Potts v. State
| Decision Date | 06 November 1991 |
| Docket Number | No. S91P0670,S91P0670 |
| Citation | 261 Ga. 716,410 S.E.2d 89 |
| Parties | POTTS v. The STATE. |
| Court | Georgia Supreme Court |
Thomas J. Charron, Dist. Atty., Jack Mallard, Asst. Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, for the State.
Debra Halpern Bernes, Nancy I. Jordan, Asst. Dist. Attys., Marietta, Atty. Register.
Patsy Morris, Georgia Resource Center, Atlanta, Joseph L. Chambers, Sr., Pros. Attorneys' Council, Smyrna, for other parties.
This is a death penalty case. Jack Howard Potts, whose death sentence for the murder of Michael Priest in Forsyth County was affirmed in Potts v. State, 259 Ga. 96, 376 S.E.2d 851 (1989), has been convicted in Cobb County for the kidnapping with bodily injury of Michael Priest and sentenced to death for this offense also. This is Potts' appeal from the Cobb County conviction and death sentence. 1
The facts of Potts' multi-county criminal episode are essentially as set forth in Potts v. State, id. Potts kidnapped Michael Priest in Cobb County and murdered Priest in Forsyth County by a single gunshot wound to the head as Priest begged for his life. Potts was arrested in south Georgia after a high speed chase and a shootout with police.
1. In the first division of his brief, 2 Potts raises double jeopardy issues, relying primarily on the recently-decided U.S. Supreme Court opinion in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). He contends that since the bodily-injury element of his Cobb County conviction for kidnapping with bodily injury is based on the same conduct--shooting Michael Priest in the head--that led to his murder conviction in Forsyth County, he cannot be convicted both of murder in Forsyth County and kidnapping with bodily injury in Cobb County. He also argues that he was originally convicted in Cobb County of simple kidnapping and cannot be reprosecuted for kidnapping with bodily injury.
a. We note that whether Potts may be convicted in separate trials of both kidnapping with bodily injury and murder in the circumstances presented here is an issue that has been raised and decided adversely to Potts' contention both by this Court and the United States Court of Appeals for the Eleventh Circuit. Potts v. State, 241 Ga. 67(11), 243 S.E.2d 510 (1978); Potts v. Zant, 734 F.2d 526(II) (11th Cir.1984). However, Potts points out that this double jeopardy claim has not been reviewed in light of Grady v. Corbin, supra. We shall now undertake to do so.
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth ... North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). [Brown v. Ohio, 432 U.S. 161, 164-65, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ].
It is the second of these protections--against a second prosecution for the same offense after conviction--at issue here. The most commonly cited test for this protection is whether either of the criminal statutes in each prosecution "requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If so, the two offenses are not the "same" for double jeopardy purposes, even though both prosecutions arise out of the same criminal "act" or "transaction" or "episode." As both this court and the 11th Circuit Court of Appeals have held, kidnapping with bodily injury and murder are not the "same" offense under the Blockburger test. Potts v. State, 241 Ga. 67, 243 S.E.2d 510, supra; Potts v. Zant, 734 F.2d 526, supra.
However,
even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution. [Grady v. Corbin, supra, 110 S.Ct. at 2087.]
Potts argues that the relevant "conduct" present in both the Forsyth County prosecution and the Cobb County prosecution is his act of shooting Michael Priest in the head and that this factual commonality precludes successive prosecutions for the separate and different crimes of murder and kidnapping with bodily injury. But Grady v. Corbin explicitly rejects an "actual evidence" or "same evidence" test of the kind Potts argues here. Id. 110 S.Ct. at 2093. Even assuming, as Potts now contends, that the Forsyth County prosecution is the "first" prosecution, 3 it was not necessary to the Cobb County conviction that the state prove the "entirety" of the "conduct" for which Potts was convicted in Forsyth County to establish an essential element of the offense charged in Cobb County. Id. 110 S.Ct. at 2094.
To understand the term "conduct" within the meaning of Grady v. Corbin, it is useful to contrast the Grady and Blockburger tests. The Blockburger test focuses strictly upon the "statutory elements of the two crimes with which a defendant has been charged." Grady v. Corbin, supra, 110 S.Ct. at 2097 (Scalia, dissenting). If all the elements of one of the two crimes are included in the other, the two crimes are the same as a matter of law and successive prosecutions are barred, no matter whether the greater or lesser offense is tried first. Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). But even if the two offenses are not the same as a matter of law, it might be necessary as a matter of fact for the state to prove all of the elements of one offense to establish the other. For example:
In Harris [v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) ], the defendant was first convicted of felony murder after his companion shot a grocery store clerk in the course of a robbery. The state then indicted and convicted him for robbery with a firearm. The two prosecutions were not for the "same offense" under Blockburger since, as a statutory matter, felony murder could be established by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. Nevertheless, because the state admitted that " 'it was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved' " in the felony murder trial, the Court unanimously held that the subsequent prosecution was barred by the Double Jeopardy Clause. [Grady v. Corbin, supra, 110 S.Ct. at 2092.] [Emphasis supplied.]
So too in Grady v. Corbin. Corbin was convicted in traffic court of driving while intoxicated and failing to keep right of the median. He was then indicted for vehicular homicide and assault charges arising out of the same episode involved in the first prosecution. As a matter of statutory construction, the two prosecutions did not involve the "same offense" under Blockburger. However, the state of New York admitted that it was necessary to "prove the entirety of the conduct for which Corbin was convicted--driving while intoxicated and failing to keep right of the median--to establish essential elements of the homicide and assault offenses." Id. 110 S.Ct. at 2094. [Emphasis supplied.] Hence, the successive prosecution was barred by the Double Jeopardy Clause.
In our case, Potts kidnapped Michael Priest in Cobb County, took him to Forsyth County and shot him in the head, killing him. He was prosecuted in Cobb County for the offense of kidnapping with bodily injury 4 and in Forsyth County for the offense of murder. These two crimes are not the same as a matter of law (Blockburger ) because
[k]idnapping with bodily injury requires an unlawful abduction or stealing away and the holding of a person plus the infliction of some bodily injury upon that person. The crime of murder is committed when one causes the death of another with the peculiar mental state of express or implied malice. [Pryor v. State, 238 Ga. 698, 701, 234 S.E.2d 918 (1977).]
They are not the same as a matter of fact (Grady v. Corbin ) because the state did not have to prove that Potts acted with malice or that Michael Priest died to establish the offense of kidnapping with bodily injury in Cobb County, 5 and did not have to prove that Potts kidnapped Michael Priest to establish the offense of murder in Forsyth County. In neither trial was it necessary for the state to prove the "entirety " of the conduct for which Potts was convicted in the other trial.
b. We note that even those Justices of the U.S. Supreme Court who have consistently urged a "single transaction" test for Double Jeopardy would make an exception where "no single court ha[s] jurisdiction of all the alleged crimes." Ashe v. Swenson, 397 U.S. 436, 453 (fn. 7), 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, concurring). Moreover, the majority opinion in Grady v. Corbin relies on the fact that "the state could have prosecuted Corbin for the offenses charged in the traffic tickets and the subsequent indictment in a single proceeding, thereby avoiding this double jeopardy question." Id. 110 S.Ct. at 2095. By contrast, the offenses involved in our case could not have been prosecuted within the "jurisdiction" of a single superior court.
We recognize that separate counties within the state are not "separate sovereign entities," Waller v. Florida, 397 U.S. 387, 391, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), that may successively prosecute a criminal defendant for the "same offense" within the Blockburger test. Compare Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). But where, as here, a criminal defendant goes on a multi-county crime spree, the...
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