Black v. State, S91P0984
| Decision Date | 04 December 1991 |
| Docket Number | No. S91P0984,S91P0984 |
| Citation | 261 Ga. 791,410 S.E.2d 740 |
| Parties | BLACK v. The STATE. |
| Court | Georgia Supreme Court |
David C. Jones, Jr., Homer, for Robert Leonard Black.
Timothy G. Madison, Dist. Atty., Piedmont Judicial Circuit, Jefferson, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Mary H. Hines, Staff Atty., Atlanta, for the State.
Deborah Wilbanks, Asst. Dist. Atty., Winder, Attorney Register.
Patsy Morris, Atlanta.
Joseph L. Chambers, Sr. Pros. Attys.' Council, Smyrna.
Robert Leonard Black was convicted by a jury in Banks County of murder and several other offenses, including aggravated assault, and sentenced to death. 1
Shortly before noon on August 20, 1987, the defendant entered the victim's kitchen as she and her two children were preparing to leave. According to the two children, the defendant, nervous and perspiring, demanded a glass of water and the use of their telephone. The victim's daughter left the room. When she re-entered some time later, the defendant and the victim were struggling and the defendant had a handgun. The defendant ordered the daughter outside to see if anyone was coming. When she returned, the victim told her to "run, baby, run," and the daughter fled the home. The son had been watching television in an adjacent room. Disturbed by the noise, he approached the kitchen to find the defendant holding the victim with one arm, with a gun in his other hand. A shot was fired, and the victim collapsed with the defendant on top of her. The defendant began hitting the victim in the head with the gun. When the son said something to the defendant, he turned and fired a shot at the child. The son fled the house.
Outside, two repairmen drove up in a white truck. The children told them what was happening, and they left to call for help. At some point (just when is not clear) two persons drove up in a red vehicle. The first law enforcement officer arrived just as this vehicle was leaving. This officer went to the house, where he heard sounds of a scuffle and the victim calling the defendant's name. Another shot was fired inside the home, and then it "got pretty quiet."
The sheriff arrived, along with the victim's father. After some period of negotiation, the defendant agreed to surrender. But when the sheriff approached the door of the house, the defendant shot, narrowly missing him. The GBI was summoned. After further attempts at negotiation, tear gas canisters were fired into the house. Two agents entered. Stepping over debris scattered throughout the hallway, they attempted to locate the defendant. As they neared the bathroom, the defendant fired his final shot at the officers. They returned fire, but missed the defendant, who was lying down with wet cloths around his face to counter the effects of the tear gas. The officers retreated to a safe position and heard what they thought was the defendant reloading his gun. In fact, the defendant was out of ammunition, and had dropped the spent casings to the floor, and then replaced them into the gun.
Finally, after further negotiations, the defendant agreed to surrender to his brother, and was arrested.
According to the defendant's testimony, he got into a struggle with the victim because he thought she was part of a conspiracy to kill him. He had made a trip to Waycross a few days earlier, where a cocaine dealer "fronted" him a quantity of cocaine to bring to north Georgia and sell. The defendant described how he and others consumed much of this cocaine over the next several days. According to him, he became increasingly fearful that some of the people he was consuming cocaine with were friends with his wife (who had earlier been responsible for the revocation of his probation), and planned to kill him and take his cocaine. His fear was such that he had spent at least one night in the woods prior to the day of the crime. Nevertheless, he accepted a ride that day with one of these people. Becoming suspicious once again, he left and walked to the victim's house, intending to borrow the telephone and call his brother for a ride home.
The defendant testified that the victim, whom he did not immediately recognize, acted as if she knew him and offered to give him a ride. They shared some of the cocaine he had with him. However, when she mentioned knowing the defendant's wife, he again grew suspicious, believing that she was not going to give him a ride and was stalling for time until his attackers could arrive. When he told her he was leaving, she brandished a gun and told him to stay. However, when she returned the gun to her purse, he seized the purse and withdrew the gun. During the ensuing struggle, the gun accidentally discharged twice.
A toxicology report confirmed the presence of a significant quantity of cocaine in the victim's blood stream.
Viewing the evidence in the light most favorable to the state, we conclude a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. Immediately upon his arrest, the defendant retained attorney Walter Harvey to represent him. 2 Harvey instructed the defendant not to talk to the police about the crime. Then he listened to the defendant's story about what had happened, including the defendant's belief that the victim was part of a conspiracy to kill him. After attempting to verify the existence of such a conspiracy, Harvey, whose undergraduate degree was in psychology, concluded that the defendant was a paranoid schizophrenic. He planned to present an insanity defense and scheduled an evaluation by a psychiatrist. When the defendant, who believed himself to be sane, learned of Harvey's plan, he fired him. After contacting several attorneys about his case, the defendant retained the attorney who represented him at trial. This attorney filed a special plea of mental incompetence to stand trial, and persuaded the defendant to present an insanity defense at trial. Attorney Harvey testified for the defense at the competency trial and at the trial in the case-in-chief in support of the defendant's claims of incompetence to stand trial and insanity at the time of the crime.
Harvey testified about his consultations with the defendant, the story the defendant told him about how the crime occurred, and his conclusions about the defendant's mental condition.
In the first division of his brief, the defendant contends the prosecutor impermissibly questioned the defendant about the latter's exercise of his constitutional rights to counsel and to remain silent, and impermissibly commented about these issues during closing arguments.
(a) Right to silence. In Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), the U.S. Supreme Court held that it was improper to use the defendant's silence after receiving his Miranda warnings as evidence of his sanity. In our case, both at the competency trial and at the trial of the case-in-chief, there was brief questioning and brief comment by the prosecutor concerning the defendant's silence (to police) after being advised of his Miranda rights. If such had erroneously been allowed despite timely and proper objection, the case would have to be reversed unless the state could show that the error was harmless beyond a reasonable doubt. Wainwright v. Greenfield, supra; Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, in contrast to Wainwright, the defendant in this case did not object either to the introduction of evidence of silence or to the prosecutor's comment on that evidence during closing argument. 3 Thus, the trial court was not put on notice about the defendant's objections, or given an opportunity to respond to the objections in a timely manner. See Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 3107, 97 L.Ed.2d 618 (1987) (). Here, any possible claim of error was procedurally defaulted. Hance v. Kemp, 258 Ga. 649(4), 373 S.E.2d 184 (1988).
(b) Consultation with counsel. The defendant objected to questions about fees and to questions about privileged conversations between the defendant and attorneys he consulted other than Harvey (who testified for the defendant and as to whom the privilege was waived). The trial court agreed with the defendant's objections, and the defendant made no further objections or motions as to these issues.
The defendant himself introduced evidence concerning his consultation with (and dismissal of) one of his attorneys. The defendant failed to object to the state's questioning about his attempts to retain other attorneys after dismissing his original attorney, and there is nothing further to review here, for reasons stated in subdivision (a) above. 4
2. In the second division of his brief, the defendant complains about the competency hearing, contending that irrelevant and prejudicial information was presented to the competency jury. As the defendant contends, the issue at a competency trial is whether the defendant at the time of the trial is capable of understanding the nature and object of the proceedings against him and his own condition in reference to such proceedings, and is capable of rendering assistance to his attorney in the defense of his case. Crawford v. State, 240 Ga. 321 (2), 240 S.E.2d 824 (1977). However, evidence is not inadmissible at such a hearing simply because it might also be relevant to the issue of guilt. Evidence may be relevant to more than one issue, and so long as it is sufficiently relevant and material to the issue of mental incompetence, it is properly admitted at a competency trial. Brown v. State, 256 Ga. 387, 349 S.E.2d 452 (1986).
There was no objection to most of the evidence and comment the defendant...
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