Hittson v. State

• Decision Date: 31 October 1994
• Docket Number: No. S94P0681,S94P0681
• Citation: Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (Ga. 1994)
• Parties: HITTSON v. The STATE.
• Court: Georgia Supreme Court

Page 586

449 S.E.2d 586

264 Ga. 682

HITTSON v. The STATE.

No. S94P0681.

Supreme Court of Georgia.

Oct. 31, 1994.

Reconsideration Denied Dec. 1, 1994.

Stephen N. Hollomon, Walter G. Sammons, Jr., Williams, Sammons & Sammons, Warner Robins, for Hittson.

Edward D. Lukemire, Dist. Atty., Perry, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Paige M. Reese, Staff Atty., Dept. of Law, Atlanta, for State.

THOMPSON, Justice.

Travis Clinton Hittson was convicted of the malice murder of Conway Utterbeck, as well as counts of aggravated assault, theft by taking and possession of a firearm during the commission of a crime. The jury found that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind, OCGA § 17-10-30(b)(7), and recommended that Hittson be sentenced to death. The trial court sentenced Hittson to death for the murder and to terms of years for the remaining convictions. ¹

On April 3, 1992 Hittson, his co-defendant Edward Vollmer, and the victim, Conway Utterbeck, left Pensacola, Florida, where they were stationed on the U.S.S. Forrestal, and they drove to the home of Vollmer's parents in Warner Robins, Georgia. The elder Vollmers were out of town, and the three men spent the first night in a shed on the property. They obtained a key to the house from a family friend the following day. According to statements Hittson subsequently made to law enforcement officers, on the second day of the trip he and Vollmer went to several bars, leaving the victim at the Vollmers' home. As they drove back to the house, Vollmer stated that the victim planned to kill them, and they should "get" him first. Vollmer gave Hittson an aluminum baseball bat and the two entered the house to find the victim dozing. Hittson stated that, at Vollmer's direction, he struck the victim several times in the head with the baseball bat, then dragged him into the kitchen where Vollmer waited. According to Hittson, the victim screamed, "Travis, whatever have I did to you?" While Vollmer stepped on the victim's hand, Hittson shot him in the head. Hittson stated that he was "cold" and "had no emotion" when he shot the victim.

According to Hittson's statement, approximately two hours later Vollmer stated that they needed to dismember the body in order to get rid of the evidence. Hittson stated that they used a hacksaw to remove the victim's hands, head and feet, but that he became sick after he removed a hand, and Vollmer completed the dismemberment. Hittson stated that Vollmer acted alone in removing the victim's genitals and carving out his rectum. Vollmer and Hittson then packed the victim's remains in numerous garbage bags. They buried the victim's torso in Houston County, cleaned up the Vollmers' home, and hid the baseball bat in the Vollmers' shed. Subsequently they drove back to Pensacola where they buried the rest of the victim's remains.

On April 5, 1992, Louise Davidson observed a black Thunderbird with Florida license plates emerging from a seldom used dirt road in Houston County. Two people were in the car. Suspicions were aroused, and she noted the license number. When the victim's torso was discovered two months later by loggers in an area off the same dirt road, police determined that the car previously observed by Davidson belonged to Edward Vollmer.

Relying on information that the victim had gone to Warner Robins just before his disappearance, the Navy contacted the Houston County Sheriff's Department. Representatives of the Sheriff's Department travelled to Pensacola, Florida, and, along with agents from the Naval Investigative Service (NIS), interviewed a number of the victim's shipmates, including Hittson. Hittson subsequently confessed and gave information leading to the discovery of the rest of the victim's remains.

At Hittson's trial the medical examiner testified that, in his opinion, the victim died from a single gunshot wound to the head, but that it was not possible to determine whether the dismemberment occurred before or after death.

1. A rational trier of fact could have found Hittson guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Prior to trial, defense counsel successfully petitioned the trial court for funds to conduct a psychological examination. Following this examination, Hittson filed a notice of intent to raise the issues of insanity or mental incompetency. The trial court then ordered a mental evaluation of Hittson by the state's expert on the issues of criminal responsibility and mental competency. At a hearing prior to this evaluation, the parties and trial court engaged in an extensive discussion of the procedures to be followed during this examination. The trial judge agreed that defense counsel could be present during the state's evaluation and informed the parties that he would be available if problems arose during the course of the evaluation. Further, the court informed defense counsel that if there were problems with the issues the psychologist was exploring, the defense could call a halt to the proceedings, but that to do so "gets close to the line of being uncooperative."

At the beginning of the evaluation, the state's psychologist administered Miranda warnings, informing Hittson that he had the right to refuse to answer questions about his case, and that anything he said during the evaluation could be used against him during the trial of the case or during sentencing. Hittson stated that he understood the warnings and signed a waiver of rights form. Hittson's counsel was not present while the warnings were administered but arrived during the evaluation. However, the state psychologist testified that defense counsel was present on the second day of the evaluation when Miranda warnings were again administered, as well as when Hittson made certain statements criticizing the victim.

During the sentencing phase of trial the defense offered in mitigation the testimony of one of Hittson's shipmates that Hittson had admitted killing the victim, but that he seemed to feel remorse. To rebut this testimony the state called its psychologist who testified that when asked to characterize the victim, Hittson called him a "hillbilly" and a profane name. The state's expert did not testify to any of the results of his evaluation of Hittson or to any facts relating to the crime which Hittson may have revealed to him.

Hittson argues that the psychologist's testimony violated his Fifth Amendment right against self-incrimination. We disagree.

Custodial communications made to a court-appointed mental health expert are testimonial in nature, and, generally, must be preceded by Miranda warnings for the defendant's statements to be admissible during the state's case-in-chief or sentencing phase of trial. Estelle v. Smith, 451 U.S. 454, 467-9, 101 S.Ct. 1866, 1875-76, 68 L.Ed.2d 359 (1981); Buchanan v. Kentucky, 483 U.S. 402, 422, 107 S.Ct. 2906, 2917, 97 L.Ed.2d 336 (1987).

In this case defense counsel had notice of the evaluation and were aware that they could be present throughout the proceedings. The record supports the trial court's finding that Miranda warnings were properly administered, that Hittson voluntarily waived his right to remain silent, and that he willingly participated in the evaluation. The record does not support Hittson's contention that he waived his Fifth Amendment privilege only to the extent of permitting an evaluation to rebut a possible insanity defense. Nor does the record support Hittson's contention that the trial court's rulings prevented defense counsel from objecting to any part of the evaluation. As we read the record, the trial court correctly cautioned defense counsel that refusing to submit to the examination could result in the striking of the testimony of Hittson's own mental health expert. Strickland v. State, 257 Ga. 230(5), 357 S.E.2d 85 (1987).

Further, the state psychologist's request that Hittson characterize the victim did not exceed the scope of the court-ordered evaluation. Christenson v. State, 261 Ga. 80, 84, 402 S.E.2d 41 (1991). Admission of Hittson's Mirandized statements to rebut a claim of remorse was proper. Harris v. Pulley, 692 F.2d 1189 (CA 9th Cir.1982); Hicks v. State, 256 Ga. 715(14), 352 S.E.2d 762 (1987).

3. We agree with the state that the trial court's order identifying the scope of mental evaluation to be made by the state's expert coupled with the extensive discussion of this matter at a hearing prior to the evaluation adequately put defense counsel on notice as to the scope and nature of the proceeding. The trial court left to defense counsel the decision of whether to be present during the evaluation, and it is undisputed that defense counsel chose to be present during most of the two-day evaluation. The trial court further made it clear that if issues regarding the scope and nature of the evaluation arose, it would be available throughout the course of the evaluation to make rulings. The record also shows that at least one defense attorney counseled Hittson prior to the evaluation.

Under these circumstances, Hittson's Sixth Amendment right to counsel was not violated within the meaning of Estelle v. Smith, supra.

4. Hittson argues that his due process rights were violated because the trial court did not inform him that the state's psychologist would be permitted to testify to issues other than mental competency and criminal responsibility. Contrary to Hittson's assertions, the trial court did not limit the issues upon which the state's expert would be permitted to testify. Further, both the oral warnings and the signed waiver form notified Hittson that anything he said to the psychologist could be used against him during the state's case-in-chief or during the sentencing phase of trial. Finally, because defense counsel was present when Hittson made the statements in...