Hill v. State, S92P1336

CourtSupreme Court of Georgia
Citation263 Ga. 37,427 S.E.2d 770
Docket NumberNo. S92P1336,S92P1336
PartiesHILL v. The STATE.
Decision Date15 March 1993

William A. Erwin, Hodges, Erwin, Hedrick & Kraselsky, Al Grieshaber, Jr., David W. Orlowski, Hodges, Erwin, Hedrick & Kraselsky, Albany, for Hill.

John R. Parks, Dist. Atty., Americus, Michael J. Bowers, Atty. Gen., Atlanta, for the State.

Rachelle L. Strausner, Staff Atty., Atlanta, R. Rucker Smith, Sp. Asst., Office of Dist. Atty., Southwestern Judicial Circuit, Americus, Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for Attorney Register.

SEARS-COLLINS, Justice.

Warren Lee Hill was convicted of murder by a jury in Lee County and sentenced to death. He appeals. We affirm. 1

Hill and the victim were both serving time at the Lee Correctional Institute. Early in the morning of August 17, 1990, a correctional officer, hearing a loud noise, rushed to Hill's cell, where he observed Hill bludgeoning the victim as the latter lay in his bed. By the time the officer called for assistance and returned to the cell, the victim was mortally wounded. Hill surrendered his weapon, a board embedded with nails, apparently removed by Hill from under a bathroom sink.

The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. In his first five enumerations of error and in his fifteenth enumeration of error, Hill contends that the trial judge erred in his handling of Hill's motions to recuse and to adjourn at a reasonable time.

(a) Prior to trial, the defense filed a motion to sequester and a motion to adjourn at a reasonable time. The trial court initially indicated that it would grant the latter, but that it was inclined not to sequester the jury until deliberations were begun. The defense submitted a proposed order covering, among other things, adjournment at 5:00 p.m. during the trial and sequestration from the time the jurors were sworn. In response to this proposed order, the trial court telephoned defense counsel's office. In this telephone conversation, the trial court acknowledged that sequestration in Georgia capital cases was automatic under OCGA § 15-12-142(a) unless the defendant waives his right to sequestration. The trial court indicated, however, that it was inclined to extend substantially the length of the trial day if the jury were sequestered because the court felt that fairness to the jurors warranted trying to minimize the amount of time they spent locked in a motel, unable to attend to their business and personal obligations. Defense counsel moved that the trial judge be recused for bias and filed an affidavit in support of its motion setting out the fact discussed above. The trial judge, pursuant to Uniform Superior Court Rule 25.2, considered the legal sufficiency of the facts set forth in the affidavit in order to determine if referring the motion to another judge was warranted.

The trial court properly determined that the facts of the affidavit, taken as true, did not support a charge of bias sufficient to warrant recusal under this court's decisions in Jones v. State, 247 Ga. 268, 275 S.E.2d 67 (1981) and State v. Fleming, 245 Ga. 700, 267 S.E.2d 207 (1980). The trial court, therefore, properly denied defendant's motion to recuse and did not err by not referring the motion to another judge.

(b) Hill also contends that the trial judge's failure to adjourn at a reasonable time violated Hill's right to effective counsel and to due process of law. Although the first day of the voir dire lasted until 11:00 p.m., the court adjourned between 6:00 and 8:00 p.m. on the remaining days of the trial. As we have held, a "trial court retains the discretion to determine how late to hold court before recessing for the evening." Spencer v. State, 260 Ga. 640, 647(9), 398 S.E.2d 179 (1990). In this case, Hill was represented by three attorneys. Assuming that, as Hill contends, he was "entitled to counsel who [were] awake, alert, and not worn down by fatigue," we will not assume that continuing court until 11:00 p.m. on one day of trial so fatigued his three attorneys that Hill was deprived of his right to effective assistance of counsel. On the whole, the record does not reveal that the trial was unfairly expedited, either through long sessions or truncated arguments and examinations.

No abuse of discretion has been shown in this case. Lynd v. State, 262 Ga. 58(4), 414 S.E.2d 5 (1992).

2. Hill contends that his challenges to the jury arrays should have been granted. Hill does not contend the jury lists themselves are unrepresentative but argues that the jurors actually reporting for service do not represent a fair cross-section of the community because the jury commissioners failed accurately to determine which citizens of Lee County were competent and able to serve, resulting in a high number of excusals each term. Pointing to evidence that blacks were underrepresented by more than 5% on two of nine traverse jury venires and that women were similarly underrepresented on three of those venires, Hill argues that he has demonstrated "systematic" underrepresentation. We disagree.

When venires are drawn randomly from jury lists, some variation in the makeup of individual venires is expected. See Meders v. State, 260 Ga. 49(2), 389 S.E.2d 320 (1990). Our own analysis of the data Hill provided to the trial court shows that while blacks and women were mildly underrepresented on some venires, they were mildly overrepresented on others. On balance, neither women nor blacks are significantly underrepresented either on venires as drawn, or as present for court. 2 No "systematic" underrepresentation has been shown. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

3. Our death penalty laws are not unconstitutional for any reason alleged.

4. In his ninth enumeration of error, Hill contends that the trial court erred by refusing to strike one of the venire members after telling her that the court was in favor of the death penalty but would not impose it where it was not warranted. We do not read the court's comment as encouraging the imposition of a death penalty in this case. The court was merely trying to explain "prejudice," following a lengthy examination of the prospective juror on this point. The juror was not, as Hill contends, prejudiced by the court's comment.

5. After imposing sentence for the counts alleging felony murder and aggravated assault, the trial court amended the sentencing form to reflect that these offenses merged into Hill's malice murder conviction. Since all three crimes alleged in the indictment were committed on the same person, the state concedes that merger is appropriate. See Biddy v. State, 253 Ga. 289(2), 319 S.E.2d 842 (1984). Hill complains, however, that the court's order merges only the sentences, and not the convictions. We disagree. Although the court's orders are somewhat inartfully drafted, the most reasonable construction of them is that Hill's convictions for the underlying offenses merge into the malice murder conviction, and that the convictions on counts 2 and 3 are vacated.

Since the aggravated assault conviction stands vacated, Hill's other complaints about the aggravated assault count are moot.

6. The court did not err by excusing prospective jurors Daniel and Flowers. Daniel testified that although he "believed in" capital punishment, he did not "believe [he] could sleep with" himself if he voted to impose it; that he did not think he "could live with it ... if [he] was a part of it." Flowers testified that if the defendant asked for mercy, she "would not" impose a death sentence; "that's a man asking to save his life." The court was authorized to conclude that their views would "prevent or substantially impair" the performance of their duties as jurors "in accordance with [their] instructions and [their] oath." Alderman v. State, 254 Ga. 206, 207(4), 327 S.E.2d 168 (1985) (quoting from Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

There was no improper limitation of the voir dire examination. Curry v. State, 255 Ga. 215(2)(b), 336 S.E.2d 762 (1985). Nor do we agree that the trial court's handling of "Witherspoon " and "reverse-Witherspoon " questioning was "imbalanced." See Lynd v. State, 262 Ga. 58, 65-66, 414 S.E.2d 5 (1992) (Benham, J., concurring specially).

7. In the course of objecting to defense counsel's statement to one prospective juror during voir dire that the state was going to ask "the twelve folks that are selected as jurors to put the defendant to death," the prosecutor stated: "[T]here is no question that [this juror] or this jury is not going to be sending this gentleman to death, even if they should find a death penalty in this." Hill contends this comment had the effect of reducing the juror's sense of the responsibility for determining the appropriateness of death. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). We note that while the jury might "sentence" the defendant to death, it would not "put" him to death or attend his execution. In any event, any improper impact the prosecutor's remark may have had on this juror was ameliorated by the curative instruction given immediately by the court.

Hill further contends that the trial court's use of the verbs "fix" when referring to the jurors' authority to impose a life sentence and "recommend" when addressing the death penalty unconstitutionally lessened the jury's sense of responsibility during the sentencing phase. Caldwell, supra.

The sentencing charge concluded with the following language: "Whatever penalty is to be imposed within the limits of the law, as I have instructed you, is a matter solely for you, the members of the jury to determine...."

The jury charge as a whole did not "give the jury a view of its role in the capital sentencing procedure that was fundamentally incompatible...

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