Lowe v. StateLowe v. State
Appellant Herbert Lowe was convicted of felony murder and related offenses in connection with a shooting at the home of victim Lisa Davis in January 2013. Lowe now appeals, contending that the evidence was insufficient to support his convictions, the trial court erred in rejecting his immunity motion, and his trial counsel rendered constitutionally ineffective assistance. Finding no error, we affirm.1
Viewed in the light most favorable to the jury‘s verdicts, the evidence adduced at trial established as follows. On the morning of January 29, 2013, Davis was shot and killed in her Forest Park home. Velinsa Johnson, who had been residing at Davis’ home, was in her upstairs bedroom at the time of the shooting. At approximately 8:00 a.m., Johnson heard the garage door chime, indicating someone had entered the home, followed closely by two “pops.” Johnson exited her
After viewing the scene downstairs, Johnson testified, she fled back to her bedroom. Lowe followed her, pointing the gun at her and remarking, “I could kill you.” Johnson testified further that Lowe forced her to the bathroom floor at gunpoint and refused Johnson‘s pleas to call 911. Several hours elapsed, during which Johnson could hear Lowe walking up and down the stairs and the sound of the garage door chime. At some point at least an hour into the ordeal, Johnson testified, Lowe told Johnson that Davis had pulled a gun on him. After approximately four hours, Lowe left, and Johnson called 911. Shortly thereafter, Lowe turned himself in to authorities, surrendering a Kel-Tec nine millimeter handgun.
The crime scene investigation uncovered a nine millimeter projectile inside one of the lower kitchen cabinets and two nine millimeter shell casings, one on the stove top and one in the sink. In the investigator‘s opinion, the location and angle of the bullet hole in the cabinet were consistent with a shot fired at a person crouching down in the corner.
A GBI firearms examiner determined that the shell casings and projectile, in addition to a bullet and jacket fragment recovered from Davis’ body, had all been fired from the nine millimeter handgun that Lowe had turned over to police. The medical examiner observed on Davis’ body two gunshot wounds, one to her upper back and the other to her chest. The medical examiner opined that the shooter had been at least 18 to 24 inches away from Davis when the shots were fired, and that the “wound track” of the shot to Davis’ back was consistent with the conclusion that she had been in a crouched position when she was shot.
A close friend of Davis testified that Davis had asked Lowe to move out several weeks prior to the shooting and that, since that time, Davis had expressed concerns that Lowe was following her and rummaging through her papers and belongings. The friend also testified that Davis had given her instructions regarding her will in the event of her death.
The defense contended that Lowe had shot Davis only after she pulled a gun on him. Lowe testified at trial that it was he, not Davis, who had initiated the idea of his moving out, and that, on the morning of the shooting, he was packing up some of his belongings, intending to “just get some space.” Lowe testified that, as he was preparing to leave, he reentered the house through the kitchen to find Davis
1. The evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Lowe was guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Undermining Lowe‘s claims of self-defense and accident, the evidence supported a finding that one of the two gunshots entered Davis from the back while she was in a crouched position. Though Lowe maintained that Davis pointed a gun at him, the jury was authorized to disbelieve this testimony, particularly given his failure to render aid and refusal to summon emergency assistance after the shooting. See Hampton v. State, 272 Ga. 284 (1) (527 SE2d 872) (2000) (assessing witness credibility and resolving evidentiary inconsistencies are within the province of the factfinder).2
2. Lowe contends that the trial court erred in denying his pre-trial motion for immunity based on self-defense. See
3. Lowe also contends that his trial counsel rendered ineffective assistance. To establish ineffective assistance of counsel, a defendant must show both that his counsel‘s performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been
Here, Lowe claims his counsel was ineffective for (1) failing to file a plea of misnomer or a general demurrer, or to seek dismissal of the indictment, due to the indictment‘s misspelling of Lowe‘s middle name; and (2) failing to call a particular witness at trial to testify regarding Lowe‘s demeanor on the day before the shooting. Insofar as Lowe does not challenge his identity as the accused in this case,3 Lowe cannot demonstrate any prejudice from the typographical error in the indictment or counsel‘s failure to take corrective action in that regard. Likewise, given Lowe‘s failure to proffer the expected testimony of the witness he faults counsel for omitting, he cannot establish any prejudice from counsel‘s failure to call that witness.
Judgment affirmed. All the Justices concur.