Hightower v. State

FINAL COPY




                     S18A1238. HIGHTOWER v. THE STATE.


       NAHMIAS, Presiding Justice.

       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

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         The crimes occurred on March 22, 2014. On January 19, 2016, a Fulton County grand jury
indicted Appellant on the following 12 counts: malice murder (Count 1); felony murder based on
possession of a firearm by a first-offender probationer (Count 2); felony murder based on attempt
to purchase a controlled substance (Count 3); felony murder based on aggravated assault (Count 4);
aggravated assault against Bowers (Count 5); aggravated assault against Cosby (Count 6); aggravated
       1.      Viewed in the light most favorable to the verdicts, the evidence

presented at trial showed the following. Shortly after midnight on March 22,

2014, Appellant called Bowers, who occasionally sold drugs, to arrange a

meeting to buy some drugs. Cosby and his girlfriend Brown were at Bowers’s

house at the time and decided to ride along. The plan was for Bowers to drop

them off at Cosby’s house after making a quick detour to complete the drug

deal. Bowers drove toward the Discount Mall in Fulton County and backed into

the driveway of an abandoned house behind the shopping center. The three

friends then waited in the car for Appellant to show up. Neither Brown nor

Cosby knew whom Bowers was meeting; they had never met Appellant, and

Bowers had not told them Appellant’s name. As they waited, Brown was sitting


assault against Brown (Count 7); aggravated battery against Cosby (Count 8); attempt to purchase
a controlled substance (Count 9); possession of a firearm during the commission of a felony (Count
10); possession of a firearm by a first-offender probationer (Count 11); and misdemeanor obstruction
of a law enforcement officer (Count 12). Counts 2 and 11 were dead-docketed before Appellant’s
trial, which began on February 8, 2016, and ended three days later. The trial court directed a verdict
of acquittal on Counts 3 and 9, and the jury found Appellant guilty of the remaining eight counts.
The court sentenced him to serve life in prison for malice murder; 20 years each for the aggravated
assaults against Cosby and Brown and the aggravated battery against Cosby; five years suspended
for possession of a firearm; and 12 months for misdemeanor obstruction. Some of the sentences run
concurrently, so the total sentence was life plus 45 years with five years suspended. The remaining
counts were vacated or merged. Appellant filed a timely motion for new trial, which he amended
with new counsel on November 16, 2017. After an evidentiary hearing, the trial court denied the
motion on December 19, 2017. Appellant filed a timely notice of appeal, which he amended on
March 14, 2018. The case was docketed in this Court for the August 2018 term and submitted for
decision on the briefs.

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in the passenger seat, and Cosby was lying down in the back seat with his head

behind Brown and his feet behind Bowers.

      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

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four more shots into the car. One of the bullets struck Cosby in the back,

paralyzing him from the waist down. Appellant left the scene, and Brown, who

had not been hit, called 911.

      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-

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photo lineup. Cosby was hospitalized for his serious injuries; a few weeks after

the shooting, a detective interviewed him for the first time. Cosby was shown

a six-photo lineup and identified Appellant’s photo as a picture of the shooter.

      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, 

 (

, 61 LE2d 560) (1979). See also Vega

v. State, 

 (

) (2009) (“‘It was for the jury to

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determine the credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.’” (citation omitted)).

      2.      Appellant contends that the trial court improperly bolstered the

credibility of an expert witness in violation of OCGA § 17-8-57.2 We disagree.

      (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,

      2
        OCGA § 17-8-57 says:
              (a)(1) It is error for any judge, during any phase of any criminal case, to
      express or intimate to the jury the judge’s opinion as to whether a fact at issue has or
      has not been proved or as to the guilt of the accused.
          (2) Any party who alleges a violation of paragraph (1) of this subsection shall
      make a timely objection and inform the court of the specific objection and the
      grounds for such objection, outside of the jury’s hearing and presence. After such
      objection has been made, and if it is sustained, it shall be the duty of the court to give
      a curative instruction to the jury or declare a mistrial, if appropriate.
              (b) Except as provided in subsection (c) of this Code section, failure to make
      a timely objection to an alleged violation of paragraph (1) of subsection (a) of this
      Code section shall preclude appellate review, unless such violation constitutes plain
      error which affects substantive rights of the parties. Plain error may be considered on
      appeal even when a timely objection informing the court of the specific objection was
      not made, so long as such error affects substantive rights of the parties.
              (c) Should any judge express an opinion as to the guilt of the accused, the
      Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall
      grant a new trial.

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referring back to an earlier instruction about expert witness testimony, told the

jury: “She is an expert. Remember, I told you that experts, in weighing their

testimony, you’re not required to accept any testimony, expert or otherwise, but

the doctor is a frequent witness in Fulton Court.”

       (b)   Appellant contends that the trial court’s statement that “the doctor

is a frequent witness in Fulton Court” violated OCGA § 17-8-57, but he did not

object to that comment when it was made, so we review it only for plain error.

See OCGA § 17-8-57 (b). To establish plain error, Appellant must point to a

legal error that was not affirmatively waived, was clear and obvious beyond

reasonable dispute, affected his substantial rights, and seriously affected the

fairness, integrity, or public reputation of judicial proceedings. See Felton v.

State, 

 (

) (2018). To show that the error affected his

substantial rights, Appellant must demonstrate that it caused him harm, meaning

“that the outcome of the trial court proceedings likely was affected.” See 

.

       Appellant has not shown a violation of OCGA § 17-8-57, much less an

obvious error. OCGA § 17-8-57 (a) prohibits a judge from “express[ing] or

intimat[ing] to the jury the judge’s opinion as to whether a fact at issue has or

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has not been proved or as to the guilt of the accused.” The trial court’s comment

indicated nothing about Appellant’s guilt, and the fact that Dr. Stauffenberg “is

a frequent witness in Fulton Court” was not at issue. Appellant did not (and still

does not) dispute that fact or Dr. Stauffenberg’s qualification as an expert in

forensic pathology.

      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

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establish ineffective assistance, Appellant must show both deficient performance

of counsel and resulting prejudice. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). He can show neither. We

have just explained that the trial court’s comment did not violate OCGA § 17-8-

57, and counsel does not perform deficiently by failing to make a meritless

objection. See Watson v. State, 

 (

) (2018).

We also explained that the comment caused Appellant no harm, and “[t]he test

for prejudice in the ineffective assistance analysis is equivalent to the test for

harm in plain error review.” Id. at 762.

      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

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still able to move his right leg. Only after Appellant walked back toward the car

and fired the second round of shots was Cosby hit in the back and paralyzed.

Because the two rounds were separated by a deliberate interval and resulted in

different injuries, the trial court properly did not merge the aggravated assault

and aggravated battery counts. See Regent v. State, 

 (

) (2016). See also Oliphant v. State, 

 (

)

(2014) (finding no merger of aggravated assault counts where, after the initial

shooting, one assailant returned and shot the victim in the leg).

      Judgment affirmed. All the Justices concur.




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                        Decided December 10, 2018.

      Murder. Fulton Superior Court. Before Judge Downs.

      Moore Brown Law Group, Angela Z. Brown, for appellant.

      Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Teri B.

Walker, Assistant District Attorneys; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Vanessa T. Sassano, Assistant Attorney General, for

appellee.




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