Potts v. State, 45261

Citation258 Ga. 430,369 S.E.2d 746
Decision Date07 July 1988
Docket NumberNo. 45261,45261
PartiesPOTTS v. The STATE.
CourtSupreme Court of Georgia

Jimmy D. Berry, Marietta, for Jack Howard Potts.

Thomas J. Charron, Dist. Atty., Marietta, Debra H. Bernes, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., for the State.

BELL, Justice.

This appeal presents an issue of procedural double jeopardy under the Fifth and Fourteenth Amendments and the 1983 Ga. Const., Art. I, Sec. I, Par. XVIII. In 1975, the defendant, Jack Howard Potts, was convicted in Cobb Superior Court of certain criminal offenses. His sentences included two death sentences. This court affirmed his convictions, reversed one of the death sentences, and affirmed the remaining death sentence, which the jury had based on the third count of the indictment. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978). The United States Court of Appeals for the Eleventh Circuit subsequently ordered new guilt-innocence and sentencing trials on Count Three. Potts v. Zant, 734 F.2d 526 (11th Cir.1984).

On remand, Potts filed a plea of former jeopardy concerning Count Three, which charges him with the offense of kidnapping with bodily injury. OCGA § 16-5-40. He contended that the state could retry him for the lesser offense of kidnapping, id., but not for kidnapping with bodily injury. He argued that the verdict on Count Three had been an implied acquittal of kidnapping with bodily injury. See Green v. U.S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The superior court denied his plea, and he appealed. We affirm, for the reasons that follow.

1. The Green and Price cases control our determination of this issue. In them, the United States Supreme Court held that jeopardy for an offense ends after a jury convicts a defendant of a lesser-included offense, if the court has given the jury a full opportunity to return a verdict on the greater offense and no extraordinary circumstances have prevented the jury from doing so. Green, supra, 355 U.S. at 190-191, 78 S.Ct. at 225-226; Price, supra, 398 U.S. at 328-329, 90 S.Ct. at 1760-1761. See LaFave & Israel, Criminal Procedure Vol. 3, Sec. 24.4(c), pp. 93-95 (West 1984 & 1988 Pocket Part).

Relying on the Green-Price rule, Potts asserts that his jury impliedly acquitted him of the greater offense of kidnapping with bodily injury, by convicting him of the lesser-included offense of kidnapping. However, we find that this contention has no merit. We have two reasons for this finding. One reason is that an unambiguous conviction of a lesser-included offense is a necessary predicate for application of the Green-Price rule. In Potts v. Zant, supra, 734 F.2d at 530, the Court of Appeals for the Eleventh Circuit concluded that the verdict on Count Three was ambiguous. Our review of the record of Potts' trial likewise leads us to conclude that the verdict on Count Three was ambiguous.

Our second reason is that the Green-Price rule does not apply unless the trial court gives the jury a full opportunity to return a verdict on the greater charge. The record of Potts' trial shows that the court did not give the jury a full opportunity to convict Potts of kidnapping with bodily injury.

In the next division of this opinion, we summarize the facts upon which we base our finding that the Green-Price rule does not require granting Potts' plea.

2. The grand jury for the September-October term of Cobb Superior Court indicted Potts on November 6, 1975. The indictment has four counts. The third count alleges as follows:

And the Grand Jurors aforesaid in the name and behalf of the citizens of Georgia, further charge the accused with the offense of FELONY for that the said accused on the 8th day of May, 1975, in the County aforesaid with force and arms did unlawfully then and there abduct Michael D. Priest, a person, without lawful authority and held such person against his will and did kill the said Michael D. Priest by shooting him with a certain pistol; the said killing of Michael D. Priest having occurred while in the unlawful custody of the accused in Forsyth County, Georgia, and the said Michael D. Priest having remained in the unlawfully [sic] custody of the accused from the time of his abduction in Cobb County, Georgia, until the time of his homicide in Forsyth County, Georgia, contrary to the laws of this State, the good order, peace and dignity thereof.

The language of this count accuses Potts of kidnapping with bodily injury. The count does not expressly refer to that offense, but it describes conduct that satisfies the elements of that offense. 1

After the close of evidence in the guilt-innocence phase of the trial, the court read Count Three to the jury, and subsequently instructed that:

Members of the jury, Count Three of this indictment charges kidnapping, and at this time I instruct you a person commits kidnapping when he abducts or steals away any person without legal authority or warrant and holds such person against his or her will.

The court thus instructed the jury on the offense of kidnapping. However, the court did not instruct on the greater offense of kidnapping with bodily injury.

At the end of its instructions, the court told the jury that:

If you find and believe that the defendant is guilty of any of the counts of this Bill of Indictment, the form of your verdict would be: "We, the jury, find the defendant guilty as to Counts--" and insert any one or more of the counts upon which you find the defendant to be guilty.

If you acquit the defendant or you do not believe him guilty of any one or more of the counts of this indictment, then the form of your verdict would be: "We, the jury, find the defendant not guilty on Counts--" and there you would insert any number of the...

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9 cases
  • Potts v. State
    • United States
    • Georgia Supreme Court
    • 6 Noviembre 1991
    ...reprosecuted for kidnapping with bodily injury. We addressed and decided this issue adversely to Potts' contention in Potts v. State, 258 Ga. 430, 369 S.E.2d 746 (1988). 2. Because Potts seized his victim in Cobb County, venue for prosecuting the charge of kidnapping with bodily injury lay ......
  • Potts v. State
    • United States
    • Georgia Supreme Court
    • 23 Febrero 1989
    ...supra, 734 F.2d 526. There have since been interlocutory appeals in both the Forsyth and the Cobb County cases. See Potts v. State, 258 Ga. 430, 369 S.E.2d 746 (1988), and Potts v. State, 257 Ga. 402, 359 S.E.2d 916 (1987). Only the Forsyth case is involved in this appeal.The voir dire exam......
  • People v. Garcia, Docket No. 98969
    • United States
    • Michigan Supreme Court
    • 18 Abril 1995
    ...essential to an implicit acquittal of a greater offense is an unambiguous conviction of a lesser-included offense. Potts v. State, 258 Ga. 430, 434, 369 S.E.2d 746 (1988). We find persuasive the analysis articulated by the Potts court. Holding that the verdict for the lesser-included offens......
  • Williams v. The State
    • United States
    • Georgia Supreme Court
    • 4 Octubre 2010
    ...of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence”); Potts v. State, 258 Ga. 430, 431(1), 369 S.E.2d 746 (1988) (“jeopardy for an offense ends after a jury convicts a defendant of a lesser-included offense, if the court has given ......
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