Ex parte Potts

• Decision Date: 07 January 1983
• Citation: 426 So.2d 896
• Parties: Ex parte Jody Lynn POTTS. (Re Jody Lynn Potts, alias v. State of Alabama) 81-564.
• Court: Alabama Supreme Court

Page 896

426 So.2d 896

Ex parte Jody Lynn POTTS.

(Re Jody Lynn Potts, alias v. State of Alabama)

81-564.

Supreme Court of Alabama.

Jan. 7, 1983.

Rehearing Denied Feb. 11, 1983.

Ab Powell, III of Powell & Powell and J. Fletcher Jones, Andalusia, for petitioner.

Charles A. Graddick, Atty. Gen., and Edward W. Carnes, Asst. Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for respondent.

PER CURIAM.

The appellant was convicted, pursuant to Code 1975, § 13A-5-31(a)(3), of having carnal knowledge and of killing a girl under 12 years of age, or the abuse of such girl in an attempt to have carnal knowledge, during which the victim was intentionally killed by the appellant. The following issues are raised on appeal; (1) Did the court improperly admit the transcribed testimony of an absent witness at the appellant's preliminary hearing? (2) At the time the appellant was indicted had the United States Supreme Court declared Code 1975, § 13A-5-31(a)(3) (the statute under which appellant was prosecuted) unconstitutional? (3) Did the procedures applied at the appellant's trial violate the ex post facto clause of the United States Constitution? (4) Did the defendant's age bar his conviction for carnal knowledge or rape? (5) Should there have been a jury instruction regarding the lesser included offense of manslaughter? (6) Did the State introduce sufficient evidence at trial to sustain the defendant's conviction?

I. FACTS

A detailed account of the tragic facts in this case is adequately recorded in the decision of the Court of Criminal Appeals. Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982). Only a condensed version of that account needs to be repeated here.

Jody Lynn Potts, the appellant, was convicted of having carnal knowledge and the intentional murder of Wendy Wakin, a six-year-old female. Potts was convicted under Code 1975, 13A-5-31(a)(3), and sentenced to life without parole. When the killing occurred, in September 1980, the appellant was 15 years old. Potts and Wendy lived with their families in a trailer park in Covington County. Witnesses testified that they had seen Potts playing with the victim on the evening she disappeared. One witness, Carol Owens Long, testified at trial that on the evening authorities discovered Wendy's body, she had a discussion with the appellant. Long testified at Potts's juvenile hearing, that Potts came to her trailer that night wet and smelling of a terrible odor. Potts allegedly said he had been searching for Wendy and asked Long if she smelled anything. Long testified that she told him that she smelled an odor like a horse lot and that Potts responded, "No it's not. It's Wendy." The appellant allegedly continued, "They are going to find her right over there," while indicating with his finger down towards the river. Later that evening, the authorities dragged the Conecuh River and found the victim's body. Evidence was presented showing that the victim had been stabbed and raped. Throughout his trial, the appellant admitted that he had been with Wendy on the evening she disappeared. Potts further claimed that while they were playing, a man in a blue Ford automobile beckoned them into his car and that he and Wendy ran from the car. Wendy allegedly was abducted and drove off with the man in the automobile. Authorities made a search for the driver and the car, but never located anyone fitting the description given by Potts.

II. DID THE COURT IMPROPERLY ADMIT THE TESTIMONY OF AN ABSENT WITNESS AT THE APPELLANT'S PRELIMINARY HEARING?

Three separate hearings were conducted, a juvenile hearing, a hearing on Potts's petition for writ of habeas corpus, and a preliminary hearing. Long did not appear at the preliminary hearing and her transcribed statement which had been taken at the juvenile hearing was introduced over the appellant's objection. She did appear and testify at appellant's trial, when the jury returned a guilty verdict.

The appellant asserts that the court improperly admitted transcribed testimony at the preliminary hearing. We do not agree. An accused in Alabama has a statutory right to demand a preliminary hearing after arrest and if that demand is made within 30 days of arrest it must be granted. Code 1975, § 15-11-1. When Potts demanded a preliminary hearing, the thirty-day period had run. The court, acting within its discretion, nevertheless, granted the appellant's motion for a preliminary hearing.

The transcribed testimony of witness Long which had been taken at the appellant's juvenile hearing was introduced at the preliminary hearing. The record shows that the court reporter and the presiding judge at the juvenile proceeding testified as to the authenticity of Long's transcribed testimony. Further, the record indicates that a subpoena had been issued for Ms. Long to appear at the preliminary hearing and that the authorities were unable to serve her.

The appellant cites Holman v. Washington, 364 F.2d 618 (5th Cir.1966), as authority for the proposition that transcribed testimony cannot be properly introduced at a preliminary hearing unless a proper predicate is laid. In Holman, the court established requirements for introduction of transcribed testimony at trial, not at preliminary proceedings. While a defendant has numerous procedural and substantive constitutional protections at trial, all these rights do not extend to preliminary hearings. A defendant in Alabama does not have an absolute right to a preliminary hearing. Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979); see also Nichols v. Estelle, 556 F.2d 1330, cert. denied 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 767 (5th Cir.1977). The Court of Criminal Appeals did not err in holding that no reversible error occurred at the appellant's preliminary hearing.

The grand jury of Covington County indicted Potts during the March term, 1981, some two months after the preliminary hearing. Once an accused has been indicted, no grounds for reversible error exist when the accused's demand for a preliminary hearing is not satisfied. Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979). Potts's subsequent indictment, the predicate laid at the preliminary hearing regarding the transcribed testimony, the lack of a constitutional obligation to provide a defendant with a preliminary hearing, and Long's presence and testimony at the defendant's trial, are all reasons to find that the trial court did not commit reversible error by admitting the transcribed testimony at the preliminary hearing.

III. AT THE TIME THE APPELLANT WAS INDICTED HAD THE UNITED STATES SUPREME COURT DECLARED CODE 1975, § 13A-5-31(a)(3) (THE STATUTE UNDER WHICH APPELLANT WAS PROSECUTED) UNCONSTITUTIONAL?

The offense with which Potts was charged occurred on September 20 or 21, 1980. The grand jury indicted him under Code 1975, § 13A-5-31(a)(3). The appellant argues that the United States Supreme Court declared this statute unconstitutional in its Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), decision on June 20, 1980, three months before the grand jury returned its indictment. Potts asserts that because the statute under which he was indicted was unconstitutional, his conviction must, therefore, be void and reversed on appeal. We do not agree.

The United States Supreme Court did not declare § 13A-5-31 unconstitutional in Beck v. Alabama. In a recent decision, the United States Supreme Court examined its holding in Beck v. Alabama, and Chief Justice Burger wrote for the Supreme Court:

"Subsequently, in Beck v. Alabama, 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980), we held that the sentence of death could not be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense, provided that the evidence would have supported such a verdict.

"...

"Our opinion in Beck stressed that the jury was faced with a situation in which its choices were only to convict the defendant and sentence him to death or find him not guilty. The jury could not take a third option of finding that although the defendant had committed a grave crime, it was not so grave as to warrant capital punishment. We concluded that a jury might have convicted Beck but also might have rejected capital punishment if it believed Beck's testimony. On the facts shown in Beck, we held that the defendant was entitled to a lesser included offense instruction as a matter of due process. Id., at 637 .

"...

"It is important to note that our holding in Beck was limited to the question submitted on certiorari, and we expressly pointed out that we granted the writ in that case to decide whether a jury must be permitted to convict a defendant of a lesser included offense 'when the evidence would have supported such a verdict....' 447 U.S., at 627 . Thus, our holding was that the jury must be permitted to consider a verdict of guilt of a non-capital offense 'in every case' in which 'the evidence would have supported such a verdict.'

"...

"Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury's discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence...."

Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

Thus, the United States Supreme Court's holding in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), did not declare the entire Alabama death penalty statute unconstitutional but only that portion of the statute that did not allow the jury to consider a verdict of guilt for a non-capital offense. On remand this Court, in Beck v. State, severed the preclusion clause from the death penalty statute. There this Court opined:

"The...