Hightower v. State
304 Ga. 755
| Ga. | 2018Background
- On March 22, 2014, James Hightower allegedly shot into a car after arranging a drug buy; Anthony Bowers was killed and Demetrius Cosby and Myeisha Brown were injured. Hightower pleaded mistaken identity at trial.
- Eyewitness evidence: Brown initially described the shooter and later could not ID a photo lineup; Cosby identified Hightower in a photo lineup weeks after the shooting and at trial. Brown testified at trial and confirmed clothing seen; Cosby also identified Hightower at trial.
- Physical evidence: police recovered a 9mm gun near where Hightower was arrested, gunshot residue on Hightower’s hands, and cell-phone records and calls tying him to Bowers before the shooting.
- Procedural posture: Hightower was indicted on multiple counts, tried in Fulton Superior Court, convicted of malice murder, two counts of aggravated assault, aggravated battery, a firearm offense, and misdemeanor obstruction; sentenced to life plus additional years. He appealed.
- Issues on appeal: (1) whether the trial judge improperly bolstered an expert witness by stating she frequently testifies in Fulton Court, and (2) whether trial counsel was ineffective for failing to object; (3) whether aggravated assault and aggravated battery concerning Cosby should have merged.
Issues
| Issue | Hightower's Argument | State's Argument | Held |
|---|---|---|---|
| Judicial bolstering under OCGA § 17-8-57 | Trial judge’s remark that the medical examiner "is a frequent witness in Fulton Court" improperly bolstered the expert | The comment did not express an opinion on guilt or facts at issue and merely noted a noncontroversial fact about the witness | No violation; remark not prohibited under § 17-8-57 and reviewed for plain error — none shown |
| Plain error review (failure to object) | No timely objection; asks for reversal under plain error | Must show clear, obvious error that affected substantial rights; Hightower cannot show harm | No plain error: even if remark favored witness, it did not affect outcome or substantial rights |
| Ineffective assistance for failure to object | Counsel deficient for not objecting to judge’s remark | Failure to object to a non-meritorious issue is not deficient; no prejudice shown | Ineffective assistance claim fails: no deficient performance and no prejudice per Strickland |
| Merger of aggravated assault and aggravated battery (Cosby) | The aggravated assault should merge into aggravated battery because based on same conduct | Two distinct rounds of shooting separated by a deliberate interval caused separate injuries | No merger: separate shootings with distinct injuries justified separate convictions |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Vega v. State, 285 Ga. 32 (deference to jury on witness credibility)
- Felton v. State, 304 Ga. 565 (plain error standard for judicial comments)
- Watson v. State, 303 Ga. 758 (meritless objections and counsel performance)
- Strickland v. Washington, 466 U.S. 668 (two-pronged ineffective assistance standard)
- Regent v. State, 299 Ga. 172 (merger analysis for multiple shootings)
- Oliphant v. State, 295 Ga. 597 (no merger where assailant returned and inflicted new injury)