobody checked into it. Nobody -- you haven't heard any evidence that anybody looked into it. I'm not saying officer Reddy did it. We don't know, the defense. We don't know, and you don't know, because the state failed to investigate this case.

One thing that's interesting about the records that night was the state wants to say how Mike committed this horrible crime and how he's doing everything to cover up. Mike was the only officer on duty that night that didn't falsify his log sheet to show he was somewhere else instead of the fire station. He could have put on his log sheet that he was over somewhere else when Ms. Thompson was killed, he was on the other side of town or someplace. He didn't do it. His log sheet did not show that he was out there like Reddy's did.

They make a big deal about him not writing a report. Officer Reddy was ordered to write a report, not requested or not suggested. He was ordered to write a report about where he was that night. That report was never written. There's no evidence that it was ever done.

The police did not check out any of the other suspects in this case. Now, I'm not accusing people because we don't know, but you don't know either.

Officer J. P. Morgan committed suicide on May the 10th, a few days after Mike's arrest. That doesn't mean that he killed somebody. It does mean, though, that you have to wonder why, so the police went over to investigate to make sure it wasn't a crime, like they should do.

Well, it turns out that he had computers there, and they thought there might be some information on the computers, so they bring Bodie Hurst in. Bodie Hurst comes in there, and what does he do? He destroys the information on the computers on the hard drives.

The official police report, if you'll recall when I questioned Tkacik about it, does not mention Bodie Hurst ever coming on the scene there or destroying those computers. And I ask you why. Hurst is now charged with a crime for that, but it doesn't mention in the official police report that he was ever out there at Morgan's.

We don't have any evidence of where Bodie Hurst was on the night of the 15th. We don't have any evidence of where J. P. Morgan was on the night of the 15th. We don't know where any of the officers were up in that precinct, except they want to contend that Mike was the one that was down there.

Lieutenant Latty, Officer Latty, testified to you that he'd been transferred to another division because he hadn't done anything wrong in the Wall case. Everybody else was wrong but him.

Burnette lied to you and told you that the firemen were interviewed that night when Mike was being questioned. The firemen were never interviewed by the police. They were asked to write a letter by their supervisors, which those letters or so-called statements then were sent in whenever they got around to it a week or two later.

Nobody went up there when memories were fresh and asked those firemen, now, what time, tell us. The police never interviewed those firemen, and Burnette testified on this witness stand that they interviewed them the night that Mike was arrested.

They lied to Mike on the videotapes. They were still pretending to be his friend, and Mike was asking would they check out these things. They were asking was there anybody that might could tell them where he was, and he said, 'Yeah, Van Parker or Blan Wright might know, might know what time he left the gym or when he came by there.'

Latty told him, and you'll remember it -- my memory of it is that Latty told him, 'We'll check it out; you can take it to the bank.' Well, you can't take it to the bank. They did interview them two and a half years later, about a week before this trial.

Now, the handling of the evidence in this case was just absolutely terrible and sloppy. Unit 197, Mike drove it in to the police department when he was ordered in out there. He parked it and went into the headquarters thinking this was a routine thing, figuring they were going to question everybody, which would be the prudent thing that any officer would figure is that they're going to question everybody about it and ask where they were and what they were doing and that sort of thing. He expected that. He had no idea that they were going to arrest him that night. He was joking with them. He put his gun away, you know, these people he thought were his friends. He didn't know they had already up their minds to arrest him at that point and he was about to go to jail.

His car sat there for six days unsecured with we don't know how many sets of keys floating around to it around the police department. We know one set was in Cline's desk, which was not locked, for about a week there.

The jury will remember when he -- when he was -- when they were about to arrest him, he took this [indicating] out of his pocket with the keys on it, and he laid it up on the table. The keys were taken off of it at some point. We don't know who took them off, where they went, who had them. We don't know how many sets of keys there were.

That car sat out there unsecured. I asked the evidence technician couldn't they have taped it with evidence tape, like they had done all this other stuff, carefully to make sure that nobody went into it or anything. They didn't do that. They just let it sit there.

We don't know who went in that car. We do know this [indicating] wound up in the briefcase, which was supposedly in the evidence room. At some point somebody took this [indicating] and put it into the briefcase. We don't know who or when.

The keys out there to the morgue, where the autopsy was done, there were all kinds of keys. You remember Burnette testified that he had keys to it, every supervisor did, the maintenance workers had keys to it. He didn't know how many keys. There were probably fifty to a hundred keys out there that people can get into those areas.

The materials in the morgue in the garbage weren't secured or anything that had Ms. Thompson's blood on it. They were there available to anybody that had a motive to use them for something, to put them in Mike's car perhaps.

You don't want to believe that about your police. But with what you've seen here about police, you have reason to suspect your police, and you have reason to question. Police who would manufacture a witness would plant evidence. Careers are on the line here, the department's reputation and integrity. Now, they rushed into judgment, and now they're asking you to back them up, to help them put this thing to bed, have a scapegoat. They have been and are out to get Mike, whatever it takes.

The district attorney is going to argue to you the danger to the community, that you need to -- you need to find guilt in this case. Everybody would like to go home with a nice feeling that we know that the danger is gone away. It's no longer there.

I'm going to ask you to make the hard decision, the right decision, and say the evidence is not there, and the fact that we have to worry about that they didn't catch who it was and everything, that's just something we have to deal with, because the evidence is simply not there.

The reasonable doubt is there in this case. The state has not carried their burden and has not proved their case beyond a reasonable doubt, and I'm asking you to make that hard choice and tell the police that you will not tolerate the kind of shoddy investigation and the kind of evidence that's been brought to you in this case and to return a verdict of not guilty, which speaks the truth. Thank you.

THE COURT: Are you going to be a while, Mr. Porter?

MR. PORTER: I suspect, Your Honor.

THE COURT: I think before we proceed with the balance of the argument, I think we'll take ten minutes, and then we'll recommence.

If you'll leave your pens, pads, and notes in your seats, they'll be waiting on you when you return. If you'll go with the bailiffs, please.

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

THE COURT: We'll take ten minutes.

[Break taken]

THE COURT: Is the state ready?

MR. PORTER: The state's ready, Your Honor.

THE COURT: Defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jury back, please. I show you with an hour and thirty-six minutes remaining, Mr. Porter.

MR. PORTER: Thank you, Your Honor.

MR. MOORE: I believe I came in in less than --

THE COURT: I believe you did.

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

THE COURT: Mr. Porter?

MR. PORTER: Thank you, Your Honor.

CLOSING ARGUMENTS BY THE STATE

MR. PORTER: It has never been my habit to comment upon the case put up by a defendant in my argument to the jury. It has never been my habit to comment upon the evidence the defendant puts up in his own defense. But in this case, after listening to the evidence and listening to the argument of counsel and the pack of misdirection, innuendo, and outright falsehoods that have been presented to this jury, I feel that I must.

This defendant has engaged in a pattern of misdirection and misinterpretation from the outset of this case that has been conducted through his attorneys and through his own testimony on a variety of fronts.

Let's look at the first defense he wants you to put up or he wants you to believe. He has dragged every police officer in Gwinnett County by innuendo into this courtroom. He has dragged every upstanding, fine officer that all of us know in an effort to divert your attention from the overwhelming evidence of his guilt. He's gone so far as to specifically name people as suspects, and the state has had to waste your time and my time shooting those suspects out of the saddle one by one.

The first person they brought in was the Sugar Hill city marshal. The Sugar Hill city marshal didn't kill Emogene Thompson. The shooting occurred and was done by a right-handed shooter. Chris Robertson is left-handed.

The roadblock witnesses saw a car with a yellow stripe. Chris Robertson drove a black-and-white car. The witnesses saw a large, dark haired, white male. Chris Robertson is blonde. And yet the defendant is prepared to bring Chris Robertson in and present him to you as a suspect in an effort to divert your attention.

And when that didn't work, the next one he brought in was Brian Reddy, his friend. He's willing to sacrifice his friend in his desperation to evade the consequences of his act. But Brian Reddy didn't kill Emogene Thompson. If we're certain that anyone was at that fire station all night on April the 15th, it was Brian Reddy, because Reddy is clearly alibied by the firefighters. They remember him. Reddy is alibied by Chapel's good friend Don Stone. He remembers. And the firearm that Reddy owns has been absolutely excluded by Kelly Fite as the murder weapon.

So who's next? Who do we look for next? J. P. Morgan. J. P. Morgan killed himself about fifteen days after the murder of Emogene Thompson. It was actually about twenty-two days. And in the most shameful -- in the most shameful attempt to evade responsibility, Michael Chapel is prepared to malign the reputation of a dead man, a man who can't come in like Brian Reddy did and defend himself. He's prepared to climb on the shoulders of a dead man to escape his responsibility.

And beginning with statements that were made in the Hall County jail that began the investigation to clear J. P. Morgan, J. P. Morgan was cleared. Tests were run on his car, which was ironically the same kind of car that Michael Chapel drove, that revealed no presence of blood. The weapons that J. P. Morgan owned were Smith & Wesson. J. P. Morgan's whereabouts on the night of the murder were determined. And another attempt to evade the responsibility for his actions by Michael Chapel was thwarted.

And then, finally, worst of all, every police officer who walked into this courtroom, from Rick Winderweedle, who did nothing more than pass on a message, to an officer who's been introduced by innuendo, as Defendant's 38, has been indirectly accused of the murder of Emogene Thompson and had to defend themselves.

Even Rudowski, who didn't even work in the northside precinct -- he worked in the westside precinct, which is down at Jimmy Carter Boulevard -- the defendant has the audacity to accuse him, because he wants to divert -- he wants to divert your attention. He wants you to do anything but pay attention to the evidence.

Well, then, the accusation against other officers, that doesn't work. So the next step is, let's put up an alibi. Let's put up the firefighters. They'll remember.

Well, the firefighters didn't remember. Sloan doesn't remember anything. He wasn't paying attention. He can't even tell you if Chapel was in the fire station.

Westbrooks and Wilson, who key their memory to no specific event, who say they don't have any reason to remember the 15th over any other night, acknowledge that Chapel could have left the fire station as early as nine-forty.

And the key firefighter is David Pierce. The key firefighter remembers an event that is locked in time that can be proven by external circumstances, and that's David Pierce. He remembers the movie. He remembers what the movie was about. He remembers the time or had to have his memory refreshed with a document that you'll have out. The time the movie ended, and he keys the time that Chapel left to the movie. And what was that movie about? Crooked cops. And all of a sudden the alibi disappears.

And indirectly the alibi wasn't even helped by their own witness, Mr. Parker, because he says, number one, he doesn't remember Chapel there that night. And number two, he customarily closed the gym between nine and nine-thirty, and that's when Chapel came by. So all of the evidence of the alibi goes poof.

So the defendant then has to take another tack. He has to raise the issue of contamination, sloppy police work.

Ladies and gentlemen, I'm going to ask you to look at one defense exhibit as evidence of sloppy police work. In this box there's a piece -- there's a pack of Carefree Sugarless Gum, and there's a package of soup that was held by the Gwinnett County police department for almost two years in case that it had any evidentiary value and was finally released to the defendant.

Would a police department that kept a pack of gum as potential evidence be sloppy? Is that not meticulous police work? Is that not indicative of meticulous police work?

So they have to come up with contamination. The blood on the seat came from somewhere else. Well, let's look at the sources of that contamination.

Where is Emogene Thompson's blood going to come from if, in fact, it was planted on the seat? Well, the first source is Emogene Thompson. They had to get some blood from Emogene Thompson, but they couldn't do that. Hal Bennett testified that he was with the body the whole time, that no one touched the body except the doctor, that no blood was drawn except what was put in the vials and delivered to the crime lab, and that he remained with the body until it was delivered to the funeral home. So the body is out as the first source.

The defendant then starts to look around and says there's a trash can. There's a trash can that has bio-waste in it. There's gowns and gloves and blood and everything else. But where was that trash can in relation to Unit 197 when the alleged mysterious person took the blood sample?

That car was in the possession of Mike Chapel because the blood -- and remember that the autopsy was conducted on April the 16th of 1993. It wasn't until a week later that Mike Chapel was arrested. It wasn't until five days after that that the car was Luminoled.

So in order to accept the contamination theory, you must believe that someone, some mysterious someone, went into the trash can, because we've ruled out the body, obtained a blood sample, held that blood sample in a liquid state for almost a week in anticipation of gaining control of Mike Chapel's car, and then they went in, and they put one tiny little smear on the arm rest.

Now, is that feasible? Is that reasonable? Is that believable? No, that isn't. And it's not believable because it didn't happen.

So the contamination system -- contamination argument starts to disappear, so they have to come up with another one, another source for the blood. Somebody else gave us the blood. That's how the blood got on the car seat.

Well, by his own test and by his own experts, we know that Mike Chapel didn't. That's not Mike Chapel's blood on that patrol car seat. Even his own experts acknowledge that. So who else's blood is it? All the stories about putting a hand through the window of a car to apprehend an armed suspect don't help you anymore.

Whose blood is it? And they come up with Ms. Cronic. Ms. Cronic who was probably the most credible witness in the entire defense case, who didn't even remember the police coming, who drove off a four-foot wall at the Buford post office and hit her head and bled. And there's one thing I want you to look at when you consider Ms. Cronic's case and the evidence that was put in.

They have to use Ms. Cronic for one of two things. She either explains the blood in the patrol car or she explains the blood on the raincoat, and they've chosen to go with the raincoat. When you look at the pictures that the defendant put in, he's not wearing a raincoat in those pictures. He's standing there with her car after it's driven off the wall in his sunglasses, and he's not wearing a raincoat. So Ms. Chronic absolutely cannot be the source of the blood either on his car or his raincoat.

And then finally we come to the DNA and the attack on the DNA, and I'll only make a couple of comments on that.

Dr. Choi is an expert. There's no question he's an expert. But remember what he said. He said there are only two possible explanations for the phenomenon that we described and attributed to partial digestion.

One is that the blood is of four separate people or perhaps more. That's one explanation, that there's four people's blood in that tiny little spot in the car seat, or the other explanation is that it is a partial digestion. One or the other, that's what he says, and based on that he would run the experiment again. And given his circumstances, he probably would.

He would run it again because he has the luxury of running it again. He has the option to run it again. He has the possibility to run it again. In his field he doesn't have to accept a result like that. He doesn't have to figure out why the result comes in because he has the luxury to run another one.

But it's the difference between the plastic surgeon in the well-equipped hospital and the guy in the MASH unit to compare Dr. Choi to George Herrin or Keith Goff. The guy in the MASH unit has to make the decision there, he has to save lives, and he has to make techniques work that might not be approved in another circumstance.

Now, on the other hand, Dr. Kushner who recognizes those limitations and recognizes the limitations that the crime lab works under finds the results of the DNA test absolutely acceptable, and he's an academic, too.

The other attack that was made on the DNA was done by Dr. Shapiro. Dr. Shapiro did, in fact, find a duplication in the black database for one probe, and the implication he wanted to give you was that there were duplications throughout the database. And it's easy to say that Dr. Shapiro's amazing discovery is really irrelevant because of two things. Mike Chapel is white. Emogene Thompson was white. The relevance of their occurrence within the black database has no meaning in this case.

And, second of all, when you take the offending data out and you re-figure it, what was the number? The number of the random chance of occurrence of Emogene Thompson's blood in the black database before the removal was 1.37 trillion, and the number after the removal was 1.37 trillion. So when you look at it, what is the net effect of this huge error that was found?

Now, Dr. Shapiro also wanted to talk about the similars versus the matches. And, in fact, the crime lab does not report out results using similars figured into their calculations. He was simply mistaken. He was simply wrong.

So I guess now we have an expert who's wrong about one thing, and another expert who's wrong about another, and what does that tell us? It tells us that experts are there to help us, but it goes back to what we talked about in my opening statement about reasonableness. It goes back to the human endeavor. It goes back to the concept of reasonable doubt.

And that constituted -- well, there was more. Then we got Lieutenant Powell up, and the defendant attempted, through a lengthy direct examination, to go into the MDT traffic, the telephone traffic, and the financial records. And it wasn't until my cross-examination that you realized that the data that Lieutenant Powell based his conclusions on was false from the very beginning. It was flawed. And I saw some of you throw your pens down, and I thought this is typical of the defendant's strategy in this case.

It's typical that they didn't confront Mr. Kautter with his statement, 'I'll have to say.' They confronted Sergeant Cline. They didn't confront Ms. Burel about the telephone calls from Emogene Thompson. They confronted Lieutenant Powell. They didn't confront the witness who could tell you the truth. They confronted a commentator. And Lieutenant Powell is the perfect example of that.

And that brought us to the Testron. Now, Testron is not a big deal. It's a food supplement. It's not illegal to sell. The state has never contended it's illegal to sell. Some of you may take Testron, for all I know.

But the issue of the Testron brought an important point about this defendant's attitude towards you to the front. He was prepared to allow you to sit and believe that he had sold 184 bottles of Testron at thirty dollars a bottle. Now, I'm no math whiz, but I can round off to two hundred and that comes pretty close to six thousand dollars, which would pretty closely approximate the money that the state has accounted for in the week after the murder. And this defendant, who on his own statement said the truth is going to come out, was prepared to leave you to believe that, was prepared to leave you with a lie in an effort to evade the responsibility for his actions. And that's the issue of Testron. That's what Testron is all about. And it wasn't until I put it in front of him in cross-examination that he was prepared to acknowledge the truth. [What is Porter talking about? Go back to Chapel’s testimony on Testron and Lt. Powell’s testimony on the communications about Testron.]

And, finally, after all the defenses were down, the defendant was left with his own testimony. He was left with the story that he told you. And I call it a story because I want you to contrast the testimony here and the war stories and jokes about the movie with the statement of the 23rd.

In the statement of the 23rd, we didn't hear anything about any red Jeep on Pass Court. In the statement of the 23rd, he said he called her. Today in court, or the other day in court, he said he went by her house and that's where all this information about the bands and the serial numbers came from.

In the statement of the 23rd, he said he left at nine-thirty. In court, he said ten o'clock.

The defense complains wouldn't memories have been fresher back then. And to that I answer, not if you have access to all the police reports, they're not fresher, and this defendant has had access to all the police reports. He has read every scrap of paper, and he came in here ready to tell you his story.

And watch his demeanor. Watch his demeanor here. Watch his demeanor on the 23rd. He was calm. He was jovial. A man on trial for his life sitting here on the witness stand having -- telling you a few war stories. Relaxed. Until he was faced with the questions he couldn't answer, the questions that I put to him on cross, the questions of his plausible explanation for the evidence that the state has produced. And that's when he got jumpy. That's when he got nervous. When he was confronted with the truth was when he got nervous.

I urge you to think back as part of your deliberations to the statement of the 23rd. What was his demeanor then? A police officer accused of perhaps the worst crime a police officer can commit, the ultimate betrayal of his trust as a police officer. And most of the time he look amused as Latty and Burnette suffered through an interview offering him every opportunity to vindicate himself, their pain so evident that the emotion was just tangible within the courtroom. And he's sitting there going, oh, this is the old good cop, bad cop. You can see it in his eyes. He's critiquing their interview technique. Is that the reaction of a man wrongly accused? Is that the reaction of a man horribly caught by the circumstances?

And then we come to court. You sit in judgment of the defendant, and he spends most of his time over there laughing. His attorneys are working hard. They're serious. The police officers are serious. The witnesses are serious. You're taking notes. The people who work with me are serious. This is serious business. And he's on a lark. He's playing because that -- he's confident that he can pull the wool over your eyes, he can fool you, he can show you some misdirection, some smoke and some mirrors, and you'll buy off on it. That's the theory of the defense. And, ladies and gentlemen, that's offensive to me, and that should be offensive to you, because the evidence, the clear credible evidence points in the opposite direction.

And then finally he brings the final insult. He brings the final insult to you and every citizen in Gwinnett County, that the only explanation was he was framed, that he was framed.

Well, let me ask. You saw Jack Burnette testify in this courtroom. You saw him on the videotape. You saw his pain. Would Jack Burnette frame Mike Chapel? What conceivable reason in the world would the Gwinnett County police department have to frame Michael Chapel? What possible explanation? Why Michael Chapel? There is no explanation. There is no frame-up. The physical evidence doesn't support the frame-up theory, and the reasonable consequences don't form a frame-up theory.

So what are we left with? We're left with the believable credible evidence presented by the state. We're left with the people who know that Mike Chapel left the precinct on April the 15th of 1993 between nine-twenty and nine-thirty. How do we know that? Donald Stone tells us that, Pierce tells us that, and the defendant himself tells us that.

We know then that the defendant took the five-minute drive from the precinct to the Gwinnco Muffler, and by nine-thirty there was a police car parked in the Gwinnco Muffler. How do we know that? Ms. Johnsa says it. Ms. Turner says it. Mr. Charles says it. Mr. Schmanski says it.

So by nine-thirty a Gwinnett County patrol car was parked in the Gwinnco Muffler facing towards Peachtree Industrial Boulevard with its lights off. Ms. Rogan raises the question, how did these witnesses see that? Well, that's easy. The yellow stripes are designed to reflect. That's what they're there for so that people can identify police cars as police cars. And the important thing is is not that it was six inches wide or not that it was four inches wide, but that these people clearly identified the car they saw as a Gwinnett County patrol car.

By nine-forty, Mr. and Mrs. Hutchins heard the shots. And by nine forty-five the witnesses saw someone they described as getting a ticket, which meant a dark mid-sized car with a Gwinnett County patrol car behind it. That was Mr. Robertson, Mr. Gravitt, Mr. Omodt, and Mr. Kautter.

Again, look back at the relationships. Look back at the interrelationships of the evidence, who supports whom, and all of these witnesses support one another.

When we get to nine forty-five, the key witnesses are Omodt and Kautter. Omodt's evidence was that it was a bubble car, a Crown Vic or a Chevy Impala, one of the rounded versions. Omodt is a car mechanic. Wouldn't we expect him to be able to identify a vehicle much more clearly than Ms. Johnsa or Ms. Turner, who, as I recall, was a bank teller?

Omodt identified it as a Crown Vic behind a dark colored, mid-sized sedan. He saw a large white police officer wearing a rain jacket, a rain hat, carrying a flashlight, leaning over into a car. And then as they went by, if you will recall his testimony, he didn't see anyone behind them. As they went by, the car pulled up behind them rapidly, came to the side, and stayed to the side. And at that point Mr. Kautter -- this was at nine forty-five -- Mr. Kautter turned and looked.

The judge will charge you about eyewitness identification, and I've already explained the law to you. But apply your own common sense to that situation. Think about yourself with a police car three feet away. Think about the degree of attention you'd be paying to the driver on a rainy night when as you came over the hill the first thing you saw was a blue light.

Think about the degree of attention you'd be paying as you looked over to see if that officer was going to flip on his blue light. And think about how much attention you'd be paying as you drove from where Peachtree Industrial four-lanes for almost half a mile to R. H. Smith Drive, and think of how long that takes at forty-five miles an hour.

So Kautter had plenty of time to look. He testified to what the description was. The description was of a large dark-haired white male with a thin or no mustache. And I urge you to look at Defense Exhibit Number 38 when you get it. That officer has a mustache that looks like the Sundance Kid and clearly would have been visible on the darkest night. But Kautter said no mustache or a thin mustache.

Kautter, who didn't ever want to come forward, was then located, shown the lineup, and positively identified Michael Chapel as the person in the patrol car.

But that's not all. That's not all there was because by that time the police had located Delores Burel, Virginia Chance, and Marsha Arnold and had interviewed them.

And by the time Karl Kautter made his positive identification, the police knew of the connection between Emogene Thompson and Michael Chapel. They knew that Michael Chapel had responded to the burglary call on April the 3rd. They knew that Michael Chapel had accused Michael Thompson. They knew that Michael Chapel was working the case and was running the boo on Emogene Thompson, telling her he was going to get her money back. And they knew that Michael Chapel had stopped Emogene Thompson the day before on April the 14th and arranged a meeting for the night of the 15th.

And so the identification by Karl Kautter a week later only confirmed their worst fears, that Michael Chapel was at the scene like he said he was going to be, like he had arranged with the victim, and the victim never walked away.

Once they had established that, it became a matter of gathering the physical evidence. And you heard the witnesses on the handling of the physical evidence. You heard the way that the blood was drawn, that it was handled securely and delivered to the crime lab. You saw all the paper bags, you saw all the evidence tape, you saw all the rumbling around, and this is the investigation that the defense wants to characterize as a sloppy investigation.

Now, it was sloppy in here because we had to open up a lot of evidence bags, and we had to open up a lot of tape. But anyone who would say that the gathering of the evidence in this case was sloppy or wasn't meticulous is wrong.

And as the evidence began to fine tune, the arrow became sharper, the point became sharper. And the rain jacket was discovered, the rain jacket which you'll look at. I urge you to take a look at it, because Mr. Moore is correct. Not all the blood was tested.

But look at the pattern. Look at the pattern on the rain jacket of the high velocity blood spatter. Look at the interspersing of human blood in that pattern. And what other reasonable explanation has been presented, and what other reasonable explanation can be determined from the interspersing of human blood with spots that are consistent with human blood than that it's all human blood, because there has been no other reasonable explanation presented as to animals or anything else. And I urge you to look at that.

We also found out about the weapon. The bullets were removed at the autopsy. They were delivered to the crime lab. And they were fired from an RG -- an RG or Charter Arms .38 or .357. And the reason they say .38 or .357 is because .38's fire the same size slugs as .357's, and all they had was a slug.

So we knew the murder weapon. And what did we discover? The defendant owned a murder weapon. He owned a Charter Arms five-shot .38 by his own admission, by the statement out of his own mouth to Ray Dunlap.

And then finally there was the evidence that they cannot escape that was recovered from the patrol car, and that's the blood.

But before we talk about the blood, let me talk about this issue of financial evidence. The evidence is clear that in the week after the murder, Michael Chapel had -- I originally told you twenty-three hundred dollars, but as the evidence came out it comes to fifty-five hundred and twenty dollars in cash with no discernable source.

We know that he deposited his paycheck in his personal account and that paycheck was in the amount of $772.72, and we know that he did that on the 14th of April. We also know that his next paycheck, in the amount of $754.49, was deposited on April the 26th. Those are State's Exhibits 69 and 70.

But between those two periods of time, there are either deposits in the account or expenditures in one-hundred dollar bills or money seen in Eren's possession that account for fifty-five hundred and twenty dollars for which there is no explanation.

We know from Exhibit 79 that Mike Chapel spent a hundred dollars at the car wash the day after the murder to have his car detailed and cleaned, and he paid for it with a hundred dollar bill.

We know from State's Exhibit Number 48 that he made a deposit on the 16th, the day after the murder, that included three hundred dollars in cash.

We know from State's Exhibit Number 50 that on the 19th he made a deposit that included two hundred and eighty-five dollars in cash.

We know on the 19th in State's Exhibit Number 84 and 86 that he paid two hundred and forty dollars in cash to bond out Eren's friend.

We know that on the 19th he spent six one-hundred dollar bills to buy T-shirts. Now, his explanation is that was Jack Dudley's money. Now, that fourteen hundred dollars went a long way. It covered a lot of stuff when you start including six hundred dollars worth of T-shirts and Testron and goose guns or turkey guns and spending money and traveler's checks. That was an awful long fifteen hundred dollars, folks, because it didn't come from there.

He spent six hundred dollars on T-shirts. That's State's Exhibit Number 80.

On the 20th he made a deposit including eighty dollars in cash, and that's State's Exhibit Number 49.

On the 22nd he deposited a hundred and fifteen dollars in cash in their personal account, and that's State's Exhibit 71.

On the 23rd he made a deposit of four hundred dollars in cash into the gym account, and that's State's Exhibit Number 51.

And then following his arrest, in a briefcase that he acknowledged was his, in a notebook that he acknowledged was his, four crisp, clean one-hundred dollar bills were found squirreled away. And they weren't discovered until the defense had the opportunity to look at this case, and even his own attorney and investigator were unable to discover it. So the only person who knew those crisp, clean four hundreds were in that notebook was Mike Chapel, and he didn't even tell his own attorney.

MR. MOORE: Your Honor, I'm going to object. Mr. Porter doesn't know what, if anything, Mr. Chapel told us, and that's improper for him to go into the attorney-client privilege and be arguing that before the jury.

MR. PORTER: Your Honor, Mr. Moore didn't discover the evidence and there's been evidence of that, and that's a reasonable inference.

THE COURT: Objection is overruled. Go ahead, please.

MR. PORTER: Mike Chapel knew that he didn't want anybody to find those four one-hundreds because those four one-hundreds were delivered the day before Emogene Thompson took ten thousand dollars out of the bank. And they were crisp, clean one-hundreds, and he didn't want anybody to find them.

And then you add in the testimony from Kendon Curtis that Eren on the 19th was in possession of what he estimated to be three thousand dollars, and you come up with fifty-five hundred and twenty dollars in unexplained cash that this defendant placed in the bank or used over the week after the murder that Eren's paycheck doesn't cover and that Mike's paycheck doesn't cover.

Ant that's a lot of tan-and-tone specials, folks. That's a lot of three-month memberships from something that you were just keeping the lights on. That's a lot of money for a man whose average daily balance never went above fifteen hundred dollars, and who had a zero balance in both his business account and his personal checking account in March.

Five grand is a lot of money. And where did that money come from? We know where it came from, and it came from Emogene Thompson's purse. That's the only plausible, reasonable explanation of where it came from.

Now let's get to the DNA, because the DNA is the one piece of evidence that cannot be explained by the defendant in any reasonable, plausible manner.

Given the theories that the defendant has put in this case, Mr. Moore's argument about a mosquito biting Emogene Thompson and flying into the patrol car is more likely than anything that Michael Chapel has said in the last two weeks. But that didn't happen.

The DNA has been analyzed by members of the Georgia state crime lab. You will have the autoradiograms with you. Look for yourself. Compare the partial digestion tests. Compare the actual autoradiographs. Lay the ruler across them. Eyeball them yourselves, because this issue about bio-images, it doesn't matter.

Every expert, including the defendant's, has made their judgment based on a visual examination of the autoradiographs. The bio-imaging is just to check it. It's just a way -- a quality control. Dr. Choi stood here before you and made his interpretation using his eyeballs, and what better -- what better way to do it than to have a trained expert interpret it.

And there's no question. There is no doubt. There is no reasonable belief other than that that is Emogene Thompson's blood on the seat of Michael Chapel's patrol car. It wasn't planted. It wasn't there by accident. It wasn't somehow mysteriously transported from another planet. It was placed in there without knowing it by the defendant.

So finally what do we end up with? What do we end up with as far as the events of April of 1993?

The events of April of 1993 show clearly that Emogene Thompson had fourteen thousand dollars that she hid away for whatever reason and that half of it was stolen from her, probably by her son. I think, after hearing the testimony, it is probably reasonable to believe that Michael Thompson stole the money. You can almost believe that beyond a reasonable doubt.

But if from the evidence in this case you believe that Michael Thompson beyond a reasonable doubt stole the first seven thousand dollars, what is the inescapable conclusion regarding the second? If you're prepared to make that judgment, what is the inescapable judgment as to Mike Chapel?

But in any event, Chapel responded. In a report that you'll have out with you, he wrote 'victim wishes to prosecute,' but yet he called it in as a Code 32, meaning no report.

How do those reconcile? How do those -- how do those meet the credibility test unless you accept the state's theory, unless you accept that Michael Chapel drove up in that driveway, he saw the money, he counted it, and he figured that Emogene Thompson was just a doper and that nobody would give a damn if he took the money, if he blew her away, because he had the perfect suspect sitting right down the hall, the son. He'd pin it on the son. And at that point he took the -- he decided to put the plan in action. Ms. Burel and Ms. Arnold have told you that he remained in contact with Ms. Thompson, that he called her, that he set up the meeting, and the meeting went down.

And, ladies and gentlemen, when you look at the time line of this, this is what happened on the night of April the 15th:

Mike Chapel left the precinct between nine-twenty and nine-thirty. He drove to the Gwinnco, turned his car around, and waited. He waited with the light of the dome light on, as we've heard from the testimony of Dr. Brusie, who picked him out of a lineup or tentatively picked him out of the lineup, one or the other. Now, the defendant tried to say that with the red light he couldn't see, but you'll see the picture of the ambient light in the cab.

But he waited. He had his appointment with her, and Ms. Thompson pulled into the driveway exactly to where her car was found. Chapel swung his car around behind her and turned on the blue light.

Now, you think to yourself why would anybody do this? And my answer to you is, what more perfect plan? Think of what the witnesses have told you. Think of what they saw. They saw someone getting a ticket. There's an old movie that has a title called 'Hide in Plain Sight,' and what more apropos idea for the plan here.

Now, you say, well, why didn't he kill her at the trailer? Because he can't control her there. Why didn't he take her somewhere else? Why didn't he kill her at the Waffle House? Well, there's too many people there. Why didn't he kill her on her street? There's too many witnesses. What did the witnesses see? They saw a traffic stop. And what did Michael Chapel want them to see? A traffic stop.

So when she got there by nine forty-five he pulled the car around, turned the blue lights on, and walked up.

Now, think about what Chapel has to do when he's there. He has to find out that she's there. He has to make sure the money is there. He has to get her to get the money out and show it to him. He has to shoot her. He has to deflate the tire. He has to get the money, and he has to leave. Those are the tasks that he has at that time.

And how much time does he have to do it? He arrives by nine-thirty. The shots happen at about nine-forty. By nine forty-five Karl Kautter and Paul Omodt and Allen Robertson are driving by, and they're not seeing a traffic stop. They're seeing the cleanup on a murder scene, because Michael Chapel has already killed Emogene Thompson by nine forty-five.

And in the shelter of his blue lights and in the shelter of this 'hide in plain sight,' he is calmly, coolly removing her money, deflating her tire, and leaving the scene to what all the witnesses later thought it was, somebody who had a flat tire and fell asleep in the car. Because remember the testimony of the two men in the morning. They drove right by her. They didn't even think she was -- they didn't think there was a problem.

What better way to conceal a crime? What better way to give you time to get away, to throw the gun away, to throw the purse away, pocket the money, and leave the police with only the evidence you can't dispose of? And that's what happened the night of the 15th.

Now, you ask yourself why. I've asked myself why. The Gwinnett County police have asked themselves why. And the only answer that you can come up with is that Michael Chapel, in his arrogance, and in his belief that he was better than Emogene Thompson, and in his desire for seven thousand dollars in profit, was prepared to take a woman he considered trailer trash and execute her on the side of the road without thought, without remorse, without feeling, and now he's prepared to come in and lie about it.

And, ladies and gentlemen, on the night of April the 15th in the time it took Mr. Hutchins to say 'shoot her again,' Michael Chapel reduced this, to this. [Indicating] This is what demands the verdict that speaks the truth. This is what demands the verdict that has the word justice written on it. This is what demands the verdict of guilty. Thank you.

THE COURT: We're going to take ten minutes, and then we'll commence the charge.

If you'll leave your pens, pads, and notes, they'll be waiting on you when you return. If you'll go with the bailiffs, please.

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

THE COURT: Before we commence with the charge once they return, we need to pass out the copies of the charge to the jurors, and we'll do that. Do you want to mark a copy of the charge and make it part of the record, Mr. Porter or Mr. Moore?

MR. PORTER: That's fine, Your Honor. I have a copy here.

MR. MOORE: That would be fine, Your Honor.

THE COURT: All right. Okay. We'll take ten minutes, and then --

MS. ROGAN: Your Honor, I would like to perfect the record as to some portions of the state's closing arguments that I found objectionable.

THE COURT: All right. Go ahead, please.

MS. ROGAN: I did not object at the time in light of some of the Court's previous rulings, but I think the record should reflect our objections.

THE COURT: Go ahead, please.

MS. ROGAN: In his opening closing statement, the district attorney instructed the jury on the law, specifically as to malice aforethought, felony murder, the presumption of innocence, and reasonable doubt. I do not think it's appropriate for one of the attorneys to instruct the jury on the law.

He shifted the burden, I believe, in his comments about the defense of alibi that had been raised. He basically told the jury that once such a defense is raised, which we had objected to from the very beginning having injected as an issue in the case, that the defendant has taken up a burden of presenting evidence to support it, which is not the case. There is no burden on the defense to present evidence at any point in the trial.

In his closing closing argument, he made several ad hominem attacks on counsel, which I don't think were appropriate or warranted, and misstated the evidence in several critical junctures, I believe, particularly with regard to stating that Mr. Chapel in his videotaped statement said he'd left the gym at nine-thirty when, in fact, he'd said nine forty-five. I think that was prejudicially misleading to the jury.

And, finally, and Mr. Moore did make an objection at the time, but we object to his comment on statements that Mr. Chapel may or may not have made to his attorneys as violative of the attorney-client privilege.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, I'll respond to it in general. I believe that I made reasonable inferences from the evidence that was presented and I'm authorized to argue to the jury. In regard to the alibi, I believe I made a correct statement of law that when the defendant takes up the burden to present evidence, he's subjected to the same scrutiny as the state, which is, in fact, a correct statement of the law.

Your Honor, I can't respond to saying misstated the evidence at critical junctures. I don't know. And, in fact, if the Court will recall, the testimony from the videotape was that Chapel did indeed leave at nine to nine thirty-five, and that was in response to the last questioning from Detective Latty before he was taken out. They tried to reconstruct it one more time and he said nine-thirty to nine thirty-five. And, of course, the jury will remember the evidence.

THE COURT: What is your request or motion, Ms. Rogan?

MS. ROGAN: I just want the record to reflect our objections, Your Honor.

THE COURT: All right. We'll take ten minutes and then we'll commence.

[Break taken]

THE COURT: Is the state ready?

MR. PORTER: Yes, sir.

THE COURT: Is the defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jury back, please.

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

THE COURT: Mr. Allen, I'm going to ask you to pass these copies of the charge to the jurors, please.

[Pause in proceedings]

COURT: Ladies and gentlemen, I have prepared a copy of the charge which I'll be giving to assist you in following the charge as I give it and also to take with you to the jury room for assistance there in recalling the charge of the law by the Court.

CHARGE OF THE COURT

Now, you're considering the case of the State of Georgia versus Michael Harold Chapel, which is Case Number 93-B-1818-6 in the Superior Court of Gwinnett County.

The defendant in this case has been indicted by the grand jury of this county for the offenses of murder, felony murder, armed robbery, and possession of a firearm during the commission of a crime.

The indictment is as follows. Count 1: The grand jurors selected, chosen, and sworn for the county of Gwinnett, in the name and the behalf of the citizens of Georgia, charge and accuse Michael Harold Chapel with the offense of murder in that the said accused in the state of Georgia and county of Gwinnett on the 15th day of April 1993 did then and there unlawfully and with malice aforethought cause the death of Emogene Thompson, a human being, by shooting her in the head with a firearm, contrary to the laws of said state, the good order, peace and dignity thereof.

Count 2 of the indictment is as follows: And the grand jurors, aforesaid, in the name and the behalf of the citizens of Georgia, further charge and accuse Michael Harold Chapel with the offense of felony murder in that the said accused in the state of Georgia and county of Gwinnett on the 15th day of April 1993 did then and there unlawfully while in the commission of a felony, to wit, armed robbery, cause the death of Emogene Thompson, a human being, by shooting her in the head with a firearm, contrary to the laws of said state, the good order, peace and dignity thereof.

Count 3 of the indictment is as follows: And the grand jurors, aforesaid, in the name and the behalf of the citizens of Georgia, further charge and accuse Michael Harold Chapel with the offense of armed robbery in that the said accused in the state of Georgia and county of Gwinnett on the 15th day of April 1993 did then and there unlawfully with intent to commit theft take United States currency, the property of Emogene Thompson, from the immediate presence of Emogene Thompson by use of an offensive weapon, to wit, a firearm, contrary to the laws of said state, the good order, peace, and dignity thereof.

And, finally, Count 4 of the indictment is as follows: And the grand jurors, aforesaid, in the name and the behalf of the citizens of Georgia, further charge and accuse Michael Harold Chapel with the offense of possession of a firearm during the commission of a crime in that the said accused in the state of Georgia and county of Gwinnett on the 15th day of April 1993 did then and there unlawfully have on his person a firearm during the commission of a felony, to wit, murder, which is a crime against a person of another, contrary to the laws of said state, the good order, peace and dignity thereof.

Now, this indictment was returned into court on the 5th day of October 1993, and to this indictment the defendant has entered a plea of not guilty, and this makes the issue which you have been selected, sworn, and impaneled to try. I caution you that the fact that this accused has been indicted by the grand jury is no evidence of his guilt. You should not consider the indictment as evidence or implication of guilt. Neither is a plea of not guilty to be considered as evidence.

I charge you this defendant is presumed to be innocent until proven guilty. The defendant enters upon the trial of a case with the presumption of innocence in his favor. This presumption remains with the defendant until it is overcome by the state with evidence which is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the offense or offenses charged. No person shall be convicted of any crime unless each -- unless and until each element of the crime is proven beyond a reasonable doubt.

The burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the defendant whatever, and the burden never shifts to the defendant to prove innocence. However, the state is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.

A reasonable doubt means just what it says. It is the doubt of a fair-minded impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or any combination of these.

Now, if after giving consideration to all the facts and circumstances of this case your minds are wavering, unsettled, 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.

If the state fails to prove the defendant's guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.

Now, you must determine the credibility or believability of the witnesses. It is for you to determine what witness or witnesses you will believe and which witness or witnesses you will not believe if there are some you do not believe. In passing upon their credibility, you may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their interest or lack of interest, their means and opportunity for knowing the facts which they testify about, the nature of the facts which they testify about, the probability or improbability of their testimony and of the occurrences which they testify about. You may also consider their personal credibility insofar as it may legitimately appear from the trial of this case.

I charge you that if upon consideration of the evidence in this case you find that there is a conflict in the testimony of the witnesses or a conflict between a witness or witnesses, it is your duty to settle this conflict if you can without believing that any witness made a false statement. If you cannot do this, then it becomes your duty to believe that witness or those witnesses you think best entitled to belief. It is for you alone to determine what testimony you will believe and what testimony you will not believe.

I charge you that you will determine both the law and the facts.

Now, this defendant is charged with a crime against the laws of this state. A crime is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention.

Intent is an essential element of any crime and must be proved by the state beyond a reasonable doubt. Intent may be shown in many ways, provided you, the jury, believe that it existed from the proven facts before you. It may be inferred from the proven circumstances or by acts and conduct, or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion.

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.

Now, this defendant will not be presumed to have acted with criminal intent, but you may find such intention or the absence of it upon consideration of words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.

I charge you that evidence is the means by which any fact which is put in issue is established or disproved. Evidence includes all the testimony of the witnesses and the exhibits admitted during a trial. It also includes any facts agreed to by counsel. It does not include the indictment or the opening statements and closing arguments by the attorneys.

I charge you that evidence may be either direct or circumstantial or both. Direct evidence is the testimony given by a witness who has seen or heard the facts to which the witness testifies. It includes exhibits admitted into evidence during the trial. It is that evidence which points immediately to the question at issue.

Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may infer other related or connected facts which are reasonable and justified in the light of your experience.

To warrant a conviction on circumstantial evidence alone, 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.

The comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for the jury to decide.

Now, testimony has been given by certain witnesses who in law are termed experts. The law permits persons expert in certain areas to give their opinions derived from their knowledge of that area. The weight which is given to the testimony of expert witnesses is a question to be determined by the jury.

The testimony of an expert, like that of any other witness, is to be received by you and given only such weight as you think it is properly entitled to receive. You are not required to accept the opinion testimony of any witness, expert or otherwise.

Now, to impeach a witness is to prove the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified or by proof of contradictory statements previously made by the witness as to matters relevant to the witness's testimony and to the case.

If any attempt has been made in this case to impeach any witness by proof of contradictory statements previously made, you must determine from the evidence, first, whether any such statements were made, and, second, whether they were contradictory to any statements the witness made on the witness stand, and, third, whether it was material to the witness's testimony and to the case.

If you find that a witness has been successfully impeached by proof of previous contradictory statements, you may disregard that testimony unless it is corroborated by other credible testimony, and the credit to be given to the balance of the testimony of the witness would be for you to determine. It is for you to determine whether or not a witness has been impeached and to determine the credibility of such a witness and the weight the witness's testimony shall receive in the consideration of the case.

Should you find that any witness, prior to the witness's testimony in this case from the witness stand, has made any statement inconsistent with that witness's testimony from the stand in this case and that such prior inconsistent statement is material to the case and the witness's testimony, then you are authorized to consider that prior statement not only for purposes of impeachment, but also as substantive evidence in the case.

Now, I charge you that facts and circumstances which merely place upon the defendant a grave suspicion of the crime charged or which merely raise a speculation or conjecture of the defendant's guilt are not sufficient to authorize a conviction of the defendant.

I charge you that 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 reasonably excludes the possibility of the presence of the defendant at the scene of the alleged offense. The presence of the defendant at the scene of the crime alleged is an essential element of the crimes 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 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 charge you that when evidence of the good character of the defendant is offered, the jury has the duty to take that testimony along with all other testimony in the case in determining the guilt or innocence of the defendant. Good character is a positive substantive fact and may be sufficient to produce in the minds of a jury a reasonable doubt about the guilt of the defendant.

You have the duty to take any evidence of general good character with all the other evidence in the case, and if in doing so you should entertain a reasonable doubt about the guilt of the defendant, it would be your duty to acquit. However, if you should believe the defendant guilty beyond a reasonable doubt, you would be authorized to convict in spite of the evidence about general good character.

I charge you that identity is a question of fact for determination by the jury. It is dependent upon the credibility of the witness or witnesses offered for this purpose, and you have the right to consider all of the factors previously charged you regarding credibility of witnesses.

Some but not all the factors you may consider in assessing the reliability of identification are: (a) the opportunity of the witness to view the alleged perpetrator at the time of the alleged incident; (b) the witness's degree of attention toward the alleged perpetrator at the time of the alleged incident; (c) the level of certainty shown by the witness about his or her identification; (d) the possibility of mistaken identity; and (e) whether the witness's identification may have been influenced by factors other than the view that the witness claimed to have; and (f) whether the witness on any prior occasion did not identify the defendant in this case as the alleged perpetrator.

It is for you to say whether under the evidence in this case the testimony of the witnesses and the facts and circumstances of the case sufficiently identify this defendant beyond a reasonable doubt as the perpetrator of the alleged crime.

It is not necessary that the defendant show that another person committed the alleged offense. It is sufficient if there are facts and circumstances in this case which would raise a reasonable doubt whether this defendant is, in fact, the person who committed the crime.

If you do not believe that the defendant has been sufficiently identified as the person who committed the alleged crime, or if you have any reasonable doubt about such, then it would be your duty to acquit the defendant.

The burden of proof rests upon the state to prove beyond a reasonable doubt the identity of this defendant as the person who committed the crime alleged in this bill of indictment.

Now, this defendant is charged with the offense of murder in Count 1 of the indictment, and murder is defined as follows:

A person commits murder when that person unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

Express malice is that deliberate intention unlawfully to 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 and 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 doing of the act or killing and moves the accused to do it, such is sufficient to constitute the homicide as murder.

Now, the defendant is charged with the offense of felony murder in Count 2, and the law of this state provides that felony murder occurs in the following:

A person who commits the crime of murder when, in the commission of a felony, that person causes the death of another human being irrespective of malice. Let me read that again. 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 intent to commit theft, that person takes the property of another from the person or the immediate presence of another by use of an offensive weapon.

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. Under our law a firearm is an offensive weapon.

While the force used in an armed robbery must be employed contemporaneously with the obtaining of the 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 the property. It is not essential that the victim be conscious at the time of the robbery.

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, and the form of your verdict in that event would be: We, the jury, find the defendant guilty of murder.

If you find and believe beyond a reasonable doubt under all the evidence and the Court's instructions that the defendant is guilty of the offense of felony murder, then you must specify such in 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 the state of the defendant's mind at the time of the alleged homicide.

In Count 3 of the indictment the defendant is charged with the offense of armed robbery, and armed robbery is defined as follows:

A person commits armed robbery when, with 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.

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. Under our law a firearm is an offensive weapon.

While the force used in an armed robbery must be employed contemporaneously with the obtaining of the 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 the property. It is not essential that the victim be conscious at the time of the robbery.

Now, if after considering the testimony and the evidence presented to you, together with the charge of the Court, you should find and believe beyond a reasonable doubt that the defendant in Gwinnett County, Georgia, did on or about April 15, 1993, commit the offense of armed robbery as indicted, you would be authorized to find the defendant guilty, and in that event the form of your verdict would be: We, the jury, find the defendant guilty.

Now, the defendant is charged with the offense of possession of a firearm during the commission of a felony in Count 4 of the indictment. Possession of a firearm during the commission of a felony is defined as follows:

A person commits the offense of possession of a firearm during the commission of a crime when the person has on his person a firearm during the commission of or any attempt 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 have previously charged you the elements of the offense of murder.

Now, if after considering the testimony and evidence presented to you, together with the charge of the Court, you should find and believe beyond a reasonable doubt that the defendant in Gwinnett County, Georgia, did on or about April 15, 1993, commit the offense of possession of a firearm during the commission of a felony, you would be authorized to find the defendant guilty, and in that event the form of your verdict would be: We, the jury, find the defendant guilty.

Now, Count 1, murder, Count 2, felony murder, Count 3, armed robbery, and Count 4, possession of a firearm, as alleged in this indictment -- or possession of a firearm during the commission of a felony, all of which are alleged in this indictment, are separate and distinct offenses, and you may convict on all if all are proven beyond a reasonable doubt.

If you find the defendant not guilty on all counts, in all cases, the form of your verdict would be: We, the jury, find the defendant not guilty.

Should you find the defendant guilty on one or more counts and not guilty on other counts, you should specify in your verdict whether you find the defendant guilty or not guilty as to each count.

If you do not believe that the defendant is guilty of any of these offenses or if you have any reasonable doubt as to the defendant's guilt, then it would be your duty to acquit the defendant, in which event the form of your verdict would be: We, the jury, find the defendant not guilty.

Now, I have prepared a verdict form which you'll have out with you. And at the top of it, it has the style of the case, the court, the state, the indictment number, and the parties, and it's entitled 'verdict' and it has four portions.

And the first part says 'As to Count 1 murder,' and beneath that it has two lines. The first line with a blank to the left says, 'We, the jury, find the defendant not guilty,' or -- and the second line is, 'We, the jury, find the defendant guilty as charged.'

The second portion is as follows. 'As to Count 2 felony murder,' and similarly two lines, a blank to the left of the first line, 'We, the jury, find the defendant not guilty.' Or on the second line with respect to Count 2, 'We, the jury, find the defendant guilty as charged.'

Similarly, as to Count 3, on the next page, there is a provision as to armed robbery with two lines, the first of which reads, 'We, the jury, find the defendant not guilty.' Or on the second line, the second choice is, 'We, the jury, find the defendant guilty as charged.'

And, finally, as to Count 4, it is similarly drawn, as to possession of a firearm during the commission of a crime, with two lines, the first line of which is, 'We, the jury, find the defendant not guilty.' Or the second line, 'We, the jury, find the defendant guilty as charged.'

Now, that addresses the four counts of the indictment, and what you will be authorized and obligated to do is to take the first count, murder, and take the evidence which has come to you by way of testimony, witnesses testifying under oath and exhibits admitted into evidence, and fairly find the facts from that evidence and apply the law as given you in this charge to reach a verdict which speaks the truth as to Count 1.

And that is, if you find the defendant not guilty, put an X or check the first line, which would indicate a verdict of not guilty. Or if you find the defendant guilty, check the second line indicating you find the defendant guilty of the offense of murder.

You'll have to make a similar determination with respect to Count 2 by applying -- by finding the facts from the evidence, from the exhibits and the testimony, and applying the law to those facts as you find them to be, and similarly reach a verdict as to Count 2 of guilty or not guilty, and check the appropriate line. And in the same way find a verdict with respect to Count 3 and Count 4.

And you will have to make a separate and independent determination as to Count 1, a separate and independent determination as to Count 2, a separate and independent determination as to Count 3, and a separate and independent determination as to Count 4 in the indictment.

And after you have reached a verdict in the case, your foreperson, selected by you, will need to date it, at the bottom of it put a date in it, and have the foreperson sign his or her name so that it can be returned and published in open court.

Now, whatever your verdict is, it must be unanimous, that is, agreed by all. The verdict must be signed by one of your members as foreperson, dated, and returned to be published in open court. One of your first duties in the jury room will be to select one of your number to act as foreperson, who will preside over your deliberations and who will sign the verdict which all twelve of you freely and voluntarily agree.

You should start your deliberations with an open mind, consult with one another, and consider each other's views. Each of you must decide this case for yourself, but you should do so only after discussion and consideration of the case with your fellow jurors.

Do not hesitate to change an opinion if convinced that it is wrong. However, you should never surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.

Now, by no ruling or comment which the Court has made during the progress of the trial has the Court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.

Now, I'm going to ask, with the exception -- we're going to have our twelve jurors who will be deciding the case at this point to go with the bailiff in just a moment to the jury room.

Our alternate jurors I'm going to ask to remain in the courtroom at this time for a moment. Our alternate jurors are Susan Clark. Where is Ms. Clark? Ms. Clark, I'll ask you to remain for a moment. Philip Sullivan? Mr. Sullivan, I'll ask you to remain for a moment. And John Albano, Mr. Albano, if you'll remain for a moment for further instruction.

Our remaining jurors, you may take your pens, pads, and notes with you, along with your copy of the charge to the jury room.

We will have two exhibits, that being the car seat and the tire, which we're going to leave in the jury room simply from space constraints at the moment. The other exhibits will be brought to the jury room. If you wish to have those exhibits brought in the jury room for deliberations, we'll bring them in. If you want to come back out and take a look at those, the jury room -- the courtroom will be secured, and you alone will be here, and you can -- we'll start out by leaving the car seat in the jury room simply because of the space in the jury room, and make that available to you whenever you want. Just make it known to the bailiffs and they'll bring you back in the courtroom to view the car seat and the tire as well. The other items will be in the jury room with you.

At this point you can retire to the jury room. We're going to shortly take you down for lunch. I know everybody is ready to eat lunch, so we'll do that shortly. But at this point I'm going to ask you to go to the jury room with the bailiffs with the instruction that you ought not to commence your deliberations until you receive the indictment and the items of evidence in the jury room with you. So with the exception of our alternates, I'm going to ask the other jurors to go with our bailiff to the jury room at this time.

[The jury was escorted from the courtroom at 1:30 p.m..]

THE COURT: Ms. Clark, Mr. Sullivan, and Mr. Albano, the instruction of the Court at this point will be that you will not be at this point participating in the deliberations to decide this case, but that may change. If for any reason any juror cannot continue on to reach a verdict, then you will go in the jury room and participate in the deliberations and participate in reaching a verdict in this case. So you may yet be in the jury room participating in this case.

The instruction of the Court will be that until such time as this matter is concluded and a verdict has been returned in this case, that you ought not to discuss this case whatsoever amongst yourselves or with anybody else or allow anybody else to discuss the case with you or in your presence. You will continue to be sequestered. You'll also be sequestered and kept separate from the other jurors until such time as you participate as one of the twelve reaching a decision in this case.

We're going to have -- we have jury rooms for our alternates at this point. I'm going to ask you to go with Mr. Allen. You can take your pens, pads, and notes, and we'll see about providing you lunch momentarily. And we will release you as soon as we can, but at this point you're going to remain sequestered as a potential juror in the case. If you'll go with our bailiffs, please.

[The alternates were escorted from the courtroom.] THE COURT: We need to sort out the exhibits. I guess we can sort them out, and after lunch, Mr. Allen, maybe that would be a good time -- we can either put them in the jury room and lock them or else we can simply secure the courtroom. My inclination is going to be to secure the courtroom, I think. Let's sort them out and leave them here, and once the jurors come back from lunch, then at that point take the exhibits to the jurors so they can deliberate.

Here's the indictment and the verdict form. I think I'd like to sort the exhibits out and make sure we have all those first, and then we'll come back and anything you wish to add to the record, you can.

Let's look at the state's exhibits.

MR. PORTER: Yes, sir.

THE BAILIFF, MR. ALLEN: Judge, may I approach?

THE COURT: Yes, sir.

THE BAILIFF, MR. ALLEN: Do you want me to go ahead and feed them before --

THE COURT: Yeah. Go ahead and get that out of the way.

THE BAILIFF, MR. ALLEN: Okay.

THE COURT: Get the alternates first, and then it's okay.

THE BAILIFF, MR. ALLEN: All right.

THE COURT: Let's look at the state's exhibits and make sure we have all those.

MR. PORTER: How do you want me to do this?

THE COURT: Well, let me get the list.

MR. PORTER: I can say that we delivered the exhibits by using the Court's list, and we --

THE COURT: Let's go through them. I'd just like to be sure we don't have any --

MR. PORTER: You want me to walk up and just put my finger on them as we go through them?

THE COURT: Let's go through them. Mr. Moore, Mr. -- and let's everybody go through the state's exhibits, and let's everybody look at the defendant's exhibits and make sure we've got them all secure. And then after lunch when the jurors come back to the jury room, I'll have the bailiff deliver them. But I want to be sure that we don't have any omitted or any in advertently that's mixed in with them.

MR. PORTER: If you'll call them out, I'll point them out.

THE COURT: All right. Mr. Moore, you want to take a look at them while we go through them?

MS. ROGAN: Maybe we should pile them somewhere separate.

MR. PORTER: They're pretty much that way now.

MS. ROGAN: Okay.

THE COURT: All right. State's 1.

MR. PORTER: It's a calendar.

THE COURT: 2 a diagram. 3 a diagram.

MR. PORTER: That's Peachtree Industrial Boulevard, 3.

THE COURT: 4 is an aerial photo.

MR. PORTER: Got that.

THE COURT: 5 through 22 are photos.

MR. PORTER: We have those. 5 through 22.

THE COURT: Okay. 23 is the glasses.

MS. ROGAN: They're right here.

THE COURT: 24 is the tire.

MR. PORTER: I got the tire. Hold on a second, Your Honor.

THE COURT: Along with the plug. Is that with it?

MR. PORTER: All right. We've got the glasses, we've got the tire.

THE COURT: And the plug that came out of it, is that with it?

MR. PORTER: Yes, sir, that's here.

THE COURT: 25 is the test tube of blood.

MR. PORTER: Got that.

THE COURT: 25A through 31 are photos.

MR. PORTER: Got those.

THE COURT: 32 is the photo lineup.

MR. PORTER: Got that.

THE COURT: 33 is a check.

MR. PORTER: All right. Got 33.

THE COURT: 34 is the victim's bank statement.

MR. PORTER: Got that.

THE COURT: 35A and B are the victim's bank records.

MR. PORTER: Got that.

THE COURT: 36 is the victim's savings account.

MR. PORTER: Got that.

THE COURT: 37 is the victim's account.

MR. PORTER: Got that.

THE COURT: 38A, B, C, and D are the victim's records or checks.

MR. PORTER: Checks. Yes, got that.

THE COURT: 39 is the victim's savings withdrawal.

MR. PORTER: Got it.

THE COURT: 40 is the teller tape.

MR. PORTER: Got it.

THE COURT: 41 is the victim's checking account statement.

MR. PORTER: Got it.

THE COURT: 42 parts A, B, C, D, and E are the victim's bank records.

MR. PORTER: Got them.

THE COURT: 43 is -- the gym account is State's 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 -- through 53 are all gym records.

MR. PORTER: Actually 54 is -- well, 52 and 53 are checks.

THE COURT: Okay. And 54 is a check?

MR. PORTER: Check.

THE COURT: 55 is a check.

MR. PORTER: Is a check.

THE COURT: 56 is a check from the defendant.

MR. PORTER: 57 is a check.

THE COURT: 57, 58, 59, and 60 are all checks. 61 and 62 are checks.

MR. PORTER: Are checks.

THE COURT: 63 is the general ledger. A and B is the ledger and the cash-in record.

MR. PORTER: That's correct.

THE COURT: 64 is the ledger and credit.

MR. PORTER: That's right.

THE COURT: 65 is the statement. That's the defendant and the wife.

MR. PORTER: That's the personal.

THE COURT: 65, 66, 67, 68 are all the records of the defendant and the wife.

MR. PORTER: I've got those.

THE COURT: 69A and B are defendant's bank records.

MR. PORTER: Paycheck and deposit slip.

THE COURT: Okay. 70A, B, and C are the defendant's bank records.

MR. PORTER: Paycheck, deposit stub, and cash-out.

THE COURT: Right. 70A, B, C, and D are defendant's bank records.

MS. ROGAN: That's what we just did.

MR. PORTER: Right. There are two checks -- are we on 71 or 70?

THE COURT: 71 is what I was looking at.

MR. PORTER: Right. I'm on 71. There are two check, the cash-in debit, and deposit slip.

THE COURT: And deposit slip. All right. 72 is the 911 tape.

MR. PORTER: Wait. Right.

THE COURT: 73 is the call card.

MR. PORTER: Right.

THE COURT: 74 is the Winderweedle memo.

MR. PORTER: Right.

THE COURT: 75 and 76 are photos.

MS. ROGAN: Yeah.

MR. PORTER: We've got to go back and --

MS. ROGAN: Here they are.

MR. PORTER: Those are the car photos.

MS. ROGAN: I took one of them. Let me get it. It's right here.

THE COURT: And both of those are of the Unit 197?

MR. PORTER: That's correct.

MS. ROGAN: That's correct.

THE COURT: So we've got 75 and 76. 77 is the daily log sheet by the defendant.

MR. PORTER: Yes.

THE COURT: 78 is a photo of the victim. 79 is the car wash receipt.

MR. PORTER: Right.

THE COURT: 80 is the T-shirt order form.

MR. PORTER: Right.

THE COURT: 81 is the currency database record.

MR. PORTER: Right.

THE COURT: 82 is the currency request report.

MR. PORTER: Right.

THE COURT: 83 is the citation to Ms. Forg and 84 is the bond, and similarly 85 and 86, citation and bond.

MR. PORTER: Right.

THE COURT: 87 does not go out.

MR. PORTER: Right. 87S is the --

THE COURT: 87S is the large one that goes out.

MS. ROGAN: Yes.

MR. PORTER: Right.

THE COURT: 88, 89, and 90 are the original videocasettes.

MR. PORTER: We've got those.

THE COURT: 88, 89, and 90?

MR. PORTER: Yes, sir.

THE COURT: 91, 92, and 93 are the redacted videos. They will not go out.

MS. ROGAN: Right.

MR. PORTER: They're on the tapes -- marked on the tapes.

MS. ROGAN: Okay.

MR. MOORE: Oh, okay.

MR. PORTER: The redacted videos are downstairs.

THE COURT: Okay. 94 was the record only. That was a transcript.

MR. PORTER: Yes, sir.

THE COURT: 95 was --

MR. PORTER: One of the pages.

THE COURT: -- record only. That's one of the pages. 96 was for the record only. 97 is the briefcase. 98 is an evidence bag.

MR. PORTER: Let me check. Right. What was 99?

THE COURT: 99 is the gun belt.

MR. PORTER: Okay. We got both of those.

THE COURT: 100 is the tubes of blood from the defendant.

MR. MOORE: That's in your notebook, Danny.

MR. SMEAL: That's in front of the notebook.

MR. PORTER: It's in front of the notebook. Yeah, we've got that one.

THE COURT: 101 is the pawn agreement.

MR. PORTER: Got that one.

THE COURT: 102 is the videotape of the vehicle, the victim's vehicle.

MR. PORTER: The crime scene video.

THE COURT: Right.

MR. PORTER: That's in that bag right over there. We got that one.

THE COURT: All right. 103 is a bag that doesn't go out. 104 is a bag the slug came out of.

MR. PORTER: Right.

THE COURT: 105 is the plastic bag that had the slug.

MR. PORTER: Right.

THE COURT: 106 is the canister with the slug. 107 is a paper that doesn't go out.

MR. PORTER: Right.

THE COURT: 108 and 109 are brown evidence bags that do go out.

MS. ROGAN: Oh. So this one doesn't go out?

MR. PORTER: Yeah, 107 doesn't go out.

THE COURT: 107 does not.

MS. ROGAN: Okay. 108.

THE COURT: 108 and 109 do.

MS. ROGAN: Uh-huh.

THE COURT: 110 is the canister with the other slug.

MR. PORTER: That should be in -- yep, that's in there.

THE COURT: All right. State's 111 through 115 are photos.

MR. PORTER: That's right.

THE COURT: 116 is the car seat.

MS. ROGAN: Uh-huh.

THE COURT: 117 and 118 do not go out, the wrapping paper.

MR. PORTER: The wrapping paper. It's underneath it, Judge, but --

MS. ROGAN: Maybe we should pull it out.

MR. PORTER: It's just white paper that I rolled up and stuck up under the seat.

MS. ROGAN: Oh. The seat is not moving so it doesn't matter. Okay.

THE COURT: Okay. 119 is the arm rest.

MR. PORTER: That's there, Judge.

THE COURT: 120 is the bag that the arm rest was in.

MR. PORTER: That's there.

THE COURT: 121 are the four hundred-dollar bills.

MR. PORTER: That's right here.

THE COURT: 122 is the photo of locker number 134.

MR. PORTER: I got it.

THE COURT: 123 is the clipboard, pads, and log sheets.

MR. PORTER: That's over here.

MR. MOORE: Elizabeth used that in her argument.

THE COURT: Okay. And 124 is the flashlight.

MS. ROGAN: Uh-huh. It's here.

MR. PORTER: It's here.

THE COURT: All these items we're shifting over in a separate place; right? We all know they're in a separate group, the ones that are in that we're looking at now?

MS. ROGAN: Yes.

MR. PORTER: As you're calling them, we're moving them.

THE COURT: Putting them in a common place. Okay. 125 is the police hat.

MS. ROGAN: Uh-huh.

THE COURT: 126 is the rain pants.

MS. ROGAN: Where are they?

MR. DAVIS: They're up on the bar.

MS. ROGAN: They're right here.

MR. PORTER: Right there. Yes, sir, we've got those.

MS. ROGAN: Okay.

THE COURT: Okay. 127 is the brown evidence bag the pants were in.

MS. ROGAN: That goes out?

THE COURT: It's in.

MS. ROGAN: Okay.

THE COURT: It's marked and it's admitted.

MS. ROGAN: Okay. Let's put it up here, so --

THE COURT: Yeah, kind of put all of these in one common pile so that we know they're in. 128 is the brown bag that had the raincoat.

MR. PORTER: Right.

THE COURT: 129 is the raincoat.

MR. PORTER: Got it.

THE COURT: 130 is the envelope with the car seat swatch --

MR. PORTER: The what?

MR. SMEAL: That's in the notebook.

THE COURT: The car seat cloth swatch.

MS. ROGAN: Okay.

MR. PORTER: Okay.

THE COURT: 131 is the RG .38.

MS. ROGAN: That's here.

THE COURT: Check and make sure it's been cleared.

MR. DAVIS: It's okay.

THE COURT: All right. 132 is the brown evidence bag.

MR. PORTER: I got it.

THE COURT: 133 is the rain cap cover, plastic cover. 134 is the photo of the note pad and the cover.

MS. ROGAN: It's right here.

THE COURT: Okay. And have you got the photo?

MR. DAVIS: Yes, sir.

THE COURT: 135 is the note pad and cover that had the hundred-dollar bills.

MR. PORTER: Yes, sir. We got it right here.

THE COURT: 136 is a photo of Burnette holding the note pad and cover.

MR. DAVIS: Yes, sir.

THE COURT: 137 is Officer Reddy's daily log sheet.

MR. DAVIS: Yes, sir.

THE COURT: 138 is the paper with the victim's phone number on it taken from the defendant's car.

MR. DAVIS: Yes, sir.

THE COURT: Okay. And then we come to the autorads. They should be 139 -- they should be A and B of 139 through 151. A and B for 139 through 151. That would be the negatives and the prints.

MS. ROGAN: Right.

THE COURT: Or copies of the negatives and the prints.

MS. ROGAN: Yeah, they're here.

MR. MOORE: The photos are here, too, Your Honor.

THE COURT: Okay. The originals -- who has the originals of these photos?

MR. PORTER: We have the originals, Your Honor, in our evidence room.

THE COURT: And we have -- by agreement -- I believe we have an agreement that the original of the -- the copies of the autorads are substituted for the originals, is that correct, for the jury's consideration?

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

THE COURT: Okay. The originals are secured by the district attorney. All right. 152 is the probe chart and that was the record only.

MR. DAVIS: Yes, sir. It's downstairs.

THE COURT: Okay. 153 was the photo sizing sheet that was to be redacted.

MR. DAVIS: It was.

MR. MOORE: It has been, Your Honor.

THE COURT: Okay. 154 is the TV guide.

MR. DAVIS: Yes, sir.

THE COURT: 155 is Shapiro's article, which doesn't go out. Well, let's see. As a matter of fact, the only other exhibit which is in is 162, the photo of the dome light.

MR. DAVIS: And it's here.

THE COURT: All right. So we have all the state's exhibit secured and together.

MR. PORTER: Right here. Your Honor, the only question is that most of us -- we've been putting them in sleeves and then keeping them in this. Is there any objection to them going out in this condition?

THE COURT: Oh, if there's nothing else mixed with them, I don't -- Mr. Moore?

MR. MOORE: Your Honor, the only thing that -- it's up to the DA, I suppose, but you might want to send them a note or something to keep them in those folders because if they don't, we don't know which one goes in which one --

THE COURT: Are they not marked otherwise?

MR. PORTER: They're marked in the folders.

MR. MOORE: The folder is marked. But if they take them out and mix them up, then we're going to have a hard time reconstructing it. Because they make take them out. THE COURT: Yeah. We might ought to -- I'll let Howard tell them.

MR. MOORE: They might not keep up with which plastic folder they go in.

MR. PORTER: That's right.

THE COURT: Okay. I'll try to remember that. Okay. That's the state's exhibits.

Let's look at the defendant's exhibits, then. Defendant's 1, the newspaper, doesn't go out.

MS. ROGAN: No.

THE COURT: Okay. Number 2 is the photo array that goes out.

MS. ROGAN: Yes.

THE COURT: 3 is -- have we got 2?

MR. PORTER: The photo array is right here, Your Honor.

MS. ROGAN: Okay. Got it.

THE COURT: Okay. We have 3 is the scale drawing of Gwinnett -- of Gwinnco.

MS. ROGAN: Oh, there it is. Sorry. Yes.

THE COURT: Okay. On these drawings and diagrams, let's move them at least in a separate -- lean them against something separate so they're clearly not part of any of the others.

MS. ROGAN: Move them where, Your Honor?

THE COURT: Well, just everything that's going out with the jury, let's put them together one way or the other so they're separated out from everything else.

MS. ROGAN: Okay. Well, everything that's in the corner right now is going out. We've separated those things that --

MR. PORTER: Yeah. Everything that's in here, Judge, we've separated out.

MS. ROGAN: So all of this stuff.

THE COURT: All right. Okay. Good. 5, 6, 7, and 8 are the clear overlays.

MS. ROGAN: Right. They're here.

THE COURT: 9, the statement by Robertson, does not go out. 10 is an overlay going out. Do you have 10? Okay.

MS. ROGAN: Yes. 10 is here.

THE COURT: 14 is a photo of the northside precinct.

MR. MOORE: These photos got mixed up some.

MS. ROGAN: 14 through 45 --

THE COURT: Okay. That's the officers, okay.

MS. ROGAN: They're bound together.

THE COURT: Okay. That's 14 through --

MR. MOORE: 44.

MS. ROGAN: 44.

THE COURT: -- 44. Okay. We have those. 45 is another overlay.

MS. ROGAN: Yes.

THE COURT: And the next one going out is 48, the precinct map.

MS. ROGAN: It's right here.

THE COURT: Okay. And the next one going out is 55, a photo of the gas pump.

MS. ROGAN: It's over here. 48 is the one we're looking for?

THE COURT: 55. 48 is the precinct map.

MS. ROGAN: Okay.

THE COURT: 55 is a photo of the gas pump.

MS. ROGAN: Okay. 55.

THE COURT: 56 is a photo of the interview room.

MS. ROGAN: Uh-huh.

THE COURT: 57 and 58 likewise.

MS. ROGAN: Yes.

THE COURT: The next exhibit going out is 61, the blowup of the Buford map.

MS. ROGAN: Oh, yeah. The Buford map is right here. Let me make sure it says 61 on it.

MR. MOORE: It does.

MS. ROGAN: Okay.

THE COURT: All right. And 64 is the next one going out, and that's a blueprint of the police headquarters.

MS. ROGAN: Yes. It's right here.

THE COURT: 65 is the aerial photo.

MS. ROGAN: Yes.

THE COURT: 66 through 69 are photos of the hangar, shop garage, all that.

MR. MOORE: 66, 67, and 68. I don't see 69.

THE COURT: Okay. 69 should also be going out.

THE REPORTER: That's a picture of the police cruiser, I think.

MS. ROGAN: Here it is.

MR. MOORE: There's 69. 69's here, Your Honor.

THE COURT: Yeah. Okay.

MR. MOORE: 66, 67, 68, and 69.

THE COURT: Okay. And then we have the next one going out as 70 -- Defendant's 70, 71, 72, 73, those are all incident reports by the defendant.

MS. ROGAN: Right. Here's 71 and --

THE COURT: 72 and 73.

MS. ROGAN: Let me pull 72. It should be here. Yes.

THE COURT: Do we have 73? Just so long as everything that's going in is in one pile and nothing else mixed in with it.

MS. ROGAN: Right.

THE COURT: Okay. 74 is a photo of the Iron World Gym.

MS. ROGAN: Here.

MR. MOORE: That's here, Your Honor.

THE COURT: 75 is the bottle of diet supplement.

MS. ROGAN: That's right here. Yes, sir. This one is 75.

THE COURT: 76 is the key ring.

MS. ROGAN: Here.

THE COURT: All right. Then we skip to 82, which is Reddy's log sheet, and 83, which is Reddy's log sheet.

MS. ROGAN: Here they are.

THE COURT: 84 is the photo of the morgue table.

MR. MOORE: We don't have those, I don't think. We were putting stuff over there that we've already admitted.

MS. ROGAN: Here they are. Here they are. 84 and 86 --

THE COURT: 86 and 87 are photos of the morgue area and 88. 86, 87, and 88 are photos of the morgue area.

MS. ROGAN: Uh-huh.

THE COURT: Okay. Have you got those?

MS. ROGAN: Yes.

MR. MOORE: Yes, sir.

THE COURT: 90 is a photo of the Sugar Hill marshal.

MS. ROGAN: Yes, it's here.

THE COURT: 91 is the log sheet of Rapien.

MS. ROGAN: It's here.

MR. PORTER: Those are over there on the end.

THE COURT: 92 and 93 are photos, 7/28 photos at the county police department, 92 and 93.

MS. ROGAN: Here they are.

THE COURT: 94 does not go out. 95 is the photo of the clothing at the GBI.

MS. ROGAN: Yes.

THE COURT: The next exhibit going out would be 102, the pursuit pack.

MR. PORTER: It's on the seat.

MS. ROGAN: It's here.

THE COURT: 103 is the male figurine.

MS. ROGAN: I can't bend down for that.

MR. PORTER: Why don't you just leave them in the box, Johnny.

MR. MOORE: Is it all right if we just leave them in the box, Your Honor?

THE COURT: As long as there's nothing else in the box that shouldn't be going out.

MS. ROGAN: Let's just go through them in the box, if you want. I did go through them last night.

MR. MOORE: I'll take them out and put them back as you go through them if you'll tell me the number.

THE COURT: That'll be fine. Okay. The male figurine, the shoulder holster.

MR. MOORE: That's Number 104.

THE COURT: That's right. 105, the Bible, does not go out.

MS. ROGAN: That's correct.

THE COURT: Is it separated out?

MS. ROGAN: Uh-huh.

THE COURT: 106 is a glove.

MS. ROGAN: It's one of the fingerless gloves.

THE COURT: Or pair of gloves. I've got gloves.

MR. PORTER: It's a pair of gloves.

MR. MOORE: It's a pair of gloves, Your Honor.

THE COURT: Okay. 107 is the blue box.

MS. ROGAN: Yes.

THE COURT: Is that the big box?

MR. MOORE: That's the big box, yes, sir.

THE COURT: 108 is the metal clipboard.

MR. PORTER: You've got that at your left hand.

MR. MOORE: Yeah, I've got it.

THE COURT: 109 is the metal ticket holder.

MS. ROGAN: The one with the bumper sticker.

MR. MOORE: Yeah.

THE COURT: 110 is the bag with the $6.31 in it.

MS. ROGAN: It's in the box, Johnny.

MR. MOORE: What now?

MS. ROGAN: The money.

THE COURT: Okay?

MS. ROGAN: Uh-huh.

THE COURT: 111 is the raffle tickets.

MS. ROGAN: Yeah, they're in there.

THE COURT: 112 is the TV. 113 is the glasses case.

MS. ROGAN: Yes.

THE COURT: 114 is the two cigars.

MS. ROGAN: Yes.

THE COURT: 115 is the cup holder.

MR. MOORE: I saw that down here somewhere. Here it is.

THE COURT: 116 is a right-hand glove and 117 is a right-hand glove.

MS. ROGAN: Yes.

THE COURT: 118 is a coffee mug.

MS. ROGAN: Yes.

THE COURT: 119 is a pair of sunglasses, as is 120.

MR. MOORE: One pair is inside the Crown Royal bag and the other one is --

THE COURT: Okay. 121 is the clipboard.

MS. ROGAN: Yes.

MR. MOORE: Yes, sir.

THE COURT: 122 is the Crown Royal bag.

MR. MOORE: Yes, sir.

THE COURT: 123 is a bag with miscellaneous items.

MS. ROGAN: Yeah.

MR. DAVIS: We got it.

MR. MOORE: Yeah, we got it.

THE COURT: 125 is the hand mirror.

MR. MOORE: Yes, sir.

THE COURT: 124 is a white bag with a light bulb, the dome light bulb.

MR. MOORE: That was taken out sometime during argument or something.

MS. ROGAN: Here it is. Yeah, because I used it.

MR. MOORE: We've got it, Your Honor.

THE COURT: Okay. And 126 is a package of soup.

MR. MOORE: Yes, sir.

THE COURT: 127 and 128 are gum from the car.

MR. MOORE: Yes, sir.

THE COURT: 129 is eleven manila envelopes.

MR. MOORE: Yes, sir.

THE COURT: 130 is the evidence tag.

MR. MOORE: Yes, sir.

THE COURT: And then we come to photos.

MR. MOORE: Your Honor, the box is empty now. So with the DA looking, I'm going to put everything back in, if that's all right.

THE COURT: All right. That would be fine. Put it with that other stuff going out. 131 through 136 are photos.

MS. ROGAN: Okay. Through what?

THE COURT: 131 through 134 --

MS. ROGAN: Are Polaroids.

THE COURT: -- are photos of the car interior.

MS. ROGAN: Right.

MR. MOORE: 134, Your Honor, is that --

THE COURT: 131 through 134 are photos of the car interior. Okay. 135 is the trunk --

MS. ROGAN: Right.

THE COURT: 136, pursuit pack, which was Luminoled, I believe.

MR. MOORE: Yes, sir, they're here. The photographs are here.

THE COURT: 137 is the TV listings.

MS. ROGAN: Yes.

THE COURT: 138 does not go out. 139 and 140 are photos of the fire station day room.

MS. ROGAN: Right.

THE COURT: As was 141.

MS. ROGAN: Right.

THE COURT: The next exhibit going out is 146, the Testron bottle.

MR. MOORE: It's here, Your Honor.

THE COURT: 147 is the receipt for the Testron bottle.

MR. MOORE: It's here too, Your Honor.

THE COURT: The next exhibit I show going out is the photo -- it's two photos. 152 and 153 are photos of Ms. Cronic's car.

MS. ROGAN: Yes.

THE COURT: Then 154 is the Iron World Gym bank records.

MS. ROGAN: Right. They're here in the notebook.

THE COURT: All right. And 155 is the defendant and wife's bank records.

MS. ROGAN: Yes.

THE COURT: 156 is the business license for '90, '91, '92, and '93.

MS. ROGAN: They're here.

THE COURT: And 157 are checks and receipts for attorney fee payment to Mr. Britt.

MS. ROGAN: Yes.

THE COURT: The next one I show going out is 166 and 167, photos. 166 is a photo of the newer police car and 167 the older police car.

MS. ROGAN: That's correct.

THE COURT: The next exhibit I show going out is 170, a photo of the victim's trailer.

MR. MOORE: 170. Yeah, it's here, Your Honor.

THE COURT: Yeah, 170, and I show none beyond that.

MS. ROGAN: I have some that we left that I was under the impression we had decided were going out.

THE COURT: Okay. What's the number?

MS. ROGAN: 168, 169.

THE COURT: Okay. One-sixty -- oh, okay. You're right. I did not change my notes. 168 is the gym sign-in sheet goes out, and 169, the gym sign-in sheet -- both of those go out. You're right.

MS. ROGAN: And 171 and 172.

THE COURT: 171 and 172 both go out. You're right.

MS. ROGAN: And then D-78 which is --

THE COURT: D-78?

MS. ROGAN: Yes, certified copies of the report on the gun.

MR. PORTER: No, those don't go out.

MR. DAVIS: I show record only on that.

MS. ROGAN: We decided those don't go out? Okay.

THE COURT: 78 is not going out.

MS. ROGAN: Okay. All right. Okay.

THE COURT: I show no others.

MS. ROGAN: That's it. That's all we have.

THE COURT: All right. Now, where are all those? Is there anything --

MR. PORTER: The only thing that has not been admitted to go out with the jury that needs to go, Your Honor, are these big diagrams here.

THE COURT: All right. Let's remove those from the courtroom.

MR. PORTER: Everything else from this corner around goes with the jury.

THE COURT: Okay. All right. You might also -- we'll secure the courtroom. If the jury comes in to look at the car seat, for example, I guess we want to be sure there's nothing on the counsel table or any of that sort of thing that anybody might see or stand there and look at.

MS. ROGAN: All right.

THE COURT: All right. We have no other exhibits in the arena aside from those being admitted; is that correct?

MR. MOORE: We've got some on the front row, Your Honor, but we'll take those out.

THE COURT: Okay. All the others, let's take them out of the courtroom.

What we'll do is, we're going to secure the courtroom and we'll lock the courtroom down. And if the jurors want to see the tire and car seat, then we'll just simply have the bailiff bring them in with instructions that they are to not disturb anything else remaining in the arena, view that, and then go back in the jury room.

Mr. Porter or Mr. Moore, do you wish to be here when the bailiff takes these items to the jury?

MR. PORTER: No, Your Honor.

THE COURT: Mr. Moore?

MS. ROGAN: Yes, I think we do.

THE COURT: Okay. If you'll just be available.

MS. ROGAN: Okay.

MR. PORTER: Yes, sir, I'll be available.

THE COURT: Whenever. Probably forty-five minutes away, thirty or forty-five, when the jurors get back from lunch, then we'll sound for you.

MR. MOORE: We'll go down and get some lunch and we can hear the page down there.

THE COURT: All right. That will be fine. And then we'll put all that on the record. Then we also have the original indictment and the verdict form is on the bench, and that will go, too. Okay.

Anything else at this point, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: Mr. Moore?

MR. MOORE: No. Your Honor, I'm presuming we're all taking all of our stuff out of the courtroom and not leaving anything in here.

THE COURT: The courtroom ought to be clear of any exhibits that haven't been admitted, any notes, any books, anything else from the trial of the case.

MR. MOORE: I'm sure Mr. Porter intends to take his stuff on the first row there, too.

MR. PORTER: Oh, yeah. It's just there till I walk out.

THE COURT: Okay. And once we -- we'll secure the courtroom here, there will be -- well, let's just make it simple. Once we reconvene, we'll have the parties and the attorneys only, and they can run the cameras if they want to. But we'll just simply reconvene long enough for the exhibits to be out and put all that on the record. Then we'll re-secure the courtroom and leave the seat inside for the jury's view if they want to see it from time to time. Okay.

Anything else, Mr. Porter?

MR. PORTER: No, sir. Nothing from the state.

THE COURT: Well, let's see. One item we didn't address -- there are two items we need to address, come to think of it. One is, any objection to the charge as given on behalf of the state?

MR. PORTER: No, Your Honor. I did note that in regard to the larger items, the Court instructed the jury that they would be in the jury room as opposed to the courtroom, but I think that was clarified in the overall context.

THE COURT: Okay. I'll say it again when they come back in. Anything else with respect to the charge? Any objections, Mr. Moore?

MS. ROGAN: Subject to our previous objections to the giving of the alibi charge.

MR. MOORE: Your Honor, we'd reserve the right to object at a later time as to any errors, also.

THE COURT: All right. We also have one matter on the Unified Appeal we need to address. First off on the Unified Appeal is to -- the first issue -- is there any issue as to any arguments of counsel or the charge of the Court that you wish to present and have aside from what's already been covered, Mr. Porter?

MR. PORTER: Not aside from what's already been covered, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: Nothing, Your Honor.

MS. ROGAN: We don't have anything new to present.

THE COURT: All right. Is there anything -- is there any other motion or objection that the defense wishes to present at this point?

MR. MOORE: No, Your Honor.

THE COURT: All right. Mr. Chapel, let me inquire of you and give you the opportunity to state any objection that you may have to your defense counsel or the manner that your defense counsel has conducted the defense in your case or is conducting the defense.

THE DEFENDANT, MR. CHAPEL: I have no objection.

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

MR. PORTER: No, sir.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, we'd just renew our objection that that's not a fair question to Mr. Chapel because he's not a lawyer and he can't analyze what we've done.

THE COURT: I understand. I understand. All right. We'll be at ease till we hear from our jurors, and we'll reconvene and send the evidence out and put all that on the record, and then we'll wait on them.

MS. ROGAN: Should we report back at a certain time?

THE COURT: Well, I don't know how long they're going to be. I don't think they'll have any problem getting through the line because they're shutting down the cafeteria and putting them through. So I don't know how long they'll be, but probably another thirty minutes would be my guess. But we'll just sound for everybody and reconvene then. All right. Thank you.

[Lunch recess]

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AFTERNOON SESSION

THE COURT: We have our jurors back in the jury room. I think my inclination is just to leave them in the jury room. Let's make sure that Mr. Allen takes the items out that we need to take out. And I've told them about the tire in the charge, the tire and the car seat and just have him repeat that to them, that those items, if they want to see them, they can knock on the door.

MR. PORTER: And the instructions not to remove the stuff from the sleeves in the red notebook.

THE COURT: Yeah. Maybe it would be better just to bring them back and tell them that. Yeah. Let's do that. Let's just bring them back. Otherwise, we'll get something lost in the transmission.

MR. PORTER: Your Honor, there is one matter. There's a large evidence cart outside the room. It has 'district attorney' on it, but I'll be happy to make it available to Mr. Allen to help wheel some of this stuff in. I think all this stuff will fit on it --

THE COURT: I think it's short trip anyway, so he can take his pick.

MR. PORTER: However he wants to do it.

THE BAILIFF, MR. ALLEN: Ready?

THE COURT: Yes, sir.

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

THE COURT: This is just a brief matter just to make sure you understand. We're going to have the exhibits brought into the jury room in just a moment, except for the car seat and the tire, which with all of you and the exhibits in the jury room, it may get a little crowded. So we'll start with doing that.

We'll bring all the exhibits, except those, in the jury room with you along with the form of the verdict and along with the indictment.

We'll have the courtroom cleared and secured, and if you want to come out of the jury room and inspect the car seat or the tire, then if you'll just make it known to the bailiff, and the bailiff will bring you in the jury room whenever you want, and you can stay however long you want, and then go back to the jury room and recommence your deliberations.

In one set of exhibits, we have several photographs that are contained within plastic covers and the exhibit numbers are marked on the plastic covers so that if they're taken outside the plastic covers and mixed, then we may have a problem with identifying the exhibit numbers.

So my suggestion to you would be simply to leave the photographs in the plastic covers unless there's a necessity to take them out, and that way we can keep up with the numbers.

And with that, I'm going to ask Mr. Allen to take you back in the jury room to commence deliberations, and we will have the exhibits and the verdict form and the indictment brought in to you momentarily. Make it known to the bailiff if you want to come and take a look at the car seat and the tire.

If you'll go with Mr. Allen, please.

[The jury was excused from the courtroom.]

THE COURT: Mr. Allen, we have a number of exhibits here. There's a push cart back there if you want it, or if you just want to make several trips.

THE BAILIFF, MR. ALLEN: Does everything go?

THE COURT: Yes, sir, everything in the area here.

MR. PORTER: Your Honor, we've delivered the cart for Mr. Allen to use.

THE COURT: You can use the cart if you want or just simply take everything except the car seat and the wheel. Leave it here and bring them back and bring them in if they want that.

Mr. Moore, any objection to the cart staying in the jury room? We may want to just push it in and let them unload it or whatever they like. Is there room for that, Mr. Allen, do you think, or is that a problem?

THE BAILIFF, MR. ALLEN: Pardon?

THE COURT: The cart in the room in there.

THE BAILIFF, MR. ALLEN: We just ejected all those chairs out of there, extra ones. We got them out where we can put the stuff in there. We've just got twelve chairs in there now, so we've got room for some stuff.

THE COURT: Is there room for the cart?

THE BAILIFF, MR. ALLEN: Yes, sir. Yes, sir.

THE COURT: Okay. Just push it in. Is there any objection to pushing it in and leaving it, Mr. Moore?

MR. MOORE: Your Honor, we're a little concerned that it's got 'district attorney' on it. I don't know if that would have any effect on the jury.

THE BAILIFF, MR. ALLEN: Well, we'll unload it, then, if that's what you want to do.

THE COURT: Okay. Unload it.

MR. PORTER: Your Honor, I have no objection if you want to take a piece of masking tape and put it over that. That's just so that nobody in the building steals it.

[Pause in proceedings]

THE COURT: Mr. Allen, if you'll hold that cart for just a moment, we'll put tape over that and you can just push the cart in and leave it and then they can unload whatever they wish.

THE BAILIFF, MR. ALLEN: I've got to get some more instruction. Now, which way do you want to go, Judge?

THE COURT: Just push the cart in.

[Pause in proceedings]

THE COURT: If you'll just put the cart inside the jury room and they can take out what they want out of it. All right. Is there anything else?

THE BAILIFF, MR. ALLEN: Now, we've got to take these here too.

THE COURT: Okay. You might hand them the indictment and the verdict form so they know that's there. I don't believe there's any live ammo for the .38, is there?

MR. PORTER: There was not.

MR. MOORE: No, there was not.

THE COURT: What does that leave us? Just those charts?

MR. PORTER: There are just the four stipulated diagrams, Your Honor.

THE COURT: Okay. We'll have all other items removed so if the jury comes back?

MR. PORTER: Yes, sir.

THE COURT: Okay.

MR. PORTER: There's a roll of duct tape there. Mary can lock that up.

MR. DAVIS: Judge, in that regard, are you going to take away all items of law that might be up there on the bench as well?

THE COURT: Well, I was just sort of mulling that over. I've got about a half dozen books up here.

MR. DAVIS: Would you like the cart?

THE COURT: No. I suppose I can have Mr. Allen -- also tell him to keep them in the arena. I don't think anybody will be sitting up here anyway.

MR. PORTER: Mr. Byrd, that one with cars on it is pretty heavy.

THE BAILIFF, MR. BYRD: Okay.

MR. MOORE: Might be worried more about them going out the door than reading your books.

THE COURT: It'll be locked, I think.

[Pause]

THE COURT: Any others? Is that all of them?

MR. PORTER: That's it except the tire and the chair.

[Whereupon, the indictment, verdict form and items of evidence were delivered to the jury to begin deliberations at 2:50 p.m.]

THE COURT: Would you approach the bench, please.

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

THE COURT: I don't know what kind of potential problem we have with one juror, and that is Mr. Sullivan, who's one of the alternates. I understand he was upset and would not eat lunch because he wasn't going to be participating in the trial of the case at this point. I guess he thought he was -- guess he hadn't thought about who was an alternate and who wasn't or what.

MR. PORTER: Can't count, I guess.

THE COURT: But at any rate, he's disturbed. But anyway, so he's -- I've got them all in separate jury rooms, so I guess we'll see. That was one problem I did not anticipate but maybe should have, so -- but at any rate, I just wanted to make it -- we may have to decide -- that may become a problem. I don't recall where he is on the list.

MS. ROGAN: He's the second alternate.

THE COURT: He's number 2? Well, I guess, depending on how long the deliberations take, we may need to make a decision on whether we keep all of them or not. I've got arrangements made to keep them all separate and they'll be totally segregated from the twelve. They ate lunch separate today, and they'll be eating tonight separate at the lodgings, and they will not be at any of the group activities or all that.

What I am doing is having the twelve be transported in one van by themselves with a bailiff, and then the other van will have the other three but with several bailiffs in it such that they'll -- it'll be with the direction that they'll be riding together but there will be no discussion, and the same way when they eat tonight. Those three will be eating separate from the others, the three of them together, but with bailiffs present and with instructions that there not be any discussions of any kind, and then go to their room and be put to bed, I guess.

MR. PORTER: There has to be a way to run cable to those people or movies or something.

THE COURT: Yeah.

MR. MOORE: I was going to say, I feel sorry for those people.

THE COURT: Oh, I know.

MR. MOORE: It's like being in solitary confinement and they haven't done anything wrong.

THE COURT: Yeah, I know. Well, anyway, I just wanted you to know where we are with those. I don't know if we'll have a problem or not. Hopefully not, but we'll see, then. Okay.

MS. ROGAN: Okay.

[Bench conference concluded]

THE COURT: Anything else anybody wants to put on the record?

MR. PORTER: No, Your Honor.

MR. MOORE: No, Your Honor.

THE COURT: All right. The instruction will be that at this point we're going to clear the courtroom. The courtroom will be secured. There will be nobody allowed in or out except the bailiffs and jurors to the arena so that -- and that will include deputies as well.

We're just simply going to secure it. If the bailiff brings the jurors in, the jurors will be in the arena, and nobody else will be in the courtroom except the jurors and bailiffs, and that will include the lawyers, me, deputies, or anybody else while the jurors are deliberating. Anything else, Mr. Porter?

MR. PORTER: Not at this time, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Mr. Porter, you and your staff, the case was very well prosecuted. Mr. Moore, Ms. Rogan, very good job from the defendant. The case was well-tried all the way around. It was a good trial --

MR. PORTER: Thank you, Your Honor.

MR. MOORE: Thank you, Your Honor.

THE COURT: -- whatever the verdict. We'll be at ease until we hear from the jury.

SERGEANT PARR: Your Honor, are you going to give the media some instructions regarding the cameras and the sound?

THE COURT: Yes. Let's shut them down until we have a verdict, because if the jurors -- thank you, Officer Parr. If the bailiffs come in with the jury, then all sound will be off, and all the cameras will be off, so from this point until such time as we open the courtroom back up, then, the sound and the cameras should be shut down. And that'll commencing now. Okay. Thank you.

[All parties were at ease awaiting the verdict of the jury.]

THE COURT: We have a note from the jury. It says, 'Can we please have flip charts, magic markers, tape, and post notes.' And I presume there's no objection, but I want that on the record so everybody can see what's going out. Mr. Porter?

MR. PORTER: There's no objection, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No objection, Your Honor.

THE COURT: Okay. Do you have all those items secured, Mr. Allen

THE BAILIFF, MR. ALLEN: We do. If they want to check through the paper.

THE COURT: Does anybody want to review them before they go out?

MR. PORTER: Mr. Moore's already done that, Your Honor.

MR. MOORE: I've already done that, Your Honor.

THE COURT: All right. If you'll take those to the jury room, Mr. Allen. We'll mark this note as one of the -- for the record and be at ease. Is there anything else you want to put on the record, Mr. Porter?

MR. PORTER: No, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: We'll be at ease until we hear further from the jury.

[All parties were at ease awaiting the verdict of the jury.]

THE COURT: We have a note from the jurors that says, 'Can we have dinner at five-thirty p.m. and stop for the day.' So I think they've sort of had a day of it and are ready to go.

I think they had indicated earlier that maybe they wanted to consider proceeding on if they weren't too tired, but I guess they've sort of had a day of it today.

And it might -- it would probably be helpful to let them think about it themselves tonight and start the deliberations again in the morning with a clear head.

Would you approach the bench a moment.

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

THE COURT: Let me ask you about -- let me tell you what I'm going to do with these jurors with the sequestration and see if you have any suggestions or requests. I have got -- today I've had the three alternates we've got left in three separate rooms, and they went and got their food and went back to the three separate jury rooms.

What they're going to do tonight, they're going to be eating down there. So what I am contemplating doing for the next day or two is have these three alternates go ahead and get their food and put them in one jury room together with a bailiff in with them to ensure that there's not any discussion of the case, and then have the other twelve together as they've been doing.

And then when they're transported back tonight, we'll have the three of them in a separate van with a bailiff so they don't talk about it, but the three of them will be together, and the twelve will be together in the other van.

What I have arranged tonight is to have a common area there where they can watch a movie and have the twelve for the first hour and a half in the common area to watch a movie if they want to. Then we'll put them to bed in their rooms, and have the three who will be in their rooms with a bailiff making sure they don't come out for that hour and a half. And then we'll let the three of them have the common area with a bailiff with them to ensure that they're not discussing the case.

In the morning what we're going to do is transport them again separately, the three with a bailiff and the other twelve with a bailiff in separate vans. We'll have the three alternates come in in the morning and get their food first, go to the jury room by themselves with a bailiff, and then have the other twelve with the regular routine.

Does anybody have any objection to that arrangement or any suggestion or request or anything else?

MR. PORTER: Your Honor, I think even in the common areas, I don't know how it's set up, but --

THE COURT: Just a room.

MR. PORTER: -- if the three were kept separate, then I don't even see that there would be a problem watching the same movie.

THE COURT: Well, I just have -- I mean, we're in our fifth week with this, and I just have such a concern to get right down to the end of it and have it blow up in our face with some kind of problem with an alternate who's not part of the twelve at this point, that I just --

MR. PORTER: All right. The procedure that you set out seems to protect the alternates and still maintain them in solitary confinement.

THE COURT: Does anybody have any problem with that arrangement?

MR. MOORE: That seems fine to me, Your Honor. In fact, I'd thought about if they'd be any more comfortable, if a bailiff stayed with them, I don't think I'd care if they stayed at the hotel tomorrow, the alternates, instead of coming to the courthouse.

THE COURT: Well, one of my concerns is if they request a re-charge or a question. What I've done in the past with alternates is if there's any question that requires a re-charge or if they pose a question, is to basically tell them the same law and the same answer -- answer the same questions as the twelve so that if they go in the jury room, they're on exactly the same footing.

And I contemplate bringing them in this afternoon and giving them the same instruction as the others. What I've been contemplating doing is tomorrow, if we have any kind of question or problem, is bring them in first and take them out last, and every time the jurors come in the courtroom, bring the alternates in too so they hear whatever is said by way of any instruction or any questions posed.

MR. MOORE: That's probably a good idea. I hadn't thought of that.

THE COURT: So that way they do everything except deliberate, and the rest of them would be authorized to bring them up to speed with the deliberations, it seems to me.

MR. MOORE: My experience with alternates is so limited that --

THE COURT: Well, unfortunately, we've been getting some.

MS. ROGAN: I thought they were supposed to start over if an alternate was seated in place.

THE COURT: I'm sorry?

MS. ROGAN: I thought that when an alternate replaces a sitting juror in the midst of deliberations, they were supposed to start over.

THE COURT: Well, I don't know how you start over.

MS. ROGAN: Well, I don't know either.

THE COURT: I think the rest of them just sort of get them up to speed, this is where we are and what we're doing, and at that point you've got an equal vote just like anybody else.

MS. ROGAN: Uh-huh.

THE COURT: Okay. Well, I just wanted to see if anybody got any better idea than what we are setting up.

MR. PORTER: Your Honor, the other thing is is as far as the more or less housekeeping, like when they go to lunch tomorrow, the state doesn't insist on being present when it -- when they decide they want to go to lunch, I don't have any problem with the Court just sending them to lunch. Even excusal at the end of the day, I don't have any real -- I don't think that now is -- we're in the midst of deliberations and all of the instructions of the Court are essentially superfluous.

THE COURT: Well, that may be largely true. There's one thing I want to emphasize to them tonight is the alternates -- make sure the alternates understand they're not part of the twelve anymore and that there won't be any, I guess, common discussions and that sort of thing because of that.

One of the things I've done. Tonight -- I'm going to cut off the telephone calls tonight. If they want to pass a message on to family, we're going to have a bailiff who's an intermediary either sending the message or taking the message so that we don't have the risk of a spouse or somebody on the phone call saying, 'oh, by the way, guess what I saw in the paper or what I saw on TV.' I think until we get the -- unless we have an emergency, until we get through, I think I'm going to shut down the nightly telephone calls as well. We don't need another one like the one we've had. Okay.

Anybody else got any suggestions or requests or anything else?

MR. DAVIS: Don't tell the alternates that they can close the bar down since they're going to be the last three down there.

THE COURT: Maybe we ought to increase it to three drinks. Okay. Thank you.

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

[Bench conference concluded]

THE COURT: How do you want to secure the exhibits? We've got part of them in the jury room or I guess we've got them all in the jury room except for the ones we've got in the courtroom. What's the best security we've got for them at this point?

SERGEANT PARR: Lock the courtroom and monitor it with the cameras, Your Honor.

THE COURT: Is that satisfactory, Mr. Moore?

MR. MOORE: That would be fine.

THE COURT: Mr. Porter?

MR. PORTER: That's fine with the state, Your Honor. They can put them back on the cart and just wheel it in here where it's monitored and locked.

THE COURT: Okay. I think that would be fine. We'll do that, then. After the jurors leave is bring all the exhibits that are in the jury room back in here and just leave them on the cart so they will be easier to take back in the morning.

All right. We'll give the jurors some basic instructions, then, and then send them on to supper and then to -- we'll recommence at nine o'clock in the morning.

When they come back in the morning, let me ask, we can do it one of two ways. We can either just send the -- when the jurors are ready, send the twelve back in the jury room and then have a bailiff take the exhibits back with them and secure the courtroom and lock down the courtroom again in the morning so there will be nobody in and out while the jurors deliberate, or we can do it on the record in the morning with everybody here.

Mr. Porter, do you have a preference?

MR. PORTER: Your Honor, the state doesn't see any requirement that it be done on the record, and we would not insist on the necessity of our presence. The bailiffs are responsible for the jurors, and they can come in and get the evidence and return it to them and they can just go ahead and get started at nine o'clock in the morning.

THE COURT: Mr. Moore?

MR. MOORE: That's fine with us. I think the jurors know what all the evidence is now and the bailiffs do. It's clear. So I don't think there's reason --

THE COURT: I don't have a problem with that, but I'll give you the opportunity to be here and we'll do it on the record in your presence if you wish.

All right. What we'll do, then, is we'll have the jurors brought back in the morning and have them ready to recommence deliberations at nine o'clock. We'll have the alternates again separated out in the jury rooms tomorrow.

Once the jurors are in the jury room in the morning, then, Mr. Allen, you can just take the exhibits on the cart back into the jury room and leave the larger items in the courtroom with access as they wish. Again, in the morning the courtroom should be secured so there will be nobody coming in or going out, including any deputies, unless it's authorized by the Court and we have the parties here or -- well, unless that's changed by the Court, it will be sealed with the jurors and bailiffs only coming in to view the exhibits.

All right. Bring the jury back, please. Have you got the alternates?

THE BAILIFF, MR. ALLEN: You want the alternates first?

THE COURT: Bring the alternates in. Seat them on the extension, if you would, please, yes.

[The alternates followed by the jury of twelve returned to the courtroom.]

THE COURT: All right. We're going to recess for the afternoon, ladies and gentlemen. Let me point out to you that our procedures are going to be somewhat different for the balance of the trial of the case.

We've had a sequestered jury for the last couple of weeks. And starting today, since the deliberations have begun, we'll have two groups sequestered from here on in. We'll have our panel of twelve, who are in the jury box and deliberating now will be sequestered separately from our three alternates at this point. You'll be eating separately and be transported to and from lodging separately while the -- and won't be in isolation except while you're here in the daytime for our alternates. In the evenings you'll have the opportunity, our alternates, to be together along with a bailiff. You'll eat together and be transported together along with a bailiff.

Our twelve who are in the course of deliberations now will be sequestered separately from the alternates, and you'll be together, just the twelve of you, from here on in.

The instructions for all the jurors will remain the same, and that is that there should be -- until you commence deliberations in the morning, there should be no discussions amongst yourselves tonight. You ought to just, when you leave here for the evening, just reflect on what you've seen and heard and think about it and keep your thoughts to yourself until you return tomorrow morning at nine o'clock and recommence deliberations when you're in the jury room with your fellow jurors, to start your discussions again then when all of you are present and have -- will be able to hear the suggestions or thoughts of each of you.

And we will be commencing in the morning at nine o'clock. I don't believe there was anything else I had to add to that. At this point, if you'll take our -- yes?

[The bailiff, Mr. Allen, approached the bench and a brief discussion follows.]

THE BAILIFF, MR. ALLEN: Are you going to bring up about the hour and a half in the courtroom or --

THE COURT: Just do that when you get there.

THE BAILIFF, MR. ALLEN: Okay.

[Conference concluded]

THE COURT: At this point I'm going to ask, Mr. Allen, if you'll have one of our bailiffs -- if you and one of our bailiffs will take our three alternates out first, and then I'll ask you to go with -- I'll ask our three alternates to go with one of the bailiffs at this point and our other jurors to remain for just a moment.

THE BAILIFF, MR. ALLEN: We need our other bailiff, too, out there.

THE COURT: That'll be fine.

THE BAILIFF, MR. ALLEN: We need those out of there down here to help us with them.

THE COURT: All right. That'll be fine. I all our three alternates if you'll come forward at this time.

[The alternates were excused from the courtroom for the day.]

THE BAILIFF, MR. ALLEN: One more item, Judge.

[The bailiff, Mr. Allen, approach the bench.]

THE BAILIFF, MR. ALLEN: Do you want us to tell them about the telephones, too?

THE COURT: Yeah, you can tell them when they out there tonight.

THE BAILIFF, MR. ALLEN: Okay.

[Conference concluded]

THE COURT: I'll go ahead and do it. Mr. Allen doesn't want to bear the bad news.

The issue was raised about phone calls tonight. We have deliberations under way and the directions of the Court are going to be there won't be any more phone calls, direct phone calls. If you need to talk to anybody or pass any word to spouse or friends or work or anything else or they need to pass a message to you, then if you'll make that known to the bailiffs, they'll be happy to phone them for you, pass any message on to you, or to receive any message for you and get that to you.

But while we have deliberations under way at this point, the directions of the Court are going to be there won't be any more, at least until further -- any change in that from the Court, any phone calls directly to home or spouse or friend or whatever. Okay.

All right. If you'll go with Mr. Allen, we'll see you in the morning at nine o'clock.

[The jury was excused for the day at 6:00 p.m.]

THE COURT: Anything else this afternoon, Mr. Porter?

MR. PORTER: No, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: They'll be starting at nine. I don't know that there's any need for you to be here at nine o'clock.

MR. PORTER: Your Honor, Mr. Allen has a beeper number for me, and I think I have a beeper number for Mr. Moore.

THE COURT: Well, I guess the question is where you'll be. I don't want to -- if we have a question, I don't want to wait for an hour to get everybody together. Why don't you just plan to be available in the courthouse sometime after nine-thirty, and if we have a question before that time, we'll wait, and if you'll just be where you can come in within a few minutes after nine-thirty, then we'll do that. Okay.

All right. Anything else, Mr. Porter?

MR. PORTER: No, sir.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: See you in the morning.

[Proceedings were recessed for the evening, September 5, 1995, at 6:02 p.m.]

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