CourtListener 10680342

Full text

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.

In the Supreme Court of Georgia

Decided: April 30, 2024

S24A0236. SMITH v. THE STATE.

PINSON, Justice.

Truman Harry Smith shot and killed Johnny Crawford while

the two were hanging out with friends. At trial, Smith claimed he

killed Crawford in self-defense. But the jury rejected that defense

and convicted Smith of felony murder and other charges. On appeal,

Smith contends that the trial court should have allowed him to tes-

tify that he suffered from post-traumatic stress disorder (rather

than allowing him only to describe his symptoms), and that the trial

court should not have allowed the State to impeach him with his

prior charge for impersonating another under Article 134 of the Uni-

form Code of Military Justice. But the rule of evidence that Smith

claims should have allowed him to testify that he had post-traumatic

stress disorder—a hearsay exception for statements for the purpose
of medical diagnosis—does not apply to medical diagnoses them-

selves, and any error in allowing the State to ask about Smith’s mil-

itary charge was harmless. So we affirm Smith’s convictions and

sentence.

1. Smith was convicted of felony murder and other crimes in

connection with the shooting death of Crawford.1 The evidence at

trial showed the following. 2

1 The shooting happened on September 15, 2016. On August 16, 2021, a

Dekalb County grand jury indicted Smith for malice murder, felony murder
predicated on aggravated assault, aggravated assault, and possession of a fire-
arm during the commission of a felony. Smith was tried by a jury from August
16 to 20, 2021. The jury did not reach a verdict on the malice murder count,
but it found Smith guilty of the remaining counts. Smith was sentenced to life
in prison for felony murder and a consecutive five-year prison term for posses-
sion of a firearm during the commission of a felony, for a total sentence of life
plus five years. The aggravated assault count merged into the felony murder
count for sentencing, and the trial court dead-docketed the malice murder
count. Through new counsel, Smith filed a timely motion for new trial, which
he amended twice. On July 17, 2023, the trial court denied the motion for new
trial, as amended. Because the dead-docketed malice murder count rendered
the judgment non-final, see Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021),
the trial court also granted a certificate of immediate review, and we subse-
quently granted Smith’s application for interlocutory appeal. Smith filed a
timely notice of appeal. The case was docketed to the term of court beginning
in December 2023 and submitted for a decision on the briefs.
2 In light of the harmless-error analysis we undertake in Division 3 of

this opinion, “we review the record de novo, and we weigh the evidence as we
would expect reasonable jurors to have done so as opposed to viewing it all in
the light most favorable to the jury’s verdict.” See Moore v. State, 315 Ga. 263,
264 (1) n.2 (882 SE2d 227) (2022) (citation and punctuation omitted).
2
On the night of the shooting, Smith, Crawford, and two other

men, Dulles Smith (Smith’s cousin) and Randy Castillo, met up at

Castillo’s home. Dulles and Castillo had known each other for years,

and both of them also knew Smith and Crawford, but the evidence

conflicted as to whether Smith and Crawford met for the first time

that night (as Smith said) or had known each other before (as Dulles

and Castillo said). At Castillo’s house, the four of them sat in the

back of Crawford’s truck drinking beer and tequila and smoking ma-

rijuana. At first the group was relaxed, laughing and joking. But at

some point Smith pulled out a handgun and pointed it at Crawford.

Castillo and Dulles asked Smith what he was doing. Smith replied,

“Man, my fault. I’m tripping, man,” and said he was going to put

away the gun. Smith went over to Dulles’s car, then returned to the

back of the truck, where he resumed talking with the group.

Some time after that, Smith pulled out his gun again and shot

Crawford in the face. The evidence conflicted as to whether this hap-

pened right when Smith rejoined the group (as Smith said), or some-

3
what later after he temporarily reconciled with—and even em-

braced—Crawford (as Dulles and Castillo said). Dulles saw the

shooting. Castillo, who had just gotten up to go inside, did not see it,

but when he looked back he saw Crawford “falling” into the tailgate

of his truck and knew Smith was the shooter because he was the

only one with a gun when the shot was fired. Neither Dulles nor

Castillo recalled any argument between Smith and Crawford before

the shooting.

Dulles immediately drove Smith back to Dulles’s house, where

Smith got in his own car and left. Dulles then returned to the scene

of the shooting. Castillo, meanwhile, had rushed inside and called

911. When investigators arrived, Dulles told them that Smith was

the shooter. Five days later, Smith was pulled over for speeding in

Missouri. The Missouri officer ran Smith’s driver’s license, learned

that a warrant for his arrest had been issued in Georgia, and placed

him under arrest.

Smith testified in his own defense. He admitted he shot Craw-

ford, but he said he did so because he feared for his life. Smith said

4
the first time he pulled out his gun was in response to Crawford’s

threat to rob him like he had robbed “other country mother****ers.”

Smith showed Crawford his gun at that point as part of a “de-esca-

lation” technique he had learned in the military: “shout, show,

shove, shoot.” The situation de-escalated, and Smith put away the

gun and walked away to calm down. But after Smith came back to

the group, Crawford said, “[Y]ou’re not the only mother****er with

a gun,” and reached behind him. Smith knew Crawford had a gun

and that he was a “Blood gangbanger.” He shot Crawford to “elimi-

nate[ ] the threat.” Smith then fled the scene because he feared

“more Bloods were coming out.” Later, he left the state to see a friend

in Las Vegas. When he was arrested in Missouri, he was on his way

back to Georgia to “take care of business.”

2. Smith contends that the trial court erred by not allowing him

to tell the jury that he suffered from post-traumatic stress disorder

(PTSD) and instead allowing him only to describe his symptoms.

Smith had indicated before trial and in his opening argument that

his defense would rely at least in part on the effects of PTSD on his

5
mental state, but because he did not introduce a medical expert or

other evidence to establish the diagnosis, the State objected to Smith

testifying about PTSD. The State argued that Smith was not a med-

ical expert and could not testify about a medical condition. But

Smith’s counsel argued that Smith had been diagnosed with PTSD

by two physicians, “and so he should be allowed to testify that he

has PTSD based on that diagnosis.” The trial court agreed with the

State and ruled that Smith, as a lay witness, could not testify about

a “clinical medical diagnosis,” but that he could describe his symp-

toms. Smith then testified that he had served in combat in Iraq,

where, among other things, he was trained to “identify the threat

and eliminate the threat.” Since his return home, he remained “hy-

pervigilant.” He had trouble concentrating, was sensitive to loud

noises, avoided having his back to doorways or having people behind

him, and had nightmares from which he “would wake up yelling,

gasping for air.” He also told the jury that he was prescribed antide-

pressants and pills to control his nightmares, but they did not help,

so he self-medicated with marijuana.

6
Because Smith made the substance of his proposed testimony

known to the trial court and received a definitive ruling on the rec-

ord, the issue is preserved for ordinary appellate review. See OCGA

§ 24-1-103 (a); McGarity v. State, 311 Ga. 158, 162 (2) (856 SE2d

241) (2021) (“to preserve an objection to the exclusion of evidence the

proponent must either make an offer of proof or otherwise ensure

that the reason for offering the evidence in question is apparent to

the trial court” (cleaned up)).

On appeal, Smith contends that his PTSD diagnosis is a hear-

say statement and that it is admissible under an exception to the

general rule of hearsay. Hearsay is a “statement, other than one

made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” OCGA § 24-

8-801 (c). Hearsay is generally not admissible, see OCGA § 24-8-802,

but it may be admitted if it falls under any of several statutory ex-

ceptions. See id. One of those exceptions applies to out-of-court state-

ments “made for purposes of medical diagnosis or treatment and de-

7
scribing medical history, or past or present symptoms, pain, or sen-

sations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treat-

ment.” OCGA § 24-8-803 (4) (“Rule 803 (4)”). In Smith’s view, his

PTSD diagnosis fits that exception, and the trial court was wrong to

exclude it.

The trial court did not err by excluding Smith’s hearsay state-

ment that he had PTSD, because the hearsay exception of Rule 803

(4) does not apply to medical diagnoses. Instead, the rule applies to

out-of-court statements that patients make to medical professionals

to help the patients get a diagnosis or treatment. The rule refers to

statements “describing medical history, . . . symptoms, pain, or sen-

sations, or the inception or general character of the cause or external

source thereof.” OCGA § 24-8-803 (4). Those are things a patient

would tell a doctor—some of which are uniquely within the patient’s

knowledge, like his “pain” and “sensations”—when he is seeking

treatment for a complaint or ailment. Such statements are admissi-

ble despite being hearsay because the patient has an incentive to tell

8
the truth under those circumstances. See State v. Almanza, 304 Ga.

553, 561-562 (3) (820 SE2d 1) (2018) (“[S]tatements made to a pro-

vider for the purpose of diagnosis or treatment may be admissible

because the self-interested motivation of the declarant in wanting

effective diagnosis or treatment . . . makes it more likely that the

statements made for that purpose are true.”) (citing White v. Illinois,

502 U.S. 346, 356 (112 SCt 736, 116 LE2d 848) (1992)). And when

we apply Rule 803 (4), we ask whether the statement in question

enjoys the “guarantee of trustworthiness” that comes from a pa-

tient’s desire to get the right treatment when he describes his symp-

toms to a medical professional. See Smith v. State, 309 Ga. 240, 245

(2) (b) (845 SE2d 598) (2020) (quoting Almanza, 304 Ga. at 559 (3))

(a statement may be admissible under Rule 803 (4) if (1) the “declar-

ant’s motive in making the statement is consistent with the pur-

poses of treatment” and (2) the statement is of a type “reasonably

relied upon by a physician in treatment or diagnosis” (emphasis

added)). All of which is to say that the language of Rule 803 (4), the

justification behind it, and our case law applying it all confirm that

9
it generally applies to statements made by patients to medical pro-

fessionals, not to the resulting diagnoses.

Smith points out that we expect doctors to be honest with their

patients, just as we expect patients to be honest with their doctors,

so Smith repeating a diagnosis he was given by a doctor should have

the same hallmarks of reliability that allow other types of hearsay

to be admitted at trial. But the justification for Rule 803 (4)—the

“guarantee of trustworthiness” that attaches to a patient’s factual

description of his symptoms—does not apply in the same way to a

diagnosis, because a doctor’s diagnosis is generally considered an

expert opinion, not a factual assertion. See, e.g., OCGA § 24-7-701

(a) (3) (a witness may not give an opinion that is “based on scientific,

technical, or other specialized knowledge” unless she is qualified as

an expert); OCGA § 24-7-704 (b) (restricting an “expert witness tes-

tifying with respect to the mental state or condition of an accused in

a criminal proceeding” from opining on whether the defendant had

the required mental state to be guilty of the charged offense); Mid-

dlebrooks v. State, 315 Ga. 671, 689-690 (2) (b) (884 SE2d 318) (2023)

10
(discussing various mental health experts’ opinion testimony about

the defendant’s diagnosis); Adams v. State, 275 Ga. 867, 870 (572

SE2d 545) (2002) (Carley, J., concurring) (“[s]ince paranoia and

schizophrenia are medical terms relating to mental disorders, only

a qualified expert such as a psychiatrist, psychologist, or medical

doctor would be competent to diagnose and define such a mental dis-

order” (citation and punctuation omitted)).3 Expert opinions are just

that—opinions—and are subject to different standards of reliability

and trustworthiness that govern their admission. See generally

OCGA § 24-7-702 (discussing qualifications for experts and expert

opinions). We have never, so far as we can tell, applied Rule 803 (4)

to determine whether an expert opinion was admissible. 4

3 To be clear, while a diagnosis is generally an expert opinion, doctors

and other medical professionals can also provide fact or lay testimony. See
McKelvin v. State, 305 Ga. 39, 42-43 (2) (b) (823 SE2d 729) (2019) (distinguish-
ing between a doctor testifying about his drug-testing decisions and offering
his opinion on whether the defendant could have been on substances that were
not tested for, which would be expert testimony, and the doctor merely report-
ing the results of the drug tests that were performed, which could be lay testi-
mony).
4 To the extent that a patient’s past diagnosis is a fact that could be es-

tablished by a lay witness—a question we do not decide here—Smith did not
seek to introduce his diagnosis that way. He offered no authenticated medical

11
In sum, Rule 803 (4) has consistently been applied to allow the

introduction of statements made to medical professionals, not med-

ical diagnoses, and Smith cites no authority (nor are we aware of

any) supporting the introduction of a medical diagnosis under that

rule. The trial court therefore did not err by preventing Smith from

testifying that he had PTSD.

3. Smith also contends that the trial court erred by allowing

the State to impeach Smith with his prior charge under the Uniform

Code of Military Justice (UCMJ). We review a trial court’s eviden-

tiary rulings for abuse of discretion. See Eubanks v. State, 317 Ga.

563, 584 (6) (894 SE2d 27) (2023).

Smith had called a character witness, Jerry Mike, Smith’s for-

mer sergeant from the military, who testified that he would believe

Smith if Smith testified under oath. On cross-examination, the State

asked whether Mike’s opinion would change “if [he] learned that

record or other proof of a past diagnosis. See OCGA § 24-7-701 (a) (defining the
limited circumstances in which a lay witness can provide testimony “in the
form of opinions or inferences”). Instead, he sought to testify that doctors had
told him he had PTSD. And as discussed above, he argues that the hearsay
exception of Rule 803 (4) allowed him to do so.
12
Truman Smith has been charged in the military with fraudulent use

of another’s identity to avoid arrest or detection under Article 134 of

the Uniform[ ] Code of Military Justice.” Smith objected that he had

never been convicted of that charge, so it was not properly admitted

as impeachment evidence. See OCGA § 24-6-609 (allowing for a

criminal defendant to be impeached with prior convictions under

certain circumstances). But the State argued that the question fell

under OCGA § 24-6-608 (b), which allows a party to impeach a wit-

ness with “[s]pecific instances of the conduct of [the] witness” if the

conduct is “probative of truthfulness or untruthfulness.” The trial

court overruled the objection based on OCGA § 24-6-608 (b), and

Mike then testified that the UCMJ charge would not change his

opinion of Smith’s truthfulness.

When a witness has testified about the truthful character of a

second witness, as Mike did for Smith, the first witness (here, Mike)

can be cross-examined about specific instances of the second wit-

ness’s conduct (here, Smith’s conduct) that are probative of the sec-

ond witness’s character for truthfulness. See OCGA § 24-6-608 (b)

13
(2). But Smith points out on appeal that his UCMJ charge for fraud-

ulent use of another’s identity did not contain any information about

Smith’s conduct that led to the charge, only that he was administra-

tively discharged from the military as a result. In Smith’s view, that

means the UCMJ charge is not a “specific instance[ ]” of conduct un-

der OCGA § 24-6-608 (b) (2).

Assuming without deciding that Smith is right that it was an

abuse of discretion to allow the State to ask Mike about the UCMJ

charge, the error was harmless. A non-constitutional evidentiary er-

ror is harmless if it is “highly probable that the error did not con-

tribute to the verdict.” Talley v. State, 314 Ga. 153, 160 (2) (875 SE2d

789) (2022). That test is satisfied here. At trial it was undisputed

that Smith fatally shot Crawford, so the only question was whether

he did so in self-defense. Both third-party eyewitnesses, Dulles and

Castillo, testified that they did not recall any argument between

Smith and Crawford and that Smith shot Crawford suddenly and

without provocation. The only evidence to counter Dulles’s and Cas-

tillo’s accounts was Smith’s self-serving testimony that Crawford

14
had threatened him and appeared to be reaching for a gun. Com-

pared with that mix of evidence, the fact that Smith had been

charged with the non-violent offense of impersonating another was

highly unlikely to have swayed the jury against him. Indeed, Mike

even testified that the UCMJ charge would not affect his opinion of

Smith’s truthfulness, which the jury could have viewed as mitigat-

ing against any prejudice the revelation of the UCMJ charge may

have caused. Because the UCMJ charge was highly unlikely to have

made a difference given the evidence as a whole, any error in allow-

ing the State to ask about it was harmless. See Johnson v. State, 316

Ga. 672, 683-684 (4) (c) (889 SE2d 914) (2023) (harmless error to

admit single pre-autopsy photo of victim given strong evidence of

defendant’s guilt and the fact that the photo was less graphic, and

thus less likely to sway the jury, than other evidence); Young v.

State, 309 Ga. 529, 536-538 (3) (847 SE2d 347) (2020) (harmless er-

ror to admit photo of defendant holding a gun where evidence of de-

fendant’s guilt was strong and the evidentiary value of the photo

was “marginal”).

15
Judgment affirmed. All the Justices concur.

318 Ga. 868
FINAL COPY

S24A0236. SMITH v. THE STATE.

PINSON, Justice.

Truman Harry Smith shot and killed Johnnie Crawford while