¶1In the Supreme Court of Georgia
¶2 Decided: April 19, 2021
¶3 S21A0162. TRUETT v. THE STATE.
¶4 BOGGS, Justice.
¶5 Christopher Everett Truett was convicted of malice murder
¶6and related crimes arising out of the beating death of his girlfriend’s
¶7two-year-old son, Wyatt Pruitt. He appeals, asserting as his sole
¶8enumeration of error the trial court’s exclusion of certain character
¶9evidence. For the reasons stated below, we affirm. 1
¶10 1 The murder occurred on February 25, 2014. On September 15, 2014, a Forsyth County grand jury indicted Truett for malice murder, felony murder, aggravated battery, and child cruelty in the first degree. Truett was tried before a jury from August 20 to 28, 2015 and found guilty of all charges. On August 28, 2015, Truett was sentenced to serve life in prison without the possibility of parole for malice murder, and 20 years to serve concurrently on the child cruelty charge. The trial court merged the aggravated battery count into the malice murder conviction, and the felony murder conviction was vacated by operation of law. On August 31, 2015, Truett’s trial counsel filed a timely motion for new trial, which was amended by appellate counsel on December 2 and December 13, 2019. After a hearing, the motion for new trial was denied on March 6, 2020. Truett’s notice of appeal was filed on March 30, 2020, and the case was docketed in this Court for the term beginning in 1. The evidence at trial2 showed that on February 23, 2014,
¶11Truett and the victim’s mother, Dawn Shutts, had been in a
¶12romantic relationship for several weeks, and he had moved in with
¶13her and her two children. Wyatt, the younger child, was feeling ill
¶14and was “up and down all night.” On February 24, Truett told Shutts
¶15that one of the family dogs had pushed Wyatt down the stairs. He
¶16had a bruise over his eye but otherwise appeared fine, and Shutts
¶17did not think much of it. As she left for work on February 25, she
¶18noticed scratches on Wyatt’s eyes and made a doctor’s appointment
¶19for him. Wyatt was crying and screaming and did not want Shutts
¶20to leave. Truett was the only person with Wyatt that day.
¶21 During the morning, Shutts received several text messages
¶22from Truett: that his feelings were hurt because Wyatt didn’t like
¶23him, that Wyatt was “tripping hard,” having temper tantrums,
¶24harming himself, and that he had wet and soiled himself. Shutts
¶25December 2020 and submitted for decision on the briefs. 2 This Court no longer routinely considers sua sponte the sufficiency of
¶26the evidence in non-death penalty cases. See Davenport v. State, 309 Ga. 385, 392 (4) (846 SE2d 83) (2020). But a review of the evidence here is relevant to Truett’s enumeration of error. 2 responded to the messages and told Truett to give Wyatt a bath.
¶27Later, Truett sent still more messages: that Wyatt had fallen in the
¶28tub and hurt himself and that a dog had pushed him down again.
¶29Truett added, “Get home. Something’s wrong.” A few minutes later
¶30Truett sent another message, “Get home now, baby.” Shutts
¶31returned home to find Wyatt lying on the sofa, unresponsive. He was
¶32“cold and stiff,” blood was coming out of his mouth, and he had
¶33bruises all over his face and body that were not there earlier that
¶34morning. Shutts exclaimed to Truett, “What did you do to my kid?”
¶35Truett responded that Wyatt was still breathing, but Shutts saw
¶36that Wyatt was not breathing and told Truett to call 911. Truett
¶37“hesitated,” but then called and handed the phone to Shutts. The
¶38911 dispatcher instructed her on how to perform CPR, and she
¶39continued until the police arrived. When she looked up, Truett had
¶40disappeared.
¶41 A sheriff’s deputy took over CPR until paramedics arrived. He
¶42observed that Wyatt’s face appeared “battered.” A paramedic who
¶43arrived a few minutes later testified that Wyatt appeared to be dead,
¶44 3 but he and other paramedics still attempted to revive him. They
¶45transported Wyatt to the hospital, where an ER physician continued
¶46attempts to revive him, although he testified that Wyatt was in
¶47“complete cardiac standstill” and rigor mortis had already set in.
¶48The physician testified that, based on the state of the rigor mortis
¶49and lividity in the child’s body, he had been dead for over an hour
¶50when he arrived at the hospital, approximately one-half hour after
¶51the 911 call was placed. He also testified that Wyatt had numerous
¶52bruises, scratches, and ruptured blood vessels in his face, as well as
¶53bruises on his ears, extremities, and abdomen. He testified that the
¶54abdominal injuries indicated bleeding from the liver, which required
¶55a “high-energy force.” He concluded that Wyatt’s injuries were
¶56“completely inconsistent” with a fall down the stairs and that the
¶57injuries were not caused by CPR.
¶58 A medical examiner and Director of Pediatric Forensic
¶59Medicine for the Georgia Bureau of Investigation, who was qualified
¶60without objection at trial as an expert in the field of pediatric and
¶61forensic pathology, performed an autopsy on Wyatt’s body. She
¶62 4 testified that Wyatt had suffered severe, multiple, wide-ranging
¶63injuries due to beating, squeezing, twisting, and strangulation. She
¶64observed extensive bleeding in the tissues of the head and bruises
¶65and abrasions on his head, face, lips, and ears. She also observed
¶66ruptured blood vessels in his face and marks on his mouth, jaw, and
¶67neck that in her opinion were due to compression of the neck,
¶68indicating an asphyxiation or strangulation event. Bilateral bruises
¶69on the side of his head indicated that his head had been squeezed,
¶70and his brain was markedly swollen. She also observed internal
¶71bleeding in his genitalia, indicative of a twisting or squeezing injury.
¶72In his abdomen, consistent with significant external bruising, she
¶73observed extensive bleeding, primarily due to an 8-centimeter
¶74laceration to his liver that she described as “huge” and “severe”; this
¶75was the immediate cause of Wyatt’s death through loss of blood.
¶76About 20 percent of Wyatt’s blood supply was pooled in the abdomen.
¶77She also observed injuries to his diaphragm, right lung, pancreas,
¶78and soft tissues of the abdomen. She concluded that the cause of
¶79death was multiple blunt force injuries to the abdomen, such as
¶80 5 punching or kicking, with blunt impact injuries to the head as a
¶81contributing factor. In the medical examiner’s opinion, the injuries
¶82were inflicted deliberately and were not due to falling down stairs,
¶83CPR efforts, or medical intervention. 3
¶84 In light of the severity of Wyatt’s injuries and Truett’s sudden
¶85disappearance, the police immediately “pinged” Truett’s cell phone
¶86number; the last location of the phone was in an overgrown, swampy
¶87area behind the subdivision where Shutts lived. Officers set up a
¶88perimeter around the area and began searching; Truett was spotted
¶89“low crawling” in a creek bed, headed away from the subdivision.
¶90Officers shouted for him to come out, but he continued to elude them
¶91in the heavy underbrush and swamp until a K-9 officer brought in
¶92an apprehension dog and announced that he was about to release
¶93 3 Former medical examiner Dr. Joseph Burton testified for the defense that in his opinion Wyatt’s injuries could have been caused by a fall down the stairs or by efforts at CPR, and that the liver laceration “could. I’m not saying it would” have occurred up to 24 hours earlier and been exacerbated, but not caused, by CPR, although he acknowledged that CPR could not have contributed to Wyatt’s death if he was already in rigor mortis when the first deputy arrived. Dr. Burton acknowledged, moreover, that he could not explain all of Wyatt’s injuries and stated, “I’m not telling the jury or the Court that [his injuries] were caused by that fall. I’m just saying that the fall could cause the injuries that I saw.” 6 the dog and “that she will bite.” Truett then stood up and
¶94surrendered. After he was arrested, the police discovered that at
¶95some point he had removed the battery from his cell phone,
¶96rendering the phone untraceable. During Truett’s police interview,
¶97he gave inconsistent accounts of how the injuries to Wyatt occurred.
¶98When a police sergeant remarked that Truett appeared to have skin
¶99under his fingernails, Truett immediately began “picking” at his
¶100hands and then attempted to urinate on his hands when he was
¶101escorted to the restroom. Wyatt’s DNA was recovered from under
¶102one of Truett’s fingernails.
¶103 At trial, Truett testified and denied having harmed Wyatt. He
¶104testified that he was a “great father” to his own four-year-old
¶105daughter and that she stayed with him frequently. He presented
¶106seven character witnesses who testified to Truett’s reputation for
¶107positive conduct with children and for peacefulness. Truett further
¶108testified that he ran away from Shutts’ home because he was
¶109frightened when Shutts asked him, “What did you do to my kid?” He
¶110acknowledged smoking marijuana on the day of Wyatt’s death and
¶111 7 the day before, and that he was “aggravated” with Shutts and
¶112wanted to go home “the whole time.”
¶113 2. In his sole enumeration of error, Truett contends that a new
¶114trial is required because the court erroneously prevented him from
¶115asking his character witnesses “if they would be comfortable with
¶116him around their children” or about specific instances of good
¶117character. 4
¶118 The relevant section of the Evidence Code is OCGA § 24-4-405,
¶119which provides in its entirety:
¶120 (a) In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion. (b) In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct. The character of the accused, including specific instances of the accused’s conduct, shall also be admissible in a presentencing
¶121 4 In his brief here, Truett repeatedly asserts that the trial court erroneously applied Georgia’s former Evidence Code in ruling on this matter. It is clear from the transcripts of the hearing and the trial, however, that the parties and the trial court relied upon the current Evidence Code, as well as commentary and treatises discussing it.
¶122 8 hearing subject to the provisions of Code Section 17-10-2. (c) On cross-examination, inquiry shall be allowable into relevant specific instances of conduct.
¶123(Emphasis supplied.)5 See generally Strong v. State, 309 Ga. 295,
¶124313-314 (3) (845 SE2d 653) (2020) (discussing application of OCGA
¶125§§ 24-4-404 (a) and 24-4-405 (b)).
¶126 The trial court held a pretrial hearing on August 17, 2015. The
¶127same day, the State and Truett filed numerous motions addressing
¶128evidentiary issues. Among Truett’s motions was a “Motion for Pre-
¶129Trial Ruling” in which he asked the trial court to allow character
¶130witnesses for the defense to testify under OCGA § 24-4-405 (a) to
¶131“the defendant’s reputation, demeanor and attitude toward and
¶132around children” and to their “opinion as to defendant’s character
¶133including specific, pertinent character traits exhibited by defendant
¶134within the context of the charges against him.” During the argument
¶135on this motion, the court and the parties discussed OCGA § 24-4-405
¶136 5The italicized portion of the Georgia rule, among other provisions, does not appear in the corresponding Federal Rule of Evidence 405. .
¶137 9 (a) at some length, but subsection (b) and the exception regarding a
¶138testifying defendant were never mentioned; Truett did not raise that
¶139provision of the Evidence Code, nor was there any indication from
¶140Truett at that time that he planned to testify. 6
¶141 The court ruled that Truett could ask the character witnesses
¶142if Truett was “a good father. He’s good around children. That would
¶143be basically the extent. You just can’t get into specific acts of good
¶144character. You can’t let the witness go on and on about, well, I’ve
¶145observed him, you know, the kids.” At the hearing, Truett also
¶146sought leave to ask the character witnesses whether they “would
¶147trust him with their child.” The trial court ruled out that testimony
¶148as going beyond a pertinent character trait, although it observed
¶149that it was implied in the permissible testimony.
¶150 At trial, after Truett had testified and his first character
¶151witness had taken the stand, the permissible scope of the character
¶152witnesses’ testimony was discussed again, and defense counsel
¶153 6 While the provisions of OCGA § 24-4-405 (b) were discussed at other points in the hearing, those discussions concerned other pretrial motions by either the State or Truett. 10 asked for “clarification” of the original ruling. Truett asked to
¶154question the witnesses regarding Truett’s “reputation for
¶155peacefulness,” and the trial court stated it would allow that line of
¶156questioning. Once more, however, Truett did not raise the specific
¶157provisions of OCGA § 24-4-405 (b), and there was no discussion of
¶158that subsection with respect to his character witnesses’ testimony.
¶159 In Truett’s motion for new trial, he argued that the trial court
¶160erred in refusing to permit him to ask if the witnesses “would be
¶161comfortable with him around their children” or about specific
¶162instances of good character. He attached affidavits from four of his
¶163trial witnesses providing specific examples of his behavior around
¶164their children and of his peaceful character. The trial court denied
¶165Truett’s motion for new trial on this ground, finding that any error
¶166in excluding the disputed evidence was harmless. We agree, both
¶167because the proffered testimony would have been cumulative and
¶168because the evidence of Truett’s guilt was very strong.
¶169 In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so. The test
¶170 11 for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.
¶171(Citations and punctuation omitted.) Williams v. State, 302 Ga. 147,
¶172153-154 (3) (805 SE2d 873) (2017); see also OCGA § 24-1-103 (a)
¶173(“Error shall not be predicated upon a ruling which admits or
¶174excludes evidence unless a substantial right of the party is affected. .
¶175. .”).
¶176 Here, the jury heard testimony from seven character
¶177witnesses, and, despite the trial court’s earlier ruling, most of them
¶178testified to numerous specific examples of Truett’s conduct with
¶179children, including Wyatt and his brother as well as the witnesses’
¶180own children or grandchildren. Tonya Watkins testified that she had
¶181left Truett with her own children and had “never seen any kind of
¶182issue as far as that’s concerned.” Patti Seiber testified that Truett
¶183had interacted with her granddaughter. Jessica Rainwater testified
¶184that she witnessed Truett being “attentive” to the children at a
¶185family gathering, in particular to Wyatt after Shutts put him into a
¶186car and then ignored the child while walking around talking on her
¶187 12 phone. Rainwater also testified that Truett had watched her
¶188daughter. Paul Walls testified that he observed Truett playing,
¶189laughing, and joking with Shutts’ children “about the same as with
¶190my own kids,” and keeping them from getting into trouble in a
¶191neighbor’s yard when Shutts did not intervene. Walls further
¶192testified that Truett had watched his children as well. Susan Truett,
¶193Truett’s mother, testified that Truett’s interactions with Wyatt were
¶194“normal” and that he had taken the initiative to get both Wyatt and
¶195his older brother away from some “aggressive” dogs when their
¶196mother did not do so. She also testified that she received a text
¶197message from Shutts with two photos of Truett and Wyatt “asleep
¶198on the couch, like a father and son.” The evidence presented by the
¶199witnesses on Truett’s motion for new trial therefore was largely
¶200cumulative of their trial testimony, merely elaborating on their
¶201earlier accounts of Truett’s positive conduct with children and
¶202peacefulness and giving additional specific instances of his conduct.
¶203 Moreover, the evidence of Truett’s guilt was very strong. As
¶204noted above, Wyatt suffered multiple severe injuries to many parts
¶205 13 of his body, including internal organs, inflicted by a variety of
¶206methods including multiple blunt force trauma. Truett’s expert
¶207witness conceded that he could not explain all of Wyatt’s injuries as
¶208possibly due to a fall or medical intervention. Truett was the only
¶209adult present in the home when Wyatt died, he did not seek medical
¶210aid for Wyatt despite his obvious severe injuries, and he was
¶211reluctant to call 911 even after Shutts arrived. He then fled the
¶212scene, disabled his cell phone, and attempted to elude the police. He
¶213also gave conflicting accounts of how Wyatt’s injuries occurred and
¶214made repeated attempts to remove potential evidence from his
¶215hands.
¶216 Any error by the trial court in limiting the witnesses’ testimony
¶217therefore was harmless, as it is highly probable that any such error
¶218did not contribute to the verdicts. See Henderson v. State, __ Ga. __
¶219(3), 2021 Ga. LEXIS 7 (Case No. S20A1571, decided Feb. 1, 2021)
¶220(exclusion of victim’s statement that he had been to prison, to the
¶221extent it constituted a threat, was harmless both because
¶222cumulative of other testimony that victim explicitly threatened
¶223 14 appellant and because evidence of appellant’s guilt was “very
¶224strong”); Keller v. State, 308 Ga. 492, 503 (5) (842 SE2d 22) (2020)
¶225(“[I]n light of the strong evidence of [appellant’s] guilt,” refusal to
¶226allow appellant’s witness to testify was “harmless error, if error at
¶227all,” because it was highly probable that exclusion of evidence did
¶228not contribute to verdict); Mitchell v. State, 293 Ga. 1, 3 (2) (742
¶229SE2d 454) (2013) (exclusion of portions of appellant’s recorded
¶230statement harmless when similar evidence admitted through
¶231another witness).
¶232 Judgment affirmed. All the Justices concur.
¶233 15