Lowe v. State
298 Ga. 810
Ga.2016Background
- Victim Lisa Davis was shot and killed in her home on January 29, 2013; Velinsa Johnson, who lived there, heard the entry and gunshots and later encountered Herbert Lowe with a gun.
- Johnson testified Lowe stood over Davis in the kitchen, threatened Johnson, forced her to the bathroom floor at gunpoint, and refused her pleas to call 911; Lowe left after several hours and Johnson then called police.
- Lowe surrendered a Kel-Tec 9mm handgun; forensic testing linked two shell casings, a projectile from a cabinet, and fragments recovered from Davis’ body to that gun.
- Medical examiner testified Davis sustained two gunshot wounds, one to the back consistent with a crouched position and shot fired from 18–24 inches away; scene evidence supported a shot fired at a person crouching.
- Lowe testified he found Davis pointing a gun at him and claimed self-defense or accident; he admitted he did not render aid or summon help.
- Lowe was convicted of felony murder and related offenses and sentenced to life plus consecutive terms; he appealed claiming insufficient evidence, erroneous denial of statutory self-defense immunity, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence | State: evidence supports convictions beyond reasonable doubt | Lowe: shooting was self-defense or accidental; evidence insufficient | Affirmed — evidence sufficient to support convictions under Jackson v. Virginia |
| Denial of immunity under OCGA § 16-3-24.2 | State: immunity not established by preponderance | Lowe: entitled to pretrial immunity as he shot in self-defense | Affirmed — court properly denied immunity after weighing testimony and forensics |
| Ineffective assistance for indictment name error | State: misnomer caused no prejudice | Lowe: counsel should have filed misnomer/demurrer or sought dismissal | Affirmed — no prejudice shown because identity not disputed |
| Ineffective assistance for failing to call witness | State: omission caused no prejudice | Lowe: omitted witness would have supported demeanor evidence | Affirmed — Lowe failed to proffer witness testimony; no prejudice shown |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Bunn v. State, 284 Ga. 410 (2008) (burden to establish self-defense immunity by preponderance)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Wesley v. State, 286 Ga. 355 (2010) (application of Strickland in Georgia)
- Green v. State, 291 Ga. 579 (2012) (no need to analyze both Strickland prongs if one fails)
- Hampton v. State, 272 Ga. 284 (2000) (credibility and inconsistencies are for the factfinder)