1. THE VERDICT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

The prosecution’s case was built on the theory that Michael Chapel needed money and used the knowledge he had gained from responding to a burglary call by Emogene Thompson to plan her murder and rob her of the remaining $7,000 in cash left after the alleged burglary. Each element of the proof offered is discussed below, along with citations to the record. The key items of evidence offered by the prosecution were: (1) testimony concerning a police car seen at the location of the murder, the Gwinnco Muffler Shop at Peachtree Industrial Boulevard on the rainy night of April 15, 1993; (2) testimony of a passer-by that picked Officer Chapel out of a photo line-up as being seen on the highway near the crime scene that night; (3) Officer Chapel’s involvement in the burglary call to the victim, particularly his failure to turn in an incident report on the burglary; (4) testimony of three friends of the victim that the decedent told them over the telephone she was expecting to meet with Officer Chapel the week of her murder; (5) evidence that the Chapels needed money and had large amounts of cash after the murder; (6) Officer Chapel’s raincoat, which had human blood on it in a pattern that the State’s expert described as high velocity blood splatters; and (7) blood taken from the armrest of Officer Chapel’s car, which the State expert testified matched the DNA of the victim.

Other items of evidence that figured less signifi-cantly in the prosecution’s case including testimony that fellow officers believed Chapel once owned a hand-gun of the same type used in the murder; attempts to tie the hundred dollar bills found in his notebook to the victim’s bank (which was also his bank); and assertion that Chapel used a hundred dollar bill at the car wash after the murder.

Certain non-evidentiary items were also used to emotionally appeal to the jury. Officer Chapel was nicknamed "the Terminator" by the kids in his patrol district because of his size and build. (Blount, Trial transcript (hereinafter "Tr.") 5645). The prosecutor made this out to be the self-image of a "killing machine from the future." The movie that some of the firemen allegedly watched that night of the 15^th – "A Time to Kill" - was emphasized several times, as if it were evidence.

The witnesses made totally divergent observations, particularly as to the type and markings of the police car they described at the murder scene on April 15^th, 1993. This testimony described a patrol car that didn't fit Officer Chapel's car or set out time frames that did not fit his schedule that evening. Allen Robertson described a police car with a gold stripe at the Muffler Shop at 10:00 to 10:15 PM (Tr. 3437, 3445). Raymond Gravitt saw a police car with a blue, bubble-type revolving light at 10:15 PM (Tr. 3464, 3466). Ed

Schmanski saw a white police car with a yellow stripe at about 9:20 PM (Tr. 3345). Sean Charles saw "an older style" Gwinnett County Police car at 9:30 PM (Tr. 3387). Mary Ann Johnsa saw a police car with a yellow stripe at about 9:30 PM (Tr. 3357, 3364). Stacy Turner described the older square body style county police car which she testified was there at 9:20 PM (Tr. 3379, 3390). All of these descriptions were totally inconsistent with Chapel’s being there at 9:45-10:00 PM in a new model police car with a blue, reflective stripe on the side.

B. KAUTTER IDENTIFICATION TESTIMONY.

Secondly, the prosecution used the testimony and identification of Mr. Karl Kautter, who testified that he saw an officer driving down the Peachtree Industrial Boulevard adjacent to his car for about than thirty seconds. Kautter’s identification was based on this opportunity to observe at night, after a major rain storm, from a moving car. He testified that he initially picked another photograph and then settled on Chapel’s (Tr. 3574). Sergeant Kline, the officer who showed him the photographs, testified that: " he pointed to number seven and said, 'He's too thin. I'll have to say it's number three.’" (Tr. 4700). The implication of these words was that he felt he had to pick one of the photographs, rather than decline to identify any of them. He was given frontal photographs, but testified that he only saw a profile of the officer that night (Tr. 3577). Mr. Kautter described his level of attention that night as a five on a scale of one-to-ten (Tr.3577-78).

Mr. Kautter describes a police car totally different from Chapel’s car. How he could have seen the face inside, but misidentified Chapel’s car remains a mystery. His description is an exact portrait of the county spare car.

C. OFFICER CHAPEL’S RESPONSE TO BURGLARY CALL.

Michael Chapel described his response to the burglary call from Emogene Thompson on April 3, 1993:

Just as Officer Chapel quickly figured that the son had taken the money (Tr. 3833), Ms. Thompson also felt that Michael Thompson had done so (M. Thompson, Tr. 3856; Arnold, Tr. 4010; Burel, Tr. 4030). Officer Chapel advised Ms. Thompson that if she did not want to prosecute, there was not much he could do, but he suggested bluffing the son into returning the money.

There is no evidence that Officer Chapel concealed any facts from his superiors. After responding to this call, Officer Chapel met with Sergeant Stone and discussed the incident (Stone, Tr. 3908; Chapel, Tr. 6222-23). "He explained his suspicions that it was probably an inside job and he suspected her son." (Stone, Tr. 3909). "He said that she had thought about it and that she didn't want to write a report at that time. He said he would keep the information and if she so desired that he would write a report." (Tr. 3909). Sergeant Stone testified that:

Officer Chapel did run into Ms. Thompson again, while he was on a traffic stop near her home. At that point, he presented her with the strategy of bluffing her son.

Officer Chapel acted properly throughout his response to this call, but he did not complete and file an incident report, a fact that the prosecution tried to make into a major point. However, the evidence indicated that most calls did not result in completed incident reports (Stone, Tr. 5511). Sergeant Stone testified that it was not unusual for him not to complete an incident report (Tr. 3924), although Stone suggested that Chapel write a report on this incident (Tr. 3934). There was also uncontradicted testimony that Michael Chapel was sometimes slow in getting paperwork done. His immediate supervisor testified: "we'd have to prod him along to properly document the things that he did." (Winderweedle, Tr. 3894).

However, despite the prosecution’s innuendo, Officer Chapel was open with everyone he encountered about the incident. He told to Sergeant Stone about it immediately afterward (Id.). He showed his notes to Sergeant Kline during the investigation, before he was a suspect (Kline, Tr. 4720). He started to write an incident report for this matter, but did not file it (Chapel, Tr. 6226; Kline, Tr. 4723); this was also not unusual (Kline, Tr. 4723; White Tr. 5444). Officer Chapel contacted Investigator Burnette to discuss the burglary matter once he learned of the murder (Burnette, Tr. 5068; Chapel, Tr. 6258). Officer Chapel was described by another officer as "astonished" when he learned with others of her murder.

D. THE ALLEGED MEETING THE NIGHT OF THE MURDER

The prosecution built a major part of its case upon the notion that Officer Chapel was planning to meet with Ms. Thompson on the night of April 15^th. The sole basis for this contention was the testimony of three women, who discussed the theft of Ms. Thompson money with her over the telephone, but never indicated whether a meeting had been scheduled. None of these witnesses in their initial statements to the police mentioned the alleged meeting on the night of the 15^th. Their testimony in court was little better. Marsha Arnold testified that there was supposed to be a meeting the week she was killed (Tr. 4004). Virginia Chance testified that Officer Chapel talked to Ms. Thompson the week of her murder about meeting with her (Tr. 4028). Delores Burel, who described herself as the decedent’s best friend and who says she talked to her several times on the day of her murder, testified that no meeting had been set up.

E. OFFICER CHAPEL’S FINANCIAL SITUATION.

The prosecution attempted to show large amounts of unexplained cash to the jury as well as a financial squeeze of the Chapel family to try to create a motive. This evidence centered on three points: (a) trying to show the IRS audit created a need for cash; (b) trying to demonstrate unexplained large amounts of cash; and (c) creating an innuendo about the four one-hundred dollar bills found in Officer Chapel’s notebook.

Testimony of the Chapel family’s urgent need for cash was weak. Their accountant testified that he did not see any major problem in the announced audit. Otherwise, the family lived, as most do, from paycheck to paycheck.

The presence of cash by the Chapel family was not a significant item. Lacking credit cards, many of their transactions were in cash. Between Michael Chapel’s paychecks, Eren Chapel’s waitress tips, the gyms receipts during a peak month (Tr. 6297), and sales of products by the gym, they literally had thousands of dollars that month. A financial expert testified that from banking records alone – excluding cash transactions -- the Chapels would have had $2000 available in April 1993 (Tr. 5978). This figure excludes cash tips from Eren Chapel, cash transactions from product sales, etc. The only large amount attributed to them was by a witness who had been at a party and saw a large bundle of bills in Mrs. Chapel’s purse, which he said "appeared" to be all one-hundreds. He did not personally examine the bills. Mrs. Chapel worked as a waitress at the time and received most of her compensation in the form of cash tips:

The prosecution made a major issue over four one-hundred dollar bills found in a notebook. Officer Chapel testified that "this money was set aside for something special, and I didn't want to get it lost." (Tr. 6208). "Usually, I tried to stay with fifties or hundreds because, again, I didn't carry a —— I didn't carry a wallet." (Id.)

F. OFFICER CHAPEL’S RAINCOAT

One of the most significant parts of the prosecution’s case was Officer Chapel’s raincoat. The prosecutor emphasized this item to jury:

An expert from the State Crime Lab testified that: "There is a high velocity blood spatter pattern on the right arm and right chest area of this rain gear." (Fite, Tr. 4860).

The difficulties with this evidence were, however, significant. No evidence was presented that the blood on the raincoat in any way matched that of the victim. "It has not been tested for any kind of DNA or blood typing type analysis." (Goff, Tr. 5273). The explanation for the lack of testing finally came out on cross-examination: "I think it was decided not to pursue the PCR analysis, mainly since we already had a result on the car seat." (Goff, Tr. 5276). As noted below, the State Crime Lab and prosecution had reasons to believe that the blood would not match, which led them to avoid testing that would undermine their case. (See Section II on the State’s withholding of a negative gunpowder residue test on the raincoat).

Moreover, the possibility of other causes of the blood pattern on the coat was not eliminated:

G. BLOOD ON THE ARMREST

The only evidence with any probative value at trial was the armrest from Officer Chapel’s car which contained blood that the prosecution’s experts identified as Ms. Thompson’s. This was, indeed, a centerpiece of the prosecution’s case:

No other objects in the crowded front seat had any blood on them. (Tr. 6198-99).

However, the underlying problem with the evidence at trial was the lack of exclusive control over the car by the defendant prior to the sampling. Keeping in mind that numerous witnesses described a police car as being at the scene of the murder, albeit a car that did not belong to Officer Chapel, there was strong evidence of some type of police involvement in the crime. That being established, it is an intriguing question as to why the police department did not secure Chapel’s car until after it was tested. There was testimony that the normal procedure would be to secure the car in a locked, restricted access area:

The evidence presented at trial consisted on a series of items with little or no probative value and one item of evidence that indicated that someone placed the victim’s blood in Officer Chapel’s car. The facts surrounding how the blood might have been placed in the car negate any reasonable inference that Officer Chapel did so.

H. THE ALLEGED ROBBERY

Officer Chapel was convicted of robbery and felony murder as well as the first degree murder charge. The conviction for these former counts depended upon proof that he robbed Emogene Thompson and shot her in commission of the robbery. Besides the failure of the evidence to prove Officer Chapel shot the victim, there was no evidence that would allow a jury to find that he robbed her.

The prosecution argued that Michael Thompson testified that she had the remainder of the $14,000 with her that night in her purse. But his testimony does not support this inference:

Accordingly, there was no evidence that a robbery occurred and no evidence to support a felony murder conviction.

2. THE TRIAL COURT ERRED IN REFUSING TO ALLOW FORENSIC EVIDENCE IN THE HEARING FOR A NEW TRIAL.

The raincoat was used as an emotional exhibit with the jury by the prosecutor:

Empirical evidence, which the trial court declined to hear, proves that the "blood splatter" pattern could not have been caused by the commission of this crime.

1. THE PROSECUTION INTRODUCED SURPRISE EVIDENCE BY ADDING MARKS TO THE POLICE RAINCOAT TO ESTABLISH ALLEGED HIGH VELOCITY BLOOD SPLATTERS.

The defense was provided no genuine opportunity to refute this expert testimony. "The Sixth Amendment right to assistance of counsel is not satisfied unless the accused's attorney is given adequate time to prepare his defense," Powell v. Alabama, 287 U.S. 45, 59 (1932). Accord Raposa v. State, 207 Ga.App. 106, 427 S.E.2d 79 (1993); Lester v. State, NO. 93-DP-00619-SCT (Miss.S.Ct. April 10, 1997). Moreover, the statute requires disclosure of tangible evidence prior to trial [O.C.G. 17-16-4(a)(3)], which was violated when the State deliberately marked up the physical evidence after the inspection by the defense.

This critical evidence was excluded by the trial judge, when he denied the defense request for more time to include it in the record below. Had the jury seen that a centerpiece to the prosecution’s case was based on a physical impossibility, the trial outcome would have been decidedly different.

This Court should order a new trial for this and the reasons set out below. In the alternative, this Court should remand the case for an evidentiary hearing on the new forensic evidence. A remand could then address whether this evidence satisfies the substantive standard for granting a new trial.

2. NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL.

1988).

The most important question is what difference the new evidence would make in the outcome. Where as here, the new evidence goes to the heart of a weak prosecution case, a new trial should be granted. Humphrey v. State, 207 Ga.App. 472, 428 S.E.2d 362, cert. denied 207 Ga.App. 915 (1993).

1. A NEW WITNESS HAS ESTABLISHED THE INVOLVEMENT OF THE ORIGINAL POLICE SUSPECT IN THE MURDER.

Mr. Rutland did not cooperate with either side prior to trial. He was afraid to speak out. His testimony lays the foundation for a murder conspiracy involving Morgan and the drug ring. While there were suspicions about Morgan’s role at trial, the defense did not have any tangible evidence of his involvement in drugs or potentially in the murder (Miller, NT Tr. 41). Michael Thompson was the initial police suspect (Davis, Tr. 4288).

In 1994, the police followed another lead that children in the neighborhood had found the purse. The anonymous caller described her children finding some items belonging to Emogene Thompson behind their trailer. Police conducted "a thorough search of the area behind the former Thompson residence and up and down the woods behind those trailers" and did not find anything (Latty, supra).

Deputy Chief Latty confirmed that the area had been thoroughly searched on prior occasions. (NT Tr. 204).

In addition, the father of the teenager who found the purse told police in 1996 that "somebody had to put it back there, cause it wasn’t in there, cause we’re always back there."

Contrary to prosecution’s case, the purse did not have any blood on it. The prosecution needed the bloody purse to explain the transfer of blood to the armrest. Without blood on the purse, there is no explanation of how Chapel could have transferred the blood, since his raincoat allegedly had only tiny specks of it (of undetermined origin).

The purse was recovered in an area that had been thoroughly searched the year before; the parent of the teenager noted that it did not appear to be there before. It was recovered in the victim’s neighborhood - inconsistent with Chapel taking it at the muffler shop. Since Chapel was arrested on April 23, 1993, he could not have placed the purse there after the 1994 search of the area.

To establish a Brady violation, the defendant must establish that the government suppressed material

evidence favorable to the defendant. United States v. Knight, 867 F.2d 1285, 1289 (11th Cir.), cert. denied 493 U.S. 846, 110 S.Ct. 139, 107 L. Ed. 2d 98 (1989). Undisclosed evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985) (Blackmun, J., concurring). Modifying the Bagley standard, the U.S. Supreme Court in 1995 referred to the test as whether the withheld evidence "unfairly prejudiced" the proceeding and undermined confidence in the verdict. Kyles v. Whitley, 115 S.Ct. 1555 (1995).

This Court has restated the test succinctly: "If evidence omitted from a response to a general Brady motion creates reasonable doubt of guilt that did not exist, constitutional error has been committed," Harvey v. State, 262 Ga. 667, 424 S.E.2d 617 (1993).

Detective Burnette, who coordinated the police investigation, testified at the new trial hearing. He stated that the State Crime Lab informed him that the raincoat had no gunpowder residue on it. This testing was requested by the Gwinnett Police to try to link Officer Chapel’s raincoat to the crime. These negative results, withheld from the defense, would have provided a strong basis for jurors to conclude that Officer Chapel did not fire the shots that killed Emogene Thompson.

Trial counsel for Officer Chapel testified that he specifically did not have this information.

The failure to disclose that the raincoat tested negative for gunpowder residue is an egregious Brady violation. The omission "unfairly prejudiced" Officer Chapel and this evidence alone "creates reasonable doubt." See Kyles, supra, and Harvey, supra.

V. IMPROPERLY ADMITTED EVIDENCE REQUIRES A NEW TRIAL.

1. HEARSAY STATEMENTS ATTRIBUTED TO THE VICTIM BY HER CONFIDANTS DESCRIBING AN ALLEGED MEETING WITH CHAPEL WERE IMPROPERLY ADMITTED.

The Court allowed the testimony of several friends and confidants about Mrs. Thompson’s statements to them concerning Officer Chapel’s investigation and an alleged meeting that she alleged told them she was expecting to have with Chapel.

Since the trial, this Court ruled that hearsay testimony of "confidants" lacked sufficient indicia of trustworthiness to be admissible. Carr v. State, 267 GA. 701 (March 10, 1997). The confidants’ hearsay testimony in this case is even more suspect when all the facts are put in context.

Officer Chapel had advised Ms. Thompson that nothing would happen arising out of the burglary to her son unless she decided to prosecute.

He also told her that he could "run the boo" or bluff her son into returning the money. Her statements to "confidants" over the phone in her trailer within the hearing of her son were Mrs. Thompson’s own way of "running the boo." Dolores Burel testified that Officer Chapel was working with Mrs. Thompson to bluff her son into returning the money:

[H]e was going to get a warrant, a pretend warrant or something like that, and go to Michael and kind of scare him or something and make him say if he stole the money. (Pretrial hearing, July 25, 1995,42).

Ms. Arnold, in fact, also acknowledged that Ms. Thompson had discussed doing this with her:

Q. Did she ever discuss with you anything about trying to scare him into telling her where the money was and how to get it back?

A. She said that was Chapel's -- what he was telling her that he was going to do.

(Pretrial hearing, July 25, 1995, 15).

Ms. Thompson expressed concerns about her son being arrested to a co-worker the day before her death. This strongly impugns the telephone hearsay heard by the jury. Moreover, in Ms. Burel’s statement to the police, she quotes Mrs. Thompson indicating that she was dismissive of the alleged imminent meeting – the very night of her death.

It is impossible to determine if the hearsay statements attributed to Mrs. Thompson were part of her bluffing her son as he overheard telephone conversations or were as the prosecution portrayed them. The evidence strongly suggests that she was not ready to seek the arrest of her son, but was actually quite upset about his being arrested. The very fact that the critical conversations were over the telephone in her trailer -– where her son might overhear – and were made by a person who admittedly was also discussing "bluffing" her son into returning the money indicates that they lacked sufficient trustworthiness in light of the Carr decision

 

2. THE TRIAL COURT ERRED IN ADMITTING STATE CRIME LABORATORY DNA RESULTS FROM PARTIAL DIGESTION.

The Georgia State Crime Laboratory used a deliberate "partial digestion" sample of DNA to declare a match of the victim’s blood with a sample taken from Officer Chapel’s patrol car left in the police lot. The defense expert testified this procedure was "not generally accepted in the scientific community..." (Dr. Choi, Tr. 6032). "There has been no work, no extensive studies, showing that you can get valid matches between partially digested DNA samples." Tr. 6038. "In my opinion they're uninterpretable, you cannot use the numbers that you get from them, and the results simply should be discarded." Tr. 6039.

3. THE RAINCOAT WAS IMPROPERLY ADMITTED INTO EVIDENCE, SINCE ITS PROBATIVE VALUE WAS OUTWEIGHED BY ITS EMOTIONAL VALUE.

The trial court must weigh the probative value of evidence against its prejudicial effect. While blood-soaked clothing has been held admissible in cases where the only logical inference was that it came from the victim, a police raincoat used for years by an officer on street duty carries with it no inference that the victim was the source of the blood. Where such evidence lacks probative value, it is prejudicial and should not be admitted. See State of Utah v. White, 880 P.2d 18 (Utah App. 1994). The allegation of "high velocity splatters" does not change this result, since the prosecution’s expert could not rule out other causes of the splatters. Moreover, new evidence indicates that the splatters could not been produced in the manner suggested by the prosecution. See Section II, supra.

6. THE JURY INSTRUCTIONS ERRONEOUSLY INSTRUCTED THE JURY ON THE ALIBI ISSUE.

Over the objection of the trial counsel (Tr.6408, 6723), the trial court instructed the jury on the alibi defense. The trial court explained the rationale:

I left alibi in. I think alibi is appropriate. I took a look at some of the cases, and I just think alibi is adjusted to the facts of the case. Maybe you can waive it and maybe you can't, but I think all that notwithstanding, I think that's an appropriate charge. (Tr. 6549)

The defense objection to the charge was that it shifted the burden of proof:

[W]e are not arguing alibi in this case, Your Honor, and my recollection of the charge is that it almost places the burden on the defendant to have proved an alibi, which we did not endeavor to do in this case, so it is not our request at this time for an alibi charge. (TR 6408).

Yet in earlier instructions to the jury, the trial court did precisely that:

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

And you should also look at one basic fact. It's that the defendant's evidence is subject to the same scrutiny that the state's is. Once the defendant takes up the burden to bring you evidence, he's subject to the same scrutiny as the state. (Tr 6567)(emphasis added).

This erroneous shifting of the burden of proof was repeated by the prosecutor in closing argument, over the defense’s objection:

Ms. ROGAN: He shifted the burden, I believe, in his comments about the defense of alibi that had been raised. He basically told the jury that once such a defense is raised, which we had objected to from the very beginning having injected as an issue in the case, that the defendant has taken up a burden of presenting evidence to support it, which is not the case. There is no burden on the defense to present evidence at any point in the trial. (Tr. 6667)

Alibi is, of course, not a true affirmative defense. Parham v. State, 120 Ga.App. 723, 171 S.E.2d 911 (1969). The trial court is under no duty to instruct on alibi in the absence of a request to do so. Rivers v. State, 250 Ga. 298, 298 S.E.2d 10 (1982). An instruction which places the burden of establishing the defense of alibi on the defendant is plain error. Moultrie v. v. State, 93 Ga.App. 396, 92 S.E.2d 33 (1956). Accord Smith v. Smith, 454 F.2d 572 (5^th Cir. 1971), cert. denied 409 U.S. 885 (1972).

The trial court’s instruction that the defendant’s burden on an alibi is "the same as the State’s" was in error. It "shatter[ed] the presumption of innocence, create[d] confusion in the minds of the jury, [and] shift[ed] the burden of persuasion to [the] defendant...[thereby] violat[ing] fundamental rights incorporated in the due process clause." Smith v. Smith, supra. The U.S. Constitution requires that the prosecution bear the burden of proof beyond a reasonable doubt of all elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979), rehearing denied 444 U.S. 890.

In this case, the trial court instructed on alibi, over defense objections; misinformed the jury of the burden of proof on alibi; and allowed the prosecutor to misstate the burden of proof in closing. This is particularly egregious and unfair, since neither the GCPD nor defense counsel interviewed key alibi witnesses (see Section VII.B.), subjecting Officer Chapel to this miscarriage of justice.

7. INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRES A NEW TRIAL.

"To justify a reversal for ineffective assistance of counsel, appellants must show: (1) counsel’s performance was not reasonably effective, and (2) that the outcome of the trial would have been different but for counsel’s unprofessional efforts." Williams v. State, 200 Ga.App. 187, 408 S.E.2d 512 (1991).

1. DEFENSE COUNSEL FAILED TO DEVELOP TESTIMONY GIVEN TO INVESTIGATOR THAT MIKE THOMPSON ACKNOWLEDGED CHAPEL’S INNOCENCE TO THIRD-PARTIES.

Since Michael Thompson testified at trial about his lawsuit, his statements that "he knew" Chapel did not have anything to do with the murder could have been used as impeachment. Failure to elicit this testimony in front of the jury was a devastating mistake that clearly affected the outcome. There was no evidence that this was a trial strategy or judgment call; it was just a glaring mistake.

2. Officer Chapel’s initial counsel did not secure or interview his alibi witnesses, who were not approached until two years later (Miller, NT Tr. 71). While telling Officer Chapel that they would check on his whereabouts on the night of April 15^th, 1993 (Tr. 6295; S-90), the police did not interview key witnesses until over two years later (Burnette, Tr. 5119). Defense counsel’s error clearly prejudiced the defense by requiring witnesses (such as Van Parker) to attempt to recall the night of the murder two years after-the-fact.
3. Consequently, no direct alibi defense could be presented, although witnesses testified about the time line at trial. The prosecution’s case depended upon placing Officer Chapel at the crime scene at 9:45 PM to 9:50 PM. This narrow window of "opportunity" did not fit with the descriptions of the times that witnesses saw a police car at the crime scene. Nor did the car they saw fit Officer Chapel’s patrol car. The failure to make timely contact with alibi witnesses was again not a question of strategy, just a mistake. Consequently, the failure to interview alibi witnesses by the initial counsel on the case was clearly ineffective assistance.

Investigators Miller and Korczak testified at the new trial hearing that they had visited the crime scene at night, trying to replicate conditions of that night. They both indicated that visibility was extremely limited.

The police admitted that they tried re-enact the crime on video. Their video tape illustrated that it would have been impossible to identify a man standing next to the victim’s car or driving by in the rain (Korczak, NT Tr. 87). The jury would have received critical insight by a crime scene visit.

This testimony which could have been used to undermine or destroy Kautter’s statement was inexplicably not used at trial, especially since this argument was made by counsel in closing (Tr. 6588).

5. DEFENSE COUNSEL DID NOT QUESTION OFFICER CHAPEL CONCERNING HIS PROBLEMS WITH J.P.MORGAN AND OTHER OFFICERS.

Because there was no foundation for questioning J.P. Morgan’s activities in the record, the trial court frequently sustained objections to inquiries on this subject. See e.g. Tr. 4290.

Counsel has obtained an expert - Ed Hanson - who has prepared a three-dimensional analysis of the trajectories using the crime scene photographs and the autopsy photographs. See Appendix 1. Mr. Hanson has performed this type of computer-assisted analysis in several cases. The trajectory of each of the two bullets has been reconstructed to establish the position of the gun for each shot fired. This data then proves the height of the "shooter" by the position of the gun. Using this well-established technology, Mr. Hanson concludes that Michael Chapel could not have fired these shots. The shooter in Hanson’s analysis had to be under 6 feet tall.

The defense investigator at trial recommended an analysis of the bullet trajectories, but it was not performed. Mr. Moore’s explanation for why he did not pursue this issue illustrates that it was not handled competently.

Analysis of bullet trajectories is not a novel or extraordinary discipline and should have been done by the defense at trial. Officer Chapel could not physically have fired the shots that killed Emogene Thompson. It is clear that this evidence would have produced the "real doubt" referred to in Banks v. State, 246 Ga. 1, 268 S.E.2d 630 (1980).

Accordingly, the Court erred in failing to instruct the jury on the misstatements in closing argument or in not granting a misstrial.

The prosecution’s weak, circumstantial case at trial cannot support the jury verdict. All of the evidence considered as a whole fails to provide a reasonable basis for the guilty verdicts on all counts. There was no testimony supporting the robbery and felony murder conviction. With all the other problems in his testimony, Mr. Kautter said that he "was not sure" that it was Officer Chapel he saw on the highway. The armrest blood spot did not match the victim using the standard DNA analysis followed everywhere but at the GBI. Even if it were a match, it was detected under suspicious circumstances that cannot give rise to a reasonable interference that Officer Chapel was the source of the transfer. The raincoat "blood splatter" was not tested to match the victim and could in the opinion of the prosecution’s own witness have been caused by another event.

The evidence not heard by the jury is overwhelming. Had the "blood splatter" surprise been properly noticed to the defense, expert rebuttal testimony could have been presented. The pattern is not "high velocity splatter." More importantly, the physical layout of the crime scene makes it impossible for the "splatter" to have come from the victim. Had defense counsel heeded his investigator and client, the bullet trajectories would have been analyzed. They show (from the defense proffer, Appendix 1) that Officer Chapel at 6’6" could not physically have fired the shots.

Had defense counsel listened to his investigator, the jury would have heard that the initial police suspect, Michael Thompson, told a variety of people that "he knew Mike Chapel was not guilty." The jury would also have been able to hear what alibi witnesses recalled two years earlier. The jury would have heard an expert testify that the police car at the muffler shop could not have physically reached Mr. Kautter’s car on the highway as described. The jury would have viewed the crime scene at night, as typified in the police reenactment, and known that descriptions of the officer present were far-fetched at best.

If the new evidence discovered after trial had been available to the jury, they would have also seen a different picture in other regards. The purse turns up near the victim’s house, where it was apparently hidden after Officer Chapel’s arrest. A witness connected with a drug ring admits paying off J.P. Morgan for police department protection. The witness also learned of Michael Thompson’s involvement with Morgan and Emogene Thompson’s threatened position as a witness to the conspiracy.

Finally, had the jury understood that it was the State’s burden to prove presence at the crime, not Officer Chapel’s burden to prove he was not there, the outcome would surely have been different.

The principal issue is whether the evidence as it now appears could support a reasonable finding of guilt beyond a doubt. The evidence that the jury for a variety of reasons did not hear clearly creates more than "real doubt." The interests of justice and fairness compel that the Court find in these issues a way to correct a wrong.

Appellant asks this Court to remand with an order to conduct a new trial and, in the alternative, to remand for an evidentiary hearing on the new forensic evidence.

Respectfully submitted,

Washington, D.C. 20016

202-966-4348

I, Randy M. Mott, hereby certify that a copy of the foregoing Appellant’s Brief together with Enumeration of Errors has been hand-delivered to Danny Porter, Gwinnett County District Attorney, and to Elizabeth Yager, Office of the Attorney General, on this 14^th day of May 1998.

_______________________ Randy M. Mott

Sworn testimony of Edward Hanson, referred to in Defense proffer on October 8 and 9, 1997.

Hanson computer graphic 1 – three quarter front view

of shooting using known physical evidence

Hanson computer graphic 2– front view of shooting

using known physical evidence

Hanson computer graphic 3– inside car view of

Shooting using known physical evidence

Hanson computer graphic 4– passenger side exterior

view of shooting using known physical evidence

Hanson computer graphic 5– view from shooter’s eyes

using known physical evidence