Lowe v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion. In the Supreme Court of Georgia No. S26A0769 Lamour Lowe v. The State On Appeal from the Superior Court of DeKalb County No. 19CR40077 Decided: September 22, 2026 LAGRUA, Justice. Appellant Lamour Lowe challenges his convictions for malice murder and other crimes in connection with the shooting death of Larnell Thompson and aggravated assault against Orli Smenyo, Thompson’s girlfriend.1 Lowe contends that his trial 1 The crimes occurred on June 1, 2019. On December 19, 2019, a DeKalb County grand jury indicted Lowe for malice murder (Count 1), felony murder (Count 2), aggravated assault against Thompson (Count 3), aggravated assault against Smenyo (Count 4), and possession of a firearm during the commission of a felony (Count 5). At a trial from August 23 to 26, 2021, the jury found Lowe guilty of all charges. The trial court sentenced Lowe to serve life in prison with the possibility of parole for malice murder, twenty years in prison for the aggravated assault against Smenyo, to run consecutively to Count 1, and five years in prison for the firearm possession count, to run consecutively to Count 4. The other counts were vacated by operation of law or merged. Trial counsel filed a timely motion for new trial and an amended motion for new trial. New appointed appellate counsel filed amended motions for new trial in January and June 2024 Current appellate counsel filed further amended motions for new trial in May and June 2025. After an evidentiary hearing on August 4, 2025, the trial court entered an order denying the motion, counsel was constitutionally ineffective in several respects. For the reasons explained below, Lowe has not met his burden to show that his counsel’s performance was deficient, and we affirm. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that, in May 2019, Lowe and his girlfriend Zatania Joseph were staying in Pharoh Loving’s apartment in DeKalb County. Also staying there were Loving’s girlfriend, Joanna Cadet, Cadet’s children, and a friend of Thompson’s. Three days before the June 1 shooting, Thompson, Smenyo, and “Tay” 2 were playing music in the parking lot of the apartment complex where Loving lived, and Loving and Cadet confronted Thompson’s group about the loud music. During the confrontation, Loving believed Tay was “disrespectful” to Cadet, and the two men “exchanged words” and were going “back and forth.” Thompson “came in between” Loving and Tay “and tried to resolve the issue and tell them, you know, we’ll put the music down. You don’t have to worry about anything.” According to Smenyo’s testimony, “[t]hat was pretty much it.” On June 1, 2019, Thompson and Smenyo went to Loving’s apartment, looking for a friend of Thompson’s who stayed at the apartment occasionally. Thompson walked up to Loving’s second floor apartment while Smenyo stayed in the car, which was facing the stairs. Thompson knocked on the door, and Lowe and Loving stepped out of the apartment onto the balcony and spoke to Thompson; Cadet’s oldest child, who was 16 years old, was on the balcony, as well. Thompson and Lowe, who knew each other from middle school “greet[ed] each other,” and Thompson as amended, on September 18, 2025. Lowe filed a timely notice of appeal, and the case was docketed in this Court to the April 2026 term and was orally argued on May 5, 2026. 2 “Tay” was not otherwise identified during trial. 2 “complimented [Lowe] on his new tattoo.” After the three men talked for approximately 10 to 15 minutes, Thompson walked down the stairs, and Lowe and Loving followed him. By the time Thompson and Loving reached the bottom of the stairs, they were “going back and forth about what happened three days ago.” The discussion “escalate[d],” and Thompson “got a bit frustrated with it” and asked Loving if he “wanted to resolve it as in maybe go one on one.” Loving said, “No, I don’t want to fight you,” and “a few seconds later,” Lowe pulled a gun from behind his back. Thompson attempted to put up his hands, but Lowe shot Thompson several times. As Smenyo started to get out of the car to aid Thompson, Lowe fired several shots at her, and two bullets struck the car. Thompson died as a result of multiple gunshot wounds. The murder weapon was never found. 3 Smenyo stayed with Thompson, and when police officers responded to the scene, Smenyo spoke to them and provided a description of the shooter. After the shooting, Lowe and Loving ran upstairs, and Loving told everyone who was in the apartment that they “had to go.” When Lowe and Joseph met up with Loving and Cadet shortly thereafter at a nearby house, Loving told Lowe to cut his hair. 4 A few days later, Loving arranged for someone to drive Lowe and Joseph to Florida. Several months later, in September 2019, Lowe was arrested in Florida at the home of Joseph’s grandmother. The day after the shooting, Sergeant Garfield Trumble of the Clarkston Police Department located Loving at the hotel 3 Responding officers found four .40-caliber shell cartridges near Thompson, and it was later determined that the bullets removed during Thompson’s autopsy were fired from the same gun from which the cartridges were fired. 4 Smenyo testified that the shooter had shoulder length “dreads.” 3 where he, Cadet, and Cadet’s children were staying. Sergeant Trumble spoke with Cadet briefly and brought Loving to the police station for questioning “as a witness.” During questioning, Loving first denied being present when the shooting occurred, but when Loving was given Miranda 5 warnings, in Sergeant Trumble’s opinion, that “shook him up”. At that point, Loving described the shooter, giving the same description provided by Smenyo after the shooting, and said the shooter’s name was “Lamor or Lamour.” After Loving provided the name of the shooter, Sergeant Trumble allowed Loving to leave. Sergeant Trumble ultimately identified Lowe as the suspect Loving had named as “Lamor or Lamour.” Three days after the shooting, another Clarkston Police officer showed Smenyo a photo lineup, and Smenyo picked Lowe out as the shooter. At trial, Smenyo identified Lowe in the courtroom as the person who shot Thompson and then shot at her. At trial, Cadet testified that on the day of the shooting, she and Loving were away from the apartment all day and found out about the shooting when someone called Loving. Loving also initially testified that he and Cadet were away from the apartment all day, although Loving’s account of their activities differed from Cadet’s. When asked about other witnesses who placed Loving at the scene of the shooting and described him leaving the apartment immediately after the shooting, Loving said the witnesses were “lying.” The prosecutor then asked if Loving “left the apartment with [Lowe] that day,” and Loving responded, “You know what. I’m going to put everything on the line right now. Everything you just said is true, and I’m going to leave it at that.” Loving proceeded to testify that he was asleep 5 Miranda v. Arizona, 384 US 436 (1966). 4 alone in the apartment when he was awakened by gunshots and that he got up, got dressed, and left the apartment by the front door. He said he did not see Thompson lying on the ground because it was “real sunny” and he “went the other way.” Loving testified that he did not see the shooting and that he did not remember what he told officers about the shooting. 1. Lowe contends that his trial counsel was constitutionally ineffective in several respects. In order to prevail on a claim of ineffective assistance, an appellant must establish that his lawyer performed deficiently and that he was prejudiced as a result. See Strickland v. Washington, 466 US 668, 687 (1984). To establish deficient performance, an appellant must demonstrate that his trial counsel’s acts or omissions were objectively unreasonable, in view of all the circumstances at the time and in the light of prevailing professional norms. See Strong v. State, 323 Ga. 737, 748 (2026). “Decisions regarding trial tactics and strategy … may form the basis for an ineffectiveness claim only if such decisions are so patently unreasonable that no competent attorney would have followed the same course.” Id. “To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel’s deficient performance, the result of the trial would have been different.” Sneed v. State, 324 Ga. 175, 179 (2026) (quotation marks omitted). (a) Lowe’s first claim of ineffective assistance relates to testimony from one of the officers who participated in the arrest of Lowe. That officer testified that he approached the apartment where Lowe was staying and that, when a woman opened the door in response to his knock, Lowe “was standing right inside in plain sight”; Lowe came out at the officer’s command and other officers behind him “placed [Lowe] into custody.” When the prosecutor asked the officer to describe Lowe’s “demeanor that day” and 5 whether Lowe “ask[ed] you any questions or anything like that,” the officer responded that Lowe “wasn’t surprised to see us,” that he looked “defeated,” that he did not ask any questions, and that “he didn’t have a lot of interaction with” the other people in the apartment. 6 During closing argument, the prosecutor relied on this testimony in arguing as follows: And that at his arrest, you heard he wasn’t surprised, didn’t ask any questions, looked defeated. Can you imagine if you’re not expecting it, eight officers coming through your door and taking you into custody for murder, a murder you didn’t do, that you don’t know anything about, and you don’t have anything to say? You don’t look surprised? That’s not reality. There is no way. The reason he isn’t surprised, the reason he’s not asking questions is because he knows he’s guilty. He knows it. He knows that on June the 1st of 2019, he took this young man’s life. He knows he’s responsible. We all know he’s responsible. Trial counsel did not object to this line of argument, and Lowe contends that trial counsel was deficient in failing to object because the prosecutor’s argument was an improper comment on Lowe’s post-arrest, pre-Miranda exercise of his right to silence. 7 6 Lowe did not object to the officer’s testimony, and Lowe does not contend on appeal that his trial counsel was deficient in failing to object. 7 The record is not entirely clear, but the context of some of the exchange between the prosecutor and the arresting officer appears to address Lowe’s demeanor pre-arrest. However, the parties do not suggest that the officer’s testimony about Lowe not asking any questions, or the prosecutor’s 6 Lowe acknowledges that there is no binding precedent precluding a prosecutor from eliciting testimony about or commenting on a defendant’s post-arrest, pre-Miranda silence. And he recognizes that, in State v. Spratlin, we held that the absence of controlling precedent on this same issue meant that the appellant’s trial counsel “[could not] be deemed deficient for failing to object” to a detective’s testimony about the appellant’s post-arrest, pre- Miranda silence. 305 Ga. 585, 593 (2019). See also Lenon v. State, S26A0756, slip op. at 7 (Ga. Aug. 13, 2026) (2026 WL 2349292, *3) (rejecting claim that trial counsel was deficient in failing to file a motion to suppress “[b]ecause there is no binding legal precedent supporting the merits of [appellant’s] argument”); Stewart v. State, 311 Ga. 471, 477 (2021) (rejecting claim that trial counsel was deficient in failing to make an objection that was not supported by existing precedent); Eller v. State, 303 Ga. 373, 384 (2018) (explaining that trial counsel is not deficient for failing to make an objection that is based on an unsettled question of law), overruled in part on other grounds, Lester v. State, 310 Ga. 81, 93 (2020). We have not yet decided the question ourselves, and as Lowe recognizes, there remains a split among federal circuit courts about whether a prosecutor is permitted to elicit testimony about or comment on a defendant’s post-arrest, pre-Miranda silence. See United States v. Cabezas-Montano, 949 F3d 567, 595 (11th Cir. 2020) (noting that Eleventh Circuit Court of Appeals precedent permits the prosecution to use in its case-in-chief “a defendant’s post-arrest, pre-Miranda silence as direct evidence tending to prove the defendant’s guilt,” while noting that a circuit argument commenting on Lowe’s failure to ask questions, is a comment on pre- arrest silence. Thus, we address the prosecutor’s argument about Lowe not asking any questions as involving a comment on post-arrest silence. 7 split remains on that question); United States v. Wilchombe, 838 F3d 1179, 1190 (11th Cir. 2016) (noting that several circuits “prohibit the use of even pre-arrest silence as substantive evidence of guilt”). 8 See also Charles Alan Wright & Arthur P. Miller, 1 Federal Practice and Procedure, Rules of Criminal Procedure, Ch. 3, Rule 5 § 75 nn. 14–15 (5th ed. Supp. 2026). Nevertheless, Lowe, relying primarily on federal case law, contends that an absence of controlling authority does not necessarily mean that trial counsel was not deficient in failing to object. See, e.g., Diaz v. United States, 799 FApp’x 685, 688 (11th Cir. 2020) (holding that “the mere absence of authority does not automatically insulate counsel’s failure to object,” and explaining that, “if other circuit courts have addressed the issue on the merits, this may indicate that a challenge on such grounds was not wholly without precedent” (quoting Gallo-Chamorro v. United States, 233 F3d 1298, 1304 (11th Cir. 2000))). 9 See also Rickman v. State, 277 Ga. 277, 280 (2003) (stating in dicta that “only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law” (quoting Sistrunk v. Vaughn, 96 F3d 666, 671 (3d Cir. 1996)). However, Spratlin’s holding that trial counsel is not deficient in this specific situation—failing to object to testimony about a defendant’s post-arrest, pre-Miranda silence—remains 8 The United States Supreme Court previously granted certiorari “to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief,” but did not reach the issue because the defendant had not invoked the privilege. Salinas v. Texas, 570 US 178, 183 (2013). 9 The decisions of federal courts of appeals on matters of federal law are “not binding on this [C]ourt.” Lenon, S26A0756, slip op. at 6 n.5 (2026 WL 2349292, *3 n.5). 8 binding precedent, and Lowe has not asked us to reconsider Spratlin. See 305 Ga. at 593. Nor has Lowe cited any binding precedent contrary to Spratlin, and we have found none. Therefore, the absence of controlling precedent prohibiting a prosecutor’s comment on a defendant’s post-arrest, pre-Miranda silence is fatal to Lowe’s claim that his counsel was deficient in not objecting to the prosecutor’s closing argument. See id.; Eller, 303 Ga. at 384. Accordingly, Lowe cannot prevail on this claim of ineffective assistance of counsel. (b) Lowe next contends that Loving was an accomplice and that his trial counsel was deficient in failing to request an instruction on the requirement for accomplice corroboration. See OCGA § 24-14-8 (providing that “where the only witness is an accomplice, the testimony of a single witness [to establish a fact] shall not be sufficient” and that “corroborating circumstances may dispense with the necessity for the testimony of a second witness”). 10 See also Hamm v. State, 294 Ga. 791, 796 (2014) (holding that, when requested, an accomplice-corroboration instruction should be given when “there is slight evidence supporting a finding that the witness was an accomplice,” even if the State relies on other evidence connecting the defendant to the crime). At the hearing on Lowe’s motion for new trial, trial counsel 10 OCGA § 24-14-8 provides, in full: The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason. 9 testified that, in his preparation for trial, he had considered whether Loving might be considered an accomplice but ultimately “dismissed that as being a possibility.” Instead, his theory of the case was that Lowe had no motive to, and did not, shoot the victim and that the other witnesses “had either some motivation to not be truthful or were themselves potential participants.” Given trial counsel’s testimony regarding the defense theory, we cannot say that his decision not to seek an accomplice corroboration charge was so patently unreasonable that no competent attorney would have made the same decision. See Jiles v. State, 320 Ga. 605, 610– 11 (2024) (holding that trial counsel’s decision not to request a charge on accomplice corroboration was professionally reasonable where trial counsel’s perception of the evidence did not warrant it); Hardy v. State, 317 Ga. 736, 741–42 (2023) (trial counsel was not deficient in failing to request an accomplice-corroboration charge where such a charge would have conflicted with the defense theory). Thus, this claim of ineffective assistance of counsel fails. (c) Lowe’s final claim of ineffective assistance of counsel relates to questions trial counsel asked Sergeant Trumble at trial. Specifically, trial counsel asked Sergeant Trumble several questions about whether the officer believed pretrial statements made by Loving and Cadet were truthful. For example, trial counsel asked, “Did you believe anything [Loving] said,” to which Sergeant Trumble responded, “Some of it, yes.” Sergeant Trumble went on to explain that he thought Loving was trying to protect himself by denying being present and that, once Loving understood the investigator “wasn’t going to get [Loving] into trouble,” Loving provided Lowe’s name. Later, trial counsel asked, “So Pharoh Loving today looking backwards wasn’t telling you the truth about a lot of things, but you think that when he gave you the name of a suspect … What did he say Mr. Lowe’s 10 involvement was?” Sergeant Trumble responded that Loving “said the shooter was Lamar or Lamour.” Trial counsel also asked, “You think [Cadet] told you the truth about anything,” and the officer responded, “I don’t think she told me the truth about anything.” Lowe contends that trial counsel’s questioning of Sergeant Trumble about the truthfulness of the witnesses’ pretrial statements was objectively unreasonable because the issue of a witness’s credibility is solely within the province of the jury. See OCGA § 24-6-620 (“The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.”). This claim fails. Lowe’s trial counsel testified at the motion-for-new-trial hearing that he cross-examined Sergeant Trumble about his beliefs regarding the veracity of certain witnesses because he wanted “to have the jury wonder whether or not the detective even took seriously the witnesses that he claims could verify his findings regarding my client and his alleged guilt.” Trial counsel also explained that Loving had just testified in an “unusual” way—saying that everything he had previously said was not true—and trial counsel believed that Sergeant Trumble would have found Loving’s statements lacking in credibility from the beginning. Additionally, the record shows that trial counsel thoroughly cross-examined Sergeant Trumble about the scope of his investigation, including his failure to question other witnesses, particularly Cadet’s teenage son who was on the balcony when the shooting occurred. And, in closing arguments, trial counsel asserted that Loving and Cadet were not credible and that once Loving said the shooter was “Lamor or Lamour,” 11 Sergeant Trumble “dispensed without any other investigation” and unreasonably failed to follow other potential avenues of investigation. “Decisions about what questions to ask on cross- examination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel.” Bradford v. State, 323 Ga. 675, 693 (2026) (cleaned up). Considering the challenged questions in the context of the cross-examination as a whole, we cannot say that trial counsel’s cross-examining of Sergeant Trumble about his view of the veracity of Loving and Cadet’s statements was so patently unreasonable that no competent attorney would have made the same decision. See Richardson v. State, S26A0672, slip op. at 6–8 (Aug. 18, 2026) (2026 WL 2395750, *3-4) (concluding that trial counsel was not deficient in cross-examining investigator about why he charged the defendant with murder and eliciting testimony that “[he] saw it as murder” and “that’s murder all day”); Bradford, 323 Ga. at 693 (concluding that, in cross-examining investigator, trial counsel was not deficient in “opening the door” to evidence that two witnesses had given statements identifying the defendant when counsel argued that the trial witnesses never identified the defendant). Thus, this final claim of ineffectiveness fails, as well. 2. In his final enumeration of error, Lowe asserts that reversal is required under State v. Lane, 308 Ga. 10, 14 (2020). However, Lowe has not asserted any claim of trial court error, so the Lane cumulative error rule does not apply. See Graham v. State, 323 Ga. 496, 503 (2026). Additionally, because we have neither identified nor assumed any instance of deficient performance of trial counsel, there is no Strickland prejudice to consider collectively. See id. See also Schofield v. Holsey, 281 Ga. 809, 811 n.1 (2007), overruled on other grounds by Lane, 308 Ga. 12 at 17. Accordingly, this claim fails as well. Judgment affirmed. All the Justices concur. 13  COLVIN, Justice, concurring. I fully concur in the majority opinion and write separately only to highlight an important constitutional issue that I hope we can resolve in a future case. As noted in Division 1(a), there is a split among federal circuit courts over whether a prosecutor is permitted to elicit testimony about, or comment on, a defendant’s post-arrest, pre-Miranda silence. 1 Our Court has yet to address this issue. 2 In this case, however, defense counsel did not object to testimony about Lowe’s demeanor and silence when he was placed in custody, before any Miranda warnings were given. And Lowe has not asked us to reconsider our precedent holding that 1 At present, three circuits permit prosecutors to elicit testimony about a defendant’s post-arrest, pre-Miranda silence. See United States v. Love, 767 F2d 1052, 1063 (4th Cir. 1985); United States v. Rivera, 944 F2d 1563, 1568 (11th Cir. 1991); United States v. Frazier, 408 F3d 1102, 1111 (8th Cir. 2005). Two circuits prohibit prosecutors from introducing evidence of a defendant’s post-arrest, pre-Miranda silence. United States v. Moore, 104 F3d 377, 389 (D.C. Cir. 1997); United States v. Hernandez, 476 F3d 791, 796 (9th Cir. 2007). Further, opinions addressing the use of a defendant’s pre-arrest silence sug- gest that five other circuits would likewise prohibit the use of post-arrest, pre- Miranda silence, at least under certain circumstances. Specifically, two cir- cuits prohibit prosecutors from introducing evidence of a defendant’s pre-arrest silence. See Savory v. Lane, 832 F2d 1011, 1017 (7th Cir. 1987); Combs v. Coyle, 205 F3d 269, 283 (6th Cir. 2000). And three circuits prohibit prosecutors from introducing evidence of a defendant’s pre-arrest silence if the defendant in- voked his right to remain silent. See United States v. Burson, 952 F2d 1196, 1200-01 (10th Cir. 1991); Coppola v. Powell, 878 F2d 1562, 1568 (1st Cir. 1989); United States v. Okatan, 728 F3d 111, 120 (2nd Cir. 2013). 2 We did not have to confront this constitutional question because Mal- lory v. State, 261 Ga. 625, 630 (1991) held, as a matter of state evidentiary law, that “a comment upon a defendant’s silence ... is far more prejudicial than pro- bative.” Mallory was overruled by State v. Orr, which held that “Mallory’s cat- egorical, bright-line rule ... was abrogated by [Georgia’s] new Evidence Code.” 305 Ga. 729, 739 (2019). Since Orr, we have not considered this issue from a constitutional perspective. defense counsel is not deficient for failing to object to testimony about a defendant’s post-arrest, pre-Miranda silence. Accord- ingly, the procedural posture of this case prevents us from reach- ing the merits of whether eliciting such testimony infringes upon a defendant’s constitutional right to silence. However, this is an issue that our court should address in the appropriate case. 2