Hittson v. State

Citations: 264 Ga. 682; 449 S.E.2d 586; 94 Fulton County D. Rep. 3588; 1994 Ga. LEXIS 857Docket: S94P0681

Court: Supreme Court of Georgia; October 31, 1994; Georgia; State Supreme Court

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Travis Clinton Hittson was convicted of malice murder, aggravated assault, theft by taking, and possession of a firearm during the commission of a crime, receiving the death penalty for the murder. The jury characterized the murder as outrageously vile, leading to the recommendation of a death sentence. The incident occurred on April 3, 1992, when Hittson, co-defendant Edward Vollmer, and victim Conway Utterbeck traveled from Pensacola, Florida, to Warner Robins, Georgia. After spending the first night in a shed, Hittson and Vollmer went to bars, during which Vollmer suggested that Utterbeck intended to kill them and that they should act preemptively.

Upon returning to the home, Hittson, following Vollmer's direction, struck Utterbeck with a baseball bat while he was dozing. After Utterbeck pleaded for his life, Hittson shot him in the head, describing himself as emotionless during the act. Subsequently, they dismembered the body to dispose of the evidence, with Vollmer performing the more gruesome tasks. They buried parts of the body in Houston County and returned to Pensacola to dispose of the rest.

Suspicion arose when a witness observed their car near the burial site, leading to an investigation that uncovered the victim's remains two months later. Hittson confessed during police questioning, providing details that assisted in locating the body. The medical examiner concluded that the cause of death was a gunshot wound, but could not determine whether dismemberment occurred before or after death. The court found sufficient evidence to support Hittson's convictions beyond a reasonable doubt.

Defense counsel secured funding for a psychological examination prior to trial, leading Hittson to notify the court of his intent to raise insanity or mental incompetency defenses. The trial court ordered a mental evaluation by the state’s expert, during which defense counsel was allowed to be present. The judge advised that any issues during the examination could be halted by the defense, though this could be viewed as uncooperative. At the start of the evaluation, the state’s psychologist provided Hittson with Miranda warnings, which he acknowledged and waived in writing, although defense counsel was not present at that moment.

During the evaluation, defense counsel arrived later, and the psychologist administered Miranda warnings again on the second day. The defense presented testimony from a shipmate indicating Hittson expressed remorse for killing the victim, which was countered by the state’s psychologist, who testified that Hittson referred to the victim derogatorily. The state's expert did not disclose any evaluation results or facts related to the crime.

Hittson contended that the psychologist's testimony infringed on his Fifth Amendment rights against self-incrimination. However, the court found that Miranda warnings were appropriately given, and Hittson voluntarily participated in the evaluation. The record indicated that defense counsel was aware of and could object to the evaluation process. The court determined that the request for Hittson to describe the victim was within the evaluation’s scope, and the admission of Hittson's statements to counter his remorse claim was deemed proper.

The trial court adequately informed defense counsel about the scope of the mental evaluation, as evidenced by prior discussions and the option for counsel to attend the evaluation, which they did for most of its duration. Counsel was also available to raise any concerns during the evaluation, and at least one defense attorney had consulted with Hittson beforehand, affirming that Hittson's Sixth Amendment right to counsel was not violated.

Hittson claimed due process violations due to the trial court not informing him that the state's psychologist could testify on matters beyond mental competency and criminal responsibility. However, the court did not impose such limitations, and both verbal and written warnings clarified that statements to the psychologist could be used against him. As defense counsel was present during these statements, Hittson could not claim surprise regarding the psychologist's testimony.

During sentencing, the defense presented social worker Mary Shultz, who intended to testify about Hittson's family background and behavior. The trial court ruled that while Shultz could testify, any psychological assessments could be countered by the state's expert. Hittson's argument that this ruling hindered the presentation of mitigating evidence is unfounded, as the court did not deem any part of Shultz's testimony inadmissible, and aspects of Hittson's family history and substance abuse were already presented by his childhood friends.

Hittson also contended that the trial court erred during voir dire by restricting inquiries about a juror's views on life sentences and parole. The juror, whose father had been murdered, confirmed he could consider a life sentence as definitive. The court's limitation on questioning was deemed appropriate and consistent with precedent.

The trial court appropriately guided the questioning of prospective juror Marchman, determining that inquiries about the death penalty should be contextualized with other relevant questions rather than posed in isolation, resulting in no reversible error. Hittson was not restricted from asking about the death penalty in cases of mutilation, but the court did prevent him from asking jurors the specific circumstances under which they would impose the death penalty, aligning with precedent. The record did not support Hittson's claim that he was barred from discussing evidence of intoxication as a mitigating factor. 

Hittson alleged unequal treatment of jurors Conine and Minchew; specifically, Conine recognized the severity of mutilation-related murder but maintained an open mind, while Minchew expressed a moral inability to impose a death sentence based on his religious beliefs. The court denied Hittson's motion to excuse Conine but granted the state's request to excuse Minchew, and this disparity in treatment was the only noted irregularity. 

The voir dire process extended over eight days and produced a comprehensive transcript, allowing sufficient exploration of potential jurors' biases. Although the court excluded some questions that could have been allowed, the permissible inquiries were ample for assessing juror impartiality. 

Hittson’s assertion that the court erred by not removing six jurors for cause was deemed harmless since Conine and Hatfield were not among the first qualified jurors. The court's refusal to excuse juror Willis, who Hittson did not formally challenge, was also found to be appropriate. Additionally, while Hittson claimed that jurors Byars, Dawson, and Maze would not fairly consider a life sentence, the court determined that all jurors were capable of impartiality and willing to consider mitigating evidence, with these findings warranting deference from the reviewing court.

The trial court's instructions on mitigating circumstances were upheld, as there was no obligation to specify them for the jury. Hittson's claim that his death sentence was disproportionate compared to his co-defendant, Edward Vollmer, was rejected due to Hittson's significant involvement in the crime, including violence and body disposal. The court found his death sentence consistent with others in similar cases. Hittson's argument regarding the late provision of his statements to the state psychologist was deemed waived since no timely objection was made. His Brady motion did not justify receiving copies of his own statements, and he failed to demonstrate that other requested items were exculpatory. 

During a June 1992 interview following the discovery of the victim's remains, Hittson confessed after being informed of his rights under the Military Code of Justice. He contended his confession was obtained without probable cause, but the trial court concluded he was not in custody at the time, negating the need to assess probable cause. Other interviewed witnesses were treated similarly, and Hittson was not restrained. His rights were read in accordance with Miranda, and the court found he voluntarily waived them before confessing.

Photographs of the victim's remains were deemed admissible as they were relevant to the trial, despite alterations to the body caused by environmental factors and the perpetrator, as supported by case law. The trial judge took steps to minimize the photographs' objectionable nature prior to their admission. 

One month before trial, Hittson sought an indefinite continuance for further evidence investigation, but the court granted a two-week delay, which Hittson accepted without objection. He failed to demonstrate any abuse of discretion by the court in denying a longer continuance.

Hittson argued that the district attorney's closing arguments improperly influenced the jury and contained legal inaccuracies. However, because Hittson did not object during the trial, the review standard required showing that such arguments likely altered the trial's outcome. Any misstatements made were corrected by the trial court, and no reasonable probability of outcome alteration was established.

During jury deliberations on sentencing, the jury inquired about the possibility of parole under a life sentence. The court clarified that a life sentence meant imprisonment for life, and Hittson's counsel did not object, precluding appellate claims of error. The trial court's response was not deemed improper. Additionally, the court’s instruction regarding the jury's ability to recommend the death penalty was correct.

Hittson contested the selection of the jury from Glynn County while the trial was held in Houston County, citing potential bias from pre-trial publicity. However, this objection was raised too late in the appeal process and was considered waived unless it constituted "plain error."

"Plain error" is defined as an error that is "so clearly erroneous as to result in a likelihood of a grave miscarriage of justice" or that "seriously affects the fairness, integrity or public reputation of a judicial proceeding." The decision to return the jury to Houston County for trial did not constitute "plain error," as the record fails to demonstrate that pre-trial publicity negatively impacted the jury or that jury members were hindered in their duties due to being away from family and home. The jury's finding of the aggravating circumstance is supported by evidence, and Hittson's death sentence was not influenced by passion, prejudice, or arbitrary factors. The sentence is deemed neither excessive nor disproportionate compared to similar cases, with precedents listed in the Appendix supporting the death penalty in this instance. The judgment is affirmed, with all Justices concurring. Key dates include the crimes on April 4, 1992, the defendant's indictment on June 30, 1992, the trial in February 1993, sentencing on March 17, 1993, denial of the motion for a new trial on December 7, 1993, and docketing in this court on February 3, 1994, with oral argument occurring on May 9, 1994.