P R O C E E D I N G
[In the Superior Court of
Gwinnett County, Lawrenceville, Georgia; 9:00 a.m., Tuesday, August 29, 1995;
the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury
Trial, Judge Fred A. Bishop, Jr., presiding.]
THE COURT: Good morning.
MR. PORTER: Good morning.
MS. ROGAN: Good morning.
THE COURT: We have one matter we need to take up this
morning and that is with one of our jurors.
Let the record reflect I had a conversation last night with Mr. Porter and Mr. Moore after receiving a
phone call that one of our jurors had a close relative who had passed away and
had about eleven hours worth of travel time along with the necessity for child
care with the family, and that was our Juror Number 142, Mr. Hogan, who after a
conversation with Mr. Moore and Mr. Porter last night, that juror has been
released from any further service in the jury.
Anything else you wish to add for the record, Mr. Porter?
MR. PORTER: Your Honor, only to state that in
conversation with me the Court did not reveal the name of the juror, and I
consented to the excusal of the juror without any knowledge of who that person
was, and I think the Court intended it that way.
THE COURT: Yes, sir.
Mr. Moore?
MR. MOORE: Your Honor, that's correct. The Court did not advise me who the juror
was either. You advised me that you had
confirmed the person did in fact have a close relative die, and I agreed to not
object to the Court excusing that juror without knowing who it was. The Court didn't want either side trying to
take any advantage of who it might be that was being excused, and so neither
one of us knew.
THE COURT: All right.
Well, it's my concern there not be any kind of tactical issues involved,
just simply a matter of need for this particular juror.
All right. So Mr. Hogan is excused from the trial
altogether, and that will mean our twelfth juror then is Juror Number 155, I
believe, our first alternate.
THE BAILIFF, MR. ALLEN: May I approach?
THE COURT: Yes, sir.
[A bench conference followed.]
THE BAILIFF, MR. ALLEN: Do you want me to take up his books and
secure them?
THE COURT: I'm sorry?
THE BAILIFF, MR. ALLEN: Do you want to take up his books and secure
them?
THE COURT: Which books?
THE BAILIFF, MR. ALLEN: His written pads.
THE COURT: Just let them keep them. They may want to refer to them during the
course of trial or they may want to look back or something during the course of
testimony unless they want them.
THE BAILIFF, MR. ALLEN: That will be fine.
THE COURT: Unless they want them. If they're in the way and they want them to
be secured, while we'll just --
THE BAILIFF, MR. ALLEN: We'll just take them up with the rest of
them then.
THE COURT: Okay.
Yeah.
[Bench conference
concluded.]
THE COURT: Okay.
Is the state ready?
MR. PORTER: The state's ready, Your Honor.
THE COURT: Is the defendant ready?
MR. MOORE: Yes, Your Honor.
THE COURT: Bring the jurors in, please. Let's see.
Mr. Hogan's, the notes that he's taken, I guess we need to be sure that he
isn't in the -- the directions are going to be that all of them will be
destroyed at the conclusion of the case.
I just don't want to destroy somebody else's inadvertently. I guess we can make sure those are Mr.
Hogan's. I think my inclination is just
to seal those up and retain them until the conclusion of the trial and then put
his with the notes he's taken with all the rest of them.
[The jurors were escorted to
the courtroom.]
THE COURT: Mr. Allen, I misunderstood which notes you
were talking about. Are those Mr.
Hogan's notes?
THE BAILIFF, MR. ALLEN: Yes, sir.
THE COURT: Pull those notes. Let's secure those. Let
me have those, and we'll seal those up and mark them or hold them until the end
of trial.
THE BAILIFF, MR. ALLEN: Okay.
THE COURT: And then we'll destroy those along with the
rest of them.
THE BAILIFF, MR. ALLEN: Yes, sir.
THE COURT: Just let me have them up here, Mr. Allen, and then we'll seal them up
shortly. Keep them for the record until
the conclusion of the case. Good
morning, ladies and gentlemen.
[Jurors respond]
THE COURT: Does anybody need another note pad? I saw somebody holding one up. Okay.
Everybody have a good evening last night? Good. Call your next
witness, please, Mr. Porter.
MR. PORTER: The state would call Investigator Wayne
Taylor to the stand.
[The witness was called to
the courtroom.]
MR. PORTER: Investigator Taylor, could you take the
witness stand up here, please.
[The witness stepped to the
stand.]
THE COURT: Go ahead and be seated, and Mr. Porter will
administer the oath.
MR. PORTER: Would you raise your right hand,
please. Do you solemnly swear the
testimony you're about to give in this matter now pending shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Wayne Taylor.
Q. And how are you employed, Mr. Taylor?
A. Gwinnett County police department.
Q. And what are your duties with the Gwinnett County police
department?
A. I'm a criminal investigator.
Q. All right. How long have
you been employed with the Gwinnett County police department?
A. About eight and a half years.
Q. During that time were you assigned to the northside precinct?
A. Yes, I was.
Q. And could you describe for the jury what your duties were at the
northside precinct?
A. For the first part, it was mostly uniform patrol, and later parts
while I worked at the northside precinct, I was assigned to special units. One unit in particular was the Delta
unit. Myself and Officer Mike Chapel
were assigned to work together on Bona Road, Roberts Street, New Street, and
Roberts Street. This particular area
was high drug sales, and our duty at that time was to curb some of the sales of
purchases.
Q. All right. And during the
time that you were assigned to work with Officer Chapel, did y'all become
friends?
A. Yes, we did.
Q. Did you discuss personal matters?
A. Every now and then we did.
Q. Did you work out together?
A. He worked out. I don't
work out.
Q. All right. Did you ever
have occasion to visit him at his gym?
A. Yes, I did.
Q. About how often would that happen?
A. Generally, if he was there during the day, I probably went by
there maybe twice at the gym when he had it on Main Street and about once when
he had it on Moreno Street.
Q. All right. At any time
when you went to the gym, did you ever notice Officer Chapel in possession of a
handgun?
A. Other than his uniform issue weapon that he had. I stopped by there one day while on
duty. He had went by to check on some
things at the gym while we were on duty, and when I went by he was sitting in
front of the gym in his car, and I stopped and we sat there and started
talking. He told me that -- well, he
showed me a small .38 special that he had.
Q. Could you determine the make of the gun?
A. It was either a Rossi or a Charter Arms .38 special.
Q. Are you familiar with those two types of guns?
A. Yes, I am.
Q. And, in your opinion, based upon your familiarity, was the gun
that Officer Chapel was in possession of either a Rossi or a Charter Arms?
A. It was one of the two.
Q. And what did he say about the gun?
A. He showed it to me. I
asked him where he had gotten from, and he told me that he had taken it off
Austin Stiles.
Q. Did you know who Austin Stiles was?
A. Yes.
Q. Did you handle the weapon?
A. Yes, I did.
Q. And what did you do with it?
A. I looked at it and dry-fired it a couple of times and I handed it
back to him.
Q. Was there anything significant about the weapon other than what
you've described?
A. It didn't look like it was in too good a condition, but other
than that --
Q. And did you return the gun to Officer Chapel?
A. Yes, I did.
Q. Did you ever see the gun after that?
A. No.
Q. Where is Austin Stiles?
A. He's dead.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Taylor, now, this gun that you saw, did you examine the
gun and look at the caliber on the side of it?
A. No, I didn't look at the caliber on the side of it. It was -- apparently, it was a .38 special.
Q. Okay. Did you open up the
cylinder and look at it?
A. Yes, I did.
Q. And how long ago was that now that this occurred?
A. It was probably about -- I'd say about four and a half, maybe
five years ago. Let's see. I've been in CID for three years, so I've
been out of the northside precinct for three years.
Q. And isn't it very common for policeman to have guns and be
looking at guns and comparing them back and forth and everything?
A. Personal guns maybe.
Q. I mean, a lot of policemen like guns is what I'm saying; isn't
that true?
A. Not all policemen like guns.
Q. But a lot of them do?
A. A few of them maybe.
Q. Do you own a personal gun?
A. Yes, I do.
Q. And what kind of personal guns do you own?
A. Shotguns, .45s, .40s.
Q. Do you have a .38?
A. No.
Q. Okay. If you had to give your
opinion, give an estimate based on your eight and a half years of experience,
how many of the Gwinnett County police officers probably own .38s personally?
A. I have no idea.
Q. Would it be a lot of them?
A. I wouldn't even venture to guess.
Q. Would it just be one or two?
A. I wouldn't want to say.
Q. Okay. Now, this Delta
unit you described that you worked with Officer Chapel on, what kind of unit is
that?
A. It began, I believe, with Officer Chapel and Sergeant Rick
Poteet. He was a uniform officer at
that time. It was after a street level
drug investigation had taken place in Buford.
After that was over, he and Officer Chapel were assigned, basically, to
patrol Ingram's mobile home park, Arnold's mobile home part, which is on Forest
Street, New Street, Bona Road, and the Washington Street area, along with
Roberts Street and Brown's Alley.
During that time, I
was working at the westside precinct.
I'd been there for probably a little less than a year when the
department went back to a captain per precinct, and Captain R. L. Davis asked
me to come back to the northside precinct and work with Officer Chapel over in
that area because I was familiar with a lot of the residents there and a lot of
people that generally stood out in the street and sold drugs. I would even know them by name and by face,
so I was transferred back to northside precinct, and at that time myself and
Officer Chapel started working together.
Q. And did you work closely together?
A. Yes, we did.
Q. Okay. And you said you
became friends and everything?
A. Yes.
Q. Were you working with him on April 15, 1993?
A. No, I wasn't.
Q. How long had you not been working with him at that time?
A. Probably -- it was probably a couple of months.
Q. Now, were you familiar with his patrol unit, unit 197?
A. Which one would that be?
Would that be the new LTD or the old one?
Q. That would be the Crown Victoria, the new one he was driving.
A. I wasn't too familiar with it.
I believe he was assigned that vehicle after I left the northside precinct.
Q. And when did you say you left, a couple of months before April
15?
A. It was somewhere about a couple of months, maybe two or three
months prior to that.
Q. Okay. So if he was
assigned that vehicle in 1992, then you would have been working with him when
he had that vehicle, wouldn't you?
A. The last time I worked with Officer Chapel, he had a older model
Ford LTD.
Q. So if there's been testimony here that that vehicle was assigned
to him in 1992, then you're mistaken about the two months, then; correct?
A. I possibly could be, but I know the last time I worked with him
--
Q. He had the old car?
A. -- he had the old car.
Q. He didn't have the newer one?
A. No.
Q. Now, this weapon that you saw about five years ago, how long was
the barrel on that weapon?
A. It was a snub-nose barrel.
Q. Was it nickel plated, was it blue, or how was it -- what kind of
gun?
A. It was blue.
Q. Do you know whatever happened to that gun?
A. No.
Q. Did you ever see Officer Chapel carrying it?
A. No.
Q. Do you know whether or not Officer Chapel liked guns?
A. Yes.
Q. Okay. Was he always
buying and selling guns?
A. I don't know if he was always buying and selling guns. He and I traded guns once.
Q. But you're aware that he did have different guns at different
times?
A. Yes.
Q. Did you ever see a Smith & Wesson .38 that he had, an
undercover gun that he carried?
A. No. I never saw a Smith
& Wesson.
Q. You never saw -- you know what a shroud is, Smith & Wesson,
where the hammer's shrouded?
A. Yes.
Q. Did you ever see one like that?
A. No, I don't recall seeing one of those.
Q. Would that have been unusual for a police officer to carry a
backup gun?
A. No.
Q. In fact, that's a very common practice, isn't it?
A. Yeah -- well, yes, I guess it is.
Q. Okay. In case somebody
gets hold of your service revolver -- or you don't carry revolvers these days,
I guess, they're automatic -- then you'd have your backup gun; is that right?
A. Yes.
Q. What kind of condition was this gun you saw in?
A. I considered it to be not in top condition. You know, not new, but, then again, not torn
up and beat up either.
Q. Okay. Would you have felt
comfortable firing plus P ammunition or high-powered ammunition in it?
A. No.
Q. You'd been afraid of the thing, wouldn't you?
A. I just wouldn't have had it.
Q. But you wouldn't have wanted to fire that thing with high-powered
ammunition in it, would you?
A. No, no, no.
Q. Because you'd have been afraid it might have come apart and
injured you or something?
A. Well, you know, it could have.
MR. MOORE: No further questions of Officer Taylor.
THE COURT: Redirect?
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Officer Taylor, when you dry-fired the gun, was it in operable
condition?
A. Yes, it was.
Q. And when you said you wouldn't have it, could you explain that?
A. Well, you know, if I was going to have one, one of those
particular brands, you know, I'd get a Smith & Wesson or, you know, a
better brand than that one. I wouldn't
generally have that one because, like I said, it was -- it had a few rust spots
on it. The grips were plastic. I believe they were brown plastic, and it --
Q. So is your decision based more on your -- is your statement based
more on your personal preference?
A. Yes.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Recross?
RECROSS EXAMINATION
BY MR. MOORE:
Q. Officer Taylor, you said you opened the cylinder up. Was that a six-round or five-round .38?
A. I believe it was a five-round.
Q. And you say you believe.
Do you remember or are you just guessing?
A. Generally, Rossi and Charter Arms .38 specials are five
rounds. My sister owns one, and I've
cleaned hers several times for her, and hers is a five-round.
Q. Okay. Do you have any
independent memory of whether it was five or six rounds or are you just going
generally?
A. Just going generally what it was.
Q. They do make them that are six rounds, too, don't they?
A. I don't know. I've just
seen hers.
Q. Okay. Like RG's, they
make one with six rounds, don't they?
A. I don't know anything about RG's.
Q. Let me show you what's been marked as State's Exhibit Number
131. Can you identify that?
A. It's stamped, caliber .38 special. It's a black or blue steel, six-shot, RG.
Q. Okay. Could that be the
gun you saw Mike Chapel with?
A. No.
Q. What was different about it?
A. It had -- the one he had had rust spots across here [indicating]
that crossed the back strap. Whenever
you pulled the trigger back, the firing pin looked kind of worn just a
bit. The grips were cracked around the
edges, basically around the edges.
Q. But they do make those two-inch revolvers in six rounds as that
one demonstrates, don't they?
A. I guess so.
Q. And do you -- my question is, do you have any independent memory
of whether the one you looked at was six rounds or five rounds?
A. I can't remember. I'm
just going on general -- I believe it was five.
Q. Thank you.
MR. MOORE: That's all I have.
THE COURT: Anything else of this witness?
MR. PORTER: I have no other questions for this witness.
THE COURT: Is he on call?
MR. PORTER: Yes, Your Honor. He is on duty, I believe.
THE COURT: All right.
You'll be subject to being recalled later. You can come down.
THE WITNESS: Yes, sir.
[The witness stepped
down from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: Call Officer Ray Dunlap to the stand.
[The witness was called to
the courtroom.]
MR. PORTER: Officer Dunlap, if you could take the
witness stand here, please.
[The witness stepped to the
stand.]
MR. PORTER: Could you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending, shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: Yes, I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. You can put your hand down.
Could you state your name, please?
A. Patrolman Raymond Lee Dunlap.
Q. And can you spell your last name for the record?
A. D-u-n-l-a-p.
Q. Patrolman Dunlap, where are you employed?
A. Gwinnett County police department.
Q. And what are your duties with the police department?
A. I'm a motorcycle officer.
Q. How long have you been doing that?
A. I've been on motorcycles for about six and a half years. I've been with the county for eleven and a
half.
Q. Do you know Mike Chapel?
A. Yes, I do.
Q. How do you know him?
A. I have worked with him before in the Buford area, and also I
worked out at one point at his gym in Buford.
Q. All right. Do you recall
when that was that you worked out in his gym?
A. Yes. It was in the early
part of 1993.
Q. Can you be specific as to month?
A. Probably in the February, March, April area, right around there.
Q. Let me call your attention to some time in March of 1993. Did you go to the gym to work out during
that period of time?
A. Yes, I did.
Q. All right. Can you
describe for the jury how you were dressed on the particular day in
question? Do you remember the specific
day?
A. Yes, I do. I was off duty
that day. I was dressed in blue jeans
and a T-shirt and I almost a hundred percent of the time am carrying a weapon,
and I was that day due to the --
Q. What kind of gun were you carrying?
A. I was carrying a Charter Arms .38 five-shot snub-nose.
Q. All right. And how were
you carrying it?
A. I was carrying it open on my waist.
Q. All right. And did you go
to the gym that day?
A. Yes, I did. I went up
there to get a re-supply of a supplement that I was buying off of Mike.
Q. Was Chapel there then?
A. Yes, he was. He was
sitting in his office as I entered the gym.
Q. Did you have any discussion in addition to the discussion about
the supplement?
A. Yes, I did. As I walked
in, Mike observed me and he said, 'Ray Bob, what's the pea shooter you have on
your hip?'
Q. And what did you respond?
A. I said, 'Well, it's a Charter Arms .38.' I said, 'But don't knock
it. It's an accurate shooting little
gun.'
Q. Did he have any response to that?
A. Yes, he did. He said,
'Yes, I know. I have one.'
Q. And was that the extent of your conversation?
A. About the weapon, yes, it was.
And then we went on with discussion about the supplement, which he was
out of.
Q. And did you continue to work out at the gym?
A. No. I was only working
out there for about three weeks while I didn't have a partner to work out at my
usual place, which was Sports Life. I
was starting to get into some heavy weights and you have to have a spotter, and
Mike allowed me to come up there and he spotted for me.
Q. And then did you eventually go back to the other gym?
A. Yes, I did.
Q. When did you come forward with this information regarding your
conversation with Chapel?
A. Probably approximately four to five weeks after the murder of
Emogene Thompson. I heard a rumor that
the police department knew that it was one of two types of weapons, and one of
the weapons mentioned was a Charter Arms.
That immediately brought the conversation back to my memory.
Q. All right. And did you
write a supplemental report for your superiors?
A. Yes, I did.
Q. And did you turn that in?
A. Yes, I did.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Dunlap, is there anything uncommon about police officers
carrying a small .38 as a backup gun?
A. No. I wouldn't say there
was anything uncommon about it, no.
Q. Okay. What percentage of
the Gwinnett County police department would you say probably carries a gun like
that?
A. I have absolutely no idea.
Q. Of the people that you know well, how many of them do?
A. Nobody that I know of right off hand. I don't carry it as a backup.
I carry it off duty.
Q. Okay. How many of them
carry them off duty like that?
A. I don't know. I don't
check with people to see what kind of weapon they carry.
Q. You don't see them carrying them?
A. No. Most of the time we
carry our weapons off duty concealed.
On this particular day, it was a rather warm day, and I didn't bother to
put a jacket on over it.
Q. Do you know anybody else that has a .38 caliber Charter?
A. Not right offhand.
Q. Besides yourself?
A. Not right offhand.
Q. Okay. Now, when you were
having this conversation with Mike Chapel, did he say he had a Charter Arms or
did he just say he had a small gun like that?
A. I said, 'It's a Charter Arms .38, and it's a very accurate
shooting little gun.' And he said,
'Yes, I know. I have one.'
Q. And that gun is not recommended to fire plus P or high-powered
ammunition, then, is it?
A. No, it is not.
Q. In fact, the manufacturer says it's dangerous to fire it, doesn't
it?
A. I don't know if they say it's dangerous, but they don't recommend
you shoot plus P or plus P plus.
Q. Do you know what kind of bullets were used in this case for the
murder?
A. No, I do not.
Q. Now, you were on the way out to Mike Chapel's -- you went in that
day to buy a food supplement called Testron, didn't you?
A. Correct.
Q. And what kind of food supplement is that?
A. It's something that Mike recommended to me because I was working
out with weights. It's a -- I think
it's a synthetic testosterone.
Q. Did you buy any of it from him?
A. He was out of it that day.
Q. And how much did it cost?
A. I don't remember right offhand.
Five, six, ten dollars. I'm not
sure.
Q. Okay. Had you bought it
from him before?
A. Yes, I had.
Q. Did you feel like it was doing any good? Was it working?
A. No. I quit taking it
because I didn't really feel like I was accomplishing anything with it.
Q. Now, did you ever see the .38 Charter Arms you said that Mike
Chapel had?
A. No, I did not.
Q. How well did you know him?
A. I had known Mike probably during his whole employment with the
county.
Q. Have you ever seen him with a small backup gun?
A. I don't check with officers to see if they're carrying a backup
gun. If they do, they're usually
concealed. I wouldn't ask to see it.
Q. Okay. So you don't know
whether he had a small Smith & Wesson he carried or not?
A. No, I do not.
Q. Are Smith & Wesson's more the preferred gun that police
officers carry?
A. I don't know. Sir, as I
said, I don't check with officers to see what they carry.
Q. Okay. Do you have any
.38s besides your Charter Arms?
A. No, I do not.
Q. Has your .38 ever been checked?
A. Yes, it has.
Q. Test-fired -- who did that?
A. It was sent to the crime lab.
Q. And when was that done?
A. Right after I made this report to the department.
Q. Do you know whether or not Brian Reddy had a small undercover
gun?
A. No, sir, I do not.
Q. Do you know whether or not the police department went around to
the officers and asked how many people owned that type of gun after the murder
of Emogene Thompson?
A. I have no idea.
Q. Did anybody come to you or did you come forward?
A. I came forward because I recalled the conversation.
Q. Okay. So as far as you
know, if somebody didn't come forward, nobody was going around and asking who
owned that kind of gun?
A. As far as I know. I don't
have any knowledge of that.
Q. And when was the date that this took place?
A. I don't remember an actual date.
It would have been in March, probably three to four weeks prior to the
murder.
Q. Could it have been February?
A. I don't think so because I started working out there in
February. I only worked out there for
probably two to four weeks and this was towards the end of the time I had been
working out there.
Q. And you never saw any gun?
A. No, I did not see the gun.
Q. So you don't know any other police officer that carries a small
undercover .38?
A. No, sir, I don't. I'm
sure there may be some, but I don't know.
Q. Okay. Who's your close
friends who are police officers?
A. Just the ones I work with.
Q. Do any of them carry one?
A. Not that I know of. I'm
on motorcycles. We -- I'm injured right
now so I'm not in my normal uniform, which is boots. We wear boots that nearly reach our knees, so it would be hard to
carry an off-duty weapon or a backup weapon.
Q. But when you were working like in 1993, when you weren't working
that, who were you working with then?
A. I was on motors then, also.
Q. Okay. And none of the
people you work with carry a .38 when they're off duty?
A. I don't know. I don't --
believe it or not, I don't associate with police officers a lot off duty.
Q. Okay.
A. I'm married and pretty much stay at home.
Q. And you don't talk about things like guns and stuff like that?
A. I'm not a gun fanatic. I
don't talk about them much.
Q. So Mike's the only person you talk to them about?
A. No. He just -- he brought
up the conversation and asked me what the gun was, and I responded with what it
was.
MR. MOORE: That's all I have. Thank you.
THE COURT: Redirect?
MR. PORTER: I have no redirect for this officer, Your
Honor.
THE COURT: Is he on call?
MR. PORTER: He's on duty, Your Honor, but he's
available. We would ask that he be
allowed to return to work.
THE COURT: Okay.
You'll be subject to being recalled later, but you can come down. Thank you.
[The witness stepped down.]
THE COURT: Call your next witness, please.
MR. PORTER: Call Investigator B. J. Tkacik to the stand.
[The witness was called to
the courtroom.] stand.]
MR. PORTER: Mr. Tkacik, would you take the witness stand
here, please.
[The witness stepped to the
stand.]
MR. PORTER: Would you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending, shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a witness
and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. You can put your hand down.
Could you state your name, please?
A. Detective B. J. Tkacik.
That's T-k-a-c-i-k.
Q. And Detective Tkacik, where are you employed?
A. I work as a criminal investigator with the Gwinnett County police
department's violent crimes youth affairs section.
Q. How long have you been so employed?
A. Well, I started with Gwinnett County in 1984 as a uniform
officer, and in '87 I was promoted to detectives. From 1987 to currently, I've always worked in the crimes against
persons unit.
Q. Were you so employed in April of 1993?
A. Yes, I was, sir.
Q. Did you have an involvement into the investigation into the death
of Emogene Thompson?
A. Yes, I did, sir.
Q. Could you describe for the jury what your involvement was,
particularly in regard to the execution of the search warrant?
A. On Saturday, it was the 24th of April, I was asked by
Investigator Burnette to lead a group of uniform officers to a business that is
owned by the defendant. It's called
Iron World The Gym, and it's located just off the square in downtown Buford on
East Moreno Street.
Q. At that time did you have in your possession a search warrant
issued by a magistrate from Gwinnett County?
A. That's correct, sir.
Q. And did that search warrant describe the certain items that were
to be searched for?
A. Yes, sir.
Q. Included in that search warrant, among the items to be looked
for, was there a rain hat, a clear plastic rain hat?
A. Yes, sir.
Q. All right. And did you
execute that search warrant?
A. Yes, I did, sir
Q. And can you describe -- how did you make entry and how did you
conduct the search?
A. We had access to the building through the use of the key. We entered into the building. We had designated specific areas for
officers to go ahead and look for the items listed within the search
warrant. We broke the business down
into quadrants. The specific area that
I was concerned with was an outer greeting area as you come into the building,
which is located to the right, as well as an inner-office area. Myself and another officer had looked in the
inner-office area.
Q. And during the search of that inner-office area, did you in fact
recover a clear plastic rain cover for a police hat?
A. Yes, sir.
Q. And where was that located?
A. There was a gym bag that was located on the floor within the
inner-office area. That cap was inside
the gym bag.
Q. All right. Let me show
you --
MR. PORTER: Let me have this marked as the next state's
exhibit.
[State's Exhibit Number 132
was marked for identification by the court reporter.]
BY MR. PORTER:
Q. Let me show you what has been marked as State's Exhibit Number
132. Can you look at that and identify it,
please?
A. It's an evidence bag that I have labeled containing different
items that were secured during the course of that search.
Q. And did you seal those items in that bag yourself?
A. Yes, I did, sir.
Q. Did you -- included in those items, is there the plastic rain
cap?
A. Yes, sir.
Q. Can you reach into State's Exhibit Number 132 and remove the
contents, please.
MR. PORTER: And let me have that marked.
[State's Exhibit Number 133
was marked for identification by the court reporter.]
BY MR. PORTER:
Q. Let me show you what I've had marked as State's Exhibit Number
133. Can you identify that, please,
sir?
A. Yes, sir. This is the
clear plastic rain cap that I had secured from the gym bag in the inner-office
area of the gymnasium.
Q. At what location did you place the rain cap into the bag that
you've identified as State's Exhibit Number 133?
A. Our property room at the headquarters of our police department.
Q. During the time before it was placed in the evidence bag, did you
maintain custody of it?
A. Yes, I did, sir.
Q. Did you change it in any way or alter it in any way while you had
custody of it?
A. No, sir.
Q. Now, Investigator Tkacik, attached to a search warrant is a
document called a return?
A. That's correct.
Q. Can you describe for the jury what happened with the return in
this case?
A. The return that I had provided to magistrate's court, I had
included all but one item. I had
omitted this rain cap whenever I made my return to magistrate's --
Q. All right. And did you subsequently
file an amended return to the search warrant?
A. Yes, sir. Immediately,
whenever I had been notified of that omission, I'd filed an addendum to
magistrate indicating to them that this item had been recovered on the 24th.
Q. Do you have any explanation for that?
A. My human error. Just an
omission, an oversight on my part, sir.
Q. And let me ask you, did you photograph the items that were
recovered at the gym? Well, first of
all, were there other items recovered?
A. Yes, sir. There were other
items that were photographed. The other
items that were obtained during the course of that search, there was a rifle,
an altered shotgun that was located underneath the desk inside the inner-office
area. There was a Gwinnett County night
scope that was located within a case in the outer office area in a cabinet and
that was the property of the Gwinnett County police department. There was a green bag containing two plastic
bags that had piping and copper wiring on the inside, both bag -- one bag was
marked M-11, one was marked M-10. I
displayed those items to the sergeant that was present and he'd indicated to me
that those were --
MR. MOORE: Your Honor, I'm going to object to him going
into what the sergeant said. That's
hearsay.
MR. PORTER: Investigator Tkacik, you can't go into what
someone else told you.
THE WITNESS: Understood.
THE COURT: Restate your question, please.
BY MR. PORTER:
Q. You've described what was discovered.
A. Understood.
Q. Were there any other items that were actually recovered at the
scene that were taken by you pursuant to the search warrant?
A. All of those items were secured by myself that I've described,
along with a small pocketknife.
Q. And did you photograph those items?
A. Yeah. I had attempted to
go ahead and photograph those items as we were recovering them, and the camera
that I was using, again the counter on it indicated that I'd had film left in
the camera, but it wasn't functioning properly. When it came time for the recovery of both the pocketknife as
well as the rain cap, I didn't have film left to go ahead and document where
those items had been recovered, just the other items that had been recovered
prior to that.
Q. Would it have been a better practice to get some film and
photograph it?
A. Yes. Yes.
Q. All right. What was the
basis of your decision not to do that?
A. Well, I believe the availability of film at that time -- there
were no uniform officers that I know that don't -- that carry film in their
cars if I wanted to call out for film, but, also, the other officers that were
present at the time of recovery, I utilized that as the documentation for the
recovery process.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: What was the year of the search? That was April?
THE WITNESS: '93.
THE COURT: Okay.
Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Tkacik, my name is Johnny Moore, and I believe you know
me.
A. Yes, sir.
Q. Okay. I have a few
questions for you. You were the officer that had occasion to interview Delores
Burel; is that correct?
A. That is correct, sir.
Q. And you interviewed her on two different occasions; is that
correct?
A. That is correct.
Q. And on the second time, Officer Cline was with you; is that
correct?
A. Lieutenant Cline, yes, sir.
Q. Now, you found some pants in the gym there, I believe; is that
correct?
A. Yes, sir.
Q. Do you know what size they were?
A. No, I do not, sir.
Q. Okay. Did you seize
anything out of them?
A. A pocketknife.
Q. Were those pants big enough to fit somebody as big as Mike
Chapel?
A. I had not taken any measurements from the pants at all, sir. I couldn't tell you. I really couldn't tell you whether they'd
fit him or not.
Q. Were they great big pants?
A. I'd say average size blue jean type pants.
Q. Average size? I mean --
A. I'd say large enough to fit an adult. They weren't a child's pair of blue jeans, but I didn't take any
sizes out of them.
Q. How big was Mike Chapel at that time?
A. I believe as tall as he is right now, sir.
Q. And approximately what's that?
A. I'm sorry?
Q. Approximately how tall is that?
A. I'd say about six-one, six-two.
Q. About my height?
A. I'd say comparable.
Q. And how much did he weigh?
A. How much did he weigh? I
couldn't tell you, sir.
Q. Would it have been -- you're a trained police officer. Would it have been 150 pounds, would it have
been 200?
A. I'd say -- I'd say probably as heavy as I am. I'm 220 pounds.
Q. You think at that time you were as big and weighed as much as
Mike Chapel?
A. I believe so, sir.
Q. You were the officer in charge of the investigation into J. P.
Morgan's death, weren't you?
A. Yes, sir.
Q. And did you have occasion to take possession of a yellow rain
jacket there?
A. Yes, sir.
Q. Okay. And did you have
occasion to check what kind of weapons Officer Morgan owned?
A. Yes, sir.
Q. And what kind of weapons did you find?
MR. PORTER: Your Honor, I'm going to object to
this. This is not relevant to whether
or not Michael Chapel is guilty of the murder of Emogene Thompson.
THE COURT: I'm going to let the jury step out for just
a minute while we take this matter up.
If you'll leave your pens, pads, and notes in your seats.
[The jury was excused from
the courtroom and proceedings continued, as follows, with the jury not
present.]
THE COURT: What is your objection, Mr. Porter?
MR. PORTER: Your Honor, the investigation or the facts
of the investigation into the death of J. P. Morgan are not relevant to the
issue of whether or not Michael Chapel murdered Emogene Thompson. The Court has made previous rulings that Mr.
Moore can inquire as to whether or not any information was gathered that led to
J. P. Morgan being dealt with as a suspect, but that's the limitation which the
Court has previously placed. In order
for him to go into what weapons he owned, getting a raincoat, or anything else,
I think it's improper and is irrelevant in this case.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, might I ask the witness a couple
of questions that might clear this up?
THE COURT: Go ahead.
Well, let me ask, first, what line of questioning are we about to embark
on? I guess that's my first question.
MR. MOORE: Your Honor, they were trying to exclude J.
P. Morgan as a suspect in the Emogene Thompson case and that's why they took his
raincoat, that's why they Luminoled his car, that's why they checked his
weapons and everything. And just like
Mr. Porter can show that they excluded people, you've ruled, I think I can show
their investigations into other people that were suspects in the case and how
thorough those investigations were.
THE COURT: What do you want to ask this witness?
MR. MOORE: I was going to ask him --
BY MR. MOORE:
Q. Isn't it true, Officer Tkacik, that you were trying to rule out J.
P. Morgan as a possible person that killed Emogene Thompson?
A. We were trying to exclude him.
MR. MOORE: Your Honor, I think that makes it relevant.
THE COURT: Ask him the questions you want to ask and
let's see where we're going.
MR. MOORE: Okay.
CROSS EXAMINATION - JURY OUT
BY MR. MOORE:
Q. What kind of -- did you check for weapons, what kind of weapons
Officer Morgan had?
A. Smith & Wesson type weapons.
They were .38 caliber handguns that he'd kept at home.
Q. Okay. What did you do to
determine what weapons he had?
A. I spoke to his wife and learned through her the personal weapons
that he'd maintained.
Q. Okay. And during the time
that that scene investigation was being conducted, did another officer, Bodie
Hurst, come into the crime scene?
A. Yes, sir.
Q. And was he authorized to be there?
A. He was invited.
Q. Does his name appear anywhere in your official police report?
A. No, sir.
Q. Okay. And did he -- isn't
it true that he destroyed the hard drives on both computers that Officer Morgan
owned?
A. He's been charged with altering and removing information, yes,
sir.
Q. And whatever information was on there has been destroyed at this
point on his computers; is that correct?
A. Yes, sir.
Q. The police department has no idea what was on those computers?
A. That is correct, sir.
Q. Could you tell us why, since he was charged with a crime out of
that, that his name was not included in the official police report?
A. Because the information that may have been contained within that
-- those computers was not determined to be in any way, shape or form related
to the death of Officer Morgan. There
was hope on my part that information could be placed within the computer by
Officer Morgan himself as to why he may have taken his life, not in line -- not
in line with this investigation as far as Mrs. Thompson was concerned, not --
Q. But you don't know what was on those computers, do you?
A. No, I do not, sir.
Q. You're speculating when you say that, aren't you?
A. We're all speculating, sir.
Q. Okay. And are you aware
that Officer Morgan's wife believes that he left a suicide note on those
computers?
A. I know that I had asked her, and we tried to go ahead and obtain
that information.
Q. And Bodie Hurst destroyed that information, if it existed, didn't
he?
A. I know that it has been removed, yes, sir.
Q. And Bodie Hurst did it, didn't he?
A. He's been charged with that, yes, sir.
Q. He's been charged with that crime. The police department believes he did it?
A. Yes, sir.
MR. MOORE: Your Honor, that's the line of questioning I
want to go into. I mean, there's been
evidence destroyed here in
an investigation of a suspect into the Emogene Thompson case, and I think we're
entitled to bring that out.
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, there's been no connection
between Officer Hurst and pending charges that are facing him and the death of
Emogene Thompson. Mr. Moore says
there's been evidence destroyed in the death of Emogene Thompson, but yet he
makes no connection between the two.
It's irrelevant evidence.
Officer Morgan killed himself.
Mr. Moore can inquire as to whether any suspects or relevant information
was developed. And the answer to that
question is probably going to be no.
But that's as far as he can go.
To go into the
details of that investigation through this officer, number one, are hearsay
and, number two, are irrelevant. And to
allow Mr. Moore to by innuendo and by cross-examination, which is not evidence,
to bring this specter into this courtroom is simply wrong, and it is simply a
violation of the rules of evidence.
The evidence here is to get
to the truth of what happened here.
Your Honor, we believe that this is all irrelevant material and not
properly brought out with this witness.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, when the police believe there
may be a connection and they investigate that connection, we believe we're
entitled to bring that out, whatever they did, to show how thorough it was,
whether they did a good job in their investigation to determine whether or not
J. P. Morgan did have any involvement.
And the fact that
somebody comes into it while they're doing the investigation and destroys
evidence so the police don't know what was there, we think that's relevant
also. It goes to the quality of the
police investigation into it. And
Officer Tkacik has testified himself that they were trying to exclude J. P.
Morgan as a suspect when they were doing this investigation.
MR. PORTER: Your Honor, if I may have one question on
redirect.
THE WITNESS: Yes.
THE COURT: Go ahead.
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Why did you try to exclude Officer Morgan?
A. Investigator Burnette had gotten with me and had obtained
information or learned of some self-serving statements that were offered by the
defendant while he was in custody in Hall County that through the death of J.
P. Morgan -- he'd made statements as if Mr. Morgan was the one responsible for
Emogene Thompson's death. Investigator
Burnette had gotten with me and had indicated that there was a need to go ahead
and try to provide any information that would see if Officer Morgan was
connected with that matter.
Up until that point, I was
trying to look into the reasons why Officer Morgan had passed away, why he had
decided to take his life, and there was absolutely no information that had been
given to me, nothing at all that had been learned at the scene, nothing at all
that had been shared with me verbally.
There were actions that may have been taken, but nothing that would have
said that this was related to the death of Emogene Thompson. Nothing.
MR. PORTER: Your Honor.
This is a smoke screen created by the statements of the defendant. And I will state in my place that on the date
of J. P. Morgan's suicide, Mr. Chapel's prior attorney called me and said, 'Now
we have our first suspect.' This is --
MR. MOORE: Your Honor, what -- what Officer Morgan's
prior attorney did has got nothing to do with this case.
MR. PORTER: Officer Chapel's attorney.
MR. MOORE: Oh, I'm sorry.
MR. PORTER: But, Your Honor, it does have something to
do with it in the sense that it has been a strategy from the very beginning to
make hay out of the suicide of a Gwinnett County police officer.
THE WITNESS: Absolutely.
MR. PORTER: And now we are trying to get to it through a
witness who was the chief investigator in that investigation, and none of this
is relevant material beyond the fact that from that investigation there was no
information that changed the course of the Michael Chapel investigation.
I'll make the appropriate
objections at the appropriate time if Mr. Moore wants to call Investigator --
former Officer Hurst, if he wants to call Renee Morgan, if he wants to do a lot
of things. But, number one, he's attempting
to elicit hearsay from this officer and, number two, the material is not
relevant in any way.
THE COURT: Well, I guess another question, Mr. Moore,
is to what extent the questions you pose and the responses you elicit are
hearsay and this witness cannot testify anyway.
MR. MOORE: Your Honor, I don't believe I asked him what
anybody else told him. He was there at
the crime scene. He was there when
Bodie Hurst came in. They charged Bodie
Hurst. They investigated and charged
him with altering those computers. He
has personal knowledge of that. And the
eyewitness, if the Court will recall, J. P. Morgan's photograph was one of the
three that he identified as being similar to the photo of Mike Chapel in the
photo lineup.
MR. PORTER: Your Honor, that's a misstatement. He identified the photo in the pretrial
hearing as one of the photos that was similar to the photos in the lineup, and
a review of the transcript will reveal that.
The only photo that has been identified as similar to Mike Chapel's is D-38.
MR. MOORE: And, Your Honor, I would submit the rule of
necessity applies here, too, on the hearsay because Bodie Hurst will take the
Fifth Amendment. He is not going to
testify in this case. He's under indictment
by the district attorney's office in at least one case, maybe two, and the district
attorney's office is holding off on prosecuting those cases simply to keep him
from being available as a witness.
MR. PORTER: That's incorrect, Your Honor, and I resent
the misstatement of the facts in this case. Mr. Hurst has gone through two attorneys. The state has not been able to schedule that
trial. And to imply any misconduct on
the part of the state is simply wrong and is simply untrue. Mr. Hurst's case will be dealt with in the
fullness of time and in the schedule that you yourself have since the case is
assigned to you, and the Court will reach it when the Court reaches it.
THE COURT: Is it assigned to this division?
MR. PORTER: It is assigned to this division.
MR. MOORE: When was that case indicted, Mr. Porter?
MR. PORTER: It was indicted almost two years after the
event when an investigation, which began with Officer Hurst stealing money from
an evidence room, blossomed into other areas, and Investigator Hurst faces a
variety of charges, or former Officer Hurst, a variety of charges arising out
of a variety of misconduct.
Excuse me, Your Honor, that
case is not assigned to this division.
It is assigned to Judge Stark's division.
THE COURT: Okay.
MR. MOORE: Your Honor, I would point out to the Court
the district attorney controls when they bring an indictment to the grand
jury. If this crime occurred two and a
half years ago, he could have indicted it two and a half years ago.
THE COURT: If you're allowed to inquire -- Mr. Moore,
are the questions you want to ask basically what you've asked?
MR. MOORE: Basically, what I've asked here, Your Honor.
THE COURT: I want to take a recess here and think about
it just a moment.
MR. MOORE: I didn't write it down, Your Honor. I may need the court reporter to --
THE COURT: Well, I understand. Before making a ruling, if you're allowed to
go through with it, and I haven't decided that yet, I don't contemplate having
a mini-trial on all the other issues like the Morgan case and get off on a
week's worth of trial on another case.
I think if there is appropriate -- if examination of the witnesses as to
those matters is appropriate, and I'm not deciding that yet, then I think an
inquiry is not -- will not be tantamount to a license to a mini-trial to go try
those cases and take a lot of time with them aside from the issues in this
case.
MR. MOORE: Your Honor, if the Court allows it, I don't
anticipate a mini-trial, and if the Court does allow it, I would ask the court
reporter if she could give me the questions so that I can follow what I did
before the Court so that I don't ask anything different than what I've already
told you.
THE COURT: All right.
MR. PORTER: Your Honor, and the state will insist on the
right to redirect into those areas along the lines of what I've asked Investigator
Tkacik.
THE COURT: Well, the question is, what's appropriate on
direct and cross and redirect and recross.
I guess the question is, are they permissible questions?
MR. PORTER: Your Honor, my position is they are not
permissible, either on cross or redirect.
However, I don't think the state again can be limited by the
cross-examination of the defendant into improper areas and not be allowed to
explore those areas as we have with Investigator Tkacik. There is an explanation.
THE COURT: Yeah.
Well, I'm not suggesting you can't, but I'm just saying inquiring into
those areas doesn't mean that you necessarily ask any question in any form you
want.
MR. PORTER: Your Honor, that may be true and that may be
subject to -- but I believe that I would be allowed to explore the issues of
the relevance of that matter to this case.
THE COURT: Sure.
That goes without saying, I think.
Okay. Let's take ten minutes. We'll recommence.
[A brief recess was taken in
the proceedings.]
THE COURT: Anything else, Mr. Moore?
MR. MOORE: Not at this time, Your Honor.
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, only to restate our objection to
the line of questioning.
THE COURT: All right.
What I'm going to do, Mr. -- what the ruling of the Court is going to
be, Mr. Moore, is I'm going to allow a limited inquiry as along the line of the
questions you posed earlier while the jury was out.
On one hand, I suppose, it
has some collateral -- it seems to me, some collateral, minimal kind of
relevance to the case. And let me just
state that pursuant to the pretrial proceedings, the pretrial motions, I had
all the state's files, which I did a review of, in camera of, all of the files
from the Bodie Hurst investigation, all the files from the northside precinct
investigation, all the files in the investigation of Officer Morgan's death,
and I guess over a period of several months, I looked at every piece of paper
and all those -- went through the audio and video recordings.
And the net result of that,
as far as anything that was exculpatory or in any way connected with this case,
was the one document provided which was arguably -- provided or might be used
as an alibi for the defendant in this case.
I very carefully looked at all that with a -- looking for any evidence
or suggestion of any co-defendants in this case, any conspiracy involved in any
of those matters in this case, any co-conspirators, and the net result of all
that review, which I spent nights and weekends doing over a period of time and the
daytimes when I could do it, and -- the stuff was boxed up in my office. I could hardly get through chambers with all
the material that was there boxed up.
The net result was
zero connection from any of that with this case. So because of that, I think that unless there's things that
aren't in that or things I'm not aware of from that, I think it has little or
no relevance, but I'll allow you the limited inquiry until such time as you can
show there is some connection that ought to be -- that there ought to be an
expanded inquiry.
If you'll do that,
then I'll allow it, but otherwise not.
And one of my concerns is I just don't contemplate spending a lot of
time with, like I said earlier, mini-trials on the issue of Hurst, on the issue
of Officer Morgan and the northside precinct, which to date, I think, shows
zero, absolutely zero connection with this case.
MR. PORTER: Your Honor, if I may, then, in light of the
Court's statement, one of the specific limitations which has been placed upon
the defendant, we believe that these questions about checking for weapons, how
that information was learned, whether Bodie Hurst came to the scene, was he
authorized to be there, are all -- all fall beyond the bounds of the limited
area of relevance the Court has described.
THE COURT: Well, I just think there is a -- I think Mr.
Moore has showed the basis of at least some connection to the case and some
relevance on the basis he's indicated.
I think it's a discretionary matter insofar as the extent of the inquiry. And my inclination is to exercise discretion
of the Court, allow Mr. Moore to inquire along the line with the questions he's
posed in a limited manner.
I just think that's
appropriate, and I'm going to allow him to do that, and then you can ask follow-up
questions if you wish, and I just think that's -- it's my feeling that that's
appropriate in the case all things considered.
And I don't think there are any hard and fast lines of this is what you
can ask and this is what you cannot ask throughout the course of the trial.
MR. PORTER: Well, Your Honor, this goes back to the
state's motion in limine. It is
precisely this problem which we wished to address pretrial. It is precisely this area. The Court has made a statement here in open
court for the benefit of counsel and the benefit of the defendant, but the jury
hasn't heard that statement.
And now, in front
of the jury, the fact finders in this case, Mr. Moore is going to be allowed
basically, with the only guidance from the Court to say, 'I'm going to allow
you to ask questions along the lines of what you asked before.'
THE COURT: I believe Mr. Moore's indicated he's going
to ask what he's asked.
MR. MOORE: Your Honor, I'll state for the record, the
court reporter has prepared the transcript for us during the recess, and I
intend to follow that transcript as close as I can to ask exactly the same
questions. And, Your Honor, I would
point out to the Court, too, and Mr. Porter, that I don't doubt the Court has
thoroughly and diligently examined the records you've got that have been
provided to you, but I would also point out to the Court I doubt seriously, if
there was any conspiracy or anything going on in the police department, they'd
write it down and send it to you. It
would only be revealed through cross-examination.
THE COURT: Well --
MR. PORTER: Your Honor, this is the second time today
that Mr. Moore has made a blanket accusation of misconduct on the part of the
state, and specifically the district attorney's office, and it is precisely
this type of innuendo which is going out before this jury which is unreasonable
without strict guidance from the Court.
THE COURT: Well, I think Mr. Moore has the
guidance. He said he's going to ask the
questions he's asked. You'll have the
opportunity for redirect, and I think we have an investigation here which was
at least in part to inquire as to any potential connection between Officer
Morgan's death and this case. And I
think that out of sort of a fundamental interest in fairness, I think Mr. Moore's
entitled to inquire as to the nature of the police inquiry in a limited way.
I don't intend to
try that case here. I don't intend to
try the Hurst case here. I don't intend
to try the northside precinct investigation here, unless you can clearly
establish that that's something that ought to be inquired into on a greater
basis than I've indicated I'm going to allow.
Insofar as this
witness and the questions you can pose, you can pose the questions you've
asked, you can follow up with a redirect, Mr. Porter, but I believe those are
questions that Mr. Moore -- I don't think it's inappropriate to inquire, make
that inquiry in any way, and I'm going to allow it. And that's going to be the ruling of the Court. Anything else, Mr. Porter?
MR. PORTER: No, Your Honor.
THE COURT: Mr. Moore?
MR. MOORE: No, Your Honor.
THE COURT: Bring the jury back, please.
[The jury returned to the
courtroom and proceedings resumed, as follows.]
THE COURT: Proceed when you're ready, Mr. Moore.
CROSS EXAMINATION - RESUMED
BY MR. MOORE:
Q. Officer Tkacik, back in May 10 of 1993, you were in charge of the
investigation into the death of Officer J. P. Morgan; is that correct?
A. Yes, sir.
Q. Now, isn't it true, Officer Tkacik, that you were trying to rule
out J. P. Morgan as a suspect, as a possible person that killed Emogene
Thompson?
A. No, sir. I never listed
Officer Morgan as a suspect in Ms. Thompson's death.
Q. Is it true, Officer Tkacik, that you were trying to rule out J.
P. Morgan as a possible person that killed Emogene Thompson?
A. It is true that I'd been given information that we needed to go
ahead and try to exclude --
Q. Officer Tkacik, I'd ask that you answer my question first. You can explain it, but answer the question
first. Is that what you were trying to
do?
A. Repeat the question again, sir.
Q. Is it true that you were trying to rule out J. P. Morgan as a
possible person that killed Emogene Thompson?
A. Yes, sir.
Q. Now, did you check for what kinds of weapons Officer Morgan may
have had during that investigation?
A. Yes, I did, sir.
Q. Okay. And what type of
weapons did he have?
A. He had several revolvers that he'd kept at home.
Q. And what caliber were they?
A. They were .38 calibers.
They were .38 caliber Smith & Wesson revolvers.
Q. And without going into what anybody told you, any hearsay, how
did you determine what weapons he may have had? Who did you talk to?
A. His spouse.
Q. Now, during the time the investigation was being conducted, did
another officer, Bodie Hurst, come into the crime scene?
A. Yes, sir.
Q. And was he authorized to be there?
A. Yes, sir.
Q. Does his name appear anywhere in your official report?
A. No, sir.
Q. Isn't it true that he destroyed the hard drives of both computers
that Officer Morgan owned?
A. Yes, sir.
Q. He's been charged with altering and removing information from
them, hasn't he?
A. Yes, sir.
Q. And whatever information on there has been destroyed at this
point?
A. That is correct, sir.
Q. And nobody knows what was on there?
A. That is correct, sir.
Q. You were attempting to check those computers for a suicide note;
is that correct?
A. That is correct, sir.
Q. And you were unable to do so?
A. That is correct.
Q. And if that information existed, Bodie Hurst destroyed it, didn't
he?
A. That is correct, sir.
Q. And he's been charged with that crime by the police department?
A. Yes, sir.
MR. MOORE: That's all I have. Thank you.
THE COURT: Mr. Porter?
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Investigator Tkacik, when you responded to the scene of J. P.
Morgan's suicide, at that time was he a suspect in the murder of Emogene
Thompson?
A. No, he was not, sir.
Q. And did you discover any evidence at the scene or at any time
later in your investigation that made J. P. Morgan a suspect in the murder of
Emogene Thompson?
A. No, sir. No, sir.
Q. Why did you decide to pursue the investigative tack to eliminate
J. P. Morgan as a suspect?
A. The lead --
MR. MOORE: Your Honor, I'm going to object if he's
going into hearsay now. He may have a witness
testify --
MR. PORTER: Your Honor, Mr. Moore has opened this door.
THE COURT: Just a moment. What's your objection, Mr. Moore?
MR. MOORE: Your Honor, I believe he's about to go into
hearsay of what people told him. Now, he
might can say he spoke to somebody and then he proceeded to investigate, but I
don't believe he can testify to what somebody told him.
THE COURT: Let's hear the question. What's the question?
BY MR. PORTER:
Q. Why did you decide to try and exclude J. P. Morgan as a suspect
in this murder?
A. A request had been made by me by the lead investigator into the
death of Emogene Thompson.
MR. PORTER: Your Honor, Mr. Moore has raised this
specter in front of this jury. He has
raised the question. The state is now
entitled to produce evidence which will rebut that if it can, and we believe
that we can. And I think now for Mr.
Moore to stand up and say that this is hearsay after the testimony that he's
elicited --
THE COURT: What's your question?
BY MR. PORTER:
Q. Who requested that you exclude J. P. Morgan?
A. The lead investigator, Investigator Jack Burnette.
Q. All right. Did he provide
you with any information upon which he based his request?
A. Yes, he did, sir.
Q. What was the information that he provided you?
A. That self-serving statements had been made by the defendant in
reference to the death --
MR. MOORE: Your Honor, if this witness didn't hear
those statements, I'm going to object.
He cannot testify to --
THE COURT: Just a moment. Would you approach the bench, please?
[Counsel approached the
bench and the following conference ensued outside hearing of the jury.]
THE COURT: What's your question going to be?
MR. PORTER: Well, Your Honor, what information was
provided. And the officer began by saying
that self-serving statements had been made by the defendant, and Mr. Moore
objected.
MR. MOORE: Your Honor, he can call the officer that
heard those statements, but he can't -- this officer didn't hear them. He wasn't present.
MR. PORTER: It's hearsay to explain conduct, Your Honor.
THE COURT: Well, I'm inclined to allow it in on a
limited basis to explain his conduct. I
mean, why is he over there investigating, what prompted him. I think that's a --
MR. MOORE: Your Honor, without saying what he told him,
he can say that he got information which he was investigating, to explain his
conduct. That's been limited in cases
to that.
MS. ROGAN: We also object to the characterization of
self-serving. It's not proper for this
witness to characterize what the statements were, what -- I mean, it's
information. It's not -- characterizing
it as self-serving is putting a spin on it that's not --
THE COURT: Well, ask him what you want to ask and is it
not -- is it information that the defendant had represented that Morgan was
connected with Emogene Thompson's death?
MR. PORTER: They received information that Morgan had
killed himself because of guilt over the murder of Emogene Thompson.
THE COURT: All right.
And that's the reason he was over there looking.
MR. MOORE: Your Honor, that's a jailer at the Hall
County jail that supposedly overheard that, too, and he's available to
testify. We've got him under subpoena,
and the state has him available, and this is about third-hand hearsay to this
officer.
MR. PORTER: Your Honor, it explains conduct. I'm in the process of presenting evidence
which proves my case. I'm not going to
be diverted into every little bush that the defendant raises.
THE COURT: I don't intend to spend a day on this issue,
but I think to show why he was over there, I think you can raise the issue of
your investigation and being over there and Bodie Hurst and all the rest of
it. I'll allow you to -- why don't you
ask him a leading question along those lines that was it because of the --
well, tell me what you would like to ask, and let's see if there's any
objection to it.
MR. MOORE: Your Honor, I object to the characterization
of self-serving. He can say statements
of the defendant if he wants to, but I don't think he's entitled to make
inferences to the jury at this point.
He may can in his closing argument, but not in the evidence.
THE COURT: Tell me the question you want to ask.
MR. PORTER: In a leading form?
THE COURT: It might be a good way to structure it so we
don't wander off.
MR. PORTER: All right.
The only thing I intend to say at this point is that, did you receive
information that the defendant had made statements at the Hall County jail
which indicated that he was going to try and implicate J. P. Morgan.
MS. ROGAN: Not indicate.
MR. MOORE: Not that he was going to. The evidence did, Your Honor. I don't --
MS. ROGAN: You can't -- you don't even know what the
statements are. It's third-hand
hearsay.
MR. PORTER: They don't implicate him. The statements say --
MS. ROGAN: You don't know what Mike said.
MR. PORTER: I know exactly what he said.
THE COURT: Tell me what you want to say.
MR. PORTER: He said that J. P. -- I guess J. P. Morgan
couldn't live with the guilt of what he did.
THE COURT: All right.
Tell me the question you want to pose to this witness.
MR. PORTER: Did you begin your investigation along these
lines based upon statements that the defendant made in the Hall County jail?
THE COURT: Okay.
Mr. Moore?
MR. MOORE: Your Honor, he may be able to ask that
question, but that's not the question he was asking earlier.
THE COURT: All right.
Are you going beyond that with any statements by the defendant? Is that what you want to ask?
MR. PORTER: No.
I'm not going into the defendant's statements.
THE COURT: Okay.
I'll allow that.
[Bench conference
concluded.]
THE COURT: Go ahead, please.
BY MR. PORTER:
Q. Investigator Tkacik, let me rephrase my question to more closely
direct what I want to ask. Did you
begin your investigation into the death of J. P. Morgan as a possible suspect
based on a request from Investigator Burnette?
A. That is correct, sir.
Q. And did Investigator Burnette, to your knowledge -- and did you
begin that investigation along those lines based upon information that you had
gotten about statements made by the defendant while he was in the Hall County
jail?
A. That is correct, sir.
Q. Had it not been for those statements, would you have investigated
or did you at any time consider that there was a connection between J. P. Morgan's
death and Emogene Thompson's?
A. No, sir.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
RECROSS EXAMINATION
BY MR. MOORE:
Q. One thing I wasn't clear about, Officer Tkacik, on the property
sheets. Did you take possession of one
raincoat or two raincoats that Officer Morgan owned?
A. There were two raincoats, sir.
Q. And were both those raincoats tested?
A. The newer raincoat had never been taken out of its original
package. It had never been altered in
any way, shape or form.
Q. Okay.
MR. MOORE: That's all I have. Thank you.
THE COURT: Anything else of this witness, Mr. Porter?
MR. PORTER: I have no other questions for this witness,
Your Honor.
THE COURT: Is he on call?
MR. PORTER: Your Honor, he's available. Officer Tkacik's on duty.
THE COURT: All right.
You'll be subject to being recalled later.
THE WITNESS: Thank you, sir.
THE COURT: You can come down.
THE WITNESS: Thank you.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: The state would call Glenn Teatino to the
stand.
[The witness was called to
the courtroom.]
MR. PORTER: Mr. Teatino, could you take the stand there,
please.
[The witness stepped to the
stand.]
MR. PORTER: Would you raise your right hand,
please. Do you solemnly swear the
testimony you're about to give in this matter now pending shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name and spell your last name for the
record, please.
A. My name is Glenn Teatino.
It's spelled T-e-a-t-i-n-o.
Q. And, Mr. Teatino, how are you employed?
A. I'm chief investigator with the Gwinnett district attorney's
office.
Q. And could you describe what your duties are as the chief
investigator of the Gwinnett County district attorney's office?
A. Sure. I supervise
investigations, supervise investigators, assist you, of course, on any problem
that we may have, keep up with equipment inventory.
Q. Now, Investigator Teatino, have you been assigned on behalf of
the district attorney's office to supervise the investigation into the death of
Emogene Thompson?
A. Yes, I have.
Q. And in the course of that have you performed duties which include
showing evidence to defense counsel and to the defendant, if necessary?
A. Yes, sir.
Q. And let me call your attention to the 28th of July of 1995. On that date, were arrangements made to show
evidence to Ms. Rogan and Mr. Moore at the Gwinnett County police department?
A. Yes, they were.
Q. Were you a part of that process?
A. I was.
Q. All right. Let me show
you -- Investigator Teatino, let me go back to July 28, 1995. On that date, did you observe that briefcase
that we have had previously marked and identified as State's Exhibit Number 97?
A. Yes, I did.
Q. Could you describe for the jury how did you observe that, where
did you see it?
A. We were at the Gwinnett County police department training room,
where we were in the process of laying out evidence for Mr. Moore to view, and
I laid this particular briefcase out in the training room.
Q. All right. Was it open
when you received it?
A. No. It was unsealed. I opened it up and set it out.
Q. All right. Let me show
you what we have had marked as State's Exhibit Number 135. Can you look at it and tell us if you
recognize that, please?
A. Yes, I can.
Q. And can you identify it, please?
A. This note pad was inside this briefcase and when I opened the
briefcase. I took it out and laid it
out beside the briefcase.
Q. And let me show you what I've had marked as State's Exhibit
Number 134. Can you take a look at that
and identify it, please?
A. Yes. That's a photograph
depicting how the items were laid out beside the briefcase in the training
room.
Q. And is that photograph a true and correct representation of what
it purports to depict on that date?
A. Yes, sir, it is.
Q. All right. Did you
observe while the evidence was examined by the defense counsel and were you
present during that?
A. Yes, I did. Yes, sir, I
was.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Investigator Teatino, do you have any way of knowing what the
contents of that briefcase was at the time that it was taken from Mr. Chapel's
car?
A. No, sir.
Q. No inventory was ever done of it by anybody, was there?
A. Well, inventory was done, and I'd looked in it previously, but as
far as recalling exactly what was in it up until, what, two years later, I
don't recall.
Q. All that inventory said was miscellaneous papers, didn't it?
A. Yes, sir.
Q. It didn't give any details of what was in there?
A. I don't believe so.
Q. Have you watched the video of Officer Chapel when he gave the
statement?
A. Yes, I have.
Q. I'm going to show you Defendant's Exhibit Number 76. Have you ever seen that before?
A. I've seen it before.
Q. Can you identify it?
A. Yeah. It's in the
briefcase.
Q. Okay. And on the video,
Officer Chapel hands that over and lays it on the table with his keys on it in
front of Officer Latty and Officer Burnette.
Do you recall that in the video?
A. I recall him laying some keys, yeah.
Q. With that whatever you call that thing on it attached to it
there?
A. It could have been. I
don't remember.
Q. And somebody had to place that in the briefcase, didn't they?
A. If they'd come out of the briefcase, yeah.
Q. And Officer Chapel didn't do it because he was in custody, did
he?
A. He was in custody; right.
Q. So somebody else placed that in there?
A. They could have.
Q. As chief investigator, can you tell us who did it?
A. No, sir, I couldn't.
Q. Was the briefcase unsealed that morning when you got there at the
police department?
A. When we showed you the evidence?
Q. Yes, sir.
A. No, it was sealed up.
Q. Who unsealed the briefcase?
A. Investigator Jack Burnette.
Q. Did he do that in your presence?
A. Right.
Q. That's all I have. Thank
you.
THE COURT: Redirect?
MR. PORTER: No redirect, Your Honor. We would ask that Investigator Teatino be
allowed to return to his duties.
THE COURT: Yes, sir.
You can come down.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: I call Dick Hinson to the stand. Dick Hinson.
[The witness was called to
the courtroom.]
MR. PORTER: Would you take the stand here, please, sir.
[The witness stepped to the
stand.]
MR. PORTER: Could you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Richard W. Hinson.
Q. And how are you employed?
First of all, could you spell your last name for the --
A. H-i-n-s-o-n.
Q. How are you employed, Mr. Hinson?
A. I'm an investigator with the district attorney's office.
Q. And what are your duties as an investigator with the DA's office?
A. We have varied duties.
Right now, I'm working as an investigator with the white collar crime
unit.
Q. I'd like to call your attention back to April of 1993. Were you employed as an investigator at that
time?
A. Yes, I was.
Q. Did you have any involvement into the investigation of the death
of Emogene Thompson?
A. Very little. I did have
some, yes.
Q. All right. Did you assist
in the transport of Mr. Chapel on the night of his arrest?
A. Yes, I did.
Q. Beyond that, did you have any other involvement?
A. No, sir.
Q. And until approximately June of 1995, did you have any further
involvement in the case of the State of Georgia versus Michael Chapel?
A. None other than beginning preparation for this trial.
Q. And in the course of that trial or in the course of that
preparation, what has been the primary duty that you have had as an
investigator of the DA's office?
A. Locating and contacting witnesses, primarily.
Q. All right. Now, I'd like
to call your attention to the 28th of July of 1995.
A. Yes, sir.
Q. Were you on that date requested to assist in the display of physical
evidence for defense counsel out at the Gwinnett County police department?
A. Yes, I was.
Q. And did you in fact do that?
A. Yes, I did.
Q. Did you yourself examine some of the physical evidence at that
time?
A. Yes, I did.
Q. All right. I'd like to
show you what has been marked as State's Exhibit Number 135. Can you identify that, please?
A. Yes, sir.
Q. And can you tell us what it is?
A. It's a notebook with a small legal -- yellow legal pad.
Q. And have you seen that notebook before?
A. Yes, I have.
Q. And where was that?
A. This was at the police department in the police department
academy training class. It was -- when
I first saw it, it was laying beside a briefcase.
Q. All right. And if you'd
look at State's Exhibit Number 97, is that the briefcase that you saw that day?
A. Yes, sir.
Q. I'd also like you to look at State's Exhibit Number 34, which has
been previously identified, and is that a representation of the condition of
the two items as you saw first them?
A. Yes, sir.
Q. Can you describe for us what you did with the notebook, if
anything?
A. I'm sorry.
Q. If anything, if you did anything with it.
A. Yes. These items depicted
in the photograph were laying where they are in the photograph. I went over after Investigator Teatino had gone
through the briefcase, and I began to follow him in going through the contents
of the briefcase. I picked this
notebook up and flipped through it, looked at -- looking for whatever
information we might could have used in the trial of this case. Before I put it down, I happened to look
behind the notebook or the legal pad in the notebook down in the slot, and I
saw what to me appeared to be the corner of two one hundred dollar bills.
Q. Were you surprised by that?
A. Very surprised, yes.
Q. Let me show you what we have had previously marked as State's
Exhibits Number 121A, B, C, and D. Can
you look at those and identify them, please?
A. Yes, sir. These are one
hundred dollar bills that were later pulled from the slot inside of this
notebook.
Q. All right. And who
removed those?
A. ID Sergeant Bob Lee with the Gwinnett County police department.
Q. All right. Were those
bills replaced back into the notebook on that day?
A. Yes, sir, they were.
Q. And do you know who replaced them?
A. To my knowledge, it was Sergeant Lee.
Q. All right. And were you
present when Mr. Moore and his investigator examined the evidence?
A. Yes, sir, I was.
Q. And did they examine the notebook, State's Exhibit Number 135?
A. Yes, they did. Yeah.
Q. Did they discover the bills behind the notebook?
A. No, sir, they did not, not until they were shown the bills
themselves.
Q. All right. And were the
bills removed for them?
A. I don't recall if they were or not. I do know they were supplied with a photograph of the bills that
Sergeant Lee had taken when he --
Q. Now, Investigator Hinson, I have one other area that I would like
to talk to you about.
A. Okay.
Q. And that is what has been previously marked as State's Exhibit
Number 131. Can you identify that,
please, sir?
A. Yes, sir, I can. This is
a RG revolver that was given to me by Officer Brian Reddy of the Gwinnett
police department.
Q. And do you recall the date of that?
A. August the 18th of this year.
Q. And --
A. 1995.
Q. Excuse me, I'm sorry.
1995?
A. 1995, yes.
Q. And where was that weapon turned over to you?
A. At Officer Reddy's house.
Q. Did he voluntarily turn that weapon over to you?
A. Yes, he did.
Q. And what did you do with it?
A. I immediately transported it to the state crime lab down on Panthersville
Road.
Q. Okay. And what did you do
with it once you got to the crime lab?
A. I turned it over to Kelly Fite with the GBI crime lab.
Q. Do you know what he did with it then?
A. He fired two test rounds from this gun and then compared them to other
evidence in this case.
Q. All right. And what was
the other evidence that he compared it to?
A. Two rounds, I believe, that were found in Ms. Thompson's
automobile.
Q. All right. And was all
this comparison and firing done in your presence?
A. The firing was not. The
testing was, the comparison.
Q. And then what did you do with the gun and the test rounds after
Mr. Fite was done with them?
A. I transported them back to our office and logged them into the
district attorney's evidence room.
MR. PORTER: Thank you.
That's all the questions I have for Investigator Hinson.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Investigator Hinson, I have a few questions to ask you.
The briefcase that's marked State's Exhibit Number 97, was it your
testimony that that was already opened when you got to the police department?
A. When I got to the police department?
Q. Yes, sir.
A. No, sir, it wasn't.
Q. Was it opened in your presence?
A. It was opened -- I was in the same room. I don't recall whether I actually observed
it being opened.
Q. Okay. Do you know who all
has had access to that briefcase during the two years it's been in the police
department?
A. I have no idea --
Q. Did you check the property sheets to see who all may have signed
it out?
A. No, sir, I did not.
Q. Did you see the video that Officer Chapel, where he gave his
statement? Have you seen that?
A. I've seen bits and pieces of it.
I've not seen the entire --
Q. Have you seen it -- were you present down at the police department
watching it on a monitor at the time he was arrested?
A. No, sir, I was not.
Q. Do you know whether or not he had keys with him when he was
arrested? Do you remember that part?
A. I know nothing -- nothing of that.
Q. I show you Defendant's Exhibit 76. Can you identify that?
A. No, sir. I don't -- I
don't think I've ever seen it.
Q. Can you tell us whether it came out of the briefcase or not?
A. I don't recall seeing it in the briefcase.
Q. Okay.
A. I can't say it wasn't in there, but I don't recall seeing it.
Q. And when we arrived at the police department back in July to look
at the evidence, what were your instructions?
To show us all the evidence in the case?
A. Basically, we were there just to lay the evidence out, and then
let you, as far as I know, look at it at your leisure.
Q. And when we arrived there, nobody said to us 'we've discovered
some new evidence,' did they?
A. No, sir.
Q. In fact, the first time we knew about it is when our investigator
picked that notebook up and started to look, and that's when everybody jumped
and said, 'don't touch that,' didn't they?
A. I believe he had looked at the notebook and taken the legal pad
from the slot and was getting ready to replace it back into the slot where the
bills were, and, as I recall it, Investigator Teatino stopped him at that
point.
Q. Okay.
A. That's when the bills were shown.
Q. Had there been any discussion about whether to tell us about it
if we hadn't discovered it?
A. I think the discussion was to put it back like it was and if you
found it, fine. If not, we would show
you what it -- you know, where it was.
Q. If you were going to show it to us, why didn't you just go ahead
and tell us when we got there?
A. I don't know. That wasn't
my decision to make and --
Q. Who made that decision?
A. Apparently, it was either Detective Burnette or Investigator
Teatino. They were the only other two
people in the room with the --
Q. So they were going to wait and see if we found it?
A. Basically, I guess.
Q. You said, I believe, that this notebook was lying beside the
briefcase?
A. Yes, sir.
Q. Do you know of your own personal knowledge whether it was in the
briefcase when it was opened up?
A. I can -- I know when Detective or Investigator Teatino carried it
over to the countertop area that's depicted in the photograph, there was
nothing else there. That's all I can
testify to.
Q. And wasn't this laid out, Defendant's Exhibit Number 76, wasn't
that laid out as coming out of the briefcase, too?
A. It may have been. I don't
recall that particular item.
Q. I want to ask you to examine State's Exhibit Number 134 and see
if you can determine whether or not Defendant's Exhibit 76 is in the briefcase
in that photograph.
A. I see something that possibly could be it. I can't, without a magnifying glass -- it
appears that it -- that possibly something laying in the briefcase that might
be that item.
MR. MOORE: Nothing further.
THE COURT: Redirect?
MR. PORTER: Your Honor, only to have Investigator Hinson
identify one other photograph. If you
could mark this as the next State's Exhibit.
[State's Exhibit Number 136
was marked for identification by the court reporter.]
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Investigator Hinson, I'd like to show you what has been marked as
State's Exhibit Number 136, and can you identify that, please, sir?
A. Yes, sir, I can.
Q. And what is that?
A. This is a photograph of Detective Jack Burnette holding the
notebook, holding the slit open so a photograph can be taken of the hundred
dollar bills down in the slit.
Q. All right. And is that a
true and accurate representation of what you observed on that day?
A. Yes, sir, it is.
Q. Thank you.
MR. PORTER: That's all the questions I have. Your Honor, at this time, the state would
move for admission of State's Exhibit Numbers 134 and 136, which are the
photographs that have been described by Investigator Hinson.
THE COURT: All right.
134 is the --
MR. PORTER: Photograph.
THE COURT: -- photo of 135, which is a notebook and
cover and the contents. Any objection
to 134?
MR. MOORE: Your Honor, we don't believe those would be
admissible until after the exhibits that are photos of themselves have been
admitted. These are the product of
other evidence that's not yet been admitted.
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, these are photographs which have
been identified as true and correct representations of what they depict; and,
therefore, the proper basis has been laid for the admission of these photographs.
THE COURT: State's 134 is admitted over objection. 136 is of Investigator Burnette holding 135
that's the note pad?
MR. PORTER: Yes, sir.
THE COURT: Any objection?
MR. MOORE: Your Honor, the same objection.
THE COURT: It's admitted over objection.
MR. PORTER: Your Honor, also at this time, we neglected
to do this with the last witness, but we would move for admission of 132, which
is the evidence bag, and State's Exhibit 133, which is the rain hat, which was
testified to by Investigator Tkacik.
THE COURT: Any objection?
MR. MOORE: Your Honor, no new objections, subject to
the Court's previous rulings.
THE COURT: Well, is that an objection or not at this
point?
MR. MOORE: Your Honor, we're not consenting to it
because there's been previous rulings that may be appropriate.
THE COURT: All right.
State's 132 and 133 are admitted over objection.
MR. PORTER: And we have no other questions for
Investigator Hinson, Your Honor.
THE COURT: Recross?
MR. MOORE: No, Your Honor.
THE COURT: You can come down. Call your next witness, please.
[The witness stepped
down from the stand.]
MR. PORTER: We call Brian Reddy to the stand. We call -- I called a witness out of
order. We call Sergeant Bob Lee to the
stand.
THE COURT: All right.
[The witness was called to
the courtroom.]
THE COURT: Officer Lee, if you'll take the stand up
here, Mr. Porter will administer the oath.
[The witness stepped to the
stand.]
MR. PORTER: Would you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Robert Lee.
Q. And how are you employed?
A. I'm with the Gwinnett County police department.
Q. All right. And what are
your duties at the Gwinnett County police department?
A. I'm in charge of the crime scene unit.
Q. Now, Sergeant -- you are Sergeant?
A. Yes, sir.
Q. Sergeant Lee, I'd like to call your attention to July 28 of
1995. Were you called in to assist in
the recovery of some evidence by Investigator Jack Burnette?
A. Yes, sir.
Q. I'd like to show you what we have had previously marked as
State's Exhibit Number 135. Can you
look at that and identify it, please?
A. Yes, sir.
Q. And can you tell us what that it is?
A. It's a note -- a yellow -- small yellow legal notebook type
cover. I don't know the official name,
but that's what I call it.
Q. All right. And have you
ever seen that piece of evidence before?
A. Yes, sir, on that date, July 28.
Q. And where did you see it?
A. In the training classroom at the Gwinnett County police
department.
Q. All right. Did you take
possession of that item on that day?
A. Yes, sir.
Q. And what was the purpose of taking possession of it?
A. To take photographs of some contents behind the flap and behind
the notebook inside here.
Q. Now, let me show you what we have had previously marked as
State's Exhibit Number 122 -- excuse me, 121A, B, C, and D. Can you look at those, please, and identify
them?
A. Yes, sir.
Q. And what are they?
A. Those are four one hundred dollar bills that I observed behind
the flap inside this notebook.
Q. All right. Did you remove
those hundred dollar bills from behind the flap?
A. Twice, I did. The first
time was just partially removed them with some tweezers. I pulled out three of the bills just
partially out about two or three inches outside the flap so I could take
photographs of them. I didn't remove
them completely.
Q. All right. And then did
you subsequently remove them completely?
A. Yes, sir, I did.
Q. How did you handle the bills when you removed them from behind
the legal pad the second time?
A. Both times I removed them with some big metal tweezers that we
have in our lab.
Q. All right. And what did
you do with them once you removed them from behind the bills or the pad?
A. I xeroxed them and then photographed them.
Q. And who did you turn those over to?
A. Mary Ann White, a supervisor in my unit.
Q. All right. For what
purpose?
A. For her to process for latent prints.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Lee, my name is Johnny Moore. I believe you know me.
A. Yes, sir.
Q. Were you present when there were any discussions about whether or
not to tell us about finding those bills?
A. No, sir.
Q. Okay. Now, State's
Exhibit Number 135, is that the pad that you removed those bills from?
A. The best I can remember, yes, sir. I didn't initial it like I normally do evidence because this
wasn't my evidence, but normally I would have my name and that on it, but the
best I can remember, it is.
Q. Okay. Did you take
possession of that pad and that folder to see if they could be fingerprinted?
A. No, sir.
MR. MOORE: Nothing further.
THE COURT: Redirect?
MR. PORTER: We have no redirect for Sergeant Lee, Your
Honor. He's working on another matter,
and we'd ask that he be allowed to return to that.
THE COURT: All right.
You can come down.
THE WITNESS: Thank you.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: Your Honor, at this time the state would
call Brian Reddy to the stand.
[The witness was called to
the courtroom.]
MR. PORTER: Could you take the stand right there,
please.
THE WITNESS:
MR. PORTER: Could you raise your right hand. Do you solemnly swear the testimony you're
about to give in this matter now pending shall be the truth, the whole truth,
and nothing but the truth, so help you God?
THE WITNESS: I do.
Whereupon,
having been called as a
witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY MR. PORTER:
Q. Could you state your name, please?
A. Brian Reddy.
Q. And how are you employed, Mr. Reddy?
A. I'm a Gwinnett County police officer in Gwinnett County.
Q. And what zone do you -- or not zone, but what division do you
work now?
A. I'm uniform patrol.
Q. And what area of the county do you patrol?
A. The Snellville area.
Q. How long have you been a Gwinnett County police officer?
A. Ten years this past July.
Q. And what did you do prior to being a police officer?
A. I was a firefighter in New Jersey.
Q. And is that where you're from?
A. Yes.
Q. How long have you been in Georgia?
A. Ten years.
Q. When you first came to Georgia, what type of work did you do?
A. I came -- I left the fire department and went right to the police
academy.
Q. Now, let me ask you, in April of 1993, were you assigned to the
northside precinct?
A. Yes, I was.
Q. And were you working on April 15 of 1993?
A. Yes, I was.
Q. Can you tell us what you recall about that night?
A. It was a heavy storm that night.
Q. Are you afraid of storms?
A. Yes.
Q. Why?
A. I was struck by lightning in '81.
Q. And what did you do as a result of these storms?
A. I always found a place to go.
Q. And what did you do on April 15?
A. I went to the fire station.
Q. About what time did you go to
the fire station?
A. It was about 8:30.
Q. Prior to that, had you seen Officer Chapel --
A. Yes.
Q. -- on that day?
A. I was with him at the parking lot of the church on Main Street.
Q. And do you recall seeing Officer Chapel again that night?
A. Not after I left the parking lot, no.
Q. Now, let me show you -- let me show you what I've had marked as
State's Exhibit Number 137. Can you
take a look at that, please.
A. Yes.
Q. And can you tell us what it is?
A. It's my daily log sheet for that day.
Q. Is that a copy of it?
A. Yes, it is.
Q. Is that a true and correct copy of it?
A. It looks like one, yes.
Q. All right. Officer Reddy, I'd like you to look
particularly between the hours of 8:30 and approximately ten o'clock, and can
you tell the jury where that log sheet says you were?
A. Well, at 9:45 to 9:50, there was an area check of Shadburn
Ferry. From 20:30 to 20:50, I was at
fire 14. From 21:30 to 21:32, the
Circle K on North Avenue, which is the -- on Highway 20 in Sugar Hill. And 22:00 to -- 22:00 to 22:20, the fire
station.
Q. Where were you really --
A. I was at the fire --
Q. -- from 8:30 on?
A. I was at the fire station.
Q. Why did you put it on the log sheet that you were somewhere else?
A. Well, it was a two-hour time period that I was sitting in the
station during the storm, and an error in judgment, I went ahead and filled in
some area checks to show activity on the sheet instead of not having anything
at all.
Q. What would have happened to you if you had filled in that you'd
sat in the fire station for two hours?
A. I probably would have been written up.
Q. Is that a disciplinary procedure?
A. Yes.
Q. Were you at the Circle K at 9:30?
A. No. No, I never left the
station.
Q. Now, Officer Reddy, on April 15 and the time prior, what was your
relationship with Mike Chapel?
A. We worked together. We
worked out together. We were on the
SWAT team together.
Q. Would you consider yourself friends?
A. Yes.
Q. Would you consider yourself friends today?
A. No.
Q. On April 15, did you have any reason other than the reason that
you've described to falsify the document that you've been talking about? Any reason other than what you've told the
jury?
A. No.
Q. On April 15, did you know that Emogene Thompson was dead?
A. No, I did not.
Q. When did you learn of that?
A. The following day.
Q. And how did you learn about it?
A. At the gym from Mike and Sergeant Stone.
Q. Now, let me ask you, on April 23, 1993, detectives came to your
house --
A. Right.
Q. -- and took a statement from you; is that correct?
A. Yes.
Q. Would you describe your
physical condition, particularly your level of sobriety, when that statement
was given?
A. I wasn't sober when it was given. It was on my off day. I
was with my parents. They'd been down
from Jersey.
Q. And what were y'all doing that day?
A. Well, we went to dinner, and I'd been drinking beer most of the
afternoon and through the evening.
Q. All right. When the
detectives came for the statement, did you see any significance of the
questions that they were asking? Did
you see that they were important in any way?
A. Yeah, they were important.
I guess, yeah.
Q. Did you tell the truth that day, the best you recalled it?
A. Yes.
Q. Do you have any different recollection of the night of the 15th
--
A. No.
Q. -- today?
A. No.
Q. Do you acknowledge that it came to your attention that later in
the investigation information was developed that you were wrong?
A. I was told I was, yes.
Q. And do you have any other -- do you have any other memory of the
night of the 15th?
A. No, only what I told -- I've told everybody what I know.
Q. Now, let me show you what's been marked as
State's Exhibit Number 131. Can you
identify that, please?
A. It's a .38 caliber RG handgun.
Q. How do you recognize that?
A. It looks like the one I gave to the prosecution last week.
Q. Is it the one you gave?
A. If I had a copy of the serial numbers, I'd be able to tell you. It just looks like another gun to me, but
I'm sure it's mine.
Q. All right. Did you in
fact turn over a gun to Investigator Hinson from my office?
A. Yes, I did.
Q. When did you tell my office about the existence of that gun?
A. It was either a Friday or a Monday at an interview with you.
Q. Did you -- had you been
previously asked about your ownership of guns?
A. Yes.
Q. Tell us how -- how did you come into possession of that gun?
A. This gun was given to me about seven or eight years ago by my
wife's uncle as a -- just as a gift. I
didn't purchase it. It was given to me.
Q. And what have you done with it in the intervening time?
A. I took it and put it up in a -- I have a little gun box that I
keep locked and that's where it stayed.
Q. How many times would you say that you've fired it in the seven
years you've owned it?
A. I don't know that I have.
Q. And at the time that you were interviewed by the Gwinnett County
police about your gun ownership, what type of gun did you believe that was?
A. I thought it was a Smith & Wesson.
Q. And did you tell the investigators that you owned a Smith &
Wesson .38?
A. No. They asked me if I
had a Charter Arms and I said, no, I didn't, that I had a Taurus.
Q. And do you in fact have a Taurus?
A. Yes, I do.
Q. And do you have any other firearms?
A. I have a 9 millimeter Beretta and a shotgun. I think it's a Smith & Wesson 3000.
Q. When did you realize or
when did you look to see the make of that weapon?
A. I was called by the prosecution, and they advised me that a
subpoena had been issued to area gun stores to see if I'd purchased any
weapons, so I went upstairs to check on my guns to make sure that it was a
Smith & Wesson and the other one was a Taurus, and I saw that it was an RG. I notified the prosecution that I had a RG
the following day.
Q. Did you turn the weapon over that day?
A. Yes.
Q. During the time that you owned it, has that gun ever been
altered?
A. No.
Q. Has any part been removed from it?
A. No. It's been in the --
I've never touched it. I mean, I've --
I haven't given it to anybody or taken it down out of the locker since I got
it.
Q. Has there been any repair done to it?
A. Not while I've had it.
Q. Has, for instance, the barrel been removed?
A. No.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Mr. Moore?
CROSS EXAMINATION
BY MR. MOORE:
Q. Officer Reddy, when Officer Cline came out to talk to you that
night, didn't he talk to you and determine that you understood what you were
doing?
A. Excuse me?
Q. When Officer Cline came to your house on the night of the 23rd of
1993 --
A. Uh-huh [affirmative].
Q. -- do you remember that?
A. Yes, sir.
Q. Didn't he talk to you to determine whether or not you knew what
you were doing?
A. Yes, sir.
Q. Are you trying to tell this jury you were so drunk you didn't
know what you were doing?
A. No, sir.
Q. You understood the questions he was asking you, didn't you?
A. Yes, sir.
Q. Okay. And you knew a
couple of days after Emogene Thompson's death that a police officer may have
been involved, didn't you?
A. No, sir. Not until
Sergeant Cline and Investigator Tkacik brought it to my attention.
Q. Okay. You weren't aware
from the road checks that witnesses were saying they saw a police car out
there?
A. No, sir.
Q. You didn't participate in those
road checks?
A. No, sir, I did not.
Q. And nobody told you about them?
A. No, sir.
Q. When did Officer Tkacik and Cline tell you that a police officer
may have been involved?
A. During the interview.
Q. That was on the 23rd; right?
A. Yes, sir.
Q. So you knew at that point they wanted to know where you were on
the 15th?
A. Yes.
Q. And it was important to you to know where you were on the 15th?
A. Yes.
Q. Okay. And you didn't remember on the -- at
that time that Mike Chapel was at the fire station; is that what you're telling
us?
A. Yes, sir.
Q. You don't remember Mike Chapel making fun of you because you
couldn't find Gwinnett County on the map, on the weather map?
A. No, sir.
Q. Now, you mentioned that on your log sheet, you were afraid that
you'd get written up?
A. That's correct.
Q. Who would have written you up?
A. A supervisor, a sergeant or a lieutenant.
Q. Sergeant Stone?
A. Possibly. Maybe
Lieutenant Knight.
Q. Sergeant Stone was present there at the fire station with you,
wasn't he?
A. Yes, he was.
Q. And you don't know exactly what time you left the fire station,
do you?
A. About 10:15, 10:20.
Q. Okay. That makes it
neatly after the crime, doesn't it?
A. It was about 10:15, 10:20.
Q. Okay. Was anybody else
that says you were there that late?
A. There were firemen in there.
Q. Now, in your statements you say that Mike was astonished when he
learned about the news of Emogene Thompson's death?
A. Right.
Q. Is that true?
A. Pretty much surprised, yes.
Q. So did you stay at
the fire station after everybody else left?
Is that your testimony?
A. After Sergeant Stone left, yes.
Q. All right. Would you come
down off the stand, please, and let me show you a map here.
A. [The witness stepped down from the stand.]
Q. Here's Peachtree Industrial Boulevard.
A. Okay.
Q. Are you oriented to that?
A. Yes.
Q. Okay. Is that in your
zone?
A. Yes, it is.
Q. Okay. And in 1993, I
mean, not now, but in 1993, was that --
A. Yeah, 93, 321, yes.
Q. Okay. And show the jury where the Circle K is that you're referring
to.
A. It would be about there.
Q. And where's the Gwinnco Muffler Shop?
A. About right there.
Q. And how far apart is that?
A. A mile and a half, two miles.
Q. You can go back up.
A. [The witness returned to the stand.]
Q. Do you remember your statement telling the -- Officer Cline and
Sergeant -- I mean, Officer Cline and Lieutenant Tkacik that you didn't go into
Sugar Hill that night?
A. Yes, sir.
Q. And that wasn't true, was it?
A. Yes, it was.
Q. Did you tell them that my log sheet's going to show I did, but I
really didn't?
A. Yes, I did.
Q. You told Sergeant Cline and Officer Tkacik that?
A. Yes, I did.
Q. On the 23rd?
A. Yes, sir.
Q. I'll let you look at your statement, if you would, Defendant's
Exhibit Number 70. Do you want to read
it?
A. Sure.
Q. Okay.
A. [Reads document]
Q. Have you had time to read your statement now?
A. Yes, sir.
Q. Okay. Now, nowhere in
that statement did you tell Officer Tkacik or Lieutenant Cline that your log
sheet was going to show you were down there that night but you were not there?
A. They didn't put it in there.
Q. They didn't put it in there?
A. That's correct.
Q. But you told them that?
A. Yes, I did.
Q. You told them that the night of the 23rd that your log sheet was
going to show you were in Sugar Hill?
A. That was the first thing they brought to my attention was my log
sheet.
Q. But they didn't put any of that in your statement?
A. Apparently not, sir, no.
Q. Now, you were prepared to
lie on an official police document on your log sheet back in April 15, 1993,
weren't you?
A. I just -- I didn't look at it as a lie at that time, sir, no.
Q. You don't think it's a lie if you're out here taking the
taxpayers' money and falsifying records?
A. No, sir. I just filled in
some blanks. That's all.
Q. You just filled in some blanks?
You think they pay you just to fill in blanks and falsify records?
A. No, sir.
Q. When the police asked you about the weapon back in 1993, who
asked you about that?
A. I believe it was Investigator Burnette.
Q. And didn't he ask you if you owned an RG or a Charter?
A. I believe it was just Charter that he asked me. I don't know anything about an RG.
Q. Being a police officer, you know a good bit about guns, too,
don't you?
A. No, sir.
Q. You don't receive training with them?
A. Just the ones that I'm issued.
Q. Okay. Were you ever
issued a Smith & Wesson revolver?
A. Yes, sir, a .357.
Q. Back before they had the automatic weapons?
A. Yes, sir.
Q. Smith & Wessons are a much better quality gun than that gun
there in front of you, isn't it?
A. I wouldn't know.
Q. Did you ever drive the spare unit that was up at the precinct?
A. Not that I recall, no.
Q. Did you drive it at any time in 1993?
A. I may have.
Q. Did you drive it around the time of the crime in 1993?
A. No. I was in my car.
Q. Okay. I'm going to show
you what's been marked as Defendant's Exhibit Number 82 and ask you if you
could examine that.
A. Okay.
Q. Is that one of your log sheets?
A. Yes, sir.
Q. And what date is that?
A. That's the 3rd of April.
Q. Okay. Can you tell from
that what vehicle you were driving?
A. 88. That's a spare unit.
Q. That's a spare unit?
A. Yes, sir.
Q. Okay. Was that a yellow
and white car?
A. I don't remember.
Probably.
Q. The old style yellow and white?
A. The old -- yes. Yes.
Q. Are you still at the northside precinct?
A. No, sir.
Q. Now, on the log sheet you've got there in front of you, did you
respond to a call that Officer Chapel did?
A. The one that's marked in yellow?
Q. Did you respond to a call on Powers Road?
A. Yes.
Q. Were you and Officer Chapel backup for one another at that?
A. You'll have to refresh my memory about the type call. It's a -- I'm a backup on a domestic
dispute, and that's in areas that would have been Mike's -- Mike's zone, so,
yeah, I would have been a backup if --
Q. I'm going to show you what's been marked as Defendant's Exhibit
Number 73.
A. Okay.
Q. Can you determine from that Defendant's Exhibit Number 73 whether
that's the same call you responded to on your log sheet?
A. The address on this says Level Creek. This one's Power Avenue. I don't -- oh, okay.
Q. Can you determine from that?
A. I remember the names and Power Avenue. I think so.
Q. It's the same address, isn't it?
A. I think so, yeah.
Q. It's the same address?
A. As the witness, yes.
Q. Okay. I'm going to ask
you to step down again, if you would, Officer Reddy.
A. [The witness stepped down from the stand.]
Q. This is a map of the Gwinnett County police precincts. If you would, just stand a little bit to the
side where the jury can see.
A. Okay.
Q. And if you could, point out to
the jury where your zone was at that time in 1993.
A. Okay. It would be here.
Q. Up here?
A. Yes, sir.
Q. And does that include the Gwinnco Muffler Shop?
A. No.
Q. Your zone did not include that in 1993?
A. Which log sheet are we talking about here? The one that has 321 or 341?
Q. I'm talking about on the 15th, April 15.
A. Oh, okay. That would be
this zone here.
Q. At the time of the murder?
A. Right.
Q. And that includes the Gwinnco Muffler Shop --
A. Yes, it does.
Q. -- is that correct?
A. Yes.
Q. That was in your zone?
A. Yes. [The witness
returned to the stand.]
Q. You and Mike Chapel are
about the same size, aren't you?
A. About, yes.
Q. How tall are you?
A. 6 foot 4.
Q. How much do you weigh?
A. 285.
Q. Did you ever have any contact with Michael Thompson, Ms.
Thompson's son?
A. No.
Q. Do you know where he worked at?
A. No, sir.
Q. Did you know him when you saw him?
A. No. I don't know what he
looks like, no. I've never met him.
Q. I'm going to show you what's been marked as Defendant's Exhibit
Number 83 and ask you if you can identify that.
A. Okay. This would be my
log sheet for April 12.
THE COURT: What year is that?
THE WITNESS: '93, Your Honor.
THE COURT: All right.
Go ahead, please.
BY MR. MOORE:
Q. Okay. On April 12, 1993,
did you have occasion to go to the Subway shop there in Buford?
A. Yes, sir.
Q. Do you recall who was working?
A. No, sir.
MR. MOORE: That's all I have, Your Honor.
THE COURT: Redirect?
REDIRECT EXAMINATION
BY MR. PORTER:
Q. Officer Reddy, had you ever met Emogene Thompson?
A. No, sir.
Q. Have you ever seen Emogene Thompson?
A. No, sir, not before the incident, and only a picture afterwards.
Q. Did you kill Emogene Thompson?
A. No, sir.
Q. Thank you.
MR. PORTER: That's all the questions I have.
THE COURT: Recross?
RECROSS EXAMINATION
BY MR. MOORE:
Q. Officer Reddy, did anyone ever Luminol your car?
A. Excuse me?
Q. Did anybody ever Luminol your car?
A. What is that?
Q. That's a substance used to detect blood in a vehicle?
A. No, sir.
Q. Did anybody ever check your rain gear?
A. No, sir.
Q. Did anybody ever ask you to give it to them to check it?
A. No, sir.
MR. MOORE: Nothing further.
THE COURT: Anything else of this witness?
MR. PORTER: Nothing further, Your Honor. We would ask that Officer Reddy be placed on
call, but be allowed to go home. He
works a late watch and is on duty.
THE COURT: All right.
You can come down.
THE WITNESS: Thank you, Your Honor.
[The witness stepped down
from the stand.]
THE COURT: Call your next witness, please.
MR. PORTER: Your Honor, the next two witnesses are from
the Medical Examiner's office and they had a prior engagement. We would request a lunch recess at this time
and allow them to come after lunch. We
would then move -- Your Honor, I could state that based upon my schedule, there
are approximately four or five witnesses for the state before we rest.
THE COURT: Would you approach the bench, please?
[Counsel approached the
bench and the following conference ensued outside hearing of the jury.]
THE COURT: How long do you think they're going to
be? These witness that --
MR. PORTER: The medical examiner is going to be
relatively quick.
THE COURT: Is that Frist?
MR. PORTER: It's Hal Bennett and Frist. And Frist is only going to testify to the
hypothetical about the time between the shots.
THE COURT: Okay.
MR. PORTER: And the survival. Then we're going to move to Burnette, Goff, Herrin.
MS. ROGAN: Why is he going to testify? Didn't we go into that the first time he was
there?
MR. PORTER: I wasn't allowed to set up a hypothetical
because I had to put the evidence in.
THE COURT: All that was reserved. We went over the recalling a couple of
witnesses.
MR. MOORE: He did mention he was going to recall him.
MS. ROGAN: I thought it was about blood spatter is what
I recall.
THE COURT: How long do you think they're going to be,
Mr. Porter?
MR. PORTER: The medical examiner?
THE COURT: Well, all of them. What kind of time are we talking about?
MR. PORTER: Your Honor, Keith Goff is the first
technician on the DNA. I mean, we may
move into the DNA this afternoon. Mr.
Moore examined -- he examined Dr. Herrin for a long time.
THE COURT: Okay.
Do you think tomorrow is a likely day to finish up?
MR. PORTER: I would say with almost absolute certainty.
THE COURT: You still think a week or so is what you're
looking at?
MR. MOORE: Your Honor, we were working on it last
night. Some of the witnesses have been
called, like Officer Reddy, so we won't be calling him, so we'll go over it
again. We're going to try and keep this
as quick as we can because we understand the jury and everybody wants to finish
this case.
MS. ROGAN: It could be three days for our case.
MR. MOORE: Yeah.
THE COURT: Okay.
I was just trying to get some idea.
However long it takes, it takes.
Just sort of get a ballpark idea where we're going to be timewise.
MR. SMEAL: Your Honor, I might mention that the last
witness, Dr. Herrin, is in Macon today.
We have him on call. We've told
him that it's unlikely we'd reach him today, but he is on call.
THE COURT: Okay.
MR. PORTER: Well, I think it's reasonable to say if we
go Bennett, Frist, Burnette, and then Goff, we're not going to get to Herrin.
THE COURT: Yeah.
That sounds like a pretty full afternoon.
MR. MOORE: It sounds like it to me, too.
THE COURT: Okay.
Your folks will be ready at one o'clock?
MR. PORTER: Yes, sir.
THE COURT: Okay.
All right. We'll take until one
o'clock and then we'll recommence.
MS. ROGAN: Thank you.
THE COURT: Okay.
[Bench conference
concluded.]
THE COURT: We're going to recess for lunch at this
point. We'll recess until one o'clock
for lunch. I'll ask you to leave your
pens, pads, and notes in your seats.
They'll be waiting on you when you return.
I'll remind you again you've
heard a portion of the case presented, but not all of it. You ought to continue to keep an open mind
in the case. You ought to continue to
wait, look and listen without any discussion amongst yourselves or any
deliberations until you're in the jury room with your fellow jurors. We'll be in recess until one o'clock.
[The jury was excused for
the lunch recess.]
THE COURT: From a sort of planning perspective, Mr.
Moore and Mr. Porter, if you think your case is likely -- it looks like we're going
to wind it up tomorrow, and if Mr. Moore's -- if three days is a ballpark at
what we're looking at -- of course, I guess we all have the potential for
rebuttal and surrebuttal and I don't know where that leaves us, but if, I
guess, if it fell that way, it would be nice to have the evidence in Saturday
and everybody get ready for Monday for closing argument and that sort of
thing. It might be sort of -- that
would be nice, I guess, if we can work it, but we'll see.
All right. Anything else at this point, Mr. Porter?
MR. PORTER: Nothing from the state, Your Honor.
THE COURT: Mr. Moore?
MR. MOORE: Not at this time, Your Honor.
THE COURT: All right.
We'll be in recess until one o'clock.
[Lunch recess]
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4883
AFTERNOON
SESSION
[Proceedings
resumed after the lunch recess with the jury not present.]
MR.
PORTER: Your Honor, may we approach?
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued.]
MR.
PORTER: Given the fact that we expect
to rest the state's case tomorrow and it's beginning to sort of wind down, one
of the things that the state suggests is that some consideration be given to
how we're going to handle the evidence in terms of packing it back into that
jury room. One suggestion that came to
mind over lunch is maybe to set it up out here.
THE
COURT: You're talking about once they
start deliberating?
MR.
PORTER: Once they start deliberating,
and then if they want to see it, it can be set up, the courtroom can --
THE
COURT: I'm not inclined to split it
off. I'm not inclined to separate the
exhibits from the jurors.
MR.
PORTER: Well, Judge, I look at that car
seat, and I've been in those jury rooms.
I've been in those jury rooms for mock court stuff and I don't think
that car seat is going to fit in the jury room.
THE
COURT: Well, I don't know. What we could do is, except for that, we
might leave it out.
MR.
PORTER: Well, and I look at these.
MS.
ROGAN: And the tire.
THE
COURT: Or take it in and let them have
a -- let them sit down in it and
whatever else they want to do with it and then bring that back out and tell
them if they want it again, we'll deliver it in there to them.
MR.
PORTER: Well, I --
THE
COURT: The rest of it they can pile up
in the middle of the table, it looks to me, except the tire. I guess the tire and the seat.
MR.
PORTER: The tire and the seat.
THE
COURT: Yeah. I noticed nobody published the tire.
MR.
PORTER: Well, I think rolling it out
was enough.
MR.
MOORE: We couldn't pass that thing
around.
MR.
PORTER: But I just, you know, I think
that we probably need to start thinking about some kind of a way of handling
some of the larger exhibits. I know,
for instance, in a case I tried a few years ago, we had furniture and carpet,
and what we did was we basically left it set up here in the courtroom, and if
the jury wanted to see it, we allowed them to come back.
THE
COURT: Yeah. We've only got a couple of items that will be a problem anyway
and that's the car seat and the tire.
MR.
PORTER: The tire.
THE
COURT: I mean, it seems to me if they
want them, we might roll them in the jury room for a little while and let them
tell us when they want them out and bring them back in the courtroom and --
MR.
PORTER: I'll handle it however you
want, but it's something that we probably need to go over.
THE
COURT: I mean, that's the only really
evidence we've got that's sort of massive, isn't it?
MR.
PORTER: Well, there's a big -- there's
a couple of big diagrams even that -- of course, I don't know what's going out
and what isn't but --
THE
COURT: Yeah. Well, I don't either, but let's just see.
MR.
PORTER: There's a big old aerial
photograph and that kind of stuff.
THE
COURT: Okay.
MR.
MOORE: They don't really take up much
room. They can put them against the
wall.
THE
COURT: Yeah. I don't think that will be a big problem.
MR.
PORTER: I don't think so either, but we
just -- I think we need --
THE
COURT: Okay. Let me ask, do you still think you're going to need a full day
tomorrow or do you think you're likely to be through earlier than that?
MR.
PORTER: I don't think from our
perspective of actually presenting the evidence, it's going to take a full day,
but --
THE
COURT: I think my inclination is going
to be if we finish up in the middle today or something tomorrow is give the
jury a half day off, let's address any motions we got to take care of, and then
if we've got anything left in the afternoon, give you the time to get your stuff
together and then start the next morning.
MS.
ROGAN: Suits us.
MR.
MOORE: That would be good because we've
been trying to figure how to tell witnesses --
THE
COURT: Yeah. Well, I mean, you know, I know you've got to get them together,
and I know everybody's been pushed for time, so if we finish up early, you
know, in the middle of the day or something, then that would be my inclination
for everybody. It might be a good time
for everybody just to kind of pause and get ready to shift gears on the defendant's
case, so I don't have a problem with that if we do. Of course, it may be late tomorrow before we get through. Who knows?
MR.
MOORE: I understand, Judge.
MR.
PORTER: Your Honor, the only thing that
we might consider is given that, we might want to think about finishing today
-- I don't know, Johnny, if it's the most likely thing.
THE
COURT: Well, we may want to try to push
on and finish everything except -- what's his name?
MR.
PORTER: Herrin, George Herrin.
THE
COURT: Herrin.
MS.
ROGAN: I don't think either one of
those DNA witnesses are going to be too quick.
MR.
PORTER: Well, yeah, I understand
that. I don't know -- I mean, it
depends on -- I think we're going to have a better idea -- it will depend on
how -- what time we put Goff on the stand and where you want --
THE
COURT: Is Herrin going to be available
this afternoon if we reach him?
MR.
PORTER: He has an hour and a half drive
up here, Your Honor.
THE
COURT: Okay.
MR.
PORTER: And as it gets closer and
closer, we're running out of time to get him in.
THE
COURT: Okay. But we're in a position at least to finish everything except
Herrin today?
MR.
PORTER: Yes, sir. Well, I can't say that for certain, but I
have the witnesses here but --
THE
COURT: Well, I mean, assuming we get
through all of them. And then Herrin,
how long do you think he's likely to be on direct?
MR.
PORTER: On direct, I don't know. How long was he on in the hearing?
THE
COURT: I can't remember.
MR.
PORTER: On direct, I think he was only
on an hour or something like that.
THE
COURT: Okay.
MR.
MOORE: Yeah.
MR.
PORTER: And I think it was about three
or four hours cross-examination.
MR.
MOORE: Yeah. I don't know how y'all intend to use him this time, because he
went first last time and he explained everything. I don't know if y'all are going to have Goff do that this time or
not, so --
THE
COURT: Okay. Well, it sounds like we're in good shape, one way or the other,
to wind up the state's case tomorrow, sounds like. Okay.
MR.
PORTER: Your Honor, I think the only
thing that would happen is that we would be either left over with more of
Johnny's cross-examination tomorrow morning of Goff, and that would leave
Herrin.
THE
COURT: Well, why don't we do this at
this point, Johnny? Why don't we -- it
appears very unlikely we're going to reach Herrin today. Why don't we just plan on -- you know, you
can just have your witnesses ready not before -- let's see, what's
tomorrow? Wednesday. Thursday.
And just plan on -- we'll just say -- you don't have to call anybody
before Thursday morning.
MR.
MOORE: Okay.
THE
COURT: And then that will -- we'll just
resolve -- and if we run on past that with the state's case, we'll run past it,
but at least you can let your folks know it won't be before Thursday.
MR.
MOORE: Okay.
THE
COURT: If we finish up a little early
tomorrow, then everybody can take the rest of the day off, and we'll get ready
for the next day.
MR.
PORTER: What does that do to your
witness problem?
MR.
MOORE: I'm sorry?
MR.
PORTER: What does that do to your
witness problem?
MR.
MOORE: Well, we really didn't want to
use our expert first anyway. We wanted
to use him toward the end of the case.
THE
COURT: It may all work out.
MR.
MOORE: It may work out. If he's back in town, I'll check. I've got a call in to him right now.
THE
COURT: Okay.
MR.
MOORE: Maybe at a break I can check
with him then.
MR.
PORTER: I just remembered that Johnny
had mentioned a witness problem.
MS.
ROGAN: Yeah.
MR.
MOORE: Yeah. The judge says take the day off.
I wish we could.
THE
COURT: Well, half a day. That's a day to me.
MR.
MOORE: When you say take it off,
though, we're going to be working. I
mean, I appreciate you giving us the opportunity to work.
THE
COURT: I understand. I understand. Well, we are. Anything
else, Mr. Porter?
MR.
PORTER: No, sir.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Is the defendant ready?
MR.
MOORE: We're ready, Your Honor.
THE
COURT: Bring the jury back, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Call your next witness, please,
Mr. Porter.
MR.
PORTER: State would call Hal Bennett to
the stand.
[The
witness was called to the courtroom and stepped to the stand.]
MR.
PORTER: Could you raise your right
hand, please. Do you solemnly swear the
testimony you're about to give in this matter now pending, shall be the truth,
the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. PORTER:
Q. Could you state your name, please, and spell
your last name for the record?
A. My name's Harold Bennett, B-e-n-n-e-t-t.
Q. How are you employed, Mr. Bennett?
A. I'm a forensic investigator with the
Gwinnett County medical examiner's office.
Q. How long have you been doing that type of
work?
A. I've been with the office since we opened
six years ago.
Q. Can you tell me, what does a forensic
investigator for the medical examiner's office do?
A. When a person dies at a scene, we go to the
scene and investigate the area around the death in order to look at the body to
get information to give to the medical examiner in aiding in the cause and
determining -- determining the cause and manner of death.
Q. Is it also the responsibility of the
investigator on the scene to arrange for the transport of the body to the
morgue?
A. Yes, sir, it is.
Q. Could you describe, in general, how do you
make -- how do you transport a body from a particular scene to the morgue? What steps do you take?
A. The -- when we arrive at the scene, we do an
initial assessment of the scene to determine whether or not it's a homicide,
suicide, natural death, and proceed with procedures that we go through from
there. If it's a homicide or a suicide,
we -- the crime scene people take photographs and process around the body
itself in order to document the location of evidence. After all that's done, then we take the body and place it into a
sterile sheet and then place it into a disaster pouch. At that time, it's placed in the vehicle and
transported to the science center.
Q. Now, you referred to a disaster pouch. Is that what's normally referred to as a
body bag?
A. Yes, sir.
Q. And then once the body is transported to the
forensic center, we've been referring to it as the morgue --
A. Okay.
Q. -- is there someone who's responsible for
it?
A. Upon the time when it reaches the morgue,
the investigator who takes it in places the body into a cooler that we have
located in the morgue area. The body is
logged into a log book and a sheet on the door identifying the body, depending
on the circumstances of whether or not we would secured the door that the
body's in or not at that point.
Q. All right.
Now, I'd like to call your attention to the morning of April 16, 1993,
were you the forensic investigator on the scene at the death of Emogene
Thompson?
A. Yes, sir, I was.
Q. All right.
And were you responsible for the handling and transport of the body of
Ms. Thompson?
A. Yes, sir, I was.
Q. Could you describe for the jury what did you
do once the crime scene technicians were done with their work?
A. Once the crime scene technicians had
finished their portion of the investigation at the scene, I opened the car
door, because it was my responsibility to remove the body or handle it at that
point. After opening the door, being
gloved and everything to avoid contamination, I disconnected the seat belt on
the victim and pulled her out of the door and was assisted by one of the ID
techs, who was also gloved. We placed
her from the car directly onto a sterile sheet and then wrapped the sheet about
her and then placed her into the body bag and sealed the body bag.
Q. And did you transport Ms. Thompson's body to
the morgue?
A. Yes, sir, I did.
Q. All right.
Did you remain in constant custody of the body from the time it was
removed from the scene until the time it got to the morgue?
A. Yes, sir, I was.
Q. Did you remove anything from the disaster
pouch after you had sealed it up?
A. No, sir.
The bag was not opened again until Ms. Thompson was placed on the morgue
table, with Dr. Frist, who was the medical examiner that particular day,
present.
Q. All right.
Did you at any time prior to the removal of the body obtain any samples
from the body of Ms. Thompson?
A. No, sir, I did not.
Q. When you arrived at the morgue, did you
remain in constant attendance of the body?
A. Yes, sir, I did.
Q. And can you describe for the jury what we
mean by constant attendance?
A. When I arrived at the morgue, we had another
autopsy that was being performed at the time.
I transferred Ms. Thompson's body to the morgue table in the coolers and
there -- was there at -- until we completed the autopsy on the other body, at
which time I moved Ms. Thompson in the body bag over to and onto the morgue
table for Dr. Frist. I opened the bag and
we proceeded with the autopsy.
Q. All right.
Now, Investigator Bennett, at any time while Ms. Thompson's body was in
your possession at the morgue, did anyone approach or touch that body in the
disaster pouch?
A. No, sir.
Nobody bothered it.
Q. Did you yourself go into the disaster pouch
at that time and touch the body or interfere with it in anyway?
A. No, sir, I did not.
Q. Did you assist in the autopsy that was
performed on Ms. Thompson's body?
A. Yes, sir, I did.
Q. All right.
At that time, did anyone other than Dr. Frist, yourself, and, I believe,
Investigator Dempsey, touch the body?
A. No, sir.
We were the only three people involved.
Q. All right.
And what was your function in that?
A. My function is I, during the -- I take the
photographs at the direction of Dr. Frist.
I write or make labels, I write down body weights on the body diagram
sheets and information that Dr. Frist gives me in order for him to use in
dictating the autopsy report.
Q. And once the autopsy was completed, what
happens to the body then?
A. When the autopsy was completed, she -- the
bag was resealed and she was placed into the morgue cooler there in the morgue.
Q. All right.
Let me ask you, were you present when Investigator Dempsey removed the
vials of blood from the body of Ms. Thompson?
A. Yes, sir, I was.
Q. Did you assist in the labeling of those
vials?
A. I -- honestly, I do not remember. Sometimes I'll put the labels on the
bottles, but not -- in this particular case, I do not remember.
Q. All right.
And let's talk about the coolers that you've described. Are they secured?
A. Yes, sir.
Each -- there's four coolers and each cooler is secured by or can be
secured by a lock on the latch that when locked, the doors are incapable of
being opened.
Q. Who has keys to those coolers?
A. Just the medical examiner personnel.
Q. Okay.
And during the time that Ms. Thompson was in the coolers that you've
described after the autopsy, were you present the entire time?
A. Yes, sir, I was.
Q. And did anyone approach the body or touch
the body after the autopsy?
A. No, sir.
Only myself and, I think, Investigator Dempsey when we placed her back
in the cooler after she was sealed in the bag.
Q. All right.
And did anyone approach the cooler until the body was released to the
funeral home?
A. No, sir.
Q. And approximately what time was the autopsy
completed?
A. The autopsy was finished at about four p.m.
and -- at 3:30, four p.m., in that time frame.
Q. And was the body eventually picked up by a
funeral home?
A. Yes, sir.
Q. And what time was the body picked up by the
funeral home?
A. The body was picked up at 4:23 p.m. by
Flanigan Funeral Home in Buford.
Q. And you don't know what happened to it after
that, other than what would be the normal course of business?
A. Other than just the normal cause of business
from the funeral home.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Ms. Rogan?
CROSS EXAMINATION
BY
MS. ROGAN:
Q. Hello, Mr. Bennett.
A. Afternoon.
Q. I'll be right with you.
MS.
ROGAN: I just want to get these
exhibits marked.
[Defendant's
exhibits were marked for identification by the court reporter.]
MS.
ROGAN: Thank you.
BY
MS. ROGAN:
Q. We've met before when we came to meet with
you and Dr. Frist. Do you remember?
A. I believe.
Q. In July?
A. Uh-huh [affirmative].
Q. I'm Elizabeth Rogan. I'm one of Mr. Chapel's attorneys. You've described to us the scene at the
Gwinnco Muffler Shop when you assisted or actually arranged for transporting Ms.
Thompson's body. This sheet -- you put
her on a sterile sheet on the ground; is that your testimony?
A. Yes, ma'am.
Q. Okay.
And so it was on the ground near her car?
A. Yeah.
Yeah. Right outside the door of
the car. Yes, ma'am.
Q. Okay.
And at that point the car had been examined by the ID technicians for
the police department?
A. That's correct.
Q. To your knowledge had any cleaning of the
car been done at that point?
A. No.
Q. Okay.
And then I believe you testified that you transported Ms. Thompson's
body to the morgue for the performance of the autopsy?
A. That's correct.
Q. What happened to the sterile sheet that she
had been placed on initially?
A. She was left on the sheet.
Q. And so that was transported along with her
--
A. With her in the body bag.
Q. -- in the body bag?
A. Yes, ma'am.
Q. And once you got to the morgue, I believe
you testified, you then placed her onto the table?
A. We have a rolling gurney that we can place
them on until we move her on to the morgue table, yes.
Q. Okay.
I'm going to show you a couple of exhibits just for you to
identify. First one is Defense Exhibit
88 and ask you if you can identify what that is.
A. Uh-huh [affirmative]. This is the morgue table in our morgue.
Q. Okay.
Is that a true and accurate representation of what the morgue table in
the morgue looks like?
A. Yes, ma'am, it is.
Q. And Defense Exhibit 84, could you tell us
what that is?
A. That's also a picture of the morgue table
taken from a different angle.
Q. And Defense Exhibit 87?
A. That shows the autopsy sink where the organs
are placed for examination, the scales that we use to weigh them, the x-ray box
in the background, a trash can, and a biohazard container.
Q. Okay.
And Defense Exhibit 86?
A. It looks like a picture of the trash can in
the morgue.
Q. Okay.
Are these fair and accurate representations of what the inside of a
morgue looks like?
A. At this time, yes, ma'am.
Q. Okay.
MS.
ROGAN: Your Honor, I'd like to tender
Defendant's Exhibits 84, 86, 87, and 88 into evidence at this time.
THE
COURT: I don't show an 86. I show a -- I noted a 84, photo of the
table, 87, of the equipment, and 88, table.
Is there an 85 or 6?
MS.
ROGAN: 85 is one that I had marked but
it's duplicative of one I already have.
THE
COURT: Okay. And 86?
MS.
ROGAN: 86 has --
THE
COURT: Was that identified?
MS.
ROGAN: Yes.
THE
COURT: And what was it?
MS.
ROGAN: It's a picture of the trash can
next to the biohazard waste receptacle.
THE
COURT: All right. Any objection to Defendant's 84, 86, 87, and
88, Mr. Porter?
MR.
PORTER: Your Honor, we would have no
objection if the officer is prepared to testify that it looked the same in
1993.
THE
COURT: I believe you're right.
BY
MS. ROGAN:
Q. Do these pictures depict what the autopsy
room at the morgue looked like in 1993?
A. Close.
Except for the biohazard container and -- that's not the same.
Q. Okay.
What did the biohazard container look like at that time?
A. At that time it was a wax-lined cardboard
box similar to that, lined with a red bag on the inside.
Q. Okay.
A. And it was a different company than what we
use now.
Q. Was it in the same position that the one
that's being used now --
A. The same location.
Q. -- was in -- location?
A. Yes, ma'am.
Q. That's what I mean. The same location against the wall?
A. Uh-huh.
Yes, ma'am.
Q. All right.
MR.
PORTER: Your Honor, with that
stipulation, the state has no objection to the admission.
THE
COURT: Defendant's 84, 86, 87, and 88
are admitted without objection. Go
ahead, please.
MS.
ROGAN: May I publish them to the jury,
Your Honor?
THE
COURT: Yes.
[Ms.
Rogan presenting to the jury]
BY
MS. ROGAN:
Q. Now, if you could just describe again what
the biohazard receptacle looked like in 1993.
I believe you said it was a cardboard box with a lining of some sort?
A. It was similar in size to the one depicted
in your pictures. It was cardboard,
waxed cardboard to keep moisture in or out, depending on, you know, on which
side of the box it was on, and it was lined with a red biohazard bag indicating
that there is biohazard inside.
Q. Okay. What type of covering did it have?
A. It had a box-type covering that went over
it, also, and lined with the red plastic for biohazard.
Q. Was the box also made of a waxed cardboard?
A. Yes, ma'am.
Q. And so that differs somewhat from what's depicted
in the photographs which shows more of a plastic receptacle with a sort of
tight-fitting lid on it?
A. Just a plastic lid, yes, ma'am.
Q. Okay.
Was that receptacle marked in any way to indicate that that was where
biohazardous material would be placed?
A. Yes, ma'am.
It had a biohazard label on the box.
Q. If you could just step down for a moment,
please.
A. [The witness stepped down from the stand.]
Q. I'd like to have you look at this. This has previously been admitted into
evidence as Defendant's Number 65, and ask you, if you can, first of all,
recognize what that depicts?
A. It looks like an aerial view of the Gwinnett
County police department.
Q. Okay.
And if you could, just stand in front of the jury and show -- we'll do
one-half of the jury at a time -- show the jury here where on this picture the
morgue room or rooms are.
A. Their location is in this back corner of the
back building -- it's the front corner of the back building here.
Q. Thank you, Mr. Bennett. You can resume the stand.
A. [The witness returned to the stand.]
Q. Now, you indicated that when you were
removing Ms. Thompson's body from the car, you were gloved. I presume you meant by that you had plastic
gloves on?
A. Yeah.
Rubber gloves, yes, ma'am.
Q. Rubber gloves to avoid contamination --
A. Yes, ma'am.
Q. -- from any of the body fluids or debris
that might have been at the scene?
A. Mainly from body fluids, yes, ma'am.
Q. And you were assisted in that endeavor by
one of the ID technicians?
A. That's correct.
Q. And do you recall which ID technician that
was?
A. No, ma'am, I do not.
Q. Was it one of the female technicians?
A. I -- I really don't remember.
Q. Okay.
A. To the best of my knowledge, I don't
remember.
Q. All right.
Do you remember if it was a man or a woman?
A. No, ma'am, I do not.
Q. Okay.
Do you recall whether or not that person was wearing gloves?
A. Yes, ma'am.
Q. Okay.
So that person had gloves --
A. That's the procedure. They have to.
Q. All right.
Then when you got to the morgue where the autopsy was to be performed,
did you continue to wear gloves inside the morgue room?
A. Not until -- I didn't at that point. Only the -- only the people handling the
body would be gloved and gowned.
Q. Only the people handling the body?
A. Yes, ma'am.
Q. Okay.
And that would be Dr. Frist?
A. Dr. Frist and Investigator Dempsey, who is
also the autopsy tech.
Q. Okay.
So Investigator Dempsey did assist with the autopsy and handled the body
--
A. Yes, ma'am.
Q. -- along with Dr. Frist? But you, however, did not handle the body?
A. No, ma'am.
Q. So you did not have any gloves on?
A. No, ma'am.
Q. Did you have any mask on?
A. No, ma'am.
Q. Any covering for your shoes?
A. No, ma'am.
Q. Were there some investigators from the
district -- I mean, for the police department attending the autopsy?
A. There -- some investigators came in, yes,
ma'am.
Q. And do you recall who they were?
A. I believe Investigator Burnette was one,
since he was the lead investigator on the case. He was permitted in, and I'm not -- I don't recollect any of the
others, who the others were.
Q. Do you remember whether or not Sergeant
Cline was in attendance at the autopsy?
A. I'd have to be honest and say I don't
remember.
Q. Do you recall whether Investigator Burnette and
whoever else it was who attended the autopsy wore gloves while they were there?
A. No, ma'am.
Q. Do you recall whether or not they had any
covering on their shoes?
A. No, ma'am.
There was no reason for them to.
Q. Okay.
Because they weren't going to go near the body?
A. They weren't near the body, no, ma'am.
Q. Do you remember where they were in the room
while the autopsy was going on?
A. We -- on the far wall from the autopsy
table, there's two tables and three chairs that anybody who's coming in, investigators
or that, they're restricted over to that area, uh-huh [affirmative].
Q. Okay.
And the pictures are being passed around, do you recall whether or not
the chairs that were depicted in the picture behind the table would be the
chairs that spectators can sit in?
A. No, ma'am.
These aren't the ones.
Q. Where were the chairs, if you recall, inside
the room?
A. The picture that depicts the morgue table
where you see the cabinets behind it --
Q. Yes.
A. -- the chairs would be back to the right and
behind the person taking the picture.
Q. I'll wait for the pictures to come back
around and have you show it again.
While we're on that, there is a cabinet in the corner of the room that
you're just describing.
A. A cabinet?
Q. A desk with a computer on it.
A. A desk, yes, ma'am.
Q. Okay.
MS.
ROGAN: I have one more picture I'd like
you to -- just get this marked.
[Defendant's
exhibit was marked for identification by the court reporter.]
BY
MS. ROGAN:
Q. I'm going to show you, Mr. Bennett, what's
been marked as Defendant's Exhibit 89.
Do you recognize what that is?
A. Yes, ma'am.
Q. Okay.
Do you know where that is in the autopsy room?
A. Well, this particular one was sitting on top
of that particular desk that you were making reference to and we had another
one that was on the front door for the morgue going in.
Q. Okay.
Do you know if it's still on the front door?
THE
COURT: What is it? I don't believe it's identified.
MS.
ROGAN: I'm sorry.
BY
MS. ROGAN:
Q. Can you tell the Court and the jury what this
picture depicts?
A. Yes.
Last year, OSHA requirements, because of the exposure to hepatitis and
AIDS started making stricter mandates on what people had to wear when they were
attending or near bodies that were -- they'd be in contact with bodily fluids
handling -- funeral homes, the way they handle bodies and everything -- started
having stricter requirements. And one
of the requirements which you had to post a sign stating that if you were in or
near the -- where a body or bodily fluids come in contact, that you had to wear
protective clothing, gowns or whatever.
And that's what this is. This is
a sign depicting that.
THE
COURT: Was that implemented for the
protection of the integrity of an autopsy, for example, or is that for
protection of the spectators or do you know?
THE
WITNESS: For the protection of the
spectators.
THE
COURT: Okay. Go ahead, please.
BY
MS. ROGAN:
Q. Is that a fair and accurate representation
of the sign that appears in the autopsy room at the morgue?
A. Not at the time that Ms. Thompson was
there. Those weren't in place at that
time, but -- and they were up until here just recently when we changed some of
the signs on them -- on the door.
Q. Recently, you said you've changed some of
the signs on the door?
A. Yes, ma'am.
Q. Okay.
And what do the signs say now, if you know?
A. We've got larger signs saying biohazard and
another thing about -- talking about releasing the bodies and that.
Q. So it's your testimony that this sign was
not in effect at the time this autopsy was done in 1993?
A. That's correct.
MS.
ROGAN: Can I see the pictures that the
jury has been looking at? I wanted to
ask him something.
BY
MS. ROGAN:
Q. If you could look at these two I'm going to
hand you back, it's Defendant's 88 and Defendant's 84, and if you can tell from
that where --
A. Okay.
These would be the chairs, but that picture is taken from where the blue
cabinet is going, looking back the opposite direction. That's about six to eight feet from the morgue
table.
Q. My question is, where were the chairs, if
you can tell? You said they weren't --
in 1993, they weren't where they are in this picture.
A. Well, now, here they're about right where
they -- about where they were at that time.
Q. Okay.
Okay. That's my question is
where the chairs were at the time.
A. Yeah.
They were about that time.
Q. So those are the chairs essentially that
spectators to the autopsy would be sitting in?
A. I don't know if those are the exact chairs,
but they're similar to the chairs.
Q. They're placed in the same location, though?
A. Yes, ma'am.
Q. Okay.
That's fine. That's what I
wanted to clarify. Thank you.
MS.
ROGAN: At this time, I would like to
offer Defense 89 into evidence as a fair and accurate representation of the sign
as it appears in the autopsy room now.
THE
COURT: Mr. Moore? I mean, Mr. Porter?
MR.
PORTER: Your Honor, I think the
testimony was that isn't a fair and accurate representation as it appears
now. The signs are different and it did
not appear in 1993; therefore, it has no probative value.
THE
COURT: Ms. Rogan?
MS.
ROGAN: If I might just clarify with the
witness.
BY
MS. ROGAN:
Q. I believe you said the signs that have been
changed were the signs on the door leading into the morgue?
A. Yes, ma'am.
Q. Did the sign -- this sign that was -- that
appeared over the desk where the computer was, was that changed?
A. I don't believe that it's standing now, no,
ma'am.
Q. You don't believe that it's there now?
A. No, ma'am.
Q. Okay.
MS.
ROGAN: I will withdraw for the moment
my effort to introduce that.
THE
COURT: All right. Go ahead, please, when you're ready.
MS.
ROGAN: If I might have one moment,
please.
[Pause]
BY
MS. ROGAN:
Q. Now, I believe you testified that after the
autopsy was completed, the body of Ms. Thompson was placed back into the body
bag and then placed into a cold locker?
A. The cooler, yes, ma'am.
Q. Okay.
Was the sterile sheet on which her body had been transported to the
morgue still within the body bag?
A. Yes, ma'am.
The sheet was on it.
Q. Okay.
And so that package as a whole, as it were, was placed into the --
A. Everything stayed contained, yes, ma'am.
Q. Okay.
And then it awaited the arrival of the funeral home?
A. The funeral home, yes, ma'am.
Q. Mr. Bennett, who has keys to the autopsy
room where the autopsies are performed?
A. Medical examiner staff, there's keys
outstanding in the police department for maintenance and cleanup,
janitorial. I couldn't tell you
exactly.
Q. So persons within the police department
itself, which is the building just adjacent, have keys to the morgue or have
access to these?
A. Yes.
Some parties in there do, yes, ma'am.
Q. Okay.
Are you aware whether it's relegated to supervisory police officers or
--
A. I'm not sure. There's a sergeant in charge of building and grounds that has
keys to everything, you know, for cleanup and maintenance. ID has, I believe, had keys for, you know,
for admittance if need be, so I'm not sure who had keys.
Q. Are you aware of how many keys there are
around the police department --
A. No.
Q. -- to that building?
A. No, ma'am, I'm not.
Q. Okay.
MS.
ROGAN: That's all I have. Thank you, Mr. Bennett.
THE
COURT: Redirect?
MR.
PORTER: I have no redirect for this
witness, Your Honor.
THE
COURT: Is he on call?
MR.
PORTER: Yes, Your Honor. He's available. He's working today.
THE
COURT: All right. You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness, please.
MR.
PORTER: The state would call Dr. Brian
Frist or recall Dr. Brian Frist to the stand.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: Why don't you re-administer the
oath to Dr. Frist?
MR.
PORTER: Dr. Frist, you've already been
called and sworn, but I'm going to re-administer the oath to you, so if you
could raise your right hand. Do you
solemnly swear the testimony you're about to give in this matter now pending
shall be the truth, the whole truth, and nothing but the truth, so help you
God?
THE
WITNESS: I affirm.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. PORTER:
Q. And you are Dr. Brian Frist; is that
correct?
A. That's correct.
MR.
PORTER: Your Honor, we would once again
submit Dr. Frist as an expert in the area of forensic pathology, but I would
like to qualify him in one other area at this time.
THE
COURT: Go ahead.
Q. Dr. Frist, have you received any training or
do you have any expertise in the area of blood spatter pattern analysis?
A. Yes, I do.
Q. And could you describe the training and
experience that you have had?
A. As a forensic pathologist, part of the
training to any forensic pathology is the examination of blood spatters and how
they relate to various crimes and scene reconstructions. And as a result of that, I've been involved
with the interpretation of blood spatter over the past five years.
Q. Is there any specialized schooling or
training that you've received?
A. Well, in the year of training I took in
forensic pathology with Dr. Burton, we spent a good time with blood spatter
interpretation.
MR.
PORTER: Your Honor, at this time, I
would submit Dr. Frist additionally as an expert in the area of blood spatter
pattern analysis.
THE COURT: Do
you wish to voir dire the witness, Mr. Moore?
MR.
MOORE: Your Honor, Ms. Rogan's going to
handle this.
THE
COURT: All right. Go ahead, please.
MS.
ROGAN: Just briefly.
VOIR DIRE EXAMINATION
BY
MS. ROGAN:
Q. Dr. Frist, have you participated in any
crime scene investigations?
A. You mean going to the scene?
Q. Yes.
A. I've been to a numerous scenes, yes.
Q. Excuse me?
A. Yes.
Q. How many have you been to?
A. I can't count. I don't know.
Q. Well, is it ten or twenty or a hundred?
A. It's more than fifty, less than a hundred.
Q. More than fifty, less than a hundred? Would you say that your knowledge of blood
spatter comes primarily from visiting crime scenes or from reading about it or
studying about it?
A. It would come more from the crime scene and
also in looking at various bodies, deceased victims, and seeing what the blood
spatter pattern is on the victim with relationship to their clothing or various
items from the scene or going to the scene itself. Not from a book, per se, no.
Q. So
you've learned about blood spatter from looking at victims of crimes?
A. Well, we're talking semantics here. Obviously, you learn first from a book and
from lecture type material, and then you interpret it, and you go to various
scenes and to the morgue itself, where bodies are brought, and you try to apply
what you've learned to the various cases you're involved with.
A. Isn't blood spatter more of a reading of the
direction in which the blood has flown away from a victim?
Q. Yes.
A. I mean, can you really tell anything about
blood spatter from looking at a victim?
Q. Oh, sure.
A. Have you testified as an expert previously
in blood spatter pattern analysis?
Q. I think to separate it out as such is
wrong. I think that as a forensic
pathologist, blood spatter is one of the fields that is -- that falls into our
jurisdiction, and this is one of the things that we have to know as a forensic
pathologist so that we can interpret various scene information and various
patterns and so on an so forth on various victims in various crimes. It's all-inclusive. I don't think it should be separated
out. For example, if you're a
pathologist, you don't say you're a microbiologist, even though you've learned
microbiology and you're in charge of the microbiology laboratory in the
hospital situation. It is part of
pathology the same ways blood spatter is a part of forensic pathology. If you practice forensic pathology, you must
know blood spatter.
Q. That wasn't my question, Dr. Frist. My question was, have you testified
previously as an expert in blood spatter pattern analysis?
A. Well, as you said, whenever I come to court,
I come as an expert in forensic pathology, and I am prepared to answer
questions on blood spatter analysis at any time that I am called to court. I have given testimony in the past about
blood spatter.
Q. How many times in the past have you given
this testimony?
A. I cannot recall that -- or I know that I
work in Gwinnett County, but I also cover DeKalb County, Cobb County, and
Clayton County. I deal in numerous
accidental deaths, suicides, and homicides.
I am called to court numerous times, and in many of these cases blood
spatter is an important finding, and I'm asked my opinion about it.
Q. Can you tell us how many cases you have been
asked to render an opinion about blood spatter pattern analysis?
A. I can say more than fifty, for sure.
MS.
ROGAN: That's all I have.
THE
COURT: Anything else as to his
qualifications, Mr. Porter?
MR.
PORTER: No, Your Honor. We would submit Dr. Frist as an expert.
THE
COURT: On blood spatter, as well?
MR.
PORTER: Yes, sir.
THE
COURT: Any objection?
MS.
ROGAN: I'm going to object to his
qualifications, but I will leave it to the Court.
THE
COURT: The Court finds him qualified. Go ahead, please.
DIRECT EXAMINATION - Resumed
BY
MR. PORTER:
Q. Now, Dr. Frist, can you explain, in terms of
blood spatter and the analysis, what do you mean by that when you talk about
the analysis of blood spatter patterns?
A. What that involves is the interpretation of
how blood falls or is sprayed in a free-falling fashion and makes a mark on
something that it hits, whether it be the wall, the floor, some clothing or
some object. Depending on the mechanism
that the blood got to that property, meaning the wall, it will leave a
distinctive pattern, and these are the patterns we are trying to interpret, and
we could determine many things from that.
Q. And what factors do you consider in looking
at a given blood spatter pattern in terms of the -- what can you determine from
looking at it?
A. What we try to see is, first of all, we'd
like to know how fast was the blood traveling when it left the body and struck
an object. We'd like to know how fast
it was traveling. We'd like to know the
size of it. We'd like to know the
direction it was going in. These are
the main characteristics we're looking at.
Q. And do you classify blood spatter pattern in
terms of its velocity?
A. Yes, we do.
Q. And what are the classifications?
A. There's high velocity, medium velocity, and
low velocity.
Q. What are the characteristics of low velocity
blood spatter?
A. Low velocity spatter patterns, we're talking
about something that's more on a -- that's moving slowly and it's more in a
cast-off pattern, where someone may be bleeding, have blood on their hand, and
it may just be thrown off as they move their arms, and blood may be transferred
from their hand, be airborne, and hit the wall. These will basically be larger drops of blood, and it's very distinctive
what they look like.
Q. Is there a method of determining the
direction of travel of the blood when it struck the surface in any of the blood
spatter?
A. Yes.
You could look at the blood spatter and it will actually make a mark and
it will make -- it will start to fall in a teardrop fashion, per se. You might be able -- you'll see the
direction in which it hit the wall or you may see the direction that it dropped
to the floor, whether it came straight down or at an angle.
Q. Now, and what are the characteristics of low
velocity blood spatter in terms of their source?
A. In terms of their source, just that they're
usually heavy in that they leave a large mark and they'll be more of a very
large distinctive drop -- droplet.
Q. Well, I guess what I'm asking you is, what
would be a characteristic injury that would result -- or a characteristic
action which would result in low velocity blood spatter?
A. Well, someone -- for example, if someone had
been cut and there was blood on the body and if, say, you got cut in your chest
area and you grabbed your chest and you fell back like that [demonstrating],
you would be throwing some blood. There
would be blood coming from your chest onto your hand, and as you went like that,
the blood would leave your hand and it would land some place, obviously, and
that's low velocity. It's not going
very fast. And it's usually a large
drop.
Q. Is there also -- what's the next
classification of velocity blood spatter?
A. Medium velocity. And that would be something that's moving -- I think what we
should realize is there's high velocity, mid-velocity, and low velocity, to put
things in perspective. High velocity is
moving at a hundred feet per second, and medium velocity is moving at between
five and twenty-five feet per second, and low velocity is moving slower than
that, obviously.
And
then you break them down as high velocity would be very small droplets. That will be an aerosol type effect where
the droplet of blood is less than point-one -- is less than, I'm sorry, is less
than one millimeter. And a mid-velocity
would be one millimeter to three to three to four millimeters. And then low velocity would be even greater
than that. So that gives you some idea.
The
mid-velocity blood is -- it takes some significant force to cause it to spray,
and that gives it this larger size, but it's not the same as high
velocity. High velocity takes a
tremendous amount of force to get something to aerosol and become very small
and travel great distances in a very short period of time.
Q. And what would be a characteristic injury
that would result in high velocity blood spatter?
A. A gunshot wound.
Q. All right.
Let me ask you, have you had the opportunity to examine what has been
previously labeled as State's Exhibit Number 129?
A. Yes, I have.
Q. And were you able to reach any conclusion as
to the characteristics of the spots on the jacket and their consistency with
high velocity blood spatter?
A. Yes.
There are -- over the right arm area, right chest area, there are
numerous small spatterings of blood which I consider high velocity. I think that this jacket was struck by high
velocity blood.
Q. Now, did you run tests on the actual
individual spots?
A. I did not.
Q. Would there be characteristics -- there has
been evidence presented that the -- and I'm going to hold it back so you can
get a perspective on it. There's been
evidence presented that the circles in blue have actually been tested and found
to be blood of human origin and that the circles in black have been given an opinion
by Mr. Kelly Fite that they are consistent with the circles in blue. Would this pattern be consistent with a high
velocity blood spatter pattern of human origin based upon the placement of the
circles?
A. Yes, they would.
Q. And how do you -- how can you determine that
based on your training and experience?
A. I would -- assuming that that jacket was
worn by an individual, I would believe that if the person wearing -- that
individual had fired a gun that struck someone at very close range, and that's
when you get your high velocity blood spatter patterns, now, at close range,
press contact -- loose contact type wounds, that that jacket would get sprayed
with an aerosol effect of high velocity blood spatter. And if he was a righty, shooting with his
right hand, that the majority of the blood would come on his right side,
hitting his arm and his chest.
Q. Now, Dr. Frist, I'd like to shift gears a
little bit away from blood spatter, if I could. And I'd like to give you a hypothetical situation and ask if
you'd give your opinion on it. If the
evidence were to show in this case that two shots were fired and that there was
a period of time in which one shot occurred and the statement, 'Shoot'em
again,' was made and the second shot occurred so that the timing was bam,
shoot'em again, bam, do you have any opinion, based upon your medical
experience as to whether or not Emogene Thompson would have been alive during
the two of those shots, based upon your autopsy results and your experience?
A. With the scenario that I was just given,
meaning that there would be just a few seconds between the two shots, I do
believe that the victim would be alive.
The reason I believe that is during the autopsy, the various organs are
weighed, and the lungs, in particular, in this particular individual, the lungs
became a little heavy. What that means
is they had time from the initial shot, the person was dying and the lungs, the
first thing they do is they take on water.
They became a edemic. They get swollen and take on water. If someone were to die immediately, the lung
weight would be constant, and it would be basically normal, a normal lung
weight. These lungs were a little bit
heavy, meaning that they were functioning and that they had time to absorb some
water and gain weight. So these lungs
are slightly heavy, and I consider them heavy enough to believe that she was
alive for a short period of time after the initial shot.
Also,
the brain was also swollen. And had she
died immediately, the brain would not have time to swell. So by having the brain and the lung weights
being high, meaning that they're heavier than normal, that indicates to me that
the person was alive for a short period of time before she died.
Q. Thank you.
MR.
PORTER: That's all the questions I have
of Dr. Frist.
THE
COURT: Ms. Rogan?
CROSS EXAMINATION
BY
MS. ROGAN:
Q. Dr.
Frist, did you go to the scene of this incident?
A. No, I did not.
Q. So do you have -- did you examine the car in
which the victim was found?
A. No, I did not.
Q. All right.
Do you have any idea if there was blood in the car?
A. Yes, I do.
Q. Okay.
What's your understanding of blood
in the car?
A. My understanding of the car blood was that
there was a significant amount of blood in the passenger seat. And in that direction going from the
passenger seat out towards the passenger door, but there was also some blood,
not much, but there was some blood on the driver's side door on the inside.
Q. On the interior of the door; that's your
recollection?
A. That's my recollection.
Q. I mean, you're basing that on looking at
pictures perhaps?
Q. Or someone told you that?
A. I was shown photos.
Q. Okay.
Have you seen photos depicting the window, the driver's side window?
A. Driver's side door window.
Q. Yes, that's what I'm asking about.
A. Yes, I believe I did.
Q. Was there any blood on that window?
A. I don't recall if it was on the window. I know there was some on the panel itself.
Q. So the blood that was in the car was in the --
on the door below the window?
A. I recall seeing some on that panel. Not much, but there was some.
Q. And this was from pictures of the scene that
you had been shown by someone?
A. That's correct.
Q. In blood spatter, there's a thing called
back spatter and front spatter; isn't that correct?
A. That's correct.
Q. Okay.
And back spatter is what comes back away from wherever the injury that's
causing the bleeding has been caused?
A. That's correct.
Q. And front spatter is the blood that leaves
away from the source of the injury?
A. That's correct.
Q. But you didn't personally examine the
interior of the car?
A. I did not.
Q. So you really can't say anything about what
kind of front spatter pattern there might have been from this injury?
A. All I can tell you is from the photographs I
saw, and I did see photographs, and they showed that there was blood spatter
going forward in that direction, meaning from the passenger side towards the
windows.
Q. There was a lot of blood on the seats?
A. And there was blood on the seat, too, yes.
Q. Is your testimony there was blood on the
windows, as well?
A. I believe it was on the -- I don't recall
for sure. I know it was going forward.
Q. And you testified previously in your
qualifications for being an expert in blood spatter pattern analysis that you
often viewed blood spatter on victims of crime?
A. Yes.
That's correct.
Q. Did you examine the victim of this crime for
any blood spatter while you were performing the autopsy on her at the morgue?
A. Yes, I did.
Q. Did you include anything about that in your
autopsy report, Dr. Frist?
A. I don't believe so.
Q. Would you like to check your autopsy to see
if you included anything about that?
A. Well, I do -- yes, I do make comments to
it. And what I'm talking about is in
the paragraph about the head, I discuss that there is blood covering her face,
which tells you that I looked at the face, obviously, and saw this blood and at
that time had an impression of where this blood was coming from and how it got
there, and it's documented in some of the photographs that I took.
Q. So your autopsy report reflects that there
was blood on her face?
A. That's correct.
Q. Dr. Frist, wouldn't there
be blood on the face of virtually every victim of a gunshot wound?
A. No.
Q. There are some gunshot victims who don't
bleed?
A. [No response]
Q. Let me rephrase the question. On every victim of a gunshot wound to the
head --
A. Uh-huh [affirmative].
Q. -- would virtually every victim of a gunshot
wound to the head bleed?
A. They may -- they all bleed, but the bleed --
the bleeding may be contained to the wound and inside as opposed to it being
expelled.
Q. My question, Dr. Frist, is, what does the
fact that there is blood on the head of the victim indicate about blood
splatter in this case?
A. What it did for me in this particular case,
it told me that the direction she was in, as we noticed in the last time I was
here, we looked at some photographs and we could see that the blood was
dripping down, so it told me that the position she was in, and also that there
was an absence of blood in the -- at the gunshot wound in the back of the head
and in a distant gunshot wound. That is
a gunshot wound that is greater than three feet. You will not expect to see blood spatter at that wound, and there
was none, so that's an important factor.
And then --
Q. My question, though, Dr. Frist, is what is
in your report that specifically indicates anything about blood spatter in this
case, not that there was blood on her head, but blood spatter? Do you ever use that term in your report?
A. I don't use that term, no.
Q. Okay.
You've testified that you examined this jacket --
A. That's correct.
Q. -- State's Exhibit 129. When did you examine it?
A. A week or two ago.
Q. A week or two ago?
A. Uh-huh [affirmative].
Q. After the beginning of this trial?
A. No.
Before the beginning of the trial.
Q. Well, when was it exactly; do you remember?
A. I said a week or two ago, so maybe it was
two or three weeks ago. It was recently
before trial.
Q. Well, can you remember the date, Dr. Frist?
A. No, I can't. It was before the trial, but it was recently. It was within a week of the trial.
Q. Was it during the month of August?
A. It must have been.
Q. Was it August 1st?
A. I don't recall. I'll try to recall. I
don't believe -- I don't recall the exact date.
Q. Were you requested by someone from the
district attorney's office to examine this jacket?
A. Yes, I was.
Q. And you see the markings that are made here?
A. That's correct.
Q. In circles.
Did someone explain to you who had made these markings?
A. No.
They did say after I told them what I thought.
Q. Are you now aware that the markings that are
in blue magic marker are ones that have been tested for blood?
A. I was told that.
Q. And that there are no such markings on the
right sleeve of this jacket?
A. That they were not tested for blood? That's correct.
Q. And that the only markings on the sleeves
that have been tested for blood are on the left sleeve of this jacket?
A. Okay.
Q. Did someone tell you that? Did someone tell you about the
markings? I believe you said someone
did tell you that, what the markings were.
A. Well, we just indicated that all the blue
ones were tested and found positive for human blood.
Q. So when you looked at this jacket for the
first time some weeks ago, you hadn't been told anything about what these
markings indicated?
A. No, I was not.
Q. And you indicated that you yourself did not
run any tests on any of the markings on this jacket?
A. That's correct.
Q. So you have no way to know what those
markings are?
A. The only way I have to know what they are, I
have no scientific testing other than that I've seen numerous high velocity
blood spatter patterns, and that's what they look like to me.
Q. So these little markings on here look like
blood to you?
A. I used a magnifying glass, and I was able to
feel comfortable with saying yes, I do believe they are.
Q. So it's your testimony that
you can eyeball this and tell that it's blood?
A. I feel very comfortable in saying that that
to me looks like blood, yes.
Q. And if the same types of little specks
appear on the back of the jacket, would it be your testimony that those are
blood as well?
A. There may be actually some.
Q. But you don't know if it's blood for sure or
not, do you?
A. I did not do any scientific tests other than
look at it, use a magnifying glass and look at it, and compare that with my
mental capacity that having seen numerous high velocity blood spatter patterns,
and that looks exactly like what I've seen before many, many times, and it
looks like blood to me, and that's what I think it is. And that's all I can say.
Q. When you were asked to examine this jacket
by someone from the district attorney's office, were you asked to render an
opinion at that time as to whether there was a blood spatter pattern on the
jacket?
A. They asked me what did I think of the
jacket.
Q. That's all they asked you, what did you
think of the jacket?
A. Well, they asked me what I thought of the
jacket and that this was apparently the jacket that was worn by the defendant,
and I obviously figured out that that's what they were thinking. It didn't take any genius there.
Q. Did they direct your attention in any way to
the little circles that had been made?
A. They said disregard anything -- any marks on
it. Just look at it and tell us what
you think.
Q. Just pretend you don't see all those little
circles that somebody made on them?
A. No, they didn't say that. They said, you know, the jacket had
obviously been looked at by somebody before I did and that they had made those
marks. I knew that looking at it. But to the best of my ability, I could only
look at it after the fact, meaning that somebody had looked it and made a mark
on it. I'm not blind. When I looked at the jacket, I saw those
circles and you can't a hundred percent erase that from your mind that they're
not there. Of course I recognized that
there was circles and somebody had been indicating that maybe something was there,
so I did look at that, of course. I
looked at that and I looked at the whole jacket. I looked at everything and tried to give my impartial opinion of
what that is.
Q. Were you ever asked to look at any rain
pants in this case?
A. Rain pants, no.
Q. So you were never asked to make a
determination from your ability to identify blood stains, whether there might
be blood stains on rain pants in this case?
A. I don't believe I did, no.
Q. Now, you testified when Mr. Porter asked you
that a characteristic injury that would cause high velocity blood spatter is a
gunshot wound?
A. That's correct.
Q. Isn't it true, Dr. Frist, that other types
of traumas can also cause that pattern of high velocity blood spatter?
A. They can, but one of the distinctive properties
of a gunshot wound with high velocity blood spatter pattern is that in other
injuries that may cause high velocity blood spatter patterns that not only do
you get the high velocity, but you'll also get medium and low velocity many
times, in the ones that I could think of, at least, that you'll get a mixture
of high velocity, mid-velocity, and low velocity, so, therefore, it does make
you start to think about other possibilities and try to make you think of other
ways to interpret it.
Q. Isn't it true, though, that any forceful
impact that has the same type of force that a gunshot wound might have would
cause that same characteristic pattern?
A. Yes.
But you have to understand that a gunshot wound is a very unique
injury. It's a very small object that is
causing tremendous damage and is moving at a very high velocity itself. I can't really think of other injuries that
could cause that type of blood spatter pattern without causing other patterns. For example, if you would cut yourself with,
say, a high-powered saw, an electric saw, if it's moving at a very great rate
of speed, there will be an aerosol effect and there will be a high velocity
blood spatter pattern thrown off from that injury, but you'll also get
mid-velocity and low velocity also, so it will be more of a combination of the
three types of patterns.
It's
very unique that a gun -- and a gun will only do this in close range. If you shoot somebody from a distance, you
will not really get high velocity.
You'll get high velocity, but it will only travel a short distance from
the body, so we really don't see it often.
Q. So it's your testimony, Dr. Frist, that a
gunshot wound is virtually the only time when you're going to see this kind of
high velocity pattern?
A. I would say that high velocity blood spatter
in this way is very characteristic of a gunshot wound. Yes, other things may cause it. I can't think of one. If you could tell me one, I will tell you
whether I agree with you or not.
Q. Just one moment. [Pause] In your studies
to become an expert in blood spatter pattern analysis, have you had occasion to
consult this book, 'Interpretation of Blood Stain Evidence at Crime Scenes'?
A. Yes, I have.
Q. Okay.
Are you familiar with --
A. Uh-huh [affirmative].
Q. -- this book and what it has to say about
high velocity blood spatter?
A. Uh-huh [affirmative].
Q. So do you agree or disagree with the
proposition that other types of injuries, such as an automobile accident, can
be responsible for high velocity blood spatter?
A. As I said before, I agree that you can get
high velocity blood spatter from other injuries, but I think in those instances
you will get a mixture of high velocity, mid-velocity and low velocity at the
same time, so that adds something to the interpretation. Per se, an individual high velocity blood
spatter droplet can be caused by many things, but it has to also be interpreted
by what it's next to. If you've got a
mid-velocity and a low velocity and a high velocity all clustered together,
then you'd have to start thinking, well, maybe it's not a gun. Maybe it was something else.
Q. But you really want this jury to believe
that the most characteristic source of high velocity blood spatter is a gunshot
wound?
A. Yes, I do.
Q. Getting to the second portion of Mr.
Porter's questioning for you regarding the hypothetical, you were asked in
terms of a person hearing one shot and then a span of time elapsing before the
second shot. Would your opinion about
whether or not the victim was alive between shots change at all if you were
told that the person who heard the shot was half a mile away and that if it
could be demonstrated that sound carries in a distorted fashion over distance,
would that change your opinion?
A. Not really.
As I stated before, I believe that, if I could just sum it up a little
bit here, I believe that she was thought two times and that I believe that both
shots had the ability to kill her, and I believe that the first shot rendered
her unconscious and that she lived for a period of time after she was
shot. When the second shot was fired, I
cannot tell you exactly. But if someone
were to tell me that she was shot ten seconds after the first, was she alive at
that period of time, I could say there's a good chance she was.
Q. Well, my question was --
A. And whether it traveled that far --
Q. If the sound had been distorted by the
distance that the sound had to travel and other environmental factors like the
position down a hill of the person hearing the noise, if those factors were
taken into consideration so that you really weren't able to tell precisely how
much time there was between the two shots, wouldn't that change your opinion?
A. It really wouldn't because I think we've all
heard loud noises followed by a second loud noise that was in a distance. I'll agree that we can't exactly time how
long it was between these two incidents, but it wasn't a long time. We're talking here seconds, and I'm not
saying -- I'm not going to sit here and tell you that the first shot was fired
and then six seconds later another one was or ten seconds another one was. I'm giving you a plus-minus, and I believe
that she was shot and then she was shot again, and that if that second shot was
fired within ten, fifteen seconds of the first, there's a very good chance that
she was alive during that period of time.
That's all I can say.
Q. But
you've just testified, as I believe you did the first time you were here,
that either one of the shots would have killed her?
A. They both had the ability to kill her, yes.
Q. And I believe when Mr. Moore was questioning
you the first time around, you admitted that you had met with us, Mr. Chapel's
defense lawyers, on July 13 of this year?
A. It's not a secret. It's not an admission. I
agree.
Q. Okay.
Do you recall telling us during that meeting that, as you've stated,
either of the shots would have killed her?
A. I believe I did.
Q. Do you recall telling us that?
A. Yes.
I would say that and I believe I said that, yes.
Q. Okay.
Do you recall telling us that there was no way for you to know which of
the two shots had occurred first?
A. With the material that I had at that time, I
couldn't tell. And --
Q. Have you -- go ahead.
A. And as I was pointed out by the DA's office
that as a forensic pathologist I really cannot tell which shot was fired first
with just the body and the two injuries.
But when you put the scenario together and you get the full story,
meaning the scene reconstruction and the other information that's available,
when you put it all together, then I can have an opinion of which one was fired
first, and that's what I've done.
Q. So what you're telling us is that between
the time of July 13 when you met with us and the time when you testified
initially at this trial, you learned a lot more information about this case?
A. That's correct.
Q. All right.
Did someone from the district attorney's office tell you --
A. No, I don't --
Q. -- this information that you didn't have
previously?
A. I don't believe so. I think it was my investigator.
Q. So your investigator told you a lot more
information about this case?
A. I think that initially when the report is
done, the report was done to the best of our ability at the time, meaning that
I did the postmortem examination autopsy and investigative information at the
time and issued a report with the information that was available to me at that
time. There was obviously -- this was
two, three years ago now -- there was information that was not available that I
did not know. I issued my report and
what I do in these cases, I issue the report and time will tell, and as the
case moves along and as it gets closer to trial, more information seems to
always come forward. And at that time I
will interpret that and try to incorporate it into a report or into an opinion
or to tell the various people who need to know my opinion, I'll tell them.
Q. Did you make up a new report in this case?
A. No, I did not.
Q. Do you recall telling us when we met with
you on July 13 that not only would either shot have killed her but that death
was instantaneous?
A. Well, to me, at the time, and still,
instantaneous, we're talking seconds, yes.
Q. And I believe you've testified, both
previously and today, that either one of the shots, regardless of whether the
first one killed her, would have rendered her unconscious immediately?
A. That's correct.
MS.
ROGAN: That's all I have, Dr. Frist.
THE
COURT: Mr. Porter?
MR.
PORTER: I have no redirect for Dr.
Frist, Your Honor. We'd ask that he be
allowed to return to back to work. He's
got some reports due today.
THE
COURT: All right. You can come down.
[The
witness stepped down from the stand.]
THE
COURT: Call your next witness.
MR.
PORTER: We call Investigator Jack
Burnette to the stand.
[The
witness was called to the courtroom.]
THE
COURT: Would you approach the bench,
please.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: This next witness is going to be
a while. Maybe now would be a good time
to take a fifteen-minute recess, and then we'll just push on this
afternoon. We may be running a little
late, but we'll go ahead and take a recess at this point.
MR.
MOORE: I think it would be a good
idea. I've noticed some of the jurors
are sleepy up there.
THE
COURT: I think so, too. Okay.
[Bench
conference concluded.]
THE
COURT: Our next witness may be a while,
so I think rather than interrupt the flow of testimony, we've been going a
while, we're about due for a recess anyway.
I think we'll just pause here and take fifteen minutes. If the jurors want something to drink, if
the smokers want to smoke, we'll make that available, and we'll take fifteen
minutes at this point. If you'll go with
the bailiffs, please.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Anything else at this point, Mr.
Porter?
MR.
PORTER: Yes, Your Honor. In regard to State's Exhibit Number 87,
which was a previously identified photograph of the defendant's wife, Eren
Chapel, there was some concern that the photograph that was actually identified
by the witness contained biographical information which the state redacted for
the purposes of the identification and covered up.
In
the meantime, we have had prepared two copies of the photograph and we would like
to substitute them for State's Exhibit Number 87 so that there is no danger
that the jurors may remove the covering and only the photograph can be used,
and we can allow defense counsel to examine that --
THE
COURT: Is the larger photograph, is
that identical? Is it a blowup of the
first one?
MR.
PORTER: It is a blowup, Your Honor, and
I have an extra copy to provide to defense counsel.
THE
COURT: Mr. Moore?
MR.
PORTER: Your Honor, this has nothing to
do with their prior objections to the photograph.
THE
COURT: I understand.
MS.
ROGAN: Yeah. It does appear to be the same photograph. We would object, Your Honor, in that it's my
recollection the witness made a less than positive identification of this being
the person he was referring to. He said
he thought it looked like her, but wasn't able to identify her.
THE
COURT: Well, my question is -- that's
all been resolved, and the photo was admitted.
MS.
ROGAN: No, it wasn't, Your Honor. It was not admitted.
MR.
PORTER: No, Your Honor. It was not --
THE
COURT: Okay. You're right. It wasn't
admitted.
MR.
PORTER: It was not. It has not been tendered, but I think Ms.
Rogan's recollection differs somewhat from mine, that he said, yes, this is the
person, that's not a very good picture of her, but that's --
THE
COURT: That sounds correct to me as I
recall.
MS.
ROGAN: My recollection is he said, 'I
guess that's her.'
THE
COURT: My recollection is consistent
with Mr. Porter's as to his
testimony. Well, I guess the -- are you
offering --
MR.
PORTER: I'm offering -- Your Honor, I
think for clarity, we could probably designate it as State's Exhibit 87S to
indicate that it's a substitution, but it -- I will provide it to the Court to
examine it, but I will state in my place that it is a photograph made from the
original State's Exhibit Number 87.
THE
COURT: Well, it seems to me we've got
two things to consider. The first is
whether or not State's 87 is admissible or not as to whether a proper
foundation has been laid. And if so,
then whether or not it ought to go out in the form it's in or whether a
substituted copy of it will be put it in or what. Are you offering 87?
MR.
PORTER: Your Honor, I'm prepared to
offer 87 now, and I'm also prepared to have the next witness identify State's
Exhibit Number 87; but, yes, we would be offering it. I'll be prepared to offer it, and I'll tender it now based upon
the identification of Curtis.
THE
COURT: Mr. Moore, Ms. Rogan?
MS.
ROGAN: Well, we would object, Your
Honor, on the basis that it has not been adequately identified.
THE
COURT: State's 87 is admitted over
objection.
MR.
PORTER: And, Your Honor, we would also
move, and I will have the larger photograph marked as State's 87S to indicate a
substitution, and we would move to substitute the picture to prevent any
possibility that the jury could remove the note paper which has been stapled.
THE
COURT: Well, the question is -- it's
admitted. The question is, does it go
out in that form or what? And I'm not
inclined to put a paper clip over the side as it is at this point or stapled or
whatever with that, so a redaction in some form would be in order, and I guess,
Ms. Rogan, what's the defendant's position?
MS.
ROGAN: Well, I agree with the Court
that I don't think it's appropriate to have an obviously redacted photograph go
out to the jury, particularly one that's not -- we have no assurance that it
will remain secured, the inadmissible portion.
So if Your Honor is inclined to let it go out over our objection, then I
would prefer that it be the cropped photo that they've provided.
THE
COURT: All right. 87S?
MS.
ROGAN: Yes.
THE
COURT: All right.
MR.
PORTER: Yes, Your Honor, and I'll show
it to the Court so that the Court can ascertain that it is in fact a true and
correct copy of State's Exhibit Number 87.
There is the larger photograph and there is the smaller one. [Presenting]
THE
COURT: It would appear to be. All right.
You're offering 87S?
MR.
PORTER: To go out with the jury, Your Honor,
as a substitution for State's Exhibit Number 87. And from this point forward, the state will be using 87S and
referring to 87S.
THE
COURT: So what's the defendant's
response?
MS.
ROGAN: We object, Your Honor.
THE
COURT: Well, insofar -- 87 is in. It's admitted.
MS.
ROGAN: Then on that, we have no
objection to it going out in the form in which they've offered it.
THE
COURT: 87S. I'm not suggesting you waive your objection --
MS.
ROGAN: Okay.
THE
COURT: -- but insofar as what goes out
with the jury --
MS.
ROGAN: That's correct.
THE
COURT: -- a substituted copy being 87S
going out, you have no objection to the substituted copy without waiving any
other objections?
MS.
ROGAN: That's correct.
THE
COURT: So stipulated. Anything else, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: Ms. Rogan, Mr. Moore?
MR.
MOORE: Nothing, Your Honor.
THE
COURT: All right. We'll take fifteen minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
PORTER: The state's ready, Your Honor.
THE
COURT: Is the defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Do you want to have Investigator
Burnette go ahead and take the stand or do you want to bring him in with the
jury here?
MR.
PORTER: It makes no difference, Your
Honor.
THE
COURT: Okay. Bring the jury in.
Investigator Burnette, you can go ahead and take the stand if you
wish. Go ahead and be seated.
[The
witness stepped to the witness stand.]
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Who do you call next, Mr.
Porter?
MR.
PORTER: The state would call
Investigator Jack Burnette.
THE
COURT: If you'll administer the oath,
please.
MR.
PORTER: Investigator Burnette, do you solemnly
swear the testimony you're about to give in this matter now pending shall be
the truth, the whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. PORTER:
Q. Could you state your name, please.
A. Jack Burnette.
Q. And could you spell your last name for the
court reporter.
A. B-u-r-n-e-t-t-e.
Q. Investigator Burnette, how are you employed?
A. By the Gwinnett County police department,
the violent crimes unit.
Q. How long have you been employed with the
violent crimes unit?
A. I've been in the violent crimes unit twice,
first in the late seventies and then again starting in 1987.
Q. And how long have you been employed with the
Gwinnett County police department?
A. Approximately twenty-one years.
Q. Now, I'd like to ask you, do you know the
defendant in this case, Mike Chapel?
A. I do indeed.
Q. How long have you known him?
A. Since Mike began to work with the Gwinnett
County police department.
Q. Could you describe your relationship with
him?
A. Yes, sir.
Originally, I met Mike shortly after he came to work with the Gwinnett
County police department. I was in
uniform at that time as, of course, was he.
Mike and I shared similar interests in hunting and outdoor activities
and things of that nature. Although our
families as far as my wife and his wife and children never socialized, Mike and
I became friends, especially in the fall.
We joined the same hunting club, and we'd hunt together, and I met his
dad with him at a hunting club down in Washington, Georgia.
Q. Do you know his family, his wife?
A. I've met his wife on one occasion. I know her on sight. I know -- I certainly know Mr. Chapel,
Harold Chapel, his daddy.
Q. Let me show you what we have had marked as
State's Exhibit Number 87S. Can you
identify that, please, sir?
A. It's a photograph of Eren Chapel.
Q. Is that the wife of Michael Chapel?
A. She is.
Q. Is that photograph a true and accurate
depiction of Michael Chapel's wife?
A. Yes, sir.
MR.
PORTER: Your Honor, at this time the
state would move for admission of 87S.
I believe 87 has already been admitted.
THE
COURT: I show it being admitted. Any objection, Mr. Moore?
MR.
MOORE: Your Honor, I believe it's
already been admitted, so --
THE
COURT: I believe it's in. It's in.
MR.
PORTER: Thank you, Your Honor.
BY
MR. PORTER:
Q. Based upon your familiarity with the
defendant, do you know whether he's right-handed or left-handed?
A. Michael Chapel is right-handed.
Q. How do you know that?
A. I've known him for a number of years. I've seen him write reports. I've seen him shoot firearms. He's right-handed.
Q. Let me call your attention to the morning of
April the 16th of 1993. At that time
were you assigned as the lead investigator to investigate the death of Emogene
Thompson?
A. I was.
Q. Can you tell us, what are the
responsibilities of a lead investigator with the Gwinnett County police
department?
A. In a murder case, as one such as this, where
you arrive and there's no suspects or anything like that, the lead investigator
takes the role as compiling information as it comes in, assigning leads,
working with the sergeant in disseminating information among your other
investigators.
Q. Now -- and you were assigned as the lead
investigator?
A. Yes, sir.
Q. Well, did you follow the aspects of the
investigation as well as conducting your own interviews and evidence gathering?
A. Yes, sir, I did.
Q. I'd like to talk a little bit about the time
line of the investigation from April the 16th.
On April the 16th in the morning at about eight o'clock when the body of
Emogene Thompson was discovered, were there any immediately apparent suspects
at that time?
A. No, sir.
Q. At what point in the investigation did
information become available to you that a police officer might be involved in
the case?
A. We originally started getting information on
a police officer in the early evening or the late evening of Friday the 16th at
a road check.
Q. At that time were you able to determine what
agency that police officer came from or the unit?
A. No, sir.
Q. At what point in the investigation did you learn
of the April 3rd burglary call which Michael Chapel answered at Emogene
Thompson's house?
A. After I left the scene that Friday morning,
I went to Gwinnett County police headquarters.
At around 1:45 or 1:50 in the afternoon I was contacted by Captain
Cantrell, who was the commander at that time of the Buford precinct. He told me that Sergeant Stone and Officer
Chapel had something to talk to me about, and at that time I spoke with Mike
Chapel about the burglary call at Emogene Thompson's residence. Now, prior to that, however, on the scene we
had spoken with Michael Thompson.
Q. Without going into the information he gave
you, were you already aware of the call at that time or by the time you talked
to Chapel?
A. I was already aware of a burglary, yes, sir.
Q. So did the information about the burglary
come before or after you began to learn that there was a -- there might be a
police officer involved?
A. The information that there was in fact a
burglary of some type came prior to learning about a police officer being
involved.
Q. Did the information -- you said you learned
beginning on the 16th that a police officer might be involved. Did that information continue to come in
over the next few days?
A. Yes, sir.
Q. At what point in the investigation did you
learn of the information of Ms. Burel, Delores Burel, regarding a connection
between Emogene Thompson and Mike Chapel on the night of the homicide?
A. We had been on the homicide all day Friday
the 16th. We had held the road
check. We had done a number of
interviews that night. Shortly after
midnight, as I recall, sometime after midnight, on into Saturday morning the
17th, I met with Investigator Bernie Tkacik at the Gwinnett County police
precinct in Buford, Georgia, along with Lieutenant John Latty and Sergeant
Steve Cline, at which time we learned of Delores Burel's interview with
Investigator Tkacik.
Q. And at that point who became your suspect or
a suspect in the murder of Emogene Thompson?
A. Michael Chapel.
Q. At what point in the investigation did you
learn of the identification procedure which was done at the business of Karl
Kautter?
A. I personally learned of it Friday afternoon
the 22nd.
Q. And was that immediately after that was
done?
A. I'm sorry.
That's going to be Friday afternoon the 23rd, and I was contacted by
Chief White and advised that there had been an identification of Michael
Chapel.
Q. And at what point was the decision made to
arrest Michael Chapel?
A. The decision to arrest Michael Chapel was
made early on Saturday morning the 24th.
Q. And was that at the conclusion of the
interview?
A. Yes, sir.
Q. We'll talk about the interview in a
second. But did the investigation into
the death of Emogene Thompson end with the arrest of Michael Chapel?
A. No, sir.
Q. At the time of the interview of Michael
Chapel, were you aware of the results of any scientific test?
A. At the end of the interview?
Q. By the time the interview ended on the 24th.
A. No, sir.
Q. Now, let me ask you, given the time line
that you just described, would it have been, in your opinion as an
investigator, would it have been a valuable use of your time to interview every
male officer at the northside precinct?
A. Prior to Chapel's interview?
Q. Prior to Chapel's interview.
A. No, sir.
That'd been dangerous.
Q. Why?
A. Well, there are several reasons, not the
least of which you're concerned about the destruction of any possible evidence,
physical evidence, that you may have.
Also, you want to take into consideration that the mere hint of
something of this nature on a law enforcement officer if it weren't true would
ruin his career. It'd be over. And at that point in time before we crossed
that bridge, we wanted to be sure that we were right.
Q. Now, have you continuously -- have you
followed up on the leads and evidence in the death of Emogene Thompson since
the arrest of Michael Chapel?
A. Yes, sir.
Q. We'll get to the physical evidence in just a
second, but I'd like to -- how many facts or leads do you believe in the last
two years have you run down and interviewed people or followed up on?
A. There's no way to put a number on how many
people we've talked to in this case.
Simple interviews and following up information, hundreds probably.
Q. At any time during the following-up of this
information, have you developed any information which led to any other suspects
other than Michael Chapel?
A. No, sir.
Q. I'd like to talk about some specific people
that have been mentioned in this courtroom.
At one point in this case did you consider the Sugar Hill marshal, Chris
Robertson, as a potential suspect?
A. Yes, sir.
Q. Were you able to eliminate him as a
potential suspect?
A. Yes, sir.
Q. And how did you do that?
A. There were two things that were significant
with the Sugar Hill city marshal. One,
when we started getting a description of the cars, the car he drove, as I
recall, was an older car. It was an old
Lawrenceville police car that was black and white. Number two, in talking with the medical examiner's office,
Investigator Bennett had told me that what he saw of the victim was not
consistent -- was consistent with a right-handed shooter and not consistent
with a left-handed shooter, and the Sugar Hill marshal is left-handed.
Q. Now, let me ask you, during the interview
Investigator -- Michael Chapel mentioned some names as people who might have
been at the gym?
A. Yes, sir.
Q. Have you interviewed those people?
A. I've interviewed several of those people,
yes, sir.
Q. And did anything that they said change the
course of your investigation or exonerate Michael Chapel, without going into
what they said?
A. No, sir.
Q. Have you interviewed the firemen
that were at the fire station on April 15th of 1993?
A. Our investigators have interviewed the
firemen, yes, sir.
Q. And has anything that those firemen said
exonerated Michael Chapel or provided him with an alibi that night? A. No,
sir.
Q. Did you interview Sergeant Donald Stone or
do you know whether or not he was interviewed?
A. He was.
Q. Did anything that he say exonerate Michael Chapel
or provide you with information regarding another suspect?
A. No, sir.
Q. And did you interview Brian Reddy?
A. We did, yes, sir.
Q. And has anything that he said exonerate
Michael Chapel or provide you with another suspect?
A. No.
Q. Was Brian Reddy ever a suspect in the murder
of Emogene Thompson?
A. No, sir.
Q. Now, there has been some
mention made regarding some other weapons that may have been recovered in this
case.
A. Yes, sir.
Q. I'd
like you to specifically talk about -- are you aware that a .38 caliber
pistol was recovered at the American Inn in Buford sometime in 1993?
A. Yes, sir.
Q. Has that weapon been examined by members of
the Gwinnett County police department?
A. It has.
Q. Have you become aware of the reports in
regard to that matter?
A. I have.
Q. Do you know the make of that weapon?
A. Yes, sir.
Q. What is it?
A. It's an Arminus [phonetic spelling] Titan
Tiger.
Q. Is that consistent with your information
regarding the murder weapon which was used to kill Emogene Thompson?
A. No, sir.
Q. Has a Charter Arms .38 caliber pistol been
turned in to the Gwinnett County police since the death of Emogene Thompson?
A. Yes, sir.
Q. And where was that weapon turned in?
A. That weapon was
turned in at the Buford precinct on October 7 of 1994.
Q. Have you investigated the origin of that
weapon?
A. Yes, sir.
Q. Have you had that weapon sent to the Georgia
state crime lab?
A. Yes, sir.
Q. Has
that weapon tested to be consistent with the murder weapon which killed
Emogene Thompson?
A. No, sir.
Q. Are there any other weapons which have been
recovered by the Gwinnett County police department which have been tested in
regard to whether or not they are consistent with the murder weapon that killed
Emogene Thompson?
A. Yes, sir.
Q. Can you describe those, please.
A. Yes,
sir. Officer Ray Dunlap had a
Charter Arms. We took that weapon and
sent it to the Georgia state crime lab.
It was eliminated. We took an RG revolver from Brian Reddy. It's been tested and eliminated. And there was a firearm that was located by
some children that Mr. Britt, Mr.
Chapel's former attorney, had contacted us about, and it was identified, as I
recall, as a Smith & Wesson.
Q. Now, Investigator Burnette, in the course of
your investigation, did you run what are called time and distance studies
regarding pertinent points that arose during this investigation?
A. I did.
Q. And let me get a diagram here and ask you to
step off the witness stand, if you could.
[The
witness stepped before the jury box.]
BY
MR. PORTER:
Q. Here's the pointer, and I'll act as your
easel today, and if you could take a second and familiarize yourself with the
diagram. This is State's Exhibit Number
1, which is previously stipulated as an
aerial -- excuse me, State's Exhibit Number 4, which has been previously
stipulated as an aerial photograph of pertinent areas of North Gwinnett County.
A. Okay.
Q. Investigator Burnette, I'm going to try and
hold it here, and if you can sort of step to my side so all members of the jury
can see it, and in reference to your time and distance studies --
A. Okay.
Q. -- can you tell us what is the distance
between the Gwinnco Muffler and the intersection of Georgia 20 and Peachtree
Industrial Boulevard, and if you could point --
A. The distance between the Gwinnco Muffler located
here and Georgia 20, which is also known as Nelson Brogdon Boulevard here, is
approximately seven-tenths of a mile.
Q. What is the distance between Gwinnco Muffler
and the intersection of R. H. Smith Boulevard and Peachtree Industrial
Boulevard or R. H. Smith --
A. It's eight-tenths of a mile. Another tenth of a mile here.
Q. Now, Investigator Burnette, could you, just
in relation to the map describe where Arden Drive would be in relation to these
locations which are shown?
A. Arden Drive, traveling from the Gwinnco
Muffler, would be -- and taking R. H. Smith, which is here, would be down in
this general direction. It's over on
the other side of Buford Highway or 23 off Thompson Mill Road.
Q. All right.
You can resume the stand, please.
[The
witness returned to the stand.]
BY
MR. PORTER:
Q. I'd like to ask you, do you know the
distance between the Gwinnco Muffler Shop and Arden Drive, which was the call
that Investigator -- or Officer Chapel went to that night?
A. Yes, sir.
Q. How far is that?
A. Five-point-six miles. It takes ten minutes, roughly, to traverse.
Q. Have you driven that in your own patrol car?
A. Yes, sir.
Q. Or your own investigator's car?
A. Yes, sir.
Q. And have you driven a variety of routes?
A. Yes, sir.
Q. What is the range of times which it takes
you to drive from Gwinnco Muffler to Arden Drive from the shortest to the
longest?
A. It can run anywhere from ten to fourteen
minutes.
Q. And is that operating your vehicle at the
posted speed limit?
A. Yes, sir.
Q. And is that taking a variety of routes?
A. Yes, sir.
Q. And I'd also like to ask you, did you do a
time and distance study between the northside precinct located on Buford
Highway and the Gwinnco Muffler?
A. Yes, sir.
Q. What was the distance between the precinct
and the muffler shop?
A. From the precinct to the muffler shop,
depending on which drive you take, there's a rear entrance and a front
entrance, the distance can be anywhere from one-point-nine miles to
two-point-one miles, and the time is approximately four minutes.
Q. And is that driving your investigator's car
at the posted speed limit?
A. Yes, sir.
Q. Now, Investigator Burnette, in the course of
the investigation of this case, was there an attempt to do a videotaped
reenactment of the location of the patrol car at the Gwinnco Muffler?
A. Yes, sir.
Q. Did that video reenactment 'take,' so to
speak?
A. No, sir.
Our equipment wasn't of such quality that it took.
Q. Were you present at that time?
A. Yes, sir.
Q. I'd like to show you what we have had
previously marked as State's Exhibits Number 75 and 76. Can you identify these, please?
A. Yes, sir.
These are photographs of a 1992 Ford Crown Victoria, Unit Number 197,
belonging to the Gwinnett County police department, that was issued to Michael
Chapel.
Q. And are those two views in the photograph?
A. Yes, sir.
Q. Are you familiar and have you personally
observed the markings on that car?
A. Yes, sir.
Q. I'd like you to step down from the stand
again.
[The
witness stepped before the jury box.]
BY
MR. PORTER:
Q. And as I hold the photographs up --
THE
COURT: I don't show those as being
admitted. What do you show, Mary?
THE
REPORTER: I don't show them as being
admitted.
THE
COURT: All right. I don't show State's 75 and 76 as being
admitted or tendered.
MR.
PORTER: Your Honor, then, at this time
we would tender them into evidence as having previously been identified by
Sergeant Donald Stone as true and correct photographs of the vehicle that was
assigned to Michael Chapel and also identified by Investigator Jack Burnette.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I don't remember the
testimony. If the Court does, we'd
leave it with the Court as to whether the proper foundation has been laid.
THE
COURT: Why don't you ask Investigator
Burnette--
BY
MR. PORTER:
Q. Investigator Burnette, are these two
photographs, 75 and 76, true and accurate representations of the vehicle that
you have described?
A. Yes, sir.
MR.
PORTER: Your Honor, at this time we
would tender them with that foundation.
THE
COURT: Did he testify as to when, being
a representation then as opposed to now, or what point in time?
BY
MR. PORTER:
Q. Are those true and correct representations
of the vehicle as it was in 1993?
A. Yes, sir.
THE
COURT: All right. Any objection, Mr. Moore?
MR.
MOORE: Let me look at those
photographs, Your Honor. [Examining
photographs] Your Honor, we don't
believe they show any of the angles that have been testified about here in the
case, the way the car was parked or anything at the time this occurred, so we
would object on that ground.
MR.
PORTER: Your Honor, that is not the
purpose of our use of these photographs, and they are true and accurate
representations of the vehicle as it appeared on that date.
THE
COURT: State's 75 and State's 76 are
admitted over objection. Go ahead,
please.
BY
MR. PORTER:
Q. Investigator Burnette, have you observed the
marking decals that are on the 1992 Crown Victoria that was assigned to Michael
Chapel?
A. I have.
Q. And could you describe for the jury the decals
and what of this material reflects light and what doesn't?
A. Yes, sir.
The blue stripe located here is not reflective. The gold trim that you have all the way
around this, the gold on the door patch, is all reflective --
Q. If we can go down here.
[Mr.
Porter and the witness move to the end of the jury box.]
BY
MR. PORTER:
A. [Continuing] These areas here and this area here and this patch here.
Q. If you could resume the stand, please.
A. [The witness returned to the stand.]
Q. Getting back to the re-enactment, were you
present that night?
A. Yes, sir, I was.
Q. And were you able to observe the
characteristics yourself that you have described about vehicle 197?
A. Yes, sir.
Q. I'd like to show you what has been
previously marked as State's Exhibit Number 100. Can you identify this, please, sir?
A. Yes, sir.
These are two of the four vials of blood that I obtained under search
warrant from Michael Chapel.
Q. All right.
And do you recall the date that you obtained that blood?
A. Yes, sir.
It was on Wednesday, May 12, 1993.
Q. And where was that search warrant executed?
A. The search warrant was executed at Northeast
Georgia Medical Center in Gainesville, Georgia.
Q. And were you present when the blood was
drawn?
A. Yes, sir, I was.
Q. And did you take custody and control of that
blood from the person who drew it?
A. I did.
Q. Did you tamper with or interfere with the
contents of the tube that you have described in State's Exhibit Number 100
after you had obtained custody of it?
A. No, sir.
Q. Now, let me ask you, you said there were
four tubes?
A. Yes, sir.
Q. If you'll look at State's Exhibit Number
100, there are only two tubes.
A. Yes, sir.
Q. What happened to the other two?
A. We -- I took four tubes. Generally, on blood tests, you'll only take
two tubes. I took four, wo to send to
the Georgia state crime lab and the other two to send to Jesus Analytical
Laboratories in Nashville, Tennessee.
Q. And did you seal the two that you have
identified in State's Exhibit Number 2 -- excuse me, in Number 100 in the
evidence bag yourself?
A. Yes, sir.
Q. And it wasn't placed in the plastic wrapper;
is that correct?
A. No, sir.
MR.
PORTER: Your Honor, at this time, we
would move to admit State's Exhibit Number 100 as the chain of custody having
been completed from Investigator Burnette -- excuse me, from Ms. Murray who
drew it to Investigator Burnette to the crime lab.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we'd ask the Court
to defer a ruling on that until after cross-examination. It's a matter that we'd like to go into
before the Court makes a ruling on it.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
PORTER: Your Honor, I'll withdraw the
tender. Keith Goff needs to identify
it.
THE
COURT: Okay.
MR.
PORTER: The chain's not complete
without the --
THE
COURT: Was that your --
MR.
MOORE: That was one of them.
THE
COURT: All right.
MR.
PORTER: It has to be identified by the
crime lab witness.
THE
COURT: All right. Well, the other, you want to go into now or
wait until later?
MR.
MOORE: Well, I'll wait until my
cross-examination, but I'd ask it be deferred, the tendering of it.
MR.
PORTER: I'll withdraw it.
THE
COURT: Okay. He's withdrawing it, now.
Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, please.
MR.
PORTER: Your Honor, after conference
with the Court and with defense counsel, I'll withdraw the tendered State's
Exhibit Number 100. We haven't quite
completed the chain of custody.
THE
COURT: All right.
BY
MR. PORTER:
Q. Now, Investigator Burnette, I'd also like to
show you what we have had previously marked as State's Exhibit Number 97. Let me get this out of your way. Can you take a look at that while I go back to
the table and return this. Can you
identify State's Exhibit Number 97?
A. Yes, sir.
It's a briefcase that was removed from the patrol car of Michael Chapel.
Q. Did you remove that from the patrol car?
A. No, sir.
Q. Did you check it into evidence?
A. No, sir.
Q. Have you ever removed it from evidence?
A. Yes, sir.
Q. How many times have you taken it out of the
evidence room?
A. Four.
Q. Can you tell us the dates that you removed
it from the evidence room?
A. Yes, sir.
I removed it -- actually five. I
removed it on April 26 of 1993, to simply remove keys and give to Michael
Chapel's father who had asked me for keys to his son's pickup truck. It was immediately placed back into the
property room.
Q. All right.
Investigator Burnette, on the date that you removed it, April the when?
A. 26th.
Q. All right.
On April 26, what was the condition of it when you received it from the
property room?
A. It was sealed.
Q. Sealed how?
A. With evidence tape and the locks were
locked, and I broke the evidence tape and took the keys out, as I recall.
Q. And what did you do with it before you
returned it to the property room?
A. Sealed it back up.
Q. And when is the next time you removed that
briefcase from the evidence room?
A. On May 10 of 1993.
Q. And what was the condition of it when you
received it from the property room?
A. Still sealed.
Q. Did you open it at that time?
A. Yes, sir.
Q. Did you look at the contents?
A. Yes, sir.
Q. Let me show you what we have had previously
marked as State's Exhibit Number 135. Can
you examine that and identify it, please?
A. Yes, sir.
It's a small hand notebook that was in the briefcase.
Q. When did you first notice it in the
briefcase?
A. I first noticed it on the 10th.
Q. Of -- the full date, please.
A. May 10 of 1993.
Q. And did you remove it from the briefcase at
that time?
A. No, sir.
Q. Did you remove any of the contents of
State's -- of the notebook which is the state's exhibit?
A. Not on May 10, no, sir.
Q. What did you do with the contents of the
briefcase on that day?
A. Locked it back up, sealed it up, and put it
back in the evidence room.
Q. When is the next time that you removed the
briefcase from the evidence room?
A. It was on May 17 of 1993.
Q. And what was your purpose -- what was your
purpose to remove it that day?
A. I went back in to take a listing of -- or
what appeared to be a listing of steroids which was located in the fold portion
here of the notebook.
Q. And what was the condition of the briefcase
when you received it from the property room?
A. It was sealed.
Q. Did you break the seals at that time?
A. Yes, sir, I did.
Q. And what did you do with it once you had
removed the items that you previously testified about?
A. I resealed the briefcase.
Q. And what did you do with it then?
A. Placed it back in the property room.
Q. When is the next time that you removed the
briefcase from the evidence room?
A. July 28 of 1995.
Q. And what was the purpose of removing it on
that date?
A. To show it to the defense team.
Q. Can you describe the condition of the briefcase
when you received it from the property room?
A. It was sealed.
Q. And did you break the seals at that time?
A. I did.
Q. Did you break them in the presence of the
chief investigator from my office, Glenn Teatino?
A. I did.
Q. And did you open the briefcase?
A. I opened the briefcase and handed it to
Investigator Teatino.
Q. Did you notice at that time whether or not
State's Exhibit Number 135 was in the briefcase?
A. Yes, sir, it was.
Q. It was?
A. Yes, sir.
Q. I have to go back to State's Exhibit Number
100 for a moment, Investigator Burnette.
The two vials of blood that you say that you took custody of, who did
you turn those over to?
A. Our property room clerk, Tammy Hodges.
Q. Now, in regard to State's Exhibit Number
135, on July 25 of 1995, were you present or did you become aware that certain
items of evidence had been recovered from that ledger book?
A. Yes, sir.
Q. And what were those items of evidence?
A. Four hundred dollar bills.
Q. Let me show you what's been marked as
State's Exhibit Number 121 A, B, C, and D.
Can you look at those and identify them, please, sir?
A. Yes, sir.
It's the four one hundred bills that were recovered from the notebook.
Q. And if you could just set those aside. Investigator Burnette, I'd like to talk to
you a little bit about the evening hours of April 22 and April 23, which is the
night of Mike Chapel's arrest. On that
date, did you have an occasion to conduct a videotaped interview with Michael
Chapel?
A. Yes, sir.
Q. Now, the jury has already seen that videotape,
but I'd like to talk a little bit about the events that led up to it. Can you tell us, did you consult with any
outside agency in preparation of the interview?
A. Yes, sir.
Q. And what agency did you consult with?
A. As we generally do on most of these cases,
we consulted with the Georgia Bureau of Investigation, their psychological
profile unit, Agent Ralph Stone.
Q. Prior to that, had you consulted with any
outside agencies to assist you in the conduct of the overall investigation?
A. Yes, sir.
Q. And what agencies were those?
A. We had -- prior to the interview?
Q. Prior to the interview or in the course of
the overall investigation.
A. Yes, sir.
Prior to the interview, of course, we had involved the Gwinnett County
district attorney's office. We had --
during the course of the investigation, we interviewed -- we involved the ATF
and the FBI.
Q. Now, let's go back to the time right before
the interview, and in preparation of the interview you consulted with the GBI,
you said. How was it decided or did you
decide who was going to do the questioning of Michael Chapel?
A. No, sir, I didn't decide. In talking with Ralph Stone --
MR.
MOORE: Your Honor, I'm going to object
to hearsay, now. If Agent Stone's going
to testify, that's one thing, but if he's going to go into what Agent Stone
told him, I object.
THE
COURT: I don't believe we've heard the
question yet. State your question,
please.
MR.
PORTER: Well, I asked, Your Honor, how
was it decided who was going to do the questioning.
THE
COURT: He can testify he had a
conversation with others, and that's not hearsay, but if you haven't -- we
haven't heard the question yet --
MR.
PORTER: I don't intend to go into the
contents of the --
THE
COURT: What is the question? We've not heard the question yet.
MR.
PORTER: Well, Your Honor, he hasn't
finished the answer.
MR.
MOORE: Your Honor, he started to answer
about what Agent Stone told me and that's when I objected.
THE
COURT: Okay. All right. Oh, okay. I'm sorry, Mr. Moore. Restate your question.
BY
MR. PORTER:
Q. Detective Burnette, did you consult with
Agent Stone regarding who were the most appropriate people to be the
questioners to increase the likelihood of obtaining a statement from Michael
Chapel?
A. Yes, sir.
Q. And were -- because of your relationship
with Chapel, was it felt that you would be one of the most effective
questioners?
A. Yes, sir.
Q. Was it also -- did you also consult with
Agent Stone regarding the timing of the interview and the circumstances
surrounding the interview?
A. Yes, sir.
We talked with Agent Stone about the circumstances surrounding the
interview, yes, sir.
Q. And when I talk about the circumstances, I
mean the physical circumstances.
A. Yes, sir.
Q. Did you talk with Agent Stone about the best
strategy for obtaining a statement from Michael Chapel?
A. Yes, sir.
Q. And in the course of that, were suggestions
made to you regarding the best strategy that you could use as an interview
technique?
A. Yes, sir.
Q. Did you at one point receive advice to confront
Chapel with information that wasn't true?
MR.
MOORE: Your Honor, that's hearsay.
MR.
PORTER: Your Honor, Mr. Moore brought
this out in --
THE
COURT: Just a moment, Mr. Porter. What's your objection?
MR.
MOORE: Your Honor, my objection is hearsay. Mr. Porter is stating hearsay and asking him
to affirm it.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, Mr. Moore brought
this out with all of his inferences in the notes that he had identified with
Captain Latty the other day on cross-examination. We stipulated to the admission of those notes. I don't have the defense exhibits. I can only ask the questions. If Mr. Moore will provide me with the
defense exhibits of handwritten notes, I can show them to Investigator
Burnette.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Objection's overruled. Go ahead, please.
MR.
PORTER: Mr. Moore, that's okay. I'll do it with questions.
BY
MR. PORTER:
Q. Investigator Burnette, did Agent Stone make
a suggestion to you as a potential strategy that you confront Chapel with
information that wasn't true?
A. Yes, sir, that was talked about.
Q. All right.
Is that a practice of the police during an interview?
A. Well, it depends on the type interview
you're doing and the subject that your interviewing. The statement that you're referring to is manufacturing a
witness.
Q. That's correct.
A. On someone like Michael Chapel, who's an
experienced police officer and hisself is familiar with interview techniques,
that would not be feasible. It just
wouldn't work. If you're talking about
a young kid out here who is a burglar and you want him to think that you know
more than you do, not actually manufacturing a witness, but perhaps preparing a
question of, along the lines of 'what would you say if I told you someone saw
you' or something of that nature, that would work. This certainly wouldn't work.
We talked about it, we decided it wouldn't work, and we thought that the
best way to do it was to confront him with the straightforward facts and deal
with it from there.
Q. Now, I'd like to ask you, at the time of the
beginning of the interview, did you advise Michael Chapel of his constitutional
rights?
A. I did.
Q. Did he appear to understand those rights?
A. He did.
Q. Did he appear to be under the influence of
any drugs or alcohol at the time?
A. He did not.
Q. Did he appear to be able to respond to your
questions and understand the questions as they were asked?
A. He did.
Q. At any time during the course of the
interview did he request a break or did he request food or refreshment?
A. He didn't request it. I think at one point I got us something to
drink, yes, sir.
Q. Would he have been allowed to take a break
in the interview had he requested it?
A. Certainly.
Q. Were you armed at the time of the interview?
A. No, sir.
Q. Did you display any weapons to him?
A. No, sir.
Q. Did you threaten him in any way?
A. Certainly not.
Q. Did you promise him anything in return for
the statement?
A. No, sir.
Q. Did he agree to talk with you during the
course of the videotaped statement?
A. Yes, sir.
Q. And did -- at any time during that, did he
request that the statements stop?
A. No, sir.
Q. Who terminated the interview?
A. I did.
Q. Now, Investigator Burnette, did you really
believe that you were going to get a statement from Michael Chapel the night
you interviewed him?
A. No, sir.
Q. And had he provided you with valid
information, would you have arrested him at the end of the interview? Excuse me.
Valid information that exonerated him?
A. No, sir.
Q. You would not have arrested him?
A. If he would have provided us with a
plausible explanation that would have exonerated him that we could have
verified, no, sir, we would not have arrested him.
Q. And did you ask him to provide that?
A. I begged him to.
Q. Thank you.
MR.
PORTER: That's all the questions I
have.
THE
COURT: Mr. Moore?
CROSS EXAMINATION
BY
MR. MOORE:
Q. Officer Burnette, I believe you know
me. My name is Johnny Moore. Now, on the evening of the arrest of Mike Chapel,
you were the lead investigator; is that correct?
A. Yes, sir.
Q. When Mike Chapel came to that police
department, when he walked into that interview room, he was in custody, wasn't
he?
A. No, sir.
Q. Officer Burnette, are you sitting there
telling me that if when it came time for him to get off work, he'd have said to
you, 'Jack, I'm tired, I want to go on home, I don't have anything to say to
you,' that you'd have let him leave?
A. If Michael Chapel would have walked in and
said that statement per se, no, sir, he wouldn't have left.
Q. You'd have arrested him right there and put
the handcuffs on him, wouldn't you?
A. If that would have happened, but it
didn't. What we --
Q. He wasn't free to leave from the time he
walked in the precinct --
A. Excuse me, Mr. Moore --
MR.
PORTER: Your Honor, I'm going to ask
that -- Mr. Moore's asking the questions and he's just interrupting to stop the
answers.
THE
COURT: Let him answer, Mr. Moore. Let him go ahead and respond to the
question.
THE
WITNESS: Thank you, Your Honor.
BY
MR. MOORE:
A. [Continuing] At that point in time, if Michael Chapel
would have walked into the police department and said, 'I've got nothing to
say, I'm leaving,' yes, he would have been arrested.
Q. And he wasn't free --
A. What we -- excuse me. What we were hoping, what I personally was
hoping, that there would be some plausible answer that would explain this, and
we could move on. I wanted to give him
that opportunity. When that opportunity
was given, and it didn't -- didn't happen, at approximately two o'clock in the
morning I advised Michael Chapel that he was under arrest for armed robbery and
murder. He was under arrest at that
time.
Q. But he was in custody at the time he came in
the police department?
A. Mr. Moore, at approximately 2:08 Saturday
morning, he was arrested for armed robbery and murder.
Q. Okay.
You informed him he was arrested, but he was not free to leave from the
time he came to that police department, from the time he was ordered to come
there, was he?
A. Mr. Moore, when he arrived --
Q. Would you answer yes or no and then explain
it? He was not free to leave when he
came to that police department, was he?
THE
COURT: Give him a yes or no,
Investigator Burnette, and you can explain your answer, if you wish.
BY
MR. MOORE:
A. [Continuing] No, sir. He couldn't have
left without a plausible explanation.
Q. Now, before you started questioning people,
did you check the log sheets for all the officers up at the northside precinct?
A. We had checked some log sheets, yes, sir,
but not all of them.
Q. You didn't check the log sheets to see where
people were before you started questioning people?
A. Mr. Moore, there was a lot going on in that
one week. We hadn't stopped at that
point to check every log sheet.
Q. Okay.
Did you check the log sheets of the officers on duty on that shift that
night at the northside precinct?
A. I personally didn't, no, sir.
Q. Did anyone check the log sheets of the
officers that were working for Sergeant Stone that were on duty that night?
A. I can't recall in that first -- if the first
week is the week that we checked that, no, sir.
Q. Did you have occasion to check them later?
A. Yes, sir.
Q. I'm going to show you what's been marked as
State's Exhibit Number 137.
A. Yes, sir.
Q. That's the log sheet for Officer Reddy. Do you recognize it?
A. Yes, sir.
Q. And what date's that for?
A. It's for April 15 of 1993.
Q. That's the date of the night of the murder,
isn't it?
A. Yes, sir, it is.
Q. And that log sheet shows his whereabouts on
that night?
A. Well, it shows what Officer Reddy said his
whereabouts were, yes, sir.
Q. Okay.
And that shows that he was at the Circle K on North Avenue at about
9:32?
A. According to his log sheet, yes, sir.
Q. Okay.
A. However, that's not factual information.
Q. And when did you learn that wasn't factual
information?
A. When we interviewed the firemen.
Q. And that was how much later?
A. At which point?
Q. When did you interview the firemen?
A. The night of Mike Chapel's arrest.
Q. I'm going to show you Defendant's Exhibit
Number 70 and ask you if you can identify that.
A. Yes, sir.
It appears to be a written -- the written statement that was taken by
Investigator Tkacik and Sergeant Cline from Brian Reddy.
Q. And that's the one that was conveyed to you
that night at the Gwinnett County police headquarters when you were questioning
Mike Chapel, isn't it?
A. Yes, sir.
Q. And that's what you based your questions on
to him about he wasn't at the firehouse, you and John Latty?
A. It was -- yes, sir. This information was conveyed to Lieutenant
Latty, and this is what he was questioned from, yes, sir.
Q. And that information was not true, was it?
A. No, sir, it was not.
Q. You and Officer Tkacik and Officer Cline
conspired to manufacture a witness there against Mike Chapel, didn't you?
A. No, sir, certainly not.
Q. If Officer Reddy had told Investigator
Tkacik and Investigator Cline that that report was not true, his log sheet, on
the night they went out there, do you believe they would have sent that report
to you?
A. I don't understand your question, Mr. Moore.
Q. If Officer Reddy told Tkacik and Cline that
that log sheet is false, 'I was not out there' the night of that interview on
the 23rd, would you have accepted that interview there?
A. No, sir.
Q. Because Reddy didn't tell them that, did he?
A. You're losing me. You're asking me if we would have accepted this under what
circumstances?
Q. If you knew that Reddy had falsified his log
sheets at that time --
A. Okay.
Q. -- would you have accepted that statement as
being true?
A. No.
We never have accepted this as being true.
Q. Nobody has?
A. No, sir.
We knew better than that when we interviewed the firemen.
Q. You told Officer Chapel in the videotaped
interview that you had checked the log sheets, and he was the only one who was
in that area that night, didn't you?
A. Yes, sir, I may have.
Q. And that wasn't true, was it?
A. Well, yes, sir. We may have checked the log sheets. Are you talking about the radio log sheets or are you talking
about the vehicle log sheets?
Q. I'm talking about the log sheets, like this
one right here.
A. Well, we had checked the log sheets, the
radio log sheets.
Q. Okay.
But you didn't check the log sheets from where the people wrote themselves
where they were?
A. Mr. Moore, I've explained to you that I
don't know at what point in time we checked the log sheets, whether it was that
first week, second week or whatever.
Q. If, in fact, Officer Cline and Officer
Tkacik learned about this log sheet on the night you were questioning Mike
Chapel, should it have been followed up on where he was and what he was doing?
A. Well, it was being followed up on where he
was and what he was doing. At the same
time he was being interviewed, the firemen were being interviewed.
Q. But did the police just take his word for it
that he wasn't where he said he was on this log sheet?
A. No, sir.
We backed it up with statements of the firemen that said he was at the
fire station.
Q. Did you do that the night of the 23rd?
A. Yes, sir.
Q. Did you do that before this statement?
A. I think it was basically during the same
time.
Q. Officer Burnette, when you went to Hall
County to get the blood samples, who went with you?
A. Lieutenant Latty.
Q. Okay.
And you talked about obtaining search warrants?
A. Yes, sir.
Q. Who obtained the search warrants?
A. I did.
Q. And where did you obtain them from?
A. Hall County.
Q. Hall County magistrate court?
A. Yes, sir.
Q. Tell the jury what jurisdiction you have
outside of Gwinnett County?
A. Well, I'm a Gwinnett County police officer,
and I'm also deputized as a Gwinnett County deputy sheriff. I have the ability to execute search
warrants. And we did in fact go up
there and take the Hall County deputy sheriff with us to the magistrate court
and obtained -- or I went to the magistrate court and then we picked up Mr.
Chapel and took him to the medical center and executed the search warrant.
Q. Do you answer to Sheriff Carsten?
A. No, sir.
I answer to Chief Carl White.
Q. So are you a deputy sheriff or a police
officer?
A. I'm a police officer but I'm also deputized.
Q. But a deputy sheriff has to answer to the
sheriff, doesn't he?
A. I answer to Chief Carl White.
Q. Do you have anything with you showing that you're
a deputy sheriff?
A. Yes, sir, I do. [Presenting]
Q. When did you become a deputy sheriff,
Officer Burnette?
A. Several years ago. Sheriff Carsten swore in several people, I think about everybody
in the criminal investigation division.
Q. Do you receive any pay from the sheriff's
department?
A. No, sir.
Q. Do you get any benefits from the sheriff's
department?
A. No, sir.
Q. Do you have a badge that says sheriff's
department on it?
A. No, sir.
Q. Now, one of the things I noted in the
interview, the videotaped interview, that Officer Latty -- and I don't know if
you were present or not and you can tell me if you were -- told Mike Chapel
that they would notify his family and everything where he was so that they
wouldn't be worried about if he'd gotten hurt or killed on duty or
something. Are you aware of that?
A. He may have at some point in time toward the
end, yes, sir.
Q. Do you know if anybody ever did that?
A. I'm not -- I didn't personally.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 90 and ask you if you could identify that?
A. Yes, sir.
It appears to be a blowed up photograph of the Sugar Hill city marshal.
Q. In front of the city hall?
A. Yes, sir.
Q. Is that a true and accurate representation
of the way the Sugar Hill city marshal looked, his car and the scene in the
background?
A. Yes, sir.
MR.
MOORE: Your Honor, at this time I'd
tender Defendant's Exhibit Number 90.
MR.
PORTER: Your Honor, it's an accurate
representation to the extent that it's been cropped somewhat of a previously
admitted exhibit and the state has no objection.
THE
COURT: Defendant's 90 is admitted
without objection.
BY
MR. MOORE:
Q. Officer Burnette, you testified on direct
examination that the Sugar Hill city marshal is left-handed, didn't you?
A. Yes, sir.
Q. Which hand is he keying the mike with in
that photograph?
A. He's standing in a normal position in a
patrol car door on the driver's side.
He's keying with his right hand, but he's wearing a left-handed weapon.
Q. So he may have -- for all you know, he may
be ambidextrous?
A. We all might. He's predominantly left-handed.
Q. He's using his right hand there to key that
mike, though, isn't he?
A. He is indeed, but that's the normal way
you'd stand in the door of an automobile.
Q. Is that the normal way a left-handed person
would use a mike?
A. Unless he turned around backwards looking
toward the back of the car, yes, sir.
Q. So a left-handed person couldn't hold it a
different way and use it?
A. Sure.
He could pull it all the way across him. It would seem that that would be somewhat uncomfortable.
Q. Do you have any knowledge as to whether the
Sugar Hill marshal is ambidextrous?
A. No, sir, I don't.
Q. Of your own personal knowledge?
A. Not of my own personal knowledge.
Q. I'm going to show you what's been marked as
Defendant's Exhibit Number 91 and ask you to examine that and see if you can
identify it.
A. It appears to be some kind of sheriff's
department log. No, sir, I don't guess
I've ever seen it before.
Q. So to your knowledge nobody ever checked
that particular log sheet?
A. Not that I'm aware of, no, sir.
Q. That's a log sheet for a deputy
sheriff. You testified, I believe, that
you had checked the log sheets for deputy sheriffs, or someone had, to see who
was in the area that night?
A. No, sir, Mr. Moore, I didn't testify to
that. I testified that -- we were
talking about our log sheets, Gwinnett County police or --
Q. Maybe I misstated it, Officer.
A. Yes, sir.
Q. On the videotape you told Mike Chapel that you
had checked the log sheets for all the law enforcement officers up in that
area, didn't you?
A. No, sir, I don't believe I told them log
sheets. I think I probably just told
him that we had checked with other sheriff's departments and the Georgia State
Patrol and other agencies.
Q. Now, Mr. Porter showed you some photographs
here, I believe, of unit 197?
A. Yes, sir.
Q. Now, if you would, would you mind coming
down to show the jury.
A. [The witness stepped down from the stand.]
Q. If you don't mind, we'll repeat this twice
so the entire jury gets to see it. Now,
looking at Unit 197, this is a picture of the back of it; right?
A. Yes, sir.
Q. Okay.
Now, the stripe on there that Mr. Porter had you point out, it comes
straight back and stops, doesn't it?
THE
COURT: What exhibits are we looking
at, Mr. Moore?
MR.
MOORE: Exhibit Number 75.
THE
COURT: State's or defendant's?
MR.
MOORE: State's Exhibit 75, Your Honor.
THE
COURT: Okay. Thank you.
BY
MR. MOORE:
Q. The stripe comes straight back and stops,
doesn't it?
A. Yes, sir.
Right here at the back of the car, it curves and stops right there, yes,
sir.
Q. It doesn't go up and over the car?
A. No, sir.
[Mr.
Moore and Mr. Burnette move to the end of the jury box.]
BY
MR. MOORE:
Q. The stripe I'm talking about here, it does
not go up and over the top of the car, does it?
A. No.
Q. If you'd wait just one second. Again, Defendant's Exhibit Number 2, and
looking at Number 6 now, which is one of the old style patrol cars --
A. Yes, sir.
Q. -- does the yellow stripe go back and up and
over the top?
A. Yes, sir.
Q. And the ones like this don't go, like Number
11, don't go over the top?
A. No, sir.
MR.
PORTER: Mr. Moore, do you want to -- I
think Investigator Burnette was standing in the --
MR.
MOORE: I'm sorry. They couldn't see it. Come down here, Mr. Burnette.
[Repositioning
exhibit to the end of the jury box]
BY
MR. MOORE:
Q. Referring to Number 6, the yellow stripe
goes back and it goes up and over the top of the car?
A. That is correct.
Q. That's the old style patrol cars Gwinnett
County had?
A. That is correct.
Q. And the new ones, the Number 11, they don't
go up and over the top; is that correct?
A. That is correct. [The witness returned to the stand.]
Q. And Mr. Kautter's description of that car
was a yellow stripe that went down the side and up and over the top, wasn't it?
A. I don't remember right off the top of my
head, Mr. Moore.
Q. Do you know what kind of cigarettes Emogene
Thompson smoked?
A. I can't recall right off the top of my head
whether she smoked at all. She may
have.
Q. Let me show you Defendant's Exhibits Number
92 and 93. These are photographs of
some items that we took the day that you displayed the evidence to us out at
the police department, and ask if you can recognize those.
A. Yes, sir.
Q. Okay.
And what are they photographs of?
A. A pack of cigarettes, and it appears to be a
cigarette case of some type -- of some kind.
Q. Is that -- are those photographs a true and
accurate representation of the way that the evidence looked out at the police
department on July 28 when it was laid out?
A. Yes, sir.
MR.
PORTER: The state would stipulate to
them, Your Honor.
MR.
MOORE: Your Honor, I would tender
Defendant's Exhibit Number 92 and 93.
THE
COURT: No objection; is that correct?
MR.
PORTER: No objection, Your Honor.
THE
COURT: Defendant's 92 and 93 are
admitted without objection.
BY
MR. MOORE:
Q. Can you tell, looking at 92 and 93,
Defendant's Exhibit 92 and 93, what kind of cigarettes those are?
A. No, sir, I can't.
Q. Do you know what kind of cigarettes were
recovered?
A. No, sir, not right off the top of my head, I
sure don't.
MR.
MOORE: Your Honor, I'd request to
publish these to the jury. Mr.
Burnette's having the same trouble I am with his eyesight. Maybe some of them can read it.
THE
COURT: Go ahead, please.
[Mr.
Moore presenting to the jury]
MR.
MOORE: I'm getting to that point where
I'm about to have to -- not be able to read things.
BY
MR. MOORE:
Q. Officer Burnette, did you ever tell Officer Hunnicutt
to go out and get firemen's statements?
A. Yes, sir, it seems like I did. I don't remember exactly which one of the
officers I sent to get the statements, but I may have very well.
Q. Now, when you -- did you ever have occasion
to examine Mike Chapel's car after he was arrested?
A. Did I?
Q. Yes, sir.
A. No, sir.
Q. Were you aware of any unusual items that he
had in his car that weren't standard issue?
Now, I'm talking about -- referring to the passenger compartment; I'm
not talking about things in the trunk.
A. That weren't standard issue.
Q. Specifically -- I'm not trying to play games
with you -- he had a little thing he kept on the dash in his car. Did you ever see that?
A. What was the little thing? No, sir, I don't guess I did.
Q. If you saw it, you'd probably know about
it. Now, on the road checks that were
run out there at the Gwinnco Muffler Shop, do you know who worked those road
checks?
A. Yes, sir.
The -- I don't have a list of each one of the individuals that were out
there here, but I -- yes, sir, I've got a general idea of who was out
there. Our investigators from our unit;
three nights, there were traffic units; the first night, there were several
uniform officers, including Mike Chapel.
Q. And were you and he and other people standing
there in the driveway where the crime scene was?
A. The detectives were standing back in the
driveway up away from the road, and the uniform officers were doing the actual
road check.
Q. Okay.
And they'd come up and talk to you whenever they got any information; is
that correct?
A. They'd generally send the person to us, yes,
sir.
Q. Did Mike Chapel ever come and talk to you?
A. Not that I recall.
Q. Now, I believe April 22 you had occasion to
take the victim's car out; is that correct?
A. April 22, I had an occasion to do what?
Q. April 22 -- I'm sorry. It must not be April 22. That must not be the right date. Was Officer Reddy ever up at the road
checks?
A. I can't recall. He may have very well been on the first one, but after that first
night, there was -- our traffic people were the only ones, uniform officers,
that were on the scene with us.
Q. Okay.
I had my dates wrong about when you took the victim's car out. That was on May 22, I believe, you took it
out for some sort of a test or something?
A. You talking about May 13?
Q. Maybe it is May 13. My dates may be wrong here. Did you have occasion after it was taken out
of the impound lot to do something with it?
A. Yes, sir.
Q. And what did you do?
A. We drove the victim's car back to the scene;
we closed down Peachtree Industrial Boulevard; we put a patrol car behind it
and did re-enactments up until around midnight.
Q. Was that transaction recorded on the
property sheets?
A. I don't know.
Q. Now, you testified, I believe, that you
interviewed and checked out people up at the gym. Did you ever interview Van Parker?
A. Yes, sir.
Q. What about Blan Wright?
A. Yes, sir.
Q. And when did you interview them?
A. Approximately a week ago.
Q. A week ago?
A. Yes, sir.
Q. So you waited two and a half years to follow
up on what you told Mike Chapel you were going to follow up on right away?
A. Yes, sir.
We did, because when Mike Chapel finished his statement that morning and
beginning on into the next week, we knew that his statement and his alibi, if
you will, wasn't working. Originally,
of course, he had talked to Captain Davis and said he was at the fire
station. The firemen didn't hold up his
alibi nor did Sergeant Stone. A week
following that, the physical evidence was coming in. We knew about the blood in the car seat, and we had had a
magistrate court hearing two weeks after the murder itself and a week after his
arrest, at which time his attorney at that time told the Court that he would
furnish us with the names and addresses of all the people that could support
his alibi in reference to the T-shirts and his coming by the gym. Now, in addition to that, even if one
chooses to believe that he went by the gym, which --
MR.
MOORE: Your Honor, I believe he's gone
far beyond explaining his answer. I
asked him if he interviewed Van Wright and did he -- I mean Van Parker --
THE
COURT: I believe so. Investigator -- restate your question. Investigator Burnette, answer his question
now.
THE
WITNESS: Yes, sir.
THE
COURT: Listen to his question and
answer the question he asks. Go ahead.
BY
MR. MOORE:
Q. I asked you did you interview Van Parker?
A. Yes, sir.
Q. Okay.
And did you interview Blan Wright?
A. Yes, sir.
Q. And when did you do that?
A. About a week ago.
Q. Okay.
MR.
PORTER: Your Honor, but the next
question was, 'So you waited two and a half years to interview the person that
you said you would interview the next day --'
THE
COURT: He can explain that portion of
it, but be direct in your explanation, please.
THE
WITNESS: Your Honor, I'm --
THE
COURT: Go ahead. We'll interrupt again if need be.
THE
WITNESS: Okay.
BY
MR. MOORE:
A. [Continuing] In addition to what I've already said, of course, Mr. Britt never
furnished us with any names and addresses or anything of that nature to verify
these people. And we did, in fact, even
though his alibi no longer held water, go out and try to locate and interview
some of them.
Q. You went out and tried to locate the people
that Mike Chapel told you about, but you waited two and a half years to do it,
didn't you?
A. Sure.
His alibi didn't hold water.
Q. And being a police officer, he told you,
when you were interviewing him, based on what you had told him, some of which was
false evidence, that without an alibi he didn't have a defense, didn't
you? That's what he told you on the
tape, isn't it?
A. Direct the false evidence to me. I don't know what you're talking about.
Q. That was false evidence when you told him
that Brian Reddy said he wasn't at the fire station?
A. I don't know that it was -- it wasn't true,
but it wasn't intentionally told to Mike Chapel by us, no, sir.
Q. Okay.
So there's a category of true and there's a category of false, and then
there's this big gray area in between, huh?
A. No, sir.
Brian Reddy had told it as the truth.
And that's what we were operating on until we showed it to be
false. And when we did show it to be
false, we corrected it.
Q. When it didn't work in the interview, you
corrected it, didn't you?
A. No, sir.
When we learned that it was false, we corrected it.
Q. I'm going to show you what's been marked as
Defendant's Exhibit 71, 72, and 73 and ask you if you can identify those?
A. Well, I can identify D-71. They appear to all be written Gwinnett
County police incident reports written by Mike Chapel.
Q. And did those come out of his briefcase that
you took possession of?
A. Out of his briefcase?
Q. Yes, sir.
A. No, sir.
The theft by taking report here came out of the miscellaneous papers
that had been collected by crime scene technician White.
Q. And did the other two come out of the
miscellaneous papers also collected by the crime scene technician?
A. Oh, I don't know where they came from, Mr.
Moore.
Q. I'm going to show you Defendant's Exhibit
Number 94 and ask you if you can identify that. That's another photograph we took when you displayed the evidence
to us out at the police department.
A. [Examining exhibit]
Q. I know you probably can't read those; I
can't read them either. Do you remember
laying the papers out like that for us?
A. Yes, sir.
We took several of these, and these may have well been what we took
pictures of, but I really can't identify them from that.
MR.
PORTER: Your Honor, between Mr. Moore
and Mr. Burnette, my eyesight appears
to be better. That is a photograph of
the two incident reports. I can't state
where they came from, but it is a photograph of two incident reports that
Investigator Burnette is examining. I
have good enough eyesight to say that and I'm prepared to stipulate to it.
THE
COURT: That is --
MR.
PORTER: I'm not prepared to stipulate
to its admissibility, but I --
THE
COURT: All right. Defendant's Exhibit 94 is a photograph of Defendant's
72 and 73, the incident reports; is that correct?
MR.
PORTER: That is correct, Your Honor.
MR.
MOORE: Yes, Your Honor.
THE
COURT: All right.
MR.
PORTER: And it is a true and accurate
representation of those incident reports, Your Honor, but I cannot state where
it came from -- where those reports came from or any other -- I can only use my
own faculties to identify them.
THE
COURT: All right. Mr. Moore?
BY
MR. MOORE:
Q. Were those items 72 and 73, assuming that
these are the same ones in this photograph, were they laid out for us to see at
the police department?
A. I believe y'all laid them out and
photographed them, yes, sir.
Q. Okay.
And did all of those items there come out of his car?
A. Yes, sir.
Q. Out of Mike Chapel's car?
A. Yes, sir.
Q. Now, when we came out to the police
department and you took us around and let us look at the evidence and
everything and showed us where -- let us photograph things and everything, do
you recall that?
A. Yes, sir.
Q. And you had keys to everything. You had keys to the morgue, keys to the
headquarters there, and everything.
Besides yourself, who else has keys to all those buildings?
A. Which individual buildings are you talking
about specifically?
Q. Well, you had a key to the morgue on your
key ring that day. You opened it up.
A. Yes, sir.
Q. You had a key to the detective area there
coming in from the outside where you opened it up, a key to the back door there
coming in toward the evidence room. Who
all has keys? Is that a master key?
A. My key will open the headquarters building,
of course. Of course, it has the punch
numbers on the doors so you don't need a key.
However, you have to have the combination, of course, to get in, but on
-- to the morgue, our investigators have keys, the medical examiner's office
has keys, supervisors have keys, our maintenance -- building maintenance
people, I'm sure, have keys.
Q. Okay.
Did you work on another homicide investigation the previous day prior to
working on the case on Ms. Thompson?
A. Yes, sir.
Q. And without going in any details, we're not
trying to try that case, but when did that case occur, what time of day?
A. It seems to me that we got that call late
Thursday afternoon, and we were on the scene all afternoon and interviewing
witnesses till up into the night.
Q. Is Thursday the 15th? Or is that --
A. Yes, sir.
Q. -- the 14th?
A. Thursday?
Thursday --
Q. I've got a calendar if it might help you --
A. No, sir, I don't need it. Thursday is the 15th.
Q. Okay.
That's the same night, then, that Ms. Thompson was murdered?
A. Indeed it is.
Q. Okay.
And you were investigating another murder case that night?
A. Yes, sir.
Q. How long did that investigation continue in
the other case?
A. I have no idea. That case was assigned to Investigator Doug Davis.
Q. Maybe I didn't make my question clear. What time did you leave the scene or how
long did you work on it that night before you went home, before you got off
duty?
A. Till around midnight or a little after.
Q. And what time did you go back on duty in the
morning, the next morning?
A. Around 7:30. Seven, 7:30.
Q. Did you check whether or not any other
officers had contact with Ms. Thompson or her son in the days following the
burglary call?
A. Yes, sir.
Q. And how did you check?
A. I interviewed Ms. Thompson's son, Michael;
we talked with her friends; and we also tried to establish phone records of any
other contact that she had had from her residence with the precinct or any
other officers.
Q. And the Gwinnco Muffler Shop where Ms.
Thompson was killed, whose zone was that on the night of April 15, 1993?
A. On the night of April 15 of 1993, very early
on, in the magistrate court, I believe I had said that it was Mike's zone. That was actually, as we checked into it, Officer
Reddy's zone.
MR.
MOORE: That's all I have.
THE
COURT: Redirect?
MR.
PORTER: I just have a couple of brief
questions.
REDIRECT EXAMINATION
BY
MR. PORTER:
Q. Investigator Burnette, I'd like to show you
again what has been marked as Defendant's Exhibit Number 71.
MR.
PORTER: Your Honor, the state intends
to introduce what has been previously marked as Defendant's Exhibit Number 71,
I'll have it re-marked as a State's Exhibit --
THE
COURT: All right. Which exhibit are we talking about?
MR.
PORTER: Your Honor, it's been
previously marked as Defendant's Exhibit Number 71.
THE
COURT: All right. And that's an incident report?
MR.
PORTER: That's an incident report which
will be identified by Investigator Burnette, Your Honor. I want to introduce it as a state's
exhibit. I'm prepared to have it
re-marked or if Mr. Moore can stipulate that it can be tendered by the state
under that number. I don't -- I'm at a
loss as to procedure.
MR.
MOORE: Your Honor, I don't know of any
reason that it shouldn't be admitted into evidence, and we have no objection to
it being admitted under the defendant's exhibit number. Since it's already been referred to by
witnesses that way, it might get rather confusing when you go back and try to
--
THE
COURT: All right. Defendant's Number 71 is admitted.
BY
MR. PORTER:
Q. I'd like you to look at Defendant's Number
71, which has been admitted as a State's Exhibit, and can you identify that,
please?
A. Yes, sir.
Q. And can you tell us what it is?
A. It's a Gwinnett County police original
incident report entitled 'theft by taking.'
Q. Who is the victim on that?
A. Emogene Thompson.
Q. And can you read the narrative to it?
A. The narrative is very limited. It says, 'During the listed times, persons
removed --'
THE
COURT: Let me ask, by way of the
stipulation into evidence, you intend it to go out with the jury; is that where
we are?
MR.
PORTER: Your Honor, I think that it
will require further ruling by the Court to determine whether or not it needs
to go out with the jury. The state has
no objection to it.
MR.
MOORE: Your Honor, we agreed to the
admissibility of it, but whether it goes out with the jury or not, there's a
lot of things the state has objected to, and I don't know that we're going to
allow them to send out things if we can't send out things, too.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: I guess my question is, as far
as it being stipulated into the record, what does that mean as far as its
use? Does that mean everybody can read
it in its totality or does that mean it's admissible for the purpose of
impeachment or what?
MR.
PORTER: Your Honor, I think it's
admissible for any -- my intent is to have it admitted for any purpose.
THE
COURT: I guess at this point it's at
least tantamount to use consistent with a statement or something that. You can read it and everybody can talk about
it and you can cite portions or all of it for the jury, and we'll worry about
whether it goes out or not later; is that where we are?
MR.
PORTER: That's my understanding, Your
Honor.
MR.
MOORE: It's in Mike's handwriting, Your
Honor. It came out of his car.
THE
COURT: Okay.
MR.
MOORE: It's a partial report that he wrote.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, please.
BY
MR. PORTER:
Q. Investigator Burnette, if you could, you've
identified that as a partial police incident report. Does it have the victim listed in it?
A. Yes, sir.
Q. And does it have the address where the theft
took place?
A. Yes, sir.
Q. Does it have a notation regarding the
property taken?
A. I don't see that it's noted anywhere where
property is taken.
Q. And what does the -- and again, what does
the narrative say?
A. The narrative is very simple. It stops in the middle of a sentence. It says, 'During the listed times, persons
-- persons removed.'
Q. That's all there is?
A. That's all there is.
Q. Let me show you --
MR.
PORTER: And I'm going to have this
marked as the next State's Exhibit.
[State's
Exhibit Number 138 was marked for identification by the court reporter.]
BY
MR. PORTER:
Q. State's Exhibit Number 138, can you look at
that and identify it, please?
A. Yes, sir.
Q. And what is State's Exhibit Number 138?
A. This is a piece of paper that I recovered
out of the miscellaneous papers that had been collected by our crime scene
techs from Mike Chapel's car. On this
piece of paper, it shows a telephone number of 932-1386, which is our victim
Emogene Thompson's home phone number.
Q. And where was Defendant's Exhibit Number 71
and State's Exhibit Number 138 located by the Gwinnett County police
department? Where were they located?
A. In Michael Chapel's patrol car.
MR.
PORTER: Your Honor, at this time, the
state would move for admission of State's Exhibit Number 138 as having been
recovered by ID Tech M. A. White and labeled miscellaneous papers and has been
identified by Investigator Burnette.
THE
COURT: Mr. Moore?
MR.
MOORE: No objection, Your Honor.
THE
COURT: State's 138 is admitted without
objection.
MR.
PORTER: Your Honor, that completes my
redirect on Investigator Burnette.
THE
COURT: Recross?
RECROSS EXAMINATION
BY
MR. MOORE:
Q. Officer Burnette, who all at the police
department has evidence tape?
A. Evidence tape?
Q. Yes, sir.
A. Mr. Moore, evidence tape is accessible to
any enforcement personnel and certainly accessible to ID and crime scene
techs. Virtually anybody.
Q. Okay.
MR.
MOORE: That's all I have. Thank you.
THE
COURT: Any other question of this
witness?
MR.
PORTER: No, Your Honor.
THE
COURT: You can come down.
THE
WITNESS: Thank you, Your Honor.
[The
witness stepped down from the stand.]
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: I've sort of lost track of time,
but I guess it's about time for a recess of some kind. Who have you got next? Mr. Goff?
MR.
PORTER: Mr. Goff from the crime lab,
Your Honor.
THE
COURT: Okay. That's your witness you want to wind up with today?
MR.
PORTER: Yes, sir. He's the first DNA witness.
THE
COURT: Okay. How long do you think your direct's going to be?
MR.
SMEAL: Your Honor, I'd guess an hour or
two, a couple of hours on direct.
THE
COURT: Okay. I think we'll take ten minutes, and then we'll go to a good
quitting point wherever today, probably in the neighborhood of 5:30 or six,
somewhere along in there.
MR.
MOORE: I was going to say I'd request,
Your Honor, if I could, we try to quit by six.
I'm meeting an expert witness tonight at Emory University, and I need to
be there by seven o'clock.
THE
COURT: All right. We'll knock off no later than six. Okay.
[Bench
conference concluded.]
THE
COURT: We're going to take a ten-minute
recess at this point, and then we're going to push on with the witnesses and go
till about six o'clock, I expect, and then recess for the afternoon and
commence tomorrow.
If
you'll leave your pens, pads, and notes, they'll be in your seats when you return. We'll take ten minutes. If you'll go with the bailiff at this point.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Mr. Porter, how long -- or Mr.
Smeal, how long do you think you'll be with your direct of Mr. Goff altogether?
Two or three hours? Is that your direct, do you think?
MR.
SMEAL: I would estimate, Your Honor,
based upon the pretrial hearings that we had in this case and also the fact
that the state will be calling Mr. Goff prior to Dr. Herrin that a couple of
hours at least on direct examination.
THE
COURT: Okay. How long do you think Dr. Herrin is going to be on direct?
MR.
SMEAL: I would estimate probably about
the same on some slightly different issues.
THE
COURT: Okay. Well, we have an hour and a half or so, so maybe we'll get most
of the direct out of the way this afternoon with Mr. Goff, and that will leave
us, I guess, with the cross, however long, and Dr. Herrin. Do you still think at this point we're going
to be through tomorrow with the state's case?
Does that appear likely?
MR.
SMEAL: Yes, Your Honor. We anticipate at this time calling these two
witnesses, and I believe that will be the state's case.
THE
COURT: Okay. All right. We'll take ten
minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
SMEAL: Yes, Your Honor.
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: Call your next witness, please.
MR.
SMEAL: The state calls Keith Goff.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: If you'll administer the oath,
Mr. Smeal.
MR.
SMEAL: Yes, sir. Please have a seat, Mr. Goff. Please raise your right hand. Do you solemnly swear the testimony you're
about to give in the matter now pending before the Court will be the truth, the
whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. SMEAL:
Q. Please state your full name and spell your
last name for the court reporter, if you would.
A. My name is Keith Goff, and the last name is
spelled G-o-f-f.
Q. What is your occupation, Mr. Goff?
A. I work for the Georgia Bureau of
Investigation in the division of forensic sciences, and that's also known as
the Georgia crime lab.
Q. How long have you worked for the crime lab?
A. I've been employed by the crime lab for just
over nine years.
Q. And what are your duties with the crime lab?
A. I'm a forensic serologist and a DNA analyst,
so I identify and classify body fluids, such as blood, semen, and saliva.
Q. What is your educational background, Mr.
Goff?
A. I received a bachelor of science degree with
a major in biology in 1981. I received
that degree from Middle Tennessee State University. I also received a master of science degree with a major in
biology. I received that degree in
1987, and it was also received from Middle Tennessee State University.
Q. What training and experience have you had,
specifically, in the area of DNA analysis?
A. I've completed a six-months -- six-month
in-house training course in the area of DNA analysis. That was directed by Dr. George Herrin, who is a supervisor of
the DNA unit at the Georgia state crime laboratory. I've also completed several specialized training courses. I attended a one-month school in theory and
laboratory techniques in DNA analysis.
That was taught at the FBI academy in Quantico, Virginia. I also went back for another one-week
school, and that was in DNA analysis, and it was taught by the FBI academy in
Quantico, Virginia. I've also attended
another in-house course. It consisted
of three hours a day for approximately ten weeks on the area of DNA analysis
and population genetics. It was taught
by Dr. Sydney Kushner and Dr. Wyatt Anderson of the University of Georgia. I've attended a course in -- I think it was
called population statistics. It was
taught at a meeting of the Southern Association of Forensic Scientists and the
instructor was Howard Coleman. And I've
also attended a few other courses similar to that.
Q. Are you a member of any professional
organizations?
A. Yes, sir.
Q. Okay.
What are they, please?
A. I'm a member of the Southern Association of
Forensic Scientists, and I am a -- I believe it's called a provisional member
of the American Academy of Forensic Sciences.
Q. Have you published anything in the area of
DNA analysis?
A. Yes, sir.
I published an abstract.
Q. Do you know what the subject of that
abstract was?
A. The subject of that abstract was analyzing
autoradiographs on a bio-image system, which is a system which calculates the
band sizes.
Q. Have you testified before in the courts of
Georgia on the issue of DNA analysis?
A. Yes, sir.
Q. And have you been qualified in that area
before as an expert?
A. Yes, sir.
Q. How many types of DNA methodologies are
there, Mr. Goff?
A. There are two basic types.
Q. And what they are?
A. They are the RFLP procedure and that stands
for restriction fragment length polymorphism, and the PCR procedure and that
stands for polymerase chain reaction.
Q. Okay.
And the training and education and experience that you have described,
have you had that training in both of those methodologies?
A. Yes, sir, I have. I've had more in the RFL procedure -- RFLP procedure.
Q. Okay.
And was it an RFLP procedure that was done in this case?
A. Yes, sir.
Q. Have you testified before on the specific
methodology of RFLP?
A. Yes, sir.
MR.
SMEAL: Your Honor, at this time, we
would be offering Keith Goff as an expert in the area of DNA analysis.
THE
COURT: Mr. Moore, do you wish to voir
dire the witness as to his qualifications?
MR.
MOORE: Not at this time, Your Honor.
THE
COURT: The Court finds him
qualified. Go ahead, please.
BY
MR. SMEAL:
Q. Mr. Goff, if we could begin with some
basics. Would you please explain to the
jury what is DNA?
A. DNA is a substance which is found in your
body that controls all of your characteristics. It can give you your eye color.
It gives you how many arms you have, how many fingers you have, how many
legs you have.
Q. And what does a DNA molecule look like?
A. Could I use the board?
Q. Sure.
A. Can I erase what's up there?
MR.
MOORE: I don't have any objection to
him erasing that, Your Honor.
THE
COURT: All right.
MR.
SMEAL: Go ahead, Mr. Goff.
THE
COURT: The board's yours.
[The
witness stepped down to the demonstration board.]
BY
MR. SMEAL:
A. [Continuing] The DNA molecule is double-stranded. It has two sides and this side consists of deoxyribose sugar and
phosphate. It's like a ladder and these
are the sides of the ladder. Then it
has rungs that are going across, and the rungs are the bases. And the bases are A's, T's, G's, and
C's. [Drawing diagram] Okay.
That's basically what the molecule looks like. The A's always pair up with the T's, G's always pair up with
C's. And if you'd take a ladder and you
would twist it, the DNA molecule's a double helix and it's twisted, so this
would be twisted if it were actually drawn exactly like the molecule looks.
Q. Is it also coiled within a molecule?
A. Yes, sir, it is.
Q. And once again, the A, T, G, C that you have
referred to, what do those letters stand for?
A. Those are the bases. When you talk about DNA or talk about links,
you talk about base pair, and A and T is a base pair. Just an A is a base.
Q. Okay.
And what do those letters actually stand for?
A. The letter A stands for adenine, the letter
T stands for thymine, G stands for guanine, and C stands for cytosine.
Q. Okay.
And approximately how many base pairs are there in a DNA molecule?
A. In a DNA molecule, there are about three
billion base pairs.
Q. And is the DNA molecule found in every cell
in the human body?
A. It's found in every cell except for red
blood cells, and the reason we can analyze blood, it is found in white blood
cells.
Q. All right.
You have testified that there are approximately three billion base pairs
in a DNA molecule. Could you write the
number three billion up in the upper left-hand corner.
A. [Witness complies]
Q. And approximately how many cells are there
in the human body?
A. In the human body, there are about a hundred
trillion cells.
Q. And does each cell have a nucleus?
A. Yes, other than the red blood cells.
Q. Would you write the number a hundred
trillion below the three billion?
A. [Witness complies]
Q. If you were to -- please be seated for
another minute. You may have to get up
again, but --
A. [The witness returned to the stand.]
Q. -- if you were to unwind a DNA molecule, how
long would it be?
A. It would be approximately two to three feet
long if you could unwind it and just pull it straight out.
Q. And what is the function of DNA in the human
body or, for that matter, in any living organism?
A. The DNA is the building block for
everything. It controls, as I said
before, things like your hair color, your eye color, whether you have a liver,
a heart, and there are also segments of DNA that essentially don't do anything.
Q. I want to ask you about a couple of other
terms, Mr. Goff. What is a chromosome?
A. A chromosome is the structure in the cell
and it is made up of DNA.
Q. And how many chromosomes do we all have?
A. Everybody has twenty-three pairs or
forty-six chromosomes.
Q. And in terms of inheritance, where do we get
those chromosomes?
A. One-half of your chromosomes or your DNA is
inherited from your mother; the other half is inherited from your father.
Q. What is a gene?
A. A gene is a section of DNA that codes for
something. This is not really a good
example, but say there's a section of DNA that codes for hair and that would be
the gene for hair color.
Q. And would a gene consist of a sequence of
base pairs?
A. Yes, it would.
Q. And would it have a location within a
chromosome?
A. Yes.
Q. With the exception of identical twins, does
everybody's DNA differ in terms of the entire DNA profile?
A. Yes, it does.
Q. To some extent, is everybody's DNA the same?
A. Yes, sir.
A large amount of it is the same because we're all humans.
Q. Approximately what percentage is it accepted
that the DNA is the same amongst all human beings?
A. Around 90 to 95 percent of the DNA is the
same among all individuals.
Q. And is that because, as you've indicated,
we're all human beings?
A. That's correct.
Q. Okay.
And have two arms and one head and two legs and so on and so forth?
A. That's correct.
Q. And is much of the DNA present in the human
body dictating how, for example, the brain operates, the organs operate, the
various other parts of the body operate?
A. Yes, sir, it does.
Q. And those parts of DNA would be the same
amongst all people?
A. Yes, sir.
Q. You've touched upon this, but does all DNA
relate to physical characteristics?
A. No, sir.
Q. Okay.
Is there something called coding DNA and non-coding DNA?
A. Yes, sir, there is.
Q. Can you explain what that means to the jury?
A. A segment of coding DNA would be DNA that
would form a gene that would control something like eye color or hair color or
the fact that you have a heart and a liver and kidneys. The section of non-coding DNA, as far as we
know, doesn't control anything. It's
there and there's no real known function for it.
Q. And does the non-coding DNA, does that also
consist of a number of sequential base pairs?
A. Yes, sir.
Q. Is the non-coding DNA sometimes referred to
as junk DNA?
A. Yes, sir, it is.
Q. What is a VNTR? A. VNTR stands for
variable number tandem repeats. That
essentially is a segment of DNA that has the bases repeated over and over
again. Say the bases were c-a-t,
cat. Well, in variable number of tandem
repeats, I might have cat repeated ten times, Mr. Smeal might have cat repeated
one hundred times, so it's just that same section repeated over and over again.
Q. Is it possible to cut a DNA molecule
chemically so that it consists of a number of smaller fragments?
A. Yes, sir.
Q. And how is that done?
A. It's done with what is called a restriction
enzyme. It's an enzyme that you can purchase
and its purpose is only to cut DNA, and it will cut DNA at a certain point and
it will not cut it anywhere else.
Q. And which restrictive enzyme does the crime
lab utilize?
A. We use an enzyme called Hae-III.
Q. Is that H-a-e dash 3?
A. The Roman numeral III, yes.
Q. Roman numeral III. Okay. And does Hae-III as
a restrictive enzyme, is it looking for certain base pairs to make a chemical
cut in a DNA molecule?
A. Yes, sir, it is. It's --
Q. What does it look for?
A. It looks for the base pairs GGCC, and when
it sees GGCC, it will cut between the G and the C.
Q. Referring to the short segment of DNA that
you've indicated there on the board, would you indicate with the letters that
you've drawn there, where Hae-III would cut that section of DNA?
A. Yes, sir.
[Stepping to the diagram board]
Hae-III would cut through here.
Q. Okay.
Stay there for one second, Mr. Goff, if you would for my next
question. Is it also possible to unzip
a DNA molecule, so to speak; in other words, to split the base pairs?
A. Yes, sir, it is.
Q. And how is that done?
A. It can be done basically in two
methods. You can either use heat and
just warm it up so much that it will split right down the middle like this and
the sides will separate. Or you can
expose it. In our case, we expose it to
a strong base, and that base will also cause it to split, such as sodium
hydroxide.
Q. All right.
Please be seated for the next few questions.
A. [The witness returned to the stand.]
Q. What does the term probe mean?
A. Probe -- a probe is a short piece of DNA,
and it's purchased commercially. The
base pair sequence or the base sequence in it is known and it's a single
strand. It's already split apart.
Q. Okay.
Approximately how many base pairs would there be in the synthetic probes
that are purchased and used by the crime lab?
A. Well, the probes we use are actually not
synthetic. A synthetic probe goes by
another name. The probes we get are
called inserts and they are natural.
Usually, they range around one thousand bases long.
Q. How many probes is the crime lab currently
using?
A. We are currently using six probes.
Q. And explain generally to the jury what is
the purpose of a probe?
A. In general, the purpose of the probe is to
give you what we call the banding pattern.
When you go through the process of extracting DNA and analyzing it, you
end up with a DNA on a piece of nylon membrane which is similar to a piece of
paper, and you can't see anything. So
by using the probe, you label it with a piece of radiation and then you expose
it to the membrane and it will go up and down that membrane and it will stick
to a certain area on that membrane.
Then you can lay x-ray film over that and you will get what we call a
banding pattern that you can visually look at.
Q. So a probe is basically looking for a
sequence of DNA with particular bases?
A. That's correct.
Q. Now, at the beginning of your testimony, you
were explaining that the crime lab utilizes two different DNA methodologies; is
that correct?
A. That's correct.
Q. What -- to begin with, what is the purpose
of DNA analysis in the forensic setting?
A. We conduct DNA analyses to try to identify
the donor of a certain body fluid.
Q. Does the crime lab, in a general sense,
receive unknown samples of evidence from crime scenes? Is that basically what you're looking at?
A. Yes, sir.
That's what we will receive, and then we'll also eventually be furnished
with a known blood sample later on.
Q. And what, in a general sense, are you trying
to do between the unknown samples collected at a crime scene and any known
samples that you are -- that you have been provided?
A. What we are trying to do is to establish a
DNA banding pattern for the unknown sample and for the known sample, and then
to compare them to see if the person donating the known could have left the DNA
at the crime scene or wherever it came from.
Q. Mr. Goff, I'm handing you what's been
previously marked and identified as State's Exhibit 25. Can you identify that item, please?
A. Yes, sir.
This is a blood sample that's labeled Emogene Bertha Thompson that I
received.
Q. Who did you receive that from?
A. May I look at my notes?
Q. Sure.
A. I received this from Jennifer Wilson.
Q. Okay.
Do you show the date upon which you received that?
A. Yes, sir.
I received it on June 30, 1993.
Q. I'm showing you what's been marked for
identification purposes as State's Exhibit 100. Can you identify this item, please?
A. Yes, sir.
This is a blood sample that's labeled Michael Chapel.
Q. And do your notes indicate when you received
that item and from whom you received it?
A. Yes, sir.
I received it on June 30, 1993, from Jennifer Wilson.
Q. And finally, I'm handing you what's been
marked as State's Exhibit 130, can you identify that item, please?
A. Yes, sir.
This is a cutting I received. It
was identified as coming from a car seat, and I received it on June 30, 1993, from Jennifer Wilson.
Q. And did you perform tests on those three
items?
A. Yes, sir.
Q. Okay.
MR.
SMEAL: Your Honor, at this time, the
state would move to admit State's Exhibits 25, 100, and also 130.
THE
COURT: Any objection, Mr. Moore?
MR.
MOORE: Your Honor, we're not certain
that the state has tied up the chain of custody on this, and we're going to
object to all three of those.
MR.
SMEAL: Your Honor, if I could take them
one by one.
THE
COURT: Go ahead, please.
MR.
SMEAL: The defendant's blood was
identified by Kathy Murray, who withdrew the blood. She turned it over to Jack Burnette, who in turn secured it and
turned it over to Tammy Hobbs and introduced it into the evidence room. P. T. Swanson then took the defendant's
blood, delivered it to the crime lab to Kathy West. Kathy West turned it over to Jennifer Wilson, who testified that
she turned it over to Mr. Goff. I
believe that all of those witnesses have testified to that chain, that they did
nothing to alter the contents. I
believe the state has laid a complete chain with respect to defendant's blood.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, with respect to the
blood of Mr. Chapel, I don't recall the nurse who drew it ever identifying the
person she drew it from, and nobody else has identified the person it was drawn
from.
THE
COURT: All right. You're addressing State's 25, which is the
victim's blood; right?
MR.
SMEAL: Actually, no. I was addressing defendant's blood, 100,
Your Honor.
THE
COURT: Okay. Restate that if you would, please.
MR.
SMEAL: Okay. Kathy Murray testified that she withdrew blood at the Northeast
Georgia Medical Center. While she could
not recall the person that she withdrew it from, she had testified that she has
withdrawn some four to five thousand bloods, I believe, since that time, she
did identify the investigators at that time.
She identified the name on the tube of blood, that it had Michael
Chapel's name, it had her initials, and later Jack Burnette testified that he
received that blood from Ms. Murray at that location. Jack Burnette testified that he turned it over to Tammy Hobbs,
who put it into evidence. P. T. Swanson
took it out of evidence, delivered it to the crime lab to Kathy West, who
turned it over to Jennifer Wilson, who in turn turned it over to Keith Goff on
June 30. Both Ms. Wilson and Mr. Goff
have testified to that.
THE
COURT: All right. Mr. Moore, anything else?
MR.
MOORE: No, Your Honor.
THE
COURT: State's 100 is admitted over
objection. Which exhibit do you want to
offer next?
MR.
SMEAL: State's 25, Your Honor. Your Honor, Jim Dempsey, from the medical
examiner's office, testified that he withdrew blood from the victim during the
autopsy from the heart of the victim.
He testified that he delivered it to the crime lab, turned it over to
Emalina Saker. Ms. Saker testified that
she received it in the same day, entered it into secured, refrigerated
facilities in toxicology. Kevin Jenkins
testified that upon a request from Jennifer Wilson, he went to toxicology,
withdrew the blood, and personally delivered it to Jennifer Wilson, who again
testified that she turned that over to Keith Goff on June 30 of 1993. All of those witnesses testified. They all testified they did nothing to alter
the contents. The state has also shown
a complete chain of custody as far as the victim's blood is concerned, Your
Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, the same objection.
THE
COURT: State's 25 is admitted over
objection.
MR.
SMEAL: With respect to the State's, I
believe it is 130, Your Honor -- with respect to State's 130, Your Honor, Mary
Ann White testified that she took the seat and armrest out of the police cruiser. I believe that was on April 29 of 1993. She entered it into the Gwinnett County
property room. P. T. Swanson testified
that he delivered those items to the crime lab and turned those over to
Jennifer Wilson. Jennifer Wilson
testified that she did an examination of the car seat, did some presumptive
blood testing on the car seat and also armrest, and that she herself cut out
some swatches from the area which have been identified as State's Exhibit
130. She testified that she delivered
those swatches to Keith Goff on June 30 of 1993. And both Ms. Wilson and
Mr. Goff have testified to that fact.
I believe the state has shown a complete chain with respect to the
defendant's -- the seat of his police cruiser, the armrest, and the swatches
that were obtained from those items.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, Officer Chapel's car
was seized on April 23. It sat in the
police department parking lot unsecured for about six days, various keys were
floating around unsecured for the car, and we would object to that evidence
going in.
THE
COURT: Mr. Smeal?
MR.
SMEAL: Your Honor, you know, what
happened to the car prior to the seizure of the evidence may be an issue as to
weight, but certainly does not affect the admissibility of this evidence as far
as the state laying a proper chain and showing what tests were performed on
those items.
THE
COURT: State's 130 is admitted over
objection. Any others at this time
offered?
MR.
SMEAL: No, Your Honor.
THE
COURT: Go ahead, please.
BY
MR. SMEAL:
Q. Mr. Goff, with respect to the items that you
have identified, did you perform an RFLP procedure on those items?
A. Yes, sir.
Q. And, once again, for the benefit of the
jury, would you tell them what RFLP stands for?
A. RFLP stands for restriction fragment length
polymorphism.
Q. And would you go through step by step and
explain to the jury the different steps of an RFLP procedure that you performed
with respect to those items?
A. The first step of the RFLP procedure is the
extraction of DNA. You extract the DNA
from a piece of cloth or blood in essentially the same way. You would take the blood -- blood sample or
the blood stain, expose it to some chemicals, and they will release the DNA.
Once
you have the DNA released from the blood sample or blood stain, you will go
through a check to see if the DNA is what we call high molecular weight
DNA. That means that the DNA sample is
present in a long form. You know, I
talked about earlier, a DNA molecule is approximately three feet long. Well, when we get it out after extraction,
it's not that long, but we want to see that it is present in a fairly long
form, so we run a gel. It's called a pre-restriction
mini-gel.
The
gel itself is about the size of a playing card. It's made of a substance that's similar to Jello except it's a
little bit tougher. You pour the gel
and you have small holes punched in one end.
They don't go all the way through the gel, but they go down into it.
Once
you've completed the extraction of the DNA, you'll take a small portion of the
DNA and you'll put it in this gel, and then you'll apply an electric current,
and the DNA will move a very short distance, and you'll cut the current off and
you'll look at it under ultraviolet light.
And if you see a -- sort of a sharp band, that means you have good high
molecular weight DNA. If you have a
long smear, that means you have a lot of degraded DNA.
Once
we know that we have DNA and it is of sufficient quality, and that means it's
high molecular weight, then we go through the process of cutting the DNA using
the restriction enzyme, Hae-III.
Q. Mr. Goff, let me just interrupt you for a
second there. Did you perform the
extraction process that you have described on each of these three samples?
A. Yes, sir.
Q. Okay.
And what you basically said is that you have to have DNA of sufficient
quality and also quantity to do an analysis; is that basically correct?
A. Yes, sir.
If you looked at the pre-restriction mini-gel and there was absolutely
nothing there, then you probably would not be able to continue.
Q. Okay.
And were you able to extract sufficient quantity and quality DNA from
each of those three samples to perform an analysis?
A. Yes, sir.
Q. Now, once you've made that determination,
that extraction determination, and determined that you have sufficient quality
and quantity DNA, what is the next step?
A. The next step is to cut that DNA into small
pieces. While it's present in this
large form, we can't really work with it and we need to do a controlled what we
call a digestion, where the enzyme or the restriction enzyme goes in on the DNA
strands and cuts them, sort of like scissors.
You will put the enzyme into your DNA sample, allow it to cut the DNA,
then you'll run another gel. That's
known as a post-restriction mini-gel.
And again, it's a small gel about the size of a playing card, but you're
looking for something slightly different on this gel.
You
want to confirm that the enzyme has cut the DNA. So when you place the DNA in the wells on this gel and you apply
the electric current, you should get a smear across the gel. If you get a smear, that means the DNA has
been cut, and you're ready to proceed to the next step.
Q. Okay.
Now, to do this step, and that step is sometimes referred to as
fragmentation; is that correct?
A. Yes, sir, it could be.
Q. Okay.
And do you utilize the restriction enzyme that you have previously
described as Hae-III?
A. Yes, sir.
Q. And did you use Hae-III on each of the
samples in this case?
A. Yes, sir.
Q. Okay.
And what Hae-III is doing is looking for this sequence GGCC and cutting
the DNA fragments at that point; is that correct?
A. That's correct.
Q. And it's cutting the DNA wherever it finds
those sequences?
A. That's correct.
Q. Okay.
Now, let me ask you this, Mr. Goff, does Hae-III ever fail to completely
cut DNA?
A. Yes, sir, on occasion it does.
Q. Okay.
And why would it do that?
A. Mainly because there is some sort of
contaminant in your sample, and I don't think anybody really knows what the contaminant
is, and it interferes with the activity of the
Hae-III. So instead of going to
each spot where it has a GGCC, and that's called a restriction site. Instead of going to each one of those spots
and cutting, for some reason it will skip a spot and not cut it.
Q. And is that a phenomena that occurs from
time to time in the course of DNA analysis?
A. Yes, sir.
Q. And is there a term to describe that
phenomena?
A. Yes, sir.
It's called partial digestion.
Q. And was Hae-III applied to the DNA which was
extracted from these three samples?
A. Yes, sir.
Q. And so the DNA was fragmented as you've
described; is that correct?
A. Yes, sir, it was fragmented.
Q. Now, I believe you were talking about
electrophoresis, or you mentioned that.
Would you explain to the jury what the next step in the process is?
A. Okay.
The next step after you have cut the DNA up into small fragments is to
run what we call an analytical gel.
This gel is much larger than the other two. It's probably about the size of a book you would check out from
the library, about probably ten inches by eight inches. What you'll do, it's similar in consistency
to the other gels. It's similar to
Jello. It has holes punched in one end
or little wells, not all the way through, but enough to hold the DNA. You take your cut up or fragmented DNA,
place it in wells, then you apply an electric current, and the DNA will start
moving across this gel, and it will move according to the length of the
fragments. The very short fragments
will move a long distance down near the end.
The long fragments will move a fairly short distance.
Q. Okay.
And why are those fragments moving?
A. They're moving in response to an electric
current that you apply to the gel.
Q. Okay.
And is that because DNA has an electrical charge?
A. Yes, sir.
It has a negative electrical charge, so it will move toward the positive
end of the gel.
Q. Okay.
Could you use an analogy to explain the movement of these fragments
across the gel according to their size?
A. Yes, sir.
It would be similar to if you had two people at the edge of a heavily
forested lot and they're each carrying a stick and they have to carry this
stick horizontally. One of them has a
stick that's, say, twenty feet long; the other one has a stick that's only five
feet long. So they have to walk through
this thick forest as quickly as possible, say, for fifteen minutes. The one with the twenty foot stick will keep
bumping into trees. Now, they can't
turn it up, they have to keep pushing it, so they keep bumping into trees and
won't be able to walk as far as the one with the five-foot stick because it
won't hit nearly as many trees. So the
long fragments of DNA encounter more resistance from the gel and don't move as
easily as the short fragments.
Q. And was electrophoresis, that process, was
that utilized with respect to the DNA samples that you extracted from the three
exhibits that you have identified?
A. Yes, sir.
Q. What is the next step in the process?
A. Once you have run the analytical gel, you
need to get the DNA out of that gel.
The gel itself is very fragile, so if you start trying to handle it very
much, you would eventually break it. So
to remove the DNA, we go through a process called Southern blotting. You take the nylon membrane that I mentioned
before. It's similar to a piece of
paper, but it's very tough and you can't tear it. You will lay the membrane on top of the gel. And then on top of that, you'll put paper
towels and a weight. And there'll be a
solution of sodium hydroxide down on the bottom of a pan, and as that sodium
hydroxide soaks up through the gel into the nylon membrane, it will carry the
DNA fragments with it and they'll stick to the nylon membrane. And they stick to that membrane in essentially
the same array as they were in that gel.
Q. Okay.
Now, Southern blotting, that has nothing to do with geography; is that
correct? It has to do with the name of
the scientist?
A. That's correct.
Q. Okay.
It was a scientist named Southern who invented that process back in
1975; is that correct?
A. That's correct.
Q. Is the purpose of Southern blotting
basically, then, to transfer the fragments from the gel to a nylon membrane
which can be further analyzed in the laboratory and that the DNA fragments are
kept in the same locations?
A. Yes.
Q. What is the next step of the process?
A. Once you have finished your blotting and you
have the DNA in that nylon membrane, you can begin the probing process. In this process, you take the probes that we
purchase, you go through and label them with a radioactive tag. Then you will take the nylon membrane that
has the DNA attached, place it in something like a Tupperware pan. You'll add a liquid solution along with the
probe, and then you'll rotate that for a period of time. It's usually overnight.
Q. Let me interrupt you for one second, Mr.
Goff. Before we get to the introduction
of the probes, at this point, and as part of Southern blotting, has the DNA
been split lengthwise?
A. Yes, sir, it does. When you're doing the Southern blotting, the sodium hydroxide
will split the DNA, the two strands into single strands. It will split it right down the middle.
Q. Okay.
So when the DNA fragments are on the Southern -- as a result of the
Southern blotting and they're on the nylon membrane, they have not only been
cut horizontally, so to speak, they've also been cut vertically? The ladders
have been split, in the sides of the ladder?
A. Yes, sir.
Q. Okay.
Now, please explain what is done with the probes at that point.
A. Okay.
Once you have the nylon membrane in your solution, you place the probe
in there, and you rotate it overnight.
The probe will move up and down the membrane and it will look for a spot
to stick to. Say you have a
sequence C-A-T, and that's what
you've got on the DNA, and you have a probe.
The probe that would look for that would be of a sequence G-T-A. So the probe would go along and when it
found a C-A-T, it would sit on it and just sit there.
The
next morning, you'll wash off all the excess probe and all that liquid, and the
probe that's stuck to the membrane will stay there. And, of course, it's got the radioactive tag. So then to develop that or get it to where
you can see it, you'll take a piece of x-ray film and just lay it over the
nylon membrane, and you'll expose that film for -- you can expose it for
various lengths of time, from a few hours to two or three weeks. And when you take the x-ray film off, you
develop it, and you have what we call banding patterns. They'll look like black bands on your x-ray
film.
Q. Would a rough analogy to the probing process
be that the probe is in a sense a key that is looking for a lock that it would
fit into?
MR.
MOORE: Your Honor, I've been patient
with -- Mr. Smeal is testifying and not allowing the expert to. I believe he can ask the questions and Mr.
Goff can answer them.
THE
COURT: Objection sustained. He's your witness.
BY
MR. SMEAL:
Q. Are the probes applied to the same nylon
membrane?
A. Yes, sir, they are.
Q. And why is that? Why isn't more than one nylon membrane used?
A. When you have your DNA sample in the
analytical gel, all of the sample is attached to one nylon membrane. You can go in and probe it with one set of
probes and get your result. Then you
can go through a process where you remove those probes by adding a solution
that's at boiling so that the heat causes the DNA probe to release from the
nylon membrane. Then you have a clean
membrane that only has the DNA in it that you put in it from the analytical
gel. Then you can add another probe and
it will do the same thing. It will
attach to the membrane and then you can put the x-ray film over it and then
continue on with the process.
Q. Does the process of taking off a probe in
order to apply the next probe, okay, does that ever fail to remove all of the
first probe?
A. Yes, sir, it can. If you don't get enough of the boiling solution on there or if
there's a very large amount of probe attached, sometimes when you what we call,
strip the membrane, you won't get all of the probe off, so when you do another
probing and you develop the x-ray film, instead of seeing the -- you usually
expect to see two bands, you might see three or four and two of those are very
light in the result of incomplete stripping of the previous probe.
Q. I think you've just referred to it, but what
is the description of that called when you don't have a complete stripping of
the probe?
A. It's referred to as incomplete stripping.
Q. And is that a phenomena that you
occasionally see in the course of doing DNA analyses?
A. Yes, sir.
Q. Now, were the -- well, let me withdraw that
question. How many probes does the
crime lab use?
A. They currently use six probes.
Q. Okay.
And what is the purpose of using six distinct probes?
A. The purpose is to gain more
information. If you only use one probe,
there's always a chance that two people at random might have a pattern which
they share or have a pattern which is very similar, so you use more than one
probe. Generally, in the forensic area,
most forensic scientists say if you use either five or six probes that you will
have identified somebody to the exclusion of everyone except their identical
twin if they have one.
Q. Is each probe looking for a different
sequence of base pairs or bases?
A. Yes, sir.
Q. Okay.
And what are the six probes that the crime lab is currently using?
A. The generic names of them are MS-1, YNH-24,
TBQ-7, PH-30, V-1, and LH-1.
Q. Now, the processes that you have described
up until now, was that done in this case with respect to those samples?
A. Yes, sir.
Q. And following the sequential addition of the
probes, what happens next? What did you
do next in this case?
A. Okay.
Once you have your x-ray films, we'll go through a process which is
called sizing of the bands on those films.
As I said earlier, the DNA's been cut into fragments. And we want to see approximately how long
those fragments are. So we'll take an
x-ray film and we will get that image put on a computer. And that computer is known as a
bio-image. It will record that image
and then we can go through, and the process is actually called sizing. We have standards that are on the analytical
gel. These standards are a piece of
DNA. We know what size or what fragment
length they have. The largest fragment
is around 22,000 base pairs. The
shortest is around 500 base pairs.
So
the computer will take the band you have from a known sample or an
unknown. It will compare it to your
sizing ladder or your standard. And
then it will print out how long the fragment of DNA is from your known, and
then it will print out how long the DNA fragment is from your unknown.
Q. And was that done in this case?
A. Yes, sir.
Q. What was done next? What is the next step?
A. Okay.
Once you have done that for all of your x-ray films or all of your
probes, whichever way you want to refer to it, you have to compare the fragment
size calculated for your known against the fragment size calculated for your
unknown. If that falls into a certain
range, then you would call the fragment from your known a match to your
unknown.
Q. Okay.
And was that process done in this case with respect to those samples?
A. Yes, sir.
Q. And did you find with respect to each probe
or did you determine whether or not there was a match amongst the three samples
of DNA that you extracted?
A. Yes, sir.
Q. Okay.
With respect to each probe, could you go through the probes sequentially
and tell the jury on the basis of your DNA analysis what you determined matched
in this case?
A. Okay.
For the probe MS-1, I found that there was a match between the blood
sample that was labeled Emma Thompson and the blood stain from the car
seat. Okay. On the probe YNH-24, I found a match between the blood sample
labeled Emma Thompson and the blood stain from the car seat. For the probe TBQ-7, I found a match between
the blood sample labeled Emma Thompson and the blood stain from the car
seat. For the probe PH-30, I found a
match between the blood sample labeled Emma Thompson and the blood stain from
the car seat. For the probe V-1, I
found a match between the blood sample labeled Emma Thompson and the blood
stain from the car seat. And for the
probe LH-1, I found a match between the blood sample labeled Emma Thompson and
the blood stain from the car seat.
Q. Were there any probes utilized in which you
did not find a match between the blood sample from Emogene Thompson and the
sample of the car seat?
A. No, sir.
MR.
SMEAL: Your Honor, at this time, the
state would -- well, let me have him identify this first.
BY
MR. SMEAL:
Q. Mr. Goff, I'm showing you what's been marked
as State's Exhibit 139A. Can you
identify that item, please?
A. Yes, sir.
This is a copy of the x-ray film generated for the probe MS-1.
Q. Okay.
Is that the -- well, first of all, what is this? This is a piece of x-ray film?
A. Yes, sir, it is.
Q. All right.
And is that the x-ray film that you developed in this case as a result
of the procedures you've described?
A. It's a copy of that original film.
Q. Have you compared it to the original film?
A. Yes, sir, I have.
Q. All right.
Is it an accurate copy of the original film?
A. Yes, sir.
Q. I'm handing you what's been marked as
State's Exhibit 140A. Can you identify
that item, please?
A. This is a copy of the x-ray film from the
probe YNH-24.
Q. Once again, is that an accurate copy of the
original x-ray film that you developed in this case?
A. Yes, sir.
Q. I'm showing you what's been marked as
State's Exhibit 141A. Can you identify
that item, please?
A. This is a copy of the x-ray film from probe
TBQ-7.
Q. Is that an accurate copy of the original
x-ray film that you developed in this case?
A. Yes, sir.
Q. I'm showing you what's been marked as
State's Exhibit 142A. Can you identify
that item, please?
A. This is a copy of the x-ray film for the
probe PH-30.
Q. Okay.
And is that an accurate copy of the original x-ray film that you
developed in this case?
A. Yes, sir.
Q. I'm showing you State's Exhibit 143A. Can you identify that item, please?
A. This is a copy of the x-ray film for the
probe V-1.
Q. Is that an accurate copy of the original
x-ray film that you developed in this case?
A. Yes, sir.
Q. I'm showing you a copy of 144A. Can you identify that item, please?
A. This is a copy of the x-ray film for the
probe LH-1.
Q. Okay.
Is that an accurate copy of the original x-ray film that you developed
in this case?
A. Yes, sir.
Q. Mr. Goff, let me also show you some
additional items at this time.
THE
COURT: You had 144A. Was there any beyond that? Is that the last one?
MR.
SMEAL: At this point, State's Exhibit
144A, Your Honor, that's what we're up to.
THE
COURT: Okay. I just wanted to make sure I didn't miss one. Thank you.
MR.
SMEAL: Your Honor, at this time, the
state would move to admit State's Exhibits 139A through 144A.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we'd renew our
previous objections and also we object that these are copies. These are not the originals. The information I have is that the copies
are not always as accurate, and you can't tell things on them that you can on
the originals.
THE
COURT: Mr. Smeal?
MR.
SMEAL: Your Honor, he's testified that
he's looked at these and compared them to the original and that they are
accurate copies of the original x-ray films.
THE
COURT: Where are the originals?
THE
WITNESS: I have them in my possession.
THE
COURT: Any particular reason that the
originals -- the copies are substituted for the originals?
THE
WITNESS: Yes, sir. The originals cannot be recreated so we
usually try to keep them on file and give copies to the court.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, there's no reason
the originals couldn't be brought here and used in this court and then copies
be substituted for the record, and they could take them back to the crime lab
after they're used. But we believe the
originals ought to be here in court for the experts to examine.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
SMEAL: Your Honor, the same process was
done at the pretrial hearing. We used
the x-ray or the copies of the x-ray films at the pretrial hearing. We're doing the same thing today. I mean, he's testified that they are
accurate and true copies of the original x-ray films.
MR.
PORTER: Their experts have been allowed
to examine the originals. There's been
no failure to disclose.
MR.
MOORE: Your Honor, we're not talking
about a failure to disclose, but we think the originals ought to be here. Copies can be substituted for the record,
but I don't think we have to take his word for it if the originals are, you
know, here in court.
MR.
PORTER: You mean, just because he's
under oath.
THE
COURT: Well, Goff is coming back
tomorrow; right?
MS.
ROGAN: Yeah, it looks that way.
MR.
PORTER: At this rate, it looks that
way, yes, sir.
THE
COURT: And Herrin will be here
tomorrow. Is there any reason they
can't bring the originals with them for inspection by the defense if they want
them?
MR.
SMEAL: He may have them right now.
THE
COURT: Why don't you inquire? I think with the circumstances of this case,
I think if the explanation of the absence of the originals is just simply they
don't like to bring them to court because they like copies and they want to
keep the originals, I'm just not sure that's a satisfactory explanation when
the originals -- for not bringing the originals for examination by the
defendant.
What
I'm inclined to do is if he's got them, let's look at them. Give the defendant an opportunity to look at
them. And if they don't have them
today, let's proceed on and provide them tomorrow so the defendant can have the
opportunity to use them in cross-examination if they wish. I mean, it's not like they're lost or stolen
or whatever.
MR.
PORTER: Your Honor, they've had an
opportunity. This has to do with
exactly the same thing as everybody else that we can't allow drugs out of our
possession. These are copies of the
autorads that have been created. If we
let those -- I mean, under what circumstances are we allowed to let the expert
look at them. I can't hand them over to
Mr. Moore. They're irreplaceable.
THE
COURT: I'm not suggesting that you hand
them over to Mr. Moore. I mean, I don't
have a problem with it, but the state's been keeping the state's exhibits. I don't have any problem with those. I mean, the state's got them now. They'll keep them tonight and tomorrow
night, but I think the defendant ought to have the opportunity to examine them,
and I think it's a point well made. I
think the copies or substitutes are allowed in for originals when the originals
are hard to explain, but I think if he says, well, we're just careful with them
and we don't want to bring them to court, we like copies, you know, I'm not so
sure that's a sufficient reason to substitute a copy.
MR.
PORTER: Well, Your Honor, but the Court
-- they have been given the opportunity to look at them. They have looked at them.
MS.
ROGAN: But we want them here in court.
MR.
PORTER: For what?
MS.
ROGAN: Because the defendant has a
right to confront the evidence against him.
MR.
SMEAL: They can subpoena them in their
case, I suppose, if they want to.
THE
COURT: Well, I think if you want to put
in an exhibit, you know, I think, with the highest and best evidence, you know,
the originals are required --
MR.
SMEAL: Your Honor, to my knowledge,
there's no best evidence rule with regard to x-ray films that have been
identified to be true and accurate copies of original films. I'm just not aware of that as a proposition.
THE
COURT: Well, I mean, what's the general
rule for a copy of anything? You put
the copy in and explain where the original is or why the original can't be
produced. I mean, if he's got it and he
says, well, I'm sorry, I just like bringing copies because that's just the way
we do business because I place such a high value on the originals, well, I
mean, that would be the basis for taking the extra caution so that the
originals are preserved, but I don't think that's necessarily -- what it says
is, it puts them in a position to say, well, we don't want to do it. You know, we're not going to show the
originals. You'll just have to take the
copies and take our word for it.
MR.
SMEAL: Well, I'll do as the Court
suggests or as directed. I will
inquire. He may have them all today.
THE
COURT: I mean -- and I don't hear any
problem as far as bringing them in except that he just doesn't like to bring
them in.
MR.
PORTER: Your Honor, except that they're
irreplaceable. They can't be
duplicated.
MR.
MOORE: Most evidence is irreplaceable.
THE
COURT: Well, I think so. Besides that, he's got a copy.
MR.
PORTER: But, Your Honor, then we run
into well, you're working off copies. I
mean, the crime lab is screwed either way they go. Bring in the originals, we can't duplicate the originals. If you guys lose them, well, we want to see
them.
THE
COURT: Well --
MR.
PORTER: Then they say --
THE
COURT: -- I'm not suggesting that they
be, you know, that they be jeopardized.
I mean, I think that the issue is that they be produced at this trial of
the case. I think if you want to keep
them overnight, you know, I think that's fine.
And if they want to take them back with them overnight, I think that's
fine.
MR.
MOORE: I don't have an objection to either
procedure.
THE
COURT: But I think they're entitled to
the originals during the course of the examination, if they wish, if there's
not a good reason for the absence of the originals, so I think my inclination
is to go forward on the examination on your direct on the copies and use them
however you want to, but with the provision that the originals be brought in
tomorrow if he doesn't have them with him so the defendant has an opportunity
to look at them and use the originals in cross if they want to. I don't see that that jeopardizes
anybody. I mean, you know, I don't see
that's a problem. Now, that's just
routine stuff in exhibits, and I don't see what makes the originals of these
more -- what puts them in a different class with all the rest of the evidence
in the trial.
MR.
PORTER: Your Honor, are you asking me
as a legal matter or are you asking --
THE
COURT: Well, I'm just basically talking
about what I'm thinking.
MR.
PORTER: As a legal matter, the best
evidence rule applies only to writings, and the Court's recitation of the law
regarding copies involves writings.
These are photographs, and photographs can -- the foundation can be
established that is a true and correct copy of the original photograph or it is
a true and correct copy of the photograph.
The law, the basic tenet the Court is signing applies to writings and to
writings only.
THE
COURT: Well, true enough, true
enough. But I think that if this is a
-- this is not a photograph made from a negative. What you've got is a negative which is a copy of a negative. What you've got is a reproduction of
whatever the original is.
MR.
PORTER: But, Your Honor, you've asked
me as a legal matter.
MR.
MOORE: Your Honor, I don't agree with
Mr. Porter either. The technology is
evolving and what's a writing may be totally different, something a computer --
a digital image may be a writing.
THE
COURT: Well, I just think he's entitled
to see the original absent some good reason not to, and I think their, the
crime lab determinations already stated, we'd just like to preserve them, I
don't think that's a good reason for not making the originals available in
court if the defendant wants them.
MR.
PORTER: Well, Your Honor, I want to
make clear on the record, first of all, that we all agreed to the procedure set
up by the court; and, second of all, they have been available. And for Mr. Moore, I think, you know, his
speaking objection about I understand this and I understand that, we have made
them available.
THE
COURT: Well, I think the point is -- that's
not an issue, but the point is we're trying the case now. We're not in pretrial anymore, and so the
fact that the exhibits have been offered or admitted or anything else in
pretrial doesn't impact on both side's obligation that if they want something
in evidence to put it in under the rules of evidence. I just think they're entitled to the originals.
MR.
PORTER: Well, Your Honor, you're the
judge here, but if you're asking me as a legal matter, we disagree. If you're asking me as a practical matter,
we'll produce the originals.
THE
COURT: All right. Well, let's proceed on with the --
MR.
MOORE: The only thing, I don't know how
they're going to work this out, Your Honor, but we'd want some procedure that the
originals will be here when our experts testify, too, and I don't care how they
do it. I mean, you know --
THE
COURT: I think the originals ought to
be here for the course of the cross-examination for anybody who wants to
cross-examine them. You know, custody
-- I think it's a tempest in a teapot.
You know, we've got pounds of heroine and all that, cocaine, and that
kind of stuff routinely, bills and money and all that kind of stuff in trials
of cases, and security, you know, it's not a problem. I don't see the problem with them bringing the originals in, and
I don't think they've got a good reason not to. I think they ought to. I
think -- but as far as securing them, you know, I just don't see that's a big
problem. So have him -- inquire as to where
the originals are, have him bring them in so they can use them in cross, and
we'll secure them however need be. And
I don't have a problem with everybody inspecting them and substituting a copy
for the original for purpose of the record.
MR.
PORTER: All right.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: Go ahead, Mr. Smeal.
BY
MR. SMEAL:
Q. Mr. Goff, do you have the original x-ray
films with you today?
A. Yes, sir.
These are the originals.
[Presenting]
MR.
SMEAL: Your Honor, it's the state's
intention to proceed at this time with the copies that have been
identified. Obviously, the originals
are available for inspection.
THE
COURT: Are they marked?
MR.
SMEAL: The originals have not been
marked yet, no, Your Honor.
THE
COURT: Why don't we mark them as -- is
there any reason not to -- is there any reason they shouldn't be marked as 139,
140, and so on, instead of the 139A and they'll be available for purposes of
cross? I mean, this is the witness who
knows which ones they are. It seems to
me that would be appropriate to have him do it.
MR.
SMEAL: We can have them marked, Your
Honor. We'll just have to do it,
obviously, in the same sequence.
THE
COURT: Okay.
[State's
exhibits were marked for identification by the court reporter.]
BY
MR. SMEAL:
Q. Mr. Goff, let me allow you to identify some
additional exhibits. Can you identify
State's Exhibit 139?
A. Yes, sir.
This is the original autorad for the probe MS-1.
Q. Can you identify State's Exhibit 140?
A. It is the original autorad for the probe
YNH-24.
Q. Can you identify State's Exhibit 141?
A. It's the original autorad for the probe
TBQ-7.
Q. Can you identify State's Exhibit 142?
A. It's the original autorad for the probe
PH-30.
Q. Can you identify State's Exhibit 143?
A. It's the original autorad for the probe V-1.
Q. And can you identify State's Exhibit 144?
A. It's the original autorad for the probe
LH-1.
Q. Okay.
Let me have you identify a number of additional items, if you will. Can you identify State's Exhibit 139B?
A. Yes, sir.
This is a photographic enlargement of the autorad for the probe MS-1.
Q. Is that a fair and accurate depiction of
that autorad?
A. Yes, sir.
Q. I'm handing you what's been marked as
State's Exhibit 140B. Can you identify
that item?
A. It's a photographic enlargement of the
autorad for the probe YNH-24.
Q. Can you identify State's Exhibit 141B?
A. It's a photographic enlargement of the
autorad -- or the -- excuse me, the autorad for the probe TBQ-7.
Q. I'm showing you what's been marked as State's
Exhibit 142B. Can you identify that
item?
A. It's a photographic enlargement of the
autorad for the probe PH-30.
Q. I'm showing you what's been marked as
State's Exhibit 143B. Can you identify
that item?
A. It's a photographic enlargement of the
autorad for the probe V-1.
Q. And State's Exhibit 144B, can you identify
that item?
A. It's a photographic enlargement of the
autorad for the probe LH-1.
Q. Okay.
With respect to the last five photographs, are those fair and accurate
depictions of the original autorad x-rays in this case?
A. Yes, sir.
THE
COURT: Okay. And one's labeled as B, for example, 139B, that's a photograph
from the original, in each of those, the photograph from the original negative
or x-ray; is that correct?
MR.
SMEAL: That's correct, Your Honor. The number by itself is the original
x-ray. The number with the letter A is
a copy of the x-ray. And the number,
the same number with a letter B is a photograph of the x-ray in each case.
THE
COURT: All right. Is that the case, Mr. Goff? Do you have any disagreement with any of
that? Is that your testimony?
THE
WITNESS: Yes, sir, that's correct.
THE
COURT: All right. Go ahead, please.
MR.
SMEAL: Your Honor, at this time we
would to admit 139A and B through 144A and B.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we don't have any
new objections. The originals are there
and have been marked subject to the pretrial rulings, and we don't have any new
objections.
THE
COURT: All right. The ones marked A and B are all
admitted. Is there any objection? Is that a yes or no, Mr. Moore? Any objection?
MR.
MOORE: None other than what's already
been raised and the Court's already ruled on, Your Honor.
THE
COURT: All right. 139A and B, 140A and B, 141A and B, 142A and
B, 143A and B, and 144A and B are admitted without objection, with no prior
objection heretofore made being waived.
Go ahead, please.
MR.
SMEAL: Your Honor, at this time --
THE
COURT: And that's with the provision that
those labeled without A or B, that being the original negatives, be available
during the course of cross-examination by the defendant throughout the course
of trial if you want them. Go ahead,
please.
BY
MR. SMEAL:
Q. Mr. Goff, would you please come down from
the witness stand.
[The
witness stepped down from the stand.]
MR.
SMEAL: Your Honor, I would ask
permission to publish State's Exhibit 142 at this time to the jury and have Mr.
Goff explain this item to the jury.
THE
COURT: Is that 142 or 142A or B?
MR.
SMEAL: This is 142, Your Honor. That's the original x-ray.
THE
COURT: All right. Were you offering the original or the copy
of the negative and the photograph on each of those? A and B and the non --
MR.
SMEAL: Your Honor, we're going to ask
to substitute in each case the A for the original.
THE
COURT: As part of the record, I
understand, but insofar as admitting for purpose of trial, you're offering
like, for example, 139 and 139A and B --
MR.
SMEAL: Yes, sir.
THE
COURT: -- and the same for all the
others through 144?
MR.
SMEAL: That's correct, Your Honor.
THE
COURT: Mr. Moore, any objections?
MR.
MOORE: No new objections, Your Honor.
THE
COURT: All right. 139 through 144, without the A or B, and
also with the A, with the B, are all admitted without objection.
BY
MR. SMEAL:
Q. Mr. Goff, if you would, please, step up to
this item, which is State's Exhibit 142.
And, first of all, once again, would you explain what State's Exhibit
142 is?
A. This is the original autorad produced using
the probe PH-30.
Q. Okay.
And is that one of the six probes that were utilized in this case to
determine whether or not there was a match?
A. Yes, sir.
Q. Now, Mr. Goff, would you explain -- there
appear to be a number of columns on this item.
Would you explain from left to right what those columns are?
A. All right.
The first column that's visible, this long stretch of bands, is called a
sizing ladder. This is one of the
standards. We know what the length, the
fragment length, of each of these bands is.
The top band is approximately 22,000 base pairs long. The very bottom one is approximately 500
base pairs long. And we know what the
length of each of the ones in between is, and we purchase this commercially
from a company.
Q. Now, let me ask you, Mr. Goff, is that
column repeated several times across
this x-ray?
A. That column is visible a total of four
times.
Q. Okay.
And why is it on there four times?
A. You want to have your unknown samples or the
fragments that you don't know the length of close to one of these columns for
the sizing ladder. It makes it easier
to estimate the size of these fragments in these lanes.
Q. Okay.
Now, directing your attention to a second column here, which is labeled at
the bottom K562, and there appear to be a couple of marks there, what is that?
A. All right.
This is a control. It's a cell
line that we purchase. There are two
bands visible, one here and one here.
It serves a couple of purposes.
Number one, you can check these two bands to see if this autorad was
really exposed to the probe PH-30. We
know approximately the fragment size, so we can check that. Also, you can check the fragment sizes to
see if the DNA has migrated normally and it hasn't had some sort of anomaly
take place.
Q. The next column appears to be labeled car
seat. Can you explain what that column
represents?
A. This column is the DNA pattern from the
blood stain on the car seat. You can
see two bands, one here and one here.
Q. There appears to be a column labeled E.
Thompson. Can you explain what that
column means?
A. Okay.
In this column, you have a DNA sample that was -- that came from the
known blood sample that was labeled Emma Thompson. In this column, again, you have two bands, one here and one here.
Q. There is a column labeled M. Chapel. What is that column?
A. In this column is a DNA sample, and this is
from the blood sample that was labeled Michael Chapel. You have two bands, one here and one here.
Q. Okay.
When you previously described that utilizing this probe that you
concluded there was a match between the car seat and the blood from Emma
Thompson, can you show the jury what matches on that x-ray?
A. Yes, sir.
If you look in this lane, you'll see a band from the car seat. Over here is a band from Emma Thompson, and
here's a band from the car seat and a band from Emma Thompson, and they match
up.
Q. Please be seated again, sir.
A. [The witness returned to the stand.]
Q. I may have you come back down in a
second. [Pause] Mr. Goff, I would ask you to come down once
again, if you would, with the pointer.
[The
witness stepped down from the stand.]
MR.
SMEAL: Your Honor, I'd ask permission
to publish to the jury State's Exhibits 139A -- I'm sorry, 139B, 140B, 141B,
143B, and 144B. Those are the five
photographs of the remaining five x-rays.
THE
COURT: Go ahead, please.
BY
MR. SMEAL:
Q. Let me be your --
MR.
MOORE: Are those the original
photographs that were made?
MR.
SMEAL: Yes, Your Honor, I believe.
THE
WITNESS: Those are photographs of the
original autorad.
THE
COURT: The B, I believe, that was my
question earlier. The subscript or
whatever A reflects a negative which is a copy of the original negative. The subscript B is a photograph of the
original negative.
MR.
MOORE: I just wanted to be sure.
THE
COURT: Okay. That was my understanding at the time they were being --
MR.
SMEAL: That's correct, Your Honor.
THE
COURT: All right. Go ahead, please.
BY
MR. SMEAL:
Q. With respect to this probe, this photograph
displaying this probe, Mr. Goff, and you've described previously that there's a
match between Emogene Thompson and the car seat, would you show the jury that
match on this photograph?
A. Yes, sir.
In this lane, you see the sample from the car seat. You have a band present here and a band
present here. In this lane, the sample
that was from Emogene -- Emma Thompson, you've got a band present here and a
band present here, and they match up.
Q. Directing your attention to State's Exhibit
140B in which you've testified there is a match between the car seat and the
blood from Emogene Thompson, can you show the jury that match?
A. Yes, sir.
In this lane, again we have the blood stain from the car seat and a band
here and a band here. In this lane, we
have the blood sample of Emma Thompson and a band here and here, and these
bands match up.
Q. With respect to State's Exhibit 141B in
which you've previously testified there's a match between Emogene Thompson and
the car seat, can you explain the match to the jury?
A. Okay.
Again, the blood stain from the car seat is in this lane. Here's the blood sample of Emma
Thompson. The bands are matching there,
and the bands are matching there.
Q. Directing your attention to State's 143B in
which you have also testified there's a match between the car seat and Emogene
Thompson, can you show the jury the match?
A. All right.
This is the -- excuse me -- the blood stain from the car seat, a band
here, a band here. And this is the
blood sample from Emma Thompson, and you see they match up.
Q. Directing your attention to State's 144B in
which you have similarly testified there's a match between Emogene Thompson and
the car seat, can you show the jury what you mean by that?
A. Okay.
Again, this is the lane which contains the blood stain from the car
seat. Here is the sample of Emogene
Thompson and the bands that match up.
Q. On this photograph, Mr. Goff, could you show
the significance of the banding that is labeled M. Chapel?
A. Yes, sir.
If you'll compare, here's the bands labeled M. Chapel are present here
and here, and you look over on the car seat, there are no bands, so Mr. Chapel
could not have contributed the DNA from the blood stain in the car seat.
Q. All right.
Please be seated.
A. [The witness returned to the stand.]
Q. Did you also compare the banding patterns on
each autorad with respect to the blood from Mr. Chapel and the blood on the car
seat?
A. Yes, sir, I did.
Q. Okay.
And what conclusions did you reach?
A. Mr. Chapel could not have contributed the blood
stain on the car seat.
Q. Mr. Goff, once you have made this match
determination, what is the final step in the DNA analysis? What's the next step?
A. Okay.
The next step would be to take the banding patterns that you have and
compare them to a database. We have a
database where donors gave us blood samples anonymously, and we went through
the process of extracting the DNA and producing the banding patterns, and we
have that information stored in the computer.
So you will put the information as far as the band size from your
samples in your case work into the computer, and the computer will compare it
to the database, and it will give you an estimate of how often that banding
pattern is found in the Caucasian population and the black population.
Q. And was that done in this case?
A. Yes, sir.
Q. Is the purpose of that final step to
determine the significance of the matches that you have determined?
A. I guess you could state it in that way. It's mainly to show that these patterns
aren't common. Not everybody that walks
down the street has this same banding pattern.
Q. Okay.
And did you calculate a frequency of occurrence of the banding patterns
that were shared between the sample from the car seat and the blood of Emogene
Thompson?
A. Yes, sir.
Q. And what was that frequency of occurrence?
A. I found that no more than one in ten billion
individuals in the black or the Caucasian population would exhibit the banding
pattern which is shared between the blood stain from the car seat and Emma
Thompson.
Q. Mr. Goff, in performing the RFLP analysis,
DNA analysis, in this case, did you follow the procedures and protocols of the
state crime lab?
A. Yes, sir.
Q. And are there written protocols and
procedures that apply to RFLP procedures?
A. Yes, sir.
Q. And did you perform all those procedures and
steps in an acceptable manner?
A. Yes, sir.
Q. Okay.
Based upon your education, training, and experience and the DNA analysis
that you did in this case, do you have an opinion as to whether Emogene
Thompson was the source of the blood stain found on item 15 of the crime lab
report, which was the car seat submitted from the cruiser of Michael Chapel?
A. Yes, sir, I do.
Q. And do you hold that opinion to a reasonable
degree of scientific certainty?
A. Yes, sir.
Q. And what is that opinion?
A. The DNA that's obtained from the blood stain
on the car seat that matches Emma Thompson originated from Emma Thompson or her
identical twin if she has one.
Q. And the figure that you have cited, the one
in ten billion, can you again explain what that means to the jury?
A. Basically, that means if you wanted to find
another DNA banding pattern that was similar to the one Emma Thompson exhibits,
you would have to look through about ten billion individuals' patterns before
you would have a chance of finding it.
Q. And, Mr. Goff, what is the approximate
population of the earth?
A. It's around five to six billion.
MR.
SMEAL: Your Honor, may we approach the
bench?
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
SMEAL: I do have additional direct
examination, but it will take a while.
THE
COURT: Yeah. Save it till tomorrow.
Yeah. It's time. We're at a good breakpoint. It's time to quit. I promised Mr. Moore we'd quit by six. It looks like an ideal place to quit for the day. How much longer do you think you've got on
direct?
MR.
SMEAL: I could be another thirty to
forty-five minutes with Mr. Goff.
THE
COURT: Okay. We'll just start back at nine in the morning and pick it up from
there.
MR.
SMEAL: That would be fine.
THE
COURT: Okay.
[Bench
conference concluded.]
THE
COURT: We're at a good breakpoint in
the testimony, so we're going to pause at this point and recess for the day and
recommence in the morning at nine o'clock.
I'll
restate the directions to you that will be the instruction of the Court, that
is, that you continue to keep an open mind.
I'll remind you you've heard part of the case, but not all of it. You ought to continue to keep an open mind
until you've seen and heard the case in its entirety. There ought not to be any discussions or deliberations amongst
yourselves or with anybody else or allow anybody else to discuss the case with
you or in your presence.
And
with that, we'll release you for the afternoon and we will recommence in the
morning at nine o'clock. If you'll
leave your pens, pads, and notes in your seats, they'll be waiting on you when
you return. I'll ask you to go with the
bailiffs at this time.
[The
jury was excused for the evening and retired from the courtroom at 5:55 p.m.]
THE
COURT: Anything else at this point, Mr.
Smeal, Mr. Porter?
MR.
SMEAL: Your Honor, we would ask
permission to retain the items overnight, and I believe that we can secure the
originals in our office.
THE
COURT: Any objection, Mr. Moore, to
everybody securing their own exhibits as we have in the prior evenings?
MR.
MOORE: No, Your Honor.
THE
COURT: Okay. I think that satisfies everybody's request. Okay.
That will be fine. Anything
else, Mr. Smeal?
MR.
SMEAL: No, Your Honor.
THE
COURT: Mr. Moore? Mr. Moore, anything else this afternoon?
MR.
MOORE: Your Honor, I'm trying to
figure out --
MS.
ROGAN: We're just checking. We may.
THE
COURT: Okay.
MR.
MOORE: I'm trying to figure out what I
did with them.
THE
COURT: Okay. We'll pause for a moment.
[Pause
in proceedings]
MR.
SMEAL: May Mr. Goff step down, Your
Honor?
THE
COURT: Yes, sir. You can come on down. You'll need to be back at nine o'clock in
the morning, Mr. Goff.
THE
WITNESS: Thank you.
[The
witness stepped down from the stand and exited the courtroom.]
MR.
MOORE: Your Honor, it appears I'll have
to locate the exhibits and tender them tomorrow. Some that I hadn't tendered, we can't locate them right this
minute, so --
THE
COURT: Okay. Well, that will be fine.
You can offer them in the morning if you wish. Okay. Anything else, Mr.
Moore? Anything else at this point, Mr.
Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Okay. We'll be in recess until nine o'clock tomorrow morning.
[Proceedings
were recessed for the evening on August 29, 1995, at six o'clock p.m.]
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