Pruitt v. State

• Decision Date: 14 May 2007
• Docket Number: No. S07A0200.,S07A0200.
• Citation: 282 Ga. 30,644 S.E.2d 837
• Parties: PRUITT v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 30

644 S.E.2d 837

PRUITT v. The STATE.

No. S07A0200.

Supreme Court of Georgia.

May 14, 2007.

David Stephen Klein, David S. Klein PC, Augusta, for Appellant.

Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

Appellant Kenneth Pruitt and his co-indictee James Willis Looper were tried together for the murder of Gary Collins and crimes connected thereto. Appellant Pruitt was convicted of the felony murder and armed robbery of Collins and possession of a firearm during the commission of the crimes.¹

The State presented evidence the victim was a drug dealer who had sold cocaine on credit to co-defendant Looper and Looper's wife on April 8, 2002, and the Loopers had split the drugs with appellant and his girlfriend. The victim repeatedly left messages on the cellular phones of both Loopers in an effort to collect the debt. On April 11, 2002, Looper and appellant were at the mobile home appellant shared with his girlfriend, and decided to meet the victim at the Loopers' duplex in order to obtain more drugs under the pretext they were going to pay the outstanding debt. Appellant and Looper together left the mobile home appellant shared with his girlfriend and went to the duplex occupied by Looper and his wife. Once there, the two men sat on the front porch drinking beer and talking. The occupant of the other unit of the duplex returned home and walked over to the two men. Looper advised her and her male companion to leave the premises because "something was fixing to go down." Shortly thereafter, the other tenant and her guest left. The victim drove with his girlfriend to the Looper duplex and spoke with co-defendant Looper and appellant on the front porch. The victim's girlfriend testified the victim entered the apartment with the two men while she remained in the locked car. The victim did not exit the apartment and when Looper left the apartment, he was carrying the victim's cellular telephone and pager. Looper pointed a gun at the victim's girlfriend, thereby gaining access to the driver's seat of the victim's car, and appellant got in the backseat of the victim's car. The duo drove off in the car with the victim's girlfriend in the front passenger seat.

The victim's body was found in the Loopers' unit of the duplex on April 13. An autopsy revealed he had been shot in the neck, perforating the left carotid artery and the jugular vein, and in the upper right chest, perforating the aorta, from a distance of less than eight feet. A spent bullet was recovered from the victim's body and another was found imbedded in a wall of the duplex's living room. A Lorcin .380 pistol owned by Kay Wimberly, the woman with whom appellant lived, was determined by a firearms expert to have been the murder weapon.

Looper's wife testified appellant said he had shot the victim twice and Looper told her appellant had shot the victim after the victim had entered the duplex and Looper had locked the door behind him. Appellant's girlfriend identified the murder weapon as a gun which belonged to her and which she kept hidden under her mattress in the mobile home she shared with appellant. She testified that both appellant and Looper knew she owned a gun and that she had not given her gun to either of them. The victim's girlfriend, Keisha Wheeler, testified appellant told her the victim was dead and that they had shot him twice.

1. Appellant contends the evidence was insufficient to authorize his conviction for armed robbery because there was no evidence he possessed the cellular phone and pager taken from the victim, and the evidence was insufficient to authorize the conviction for felony murder because there was no evidence appellant had the requisite intent and no evidence corroborating the testimony of his co-defendant that the duo were parties to the crimes and that appellant was the person who shot the victim.

After reviewing the trial transcript, we conclude there was sufficient evidence of appellant's direct culpability to authorize the jury to conclude beyond a reasonable doubt that appellant fired the shots that killed the victim. Co-defendant Looper's testimony that appellant fired the fatal shots was corroborated by the testimony of Looper's former wife that appellant told her he had shot the victim twice. Hewitt v. State, 277 Ga. 327(1a), 588 S.E.2d 722 (2003) (accomplice's testimony must be corroborated to support a conviction and slight evidence of corroboration connecting the defendant to a crime is legally sufficient).

There was also sufficient evidence to authorize the jury to conclude Looper fired the fatal shots and appellant was a party to that crime and to the armed robbery which netted the victim's cellular phone and pager. "Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of the crime only if he: (1)[d]irectly commits the crime; ... (3)[i]ntentionally aids or abets in the commission of the crime; or (4)[i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20. If one other than appellant was the actual perpetrator of the murder and armed robbery, appellant's "[m]ere presence at the scene ... [is] not sufficient evidence to establish that defendant was a party to the crime. [Cit.]. Proof that the defendant shares a common criminal intent with the actual perpetrators is necessary [cit.], and may be inferred from the defendant's conduct before, during, and after the commission of the crime[s]. [Cit.]." Eckman v. State, 274 Ga. 63(1), 548 S.E.2d 310 (2001) "To warrant a conviction on circumstantial evidence, the proved facts shall ... exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6. Where the evidence authorizes the jury to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the jury's finding will not be disturbed unless the guilty verdicts are insupportable as a matter of law. Foster v. State, 273 Ga. 34(1), 537 S.E.2d 659 (2000).

Appellant shared with Looper the drugs purchased from the victim on credit and was with Looper prior to, during, and after the victim was killed. He was with Looper when Looper warned the neighbors that "something was going down," and urged them to leave. He waited with Looper for the victim and entered the duplex with the victim and Looper. After the shooting, appellant got in the victim's car with Looper and returned with him and the victim's girlfriend to the mobile home where appellant lived. The victim's girlfriend testified appellant told her "they," meaning Looper and appellant, had shot the victim twice. In addition, appellant lived with the owner of the murder weapon and had opportunity to remove the gun from its hiding place under the mattress. There was sufficient evidence from which the jury could conclude beyond a reasonable doubt that appellant was guilty of the crimes as a party. Hewitt v. State, supra, 277 Ga. at 329, 588 S.E.2d 722; Brown v. State, 277 Ga. 623(1), 593 S.E.2d 343 (2004).

2. Appellant takes issue with the order in which the trial court gave certain jury instructions.² The trial court charged the jury that a defendant's mere presence at the scene of the commission of a crime did not authorize finding the defendant guilty unless the evidence established beyond a reasonable doubt that the defendant committed the crime, helped in the commission of the crime, or participated in the criminal endeavor. The trial court then informed the jury of the elements of the various crimes the defendants were charged with committing, and thereafter instructed the jury that participation in the criminal intent could be inferred from presence, companionship, and conduct before and after the commission of the offenses. Appellant complains the trial court gave a "contradictory" and "incomprehensible" jury instruction when it failed to give the charge on inferring participation in the criminal intent immediately after giving the instruction on mere presence. The two charges are accurate statements of law (see Jones v. State, 242 Ga. 893, 252 S.E.2d 394 (1979)), and are not contradictory. Johnson v. State, 275 Ga. 650(8), 571 S.E.2d 782 (2002). That the charges are complementary and are often stated together as a single principle of law (see id.) does not mean that their separation makes the resulting charge "incomprehensible." There is no merit to appellant's assertion.

3. Appellant maintains the trial court committed reversible error when it gave a jury instruction on the law of parties to a crime. See OCGA § 16-2-20, supra. As the summary of the evidence previously given herein makes clear, the evidence authorized the giving of a charge on parties to a crime, and the charge given was a correct statement of the law. Accordingly, the trial court did not err in giving the charge. Williams v. State, 277 Ga.App. 106(4), 625 S.E.2d 509 (2005). See also Johnson v. State, supra, 275 Ga. 650(8), 571 S.E.2d 782 (tacit agreement that forms basis of a conspiracy evidenced by behavior).

4. Appellant contends he was not afforded effective assistance of counsel at trial 34;To prevail on [his] claim of ineffective assistance of trial counsel, appellant must show counsel's performance was deficient and that the deficient performance prejudiced [him] to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. [Cits.]. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct. [Cit.]." ...