Emmett v. State

• Decision Date: 04 April 1974
• Docket Number: No. 28449,28449
• Citation: 205 S.E.2d 231,232 Ga. 110
• Parties: George Herman EMMETT v. The STATE.
• Court: Georgia Supreme Court

Page 231

205 S.E.2d 231

232 Ga. 110

George Herman EMMETT v. The STATE.

No. 28449.

Supreme Court of Georgia.

April 4, 1974.

Rehearing Denied April 23, 1974.

Moulton & Carriere, J. Wayne Moulton, Edward E. Carriere, Jr., Decatur, Cook & Palmour, Bobby Lee Cook, W. Benjamin Ballenger, Summerville, for appellant.

George Darden, Dist. Atty., Richard L. Moore, Asst. Dist. Atty., Marietta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

George Herman Emmett was convicted on two counts of felony murder arising from the deaths of Dr. Warren B. Matthews and his wife, Dr. Rozina Matthews. He was sentenced to two consecutive terms of life imprisonment. The appeal is from these convictions. Held:

1. (a) The appellant contends that the court erred in not striking all the testimony of Larry Wade Truitt because he refused to answer certain questions on cross examination on the ground that the answers might tend to incriminate him.

The witness testified that a prior conspiracy to burglarize the Drs. Matthews' home had been planned by George Emmett, Charles Benjamin Roberts, James Edwards Creamer and him. On cross examination the witness was asked if he knew Billy Jenkins and whether he had any conversation with him about the Drs. Matthews' home. The witness testified that he knew Billy Jenkins but refused to answer the remainder of the question on the ground that it might incriminate him. The appellant contended in the trial court that he wanted to cross examine Truitt about a conversation he had previously had with Billy Jenkins about the Matthews' house in December, 1970, and whether Jenkins had told him in December, January or February about the Matthews' house. The witness refused to answer the question and stated that he was with Emmett, Roberts and Creamer and went with them to the Matthews' house in Decmber, 1970, but 'that he was not with Billy Jenkins that night, and I wasn't with Bill Jenkins, if he participated in it, which I am not saying he did, I wasn't with him, I was in jail.' He also testified that he did not go to the Matthews' house with Billy Jenkins. The appellant moved that all of the testimony of the witness be stricken from the record and that the jury be instructed to disregard it in its entirety. The motion was overruled by the court.

In Smith v. State, 225 Ga. 328(7), 168 S.E.2d 587 this court said: 'No Georgia case has been found which clearly and explicitly lays down the rule which we deem to be the correct rule on this issue. However, there are a number of decisions by Circuit Courts of Appeals which clearly recognize and enunciate the rule which we deem to be implicit in the cases decided in this State. In United States v. Cardillo, 2 Cir., 316 F.2d 606, the circuit court of appeals said: 'Since the right to cross examine is guaranteed by the Constitution, a federal conviction will be reversed if the cross examination of government witnesses has been unreasonably limited. E.g., Alford v. United States, supra (282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624.); United States v. Masino, 2 Cir. 1960, 275 F.2d 129; United States v. Lester, 2 Cir. 1957, 248 F.2d 329. However, reversal need not result from every limitation of permissible cross examination and a witness' testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross examination. In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness' testimony may be used against him. United States v. Kravitz, 3 Cir. 1960, 281 F.2d 581; Hamer v. United States, 9 Cir. 1958, 259 F.2d 274; United States v. Toner, 3 Cir. 1949, 173 F.2d 140. On the other hand, if the witness by invoking the privilege precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness' testimony should be stricken in whole or in part. Montgomery v. United States, 5 Cir. 1953, 203 F.2d 887.' That case has been followed in a number of more recent cases including Smith v. United States (CCA 8) 331 F.2d 265, and Coil v. United States (CCA 8) 343 F.2d 573.'

In the Smith case, 225 Ga. 328, 331, 168 S.E.2d 587, supra, it is stated that the witness' claim of privilege against self-incrimination was with respect to matters sought to be elicited on cross examination which were wholly collateral to and unrelated to her testimony in chief, and was with respect to separate transactions, in no way shown by her testimony to be connected with the crime with which the defendant was charged.

Under the ruling made in the Smith case, the trial court did not err in overruling the motion to strike all the testimony of this witness because the name of Billy Jenkins had not been brought out on direct examination of the witness.

(b) The appellant also argues that Truitt had been promised immunity from prosecution and this should have been made known to the jury.

Truitt was in federal prison in the State of Washington on another offense at the time of the Matthews murders. He testified before the jury that he never asked the state for immunity from prosecution and 'I just assumed that they wouldn't.' The district attorney stated to this court that he had been willing at any time to grant written immunity to Truitt and that this had been understood.

Under these circumstances we conclude that the jury was aware that Truitt would not be prosecuted and no harm to the appellant resulted.

2. (a) The appellant contends that the trial court erred in overruling his motion to interview Debra Ann Kidd, the sole eyewitness to the two murders, who testified in the case and who was in protective custody of the police department.

The appellant contends that the district attorney had advised the witness not to discuss the case with counsel but the record shows that during an in camera hearing in the presence of the judge, his court reporter and secretary, the witness informed the trial judge that she did not want to discuss the case with appellant's counsel until the day of the trial, that the decision was hers and was made freely and voluntarily without instructions from anyone.

In 23 C.J.S. Criminal Law § 958, p. 817, it is stated: 'Accused and his counsel have the right to interview witnesses before the trial; and the state has no right to deny them access to a witness material to the defense, but a witness cannot be compelled to submit to such interview.' Also see Wilson v. State, 93 Ga.App. 229, 91 S.E.2d 201.

We also note that Debra Ann Kidd was fully interrogated by counsel at a habeas corpus hearing of the appellant and that the trial court told counsel that he would require them to be present at the prior trial of co-indictee Creamer when Debra Ann Kidd testified. Counsel was present at that time.

There is no merit in this contention of the appellant.

(b) The appellant moved to interview Mary Ann Morphus, one of the co-indictees in the murders. Her attorney stated that she had no intention to discuss the case with them. On the first day of the trial, counsel for the appellant renewed his motion to interview this witness. His motion was granted by the trial court. The trial lasted one week and during the week the witness testified on direct and cross examination. When the witness was called on rebuttal, the appellant moved to strike her testimony and contended for the first time that the state intentionally secreted her to prevent an interview and thereby suppress evidence.

In overruling the motion that the witness' testimony be stricken, the trial court stated that he had exercised his discretion in granting an interview with the witness over her objection, that counsel for the appellant was present during the examination of the witness in a co- indictee's trial, that counsel had not informed the court that he was having difficulty in finding the witness for an interview, and because the motion was to strike and not to continue the case.

We also note that Mary Ann Morphus was fully cross examined by counsel for Creamer during his trial and that the trial court required counsel for the appellant to be present during that trial and they were.

We find no merit in this contention of the appellant.

3. Appellant contends and argues together that, 'The trial court erred in prohibiting the defendant's cross examination of State's critical witness, Debra Ann Kidd, regarding her prior account of the crime made to Edwin P. Hall, while under the influence of hypnosis,' and that, 'The trial court erred in refusing to conduct an in camera inspection of tape recordings of Debra Ann Kidd's early narrative of the events of the crime made to hypnotist Hall while he was acting solely as an investigatory arm of the Cobb County Police Department.'

Debra Ann Kidd, who had been granted immunity from prosecution, was the state's principal witness and the only eyewitness to testify. She stated she was present during the commission of the crimes. She identified the participants and related her association with them. She described in detail the circumstances and events leading up to, during and following the crime. Among other things she admitted that, under the compulsion of James Edward Creamer, a co-conspirator, she had shot Dr. Rozina Matthews in the head while she was lying on...