Warren Lee Hill, 36, was
sentenced to death in September 1991 in Lee County for beating to death
fellow inmate Joseph Handspike, 34, with a nail-embedded board on Aug.
At the time, Mr. Hill was serving time for a 1985 murder. Mr.
Hill's state appeal challenging the fairness of his trial has been
pending since April 1994.
Standard of Proof
Stands in Claims of Retardation
Georgia was the first state to ban executing the
mentally retarded, but it will remain the only state to require death
penalty defendants to prove their retardation beyond a reasonable doubt.
In a 4-3 decision, the Georgia Supreme Court affirmed
that high standard of proof in an appeal involving Warren Lee Hill,
sentenced to die for the 1990 beating death of another inmate.
Writing for the majority, Justice George H. Carley
found that "the Georgia General Assembly, the first legislative body to
create such an exemption, was originally and now remains within
constitutional bounds in establishing a procedure for considering
alleged mental retardation that limits the exemption to those whose
mental deficiencies are significant enough to be provable beyond a
Three justices, however, disagreed, warning that
despite last year's U.S. Supreme Court decision banning execution of the
mentally retarded, the majority's decision to require the high standard
of proof is likely to result in the execution of mentally retarded
defendants in Georgia.
"Despite the federal ban on executing the mentally
retarded, Georgia's statute, and the majority decision upholding it,
does not prohibit the state from executing mentally retarded people,"
wrote Presiding Justice Leah W. Sears. "To the contrary, the State may
still execute people who are in all probability mentally retarded. The
state may execute people who are more than likely mentally retarded. The
State may even execute people who are almost certainly mentally retarded.
Only if a mentally retarded person succeeds in proving their retardation
beyond a reasonable doubt will his or her execution be halted," Sears
She was joined in the dissent by Chief Justice Norman
S. Fletcher and Justice Robert Benham. Head v. Hill, No.
S03X0560, Hill v. Head, No. S03A0559 (Sup. Ct. Ga. Oct. 6, 2003).
Natalie Z. DiSantis, a spokesperson for state
Attorney General Thurbert E. Baker, said her office was pleased with the
ruling. DiSantis noted that the decision was particularly satisfying
since Georgia, as the first state to bar executing retarded defendants,
also had been the first to enact a standard of proof in such claims. "We're
really pleased that that was affirmed again today," she said.
Deputy Attorney General Mary Beth Westmoreland,
Senior Assistant Attorney General Susan V. Boleyn and Assistant Attorney
General Beth A. Burton handled the case for the state.
Hill's lawyer, Thomas H. Dunn of the Georgia Resource
Center, who handled the case with Brian S. Kammer, said he was
disappointed by the decision.
The habeas judge found Hill mentally retarded, Dunn
said, but not to the high degree of proof Georgia requires. By all
rights, he added, Hill should not be executed, but Monday's decision
Out of the 38 states that have the death penalty, 19
states have a preponderance of the evidence standard for mental
retardation claims and five have a clear and convincing evidence
standard. Six other states are considering legislation setting a
preponderance of the evidence standard, Dunn said.
Georgia, Dunn said, has "gone from the vanguard to
being way out on our own."
Dunn said he will appeal to the U.S. Supreme Court
and if that fails to prohibit Hill's execution, he will file a federal
SERVING LIFE SENTENCE
Hill was serving a life sentence in Lee County
Correctional Institute for killing his girlfriend when he beat another
prisoner, Joseph Handspike, to death with a 2-by-6 board as Handspike
slept. Hill was tried in 1991 and sentenced to death for that killing.
At trial, his attorneys presented evidence that Hill was intellectually
slow, but his own expert testified that he was not mentally retarded.
His trial lawyers did not ask the jury for a guilty but mentally
retarded verdict. Hill's conviction and death sentence were affirmed on
direct appeal in 1993.
Hill filed a state petition for a writ of habeas
corpus in 1994, alleging that he was mentally retarded. Muscogee County
Superior Court Judge John D. Allen, assigned to hear the habeas petition,
ordered a jury trial on the issue of retardation and found that Hill
would only have to prove retardation by a preponderance of the evidence
The Georgia Supreme Court reversed that ruling in
1998, finding that Hill was not entitled to a jury trial under that
standard because he was tried after the effective date of a state law
giving defendants the chance to prove retardation at trial.
(Defendants tried and sentenced to die prior to the
1988 bar on executing the mentally retarded need only meet a
preponderance of the evidence standard when raising the retardation
issue in post-conviction appeals. But defendants tried on or after the
effective date of the 1988 law are required to prove retardation beyond
a reasonable doubt.)
STATE LAW DEFINITION
Under state law, mentally retarded means "having
significantly subaverage general intellectual functioning resulting in
or associated with impairments in adaptive behavior which manifested
during the developmental period." Typically, retardation involves an IQ
Allen, in a May 16, 2002 order, found that Hill had
not proven mental retardation beyond a reasonable doubt, Hill had
satisfied that burden of proof on one element of retardation, that he
had subaverage intellectual functioning, Allen wrote, but not on the
other element, that he suffered from impairments in adaptive behavior.
But four months later, after considering two recent
U.S. Supreme Court decisions -- Ring v. Arizona, 536 U.S. 584
(2002) and Atkins v. Virginia, 536 U.S. 304 (2002) -- Allen again
ordered a jury trial for Hill on mental retardation and said the
standard of proof should be the lower one, preponderance of the evidence.
Allen found that Georgia's high standard of proof
didn't afford proper due process protections in accordance with the
federal ban on executing the mentally retarded and was unconstitutional.
But Monday, the majority of Georgia justices concluded that Allen had
misapplied those U.S. Supreme Court decisions.
In Ring, the U.S. Supreme Court found that if
a state "makes an increase in a defendant's authorized punishment
contingent on the finding of a fact, that fact -- no matter how the
state labels it -- must be found by a jury beyond a reasonable doubt."
In Atkins, the U.S. Supreme Court barred execution of the
THE 'RING' DECISION
The Ring decision, Carley wrote, doesn't
establish a constitutional requirement for a jury trial on the issue of
mental retardation. That case involved issues that increase the
punishment defendants might face, not issues by which defendants seek to
limit their possible sentences, such as mental retardation, he wrote.
Carley added that "the fundamental fairness and
accuracy of determining mental retardation would not be increased by
having a jury rather than a trial judge make the determination." Hill
could have had a jury trial on that very issue, Carley wrote, but waived
that right at his 1991 trial.
Carley then addressed Allen's finding that the
Atkins bar on executing mentally retarded defendants couldn't be
enforced properly under Georgia's high standard of proof.
Nothing in Atkins, Carley wrote, tells states
to apply any particular standard of proof. "Therefore, we must apply
Georgia law," he wrote, "in a manner which is consistent with
established federal constitutional principles as they have been
announced with respect to other, comparable rights."
A claim of mental retardation is similar to a claim
of insanity, Carley wrote, in that both claims can exempt guilty persons
from a portion of the penalties they face. The U.S. Supreme Court long
ago approved the higher standard of proof for insanity claims, Carley
wrote, leading to the conclusion that a similar standard may be applied
constitutionally to retardation claims.
Any risks of wrongful execution, Carley concluded,
are "sufficiently counterbalanced by the joint safeguards of Georgia's
procedure for demonstrating incompetency to stand trial under the
preponderance of the evidence standard and mental retardation under the
beyond a reasonable doubt standard."
SEARS: CASE IS BEYOND PROCEDURES
Sears, however, wrote that the case was about more
than what procedures should be used to prove a particular defense. At
stake, she wrote, was whether Georgia's procedures that were designed to
guarantee a mentally retarded defendant's constitutional right to be
exempt from execution conform to constitutional guarantees of procedural
The consequences, Sears insisted, "of an erroneous
rejection of a capital defendant's claim of mental retardation are
extreme and irredeemable. In capital proceedings, especially, courts
should always demand fact-finding procedures that uphold a heightened
standard of reliability."
The mentally retarded have diminished capacities that
make them vulnerable "to a unique and significant risk of being
wrongfully executed," she wrote. They are more prone to make false
confessions, are less able to make showings of mitigating factors, are
often unable to help their attorneys and are frequently poor witnesses,
The majority opinion, she wrote, "subjects them to
this heightened risk, thereby increasing the likelihood of erroneous
rejections of retardation claims, which will invariably lead to wrongful
The Constitution, she wrote, cannot on the one hand "simultaneously
limit the state to the preponderance of the evidence standard when
seeking to prosecute a capital defendant who claims incompetence, yet
allow the state to impose the beyond a reasonable doubt standard when
that same defendant, after being convicted and sentenced to death,
claims mental retardation. The majority opinion errs by concluding
Georgia may have been ahead of the times in banning
the execution of the mentally retarded, but it is now the only state
with such a high standard of proof, Sears wrote. "I am convinced this
situation violates the tenants of due process as that concept is
embodied in our Federal Constitution. Therefore, I dissent."
263 Ga. 37
Supreme Court of Georgia
427 S.E.2.d 770
HILL v. THE STATE
March 15, 1993
Docket number: S92P1336
Warren Lee Hill was convicted of murder by a jury in Lee County and
sentenced to death. He appeals. We affirm. 
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
The evidence supports the conviction. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 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
(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
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.
247 Ga. 268 (257 SE2d 67) (1981) and State
260 Ga. 640, 647 (9) (398
SE2d 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 SE2d 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 five percent 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.
260 Ga. 49 (2) (389 SE2d 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 over-represented on others. On balance, neither women
nor blacks are significantly underrepresented either on venires as drawn,
or as present for court.  No "systematic" underrepresentation has
been shown. Duren v. Missouri, 439 U. S. 357 (99 SC 664, 58 LE2d 579)
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 SE2d 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
Since the aggravated assault conviction stands
vacated, Hill's other complaints about the aggravated assault count are
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
SE2d 168) (1985) (quoting from Wainwright v. Witt,
469 U. S. 412 (105 SC 844, 83 LE2d 841) (1985)).
There was no improper limitation of the voir dire
examination. Curry v. State,
255 Ga. 215 (2) (b) (336
SE2d 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. at 65-66 (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 SC 2633, 86 LE2d 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 with the Eighth
Amendment's heightened "need for reliability in the determination that
death is the appropriate punishment in a specific case."
Caldwell, supra, 472 U. S. at 340. Accord Holiday v.
258 Ga. 393, 399 (369
SE2d 241) (1988).
8. The jury was selected late one afternoon and
allowed to go home that evening, with the consent of the defendant. The
jury was to return the next morning to be sworn in and sequestered. See
15-12-142; Jones v. State,
243 Ga. 820 (3) (256 SE2d 907) (1979). The
next morning, one juror called in sick. The trial judge talked to her
himself, and reported that she was coughing and sounded quite ill. A
deputy sent to her home reported that she was out, but that she had
called to report that she had been to the doctor "to get her medicine."
The trial judge excused her and replaced her with an alternate.
A trial judge is authorized by OCGA
15-12-172 to replace a juror who "dies,
becomes ill, [or for some] other good cause shown to the court is found
to be unable to perform his duty. . . ." Id. Hill contends that the
trial judge failed adequately to investigate the need for excusing the
juror, noting that the trial judge failed to talk to the juror's doctor
to determine whether the juror was too ill to continue.
A trial court does have an obligation to investigate
the need to excuse an ill juror. It has been held that this is "especially
true" where the jury has begun its deliberations and the juror has
participated in those deliberations. Green v. Zant, 715 F2d 551, 556
(11th Cir. 1983).
Here, the juror was excused not only before the
beginning of deliberations, but before the presentation of any evidence
-- in fact, before the jury was even sworn. The trial judge personally
examined the juror. While he could have investigated further, we find no
abuse of discretion. Graham v. State,
171 Ga. App. 242 (5) (319 SE2d 484) (1984).
See also Forney v. State,
255 Ga. 316, 317 (1) (338
SE2d 252) (1986).
9. In his 17th enumeration of error, Hill raises an
issue of racial discrimination in the prosecutor's exercise of
peremptory challenges. See Batson v. Kentucky, 476 U. S. 79 (106 SC
1712, 90 LE2d 69) (1986). There were seven blacks on the panel of forty-two
qualified jurors. The prosecutor peremptorily struck three. The
remaining four served on the jury.
The prosecutor explained his strikes as follows:
The first of the three was conscientiously averse to
the death penalty. (Hill does not seriously dispute that this strike was
The prosecutor stated that he struck the second juror
because she was a "follower," and because she was of "limited mental
capacity" with a "lesser understanding of the English language." 
The prosecutor struck the third juror because he had
"independent reports" that he had been "cutting up" and "did not seem to
be taking this proceeding very seriously."
We held in Gamble v. State,
257 Ga. 325, 327 (357
SE2d 792) (1987) that:
The explanation offered for striking each black juror
must be evaluated in light of the explanations offered for the
prosecutor's other peremptory strikes, and, as well, in light of the
strength of the prima facie case. The persuasiveness of a proffered
explanation may be magnified or diminished by the persuasiveness of
companion explanations, and by the strength of the prima facie case.
A court charged with the duty of determining whether
the prosecutor has rebutted a prima facie case may be less troubled by
one relatively weak explanation for striking a black juror when all the
remaining explanations are persuasive than where several of the
prosecutor's proffered [explanations] are questionable. Similarly, a
weak prima facie case may be rebutted more readily than a strong one.
In this case, the prosecutor struck only one black
juror more than would have been statistically proportionate. Moreover,
the defendant, the victim and key witnesses were black, which "tend[s]
to undercut any motive to exclude [blacks] from the jury." Hernandez v.
New York, ---- U. S. ---- (111 SC 1859, 1872, 114 LE2d 395) (1991). The
trial court was authorized to conclude that the prosecutor's
explanations were sufficiently race neutral to overcome Hill's
accusation of racial discrimination in the exercise of peremptory
challenges. Ford v. State,
262 Ga. 558 (423 SE2d 245) (1992).
10. In his 18th enumeration of error, Hill contends
that the trial court improperly admitted extrinsic transaction evidence
relating to the 1985 murder for which Hill was incarcerated when he
committed the crime on trial. The State's proffer did not meet the first
and third requirements for admission of independent offenses as set
forth by this court in Williams v. State,
261 Ga. 640, 642 (409
SE2d 649) (1991). Nevertheless, we find no reversible error.
In the first place, because the jury knew that the crime on trial
occurred in prison and that Hill was an inmate, his character was
already unavoidably implicated to some extent before any evidence was
introduced about the extrinsic transaction. Secondly, the evidence
establishing Hill's guilt of the offense of murder is overwhelming. The
introduction of the facts of the prior crime did not measurably
contribute to the jury's guilty verdict.  Therefore, the error in the
admission of the extrinsic transaction evidence in the guilt phase of
the trial was harmless.
11. The state laid a sufficient foundation for the
admission of photographs of the 1985 extrinsic-crime victim, which the
jury properly considered at the sentencing phase of the trial. Williams
255 Ga. 97 (4) (335 SE2d 553) (1985).
12. During closing argument, while the prosecutor was
explaining to the jury that although Hill's motive for killing the
victim was unknown, motive was not an element of the case the state had
to prove, the prosecutor stated: "nobody knows the motive but Warren Lee
Hill, and he's not talking." Hill immediately objected and moved for a
mistrial. The prosecutor conceded the objection was good and apologized
for the comment, emphasizing, however, that the comment "was inadvertent,
and I did not realize what I had said until he made the motion for
I charge you that the last remark that Mr. Smith made
was inappropriate and has no place in this case. . . .
I charge you that a defendant in a criminal case is
under no duty to present any evidence tending to prove his innocence and
is not required to take the stand and testify in the case. If he elects
not to testify, no inference hurtful, harmful or adverse to the
defendant shall be drawn by the jury, nor shall any such fact be held
against him in any way whatsoever.
The comment was not so egregious as to be incurable
by the trial court. Lingerfelt v. State,
238 Ga. 355 (5) (233 SE2d 356) (1977). In
light of the inadvertence of the comment and the court's curative
instructions, the denial of Hill's motion for mistrial was not erroneous.
13. Pretermitting whether Hill has preserved his
objection to the court's omission to charge impeachment by proof of
conviction of a crime, compare McCoy v. State,
262 Ga. 699 (425 SE2d 646) (1993), with
Thomas v. State,
234 Ga. 615, 618 (216
SE2d 859) (1975), any error in the court's omission to charge
this specific ground of impeachment was clearly harmless considering the
facts of this case and the court's charge on credibility as a whole.
14. The defendant's burden-shifting complaint about
the charge on implied malice is without merit. Gooden v. State,
261 Ga. 691 (2) (410 SE2d 113) (1991). We
need not address his vagueness complaint because "[o]ne to whose conduct
a statute clearly applies may not successfully challenge it for
vagueness." Parker v. Levy, 417 U. S. 733, 756 (94 SC 2547, 41 LE2d 439)
15. Two witnesses testified in rebuttal for the state
at the sentencing phase of the trial. The name of one of these witnesses
was furnished to Hill before trial, and his attorneys interviewed him.
The witness, a prison inmate, testified more favorably to Hill than the
prosecutor had anticipated based on his investigator's pretrial
interviews with the witness. Therefore, the investigator was called by
the state to testify about the prior inconsistent statements of the
inmate witness. See Gibbons v. State,
248 Ga. 858 (286 SE2d 717) (1982). Hill
contends that the notice provisions of OCGA
17-10-2 were not complied with and the
testimony of these two witnesses should have been excluded.
Since this testimony was offered in rebuttal, and
since Hill had at least some notice, we find no error. Buttrum v. State,
249 Ga. 652 (9) (293 SE2d 334) (1982). See
also Alderman v. State,
254 Ga. 206 (8) (327 SE2d 168) (1985).
16. The trial court did not err by excluding evidence
Hill offered at the sentencing phase concerning the "personal
characteristics of the victim," including his bad character and criminal
record. Sermons v. State,
262 Ga. 286, 288 (417
SE2d 144) (1992). The general rule is that the character of
the victim is not relevant, and the defendant is no more entitled to
present such evidence than is the state. Bryant v. State,
249 Ga. 242, 243 (2) (290
SE2d 75) (1982).
17. When, at the sentencing phase of the trial,
defense counsel began questioning Hill's psychologist about his report
and the psychologist began testifying from it, the state asked to see
the report. Without objection, defense counsel furnished a copy to the
prosecutor. Since there was no objection to furnishing the report, any
issue of the state's right to see the report at that time has not been
preserved for review.
18. Although the trial court's explanatory remarks at
the outset of the sentencing phase trial contained a misstatement of the
law concerning the OCGA
17-10-30 (b) (2) statutory aggravating
circumstance, to which defense counsel did not object, the court's
instructions to the jury the next day, following the evidence and
closing argument, did not contain this misstatement. 
The court's charge, including its written
instructions to the jury and its oral instructions defining the term "aggravated
battery," was adequate to supply the jury with the legal definition of
aggravated battery and to sufficiently narrow the jury's sentencing
discretion under Davis v. State,
255 Ga. 588 (3) (c) (340
SE2d 862) (1986).
19. In his 38th through 42nd enumerations of error,
Hill contends the prosecutor argued improperly at the sentencing phase
of the trial, misstating the evidence, expressing personal opinions,
referring to the possibility of escape, and seeking to minimize the
importance of the jury's role. Since none of these objections was raised
at trial, our review is limited to determining whether there was
improper argument of such magnitude that "in reasonable probability [it]
changed the result of the trial." Todd v. State,
261 Ga. 766, 767 (2) (a) (410
SE2d 725) (1991).
Much of the argument about which Hill now complains
was not objectionable. A prosecutor is entitled to argue inferences from
the evidence, even if the inferences the prosecutor argues are not the
ones the defendant would like the jury to draw.
Moreover, while it would be improper to urge a death
penalty based upon the defendant's religious beliefs, or to urge that
the teachings of a particular religion command the imposition of a death
penalty in the case at hand, counsel may "bring to his use in the
discussion of the case well-established historical facts and may allude
to such principles of divine law relating to transactions of men as may
be appropriate to the case." [Cit.]
Conner v. State,
251 Ga. 113, 122-123 (303
SE2d 266) (1983).
Even assuming, as Hill contends, that the prosecutor
went beyond what was fully permissible in this regard, in view of the
brevity of the religious references (approximately one page of
transcript in a forty-nine-page argument) we do not find sufficient
prejudice to overcome the procedural default. Todd v. State, supra at
Finally, a defendant's future dangerousness is a
legitimate issue for argument. Ross v. State,
254 Ga. 22 (7) (326 SE2d 194) (1985).
The trial court did not err by denying Hill's motion
for new trial on the basis of complaints about the closing argument
raised for the first time after trial.
20. The trial court did not err by declining to
deliver Hill's requests to instruct the jury to assume that he would
spend the remainder of his life in prison if sentenced to life
imprisonment and that he would be electrocuted if sentenced to death.
Bennett v. State,
262 Ga. 149 (10) (b) (414
SE2d 218) (1992). The remaining defense requests to charge
were covered in substance by the instructions delivered by the court.
Pruitt v. State,
258 Ga. 583, 588 (13) (373
SE2d 192) (1988).
21. The state was not precluded from arguing the
presence of OCGA
17-10-30 (b) (2) and (b) (7) simply
because aggravated battery was an element of both circumstances. Lonchar
258 Ga. 447 (6) (369 SE2d 749) (1988).
22. The jury found three statutory aggravating
circumstances, b (1) (the murder was committed by an offender with a
prior record of conviction of a capital felony); b (2) (the murder
involved the commission of an aggravated battery); and b (7) (the murder
was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to the
victim). See OCGA
17-10-30. The evidence supports these
17-10-35 (c) (2); Jefferson v. State,
256 Ga. 821 (9) (353 SE2d 468) (1987).
Compare Davis v. State,
255 Ga. 588, 593 (3) (c) (340
SE2d 862) (1986). However, the jury's b (7) finding was
returned in the disjunctive. We agree with Hill that this finding should
have been returned in the conjunctive to ensure unanimity concerning the
necessary elements of the b (7) circumstances. Lipham v. State,
257 Ga. 808, 813 (7) (364
SE2d 840) (1988). Nevertheless, as in Lipham, the death
penalty may be affirmed on the basis of the remaining findings of
statutory aggravating circumstances. See Zant v. Stephens,
250 Ga. 97, 100-101 (297
SE2d 1) (1982).
23. We do not find that Hill's death sentence was
imposed as the result of impermissible passion, prejudice or other
arbitrary factor. OCGA
17-10-35 (c) (1). Hill's death sentence
is neither excessive nor disproportionate to penalties imposed in
similar cases, considering both the crime and the defendant. OCGA
17-10-35 (c) (3). The similar cases
listed in the Appendix support the imposition of the death penalty in
Spencer v. State,
260 Ga. 640 (398 SE2d 179) (1990); Kinsman
259 Ga. 89 (376 SE2d 845) (1989); Moon v.
258 Ga. 748 (375 SE2d 442) (1988); Childs
257 Ga. 243 (357 SE2d 48) (1987); Hicks v.
256 Ga. 715 (352 SE2d 762) (1987); Cook v.
255 Ga. 565 (340 SE2d 843) (1986); Walker
254 Ga. 149 (327 SE2d 475) (1985); Mincey
251 Ga. 255 (304 SE2d 882) (1983); Tucker
245 Ga. 68 (263 SE2d 109) (1980); Davis v.
241 Ga. 376 (247 SE2d 45) (1978); Stephens
237 Ga. 259 (227 SE2d 261) (1976).
John R. Parks, District Attorney, Michael J. Bowers,
Attorney General, Susan V. Boleyn, Senior Assistant Attorney General,
Rachelle L. Strausner, Staff Attorney, R. Rucker Smith, for appellee.
1. The crime occurred on August 17, 1990. He was
indicted in January 1991. The case went to trial on July 29, 1991. The
trial ended August 2, 1991. Hill's motion for new trial was denied June
5, 1992. The appeal was orally argued in this court on October 14, 1992.
2. Hill's data shows that of 730 jurors drawn for
service, 515 were present in court for roll call. Of the 730 jurors
drawn, 19.73 percent were black and 53.5 percent were women. Of the 515
jurors who showed up at court, 21.36 percent were black and 52.43
percent were women. Similar figures may be derived from the data
supplied for the three grand juries (and one supplemental list). These
figures compare favorably with a total county population (18 and older)
that is 22 percent black and 51 percent female.
3. The juror testified she did not like the death
penalty, could not vote for it, and did not believe in the principle of
"an eye for an eye and a tooth for a tooth." See Davis v. State,
263 Ga. 5 (10) (426 SE2d 844) (1993).
4. The transcript of the voir dire examination
provides some support for the prosecutor's explanation. Among other
things, when asked how she felt about a defendant in a criminal case,
the juror answered, "Not too bad. It's o.k." Asked if she had heard "anything
about the [recent] events up in Milwaukee," she answered, "No, sir. I
don't know where Milwaukee is." She did not understand the Biblical
concept of "an eye for an eye and a tooth for a tooth," and she did not
know what the word "mercy" meant.
5. This evidence would, of course, have been
admissible at the sentencing phase in any event. Ford v. State,
257 Ga. 461, 463 (360
SE2d 258) (1987).
6. In its initial explanatory comments, the court
told the jury that aggravated assault is a capital felony. Of course, it
is not. OCGA
16-5-21. The court's charge on the b (2)
circumstance did not include "capital felony," only "aggravated battery.
Warren Lee Hill