Mark Anthony Pruitt, 32, was
sentenced to death in September 1987 in Pulaski County for the
Montgomery County killing of 5-year-old Charise Walker. The girl was
found raped, sodomized and beaten Nov. 15, 1986, when she disappeared
Charise, who's skull was fractured and leg broken, died a
short time later. Mr. Pruitt was seen coming out of the woods where
Charise was found. He wasn't wearing any pants and had blood on him.
(258 Ga. 583)
(373 SE2d 192)
Murder. Pulaski Superior Court. Before Judge Lawson.
Mark Anthony Pruitt was convicted by a jury of
murder, rape, kidnapping with bodily injury, aggravated sodomy and
aggravated assault. The crime occurred in Montgomery County but
venue was changed to Pulaski County. See OCGA
17-7-150. Pruitt was sentenced to death for the murder.
1. Pruitt lived with his half-brother Charles
Loyd in a small trailer next door to Donnie Gene Walker and his
family. Walker's daughter, Charise, was five years old.
Pruitt and his half-brother spent the afternoon
of November 15, 1986 drinking with Donnie Gene's father and brother.
Loyd brought Pruitt home and Pruitt testified that he went to sleep.
Late that afternoon, a nearby neighbor passed by
the trailer and saw Pruitt sitting outside with Charise Walker in
his lap. Later, another neighbor saw Pruitt carrying the little girl
into some nearby woods.
Charise had been told by her father never to
leave the yard. When he noticed she was missing, he called together
his pastor, his friends and his neighbors and they began to search
for the girl.
By now it was dark. Pruitt was seen exiting the
woods, alone, wearing only a shirt. Donnie Gene Walker confronted
him behind the trailer, and asked him if he had seen his daughter.
Pruitt answered "No, I don't do that kind of stuff." He explained
that he had gone into the woods to use the bathroom and had lost his
pants. (There was testimony that the trailer was without water.)
Walker left to search the woods for his daughter.
The trailer was locked, so Pruitt climbed in through the back window
and was putting on his pants when another member of the search party
came up to the window to talk to Pruitt. He held on to Pruitt's arm
while Pruitt's half-brother unlocked the trailer. Pruitt was asked
again about the girl. He denied any knowledge of her disappearance,
and claimed now that he had entered the woods to masturbate, and had
lost his pants in the darkness. There was blood on his shirt, his
hands, and his sex organ. He took off the shirt and gave it to one
of the members of the search party.
Meanwhile, other members of the search party were
in the woods, searching with flashlights. They spotted her clothes
first, "hanging from a briar about twenty or thirty feet" from a,
place where "the leaves and all [on the ground] had been torn up.
William Sharpe described her location:
She was kinda in a thicket like, with briars and
bushes. . . . It looked like her clothes were thrown in and she was
thrown in behind them.
At this point, she was still alive, although
horribly injured. Danny Watts testified:
When I got to the woods there was about four or
five men standing around the little girl. I got between them -- I
got on my knees where she was at. She had blood running out of both
ears. She had blood running out of her mouth and nose. She had been
beaten up around the head. Her leg had a bone sticking up -- not
sticking through the skin but it was sticking up, you could see a
big lump there.
. . . I tried to keep the blood from running out
of her ears. I kept wiping it. It was coming out of her mouth and
nose. I kept wiping her, and the paramedics finally arrived.
Charise was taken to the hospital, but she died
from her injuries. Dr. Larry Howard performed the autopsy. Her anus
and her vagina had been penetrated by something consistent in size
and shape with a male sex organ. Both the vaginal and the anal
tracts were lacerated internally. Her leg was broken, and her face
bore a pattern lesion that was "highly suggestive" of having been
caused by a belt buckle. Her whole head had been subjected to "severe
impact injury and her skull was fractured in two places." Dr. Howard
testified that Charise died as the result of injuries to the head.
Pruitt was interrogated by law enforcement
officers after his arrest. He admitted taking the girl into the
woods and attempting to have sex with her but claimed that because
of her small size he was unsuccessful. He admitted hitting her with
his fist when she began screaming. At trial he claimed that he could
not remember any of the events of the evening, and that his
custodial statements were lies based on information supplied to him
2. The commitment hearing was conducted before a
Montgomery County magistrate on November 21, 1986. After the state
rested, the defendant attempted to present the testimony of eleven
state's witnesses, claiming a right to "fish all we want for the
evidence." The state objected, stating:
[D]efense counsel has indicated that he has no .
. . witnesses that would be relevant to this court's determination [of
probable cause], that all he is on is a fishing expedition, and,
therefore we would move this court to rule that probable cause has
been established and bind him over to the Superior Court . . . .
The magistrate agreed, and committed the
defendant. Three days later Pruitt was indicted. He thereafter filed
a motion in the trial court seeking a "complete" commitment hearing.
The motion was denied as moot, since Pruitt had by now been indicted.
The trial court did not err. "It is now well settled that errors, if
any, in a preliminary hearing will not, in and of themselves, afford
grounds for relief when the defendant is subsequently indicted by a
grand jury. [Cits.]" Walker v. State, 144 Ga.
App. 838 (242 SE2d 753) (1978).
Moreover, OCGA 17-7-23
The duty of a court of inquiry is simply to
determine whether there is sufficient reason to suspect the guilt of
the accused and to require him to appear and answer before the court
competent to try him. Whenever such probable cause exists, it is the
duty of the court to commit. [Emphasis supplied.]
There is no general right to discovery in a
criminal case, Castell v. State, 250 Ga. 776,
782 (301 SE2d 234) (1983), and nothing
in OCGA 17-7-28 creates one, see Day
v. State, 237 Ga. 538, 539 (228
SE2d 913) (1976), or authorizes the defendant to go on a "fishing
expedition" for evidence concededly beyond the scope of the real
purpose of the commitment hearing. There was no error in the
3. The trial court did not err by denying
Pruitt's motion to suppress. Pruitt had no legitimate expectation of
privacy in the articles of clothing he left in the woods. Oliver v.
United States, 466 U. S. 170 (104 SC 1735, 80 LE2d 214) (1984).
Since no law enforcement officers or other state officials were
involved in the case when Pruitt's neighbors entered his trailer and
obtained his shirt from him, the seizure of his bloody shirt by
private parties did not implicate the Fourth Amendment, and the
Fourth Amendment was not violated when the shirt was later turned
over to law enforcement officers. United States v. Jacobsen, 466 U.
S. 109 (104 SC 1652, 80 LE2d 85) (1984). Finally, the evidence shows
that Pruitt voluntarily consented to the taking of blood, hair and
fingernail-scraping samples. There is no merit to his contention
that there was not sufficient probable cause to justify his arrest.
Compare Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229)
(1983); United States v. Watson, 423 U. S. 411(96 SC 820, 46 LE2d
4. Pruitt complains of the testimony of two
witnesses, one of whom testified she saw Pruitt sitting on a car in
his yard with the victim in his lap and later saw him exiting the
woods alone and partially nude, and the other of whom testified she
saw Pruitt carry the girl into the woods.
There were no pre-trial confrontations involving
these two witnesses. Instead, their in-court testimony was entirely
based upon observations at the time of the [crime].' [Cit.]" Neil v.
Biggers, 409 U. S. 188, 198 (93 SC 375, 34 LE2d 401) (1972). Compare
Rivers v. State, 250 Ga. 303 (4) (298 SE2d 1)
(1982). That it was dusk when the two witnesses saw Pruitt,
that they did not know him personally, but only knew "of him" and
had seen him "from time to time," and other such matters of
credibility were proper subjects for cross-examination and closing
argument, but did not warrant the exclusion of their testimony.
Jones v. State, 258 Ga. 25 (3) (365 SE2d 263)
5. The court did not err by admitting selected
photographs not in violation of the rule set forth in Brown v. State,
250 Ga. 862 (5) (302 SE2d 347) (1983).
Nor did the court err by asking the autopsist to "explain to the
Court exactly what it is that each picture will illustrate for the
jury . . ." and by basing its ruling, in part, on the expert's
6. There was no abuse of discretion in the
court's denial of Pruitt's request that the state furnish proposed
jury instructions 24 hours before trial. See OCGA
5-5-24 (b); Rule 10.3 of the Ga.
Uniform Superior Court Rules.
7. John Wegel, a forensic serologist at the state
crime laboratory, testified that the fingernail scrapings from the
defendant 'were con-sumed in the analysis I made." His analysis
showed the scrapings to be dried, type "A" human blood. (Pruitt had
type "O" blood; the victim had type "A" blood.)
Pruitt filed a pre-trial "Motion to Suppress
Physical or Scientific Evidence not Tested by Defendant." In his 6th
enumeration of error, he contends the trial court erred by denying
this motion and frames the issue as:
When the state's scientific testing of evidence
consumes all the particular evidence, therefore prohibiting the
defendant from also testing it, does such loss deny the defendant's
right to confrontation or cross-examination and should the evidence
of the test results be excluded?
Appellant's brief, p. 35.
Pruitt's brief provides no citation to the record
where the trial court denied the motion. When the motion was argued
at a pre-trial hearing, the state responded:
[T]his is one of those motions that's best
handled at trial because when we get to the point of offering that
particular evidence then [Pruitt's attorney] would have to make a
timely motion . . . I think it's premature for the court to
entertain argument and authority at this particular point.
Transcript Hearing of August 19, 1987, p. 46.
The trial court did not rule on the motion at
this hearing. Later, the court filed a written order disposing of
most of Pruitt's pre-trial motions. Record, pp. 260-62. The one at
issue here was not ruled upon. At trial, the defense did not object
to any portion of the serologist's testimony, and Pruitt's attorney
specifically responded to the state's proffer of its exhibit number
52 (the only tangible evidence relating to the fingernail scrapings)
by stating: "I won't object to its admission."
We hold that the issue posed in this enumeration
of error has not been preserved for appellate review. Compare Baker
v. State, 250 Ga. 187 (2) (297 SE2d 9) (1982).
8. Pruitt received all discovery to which he was
entitled. See Ford v. State, 256 Ga. 375 (2)
(349 SE2d 361) (1986). The trial court did not err in its
handling of Pruitt's requests for information and discovery.
9. "Georgia insanity laws are not
constitutionally inadequate." Hicks v. State,
256 Ga. 715, 727 (16 C) (352 SE2d 762)
10. Since Pruitt is white, the trial court did
not err by declining to address his claim that the prosecutor
discriminated against blacks in the exercise of his peremptory
challenges. Skipper v. State, 257 Ga. 802,
805 (5) (364 SE2d 835) (1988). Nor did
the trial court err by allowing prospective jurors to be "death-qualified"
on voir dire. Id. at 806-07; Frazier v. State,
257 Ga. 690 (4) (362 SE2d 351) (1987).
The court granted the state's challenge to
another prospective juror after the juror testified that it would
violate his religious beliefs to consider imposing a death sentence,
and that he could not vote to impose a death sentence in any case.
The court's ruling was proper. Alderman v. State,
254 Ga. 206 (4) (327 SE2d 168) (1985).
12. Pruitt's eleventh enumeration of error is
answered by Strickland v. State, 250 Ga. 624,
626 (2) (300 SE2d 156) (1983), in
which we stated:
On appeal, a trial court's findings as to factual
determinations and credibility relating to the admissibility of a
confession will be upheld unless clearly erroneous. Crawford v.
State, 245 Ga. 89 (2) (263 SE2d 131) (1980).
In view of the evidence presented at the Jackson-Denno hearing, . .
. the trial court was authorized to find that the intoxication of
Strickland did not render him unable to make both a knowledgeable
waiver of his constitutional rights and a voluntary confession. See,
Fowler v. State, 246 Ga. 256 (3) (271 SE2d
13. Enumerations 17 through 24 complain of the
court's refusal to give certain of Pruitt's requests to charge.
A requested charge should be delivered if it is a
correct statement of law that is pertinent and material to an issue
in the case and not substantially covered by the charge actually
given. Horton v. State, 249 Ga. 871,
874 (6) (295 SE2d 281) (1982); Kelly
v. State, 241 Ga. 190 (4) (243 SE2d 857)
(a) Pruitt's requested charge numbers 21 and 23
were covered in substance by the court's general charge and the
court's refusal to give these requested charges was not error.
(b) Since Pruitt raised no issue of insanity or
mental illness, see Rule 31.4 of the Ga. Uniform Superior Court
Rules, his requests to charge numbers 31 and 32 were not pertinent
or material to an issue in the case.
(c) Request number 33 states, in part: "[O]ne
voluntarily under the influence of alcohol, drugs or narcotics is
presumed to intend the legitimate consequences of his act. . . ."
Request number 51 states, in part: "I charge you that men are
presumed to intend the natural consequences of their actions." Such
instructions may have been permissible at one time, but not now. See
Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979).
These requests to charge contained incorrect statements of law, and
the trial court did not err by refusing to give them. Frazier v.
State, 257 Ga. 690 (19) (362 SE2d 351) (1987).
(d) Pruitt's request to charge number 29 would
have instructed the jury to acquit unless "satisfied beyond a
reasonable doubt as to the accuracy of the witness' identification
of the defendant. . . ."
Identity was an essential element of the crimes
for which Pruitt was on trial, and the jury was required to find
from the evidence as a whole that each essential element of the
crimes charged, including identity, had been proved beyond a
reasonable doubt before it could convict Pruitt on all counts.
However, Pruitt's requested charge on identity was inaccurate and
misleading, and the trial court did not err by refusing to give it.
(e) Pruitt requested a charge on child
molestation as a lesser included offense of the rape charge. The
offense of child molestation is defined in OCGA
16-6-4 (a) as follows:
A person commits the offense of child molestation
when he does any immoral or indecent act to or in the presence of or
with any child under the age of fourteen years with the intent to
arouse or satisfy the sexual desires of either the child or the
The trial court refused to give this request on
the ground that child molestation was not a lesser included offense
of rape. However, we held recently that the offense of child
molestation may be included as a matter of fact in an indictment
charging the offense of rape, where the victim is under the age of
14. Parker v. State, 256 Ga. 543 (2) (350
SE2d 570) (1986). See State v. Estevez,
232 Ga. 316 (206 SE2d 475) (1974).
Under State v. Stonaker, 236 Ga. 1 (3) (222
SE2d 354) (1976), the trial court should have given this
request to charge, and the refusal to give it was error requiring
the reversal of Pruitt's conviction for rape. Parker v. State,
(f) Our disposition of subdivision (e) above,
renders moot Pruitt's contentions concerning the trial court's
refusal to charge two additional offenses allegedly included in the
offense of rape.
14. In enumerations of error 25 through 27,
Pruitt contends the court erred by giving three of the state's
requests to charge. However, at the conclusion of the court's charge,
Pruitt's attorney was asked if he had any exceptions to the charge,
The Court: Are there any exceptions to the charge
from the state?
Mr. Wiggins: None from the state.
The Court: From the defendant? It is not
necessary for you to repeat your exceptions to the fact the Court
did not give your requests to charge. Anything else?
Mr. Straughan [for the defendant]: I don't think
so. [Emphasis supplied.]
If the trial court asks whether or not there are
any objections to the charge, counsel must either state his
objections or reserve his right to object on motion for new trial or
on appeal. Jackson v. State, 246 Ga. 459 (271
SE2d 855) (1980). Here, as to the state's requests to charge,
defense counsel did neither, and the contentions raised in these
enumerations of error have not been preserved for appellate review.
Rivers v. State, 250 Ga. 303 (7) (298 SE2d 1)
(1982). Cf. Wadley v. State, 258 Ga.
465 (369 SE2d 734) (1988).
15. Since the rape conviction must be set aside
in any event, see Division 13 (e) above, we need not address
Pruitt's contention that, since the count of the indictment charging
kidnapping with bodily injury specified rape as a bodily injury
inflicted by the defendant upon his victim, the rape conviction
merges into the conviction for kidnapping with bodily injury. We
hold that there is no merger as to any of the remaining three counts
for which Pruitt was sentenced, i.e., malice murder, kidnapping with
bodily injury, and aggravated sodomy. See Waters v. State,
248 Ga. 355 (11) (283 SE2d 238) (1981).
16. The jury found the following statutory
The offense of murder was committed while the
defendant was engaged in the commission of another capital felony,
to wit: rape.
The offense of murder was committed while the
defendant was engaged in the commission of another capital felony,
to wit: kidnapping with bodily injury.
The offense of murder was outrageously or
wantonly vile, horrible, or inhuman in that it involved torture and
depravity of mind.
See OCGA 17-10-30
(b) (2) and (b) (7). The evidence supports these findings. OCGA
17-10-30 (c) (2). Whether or not the
rape portion of the jury's b (2) finding is valid, in view of our
reversal of the rape conviction, the other findings are sufficient
to support the imposition of the death penalty. Compare Parker v.
State, supra, 256 Ga. at 551 (12).
17. The death sentence was not imposed under the
influence of impermissible passion, prejudice, or other arbitrary
factor. OCGA 17-10-35 (c) (1).
18. The death sentence is justified by the
circumstances of this crime, and is neither excessive nor
disproportionate to sentences imposed in similar cases, considering
the crime and the defendant. OCGA 17-10-35
19. The conviction for rape is reversed. The
convictions for malice murder, kidnapping with bodily injury and
aggravated sodomy are affirmed. The death sentence is affirmed.
State, 236 Ga. 874 (226
SE2d 63) (1976).
1 The crime occurred November 15,
1986. Pruitt was arrested for kidnapping on November 15, 1986, and
charged with murder, rape, child molestation, aggravated battery, and
aggravated assault on November 17, 1986. After a change of venue was
granted, he was indicted in Montgomery County on November 24, 1986. The
trial began on September 14, 1987, and he was sentenced to death on
September 18, 1987. A motion for new trial was filed September 23, 1987,
and denied December 15, 1987. The case was docketed in this court
February 19, 1988, and the case was argued on April 12, 1988.
James L. Wiggins, District Attorney,
Michael J. Bowers, Attorney General, Dennis R. Dunn,
Assistant Attorney General, for appellee.
Straughan & Straughan, Mark W. Straughan,
Mark Anthony Pruitt