Potts v. State
| Decision Date | 02 March 1982 |
| Docket Number | 4 Div. 948 |
| Parties | Jody Lynn POTTS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Ab Powell and J. Fletcher Jones, Andalusia, for appellant.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.
Appellant was convicted under § 13A-5-31(a)(3) Code of Alabama 1975 for carnal knowledge of a girl under twelve 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. After a hearing on aggravating circumstances, the jury returned a verdict fixing the appellant's sentence at life imprisonment without parole. Appellant's motion for new trial was denied, and this appeal followed.
The victim in this case was Wendy Wakin, a six year old girl, whose body was found floating in the Conecuh River on September 22, 1980. Dr. Thomas Gilchrist, a forensic pathologist for the State of Alabama, testified he performed an autopsy on the victim's body on September 22, 1980. The body was markedly decomposed, and exhibited two stab wounds to the abdomen. The lungs were acutely inflated, indicating death by asphyxia. Additionally, the vaginal area indicated lacerations and extreme hemorrhaging, consistent with an attempt to have carnal knowledge of the victim. The doctor could not testify as to the exact cause of the asphyxia, but testified it could have been caused by drowning, smothering, strangulation, or traumatic compression of the victim's chest. The stab wounds appeared to have been inflicted after death. Dr. Gilchrist estimated that the body of the victim would have floated to the surface some eight to forty-eight hours after having been placed in the river.
Chris Wakin, the victim's eleven year old brother, testified that he along with the victim, appellant, and appellant's younger brother, Tim, went swimming together around 5:00 p.m. on the afternoon of September 20, 1980 at Lakeside Trailer Park. Afterwards, they decided to play hide-and-go-seek with Tim and Chris hiding from appellant and Wendy. Tim and Chris left the other two at the dock, while they headed for some sand pits. The two boys made various sets of tracks to illude Wendy and appellant, and then headed toward the highway. The boys saw Tim's grandmother and walked ahead of her along the highway. They observed two women in front of Nita's Beauty Shop who were trying to start an automobile. They then started to return to the trailer park. The boys saw Wendy and Jody, the appellant, running and they hid behind some trailers. Tim and Chris later returned to the sand pit, but could not find Jody and Wendy. They then returned to their trailer homes in the park, where Chris' mother inquired as to Wendy's location. They told her Wendy was with Jody, and she instructed them to tell them to come home as it was getting dark. Some twenty-five minutes after they had seen Wendy, they heard Mrs. Wakin calling for Wendy and saw Jody coming over the fence at the horse pen and walking towards them. Mrs. Wakin asked Jody where Wendy was, and he replied he did not know, and that he thought she was with Chris and Tim. She told him that Chris and Tim said Wendy had been with Jody, and Jody then began to tell a story about Wendy being kidnapped. Chris Wakin testified Jody was the last person with whom he had seen his sister on September 20, 1980. He stated he had lived at the trailer park for about three months before this incident occurred.
John Wakin, the victim's father, recalled his wife entering their trailer about 7:00 p.m. on September 20, 1980 extremely upset over Jody's story of Wendy's disappearance. They got in their automobile and drove slowly through the trailer park calling for Wendy. After twenty minutes they returned home and called the Sheriff's Department. Mr. Wakin later heard Jody tell a deputy that he and Wendy had been approached by a man in an automobile and that he told Wendy to run. He ran, and the next thing he saw was that the vehicle had circled around and taken off in the other direction. He could not, however, see if Wendy was inside the automobile.
Janice Wakin, Wendy's mother, recalled the evening of Wendy's disappearance. Wendy had finished supper and gone out to play about 5:40 p.m. Around 6:45 Mrs. Wakin saw Chris and Timmy and she asked them where Wendy was and they told her she was with Jody. She instructed them to tell Wendy it was time to come home. At 7:00 when she had not returned, Mrs. Wakin went outside and began to call Wendy. She then saw Jody coming through the horse pasture casually walking towards her. She asked him where Wendy was and he said he did not know. Mrs. Wakin then told him Chris and Timmy said she was with him, and he began to tell her about a blue automobile whose occupant had tried to get Wendy to enter the vehicle. Jody told her he and Wendy ran along the highway in front of the beauty shop and then down the road going into the trailer park. When he turned around again, Wendy was no longer to be seen. Mrs. Wakin and her husband searched for Wendy in their automobile, and then returned home and called the authorities.
David Gainey, an investigator with the Sheriff's Department, responded to a call from John Wakin at the Lakeside Trailer Park on September 20, 1980. When he arrived he saw the appellant at the Wakin's trailer, accompanied by his mother and grandmother. Jody was not a suspect in the disappearance at that time. However, Officer Gainey took the following investigative statement from Jody when he arrived:
Jody also described the occupant of the vehicle to Officer Gainey, as well as the vehicle itself. The driver was a tall, slim white male with dark hair, a beard, and a scar on his right temple. The automobile was a medium shade of blue four door with Ford written in script on the rear quarter panel. The rear deck was carpeted and the arm rest was torn off one door. The vehicle's licence plate was yellow.
Officer Gainey stated the area was searched until midnight on September 20, and then the search began again the next morning. He observed a set of large and small footprints in a sand pit area that appeared to be proceeding together. During the course of the search on Sunday, September 21, Jody repeatedly asked Officer Gainey if the river would be dragged, and how long it would take a body to float. Sunday afternoon Officer Gainey had Mr. Bill Burt draw a composite photograph from the description given by Jody of the alleged kidnap suspect.
On Monday, September 22, 1980 Officer Gainey took Jody Potts into custody and brought him to the Sheriff's Office. Because Jody was a juvenile, Officer Gainey contacted District Judge Norris and requested that he appoint appellant an attorney. Attorney Ab Powell was appointed as appellant's counsel and came to the Sheriff's Office to advise the appellant before appellant was questioned by Officer Gainey. After having been read his Miranda rights in consultation with his attorney, appellant signed a waiver of rights form, and gave an oral statement to Officer Gainey, which Gainey transcribed. The statement appears in pertinent part in the record as follows:
Appellant was placed under arrest at the close of this interview.
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