Blanks v. State, 41673

• Decision Date: 10 June 1985
• Docket Number: No. 41673,41673
• Citation: 330 S.E.2d 575,254 Ga. 420
• Parties: , 54 USLW 2014 BLANKS v. The STATE.
• Court: Georgia Supreme Court

Page 575

330 S.E.2d 575

254 Ga. 420, 54 USLW 2014

BLANKS v. The STATE.

No. 41673.

Supreme Court of Georgia.

June 10, 1985.

[254 Ga. 428] Donald E. Manning, Brunswick, for Kenneth Blanks.

Glenn Thomas, Jr., Dist. Atty., Brunswick, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Sr. Atty., for the State.

BELL, Justice.

This is a death penalty case. Appellant, Kennith Blanks, was convicted in Glynn County of burglary, theft by taking, and two counts of malice murder. The case is here on direct appeal, for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the sentence review required by OCGA § 17-10-35. ¹

FACTS

Blanks, an Atlanta resident, came to the Brunswick area seeking employment. There he met Theodore Woodard, who was employed by a landscaping firm whose customers included Sea Island residents Mr. and Mrs. William Roberts.

On Tuesday, July 26, 1983, Woodard did not report to work. According to a later statement by Blanks, he and Woodard obtained a sawed-off .410 shotgun and some electrical tape and forcefully entered the Roberts' home on the evening of July 26. The home was ransacked and its occupants tied up and killed.

Blanks and Woodard drove the victims' green BMW sedan to Atlanta and pawned a number of items taken in the burglary. Blanks was seen in Atlanta brandishing the .410 shotgun and also a .38 caliber pistol.

That Friday the two drove the Roberts' BMW back to Brunswick. There, Blanks was seen with a wad of money. He tried unsuccessfully to sell some furs which were in the trunk of the BMW. Later, he gave his girlfriend a watch that had belonged to Mrs. Roberts.

The next day Blanks and Woodard robbed a taxi driver and shot him in the back with the .410 shotgun.

Not until that day were the Roberts discovered. After being contacted by a neighbor, police entered the Roberts' home and found chairs overturned, blood on the carpet, and papers and magazines spread about.

In one bathroom, Mr. Roberts' body was found sitting in a bathtub, his hands and feet bound by electrical tape. More electrical tape encircled his body and looped over the shower rod. His arms and wrists were cut and bruised. A can of Mace lay nearby, as did two metal vacuum cleaner extension tubes, one of which was covered with blood. Blood spattered the walls of the bathroom.

In another bathroom, Mrs. Roberts' nude body was discovered, face down, in a tub full of water. Her hands were bound with electrical tape. An autopsy showed evidence of traumatic injury to the vaginal canal.

Both Mr. and Mrs. Roberts had their heads wrapped with multiple, alternating layers of fabric and electrical and packing On Saturday evening, Blanks and Woodard parted company. Early the next morning, Woodard was arrested. He told the officers that he had ingested paraquat, and he died two days later.

tape which caused their deaths by suffocation.

Tuesday evening, August 2, 1983, Blanks was arrested in an Atlanta bus station. In his possession was a gold watch that had belonged to Mr. Roberts' father.

The evidence was sufficient to support the convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

ENUMERATIONS OF ERROR

1. Blanks first contends that the trial court erred by refusing to grant a change of venue. See OCGA § 17-7-150.

Ninety-five prospective jurors underwent voir dire, of whom 26 were excused for having an opinion about the case or for other bias or prejudice. ² Thus, although the trial court was quite liberal in granting defense challenges for cause, only 27% of the venire was "excused for bias, prejudice, and prior opinion, and not all of these were tainted by pre-trial publicity." Spivey v. State, 253 Ga. 187, 198, 319 S.E.2d 420 (1984). We therefore conclude that the trial court did not err by finding that Blanks could receive a fair trial in Glynn County or by refusing to grant a change of venue. Castell v. State, 250 Ga. 776(6b), 301 S.E.2d 234 (1983); Waters v. State, 248 Ga. 355(1), 283 S.E.2d 238 (1981).

2. At the scene of his arrest, Blanks was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was placed into a waiting police car, and there began to tell the officers about the murders. One of the officers interrupted him and again advised him of his Miranda rights. Then Blanks admitted to the officers that he had been at the Roberts' home with Woodard and had helped tape the victims to some chairs. He had observed Woodard undressing Mrs. Roberts and cutting the hands of Mr. Roberts. However, Blanks denied having himself killed either victim.

Blanks told the officers that he and Woodard had pawned in the Atlanta area a number of items taken from the Roberts' home. He proceeded to direct the officers to various locations in the city and was able to identify two of the pawn shops. (Some of the pawned items consequently were recovered.) Afterwards Blanks was given something to eat and taken to the Fulton County Jail, where, at his request, he was given a private cell. The record shows that for a significant period of time during this incarceration, Blanks had access to a telephone. There is no indication in the record that he took advantage of this opportunity, for example, to call a relative or an attorney.

The next day, Blanks was transported to GBI headquarters and interrogated by three GBI agents and two Glynn County policemen.

After again being advised of his Miranda rights, Blanks signed a written waiver of rights and gave an oral statement, and then a lengthy, tape-recorded statement, in which he again admitted his presence at the scene of the crime, but sought to attribute his participation (taping the victims, helping to carry them to the bathrooms, and holding them down while Woodard killed them) to fear of Woodard.

Recording the statement took both sides of two cassette tapes (about 2 hours). At some point after the insertion of the second tape, the interrogating officers received a note that an attorney was outside and wanted to talk to Blanks. Since Blanks had not requested an attorney and was talking freely, they continued the interview, without showing the note to Blanks.

At the close of the interview, Blanks was told that the officers had no further questions. Blanks at that point stated that he Blanks was brought to the headquarters lobby and the attorney, who had been retained by the defendant's father, spoke with Blanks for several minutes. Afterwards, Blanks was transported to Glynn County.

                wanted to see a lawyer. 3  The interview was terminated
                

(a) In his second enumeration of error Blanks contends the court erred by allowing the taped statement to be introduced in evidence, or at least so much of the statement as was taped after the arrival of the attorney at GBI headquarters.

In essence, Blanks is asking us to adopt a variant of the "New York rule," which provides that: "Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel." People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539 (1968).

The New York rule may be invoked on behalf of any suspect by any attorney; it is not necessary that there be any attorney-client relationship between the two. Id. at 538. Nor must the attorney be physically present at the place where the suspect is in custody. People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 928, 205 N.E.2d 852, 855 (1965). Other states have adopted variants of the rule which, in contrast to the New York rule in its purest form, typically require an attorney-client relationship (which may be created on behalf of the suspect by third parties) and actual physical presence of the attorney at the interrogation site. See, e.g., Weber v. State, 457 A.2d 674 (Del.1983); State v. Matthews, 408 So.2d 1274 (La.1982).

The same criticism is applicable to the New York rule and to its variants: "Whatever its symbolic value, a rule that turns on how soon a defense lawyer appears at the police station or how quickly he 'spring(s) to the telephone' hardly seems a rational way of reconciling the interests of the accused with those of society." Kamisar, Brewer v. Williams, Massiah, and Miranda: "What is Interrogation"? When Does it Matter? 67 Geo.L.J. 1, 95 (1978). The desirability of legal assistance during interrogation does not turn upon the rapidity with which third parties have acted to retain an attorney to enter the proceedings. If Miranda warnings are insufficient to protect Fifth Amendment rights, this insufficiency can be better addressed than by a rule which would protect only those with the money and connections "to bring a lawyer swiftly into the fray" and which "would seem to favor the 'professional criminal' most of all." Id. at 95-96.

"[W]e are of the opinion that the principles of Miranda place the assertion of the right to remain silent and the right to counsel upon the accused, and not upon benign third parties, whether or not they happen to be attorneys." State v. Burbine, 451 A.2d 22, 28 (Rhode Island 1982). See Stevens v. State, 247 Ga. 698(7), 278 S.E.2d 398 (1981).

In this case, Blanks was advised of his right to legal assistance on numerous occasions. The record shows overwhelmingly that he knowingly, intelligently, and voluntarily waived this right and spoke willingly to law enforcement officers. We find no Fifth Amendment error here.

(b) Additionally, Blanks contends that any statements and other evidence obtained as a result of interrogation during his return to Brunswick are inadmissible inasmuch as by this time he had requested an attorney. Compare Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Even assuming this contention 3. In his third enumeration Blanks complains of the court's denial of the discovery of statements made by co-defendant...