Potts v. State

Decision Date23 February 1989
Docket NumberNo. 45977,45977
PartiesPOTTS v. The STATE.
CourtGeorgia Supreme Court

Rafe Banks III, Dist. Atty., Cumming, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., for the State.

SMITH, Justice.

This is a death penalty case. Jack Howard Potts originally was convicted and sentenced to death in Forsyth County for the murder of Michael Priest. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978). His death sentence for murder was set aside during federal habeas corpus proceedings, Potts v. Zant, 734 F.2d 526 (11th Cir.1984), and the case was remanded to Forsyth County for a retrial as to sentence. Potts' motion for change of venue was granted, and the penalty phase was retried in Richmond County. Potts was resentenced to death. He now appeals. 1

FACTS

The evidence presented at the resentencing trial may be summarized as follows:

In the spring of 1975, Potts met 22-year-old Norma Blackwell. She left her husband and three children, and began living with Potts. In early May, 1975, they were in Daytona Beach, Florida. While there, Potts killed a man. Blackwell helped Potts bury his bloody shirt and they returned to Georgia. (Potts later confessed to this murder.)

Potts and Blackwell spent the night of May 7, 1975 in Forsyth County. The next day, after Potts shot a window out of his mother's car (because "he was upset"), Gene Snyder and Elaine Glaze stopped by in Snyder's pickup truck. Blackwell and Potts sought a ride with them to Marietta where Potts had left his automobile. As the four of them rode to Marietta, Potts, who was driving, reached across the seat and shot Snyder.

Snyder testified:

[I heard] a sound like a firecracker going off in my ear, and I shook my head and wondered what happened, and I turned around and looked, and he had a gun in his hand, and I seen blood run down my shirt, and I figured then I'd been shot.

So, I took the key out of the switch and ... the truck slowed down ... I told him to take me to the doctor ... and he said he would if I'd put the key back in the switch.

So, I should have knowed better, but I did put the key back in the switch, and then he shot me again right through the sinus and down in the throat somewhere....

[The first shot] went through my sideburn ... and came out [my] right ear....

[After the second shot], I tried to hold his hand, and ... he either hit me or his gun went off again....

Snyder pretended to pass out. As Potts came around the truck (now stopped) to pull him out, Snyder took the ignition key out of the switch and threw it out of the window. Potts left Snyder by the side of the road and wiped down the inside of the truck to erase any fingerprints.

Potts walked to a nearby house, where Michael Priest, his pregnant wife, and her parents had just begun to eat supper. Potts, covered with blood, claimed he had been in an accident and needed a ride. Michael Priest volunteered to take him to a hospital.

While Potts was gone, Elaine Glaze asked Norma Blackwell if she could just leave. Blackwell told her that Potts would kill her if she left; Blackwell had seen him kill before, in Florida.

Potts returned with Priest in the latter's car. Priest saw Snyder "covered in blood" and stated, "My God, that man is hurt. Somebody needs to help him." Potts pointed a gun at him and told Priest he had done it and would "do" Priest "like that." The two women entered the car, and Potts ordered Priest to drive off.

Glaze testified:

Michael, he kept saying that he had a wife and baby and a baby on the way. That he didn't want to die. Over and over. That he would do anything, and he would give him anything if he just didn't hurt him. And it went on like that for awhile.

And Michael ... started saying, "Oh, God, don't hurt me because I haven't done anything to you." And that's when [Potts] told him, "You'd better pray to me. I'm your God." And Michael began to pray to him.

They stopped on a dirt road. Potts took Priest into some high weeds, forced him to his knees, and shot him in the back of the head. He returned to the truck, and, according to Glaze,

said, "Now it's your turn. Come on." And I was begging to Norma [Blackwell], and Norma said, "Don't hurt her Jack. Don't kill her. She'll do anything you want to." And ... I said, "I will." And he laughed and got in the front seat and began to drive....

After changing clothes and burning their old ones, the three drove to Cumming, where Potts stole a dealer "tag" to replace the license plate on Priest's car. They disposed of Priest's personal possessions and papers, and drove toward Florida.

They stopped to pick up a hitchhiker, but when Potts told him they were going "to hell and back," the hitchhiker decided not to ride with them.

Glaze escaped when Potts stopped to get a motel room. When Potts returned to the car and discovered Glaze was gone, he and Blackwell drove on, spending the night in the car. The next morning, they picked up two hitchhikers. As they drove south, Potts bragged that he had killed a man the day before.

They were spotted near Morgan, Georgia, by police Officer Rickey Weaver, who had received information over his radio that Potts had been driving recklessly. Weaver directed him to stop, but Potts refused. As Weaver chased Potts, he received another call on the radio informing him that the driver was wanted in connection with a murder in North Georgia.

Potts stopped his car and got out. According to Blackwell, Potts intended to shoot Weaver until he saw that the officer was armed with a shotgun. Officer Weaver testified that he stepped out of his car carrying his shotgun and told Potts to lie face down on the ground. Instead, Potts got back into his car and sped off.

Weaver chased Potts for several miles. As he topped a hill, Potts, who had stopped again, fired several shots at Weaver. Weaver stopped his car and fired at Potts, who took off again. Weaver resumed the chase, but soon had to quit because Potts had shot a hole in his radiator and his car overheated.

Potts and his companions broke into a farmhouse, stole some guns and ammunition, and were preparing to steal a car Potts was taken into custody, where he remained for 12 years. On September 19, 1987, while awaiting a retrial in this case, Potts broke out of the Forsyth County jail, using a gun furnished him by a 21-year-old female jailer who thought "he was a friend." After a shootout, Potts was apprehended not far from the jail. The sentencing trial took place three and one-half months later.

when two more policemen drove up. In the ensuing shootout, Potts and one of the policemen were wounded, and one of the hitchhikers was killed.

ENUMERATIONS OF ERROR

1. This court affirmed the denial of Potts' double jeopardy claim based on prosecutorial misconduct at the original trial. Potts v. State, 257 Ga. 402, 359 S.E.2d 916 (1987). Following the return of the case to superior court, a jury was selected in Forsyth County for the resentencing trial. However, the trial court granted Potts' motion for a change of venue before the oath was administered to the jury. See OCGA § 15-12-139. Thereafter, Potts again sought to bar a retrial on double jeopardy grounds, claiming now that the grant of his motion for a change of venue was "tantamount to declaring a mistrial."

The trial court granted Potts' motion for change of venue after determining that Potts could not get a fair trial in Forsyth County. Since the jury was not sworn, jeopardy did not attach, and there was neither a mistrial, nor anything "tantamount" to a mistrial. Shaw v. State, 239 Ga. 690(1), 238 S.E.2d 434 (1977). Hence, Potts' double jeopardy claim is without merit. Moreover, although we need not decide whether the court would have been justified in granting a change of venue even if jeopardy had attached, we note that the change of venue was granted at the defendant's request, and that "a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution...." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).

2. The trial court did not abuse its discretion as to the defendant's requests for expert assistance. Crawford v. State, 257 Ga. 681(5), 362 S.E.2d 201 (1987).

3. Before trial, Potts filed a motion asking that he not be manacled in the presence of the jury. The court stated that it had asked the sheriff "to submit his proposal for security during the trial of this case, and we will reserve ruling on that particular motion until he's done that."

The sheriff's plan, as submitted, included shackling Potts with leg irons during the trial (his hands, however, would remain free). At the defendant's request, the trial court conducted a hearing on the issue.

The state presented evidence that Potts had threatened to disrupt the proceedings, to throw things at the judge, and to assault the district attorney. The sheriff testified that Potts had "severe mood swings." He had fired his lawyer three or four times in the previous week. He had torn his clothes and flushed them down the commode. He had "set the jail on fire," and the sheriff had to remove all flammable objects from his cell. Potts had obtained a gun and attempted an escape not long before trial. Moreover, Potts' original escape plan had been to use the gun to take his own attorney hostage. 2

The court noted that "both counsel tables in the courtroom including the one occupied by the state and the one occupied by the defense have been draped or covered in such a way that the feet and legs of those seated at those tables are not visible to the jurors." In addition, the court stated that Potts would be brought into the courtroom before the jury entered, and would stay until the jury left. The court found from the evidence presented that shackling was justified and that "the use of...

To continue reading

Request your trial
42 cases
  • Nash v. State
    • United States
    • Georgia Supreme Court
    • July 6, 1999
    ...could be determined from evidence adduced by State although no Pope objection had been raised to admission of plea); Potts v. State, 259 Ga. 96(14), 376 S.E.2d 851 (1989) (in absence of trial transcript, requirement of Pope satisfied by testimony of witnesses from original trial to prove co......
  • Ward v. State, S92P0087
    • United States
    • Georgia Supreme Court
    • June 11, 1992
    ... ... State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974). In this case neither crime was included in the other as a matter of law or of fact, and it was not error to convict Ward of both offenses. See Potts v. State, 261 Ga. 716(1), 410 S.E.2d 89 (1991). 6 ...         15. The statutory voir dire questions, see OCGA § 15-12-164, do not conflict with or in any way impinge upon the defendant's presumption of innocence ...         16. A criminal defendant is not entitled to a ... ...
  • Spencer v. State
    • United States
    • Georgia Supreme Court
    • November 21, 1990
    ...was not disputed that he had that one conviction for rape. We note there was no objection to the form of the verdict, Potts v. State, 259 Ga. 96(22), 376 S.E.2d 851 (1989), and find that the jury's § b(1) finding is supported by the 20. While the state may not argue that the defendant might......
  • Wade v. State
    • United States
    • Georgia Supreme Court
    • March 15, 1991
    ...not erroneous, and did not, as the defendant contends, deprive him of his major argument against the death penalty. Potts v. State, 259 Ga. 96(13), 376 S.E.2d 851 (1989). 6. The jury's original sentencing verdict included the finding: "Aggravated battery was committed prior to the death of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT