Potts v. State
| Decision Date | 16 March 1978 |
| Docket Number | Nos. 32857 and 33259,s. 32857 and 33259 |
| Citation | 241 Ga. 67,243 S.E.2d 510 |
| Parties | Jack Howard POTTS v. The STATE (two cases). |
| Court | Georgia Supreme Court |
Dupree & Staples, Stephen J. Olah, Barry Staples, Marietta, for appellant in No. 32857.
Thomas J. Charron, Dist. Atty., Joseph L. Chambers, Asst. Dist. Atty., Marietta, G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee in No. 32857.
Boling & Rice, Larry H. Boling, Cumming, for appellant in No. 33259.
Frank Mills, Dist. Atty., Canton, for appellee in No. 33259.
Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellees in Nos. 32857 and 33259.
These two death cases have been consolidated for consideration in this court. Although these appeals are from two separate jury trials, one in Cobb County and the other in Forsyth County, the cases are closely interrelated inasmuch as they involve the same appellant, Jack Howard Potts, in the commission of a series of crimes during a continuous intercounty crime spree.
In Case No. 32857, the appellant and Norma Delores Blackwell were indicted in Cobb County and charged with the armed robbery and aggravated assault of Eugene Robert Snyder, and the kidnapping and armed robbery of Michael D. Priest. The appellant was tried separately and found guilty on all counts. The jury found statutory aggravating circumstances to the kidnapping and armed robbery of Michael D. Priest, and death sentences were imposed for each of those offenses. The appellant was also sentenced to life imprisonment for the armed robbery and ten years for the aggravated assault of Eugene Robert Snyder.
In Case No. 33259, appellant was indicted in Forsyth County for the murder of Michael D. Priest. He was convicted by a jury and, after finding statutory aggravating circumstances, was sentenced to death.
In both cases the state presented evidence from which the juries were authorized to find the following:
On May 8, 1975, appellant Potts and Norma Blackwell persuaded Eugene Robert Snyder to drive them to Marietta, Georgia, from Shake Rag, a community located in Forsyth County. Potts and Blackwell along with Snyder and a friend, Donna Glaze, got into Snyder's pick-up truck and proceeded toward Marietta with appellant driving. As the group drove along Sewell Mill Road in Cobb County, Potts shot Snyder through the left ear with a pistol. Snyder was able to remove the key from the ignition and, after realizing he was not seriously injured, requested Potts to take him to a hospital. Potts then shot Snyder in the nose. Snyder acted as if he were unconscious while Potts dragged him out of the truck, off onto the side of the road. Potts removed some cash and other items from Snyder's person while directing his female companions to clean up the truck.
Unable to find the key to the ignition of the truck, the appellant walked to the nearby home of Paul Gurley, who, at the time, was being visited by his daughter and her husband, Michael D. Priest. Potts told them that there had been an accident, that a man had been hurt, and that he needed a ride. Priest volunteered to help the appellant and, shortly thereafter, the two left in Priest's automobile. Upon their arrival at the pick-up truck, Priest saw Snyder lying in a ditch and attempted to go help him, but Potts directed him at gunpoint to drive the group in his automobile toward Marietta. Priest pled for his life while Potts threatened him with the gun. On the trip back to Forsyth County the car made a stop and Potts began to drive while he held the gun on Priest. Potts stopped the car on a dirt road in Forsyth County leading to the trailer where he and the two females had met earlier in the day. He forced Priest out of the car at gunpoint, into an area by the road with high grass. Priest continued to plead with Potts for his life. When Priest said, "Oh my God, don't kill me," Potts responded that there was no such thing as God, and that he would determine whether Priest would live or die. Potts then put the gun to Priest's head, shot and killed him.
After Priest was killed, the appellant, Norma Blackwell and Donna Glaze removed personal effects from the victim's automobile, changed the license plate and headed south. Donna Glaze fled from the other two at a motel and contacted local authorities. The appellant and Norma Blackwell were apprehended on a farm near Quitman, Georgia, after a gunfight with police officers.
1. Appellant's first enumeration of error contends that the trial court improperly excused a prospective juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
When his name was called during the voir dire examination, the juror stated: "Your Honor, I am as a matter of conscience opposed to the death penalty." The Assistant District Attorney then asked the juror the following question, "Could you listen to the evidence in the case . . . listening specifically to the facts of the case, could you conscientiously include based on your consideration of the facts, a death penalty as one of the types of punishment which could be imposed in the case." The juror responded unequivocably, "I could not." The State then moved to excuse the juror for cause, whereupon the court asked the following question of the juror, "Are your reservations towards capital punishment such that you could never vote to impose the death penalty, regardless of the facts in the case?" The juror responded,
When viewed in its entirety, the questioning process clearly shows that this juror could not vote to impose the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings. The juror's responses satisfy the tests set forth in Witherspoon v. Illinois, supra, and its progeny, Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339) (1977), and, therefore, it was not error for the trial court to excuse the prospective juror for cause. See also, Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977).
2. The appellant's second enumeration of error alleges that the trial court erred in allowing co-indictee Norma Blackwell to testify in the case without disclosing that she allegedly had or was negotiating a substantially lighter sentence in exchange for her testimony.
In Allen v. State, 128 Ga.App. 361, 196 S.E.2d 660 (1973), the United States Supreme Court's decision in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), was interpreted to say that "evidence of any understanding or agreement as to future prosecution of an accomplice, on whose testimony the state's case almost entirely depends, is relevant to his credibility; the jury is entitled to know of it; the prosecutor has a duty to disclose it; and the failure to make this disclosure violates due process and requires the reversal of the conviction and a remand for new trial." In order for there to be a reversal, however, there must be evidence that such information existed at or before trial, and that such information was actually withheld. Fleming v. State, 236 Ga. 434, 224 S.E.2d 15 (1976); Eades v. State, 232 Ga. 735, 208 S.E.2d 791 (1974).
During testimony in the instant case, both Norma Blackwell and her attorney denied that she had or was negotiating a substantially lighter sentence in exchange for her testimony. The sole evidence presented by appellant in support of his contention is found in the transcript of a hearing held June 15, 1976, wherein co-indictee Norma Delores Blackwell entered a negotiated plea of guilty to aggravated assault on the prosecutor's recommendation that she be given a sentence of ten years with one to serve, and that the other three charges against her be dismissed. In presenting this recommendation, the Assistant District Attorney stated to the court, "We have a negotiated plea in this case which has been negotiated before the trial of the case of Jack Howard Potts."
The appellant contends that the italicized portion of the Assistant District Attorney's statement represents an admission in judicio by the state that a negotiated plea had in fact been entered between the State and Norma Blackwell prior to the appellant's trial. The State, however, contends that the Assistant District Attorney's statement was erroneous, and in support thereof has supplemented the record of this case with affidavits of both the Assistant District Attorney and Norma Blackwell's attorney which state that her plea had been negotiated on March 26, 1976, fifteen days after the conclusion of appellant's trial. Further, we note that during the hearing on Norma Blackwell's negotiated plea the Assistant District Attorney stated, "It was our feeling that, based on her story to us, and based on the testimony developed at trial, the only thing we could really connect her with was the aggravated assault on Robert Snyder . . . And so, for those reasons we have made the recommendation." (Emphasis supplied).
The Assistant District Attorney's recommendation could not have been based upon testimony developed at the appellant's trial until the trial had taken place. This supports the State's contention that the Assistant District Attorney's statement made during the June 15th hearing was, in fact, erroneous.
There being no evidence that Norma Blackwell had or was negotiating a substantially lighter sentence in exchange for her testimony at the appellant's trial, or that such information had been withheld, there is no basis for the application of the rules set forth in Giglio v. United States, supra, and Allen v. State, supra. Therefore, appellant's second enumeration of error is without merit.
3. Appellant's third enumeration of error contends that the trial court erred in allowing the State to ask leading questions of a witness...
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Ruffin v. State
...that she was unalterably opposed to the death penalty. See Corn v. State, 240 Ga. 130, 132, 240 S.E.2d 694 (1977); Potts v. State, 241 Ga. 67, 69, 243 S.E.2d 510 (1978). The state used only seven of its peremptory challenges. Under Georgia law it had three remaining. Code Ann. § 59-907. Thi......
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...not required that specific mitigating circumstances be singled out by the court in giving its instructions to the jury. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978); Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978). To influence the jury by use of examples may limit their discretion......
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Potts v. Zant
...to the charge of kidnapping with bodily injury and murder, and reversed the sentence of death for armed robbery. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978). Potts, in his brief to this court, alleges that after losing his direct appeal to the Supreme Court of Georgia, he desired to f......
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Gates v. State
...required that specific mitigating circumstances be singled out by the court in giving its instructions to the jury. Potts v. State, 241 Ga. 67, 86, 243 S.E.2d 510 (1978), Spivey v. State, supra. To influence the jury by use of examples might limit their discretion to consider other matters ......