314 Ga. 788
Ga.2022Background
- Lowe was indicted for Erica Powell’s July 20, 2017 shooting death (malice murder, two felony-murder counts, aggravated assault, weapons offenses) and for separate August 19, 2015 domestic violence offenses against Powell and others; Lowe pled guilty pretrial to several 2015 counts but reserved sentencing pending the murder trial.
- Evidence showed a history of domestic violence: a 2015 intoxicated assault on Powell witnessed by her children and responding officers, and a pattern of controlling, substance-fueled violence; 2017 facts included Powell shot in bed, two shell casings, no forced entry, and physical/forensic evidence inconsistent with Lowe’s claim of an accidental discharge during a struggle.
- The trial court denied Lowe’s pretrial motion to sever the 2015 charges from the 2017 murder charges, reasoning that the 2015 acts would have been admissible under OCGA § 24-4-404(b) (other-acts evidence) to show motive, intent, and absence of accident.
- Trial resulted in convictions on two felony-murder counts (predicated on aggravated assault and on possession of a firearm by a convicted felon), family-violence aggravated assault, cruelty to children, and other counts; Lowe was sentenced to life without parole on the felony-murder counts and multiple concurrent/consecutive terms on other counts.
- On appeal Lowe argued (1) the trial court abused its discretion in refusing severance and (2) trial counsel was ineffective for failing to base the severance argument on the 1980 ABA joinder standards; the Supreme Court of Georgia affirmed denial of severance and rejected the ineffective-assistance claim but vacated the double felony-murder sentencing and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Lowe) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying severance of 2015 offenses from the 2017 murder trial | Joinder was improper; the offenses were not part of a continuing scheme, two years apart, and joinder solely for similarity caused unfair prejudice | The 2015 acts were part of a continuing pattern and would be admissible under Rule 404(b) to show motive, intent, and absence of accident, so joinder/denial of severance was proper | Denial affirmed — offenses were sufficiently related and 2015 acts would have been admissible under OCGA § 24-4-404(b), so no abuse of discretion |
| Whether trial counsel was ineffective for not invoking the 1980 ABA joinder standards in support of severance | Counsel performed deficiently by failing to rely on the 1980 ABA standards, and that deficiency prejudiced the motion result | Counsel reasonably relied on controlling Georgia precedent (Dingler and related Georgia cases); the 1980 ABA Standards are non-binding and would not have changed the outcome | Claim rejected — counsel’s performance not objectively unreasonable; no Strickland relief |
| Whether Lowe may be sentenced on two felony-murder counts arising from a single victim | Sentencing on both felony-murder counts impermissibly subjected Lowe to multiple punishments for a single homicide | State conceded sentencing on both counts was improper and remand was appropriate | Felony-murder sentences vacated in part; remand for resentencing on only one felony-murder predicate |
Key Cases Cited
- Dingler v. State, 233 Ga. 462 (1975) (adopted ABA-based criteria for joinder of offenses)
- Simmons v. State, 282 Ga. 183 (2007) (joinder proper when evidence of one charge admissible in trial of another)
- Jones v. State, 301 Ga. 544 (2017) (three-part test for admissibility of other-acts evidence under Rule 404(b))
- Smart v. State, 299 Ga. 414 (2016) (Rule 403 balancing for other-acts evidence; probative value vs. unfair prejudice)
- Harrison v. State, 310 Ga. 862 (2021) (other-acts evidence probative to show motive and rebut accident/self-defense claims)
- Hounkpatin v. State, 313 Ga. 789 (2022) (temporal remoteness weighed against similarity and probative value)
- Thompson v. State, 308 Ga. 854 (2020) (factors for weighing probative value of other-acts evidence)
- Harris v. State, 274 Ga. 835 (2002) (cannot sentence on multiple felony-murder counts for a single homicide)
- Turner v. State, 281 Ga. 487 (2007) (same rule precluding multiple felony-murder convictions/punishments for one death)