Emmett v. Ricketts, C 74-831A

• Decision Date: 17 June 1975
• Docket Number: C 74-1112A.,No. C 74-831A,C 74-831A
• Citation: 397 F. Supp. 1025
• Parties: George Herman EMMETT v. Dr. James G. RICKETTS, Warden, Georgia Diagnostic & Classification Center, Jackson, Georgia. James Edward CREAMER v. Joe S. HOPPER, Warden, Georgia State Prison.
• Court: U.S. District Court — Northern District of Georgia

397 F. Supp. 1025

George Herman EMMETT v. Dr. James G. RICKETTS, Warden, Georgia Diagnostic & Classification Center, Jackson, Georgia.

James Edward CREAMER v. Joe S. HOPPER, Warden, Georgia State Prison.

Nos. C 74-831A, C 74-1112A.

United States District Court, N. D. Georgia, Atlanta Division.

June 17, 1975.

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J. Wayne Moulton, Decatur, Ga. (Moulton, Carriere, Cavan & Maloof, Decatur, Ga.), W. Benjamin Ballenger, Bobby Lee Cook, Summerville, Ga. (Cook & Palmour, Summerville, Ga.) for George Herman Emmett.

Hylton B. Dupree, Jr., Marietta (McDonald & Dupree, Marietta, Ga.), for James Edward Creamer.

John B. Ballard, Jr., Asst. Atty. Gen., State of Georgia, Atlanta, Ga., for respondents.

ORDER

MOYE, District Judge.

These habeas corpus petitions arise out of the shocking and widely publicized slayings of two Marietta, Georgia, pathologists, Drs. Warren and Rozina Matthews, which occurred in the early morning hours of May 7, 1971. Despite what has been described as one of the most extensive investigations in the State's history, numerous aspects of the case remain shrouded in mystery The many tantalizing clues, the important leads that were never pursued,¹ the controversial prosecutions which resulted, all combined with the sensational nature of the crime to make the case, even to this day, the subject of intense media coverage and general community interest.

Petitioners Emmett and Creamer were tried separately in early 1973 before the Superior Court of Cobb County under an indictment charging them and seven other alleged co-conspirators² with two counts of murder and two of felony murder. Creamer's conviction on all counts was affirmed by the Supreme Court of Georgia, Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974), as was Emmett's conviction on the felony murder charges. Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974).³ These petitioners and all other alleged participants in the crime with the exception of Deborah Kidd have steadfastly protested their innocence.

Emmett and Creamer filed separate but similiar petitions that were consolidated for hearing at the request of the respondent wardens. Both charge that the state criminal proceedings to which they were subjected were honeycombed with constitutional error, and the allegations of prosecutorial bad faith and misconduct that have punctuated the Matthews murder prosecutions⁴ are present here. The scope of the issues raised in the petitions together with the inherent complexity of the subject matter and the large volume of heretofore unrevealed evidence necessitated some 17 days of hearings in this Court. As a result of those hearings, the Court is drawn to the ineluctable conclusion that these convictions must be overturned.⁵ The legal bases for granting habeas corpus in these cases will be discussed in succeeding pages. As a predicate to the Court's conclusions of law, however, a necessarily capsulized statement of the relevant facts is essential.

The Facts

The instant convictions and those that followed were obtained almost entirely on the strength of testimony provided by Deborah Ann Kidd. The prosecution offered no physical evidence tending to link these petitioners or any of the alleged co-conspirators to the crime; their presence at the scene and their participation in the fateful events of May 7, 1971, were established solely by her testimony. Kidd, a self-admitted former habitual and prolific user of amphetamines,⁶ prostitute, and shoplifter, provided testimony at the Emmett and Creamer trials that was in certain respects contradictory of the physical evidence and of testimony given by other witnesses. Nevertheless, her testimony, the highlights of which are summarized below, has been given credence by four separate juries and, prior to the instant habeas corpus proceedings, there was little or no indication that it had ever varied significantly.

A. The Emmett and Creamer Trials—The Testimony of Deborah Ann Kidd

Kidd testified at the trials of these petitioners that she met Creamer at a gambling club in Greenville, South Carolina on May 2, 1971.⁷ She quickly became, in her words, Creamer's "old lady" and stayed with him until they departed by automobile for Georgia in the company of Hoyt Powell and Wayne Ruff on the morning of May 4. Upon arriving in Atlanta they checked into the Days Inn Motel on Interstate I-85, Creamer registering in the name of "C. A. Bloom."⁸ She claims to have met petitioner Emmett, Charles Roberts, Larry Hacker and Foster Sellers⁹ there on the same date.

In the days that followed, Kidd and Creamer visited various locations in the Atlanta area including the offices of an Atlanta attorney. It was there, Kidd contended, that the plan to rob the Matthews home was conceived.¹⁰ On the night of May 6 they "all" had a party at the Days Inn which included the consumption of drugs and alcohol, and in the early morning hours of May 7¹¹ Kidd and others set out from the motel for the purpose of robbing the Matthews. Kidd rode in a white station wagon "with a girl named Sue"¹² and Larry Hacker. Creamer, Ruff and Powell departed in a blueish-gray car. Emmett, Roberts and Billy Richard Jenkins traveled in an unidentified automobile. All participants except Kidd and possibly "Sue" wore gloves.

Upon arriving at the scene, the males dispersed to various locations around the grounds, and immediately one of the garage doors began to open. Kidd saw Ruff hit Dr. Warren Matthews over the head with a tire tool as Matthews exited the garage in his blue Mercedes-Benz sports car. Ruff and Creamer dragged the doctor from his automobile out onto the driveway and shot him twice. As Kidd and "Sue" stood outside, petitioners Creamer and Emmett, Wayne Ruff, Hoyt Powell and Charles Roberts rushed into the lower part of the house through the garage door. A spate of gunshots was heard, and Emmett ran out to inform Kidd that Creamer had been shot, she was later to learn, by Mrs. Rozina Matthews.

Upon entering a utility room adjacent to the garage, Kidd saw Creamer, who had been shot by Mrs. Matthews with her .38 caliber Smith and Wesson revolver. Creamer was "scrunched up" on the floor, bleeding¹³ from a wound in his side or lower chest. Mrs. Matthews, whose arms were covered with blood, stood on a stairway that led from the utility room to the upstairs part of the house. The door at the top of the stairs had locked behind her and a pistol lay at her feet. The female pathologist was confronted by Powell, Ruff, Roberts and Emmett, grabbed by her arms and pushed out a door to the patio.

Kidd sought refuge from the bloody scene, pulling herself up the aforementioned stairway by using a handrail. She gained access to the living quarters, enlisting the aid of Emmett who opened the locked door with burglar tools. From an upstairs window Kidd saw Ruff shove Mrs. Matthews to her knees on the patio. Ruff repeatedly struck her with his fists, and when she attempted to stand on several occasions, he dealt her heavy blows knocking her again to the patio. As Kidd watched, Charles Roberts sought her out upstairs and, grabbing her roughly by the arms, forced her to join the others in back of the house. When Kidd attempted to flee Ruff pursued her and threw an ax which stuck into a tree. She was carried back to the patio and was made to shoot Mrs. Matthews in the head with the victim's own gun.

After a hurried departure from the scene, Kidd and others (Roberts and Ruff left in Dr. Warren Matthews' car) took Creamer to the home of one B. J. Watkins ("Little B. J.") in Chamblee, Georgia, where Creamer was treated by a Doctor Cooley. Kidd and several others then returned to the scene of the crime and conversed briefly with a woman bystander who was later identified as Judy Fox. Kidd, Creamer and others departed for Savannah Beach the same day where she remained while Creamer convalesced. She had no further involvement in the case until the Summer of 1972 when she related her original story to Donnie Gilreath.

B. The Early Investigation

The pre-Kidd phase of the Matthews murder investigation began at approximately 6:30 a. m., on May 7, 1971, when the Cobb County Police Department received a phone call from a neighbor of the Matthews who had been awakened by gunshots and the screams of a woman. The neighbor was later to testify that when he looked out his window, from which he had a clear view of the Matthews' house and the wooded area behind it, he saw no people or automobiles.

About five minutes later representatives of the Cobb County Police Department arrived at the scene to find the body of Dr. Warren Matthews located in the driveway and that of Mrs. Matthews on the patio in the rear of the house. The subsequent investigation, conducted by Dr. Larry Howard, Director of the State Crime Laboratory, and several crime lab specialists, revealed certain findings that would prove highly relevant during later proceedings; among them were the following:

1. Warren Matthews had been shot in the chest and back. Rozina Matthews had been shot in each arm and in the back of the head.

2. Substantial quantities of blood were found in and about the garage of the Matthews' home. Numerous samples were taken, typed and identified. Only Types O and AB, the same types as the Matthews', were found at the scene. No Type A blood, like that of petitioner Creamer, was produced.

3. Investigators recovered no weapons but retrieved numerous spent bullets from the crime scene. The ballistic characteristics of those bullets indicated that three different .38 caliber pistols were fired. Subsequent investigation revealed that petitioner Creamer had a bullet in his right side. When that bullet was surgically removed from his body, it was found to have been fired by a .38 caliber pistol other than a Smith and Wesson, the gun owned and allegedly used by Rozina Matthews on the day of the murders, and it...