¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: December 20, 2022
¶4 S22A1040. CAVISTON v. THE STATE.
¶5 ELLINGTON, Justice.
¶6 A Richmond County jury found Robert Caviston guilty of
¶7malice murder and arson in the first degree in connection with the
¶8death of his 92-year-old mother, Agnes Caviston.1 Caviston contends
¶9the trial court erred in denying his motion for a new trial on the
¶10general grounds. He also argues that the trial court erred in
¶11admitting harmful evidence of a fantasy novel that he had written,
¶12 1 On February 10, 2015, a Richmond County grand jury indicted Caviston for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), and arson in the first degree (Count 3). At a trial that began on January 8, 2018, the jury found Caviston guilty on all counts. The trial court sentenced Caviston to life in prison without parole for malice murder and to a consecutive 20-year prison term for arson. The trial court merged the felony murder count with the malice murder count for purposes of sentencing, although that count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Caviston timely filed a motion for a new trial on February 2, 2018, and amended it on October 19, 2021. After a hearing, a successor judge denied the motion on January 25, 2022. Caviston timely filed a notice of appeal. His appeal was docketed to the August 2022 term of this Court and submitted for a decision on the briefs. titled “The Philosophy of Murder,” thus requiring a new trial.
¶13Because Caviston has failed to show reversible error, we affirm.
¶14 The evidence submitted at trial shows the following. 2 On
¶15November 15, 2014, a witness saw a naked man sitting in the middle
¶16of the street in front of 2717 Wicklow Drive in Augusta. She noticed
¶17that the man’s house was on fire and asked him whether he had
¶18called 911. The man, later identified as Caviston, told her that he
¶19had just killed his mother and would not call 911. The witness
¶20immediately called 911.
¶21 A sheriff’s deputy responding to the 911 call found Caviston
¶22lying naked on the ground in his neighbor’s yard, as if he were
¶23“sunbathing.” Caviston’s neighbor testified that he watched the
¶24 2 In this case, Caviston has raised claims of non-constitutional error only; consequently, we review the evidence de novo instead of in the light most favorable to the jury’s verdicts. “The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” (Citation and punctuation omitted.) Kirby v. State, 304 Ga. 472, 478 (819 SE2d 468) (2018). It is the State’s burden to show harmlessness. Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671) (2017). In deciding whether the State has met its burden, “we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case.” (Citations omitted.) Boothe v. State, 293 Ga. 285, 289 (745 SE2d 594) (2013). 2 deputy approach Caviston and heard the deputy ask if anyone was
¶25still in his house, to which Caviston responded, “Yeah, my mom, I
¶26just f-ing bashed her head in.” Caviston told the deputy that he
¶27might have killed his mother and set the house on fire. The deputy
¶28handcuffed Caviston, covered him with a blanket, and took him to a
¶29patrol car. As the deputy put Caviston in the patrol car, another
¶30deputy heard Caviston say: “How can you not feel anything after you
¶31kill your mother? I just smashed her skull in.” Caviston also told a
¶32responding paramedic that his mother was in the burning house and
¶33that he had just killed her. He added that he was tired of taking care
¶34of his mother and that, “I’m an animal, everyone’s an animal, my
¶35mother is an animal – well, she was,” and then he laughed. On the
¶36way to the Richmond County Jail, Caviston told a deputy that
¶37“everyone wanted [his mother] dead” and “they all got what they
¶38wanted.” When he arrived at the jail, Caviston said: “[I]t looks like
¶39maximum security,” and then commented: “I must have killed my
¶40mother.”
¶41 While the deputies took Caviston into custody, first responders
¶42 3 broke through the locked front door of the burning house.
¶43Firefighters encountered one fire burning in the front doorway and
¶44another in the living room. After putting the fires out, a firefighter
¶45found Agnes Caviston’s burned body in the living room beneath a
¶46pile of charred clothing, books, and papers. A firefighter testified
¶47that the victim’s head had been split open and that brain matter was
¶48visible.
¶49 An arson investigator testified that fires were set in two
¶50separate places in the house. Once ignited, the fires burned quickly;
¶51they did not smolder. The house was mostly empty, and the “only
¶52things in the house that were burned were piled around this victim;
¶53papers, books, all kind of stuff just piled around the victim.” Many
¶54of the books were books about philosophy. The investigator noted
¶55that a Bible and some flowers had been placed next to the victim.
¶56There was no power at the property, so the investigator ruled out an
¶57electrical malfunction as the cause of the fire. He also ruled out the
¶58possibility that the fire originated in the fireplace because only heat
¶59and smoke (as opposed to fire) damage was visible in the one room
¶60 4 with a fireplace. The investigator saw nothing that would have
¶61sparked a fire. Based on the evidence, the investigator concluded
¶62that the fires were caused “by human intervention” and were
¶63intentionally set.
¶64 An expert in blood-splatter analysis testified that he collected
¶65a jacket from the dining room that appeared to have blood on it. He
¶66described the blood on the jacket as “medium velocity” bloodstains,
¶67meaning the “blood was moving through air and made contact with
¶68something.” In his expert opinion, medium velocity bloodstains on
¶69the jacket would be consistent with blood splatter resulting from
¶70someone bludgeoning the victim’s head.
¶71 An investigator found a broken IV stand in the house. It had
¶72blood and human hair on it. He took swabs from the IV stand, which
¶73were sent to the GBI for testing. The tests confirmed that the blood
¶74on the IV stand was the victim’s. The blood pattern on the IV stand
¶75was consistent with it being used as a bludgeon. The blood splatter
¶76pattern on the floor around the IV stand was also consistent with it
¶77being used to repeatedly strike the victim’s head.
¶78 5 The forensic pathologist who conducted the autopsy testified
¶79that the victim had “extensive and severe head injuries.” He
¶80estimated at least seven or eight blows to the victim’s head and
¶81opined that it “would take a very large amount of force to cause this
¶82injury, as evidenced by the amount of fracturing of the skull and
¶83then the presence of the stretch-tear lacerations on the face.” The
¶84pathologist also noted that the victim had neck injuries consistent
¶85with both blunt force trauma and strangulation. The victim also had
¶86abrasions on her shoulder, a fractured left upper arm, fractures to
¶87four upper ribs, and a fractured sternum. All of those injuries
¶88appeared to be recent and likely occurred at the same time as the
¶89head trauma. There was no evidence of smoke inhalation. Based on
¶90the autopsy, the pathologist determined the victim’s cause of death
¶91was traumatic head injury, and the manner of death was homicide.
¶92 Caviston’s daughter testified that the victim was 92 years old,
¶93bed-bound, had a feeding tube, and required around-the-clock care.
¶94Caviston was the victim’s caretaker. On the day of the fire, Caviston
¶95called his daughter and said that he had to move out of the home by
¶96 6 6:00 that evening, because he was being evicted. The daughter
¶97testified that Caviston wanted to move to Hollywood, start a singing
¶98career, and meet the actress, Kristen Stewart. A friend of Caviston
¶99testified that Caviston was “completely over the situation” of taking
¶100care of his mother and “wanted his freedom back.” He expressed a
¶101desire to go to California.
¶102 Caviston testified at trial that he killed his mother in a “freak
¶103accident.” He claimed that he heard his mother scream and saw a
¶104“little smoke” by her hand. As he ran to her, he tripped on something
¶105and went “flying through the air,” landing on top of her. Rubbing
¶106alcohol “squirted” out of the bottle he was holding onto a burning
¶107ember and started a fire. He looked up and saw that the base of the
¶108IV stand had impaled his mother’s head, breaking her skull open.
¶109He started screaming and tried to get up, but he fell on his mother
¶110over and over again, with the IV stand still under his arm. Caviston
¶111also testified that, when he told people that he had killed his mother,
¶112he did not mean that he had murdered her. He explained:
¶113 I did bash her head in and that’s what I told everybody. .
¶114 7 . . I didn’t mean I murdered my mom. You know if I had only been able to think properly and maybe said the words, by accident, I wouldn’t be here today. But the traumatized mind doesn’t think like that, and the images, the images, the image of my mom dead just overwhelmed me.
¶115 On cross-examination, the State asked Caviston if he had
¶116written a book titled “The Philosophy of Murder.” Caviston
¶117responded that he had and that it was one of three books he had
¶118published. He said the novel had “a haunted mansion and a ghost in
¶119it” and that it was “a love story.” He explained that the serial killer
¶120subplot was just a device to put the protagonists “under intense
¶121pressure to see where they could go in a stressful situation.” When
¶122asked if he was romanticizing murder, Caviston said “no.” When
¶123asked if he was good at telling stories, Caviston responded: “Not as
¶124good as you, but yes, I am.” The prosecutor asked no further
¶125questions about the novel.
¶126 1. Caviston contends that the trial court erred in denying his
¶127motion for a new trial on the general grounds pursuant to OCGA §§
¶1285-5-20 and 5-5-21 because “irrelevant and highly prejudicial
¶129 8 evidence of a book that Caviston had written ten years prior under
¶130the pseudonym Bob Johnsson, titled The Philosophy of Murder[, was
¶131admitted at trial.]” He argues that the admission of this evidence
¶132was prejudicial and improperly “biased the jury against [him] and
¶133tainted all the State’s evidence in the trial.” Moreover, he contends
¶134that the trial court failed to exercise its discretion by weighing the
¶135evidence and considering the credibility of the witnesses and,
¶136instead, reviewed his general grounds claim under the
¶137constitutional sufficiency standard of Jackson v. Virginia, 443 U.S.
¶138307 (99 SCt 2781, 61 LE2d 560) (1979). For the reasons that follow,
¶139this claim of error is without merit.
¶140 “A trial court reviewing a motion for new trial based on [the
¶141general] grounds has a duty to exercise its discretion and weigh the
¶142evidence and consider the credibility of the witnesses.” Choisnet v.
¶143State, 292 Ga. 860, 861 (742 SE2d 476) (2013).
¶144 Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight of the
¶145 9 evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial – commonly known as the “general grounds” – require the trial judge to exercise a broad discretion to sit as a “thirteenth juror.”
¶146(Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524
¶147(2) (753 SE2d 115) (2013). If the trial court performs this duty, then
¶148a thirteenth juror argument “is not properly addressed to this Court
¶149as such a decision is one that is solely within the discretion of the
¶150trial court.” (Citation omitted.) Smith v. State, 300 Ga. 532, 534 (796
¶151SE2d 671) (2017). “[W]here, as in this case, the judge who hears the
¶152motion for a new trial is not the same judge as the one who presided
¶153over the original trial, the discretion of the successor judge is
¶154narrower in scope.” State v. Harris, 292 Ga. 92, 95 (734 SE2d 357)
¶155(2012). However, “after a thorough review of the case, even a
¶156successor judge may exercise a significant discretion to grant a new
¶157trial on the general grounds.” (Citation omitted.) Hyden v. State, 308
¶158Ga. 218, 226 (3) (d) (839 SE2d 506) (2020). Finally, even though the
¶159record shows that the trial court did not specifically address
¶160Caviston’s general grounds argument in his order denying the
¶161 10 motion for a new trial,
¶162 it is well established that this Court must presume that the trial judge knew the rule as to the necessity of exercising his discretion, and that he did exercise it. [This Court] cannot assume, in the absence of positive evidence to the contrary, that the judge knowingly declined to exercise his discretion. Thus, where a trial judge ruling on a new trial motion enters an order that, without more, recites that the new trial is refused or denied, this will be taken to mean that the judge has in the exercise of his discretion approved the verdict.
¶163(Citations and punctuation omitted.) Butts v. State, 297 Ga. 766, 772
¶164(3) (778 SE2d 205) (2015).
¶165 The successor judge who heard the motion for a new trial
¶166summarily denied Caviston’s motion for a new trial based upon
¶167“consideration of all the pleadings, briefs, arguments of Counsel and
¶168evidence presented[.]” There is no indication in the court’s order or
¶169in the transcript of the hearing on Caviston’s motion that the judge
¶170failed to exercise his discretion as required or applied an
¶171inappropriate standard of review. Under these circumstances,
¶172Caviston has not shown that the trial court erred in denying his
¶173motion on the general grounds alleged. See Butts, 297 Ga. at 772 (3).
¶174 11 2. Caviston contends that the trial court abused its discretion
¶175in admitting evidence pursuant to OCGA § 24-4-404 (b) that he had
¶176written a book in 2005, titled “The Philosophy of Murder,” about a
¶177serial killer stalking actresses in Hollywood. He argues that the
¶178evidence was unduly prejudicial and that his conviction must be set
¶179aside. For the following reasons, we disagree.
¶180 The record shows that, prior to trial, the prosecutor notified the
¶181trial court and defense counsel that the State intended to introduce
¶182evidence of the novel at trial. Caviston objected, arguing that the
¶183novel was not relevant to any material issue and would serve only
¶184to inflame the jury. After the prosecutor argued theories under
¶185which the book and its contents might be admissible, the trial court
¶186reserved ruling and directed the parties to approach the bench
¶187before attempting to introduce any evidence concerning the book at
¶188trial.
¶189 During trial, after Caviston testified that his mother’s death
¶190was an accident, the State cross-examined him on whether he had
¶191written any books between 2004 and 2005, and defense counsel
¶192 12 objected. The trial court then conducted a hearing outside the
¶193presence of the jury. During the hearing, the prosecution argued
¶194that evidence of the novel was relevant to Caviston’s mental state.
¶195Caviston responded that the book was a work of fiction, was
¶196authored nine years prior to Agnes Caviston’s death, and was
¶197irrelevant to any issue at trial. Caviston also argued that the title
¶198was “so prejudicial that it may sway jurors’ minds just because he
¶199wrote a book called ‘The Philosophy of Murder,’” noting that there
¶200had been no testimony opening the door to any cross-examination
¶201concerning the book, such as whether Caviston had worked as a
¶202writer. The Court ruled that the prosecutor could ask Caviston about
¶203the book.
¶204 After the jury returned to the courtroom, and over Caviston’s
¶205objection, the prosecutor asked Caviston whether he had written a
¶206book entitled “The Philosophy of Murder” in 2005, and he answered
¶207“yes.” Caviston explained that it was a romance novel, and that the
¶208serial killer portion of the plot was a device to put pressure on the
¶209protagonists, “to see where they could go in a stressful situation.”
¶210 13 After trial, the trial court entered a written order memorializing its
¶211ruling on this evidentiary issue. The trial court found that Caviston
¶212had placed his character in issue by testifying; that he testified to
¶213the affirmative defense of accident on direct examination; that the
¶214State had the burden of disproving beyond a reasonable doubt the
¶215affirmative defense of accident; that Caviston’s having written a
¶216book called “The Philosophy of Murder” was relevant to the issue of
¶217intent; and that the probative value of allowing the jury to hear that
¶218Caviston wrote a book called “The Philosophy of Murder”
¶219outweighed any prejudicial effect.
¶220 Under OCGA § 24-4-401, “relevant evidence” is evidence
¶221having “any tendency to make the existence of any fact that is of
¶222consequence to the determination of the action more probable or less
¶223probable than it would be without the evidence.” Under OCGA § 24-
¶2244-402, “[a]ll relevant evidence shall be admissible, except as limited
¶225by constitutional requirements or as otherwise provided by law or
¶226other rules. . . . Evidence which is not relevant shall not be
¶227admissible.” OCGA § 24-4-403 (“Rule 403”) provides that “[r]elevant
¶228 14 evidence may be excluded if its probative value is substantially
¶229outweighed by the danger of unfair prejudice, confusion of the
¶230issues, or misleading the jury or by considerations of undue delay,
¶231waste of time, or needless presentation of cumulative evidence.”
¶232 This Court has held that “[t]he application of the Rule 403 test
¶233is a matter committed principally to the discretion of the trial
¶234courts,” and “the exclusion of evidence under Rule 403 is an
¶235extraordinary remedy which should be used only sparingly. The
¶236major function of Rule 403 is to exclude matter[s] of scant or
¶237cumulative probative force, dragged in by the heels for the sake of
¶238its prejudicial effect.” Flowers v. State, 307 Ga. 618, 622-23 (837
¶239SE2d 824) (2020). This Court reviews a trial court’s ruling on an
¶240evidentiary issue for abuse of discretion. Middlebrooks v. State, 310
¶241Ga. 748, 750 (854 SE2d 503) (2021).
¶242 Even if a trial court abuses its discretion in admitting certain
¶243evidence, such non-constitutional error is deemed harmless and does
¶244not require reversal if it is highly probable that the error did not
¶245contribute to the verdict. See Heard v. State, 309 Ga. 76, 90 (844
¶246 15 SE2d 791) (2020). To determine if an error was harmless, this Court
¶247reviews the record de novo and weighs the evidence as it would
¶248expect reasonable jurors to have done as opposed to viewing the
¶249evidence in the light most favorable to the jury’s verdict. Id. This
¶250Court has
¶251 held that evidence that was (or was assumed to have been) improperly admitted . . . was harmless in cases where the properly admitted evidence proving that the appellant committed the charged crimes was so strong that the prejudicial effect of the [improperly admitted] evidence had no significant influence on the guilty verdict. . . .The improperly admitted . . . evidence in many such cases was not especially prejudicial, for example because the [improperly admitted evidence] was relatively benign[.]
¶253 Assuming, without deciding, that the trial court abused its
¶254discretion in admitting evidence about Caviston’s novel, it is highly
¶255probable that the evidence did not contribute to the verdicts given
¶256Caviston’s explanation of the plot and the very short time devoted
¶257to this line of questioning during cross-examination. The State
¶258asked a total of three questions related to the novel, and the only
¶259 16 evidence placed before the jury was that Caviston wrote “The
¶260Philosophy of Murder,” a romance novel with a serial-killer subplot
¶261that was published in 2005. The novel itself was not introduced. In
¶262contrast, the State presented an overwhelming amount of evidence
¶263unrelated to the novel on the issue of Caviston’s guilt. For example,
¶26418 witnesses testified for the State, many of whom recounted
¶265Smith’s admissions that he killed his mother. Others gave expert
¶266testimony explaining either how the fire was intentionally set or
¶267how repeated and intense blunt force inconsistent with an
¶268accidental fall was necessary to cause the victim’s severe injuries.
¶269Any undue prejudice from admitting evidence about the novel was
¶270offset by the overwhelming evidence of Caviston’s guilt and the
¶271improbability of his accident defense. Consequently, it is highly
¶272probable that the evidence did not contribute to the verdicts. See
¶273Heard, 309 Ga. at 90-91.
¶274 Judgment affirmed. All the Justices concur.
¶275 17