(270 Ga. 745)
(514 SE2d 639)
Murder. Lumpkin Superior Court. Before Judge Stone.
1. The evidence shows that in April 1992 Myrtle
Ricketts was renting two trailer homes on her property, one to Tammy
Lovell and one to Vicky Gottschalk. Ms. Gottschalk lived with her
ten-year-old daughter, Wendy Nicole Vincent. Ms. Lovell lived with
her two young sons. Pruitt is Lovell's ex-husband and in early April
1992 Lovell and Pruitt were attempting a reconciliation; Pruitt
sometimes stayed the night at his ex-wife's trailer.
At about midnight on April 9, 1992, Pruitt
arrived at Lovell's trailer. He was drunk and violent and he and
Lovell got into an argument. Lovell told him she did not want him
there. At about 1:15 a.m., Pruitt angrily left, punching Lovell's
porch light as he was leaving and cutting his hand. Pruitt was
wearing blue jeans, a flannel shirt, and Reebok tennis shoes.
At about the same time, Ms. Gottschalk left her
home to work a night shift; her daughter remained sleeping in her
trailer. The trailers share a common driveway and Gottschalk had to
wait for Pruitt to pull out first.
Shortly thereafter, Lovell looked out her window
and saw a man she assumed was Pruitt unscrewing the porch light on
the Gottschalk trailer. She looked away to attend to a sick child
and, when she looked out again, the area was dark.
At about 3:00 a.m., Pruitt entered a convenience
store and asked to use the bathroom. The clerk recognized Pruitt
because he was a regular customer, but she did not know his name.
Pruitt had blood on him, but the clerk testified that this was not
unusual because Pruitt was a chicken catcher and chicken catchers
usually have blood on them. Pruitt was in the bathroom for about ten
minutes, and then left the store.
At about 3:45 a.m., Pruitt returned and went back
into the bathroom for five minutes. He emerged, stared at the clerk
while she helped another customer, and then left. When the clerk
checked the bathroom shortly thereafter, paper towels and Comet were
strewn about, and the water had been left running. She testified
that only Pruitt had used the bathroom since she cleaned it. A
friend of Pruitt testified that he called her at 3:00 or
3:30 a.m. and told her he needed to talk because he had "done
something bad." She told him he could not come over because her
child was sick.
Pruitt returned to his ex-wife's trailer and she
let him in. He undressed, leaving the clothes he had been wearing in
a pile, and showered. At about 6:30 a.m., Ms. Gottschalk returned
home and found her daughter lying dead on the bedroom floor. Wendy
had been stabbed several times and her throat was cut.
The medical examiner also testified that there
was trauma to her vagina and anus. Semen stains on the bed indicated
that the assault began there and the victim was then moved to the
floor and killed. Ms. Gottschalk screamed for help and Pruitt and
Lovell came over. Pruitt knelt beside the victim's body and felt for
her pulse; he was not wearing the clothes he had worn the night
Because neither trailer had a phone, Lovell went
to Ms. Ricketts's house to call the police. When Lovell and Ricketts
returned to the Gottschalk trailer, Ricketts saw Pruitt reach up and
screw the porch light bulb until the light came on. She did not see
him try the switch first.
The police became suspicious of Pruitt due to the
description of his movements during the last few hours, and because
he had scratches and cuts on his hands. Lovell consented to a search
of her trailer and the police noticed bloodstains on the clothes
Pruitt had been wearing the previous night. Pruitt was arrested.
A broken window screen at the Gottschalk trailer
indicated the assailant's entry point, and beneath the window inside
the trailer was a vinyl chair containing a partial shoe print. A
State expert determined that this shoe print matched Pruitt's
Type O blood was found on the jeans and shirt
that Pruitt had been wearing the night of the murder, and on the
steering wheel cover in his car. At the Gottschalk trailer, type A
blood was found on the porch light bulb, the screen door latch, and
near the entry window. Pruitt is type A and the victim was type O.
Inside the victim's bedroom, hairs consistent
with Pruitt's head hair were found on the bedroom floor, a bed sheet,
a pillow, and the victim's body, panties, socks and shirt. Hairs
consistent with Pruitt's pubic hair were found on the bed sheet and
the bedroom floor. Fibers found on the bed sheet microscopically
matched fibers from the jeans worn by Pruitt the night of the murder.
Gottschalk testified that Pruitt had never been a
guest in her home; the only time she had ever seen him in her
trailer was the brief time he felt for the victim's pulse on the
morning of April 10, 1992. Semen was discovered in the victim's anus
and DNA extracted from the semen matched Pruitt. The State's DNA
expert testified that the frequency of this DNA profile among
Caucasians is one in seven billion.
The evidence was sufficient to enable a rational
trier of fact to find Pruitt guilty of the crimes charged beyond a
reasonable doubt. The evidence was also sufficient to enable the
jury to find the existence of the statutory aggravating
circumstances beyond a reasonable doubt.
2. In 1996, the trial court ordered a change of
venue from Lumpkin County to Cherokee County. However, pursuant to
OCGA 17-7-150 (a) (3), the trial court
ordered that the jury would be selected from Cherokee County, but
that the trial would physically take place in Lumpkin County. Pruitt
complains that this procedure was found to be reversible error in
Hardwick v. State. In Hardwick, this Court held that Uniform
Superior Court Rule 19.2 (B), which provided for the trial of a case
in the county of venue with a jury selected from the transfer county,
conflicted with OCGA 17-7-150 (a) and
was therefore unenforceable. The Court stated that the General
Assembly "would have to enact legislation in order to allow [this
On July 1, 1995, the General Assembly did just
that, amending the statute to read, in part: "by the exercise of
discretion by the judge the trial jury may be selected from
qualified jurors of the transfer county, although the trial of the
criminal case may take place in the county of the venue of the
alleged crime." The trial court's order therefore does not violate
Hardwick and, since the statutory amendment shall apply "to all
criminal cases in which the county of transfer has not been
designated by court order," the trial court's 1996 venue order was
timely. OCGA 17-7-150 (a) (3) is also
3. Pruitt complains that his constitutional right
to a speedy trial was violated. He was arrested in April 1992 and
not tried until September 1996, and he was incarcerated while
awaiting trial. However, the record reveals that much of the delay
is attributable to the defense, in that Pruitt repeatedly announced
that his experts were not ready for scheduled hearings or trial, and
he asked for a delay in the proceedings so that plea negotiations
could be conducted. Further, Pruitt did not assert his
constitutional right to a speedy trial until May 1996, and he never
asserted his statutory right to a speedy trial. Nor has Pruitt
brought forth evidence that the delay impaired his defense.
Accordingly, the trial court did not err by denying Pruitt's motion
to dismiss for lack of a speedy trial.
4. Before trial, Pruitt moved to exclude the
State's DNA evidence as unreliable under Caldwell v. State. At a
pretrial hearing, the State's DNA experts testified extensively
about the DNA testing procedures, probability calculations,
precautionary measures, standards, and protocol at the State Crime
Lab. Although the defense had its own DNA expert, Pruitt presented
no evidence to challenge the methodology of the tests or the results.
After viewing the evidence, we conclude that the trial court did not
err by ruling that the general scientific principles and techniques
involved in the DNA testing were valid and capable of producing
reliable results, and that the Crime Lab substantially performed the
scientific procedures in an acceptable manner. The DNA evidence was
5. The indictment was based on legal and
6. The Georgia statutes providing for the
imposition of the death penalty are not unconstitutional. The
Unified Appeal Procedure is also not unconstitutional. Execution by
electrocution is not cruel and unusual punishment.
7. There is no evidence that any cognizable group
was underrepresented in the Lumpkin County grand jury pool, or that
the method of selecting individual grand jurors was improper.
8. After the trial court ordered that the jury
would be selected from Cherokee County, Pruitt moved for a
continuance and for funds to hire an expert to conduct a study to
determine if the opinions of people aged 18-34 differed from the
opinions of people aged 35-44 in Cherokee County. The trial court
denied the motion for a continuance after finding that Pruitt knew
in May 1996 that a demographic study would take eight to ten weeks
and that Cherokee County was the transfer county, but waited until
July 1996 (eight weeks before trial) to request a continuance to
conduct the study. As a motion for expert assistance must be timely,
we conclude that the trial court's denial of the continuance was not
In addition, the denial of funds to hire the
expert was not an abuse of discretion because, since there was no
evidence that young people were systematically excluded from the
traverse jury pool in Cherokee County, Pruitt failed to show why
such a study was critical to his defense. " 'The granting or denial
of a motion for appointment of expert witnesses lies within the
sound discretion of the trial court.' " We find no error.
9. The death qualification of prospective jurors
is not unconstitutional.
10. The trial court did not err by asking the
OCGA 15-12-164 voir dire questions to
the prospective jurors. Pruitt lacks standing to challenge the
constitutionality of the OCGA 15-12-164
(a) (4) question regarding conscientious objection to the death
penalty because "[t]he death qualification voir dire in this case
was more extensive and detailed than that provided by OCGA
15-12-164 (a) (4) and the record
indicates that no potential juror was excused from serving or
declared competent to serve based solely on his or her answer to the
(a) (4) statutory question."
11. Pruitt complains that the trial court
improperly restricted his voir dire of prospective jurors. We
disagree. "The scope of voir dire is largely left to the trial
court's discretion, and the voir dire in this case was broad enough
to ascertain the fairness and impartiality of the prospective jurors."
12. "The proper standard for determining the
disqualification of a prospective juror based upon his views on
capital punishment 'is whether the juror's views would prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.' " "The relevant
inquiry on appeal is whether the trial court's finding that a
prospective juror is [or is not] disqualified is supported by the
record as a whole." A trial court's finding that a prospective juror
is or is not disqualified, including the trial court's resolution of
any equivocations or conflicts in the prospective juror's responses,
is given deference by an appellate court. "Whether to strike a juror
for cause is within the discretion of the trial court and the trial
court's rulings are proper absent some manifest abuse of discretion."
There are three prospective jurors Pruitt claims
should have been excused for cause due to their responses regarding
the death penalty. Although all three prospective jurors expressed a
strong preference for the death penalty, they also stated that they
could consider all the circumstances and both life and death as
possible sentences. Viewing the record as a whole and giving
deference to the trial court, we cannot conclude that the trial
court abused its discretion in qualifying these prospective jurors.
Pruitt also objects to the disqualification of four prospective
jurors due to their opposition to the death penalty. The record
reveals that these jurors all firmly and unequivocally stated that
they could not vote to impose a death sentence under any
circumstances. Therefore, the trial court did not abuse its
discretion by excusing these jurors for cause.
13. Pruitt complains about another prospective
juror who was excused for cause. That juror stated that the legal
system was unfair because he believed that his brother had been
convicted in an unfair trial where witnesses had lied. He said he
did not think he could lay aside the bias he felt against the State,
and that he might hold the State to a higher burden of proof. "Whether
to strike a juror for cause lies within the sound discretion of the
trial court," and we cannot conclude that the trial abused its
discretion in excusing this juror.
14. The written list of alleged statutory
aggravating circumstances was properly sent out with the jury in
accordance with OCGA 17-10-30 (c). It
was also not error for the trial court to decline to send a written
copy of the court's charge out with the jury.
15. Pruitt claims that the trial court erred in
denying his motion to suppress the out-of-court identification
evidence because Shirley Roach, the convenience store clerk who
identified Pruitt, was subjected to an impermissibly suggestive
photo lineup. Although there was conflicting evidence about how the
lineup was conducted and there was evidence that Ms. Roach saw
Pruitt's photograph in the newspaper before the lineup, we conclude
that there was no substantial likelihood of misidentification. Ms.
Roach repeatedly and unequivocally testified that Pruitt was a
regular customer who had been in her store many times, and that she
recognized his face but did not know his name. She knew that he was
employed as a chicken catcher, and even remembered that he used to
come into her store with his father. She testified that she did not
base her identification on the photos because, "I already knew him
from the store before. I didn't need to see no picture." She also
had reason to remember that he was in her store on the night of the
murder because he messed up the bathroom she had just cleaned.
16. Pruitt's contention that the shoe print
comparison evidence was unreliable and should have been suppressed
is without merit. The warrantless seizure of Pruitt's shoes, which
he was wearing when he was arrested, was proper.
17. Pruitt complains that the trial court erred
by denying his motion for adequate compensation of counsel. "However,
because there is not any proof that the alleged inadequate
compensation of counsel denied [Pruitt] effective assistance of
counsel, the attorney fee issue is not properly before us."
18. In August 1995, thirteen months before trial,
the trial court learned that the district attorney had hired
Pruitt's lead counsel, Robert Chandler, the previous month to
represent him in an unrelated personal matter. There is no evidence
that the district attorney intended to interfere with Pruitt's
representation when he hired Chandler. Although Chandler stated that
his representation of the district attorney would have no effect on
his representation of Pruitt, the trial court determined that this
relationship constituted a conflict. The trial court appointed
independent counsel to advise Pruitt, and a hearing pursuant to
United States v. Garcia was held in October 1995. At the Garcia
hearing, Pruitt was extensively advised about his Sixth Amendment
right to conflict-free representation, and questioned at length
about his understanding of this right. Pruitt waived his right to
conflict-free representation. However, in January 1996, Pruitt
changed his mind, and the trial court removed Chandler. In March
1996, the trial court appointed new lead counsel for Pruitt.
Pruitt complains that the hiring of his original
lead counsel by the district attorney caused an irreconcilable
conflict, and therefore reversible error, because it led to his
counsel's disqualification. The concurrent representation of a
defendant in a capital case and the district attorney seeking the
death penalty against the defendant is an obvious conflict.
However, without addressing the issue of waiver,
we conclude that Pruitt does not show any harm resulting from this
simultaneous representation. The conflict was resolved in January
1996 when the trial court removed Chandler, at the defendant's
request. New lead counsel was appointed for Pruitt six months before
trial, and Pruitt had the same co-counsel throughout his case. There
is no evidence that Chandler's performance was affected during the
simultaneous representation, or that his removal affected Pruitt's
representation at trial. In order to prevail on this claim, Pruitt
must show the existence of an actual conflict of interest that
adversely affected his lawyer's performance. Because Pruitt does not
show that the representation he received was deficient in any
respect, we find no error.
19. Based on Chandler's representation of the
district attorney outlined in the previous enumeration, Pruitt moved
to disqualify the district attorney due to conflict of interest and
appearance of impropriety. While we do not condone the actions of
the district attorney, this is not a situation where the prosecutor
previously represented the defendant, and there is no evidence that
the district attorney gained any information about Pruitt's defense
through his personal retention of one of Pruitt's attorneys. In fact,
Pruitt does not allege that Chandler divulged any information
acquired in the representation of Pruitt to the district attorney,
or that Chandler assisted the prosecution in any way. Therefore, we
find no error in the denial of the motion to disqualify the district
20. The district attorney agreed to a consent
order that opened his file to the defense, and he announced at a
pretrial hearing that the defendant had been provided with
everything in the file, except for work product. About three weeks
before trial, the district attorney discovered a box of material
gathered during the investigation of the case and turned it over to
the defense. Pruitt claims prosecutorial misconduct in the failure
of the State to provide this material until the eve of trial. The
record reveals that this box was misplaced, and promptly turned over
to the defense when discovered. Moreover, the record shows that the
box was probably misplaced because it contained material that had
been deemed worthless to the investigation, such as soda cans taken
from the crime scene, a mold of Pruitt's teeth, the original
affidavits for the search warrants, a knife sheath, a flashlight
taken from Pruitt's ex-wife's car, and statements from EMTs who
arrived at the crime scene. Pruitt does not allege that there was
any evidence beneficial to the defense in this box, and nothing in
the box was used by the State at trial. As there is no evidence that
the State deliberately withheld evidence or that Pruitt was harmed
by the late disclosure of the box, we conclude that Pruitt was not
denied a fair trial due to prosecutorial misconduct.
22. While the jury was eating a meal during the
guilt-innocence phase, the assistant manager of the restaurant
entered their private dining area and said, "He is not guilty." The
bailiffs removed him. Upon notification of this incident, the trial
court questioned each juror. Every juror had heard the improper
comment, but all stated that they felt the comment was inappropriate
and that it would not affect their ability to be impartial. The
jurors also stated that there had been some discussion about the
stupidity of the man who had made the comment, but there had been no
discussion about the merits of the case. The trial court instructed
each juror on the presumption of innocence and the burden of proof.
When there is an improper communication to a juror, there is a
presumption of harm and the burden is on the State to show the lack
thereof. "However, where the substance of the communication is
established without contradiction, the facts themselves may
establish the lack of prejudice or harm to the defendant." The
evidence establishes that the improper communication in this case
did not affect the impartiality of the jurors, and the trial court
therefore did not err by denying Pruitt's motion for mistrial.
23. Pruitt claims that the jury saw him outside
the courtroom in shackles. When the defendant was being escorted
from the jail to the courtroom one morning, a van carrying the
jurors drove by. However, Pruitt was only a few feet outside the
doorway of the jail, and the sheriff saw the van coming and stepped
in front of Pruitt to obscure him. The trial court questioned each
juror and it is clear that no juror saw the defendant that morning.
Therefore, this contention is without merit.
24. The admission of pre-autopsy photographs of
the victim was not error.
25. The arrest warrant was valid.
27. Pruitt complains that the trial court erred
by denying his motion for a psychological evaluation during the
trial. At the beginning of the sentencing phase, Pruitt's counsel
requested a psychological examination for their client. They stated
that Pruitt was acting irrationally, but the trial court determined
that the sole basis for this claim was that Pruitt told his counsel
after conviction that he preferred a death sentence and would not
testify in mitigation. Upon questioning by the trial court, Pruitt
stated that he understood his decision, and knew his right to
testify and present mitigation evidence. The trial court noted there
had never been any indication that Pruitt was incompetent or had
mental problems, and it found that Pruitt's decision was made
knowingly and intelligently. After having been informed, a competent
defendant, and not his counsel, makes the ultimate decision about
whether to testify or present mitigation evidence. We conclude that
the trial court did not err by denying the motion for a
psychological examination during the trial.
28. The death sentence in this case was not
imposed under the influence of passion, prejudice, or other
arbitrary factor. The death sentence is also not disproportionate to
the penalty imposed in similar cases, considering both the crimes
and the defendant. The cases listed in the Appendix support the
imposition of the death penalty in this case as they involve a
deliberate murder during the commission of a rape or kidnapping with
Darrell E. Wilson, District Attorney, Thurbert E.
Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Beth A. Burton, Assistant Attorney General, for appellee.
Whelchel & Dunlap, Thomas M. Cole, Summer &
Summer, Chandelle T. Summer, Valpey & Walker, Gregory W. Valpey,
DECIDED MARCH 19, 1999 -- RECONSIDERATION DENIED
APRIL 1, 1999.