Jack H. Potts,
52, was sentenced to death in March 1976 in two counties Forsyth and
Cobb counties for the kidnapping and murder of a 24-year-old good
Samaritan, Michael Priest. Mr. Priest agreed to help Mr. Potts, who told
him there had been an accident May 8, 1975.
His co-defendant pleaded
guilty to aggravated assault in exchange for a 10-year sentence. Mr.
Potts escaped from the Forsyth County Jail in September 1987 and was
shot twice by officers. Mr. Potts' conviction was overturned in May
1984, but he was resentenced to death in 1988 and again 1990.
On May 8, 1975, appellant Potts
and Norma Blackwell persuaded Eugene Robert Snyder
to drive them to Marietta, Georgia, from Shake Rag,
a community located in Forsyth County. Potts and
Blackwell along with Snyder and a friend, Donna
Glaze, got into Snyder's pick-up truck and proceeded
toward Marietta with appellant driving.
As the group drove along Sewell
Mill Road in Cobb County, Potts shot Snyder through
the left ear with a pistol. Snyder was able to
remove the key from the ignition and, after
realizing he was not seriously injured, requested
Potts to take him to a hospital. Potts then shot
Snyder in the nose.
Snyder acted as if he were
unconscious while Potts dragged him out of the truck,
off onto the side of the road. Potts removed some
cash and other items from Snyder's person while
directing his female companions to clean up the
Unable to find the key to the
ignition of the truck, the appellant walked to the
nearby home of Paul Gurley, who, at the time, was
being visited by his daughter and her husband,
Michael D. Priest. Potts told them that there had
been an accident, that a man had been hurt, and that
he needed a ride.
Priest volunteered to help the
appellant and, shortly thereafter, the two left in
Priest's automobile. Upon their arrival at the
pick-up truck, Priest saw Snyder lying in a ditch
and attempted to go help him, but Potts directed him
at gunpoint to drive the group in his automobile
toward Marietta. Priest pled for his life while
Potts threatened him with the gun. On the trip back
to Forsyth County the car made a stop and Potts
began to drive while he held the gun on Priest.
Potts stopped the car on a dirt
road in Forsyth County leading to the trailer where
he and the two females had met earlier in the day.
He forced Priest out of the car at gunpoint, into an
area by the road with high grass. Priest continued
to plead with Potts for his life. When Priest said,
"Oh my God, don't kill me," Potts responded that
there was no such thing as God, and that he would
determine whether Priest would live or die. Potts
then put the gun to Priest's head, shot and killed
After Priest was killed, the
appellant, Norma Blackwell and Donna Glaze removed
personal effects from the victim's automobile,
changed the license plate and headed south. Donna
Glaze fled from the other two at a motel and
contacted local authorities. The appellant and Norma
Blackwell were apprehended on a farm near Quitman,
Georgia, after a gunfight with police officers.
(261 Ga. 716)
(410 SE2d 89)
Kidnapping with bodily injury. Cobb Superior Court. Before Judge
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 SE2d 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.
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, Potts
raises double jeopardy issues, relying primarily on the recently-decided
United States Supreme Court opinion in Grady v. Corbin, 495 U. S.
---- (110 SC 2084, 109 LE2d 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 SE2d 510)
(1978); Potts v. Zant, 734 F2d 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 . . . "protects
against a second prosecution for the same offense after acquittal.
It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
same offense." North Carolina v. Pearce, 395 U. S. 711, 717 [(89 SC
2072, 23 LE2d 656)] (1969). [Brown v. Ohio, 432 U. S. 161, 164-165
(97 SC 2221, 53 LE2d 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 SC 180, 76 LE 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 Eleventh 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., supra; Potts v. Zant, 734 F2d, 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
SC 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.
at 2093. Even assuming, as Potts now contends, that the Forsyth
County prosecution is the "first" prosecution, 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. at 2094.
To understand the term "conduct" within the
meaning of Grady v. Corbin, it is useful to contrast the Grady and
Block burger tests. The Block burger test focuses strictly upon the
"statutory elements of the two crimes with which a defendant has
been charged." Grady v. Corbin, supra, 110 SC 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 SC 2260, 65 LE2d 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 SC
2912, 53 LE2d 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 Block burger 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. [Emphasis supplied.] [Grady v. Corbin, supra,
110 SC at 2092.]
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 Block burger.
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. 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 and in Forsyth County for the offense
of murder. These two crimes are not the same as a matter of law (Blockburger)
[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
SE2d 918) (1977).]
They are not the same as a matter of fact (Grady
v. Corbin, supra) 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, 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
United States 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 SC 1189, 25 LE2d 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. 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 SC 1184, 25 LE2d 435) (1970), that may
successively prosecute a criminal defendant for the "same offense"
within the B lock burger test. Compare Brown v. Ohio, 432 U. S. 161
(97 SC 2221, 53 LE2d 187) (1977); Heath v. Alabama, 474 U. S. 82
(106 SC 433, 88 LE2d 387) (1985). But where, as here, a criminal
defendant goes on a multi-county crime spree, the Double Jeopardy
Clause does not preclude successive prosecutions in separate
counties for separate crimes arising out of a single criminal
episode -- even if they have factual elements in common -- where
they are not the "same offense" as a matter of fact or of law.
(c) Potts also raises again a contention that the
jury's ambiguous verdict in the original Cobb County trial precludes
a prosecution for kidnapping with bodily injury in the retrial,
because, he contends, he was originally convicted in Cobb County of
simple kidnapping and cannot be reprosecuted for kidnapping with
bodily injury. We addressed and decided this issue adversely to
Potts' contention in Potts v. State, 258 Ga.
430 (369 SE2d 746) (1988).
2. Because Potts seized his victim in Cobb County,
venue for prosecuting the charge of kidnapping with bodily injury
lay in Cobb County even though the bodily injury was inflicted in
Forsyth County. Krist v. State, 227 Ga. 85
(4) (179 SE2d 56) (1970). The trial court's instructions to
the jury on the issue of venue were not erroneous.
3. The jury was authorized to impose a death
sentence for the offense of kidnapping with bodily injury on the
ground that the offense of kidnapping with bodily injury was
committed while the offender was engaged in the commission of the
capital felonies of murder and armed robbery. OCGA
17-10-30 (b) (2). Although the offense
of kidnapping was consummated when the victim was seized in Cobb
County, see Miller v. State, 174 Ga. App. 42
(3) (329 SE2d 252) (1985), the murder and the armed robbery
were sufficiently a part of the same criminal transaction to be
considered as and found to be b (2) statutory aggravating
circumstances of the offense of kidnapping with bodily injury.
Horton v. State, 249 Ga. 871 (11) (295 SE2d
4. Potts argues that since he has already been
sentenced to death in Forsyth County for the murder of Michael
Priest, he cannot be sentenced to death in Cobb County for the same
homicide. But he has not been sentenced to death in Cobb County for
murder. He has been sentenced to death in Cobb County for the
offense of kidnapping with bodily injury -- a capital felony. See
OCGA 16-5-40 (b). The imposition of a
death sentence for this offense as well as for murder did not
subject Potts to greater punishment than intended by the legislature.
Garrett v. United States, 471 U. S. 773 (105 SC 2407, 85 LE2d 764)
(1985). There is no issue here of mutually supporting aggravating
circumstances. Potts v. State, 259 Ga. 812
(3) (388 SE2d 678) (1990).
5. Potts contends the jury's sentencing verdict
is ambiguous because the jury, using a pre-printed form, "filled in
several spaces on the form and left other spaces blank." Appellant's
brief, p. 53.
The jury filled in its list of statutory
aggravating circumstances at the appropriate place on the form and
filled in the portion relating to its recommendation of a death
sentence. It left blank only those portions of the pre-printed
verdict form which related to a recommendation of a life sentence.
6. Potts contends he was denied his right to a
speedy trial. He notes that the federal district court granted
habeas relief in January of 1983 and that, because the state
appealed from that order, the remittitur was not received by Cobb
County until April 1987.
The state's appeals in this case were not
unreasonable or frivolous, and were not taken for the purpose of
delay. Thus, there is no "reason for according these delays any
effective weight towards [Potts'] speedy trial claims." United
States v. Loud Hawk, 474 U. S. 302, 316 (106 SC 648, 88 LE2d 640)
(1986). The delays since 1987 were caused by Potts, and Potts was
not denied his constitutional right to a speedy trial.
7. Next, Potts raises what he styles "Right to
Trial Issues," Appellant's brief, p. 69, contending that after he "had
to fight for the right to represent himself," he was effectively
denied that right by acts and omissions to act by the trial court
and other officials.
Potts chose to represent himself. He was provided
the assistance of standby counsel. See Potts v. State, supra,
259 Ga. 812 at (4). Since Potts had
this legal assistance available to him, the trial court did not err
by denying Potts' motion for inmate legal assistance. Bounds v.
Smith, 430 U. S. 817, 823 (97 SC 1491, 52 LE2d 72) (1977) (discussing
Johnson v. Avery, 393 U. S. 483 (89 SC 747, 21 LE2d 718) (1969)).
The trial court did not err by refusing to
provide funds to ascertain the cost of long-term imprisonment versus
the cost of imposing a death sentence. Nor did the court err by
denying Potts' motion for discovery of materials relating to a
possible challenge to the grand jury which indicted him in 1975,
since he has waived his right to present such a challenge. Potts v.
State, supra, 259 Ga. at 814 (2).
Especially in the absence of any showing of
wrongdoing by the district attorney, the trial court did not err by
refusing to formally reprimand the district attorney for actions
taken by the prison warden at the Georgia Diagnostic and
Classification Center. See Hightower v. State,
259 Ga. 770 (2) (386 SE2d 509) (1989).
Potts was granted ample access to the prison law
library and to supplies. He was not denied "meaningful" access to
the judicial process. Bounds v. Smith, supra.
Potts was physically competent to stand trial. He
was not denied proper medical care. Nor did the trial court abuse
its discretion when it denied Potts' motion for a two-day
continuance so Potts could "rest" before the trial began. O'Neal v.
State, 254 Ga. 1 (2) (325 SE2d 759) (1985).
8. Death qualification of prospective jurors is
not unconstitutional. Ford v. State, 257 Ga.
461 (3) (360 SE2d 258) (1987). The trial court's death-qualification
findings are "within the deference due the trial judge's
determination." Jefferson v. State, 256 Ga.
821, 824 (353 SE2d 468) (1987).
The court did not err by denying Potts' motion to excuse for cause
two prospective jurors who were former law enforcement officers.
Jordan v. State, 247 Ga. 328, 340, fn.
16 (276 SE2d 224) (1981). The voir
dire examination regarding possible pre-voir dire discussion of the
case by one panel of prospective jurors was adequate to unearth any
possible prejudice. Crawford v. State, 257
Ga. 681 (3) (362 SE2d 201) (1987).
9. Potts did not timely raise an issue of the
prosecutor's exercise of peremptory challenges against women. This
claim is not preserved for review. Greene v. State,
260 Ga. 472 (1) (396 SE2d 901) (1990).
Compare Potts v. State, supra, 259 Ga. at 101, fn. 3.
Potts now contends the first panel of prospective
jurors was tainted and the court should have excused the panel and
summoned replacements. Potts, however, did not seek the excusal of
the panel. Moreover, Potts did not challenge for cause any member of
the panel based on the restraining devices issue. The members of the
first panel who were selected for the jury testified on voir dire
that they either had not noticed the restraining devices or had not
been affected by them.
Even assuming any possible error was not induced
by Potts' failure to raise the issue before the prospective jurors
entered the courtroom or by his decision to rise and approach the
bench in the presence of the prospective jurors rather than to send
standby counsel to the bench, we find that Potts was not prejudiced
by his brief appearance in restraining devices before a small
minority of prospective jurors. Gates v. Zant, 863 F2d 1492, 1501
(11th Cir. 1989); Ford v. State, supra, 257 Ga. at 465 (5).
11. During his flight toward Florida after
kidnapping and killing Michael Priest, Potts told his companion
Norma Blackwell that if she wanted a dog she thought "was cute," he
would "run" its owner "off the road and kill her and get the dog."
Potts now contends this testimony impermissibly injected his
character in issue. See Jones v. State, 257
Ga. 753 (363 SE2d 529) (1988). Potts, however, did not object
to this testimony at trial, and we need not consider whether this
testimony should have been excluded on proper objection or whether
it might have been relevant and material to some issue other than
character, and thus properly admitted even though it might
incidentally have reflected on Potts' character.
12. Potts' 41st enumeration is answered by Potts
v. State, supra, 259 Ga. at 102 (14).
13. There was no error in the admission of
photographs of a Florida murder victim into evidence at the
sentencing phase of the trial. Baty v. State,
257 Ga. 371 (7) (359 SE2d 655) (1987).
14. The trial court's instructions on reasonable
doubt were not erroneous. Cage v. Louisiana, 498 U. S. ---- (111 SC
328, 112 LE2d 339) (1990). The trial court did not equate "reasonable
doubt" with grave uncertainty" or an "actual substantial doubt," or
otherwise instruct the jury explicitly or implicitly in a manner
that would allow a finding of guilt by a lesser standard than
required by the Due Process Clause.
15. Testimony about Potts' flight to south
Georgia was properly admitted over a relevancy objection. Ingram v.
State, 253 Ga. 622 (6) (323 SE2d 801) (1984).
17. The court did not err by telling the jury its
sentencing verdict must be unanimous. Romine v. State,
256 Ga. 521 (2) (350 SE2d 446) (1986).
18. Potts contends it was error to introduce at
the sentencing phase evidence concerning an allegedly involuntary
confession to a murder he committed in Florida.
The record shows that in 1975, while he was in
the hospital recovering from a bullet wound he received three weeks
previously, Potts initiated an interview with a Florida law
enforcement officer. The officer checked with Potts' doctor, who
told him Potts was physically and mentally sound enough to be
interviewed. The officer's own observations of Potts confirmed to
the officer that Potts was coherent and understood what he was doing.
After obtaining a waiver of rights, the officer interviewed Potts
and elicited Potts' confession to murder.
Unlike the cases Potts cites, there was no
coercion, and the evidence amply supports the trial court's
determination that Potts "understood and voluntarily waived each of
his Miranda rights and thereafter gave this statement freely and
voluntarily without any hope of benefit or fear of injury" and that
the "voluntariness of the statement was not affected by any
medication" Potts may have been taking. Compare Mincey v. Arizona,
437 U. S. 385 (98 SC 2408, 57 LE2d 290) (1978) (defendant
interrogated within hours of being critically wounded while in
intensive care; defendant's attempts to conclude interview were
ignored); Beecher v. Alabama, 389 U. S. 35 (88 SC 189, 19 LE2d 35)
(1967) (defendant's confession obtained at gunpoint); Townsend v.
Sain, 372 U. S. 293 (83 SC 745, 9 LE2d 770) (1963) (defendant
confessed after being given truth serum).
19. The record likewise supports the admission of
a 1987 statement to a Forsyth County law officer that Potts
initiated after being treated and released for another gunshot wound.
Potts v. State, supra, 259 Ga. at 103.
20. "It was not error to exclude evidence of
Potts' ineligibility for parole if given a life sentence." Id. at
21. It was not error to prove Potts' escape
attempt in aggravation, even though he has not been prosecuted or
convicted for that offense. Isaacs v. State,
259 Ga. 717 (16 b) (386 SE2d 316)
(1989). See also Hammond v. State, 260 Ga.
591 (6) (398 SE2d 168) (1990).
22. There is no merit to Potts' contention that
impermissible "victim-impact" evidence was admitted at the
sentencing phase in violation of Booth v. Maryland, 482 U. S. 496
(107 SC 2529, 96 LE2d 440) (1987). Payne v. Tennessee, 501 U. S.
---- (111 SC 2597, 115 LE2d 720) (1991). See also Potts v. State,
supra, 259 Ga. at 104 (23).
23. Just before closing arguments began at the
sentencing phase of the trial, the jury submitted to the court a
list of questions concerning the evidence, particularly Potts'
testimony that this trial was pointless because he had already been
sentenced to death in Forsyth County. The court declined to answer
the questions. Now Potts contends the questions demonstrate the jury
had begun its deliberations prematurely and the court should have
taken some (unspecified) action "to stop the jury from deliberating."
Appellant's brief at 128-129.
Potts did not timely raise the issue or seek any
action by the trial court. United States v. Edwards, 696 F2d 1277,
1282 (11th Cir. 1983). Although the questions indicate the jurors
had discussed to some extent the evidence that had been presented,
the questions do not show that the jurors had formed premature
conclusions about the evidence or had committed themselves to any
particular outcome. There was no error in the trial court's omission
to instruct the jury sua sponte. Compare Ellis v. State,
164 Ga. App. 366 (9) (296 SE2d 726) (1982).
24. The trial court did not commit reversible
error by declining to answer the jury's questions about the
possibility of parole. Cohen v. State, 257 Ga.
544 (3) (361 SE2d 373) (1987). However, the better practice
is to respond to jury questions about parole by "telling the jury in
no uncertain terms that such matters are not proper for the jury's
consideration." Quick v. State, 256 Ga.
780, 787 (353 SE2d 497)
(1987); Lee v. State, 258 Ga. 762 (7) (374
SE2d 199) (1988).
25. The court correctly defined malice murder in
the language of OCGA 16-5-1. McCord v.
State, 182 Ga. App. 586 (2) (356 SE2d 689)
(1987). Contrary to Potts' argument, murder is not an element
of the offense of kidnapping with bodily injury. Moreover his
argument about "built-in" aggravating circumstances has been
answered contrary to his position in Jefferson v. State,
256 Ga. 821, 829 (353
SE2d 468) (1987).
26. Citing Maynard v. Cartwright, 486 U. S. 356
(108 SC 1853, 100 LE2d 372) (1988), Potts contends the b (7)
aggravating circumstance, as applied, does not sufficiently channel
the jury's discretion. For reasons stated in Taylor v. State,
261 Ga. 287, 295-296 (13) (404
SE2d 255) (1991), we find no merit to this argument.
27. The prosecutor did not impermissibly
trivialize the task of the sentencing jury by arguing that Potts
himself not the jury was ultimately responsible for the crimes he
committed and for whatever punishment he received. Brooks v. Kemp,
762 F2d 1383, 1410 (11th Cir. 1985).
28. There is no merit to the general
constitutional attacks on our death penalty laws and procedures
Potts raises in the division of his brief styled "General Death
29. The trial court did not err by denying Potts'
motion for new trial.
30. The evidence supports the jury's findings of
statutory aggravating circumstances. OCGA
17-10-35 (c) (2). We do not find that the death sentence was
imposed as the result of passion, prejudice or other arbitrary
factor. OCGA 17-10-35 (c) (1). The
death sentence is neither excessive nor disproportionate to
sentences imposed in similar cases, considering both the crime and
Thomas J. Charron, District Attorney, Nancy I.
Jordan, Debra H. Bernes, Jack E. Mallard, Assistant District
Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn,
Senior Assistant Attorney General, for appellee.
George R. Asinc, Melodie H. Clayton, for
DECIDED NOVEMBER 6, 1991 -- RECONSIDERATION
DENIED DECEMBER 4, 1991.