Potts v. Zant

• Decision Date: 06 January 1983
• Docket Number: Civ. A. No. C80-1078A.
• Citation: 575 F. Supp. 374
• Parties: Jack Howard POTTS, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. District Court — Northern District of Georgia

575 F. Supp. 374

Jack Howard POTTS, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.

Civ. A. No. C80-1078A.

United States District Court, N.D. Georgia, Atlanta Division.

January 6, 1983.

COPYRIGHT MATERIAL OMITTED

Jack Howard Potts, pro se.

Frank L. Derrickson, Millard C. Farmer, Joseph M. Nursey, Team Defense Project, Ralph Goldberg, The Law Project, Atlanta, Ga., for petitioner.

Thomas J. Charron, Dist. Atty., Marietta, Ga., Raphael Banks, Dist. Atty., Canton, Ga., John Dunsmore, Susan Boleyn and Michael Johnson, Asst. Attys. Gen., State of Ga., Atlanta, Ga., for respondent.

ORDER

MOYE, Chief Judge.

This consolidated action includes two habeas corpus petitions. The first, Civil Action No. C80-1078A, pending in the Atlanta Division of this Court, involves constitutional challenges to petitioner's conviction of kidnapping and resulting sentence of death, following a multi-county crime spree, in Cobb County, Georgia, Superior Court. The second petition, Civil Action No. C80-50G, pending in the Gainesville Division of this Court, involves constitutional challenges to petitioner's conviction of murder, and subsequent sentence of death, in the Superior Court of Forsyth County, Georgia. The Court now has before it the substantive issues raised by the two petitions following an evidentiary hearing held on June 4, 1982, at which petitioner was physically present.

Petitioner's attorneys, including one attorney appointed and to be compensated by the Court, have filed pursuant to the Court's request and directions a 104-page document setting forth the issues of law and fact raised by petitioner, his proposed findings of fact and statements of law in support thereof. The state has filed a brief in response thereto paralleling the form of petitioner's document. This order likewise will conform subject-wise and in sequence to petitioner's document in an effort to make a direct ruling on each issue.

Issue One (Cobb County)

Petitioner contends that at his capital trial, in Cobb County, he was indicted on charges of kidnapping with bodily injury,— but that the jury failed to find bodily injury and thus, in fact, he was convicted only of simple kidnapping—a conviction which would not authorize a death sentence.

The indictment upon which petitioner was convicted in Cobb County charged (Respondent's Exhibit No. 1, pp. 614-615):

Count Three. 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 unlawful 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.

Georgia Code 26-1311 (now 16-5-40) upon which Count III of the Cobb County indictment was predicated, provides:

26-1311 Kidnapping

(a) A person commits kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.

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A person convicted of kidnapping shall be punished by imprisonment for not less than one nor more than 20 years: Provided that a person convicted of kidnapping for ransom shall be punished by life imprisonment or by death; and Provided, further, that if the person kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or death.

The trial was bifurcated into an innocence/guilt phase and a sentencing phase upon an initial finding of guilt. In his charge to the jury at the innocence/guilt phase, the trial court stated (Respondent's Exhibit 1, p. 624):

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 informed the jury that its verdict at this phase of the trial must be only as to guilt or innocence "without any consideration of punishment." (Respondent's Exhibit 1, p. 628). The jury's verdict was "We, the jury, find the defendant guilty as to Count Three, kidnapping." (Respondent's Exhibit 1, p. 637).

At the sentencing phase of the case, the court charged the jury as follows (Respondent's Exhibit 1, pp. 644-649).

THE COURT: Ms. Smith and gentlemen of the jury, you have found the defendant guilty of the offense of kidnapping, Count Three, and guilty of the offense of armed robbery, Count Four. It is now your duty to determine the penalty that shall be imposed as punishment for those offenses.

Under the law of this state every person guilty of the offense of kidnapping and armed robbery shall be punished by life in the penitentiary or death by electrocution.

You are to apply the remaining instructions which will be given to you by me and determine whether the defendant should be punished by death or life imprisonment. In reaching this determination you are authorized to consider all the evidence received by you in open court in both phases of the trial. You are authorized to consider all the facts and circumstances of the case.

In the event that your verdict is life imprisonment the punishment that the defendant would receive would be imprisonment in the penitentiary for and during the remainder of his natural life. If that be your verdict, you would add to the verdict already found by you, an additional verdict as follows: "And we fix his punishment as life imprisonment."

You may, however, if you see fit and if that be your verdict, fix his punishment as death, which would require a sentence by the court of death by electrocution. If that be your verdict, you would add to the verdict already found by you, an additional verdict as follows: "And we fix his punishment as death."

I charge you that before you would be authorized to find a verdict fixing a sentence of death by electrocution, you must find evidence of statutory aggravating circumstances, as I will define to you later in the charge, sufficient to authorize the supreme penalty of the law.

I charge you that a finding of statutory aggravating circumstances shall only be based upon evidence convincing your mind beyond a reasonable doubt as to the existence of one or more of the following factual conditions in connection with the defendant's perpetration of the acts for which you have found him guilty. They are:

(1) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim.

(2) The offense of kidnapping of Michael Priest was committed while the offender was engaged in the commission of another capital felony, to-wit: armed robbery of Michael Priest.

(3) The offense of armed robbery of Michael Priest was committed while the offender was engaged in the commission of another capital felony, to-wit: kidnapping of Michael Priest.

(4) The offense of kidnapping of Michael Priest was committed while the offender was engaged in the commission of another capital felony, to-wit: murder of Michael Priest.

Further, members of this jury, I give you these instruction:

(1) Aggravated circumstances are those which increase the guilt or enormity of the offense or add to its injurious consequences.

(2) Mitigating circumstances are those which do not constitute a justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame.

Members of the jury, if you find that either or more than one aggravating circumstance existed beyond a reasonable doubt, and you recommend the death penalty, then the court is required by law to sentence the defendant to death.

On the other hand you may, if you see fit, whether aggravating circumstances existed or not, recommend mercy for the defendant. This recommendation is solely in your discretion and not controlled by any rule of law. You may make such recommendations with or without a reason. If this should be your finding, then the court is required by law to sentence the defendant to life imprisonment.

The statutory instructions that you are authorized to consider will be submitted in writing to you for your deliberation. If you fix his punishment as death, you must also designate in writing, as a part of your written verdict, the aggravating circumstance or circumstances which you find to be true beyond a reasonable doubt.

Members of the jury, should your verdict be death as to Count Number Three, kidnapping, the verdict as completed, including the portion of the verdict you have already published, would be: "We, the jury, find the defendant, Jack Howard Potts, guilty of kidnapping, and we find aggravating circumstances as follows," inserting there the aggravating circumstance or circumstances in the language set forth that I will send out to you, "and we fix his punishment as death by electrocution."

Should your verdict as to punishment, Count Number Three, kidnapping, be life imprisonment, to complete it include the portion of the verdict you have already published as follows: "We, the jury, find the defendant, Jack Howard Potts, guilty of kidnapping and we fix his punishment as life imprisonment."

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Members of the jury, the verdict should be agreed to by all twelve of you members; it must be in writing and entered upon

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