Hightower v. StateHightower v. State
Appellant James Hightower was convicted of malice murder, two counts of aggravated assault, one count of aggravated battery, a firearm offense, and misdemeanor obstruction in connection with the shooting death of Anthony Bowers, the aggravated assaults of Demetrius Cosby and Myeisha Brown, and the aggravated battery of Cosby. Appellant contends that the trial court erred by making a comment that improperly bolstered an expert witness‘s credibility and that his trial counsel provided ineffective assistance by failing to object to the comment. Appellant also contends that his conviction for aggravated assault of Cosby should have been merged into his conviction for aggravated battery of Cosby. We affirm.1
Appellant approached the car on foot from the street, headed toward the passenger-side door, and continued around the back of the car until he reached the driver side. The front window was not working, so Bowers lowered the rear window and reached backward through the open window to hand Appellant a small bag of drugs. Appellant took the bag, reached into his pocket, and hesitated. Cosby, who was looking straight at Appellant, saw a gun in Appellant‘s pocket and immediately warned Bowers. Bowers started to drive away, but Appellant pulled out the gun and fired multiple shots into the car. Four bullets struck Bowers in the head, torso, and shoulder; he died instantly. Cosby was struck in the left hip and briefly blacked out. When he regained consciousness, the car was rolling out of the driveway and across the street because Bowers‘s foot was still on the gas pedal.
When the car crashed into the ditch across the street, the gunshots stopped “for a minute.” At that point, Cosby was able to move his right leg. Cosby asked Brown if she could see if Appellant was still there. She saw Appellant walking toward the car, so Cosby told her to play dead. Appellant then fired
When the police arrived, Brown told them what had happened. She described the shooter as a black man wearing a black hoodie and jeans. An officer had seen a man matching that description walking down a nearby road just before he arrived at the crime scene. The officer got back in his car and went to look for the man. He found Appellant, who is African-American, a few streets away wearing a black hoodie and dark jeans and pulled over to stop him and ask some questions. When the officer began to frisk Appellant, he ran away. The officer chased Appellant through an apartment complex and into a wooded area, where the officer found Appellant lying on the ground and arrested him. The police later recovered Appellant‘s cell phone at the apartment complex and a 9mm gun in the woods near where Appellant was arrested.
After Appellant was arrested, officers took a smartphone picture of him and showed it to Brown, who was still at the crime scene. She confirmed that Appellant was wearing the same clothes as the man who shot at her, Cosby, and Bowers, although Brown was later unable to identify Appellant‘s photo in a six-
Brown and Cosby testified at trial, and Cosby again identified Appellant as the shooter. Forensic experts testified that the bullets used in the shooting were 9mm bullets fired from the gun found in the woods near Appellant and that he had gunshot residue on his hands at the time of his arrest. In addition, cell phone records showed that Appellant and Bowers exchanged text messages about buying drugs and that Appellant had called Bowers shortly before the shooting. Appellant did not testify; his theory of defense was mistaken identity.
Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court‘s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to
2. Appellant contends that the trial court improperly bolstered the credibility of an expert witness in violation of
(a) At trial, the State called Dr. Michelle Stauffenberg, the Deputy Chief Medical Examiner for Fulton County, to testify about Bowers‘s autopsy and the cause and manner of his death. In response to questions about her qualifications, Dr. Stauffenberg explained among other things that she had testified as a forensic pathology expert 184 times. The State then asked the trial court to qualify her as an expert, and Appellant had no objection. The court,
(b) Appellant contends that the trial court‘s statement that “the doctor is a frequent witness in Fulton Court” violated
Appellant has not shown a violation of
Moreover, even assuming that a jury may consider a particular witness‘s testimony to be more credible when the judge unnecessarily mentions that the witness frequently testifies as an expert, Appellant cannot show that he was harmed. Appellant never disputed Dr. Stauffenberg‘s conclusions about the cause and manner of Bowers‘s death, which were immaterial to Appellant‘s defense of mistaken identity. Indeed, the only question Appellant‘s counsel asked Dr. Stauffenberg on cross-examination was whether she could identify the person who shot and killed Bowers, and she acknowledged that she could not. Accordingly, even if the trial court‘s comment made the jury more inclined to believe Dr. Stauffenberg‘s testimony, that comment had no likelihood of affecting the outcome of the trial.
(c) Appellant also contends that he received ineffective assistance of counsel because his trial counsel did not object to the court‘s comment. To
3. Finally, Appellant contends that the count charging aggravated assault against Cosby should have been merged into his aggravated battery conviction because both counts were based on the same conduct — his shooting at Cosby. We disagree. The two counts did not clearly charge the same conduct, and both of the surviving victims testified that there were two separate rounds of gunshots — the first when the car was in the driveway and rolling toward the ditch, and the second after the car had crashed into the ditch. There was a distinct interval between the two rounds, and they caused distinct injuries to Cosby. One shot during the first round hit Cosby in the left hip, but he was
Judgment affirmed. All the Justices concur.