Appendix — Hittson v. Turpin

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IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

TRAVIS HITTSON, *

EF-3 10937, *

Petitioner, .

* Civil Action No.

v. * 95-V-686

*

*

TONY TURPIN, Warden, * Habeas Corpus

*

Respondent. °

ORDER

COMES NOW before the court the Petitioner's Petition

for Wnit of Habeas Corpus as to his conviction and sentence

in the Superior Court of Houston County on criminal action

number 92-C-18076-M. Having considered the Petitioner's

Petition for Writ of Habeas Corpus (the "Petition"), the

Respondent's Retum and Answer, relevant portions of the

trial record, evidence admitted at the hearing on the merits,

and the arguments of counsel, the court makes the following

findings of.fact and conclusions of law as required by

0.C.G.A. § 9-14-49 and DENIES the petition for writ of

habeas corpus as to Petitioner's conviction and sentence of

death.

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PROCEDURAL HISTORY

On February 27, 1993, following a trial by jury, Mr.

Hittson was found guilty of malice murder, aggravated

assault, possession of a firearm during the commission of a

crime and theft by taking. After a separate penalty phase

mandated by Georgia law, the jury found that the murder

“was Outrageously or wantonly vile, horrible, or inhuman in

that it involved depravity of mind" and recommended that

Mr. Hittson be sentenced to death. On March 17, 1993, the

trial court imposed the death sentence. On the other counts,

Mr. Hittson was sentenced to consecutive terms of twenty

years, five years and one year imprisonment.

Mr. Hittson filed a Motion for a New Trial on April 16,

1993, and filed a Brief in Support on July 14, 1993. Mr.

Hittson filed a pleading styled Supplemental Grounds in

Support of Motion for a New Trial on December 2, 1993. The

trial court denied the Motion for New Trial on December 7,

1993.

Mr. Hittson's conviction and sentence were affirmed by

the Supreme Court of Georgia on October 31, 1994. Hittson

v. State, 264 Ga. 682 (1994). A Motion for Reconsideration

was denied by the Supreme Court on December 1, 1994.

A petition for writ of certiorari was filed in the United

States Supreme Court on March 1, 1995. The Supreme Court

denied the petition on May 22, 1995. Hittson v.Georgia,

US. , 115 S. Ct. 2005 (1995).

Mr. Hittson filed a petition for writ of habeas corpus on

December 28, 1995 in the Superior Court of Butts County.

The Court conducted a hearing on the merits in this action on

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October 6 and 7, 1997. Mr. Hittson, through counsel,

presented the testimony of an expert witness in the mental

health field, two of his trial attorneys and himself, as well as

several additional exhibits.’ | Respondent presented the

testimony of the remaining trial attorney and introduced

several exhibits. Also, this Court, on the request of

Petitioner's Habeas Counsel, took judicial notice of the record

in Petitioner's case up through direct appeal. (Hab. Tr. 23.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1.

1. Petitioner's claim of ineffective assistance of counsel

during the pretrial and sentencing phases of his trial, remains

viable and subject to this court's consideration on habeas

corpus review. Georgia law clearly provides that an

ineffective assistance of counsel claim need not be raised

until such time as trial counsel no longer represents the

defendant. See White v. Kelso, 261 Ga. 32 (1991). The

Supreme Court of Georgia has emphasized that “any

allegation of a violation of the right to counsel should be

made at the earliest practicable moment” or it will be deemed

waived. Id., at 32. The “earliest practicable moment" may be

on motion for new trial or on direct appeal, if the proceeding

1 “Hab. Tr. _.” refers to the transcript for the evidentiary hearing held in

this action; "Sent. Tr. _." refers to the transcript of the sentencing hearing

held in Petitioner's criminal trial; "R._.” refers to the Trial Court Record

compiled in Petitioner’s criminal trial; "Tr. 2/11/93 at _." refers to the

transcript of the February 11, 1993 pretrial hearing held in Petitioner's

teil cell

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"marks the first appearance of new counsel." Id., However,

"[bJecause an attorney cannot reasonably be expected to

assert or argue his or her own ineffectiveness, claims of

ineffective assistance of counsel are often properly raised or

the first time in a habeas corpus petition[.]" Id. "The rule is

consistent: New counsel must raise the ineffectiveness of

previous counsel at the first possible stage of post-conviction

review." Id.

2. In this case, the facts clearly show that trial counsel

represented Hittson at trial, on the Motion for New Trial and

on direct appeal. The first appearance of new counsel in

connection with a proceeding in which trial counsel was not

also attorney of record is this petition for writ of habeas

corpus. Furthermore, the Court's in camera examination of

trial counsel's files reveal that trial counsel was actually

involved in and acted as appellate counsel in the direct

appeal. (Hab. Tr. 5.) Accordingly, the Court reiterates that

Hittson's claims of ineffective assistance of counsel have not

been procedurally barred. (Hab. Tr. 5.)

IL.

3. A claim of ineffective assistance of counsel is grounded

in the general mght to counsel guaranteed to criminal

defendants by the Sixth Amendment to the United States

Constitution and Article I, Section I of the Georgia

Constitution. "The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so

undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just

result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).

4. Incases where ineffectiveness of trial counsel is alleged,

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the burden is on the petitioner to show both that his trial

counsel's performance was deficient, and that deficient

performance prejudiced his defense. Kelly v. State, 267 Ga.

252, 253 (1996). In order for Petitioner to establish that trial

counsel's performance was deficient he must show that they

made errors so serious that counsel was not functioning as the

"counsel" guaranteed by the Sixth Amendment. Strickland v.

Washington, 466 U.S. at 687. In reaching a conclusion on

this issue it must be determined whether, in light of all the

circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance, Id. at

690; or rather, whether counsel's performance fell below an

objective standard of reasonableness. Strickland 466 U S at

688; Zant v. Moon, 264 Ga. 93, 97 (1994). However, counsel

is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of

reasonable professional judgement. Strickland, 466 U.S. at

690; Zant v. Moon, 264 Ga. at 97.

5. In order for Petitioner to establish that trial counsel's

deficient performance prejudiced his defense he must show

there exists a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. 466 U.S. at 686, 694. "A reasonable

probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694. When a death

sentence is challenged, the more specific question to be asked

is whether, absent the errors or alleged errors, there is a

reasonable probability that the sentencer would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death and returned with a

sentence of life instead of death. Smith v. Francis, 253 Ga.

782, 783-784 (1985) citing Strickland, supra. The Court need

not address both components if Petitioner makes an

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insufficient showing on one, nor must the components be

addressed in any particular order. Ford v. State, 255 Ga. 81,

85 (1985) citing, Strickland, supra.

6. In determining whether counsel provided ineffective

assistance, the seriousness of the charge is a factor that must

be considered by the Court. House v. Balkcom, 725 F.2d 608,

615 (11™ Cir. 1984). Where the petitioner's life hangs in the

balance, the utmost attention must be paid to nights

guaranteed under the Constitutions of the United States and

the State of Georgia. Ross v, Kemp, 260 Ga. 312 (1990). The

court has carefully reviewed the trial record, evidence

adduced at the evidentiary hearing, argument of counsel, and

law applicable to Mr. Hittson's ineffective assistance of

counsel claims and finds as follows:

Ill. Trial counsel's failure to object to the trial court's

decision concerning venue, on the grounds that it

conflicted with O.C.G.A. § 17-7-150(a), does not

amount to ineffective assistance of counsel.

7. Petitioner alleges that trial counsel were ineffective in

failing to object to the trial court's decision concerning venue

on the grounds that the decision conflicted with O.C G.A. §

17-7-150(a). The trial court ruled that the jurors would be

selected in Glynn County and be brought back to Houston

County for trial. Such a procedure, which was then permitted

under Uniform Superior Court Rule 19.2(b), was later found

to be impermissible as it conflicted with O.C.G.A. § 17-7-

150(a). See Hardwick v. State, 264 Ga. 61 (1994).

8. Petitioner argues that he was prejudiced by this alleged

error. Petitioner asserts that had trial counsel objected to

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venue on the grounds that it conflicted with O.C.G.A. § 17-7-

150(a) the trial court would have been required to move the

trial out of Houston County, and as it was, the trial was held

in Houston County, a locale acknowledged by the trial court

to be tainted by adverse publicity. (Petitioner's Br. 42.)

However, Petitioner has presented no evidence which

indicates that this adverse publicity infected the jury, See

Hittson, 264 Ga. 690-691 [15], and there is no evidence to

support any reasonable probability that a Glynn County jury

would have retumed a sentence of life instead of death.

Strickland, 466 U.S. at 695.

9. Accordingly, the Court concludes that Petitioner's trial

counsel were not ineffective for failing to object to the trial

court's decision conceming venue on the grounds that it

conflicted with O.C.G.A. § 17-7-150(a).

IV. Trial counsel were not ineffective in failing to attend

the state expert's psychological evaluation.

10. Petitioner alleges that trial counsel were ineffective in

failing to attend the state expert's psychological evaluation.

(Petitioner's Reply Br. 35-37.) More specifically, Petitioner

asserts that trial counsel's late arrival to this evaluation

constitutes ineffectiveness. (Petitioners Br. 35-37.) The facts

surrounding this issue indicate that during the time in which

trial counsel were absent from the examination, Dr. Storms,

the state's expert, administered Miranda wamings to

Petitioner informing him that he had the right to refuse to

answer questions about his case, and that anything he said

could be used against him during the trial of the case or

during sentencing. (See infra J] 21-24.) Petitioner argues

that due to counsel's absence at the beginning of the

examination, Petitioner was left without guidance as to his

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rights, i.e. whether he should sign the waiver of nghts form.

Petitioner also argues that due to the absence, counsel was

ignorant of Dr. Storms' status as a fact witness.

11. Petitioner asserts that trial counsel was per se ineffective

for being absent from the examination when the Miranda

warnings were administered because Storms’ examination

was a Critical stage in the proceedings. (Petitioner's Br. 35-

36.) Petitioner correctly asserts that the State's psychological

examination would be considered a "critical stage"; See

Estelle v. Smith, 451 U. S. 454, 471-72 (1981); however, the

Court finds no support for the proposition that absence

therefrom amounts to per se ineffectiveness. Where counsel

is absent from a critical stage of the proceedings, the

Petitioner need not affirmatively prove prejudice under the

second prong of Strickland, and the appropriate standard for

determining prejudice in such situations, is to determine

whether the error was harmless beyond a reasonable doubt.

Siverson v.O'Learv, 764 F.2d 1208, 1215-17 (11" Cir. 1985).

12. However, pretermitting the prejudice question, the Court

believes that despite trial counsel's absence at the beginning

of the examination, trial counsel was present and provided

reasonable assistance. It is established that trial counsel was

present for most of the two day examination. Compare with

Siverson, 764 F.2d 1208 (where tral counsel's complete

absence throughout jury deliberations and at the return of the

verdicts was found to be unreasonable). The record further

indicates that trial counsel did confer with Mr. Hittson prior

to the examination and property informed him that he had to

2 Where the Supreme court found that a court ordered psychiatric inquiry

to determine competency to stand trial proved to be a critical stage of the

aggregate proceedings where the right to counsel had attached.

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answer all of Dr. Storms’ questions completely or he would

lose the opportunity to present any expert psychological

testimony. Mr. Hittson was also advised that Dr. Storms was

with the state, and that he needed to be aware of that when

responding to the Doctor's questions. (See infra § 21.)

13. The Court finds this advice given by Mr. Sammons

properly provided guidance to Mr.Hittson as to what he

should do with regards to waiving his rights; accordingly, in

light of this advice, Mr. Hittson voluntarily waived his rights

and willingly participated in the evaluation. Therefore, the

Court finds that Mr. Sammons was present for most of the

two day exam, that he correctly counseled Hittson the night

before the exam on the necessity of fully cooperating with the

State's expert, and that consequently, trial counsel's conduct

falls well within the wide range of professionally competent

assistance. Strickland, 466 U.S. at 690.

14. Petitioner asserts that trial counsel's decision to forego

expert evidence would have been affected if they had known

that Storms’ could testify as a lay witness to statements Mr.

Hittson made in the state's examination. However, as is

pointed out below, the fact testimony of Dr. Storms' which

was presented at trial was not the only evidence which trial

counsel found unfavorable and which could have been

presented through Storms. (See infra J] 29, 48-53, 62-63.)

Therefore, the Court finds this argument to be without merit.

15. Accordingly, the Court concludes that trial counsel were

not ineffective in failing to attend all of Dr. Storms’

examination.

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V. Trial counsel were not ineffective in failing to

introduce psychological evidence in mitigation.

A. Findings of Fact

16. In the latter portion of 1992 Mr. Sammons and Mr.

Holloman filed a motion for funds to hire an independent

psychologist to interview and evaluate Mr. Hittson. The

motion was granted and trial counsel secured the, services of

Dr. Michael Prewett as the defense psychological expert.

Subsequent to Dr. Prewett's initial examination of Travis and

at Dr. Prewett's suggestion, trial counsel secured the services

of psychiatrist Dr. Norman Moore to determine whether

Travis suffered from brain damage. Some time later, tral

counsel was able to also secure the services of social worker

Mary Shults.

17. On February 5, 1993 trial counsel filed a notice of intent

to raise the issue of insanity or mental incompetence. (R.

210-11.) On February 8, 1993 the State filed a motion for

discovery in which it sought the names of all experts who

tested, or who would test defendant with reference to the

issue of sanity and/or competence. The state also requested

copies of all findings and reports Defendant's mental health

experts had generated as a result of their examinations, and

requested that the Defendant be made available for

examination by the state's expert. (R. 236-38.) On February

11, 1993, trial counsel filed two motions seeking protective

orders to the state's latter two requests. (R. 349-56. )

18. These motions were argued at the February 11, 1993

pretrial hearing. At that hearing the trial court ordered Mr.

Hittson to submit to the state's mental health examination;

however, the court held back its ruling on the state's request

lla

for production of mental health reports generated by defense

experts until such time as trial counsel committed to

presenting their mental health experts. (Tr. 2/11/93 at 88-96.)

The trial court also held back on determining whether any

report generated by the state's expert or the court's expert

should be turned over to the defense. (Tr. 2/11/93 at 90-91 a

19. At this time, the trial court announced that it had

engaged its own mental health expert, Dr. Paul Coplin, to

conduct an independent psychological assessment of Mr.

Hittson. The trial court further announced that Dr. Coplin had

agreed to see Mr. Hittson the following day, Friday February

12, 1993. (Tr. 2/11/93 at 92-93.) The state announced that its

expert, Dr. Storms, had agreed to examine Mr. Hittson that

Saturday and Sunday. (Tr. 2/11/93 at 96.)

20. As the hearing continued the parties and trial court

engaged in an extensive discussion of the procedures to be

followed during the examinations. (Tr. 2/11/93 at 95 106.)

The trial court agreed that trial counsel could be present

during both evaluations, and informed the parties that he

would be available if problems arose during the evaluations.

(Tr. 2/11/93 at 98.) Further, the trial court informed trial

counsel that if there were problems with the issues the

psychologist was exploring, they could call a halt to the

proceedings; however, the court cautioned that to do so "gets

close to the line of being... uncooperative." (Tr. 2/11/93 at

100-101.)

21. Trial counsel did not attend Dr. Coplin's examination;

however, Mr. Sammons did attend most of Dr. Storms’

examination. Prior to Dr. Storms’ examination, Mr. Sammons

explained to Travis his understanding of the purpose of the

evaluation and his understanding that, Mr. Hittson had to

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answer all of Dr. Storms’ questions completely or he would

Jose the opportunity to present any expert psychological

testimony on his own behalf at trial. (R. 1349-1350.) Mr.

Hittson was also advised that Dr. Storms was with the state,

and that he needed to be aware of that when responding to the

Doctors questions. (Hab. Tr. 52.)

22. At the beginning of the evaluation, Dr. Storms

administered Miranda warnings informing Mr. Hittson that

he had the nght 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.

(Sent. Tr. 254-255; Hab. Tr. 445.) Hittson stated that he

understood these warnings, and signed a waiver of rights

form. (Sent. Tr. 255-256; Hab. Tr. 445.)

23. Mr. Sammons was lave to the first day of the evaluation,

and was not present while the warnings were administered.

Consequently, Mr. Sammons did not discuss this waiver with

Travis before he signed it. (Hab. Tr. 30-33; R. 1349-1350.)

On the second day, Mr. Sammons was present for the full

interview. (Sent. Tr. 257.) The record reflects that on the

second day the state psychologist again reminded Mr. Hittson

of his rights, although, Mr. Sammons does not recall such

occasion. (Sent. Tr. 258-259; Hab. Tr. 33.) Mr. Sarnmons

was present when Mr. Hittson characterized the victim, Mr.

Utterbeck, as a "hillbilly" and an "asshole". (Sent. Tr. 257-

260; Hab. Tr. 52.)

24. On the second day of this evaluation, Mr. Sammons

attempted to question Dr. Storms’ about his opinion as to

whether Mr. Hittson had any psychological problems that

might explain what happened, and might explain why this

crime occurred. However, Dr. Storms was noncommittal, and

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did not fully answer any of Mr. Sammons questions. (Hab.

Tr. 34, 150.) Subsequent to this event, it does not appear that

trial counsel made any other attempt to contact Dr. Storms. It

also appears that although the trial court determined that trial

counsel could talk with Dr. Coplin prior to trial, trial counsel

made no attempt to do so. (Tr. 2/11/93 at 105; Hab. Tr. 26-

27, 162, 397.)

25. Voir dire began on Tuesday, February 16, 1993. The

guilt-innocence phase began on February 25, 1993. The

defense did not raise the issues of insanity or mental

competency at the guilt-innocence phase; accordingly, at that

phase, no mental health experts testified. On March 1, 1993

the sentencing phase began. At the beginning of this phase

the defense proffered the expert mental health testimony of

Dr. Prewett. This proffer was made in order to establish what

Dr. Prewett had to say in mitigation about Mr. Hittson's

mental ability and IQ. (Sent. Tr. 28.) Among other things Dr.

Prewett testified that Mr. Hittson's MMPI results suggested a

number of diagnostic possibilities including depression,

schizophrenia, schizoid personality disorder, schizo-typical

personality disorder, and borderline personality disorder,

although, he also testified that different people could come up

with different interpretations of the MMP! results. (Sent Tr.

24, 33.) Dr. Prewett further testified that Mr. Hittson's IQ test

results indicated that he was in the low-average range of

intellectual ability. (Sent. Tr. 27.) Lastly, Dr. Prewett stated

that, based upon his interview with Travis, he would testify

that Travis was a serious alcoholic who suffered from

alcoholic blackouts. (Sent. Tr. 27.)

26. Following this proffer, the trial court ruled that if the

defense presented Prewett's expert testimony to the jury, then

the state would be entitled to present their own expert in

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rebuttal. (Sent. Tr. 25, 66.) Trial counsel presented the court

with possible methods of presenting Prewett's testimony

which would allow Prewett to testify and prevent the other

experts from taking the stand; however, such efforts were to

no avail. (Sent. Tr. 31-33.) Trial counsel also objected to the

trial court's ruling on a number of different grounds. (Sent.

Tr. 29, 33.) At one point Mr. Sammons argued that Dr.

Storms should not be allowed to testify based on the fact that

he was not on any witness list, and the fact that the defense

had not received any scientific reports generated by Dr.

Storms, even though they had filed a motion for all scientific

reports. The court overruled both grounds for the objection.

27. In addressing the former ground for the objection, the

trial court explained that as Dr. Storms' testimony would be

rebuttal testimony he would not have to be on the witness list.

In addressing the latter ground, the trial court deferred to the

prosecutor. The prosecutor explained that the state had not

produced Storms' report because under the then current court

order, any report generated by either parties' mental health

expert would not have to be disclosed until such time as the

defense committed to presenting expert mental health

testimony. (Sent. Tr. 33-34.)

28. Despite trial counsel's failed efforts to obtain a ruling

which would prevent Dr. Storms from testifying, it appears

that they were able to secure copies of both Dr. Storms' report

and Dr. Coplin's report without having to commit to

presenting Dr. Prewett's testimony. (Sent. Tr. 35-36, Hab. Tr.

165.) In determining that it would make Dr. Coplin's report

available to both sides, the trial court indicated that trial

counsel might not find the report to "be for the benefit of Mr.

Hittson." (Sent. Tr. 36.)

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29. Trial counsel took about 30 minutes to review Dr.

Storms' and Dr. Coplin's reports. (Hab. Tr. 147, 163, 165.)

Subsequent to this review, trial counsel decided not to present

Dr. Prewett's testimony in mitigation. The primary

motivation behind this decision is that they felt both Storms'

report and Coplin's report were unfavorable to Mr. Hittson,

that the substance of these experts’ testimony would have

been difficult for the defense to overcome, and that such

testimony would have been potentially frightening to the jury.

(Hab. Tr. 199-200.) It appears trial counsel also felt that, in

general, Dr. Storms’ would have been a very effective witness

for the state. More specifically, trial counsel felt Storms’

expert testimony concerning Travis' mental condition would

have been very effective, and that this would have been very

harmfu: to Travis. (Hab. Tr. 352. )

30. Furthermore, it appears that trial counsel were concerned

about the testimony of Dr. Moore being introduced. (Hab. Tr.

47, 199, 335.). Mr. Sammons testified at the habeas hearing

that trial counsel was told by Dr. Moore that Travis was just

mean, that Travis talked a lot about homosexuality and that

Moore felt the crime had homosexual overtones. (Hab. Tr.

100.) Mr. Sammons testified that he was "scared to death"

that Dr. Moore would testify, and would testify that Travis

was "just mean". Sammons felt such testimony would have

been devastating, especially in light of the fact that Moore

was a defense expert. (Hab. Tr. 102.) However, it should be

noted that Dr. Moore's report does not contain any reference

to what Sammons claims he was told by Moore. (Hab. Tr.

479-81. )

31. In sum, trial counsel felt the psychologicals were not

favorable to Travis and any advantage to admitting this

evidence would have been "considerably" outweighed by the

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damage it would have done’ therefore, trial counsel

concluded that such evidence should not be presented in

mitigation. (Hab. Tr. 334, 349, 395.) Accordingly, the

decision was made and Dr. Prewett's testimony was not

presented in mitigation.

32. Following this series of events, trial counsel proffered

the testimony of social worker, Mary Shults. Ms. Shults

stated that her testimony would concern Hittson's family

history, substance abuse, IQ, and childhood, all of which

explain his behavior. Following this proffer, trial counsel

sought a ruling on whether the state would be able to rebut

Shults' testimony with testimony of a psychologist or

psychiatrist. The trial court ruled that any expert testimony

given by Shults, concerning Hittson's psychological behavior

and mental state, could be rebutted by the state's expert.

Hittson v. State, 264 Ga. at 685-686. The trial court also ruled

that "just because the Defense's expert might base their

opinion on matters - extraneous matters and not on an

interview with the defendant, [this] will not keep the State

from being able to put up their expert and have that expert

testify as to basically all matters that were found by their

expert through extraneous sources as well as an interview

with the defendant." (Sent. Tr. 66.)

33. In light of the trial court's ruling, and Ms. Shults’

proffer, trial counsel were concerned that presentation of Ms.

Shults' testimony would open the door to the other experts. In

light of Storms’ and Coplin's reports, trial counsel felt this

risk was too great; therefore, the decision was made not to

call Shults in mitigation. (Hab. Tr. 27, 181, 347, 348, 357.)

3 Trial counsel also felt that Ms. Shults would not have made a good

witness. (Hab. Tr. 125, 126, 357.)

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Accordingly, trial counsel made the decision to present only

lay witnesses in mitigation. (Sent. Tr. 70.)

34. The defense presented 20 lay witnesses in mitigation.

These witnesses were discovered through trial counsel's visits

to both Hittson's home in Nebraska, and the U.S.S. Forrestal,

the Navy ship on which Petitioner, Vollmer and Utterbeck

were stationed. Through these witnesses trial counsel's goa!

was to show that Mr. Hittson was an impressionable, easily

led, emotionally needy, and generally harmless guy, who was

manipulated and controlled by Vollmer into doing something

he would never normally have done. ( Hab. Tr. 108, 194-195,

356.) They felt they were able to accomplish this goal.

35. The witnesses from Nebraska were able to testify that

Travis was emotionally hungry and needy from an early age,

and that he actually adopted another family because his own

family was so cold and distant. (Hab. Tr. 74; Sent. Tr. 72-83.)

The witnesses from the Forrestal were able to testify at length

about Hittson, Vollmer, and their relationship. More

specifically, the Navy witnesses testified that Hittson was a

very gullible, easily led individual who was constantly trying

to fit in. (Sent. Tr. 98, 101-103, 111-112, 170, 181, 185-194.)

On the other hand, these witnesses testified that Vollmer was

a very intellig-nt, manipulative and controlling individual,

who liked pleying with people's heads, (Sent. Tr. 136, 140-

141, 171, 179, 181); who had spoken on occasion prior to the

murder of "taking care" of the victim, implying danger to the

victim, (Sent. Tr.125-126, 128-132, 157-162); who

subsequent to the murder discussed with people the best way

to kill someone and dispose of the body, (Sent Tr. 135-142);

and who had in a letter to an acquaintance, detailed a plan to

kill his ex-girlfriend's then current boyfriend. (Sent. Tr. 209-

219.) Lastly, these witnesses testified that in Vollmer and

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Hittson's relationship, Vollmer was the leader, Hittson was

the follower, and that consequently, Hittson would do what

Volimer told him to do. (Sent. Tr. 178-182.)

36. During presentation of the above testimony, one of

Hittson's shipmates testified that Hittson had admitted killing

the victim, but that he seemed to feel remorse. To rebut this

testimony the state called Dr. Storms who testified that when

asked to characterize the victim, Mr. Hittson called him a

"hillbilly" and an "asshole". Dr. Storms 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, 264 Ga. at 684. Trial counsel, although objecting to

the presentation of Dr. Storms' testimony in rebuttal, did not

present any more evidence.

B. Conclusions of Law

37. Petitioner alleges that trial counsel's failure to present

psychological evidence in mitigation amounted to ineffective

assistance of counsel. The 11" Circuit Court of Appeals has

noted that while it " has held that the failure to introduce

mental illness mitigating circumstance evidence can, in some

circumstances, amount to ineffective assistance of counsel,

we have never held that counsel must present all available

mitigating evidence in general, or all mental illness

mitigating circumstance evidence in particular, in order to

render effective assistance of counsel." Water v. Thomas, 46

F.3d 1506,1511 (1995). (Citations omitted.) The Court then

went on to point out a number of cases in which tnal

counsel's performance was found to be constitutionally

sufficient when no mitigating evidence was introduced, even

though such evidence, including some relating to the

defendant's mental illness or impairment was available. id.

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The 11" Circuit Court further noted of cases in which it

upheld the sufficiency of counsel's performance where

counsel presented less than all available evidence in

mitigation, even where some of the omitted evidence

concerned the defendant's mental illness or

impairment. id.

38. The Court in Water, supra, concluded that the lesson to

be drawn from those cases "is not that counsel's performance

is always, or even usually, deficient if counsel fails to present

available mitigating circumstance evidence"; nor is it “that

the presentation of some mitigating evidence will always

insulate counsel's performance from being condemned as

ineffective. Instead, our decisions teach that whether

counsel's performance is constitutionally deficient depends

upon the totality of the circumstances viewed through a lens

shaped by the rules and presumptions set down in Strickland

v. Washington, [omit], and its progeny."

39. "Under those rules and presumptions the cases in which

habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between. The

result is no accident but instead flows from deliberate policy

decisions the Supreme Court has made mandating that

judicial scrutiny of counsel's performance must be highly

deferential and prohibiting intensive scrutiny of counsel and

rigid, requirements for acceptable assistance. The Supreme

Court has instructed us to begin any ineffective assistance

inquiry with a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance.

Because constitutionally acceptable performance is not

narrowly defined, but instead encompasses a wide range, a

petitioner seeking to rebut the strong presumption of

effectiveness bears a difficult burden. As we have explained,

20a

[t]he test has nothing to do with what the best lawyers would

have done. Nor is it the test even what most good lawyers

would have done. We ask only whether some reasonable

lawyer at the trial could have acted in the circumstances, as

trial counsel acted at trial. We are not interested in grading

lawyers performances; we are interested in whether the

adversarial process at tral, in fact, worked adequately.”

Waters v: Thomas, 46 F.3d at 1511-1512. (Citations omitted.)

40. Turing to the case at hand, Petitioner argues that trial

counsel were ineffective in failing to present, in mitigation,

the testimony of Dr. Prewett and Ms. Shults. More

specifically, Petitioner argues that trial counsel's decision was

unreasonable as it was an uninformed decision based upon an

inadequate investigation, and that had the psychological

evidence been presented in mitigation, there is a reasonable

probability that the jury would have returned with a sentence

less than death. (Petitioners Br. 26 37; Petitioner's Reply Br.

13-16.) However, in light of the circumstances existing at that

time, the Court finds that trial counsel were not ineffective as

their decision to not present the testimony of Dr. Prewett and

Ms. Shults in mitigation was not unreasonable, and even if it

was unreasonable, that evidence does not create a reasonable

probability that had it been presented the jury would have

returned with a senteace less than death.

C. Trial counsel's decision not to present the testimony of

Prewett and Shults was reasonable.

41. In viewing counsel's actions in light of the totality of

circumstances, the Court concludes that trial counsel's

decision not to present the testimony of Dr. Prewett and Ms.

Shults was reasonable. Lawyers are permitted to make

strategic decisions limiting the presentation of certain types

21a

of mitigating evidence. Dobbs v. Turpin, 1998 WL 300507

(11" Cir. (Ga..)) Trial counsel is afforded tremendous

deference over matters of trial strategy; however, before

selecting a strategy, counsel must conduct a reasonable,

investigation into the defendant's background for mitigation

evidence to use at sentencing. Turpin v. Christenson, 269 Ga.

226, 239 (1998).

42. In the present case, trial counsel's strategy for the

sentencing phase was to portray Travis as an impressionable,

easily led, emotionally needy, and generally harmless man,

who was manipulated and controlled by Vollmer into doing

something he would never normally have done. (See supra Jf

34-35.) In developing this strategy, the record indicates that

trial counsel conducted an extensive investigation into Mr.

Hittson's background which included a trip to Nebraska

where counsel met with everybody they could who knew and

remembered Mr. Hittson. (Hab. Tr. 73; See supra J 34.) Trial

counsel also traveled to Pensacola and Philadelphia to

interview Navy personnel who were familiar with Hittson and

Vollmer. (Hab. Tr. 73.) As a result of this investigation, trial

counsel found 20 lay witnesses whom they presented at trial

who effectively supported their strategy. (See supra J 34-35.)

43. However, trial counsel did not limit their investigation

solely to Hittson's background, but rather secured the services

of a psychologist, and at the suggestion of the psychologist,

they secured the services of a psychiatrist and a social

worker. (See supra {| 16.) Initially, the psychologist was

employed in hopes "that it would be determined that Travis

was mentally retarded or that he had sore sort of psychiatric

condition that would truly render sympathy, [omit], from the

jury.” (Hab. Tr. 74). However, trial counsel acknowledged

that such hopes did not pan out; (Hab. Tr. 74), yet, despite the

22a

lack of evidence for which they had hoped, trial counsel

apparently felt there to be some evidence which they felt

would be worthy of presenting in mitigation, as they withheld

reaching a decision on presentation of expert testimony until

it was time to present the mitigation case.

44. In reaching their decision on whether to present the

expert testimony of Dr. Prewett and Ms. Shults, trial counsel

was able to secure copies of the state's expert report and the

court's expert report, without having to commit to presenting

their own experts. (See supra J 28.) Trial counsel reviewed

these reports for half an hour before concluding that the

reports of the state's expert and court's expert were

unfavorable to Mr. Hittson. Trial counsel's decision not to

present Dr. Prewett in mitigation was primarily based on

these unfavorable reports; however, trial counsel was also

motivated by the possibility of damaging testimony from

their own psychiatrist.* Ultimately, in light of all the

4 Petitioner asserts that when determining whether trial counsel's decision

not to present psychological evidence was reasonable, the Court should

focus only on why Mr. Holloman decided not to present psychological

evidence as Mr. Holloman was lead counsel on that issue and made the

ultimate decision. (Hab. Tr. 148; Petitioner's Reply Br. 13-14.) Petitioner

cites to Magill v. Dugger, 824 F. 2d 879 (11™ Cir. 1987) where the 11"

Circuit Court of Appeals held that the district court erred in considering the

counsel who prepared for the case and the differe' ounselwho tried the

guilt phase of case collectively as counsel for the pu:poses of an ineffective

assistance of counsel claim. In Magill, counsel who tried the case had no

real involvement in the case prior to his walking into the court room the day

of the trial and taking over to the surprise of counsel who had been handling

the case. 824 F.2d at 885. This case does not rise to the level of non-

involvement by co-counsel which would warrant the application of Magill,

supra. In the present case trial counsel prepared for and tried the case

together, all involved were very familiar with the facts and issues of the case

and worked together when reaching a decision on any particular tactic.

Although Mr. Holloman had made the ultimate decision on the

23a

psychological evidence taken together, trial counsel did not

believe that what Dr. Prewett had to say would be mitigating

or would be given much weight, (Hab. Tr. 37), and that the

damage of admitting all the psychological testimony would

have outweighed any benefits. (See supra J 28-31.) Trial

counsel also concluded that presentation of Ms. Shults

testimony would be too risky based upon the same concerns

Stated above, as well as the trial court's rulings concerning

expert rebuttal (See supra {J 32-33.)

45. Petitioner argues that trial counsel's decision xot to

present mental health testimony in mitigation was

unreasonable. Petitioner's main contention is that trial counsel

did not adequately investigate the possible testimony of the

court's expert, as they failed to discuss his findings with him

prior to trial, although the trial court said such was

permissible. (Petitioner's Br. 27-31; Petitioner's Reply Br. 11-

12.) The factual basis for this argument is correct, (See supra

| 23); however, the record reflects that trial counsel had about

30 minutes to review the Drs. reports.

46. Petitioner argues that 30 minutes was insufficient time

for trial counsel to properly review Dr. Coplin's report and to

reach an informed decision (Petitioner's Br. 30-31;

Petitioner's Reply Br. 12.) However, the Court believes 30

minutes to be sufficient time as the reports are not lengthy,

and Dr. Coplin's report contains a summary which would

make it possible to determine the substance of his testimony

within that period of time. (R. 377-85, 386-94: Hab. Tr. 482-

psychological aspect of the trial, he discussed the issue with co-counsel and

reached a decision based upon everyone's concems. Accordingly Magill is

inapplicable, and the Court will consider the concems of all counsel when

determining whether the decision reached was reasonable.

24a

89.)

47. Furthermore, tnal counsel's decision not to present

mental health expert testimony and the testimony of Mary

Shults, was based not only on Dr. Coplin's report, but also on

Dr. Storms’ and his report (See supra fff] 18, 24, 26-28.) It is

also important to note that trial counsel based their decision

in part on negative comments on Petitioner's disposition

presented by Dr. Moore, which trial counsel obtained prior to

trial. (See supra J 30.) As such, the Court finds unpersuasive

Petitioner's argument that trial counsel's failure to attempt to

determine what Dr. Coplin would say prior to trial caused

them to make an uninformed and unreasonable decision

concerning presentation of mental health mitigation evidence.

48. The Court finds that trial counsel's decision to forego

mental health evidence was reasonable based upon the fear

that Dr. Moore might testify, (See supra | 30); nonetheless,

the Court also finds reasonable trial counsel's decision based

upon the reports of Storms and Coplin, because the

conclusion that those reports were unfavorable was

reasonable.

49. Both reports indicate that the Drs. believed Mr. Hittson

was responsible for the charges against him. Dr. Storms

concluded that "[cJonsistency of data does not indicate a

disorder of thought of mood that would impair Mr. Hittson's

ability to distinguish nght from wrong with regards to the

incident leading to his arrest." Dr. Coplin concluded that

Travis "is responsible for the charges against him. He does

not show any psychiatric symptoms or psychiatric history

which would render him not responsible for the charges

against him." Such testimony would be something the

defense would want to avoid.

25a

50. Further, while Storms and Coplin could corroborate

some of the findings of Dr. Prewett, these findings may not

all have been necessarily mitigating. For example, both

Coplin and Prewett concluded that Travis exhibited chronic

alcoholism. However, while alcoholism could be considered

a mitigating circumstance, the conclusions of Dr. Storms

regarding affects of alcohol on Travis could aggravate the

Situation.

51. Dr. Storms found that Travis had basically led a passive-

dependent life style overlaid on mild depression, and

although he is one to generally go along with others who are

perceived to have more personal power, he has, at times,

acted out, especially when drinking. Dr. Storms further found

that Travis tends to solve problems by "trial and error", tends

not to think through the ramifications of his actions before he

acts, and tends to merge thinking and feeling. Storms noted

that Hittson was intoxicated during the incident which led to

his arrest. Storms further noted that when asked how he felt

just before the incident occurred, Hittson "stated that he was

afraid"; "[h]e also indicated that he was not thinking." Dr.

Storms concluded by stating: "However, even under ordinary

circumstances, Mr. Hittson tends to act before he thinks. It is

my opinion that alcohol exacerbated this natural style."

52. Such comments by Dr. Storms could be construed to

indicate that Storms believed the murder committed by Mr.

Hittson was a natural consequence of a combination of his

passive-dependent, mildly depressed lifestyle, his "trial and

error” manner of thinking, and alcohol. This would be

negative and would support trial counsel's conclusion that Dr.

Storms' report was unfavorable.

53. The reports of Dr. Storms and Dr. Coplin contradict

26a

some conclusions reached by Dr. Prewett. Prewett wouid

have testified that Petitioner's IQ was low average; however,

Storms and Coplin's reports indicate his IQ to be average.

Prewett would have testified that Petitioner suffered from

mild neurological dysfunction; however, both Storms and

Coplin found no indication of neurological dysfunction.

Lastly, Prewett would have testified that Petitioner suffered

from a borderline personality disorder with some schizoid

features also present, however, Storms found no indication of

mental illness, and no signs of a mood or thought disorder,

including schizophrenia; similarly Coplin found no

symptoms of psychosis or of any active diagnoses of any type

of severe personality disorder. While it could be possible that

these inconsistencies in the Drs.’ conclusions could be

construed to corroborate one another, it would appear that

Prewett's testimony could be easily contradicted, which in

turn could damage not only the credibility of the witness, but

the credibility of the defense and the case in mitigation.

54. Accordingly, in light of the contradictions to Dr.

Prewett's testimony which are presented by the reports of

Coplin and Storms, the possible negative inferences which

could be drawn from the psychological reports, as well as the

conclusions drawn in the reports concerning Hittson's

responsibility for the crime, the Court concludes that it was

reasonable for trial counsel to conclude that the reports of

Storms and Coplin were unfavorable. Further, in light of all

the circumstances existing at the time, including all previous

rulings by the trial court on this issue, as well as the evidence

which the defense did present in mitigation, trial counsel's

decision not to present the testimony of Dr. Prewett and Ms.

Shults, which was based on the aforementioned reasonable

conclusion was not unreasonable.

27a

D. Petitioner was not prejudiced by trial counsel's failure to

present the testimony of Dr. Prewett and Ms. Shults in

mitigation.

55. In order to establish prejudice, Petitioner must show

there exists a reasonable probability that, had the testimony

of Dr. Prewett and Ms. Shults been presented at the penalty

phase, the jury would have concluded " that the balance of

aggravating and mitigating circumstances did not warrant

death.” Zant v. Moon, 264 Ga. 93, 98 (1994), citing

Strickland v. Washington, 104 S. Ct. at 2069. Note, in

making this determination it is necessary to consider not

only the possible testimony of Dr. Prewett and Ms. Shults,

but also any evidence which could have been presented in

rebuttal, as well the aggravating circumstances presented at

trial. See Zant v. Moon, 264 Ga. at 97-100; Buenoano v.

Singletary, 74 F.3d 1078, 1085 (11" Cir, 1996); Baxter v.

Thomas, 45 F.3d 1501, 1515 (11" Cir. 1995); Stephens v.

Kemu, 846 F.2d 642, 655 (11" Cir. 1988). Taking all this

into consideration, the Court finds there to be no reasonable

probability that had the testimony of Dr. Prewett and Ms.

Shults been presented to the jury they would have returned

with a sentence less than death.

56. First, Dr. Prewett did provide some testimony at trial

which would have dovetailed well with the defense strategy

that Travis was heavily influenced by Vollmer. Prewett

testified that Hittson was a follower, "so desperate to belong

some place" (Hab. Tr. 267-68.) Prewett also testified that

Travis had a history of very unstable interpersonal

relationships. He stated that Hittson's relationship with

Vollmer was very weird as Hittson felt controlled by

Volimer, and alternated between "very intense hatred" for

Vollmer and almost hero worship at times. (Hab. Tr. 264-66.)

ES

28a

However, such testimony indicating that Petitioner is capable

of "very intense hatred", could be construed as unfavorable,

and in light of possible expert testimony concerning

Petitioner's alcoholism, impulsivity, (see infra | 57), details

of the crime, and characterization of the victim as a "hillbilly"

and an "asshole", such testimony by Dr. Prewett could have

actually hurt the defense strategy.

57. Dr. Prewett also testified at the evidentiary hearing that

Hittson suffered from a borderline personality disorder. This

could possibly be considered mitigating. However, Prewett

testified as to Hittson's personality traits which fit such a

diagnosis. He stated impulsivity and inappropriate intense

anger or difficulty controlling anger were characteristics of

this diagnosis. Dr. Prewett pointed out that Petitioner met

both the impulsivity and difficulty controlling anger

characteristics. Dr. Prewett continued by pointing out that

Hittson "fought frequently in school, and certainly had some

troubles controlling his anger ." In light of the violent and

disturbing nature of the crime, such testimony concerming

impulsivity, violence and difficulty controlling anger on

behalf of Petitioner, could be construed negatively.

Furthermore, testimony concerning Petitioners fighting in

school and difficulty controlling his anger, would contradict

some of the lay testimony indicating Petitioner was indeed

non-violent. (See Sent. Tr. 75-77; 79-81.)

58. Thus, while certain portions of Dr. Prewett's testimony

could be characterized as mitigating, it is clear that this same

testimony could also be construed against Petitioner. Also, as

pointed out above, the findings of Drs. Coplin and Storms

could also be construed against Petitioner. (See supra Jf 48-

54.) However, Petitioner also maintains that the testimony of

social worker, Mary Shults, should have been presented.

29a

59. The affidavit of Mary Shults among other things

indicates that she found the Hittson family to be

dysfunctional, that the Hittsons were physically neglectful

parents, that Travis' father was an alcoholic, that while

growing up Travis was emotionally neglected by his parents.

(Hab. Tr. 446-53.) After examination of Ms. Shults affidavit

the Court believes her testimony would have been mitigating

for Petitioner; however, it should be pointed out that the

Supreme Court previously found that testimony of

Petitioner's family history and substance abuse, which could

have been presented by Ms. Shults, was in fact testified to by

a number of Hittson's childhood friends. Hittson v. State, 264

Ga. at 686.

60. Therefore, in light of the all the evidence adduced,

including the crime committed, the gruesome nature of that

crime, Petitioner's characterization of the victim after the

crime, the mitigation evidence which was actually presented

(see supra {| 3435), and the possibly unfavorable

psychological testimony which includes not only that which

is described above, (see supra J] 48-54, 56-57), but the

possibility of Dr. Moore, the defense's own expert, testifying

that Travis was "just mean", (see supra J 30), the Court does

not believe there to be a reasonable probability that the jury

would have returned with a sentence of life had Ms. Shults

and Dr. Prewett been presented in the penalty phase.

Accordingly, the Court concludes Petitioner was not

prejudiced by trial counsel's failure to present such testimony.

61. Accordingly, in light of the foregoing analysis, the Court

finds Petitioner did not receive ineffective assistance of

counsel as trial counsel's failure to present the testimony of

Dr. Prewett and Ms. Shults in mitigation as trial counsel's

decision not to present such testimony was reasonable, and

30a

even if such decision could be considered unreasonable,

Petitioner was not prejudiced by the failure to present such

testimony.

E. Tnial counsel was not ineffective for failing to present

Dr. Prewett and Ms. Shults' testimony, subsequent to the

testimony of Dr. Storms.

62. Petitioner argues that the only damaging testimony that

Dr. Storms could have offered related to Hittson's statement

that the victim was a "hillbilly" and an "asshole", and once

that testimony came in at the close of the State's rebuttal, any

basis for withholding psychiatric evidence disappeared.

(Petitioner's Reply Br. 15; see supra § 36) However, this

argument is unsupported by the record as it has been

concluded that other portions of Dr. Storms' report, unrelated

to Hittson's characterization of Utterbeck, could be construed

as unfavorable. (See supra §] 48-53.) Furthermore, aside

from Storms' report, presentation of Dr. Moore's unfavorable

testimony would still have been a possibility.

63. Accordingly, trial counsel's failure to present Dr Prewett

and Ms. Shults' testimony, subsequent to the rebuttal

testimony of Dr. Storms, should be considered reasonable.

Furthermore, even if it could be considered unreasonable,

Petitioner was not prejudiced by trial counsel's failure to

present such testimony. (See supra J 61.) Accordingly, trial

counsel was not ineffective for failing to present the

testimony of Dr. Prewett and Ms. Shults, subsequent to Dr.

Storms testimony in rebuttal.

VI. In assisting Petitioner in deciding whether to waive

his right to testify, trial counsel acted within the wide

range of competence demanded of attorneys in

31a

criminal cases and their actions or inactions did not

deprive Petitioner of the ability to choose whether or

not to testify on his own behalf.

64. In arguing that trial counsel failed to properly advise him

of his right to testify Petitioner alleges the following: that the

first time trial counsel advised him about testifying was

during a brief recess near the end of the penalty phase of trial;

that trial counsel gave him conflicting advice on whether to

testify; that this conflict in advice resulted in a heated

disagreement between counsel; that Mr. Sammons and Mr.

Holloman informed him that if he decided to testify they

would go to the trial judge and inform the judge that they had

advised Petitioner not to testify; and lastly, that no one ever

prepared him to testify. (Petitioner's Br. 20-23; Petition JJ

_ 33-38.) Petitioner argues, that in light of the latter two factual

allegations, he was forced to decide not to testify,

(Petitioner's Br. 22-23); however, the Court does not find

these allegations to be supported by the record.

65. Petitioner alleges that Mr. Sammons and Mr. Holloman

informed him that if he decided to testify, they would go to

the judge and inform him, in writing, that they had advised

him not to testify. Petitioner argues that this threat amounted

to coercion which denied him his Fifth Amendment nght to

testify and his Sixth Amendment right to effective assistance

of counsel. (Petitioner's Br. 22.) This allegation is supported

only by Petitioner's testimony. Neither Mr. Sammons, nor

Mr. Holloman testified as to whether this occurred or not, and

Mr. Shurling provided unsolicited testimony that he does not

recall that happening. (Hab. Tr. 379.) Accordingly, the Court

finds there to be insufficient evidence to support such an

allegation.

32a

66. Furthermore, the Court finds Petitioner's allegation that

trial counsel failed to prepare him to testify to be unsupported

by the record. However, the Court would like to first point

out its confusion as to how this could be a basis for

ineffective assistance of counsel when Petitioner did not

testify. While one could possibly argue that trial counsel has

a duty to prepare a defendant to testify in order to ensure that

the defendant is prepared if he decides to testify, the Court

does not think it could be argued that a criminal defendant

was prejudiced by a failure to do so where the defendant does

not take the stand, and where there is no support in the record

for Petitioner's allegation that he did not take the siand

because he wasn't prepared. (Petitioner's Br. 23.)

67. Aside from the aforementioned confusion, the Court

finds that the record does not support Petitioner's assertion

that trial counsel did not prepare him to testify. While there is

no evidence which indicates that trial counsel sat down with

Travis and let him know they were going to prepare him to

testify, the record does indicate that counsel did go through

- Petitioners testimony with him. Mr. Sammons testified that

he met with Travis and went over his story with him on

numerous occasions; however, on each occasion Travis

would relay a different version of the events surrounding the

crime. Such inconsistency with Petitioners testimony

concerned Mr. Sammons; however, Mr. Sammons recognized

that it would be inappropriate and unethical to go through

Petitioner's testimony and "say this is what I'm going to ask

you, and this is what your answer is[.]" (Hab. Tr. 53.) Mr.

Shuding testified that he does not rehearse witnesses, and that

if he had prepared Travis he would have told him to just tell

the truth, although he can't recall if he indeed told Travis this.

(Hab. Tr. 366.)

33a

68. In light of this testimony, and in light of the

circumstances testified to, the Court concludes that trial

counsel's actions in preparing Petitioner were not outside the

wide range of professionally competent assistance demanded

of defense attorneys. It is further concluded that even if trial

counsel had been deficient in failing to prepare Petitioner,

there has been no showing that Petitioner was prejudiced by

this deficiency as Petitioner did not take the stand. Compare

Ross v Kemp, 260 Ga. 31Z (1990). Petitioner's allegation

that he did not take the stand because he was not prepared is

unsupported by the record. Accordingly, the Court makes the

following findings of fact surrounding the larger issue.

A. Findings of Fact

69. Petitioner did not testify during either the guilt/innocence

or penalty stage of trial. However, the record indicates that

Petitioner was advised of his right to testify. Petitioner's ‘rial

counsel informed Mr. Hittson that he had a right to testify.

(Hab. Tr. 54, 338, 344.) Further, as the presentation of the

evidence during the penalty stage concluded, the trial court,

on the record, asked Petitioner whether he understood that he

had a right to testify. Petitioner indicated that he did

understand and that he would not exercise that right. (Sent.

Tr. 240.)

70. Petitioner asserts that the first time trial counsel advised

him about testifying was during a brief recess near the end of

the penalty phase of trial; however, the record indicates

otherwise. Mr. Sammons testified that he talked with

Petitioner on several occasions, both prior to and during trial,

about whether or not Petitioner should testify and gave

Petitioner his opinions on it. (Hab. Tr. 50.) Mr. Shurling

testified that he discussed this issue with Petitioner and that it

34a

was not an occasion where trial counsel simply dropped the

issue on Mr. Hittson at the end. (Hab. Tr. 337, 341, 373,

380.)

71. Petitioner correctly alleges that he was given

“conflicting” advice from trial counsel on whether to take the

stand. Mr. Sammons and Mr. Holloman, for several reasons,

believed Mr. Hittson would not make a good witness and

should not testify. (Hab. Tr. 52-53, 182-183, 206, 336.) On

the other hand, Mr. Shurling believed Mr. Hittson should

testify. This belief apparently stemmed from his own

personal rule of thumb and the fact that Mr. Hittson told

Shurling that he would trade places with the victim. (Hab. Tr.

325, 337.) On this issue, trial counsel continued to be divided

up to the time when Mr. Hittson was to make his decision.

(Hab. Tr. 66-67, 130, 370-371.)

72. Consequently, the division of counsel was made apparent

to Mr. Hittson in the holding cell prior to when he was to

make his decision. (Hab. Tr. 326-327.) Mr. Hittson testified

that in the holding cell, trial counsel got into an argument

over whether or not he should testify. (Hab. Tr. 326.)

Petitioner's habeas counsel attempts to characterize the scene

as a very hostile argument where Mr. Holloman wished to

beat Mr. Shurling, and Mr. Sammons feared that the dispute

would erupt into a physical fight. (Petitioner's Br. 21.)

Although there is evidence in the record to indicate the

existence of some hostilities between Holloman and Shurling

on this issue, and that Mr. Sammons did fear a fight, there is

insufficient evidence to establish that such hostilities were

ever made apparent to Petitioner. What is established by the

record is that in the holding cell, trial counsel debated their

positions on whether or not Travis should testify. Trial

counsel conducted this debate in front of Travis. At the

35a

conclusion of this discussion, Mr. Shurling communicated to

Travis that he agreed with the others and that he believed Mr.

Hittson should not testify. (Hab. Tr. 326-327, 344, 371.)

Travis decided not to testify.

B. Conclusions of Law

73. A criminal defendant has a fundamental constitutional

right, based upon "Fifth and Sixth Amendment guarantees

and due process considerations, to testify in his or her own

defense." Morley v. State, 264 Ga. 855, 856 (1995) citing

Rock v, Arkansas, 107 S. Ct. 2704 and United States v.

Teague, 953 F. 2d 1525 (11™ Cir. 1992). This right is

personal to the defendant and cannot be waived by trial

counsel. Morley, 264 Ga. at 856 citing Teague, supra. The

decision of whether or not to testify in one's own defense is

considered a tactical decision to be made by the defendant

himself after consultation with his trial counsel. Barron v.

State, 264 Ga. 865, 866 (1995) citing Burton v. State, 263 Ga.

725, 728 (1994). “The choice of whether to testify is

ultimately defendant’s.” Chambers v. State, 266 Ga. 39, 40

(1995).

74. Where a petitioner alleges ineffective assistance of

counsel through counsel's failure to property advise him of

his right to testify, the question becomes whether the action

or inaction of trial counsel deprived petitioner of the ability to

choose whether or not to testify on his own behalf. Teague,

953 F. 2d 1524. In order for Petitioner to prevail on such a

claim, he must present evidence which shows that trial

counsel did not act "within the wide range of competence

demanded of attorneys in criminal cases". Id. “A review of

an ineffective assistance of counsel claim must be made from

the perspective of trial counsel, taking into account all the

—

36a

circumstances of the case as they were known to counsel at

the time of the representation.” Id. at 1525.

75. Generally, “[dJefense counsel bears the primary

responsibility for advising the defendant of his right to testify

or not to testify, the strategic implications of each choice, and

that it is ultimately for the Defendant himself to decide. This

advice is crucial because there can be no effective waiver of a

fundamental constitutional right unless there is an intentional

relinquishment or abandonment of a known night or

privilege.” Id . at 1533. Upon application of the foregoing

law to the evidence of record the Court finds trial counsel

properly advised Petitioner of each concern set forth above.

76. First, it is clear that Petitioner was advised of his right to

testify, and he was advised of this right prior to those final

moments in the holding cell. (See supra J 69.)

77. Second, the record establishes that while Mr. Hittson

may not of been apprized of all strategic implications of each

choice he could make, he was sufficiently apprized of some

of these implications. Mr. Sammons testified that he was

adamant with Mr. Hittson that it was not in his best interest to

testify, that he felt that the lay testimony had gone real well,

and that he was concemed about the prosecutors cross

examination. (Hab. Tr. 129.) Mr. Hittson's testimony

indicates that he was aware of this concern. (Hab. Tr. 326.)

Mr. Shurling's testimony indicates that he did discuss with

Travis why he felt Travis should testify. (Hab. Tr. 341.)

78. Further, Mr. Hittson's testimony reveals that he was

present when trial counsel debated their reasons for either

wanting or not wanting him to testify. (See supra J 72.) The

Court finds evidence of such a debate to be further support

Cu, A sane

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for the conclusion that Mr. Hittson was made aware of the

strategic implications of his decision. In sum, the record is

sufficient to establish trial counsel informed Mr. Hittson of

the strategic implications of each choice and that Mr. Hittson

was aware of these strategic implications.

79. Third, the record establishes that trial counsel advised

Mr. Hittson that the decision of whether or not to testify was

his to make. Mr. Hittson testified that he did not know that

the decision was his to make and that he could tell the judge

he wanted to testify regardless of what his lawyers told him.

(Hab. Tr. 327-328.) However, review of ineffective assistance

claims must be made from the perspective of trial counsel at

the time of the representation. Teague, 953 F. 2d at 1525. Mr.

Sammons and Mr. Shurling both testified that despite their

divided feelings on this issue, they did advise Petitioner that

the decision of whether or not to testify was his to make, and

both felt Mr. Hittson understood this. (Hab. Tr. 66, 67, 130,

379.) In light of this testimony the Court concludes that trial

counsel did advise Petitioner that the decision to testify was

his to make.

80. In sum, the record indicates that counsel advised

Petitioner that he had a right to testify and the decision of

whether to testify or not was Petitioner's to make. Further, the

record indicates that Petitioner was advised of the strategic

implications of each choice he could make, not only some

time prior to his decision, but moments before. The record

also indicates that after being advised of all of this, and after

discussion between counsel which occurred in front of

Petitioner moments before he was to make his choice, trial

counsel agreed that Petitioner should not testify.

Consequently, Petitioner decided not to testify and this

decision was communicated to the trial court by Petitioner on

era

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the record.

81. In light of this evidence the Court concludes that trial

counsel, in assisting Petitioner in deciding whether to waive

his right to testify, acted within the wide range of competence

demanded of attorneys in criminal cases and their actions or

inactions did not deprive Petitioner of the ability to choose

whether or not to testify on his own behalf. Teague, at 1524.

VII. Trial counsel's failure to object to certain

statements made by the prosecutor in his closing

argument in the sentencing phase does not

constitute ineffective assistance of counsel.

82. Petitioner alleges that certain statements made by the

prosecutor in his sentencing phase closing argument were

improper and misleading appeals to “passion, prejudice and

other arbitrary factors." (Petitioner's Br. 38; Petition JJ 39-

41.) Concerning these statements the Supreme Court has

already ruled that "[there exists no reasonable probability that

the outcome of the tral was changed either by the

prosecutor's comparison of the defendant's rights at the time

of trial to the victim's rights at the time of the crime, or the

prosecutor's brief reference to the photographs of the victim's

remains." Hittson 264 Ga. at 689-690 [13] (1994). The

reasonable probability standard used by the Supreme Court

for prejudice created by prosecutorial argument is essentially

the same standard used in determining prejudice for

ineffective assistance of counsel claims. See Ford v. State,

255 Ga. 81 (1985).

83. Therefore, as the Supreme Court has previously

concluded that Petitioner was not prejudiced by the

prosecutor's remarks, this Court concludes that trial counsel's

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failure to object to such remarks did not prejudice Petitioner

and is not sufficient to undermine confidence in Petitioner's

sentence. Accordingly, trial counsel's failure to object to the

certain statements made by the prosecutor in his closing

argument in the sentencing phase does not constitute

ineffective assistance of counsel.

VIII. Trial counsel's failure to object to the trial court's

response to two jury questions during deliberations

in the sentencing phase does not constitute

ineffective assistance of counsel. __

84. Petitioner alleges that the trial court's responses to two

questions asked by the jury conceming Mr. Hittson's

opportunity for parole if sentenced to life imprisonment, were

improper. (Petition | 42.) The Supreme Court of Georgia has

previously concluded that " the trial court's response to the

jury's inquiry was not erroneous.” Hittson v. State, 264 Ga. at

690 [14a]. Petitioner now wishes to use trial counsel's failure

to object to the trial court's responses, which the Supreme

Court concluded not to be erroneous, as evidence of tnal

counsel's ineffectiveness. However, "[failure to make a

meritless objection cannot be evidence of ineffective

assistance.” Sanders v. State, 211 Ga. App. 859, 862 (1994).

Accordingly, in light of the Supreme Cours prior ruling, the

Court concludes that trial counsel's performance failure to

object to the trial court's response to jury questions does not

constitute ineffective assistance of counsel.

IX. Trial counsel's failure to object to the trial court's

failure in the sentencing instructions to explain the

concept of mitigating circumstances, to guide the jury

in its consideration of such mitigating circumstances

and to identify any of the mitigating circumstances

et aad

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for which there was evidence in the record, does not

constitute ineffective assistance of counsel

85. Petitioner alleges that the trial court's failure to define the

concept of mitigating circumstances renders the court's

instructions constitutionally deficient. (Petitioner's Br.

40; Petition | 43.) However, the Supreme Court previous!y

found "no error in the trial court's charge on mitigating

circumstances" and noted that "[the trial court was not

required to illustrate possible mitigating circumstances for the

jury.[Cit]” Hittson 264 Ga. at 688 [7]. Petitioner now wishes

to use trial counsel's failure to object to these instructions

with which the Supreme Court found no error, as evidence of

trial counsel's ineffectiveness. However, "[failure to make a

merciless objection cannot be evidence of ineffective

assistance.” Sanders v. State, 211 Ga. App. 859, 862 (1994).

Accordingly, in light of the Supreme Court's prior ruling, this

Court concludes that trial counsel's performance was not

made deficient by failing to object to the trial court's

instructions on mitigating circumstances.

X. Trial counsel's failure to object to the trial court's

sentencing instructions which stated that the jury

should "recommend" that the death penalty be

imposed does not constitute ineffective assistance of

counsel.

86. Petitioner alleges that the trial court, in its jury

instructions at sentencing, suggested to the jury that, its

verdict notwithstanding, the court would retain ultimate

responsibility over whether Mr. Hittson would be sentenced

to death. (Petitioner's Br. 40; Petition J 44.) Petitioner argues

that trial counsel was ineffective for failing to object to such

instructions as it is "constitutionally impermissible to rest a

4la

death sentence on a determination made by a sentencer who

had been led to believe that the responsibility for determining

the appropriateness of the defendant's death rests elsewhere.

[Cit]" (Petitioner's Br. 40.) However, the Supreme Court has

previously concluded that the trial court in this case did not

"err in instructing that the jury could ‘recommend’ the

imposition of the death penalty since the charge made it clear

that such a recommendation would be binding." Hittson, 264

Ga. at 690 [14b].

87. "Failure to make a meritless objection cannot be

evidence of ineffective assistance.’ Sanders v. State. 211 Ga.

App. at 862. Accordingly, in light of the Supreme Court's

prior ruling, the Court concludes that trial counsel's failure to

object to the trial court's sentencing instructions that stated

that the jury could "recommend" that the death penalty be

imposed does not constitute ineffective assistance of counsel.

DISPOSITION

Based upon the above findings of fact and conclusions of

law, this court hereby orders that Petitioner Travis Clinton

Hittson's writ of habeas corpus is DENIED as tc the

conviction and sentence of death in the Superior Court of

Houston County on criminal action number 92-C-18076-M.

Let a copy of this Order be mailed to Mr. Travis Clinton

Hittson, Petitioner, Mr. William Mertens, Mr. Warren Fitch

and Mr. Jeremy Simon at Swidler & Berlin, Chtd., 3000 K

Street, N.W. Suite 300, Washington, D.C. 20007, Attorneys

for Petitioner, Ms. Paige Reese Whitaker, Assistant Attorney

General, 40 Capital Square, S.W. Atlanta, Georgia 30334-

1300, Mr. Steve Holloman, P.O. Box 7387, Warmer Robins,

Georgia 31095, and Honorable Kelly Burke, District

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Attorney, Houston Judicial Circuit, 1009 Jernigan Street,

Perry, Georgia 31069.

This 10"__ day of July, 1998.

s/Lawton E. Stephens

LAWTON E. STEPHENS

Judge, Superior Courts

Wester Judicial Circuit

= Lo Tea et ma i

43a

SUPREME COURT OF GEORGIA

Case No. S99R0100 Atlanta, September 29, 2001

The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed:

TRAVIS HITTSON v. TONY TURPIN, WARDEN

From the Superior Court of Butts County.

Upon consideration of the Application for Certificate of

Probable Cause to appeal the denial of habeas corpus, it is

ordered that it be hereby denied.

All of the Justices concur.

95V686

SUPREME COURT OF THE STATE OF

GEORGIA

Clerk’s Office, Atlanta

I hereby certify that the above is a true extract

from the minutes of the Supreme Court of

Georgia.

Witness my signature and the seal of said

court hereto affixed the day and year last above

written.

s/Lynn M. Stinchcomb= Clk.

44a

° SUPREME COURT OF GEORGIA

Case No. $99R0100 Atlanta, January 5, 2001

The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed:

TRAVIS HITTSON v. TONY TURPIN, WARDEN

Upon consideration of the Motion for Reconsideration

filed in this case, it is ordered that it be hereby denied.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I hereby certify that the above is a true extract from

the minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

SherieM. Welch, Clerk