Potts v. Zant

• Citation: 734 F.2d 526
• Decision Date: 29 May 1984
• Docket Number: No. 83-8087,83-8087
• Parties: Jack Howard POTTS, Petitioner-Appellee, Cross-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 526

734 F.2d 526

Jack Howard POTTS, Petitioner-Appellee, Cross-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.

No. 83-8087.

United States Court of Appeals, Eleventh Circuit.

May 29, 1984.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Millard C. Farmer, Atlanta, Ga., for petitioner-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge:

The state of Georgia appeals, and the petitioner cross-appeals, the decision of the district court granting habeas corpus relief in both of the cases involved in this consolidated proceeding. Potts v. Zant, 575 F.Supp. 374 (N.D.Ga.1983). We reach the same result as the district court, requiring a new guilt/innocence trial in No. C80-1078A and a new sentencing trial in No. C80-50G.

The petitioner in these proceedings, Jackie Potts, was charged with armed robbery, aggravated assault, and kidnapping with bodily injury in Cobb County and with murder in Forsyth County as a result of a violent spree on May 8, 1975. Specifically, Potts was accused of shooting and robbing Eugene Snyder and abducting and robbing Michael Priest in Cobb County before murdering Priest in Forsyth County. Potts was convicted of kidnapping, aggravated assault, and two counts of armed robbery in Cobb County, and of murder in Forsyth County. He received three death sentences: one on the kidnapping charge in Cobb County, a second on one of the armed robbery counts in Cobb County, and a third on the murder charge in Forsyth County. The Georgia Supreme Court subsequently vacated the death sentence on the Cobb County armed robbery charge on direct appeal. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978).

After unsuccessfully seeking state habeas corpus relief, Potts authorized the filing of an initial set of petitions under 28 U.S.C. Sec. 2254 attacking his convictions and two remaining death sentences within hours of his scheduled execution on June 5, 1980. Less than two days later, Potts sought to withdraw this authorization so that he might die while in a "state of grace" with God. Following a hearing on June 10, the district court granted Potts' request on June 13, and a new execution date was set for July 1, 1980. On June 25, however, Potts authorized the filing of a second set of federal habeas corpus petitions. The district court held a hearing on the legal issues involved on June 26, but refused an offer by Potts' attorneys to present evidence demonstrating the involuntariness of his decision to withdraw the first set of petitions. The district court found an abuse of the writ with regard to Potts' filing of the second set of petitions on the grounds that he had voluntarily relinquished his rights by withdrawing the first set of petitions, and again refused a request by Potts' attorneys for an evidentiary hearing on the issue of abuse. On appeal, this court ruled that the district court had erred in denying the petitioner an evidentiary hearing after the filing of the second set of identical petitions and remanded the case with instructions to afford Potts an opportunity to rebut the state's allegations of abuse and to demonstrate why his initial withdrawal of the first set of petitions had not been knowing and voluntary. Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B) [Potts I ], cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981). The panel further noted that even if the district court should find that it was possible to dismiss such a successive petition without consideration of the merits, the ends of justice might require that it reach the merits of the petition. Id. at 751-52.

Potts' attorneys subsequently filed in the district court a motion for partial summary judgment on the issue of abuse. Applying the test of Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), the district court concluded that there was no evidence to support the state's claim that Potts' actions had been taken in bad faith or in order to "vex, harass, or delay" the court. The district court therefore granted the motion for partial summary judgment. Potts v. Zant, Nos. C80-1078A & C80-50G (N.D.Ga., May 17, 1982). An evidentiary hearing on the substantive issues in the case was held on June 4, 1982, and the district court entered its order granting the writ on January 6, 1983. The district court vacated Potts' conviction on the kidnapping charge in Cobb County, since it found that the trial court had failed to instruct the jury on the law of kidnapping with bodily injury and the jury had returned a verdict which did not clearly find Potts guilty of anything more than "simple" kidnapping, which is not a capital offense. With regard to the Forsyth County proceedings, the district court found that the inflammatory and improper arguments used by the prosecutor required a new sentencing trial, but it rejected the petitioner's contentions that his Forsyth County murder conviction constituted a violation of the fifth amendment prohibition against double jeopardy and that the jury instructions of the trial judge improperly shifted the burden of proof on the element of intent. The state appealed, and the petitioner cross-appealed the adverse judgment of the district court on the Forsyth County issues.

Before we address the substantive contentions raised by the state and the petitioner on appeal, it is first necessary for us to consider whether the district court acted properly in granting Potts' motion for partial summary judgment on the question of abuse of the writ. The state contends that this court's decision in Potts I mandated the holding of an evidentiary hearing and that it was error for the district court to refuse to do so. It is clear from this court's decision in Potts I and leading precedents such as Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), however, that a hearing on the issue of abuse of the writ is necessary only when there is "a substantial conflict" as to the actual facts involved. Price v. Johnston, 334 U.S. at 292, 68 S.Ct. at 1063. The district court in this case found that there were no disputed issues of material fact with regard to Potts' reasons for authorizing and subsequently withdrawing his first set of petitions, and held as a matter of law that the facts established in Potts' affidavit and the record of the two previous hearings failed to support the state's claim of bad faith. We see no reason to disturb this holding on appeal, particularly since this court emphasized in Potts I that the ends of justice might require the district court to consider the merits of petitioner's complaint even if there did appear to be a colorable basis for the state's claim of abuse. In cases in which a man's life is at stake and he has not had an opportunity to secure federal review of the alleged constitutional defects in his conviction and sentence, the state must meet a heavy burden when it argues that the petitioner's misconduct is sufficiently grave to warrant the sanction of dismissal. We have no hesitation in concluding that the state has failed to carry that burden in the present instance, and we therefore proceed to a consideration of the merits of this appeal.

I. THE KIDNAPPING VERDICT

The petitioner challenges his conviction and death sentence on Count III of the Cobb County indictment on the grounds that the jury's verdict found him guilty only of "simple" kidnapping, which is not a capital offense, rather than kidnapping with bodily injury, which is a capital offense under Georgia law. Off.Code Ga.Ann. Sec. 16-5-40 (1982). The state contends that since the jury's verdict at the guilt/innocence trial clearly found Potts guilty on Count III, which charged that Potts abducted Michael Priest and then killed him, we can infer that the jury intended to find the petitioner guilty of kidnapping with bodily injury, rather than the lesser included offense of "simple" kidnapping. This confusion arises from the form of the jury's verdict, which stated simply that "We, the jury, find the defendant guilty as to Count Three, kidnapping." The jury's verdict at the sentencing trial heightened rather than lessened this ambiguity. The jury was instructed on several possible aggravating circumstances, including that "[t]he offense of kidnapping of Michael Priest was committed while the offender was engaged in the commission of another capital felony, to-wit: murder of Michael Priest." The jury, however, declined to list this as an aggravating circumstance supporting its decision to impose the death penalty on Count III and instead based its death sentence on the aggravating circumstance that the kidnapping was committed during the course of an armed robbery.

While there is thus some degree of uncertainty as to what the Cobb County jury intended to find with regard to the kidnapping charge, the central problem here is the fact that the Cobb County trial judge never offered the jury any specific instructions on the importance of a finding of bodily injury, omitting any reference to this element of the offense in the instructions he utilized at both the guilt/innocence trial and the sentencing trial. ¹ Because a finding of bodily injury to the victim is essential to support the imposition of the death penalty for the crime of kidnapping under Georgia law, we cannot treat this flaw in the jury instructions lightly. The Supreme Court has stressed that "[w]hen a defendant's life is at stake, [courts must be] particularly sensitive to insure that every safeguard is observed." Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976) (plurality opinion). This standard obviously has not been met when a trial judge fails to instruct the jury on an element of a...