Potts v. State, S89D0359
| Decision Date | 15 February 1990 |
| Docket Number | No. S89D0359,S89D0359 |
| Citation | 259 Ga. 812,388 S.E.2d 678 |
| Parties | POTTS v. The STATE. |
| Court | Georgia Supreme Court |
Mitchell D. Durham, Jimmy D. Berry, Marietta, for Jack Howard potts.
Thomas J. Charron, Dist. Atty., Debra Halpern Bernes, Asst. Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., for the State.
In 1976 defendant was convicted of the murder of Michael Priest and sentenced to death by the Forsyth County Superior Court. His sentence was overturned in Potts v. Zant, 734 F.2d 526 (11th Cir.1984). After a new sentencing trial held in Richmond County pursuant to defendant's motion for change of venue, he again received the death penalty on January 14, 1988. This sentence was affirmed by this court in Potts v. State, 259 Ga. 96, 376 S.E.2d 851, cert. denied, 493 U.S. 876, 110 S.Ct. 214, 107 L.Ed.2d 166 (1989).
A Cobb County jury found defendant guilty of the aggravated assault and armed robbery of Eugene Robert Snyder and guilty of the kidnapping with bodily injury and armed robbery of Michael Priest. Defendant was sentenced to death for the kidnapping with bodily injury and armed robbery of Michael Priest. The death sentence on the conviction for the armed robbery of Michael Priest was reduced to a life sentence in Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978). The conviction and sentence for kidnapping with bodily harm of Michael Priest was reversed in Potts v. Zant, supra, and remanded to Cobb County for a new trial. The pre-trial proceedings in Cobb County are the subject of this opinion.
This matter is here for pre-trial review pursuant to Ga.Laws 1988, p. 1437. This court accepted the following issues for review after the Superior Court of Cobb County submitted a report indicating that there might be reversible error:
1) In a challenge to the traverse jury, whether young persons age 18 to 24 are a cognizable group and therefore under-represented in the jury pool;
2) Whether defendant waived a challenge to the composition of the grand jury by not raising this issue before his 1975 trial and whether the charge should be dismissed because the data to complete the grand jury statistics does not exist;
3) Whether the state can use the murder of Michael Priest in Forsyth County for which the defendant received a death sentence as an aggravating circumstance in the defendant's trial for the kidnapping with bodily harm of Michael Priest;
4) Whether and to what extent the defendant should be permitted to represent himself.
1. We have considered defendant's challenge to the traverse jury and find that it lacks merit. Defendant argues that young persons age 18 to 24 are a cognizable group, that they have been systematically excluded from the jury pool, and that they have been consistently under-represented in the Cobb County jury pool.
[T]o show that a group is distinct or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process.
Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 851 (1984).
Whether or not a class of persons is ... sufficiently distinct and cognizable for sixth amendment fair cross-section analysis is a question of fact.... The distinctiveness and homogeneity of a group under the sixth amendment depends upon the time and location of the trial.
Id. See also, Willis v. Kemp, 838 F.2d 1510 (11th Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989).
The test for an attack on a traverse jury is two-fold: first, the defendant must prove that the group is a cognizable group; secondly, the defendant must show that the group has been consistently under-represented.
Defendant has failed to show that persons 18 to 24 are a cognizable group in Cobb County at the present time. In the first place, he failed to show why young adults 18 to 24 were included within his grouping and those 18 to 25, 29, or some other age were not. Thus the selection of the group is itself unclear. We are not persuaded by his argument that because persons in the age group 18 to 24 are under-represented in the jury pool, this proves that they constitute a cognizable group. This is circular reasoning. Neither are we persuaded that the solidarity and bonding of persons 18 to 24, traits which defendant contends are characteristic of a cognizable group, prove that this segment of the population does indeed amount to a cognizable group. See generally, Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 154 (1987); Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985); Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974). Finally, defendant has failed to show that manipulation of the jury lists or any other form of systematic exclusion accounts for any under-representation which may occur in this age group. Therefore, we find no error in the trial court's conclusion that young persons age 18 to 24 are not a cognizable group which must be represented on defendant's jury for sixth amendment purposes.
2. Defendant has presented a challenge to the grand jury which indicted him in 1975. The trial court found that he had waived the right to challenge the grand jury by not raising the issue before the 1975 trial. Defendant responds that since he has been granted a trial de novo he should have an opportunity to challenge the grand jury at this time. "The general rule is that the grand jury composition must be challenged prior to indictment unless the defendant shows he had no actual or constructive notice of the illegality." Barrow v. State, 239 Ga. 162, 163, 236 S.E.2d 257 (1977). The fact that a new trial has been granted does not entitle defendant to a new indictment.
Secondly, he argues that his situation is analogous to that of the appellant in Barrow v. State, supra. In Barrow the court found a challenge to the grand jury was not waived where the defendant's lawyer influenced by community pressure, failed to make a challenge which he realized would probably be successful. Defendant contends that the failure of his attorney to make a challenge in 1975 is similar. We do not find similar extraordinary circumstances here. Defendant argues that the media gave a great deal of attention to his 1975 trial. He suggests that a challenge to the grand jury at that time might have been viewed as a waste of time and public money and a financial burden on appointed counsel. These circumstances do not rise to the level which would require a new indictment.
3. The state seeks the death penalty against defendant for the kidnapping with bodily injury of Michael Priest in Cobb County. Defendant contends that the state cannot use as an aggravating circumstance the murder of Michael Priest in Forsyth County for which defendant has already received the death penalty. Defendant relies upon Gregg v. State, 233 Ga. 117, 127, 210 S.E.2d 659 (1974), affirmed, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), for his argument that the murder cannot be used as the aggravating circumstance in his trial for kidnapping with bodily injury. In Gregg v. State, supra, we held that "[s]ince the armed robberies were held to be aggravating circumstances authorizing the death penalties as to the murders, the murders cannot then be used in aggravation of the two armed robberies."
The present case is distinguishable from Gregg in that armed robbery, not the kidnapping, was used as an aggravating circumstance in the Forsyth County murder case. Since the kidnapping was not used as the aggravating circumstance for the murder, the use of the murder as the aggravating circumstance for the kidnapping does not constitute a prohibited use of mutually aggravating circumstances. See, Strickland v. State, 247 Ga. 219, 275 S.E.2d 29, cert. denied, 454 U.S. 882, 102 S.Ct. 365, 70 L.Ed.2d 192 (1981), in which this court upheld death sentences for the murders of A, B, and C. The defendant received the death penalty for the murder of A, which the jury found to be outrageously and wantonly vile and involving depravity...
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