Higginbotham v. The State

• Decision Date: 17 May 2010
• Docket Number: No. S10A0462.,S10A0462.
• Citation: 287 Ga. 187,695 S.E.2d 210
• Parties: HIGGINBOTHAMv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 187
695 S.E.2d 210

HIGGINBOTHAM
v.
The STATE.

No. S10A0462.

Supreme Court of Georgia.

May 17, 2010.

695 S.E.2d 211

Jennifer A. Trieshmann, Atlanta, for appellant.

T. Joseph Campbell, District Attorney, Thurbert E. Baker, Attorney General, David A. Zisook, Assistant Attorney General, Stewart D. Bratcher, Calhoun, for appellee.

695 S.E.2d 212

BENHAM, Justice.

Appellant Brandon Higginbotham was convicted of the 2006 malice murder of Pierre King in Calhoun, Georgia, and sentenced to life imprisonment. He was also convicted of use of a weapon while a convicted felon and possession of a firearm during the commission of a crime and received terms of years to be served consecutively to each other and to the life sentence for the malice murder conviction.¹ On appeal, he contends he did not receive effective assistance of trial counsel, the State did not provide him with material and exculpatory evidence prior to trial, his constitutional right to confront the witnesses against him was compromised, and the trial court erred when it did not give a requested charge on no duty to retreat.

1. Pierre King died on January 9, 2006, as a result of a gunshot wound that perforated his aorta and injured both of his lungs. Witnesses who had known appellant for years testified that appellant, the former boyfriend of King's current girlfriend, entered King's apartment with a gun visible in his waistband and forced his former girlfriend to leave the apartment. He and the woman struggled outside the apartment, with the mother of the woman intervening. The victim came from his apartment, fought with appellant, and fled when someone shouted appellant had a gun. Two women sitting in a nearby car identified appellant as the only person they saw holding a gun when they heard gunshots, and one of the women testified she saw appellant pull a black handgun from his side and fire three or four shots at the victim. The State introduced certified copies of appellant's 2003 conviction for violation of the Georgia Controlled Substances Act and his 2002 conviction for possession of a firearm by a convicted felon. The evidence was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of malice murder, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends his constitutional rights to due process and a fair trial were violated when the State failed to apprise defense counsel prior to trial of potentially exculpatory information related by the GBI's expert firearms examiner during his testimony. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The expert testified that the bullet extracted from the victim was a 9mm Black Talon manufactured by Winchester, with a rifling configuration consistent with having been fired from a gun manufactured by Hi-Point. The expert identified the four shell casings found at the scene to be 9mm Lugars manufactured by Remington that were consistent with being fired from a firearm manufactured by Hi-Point. Without the firearm, the expert testified, there was no way to say that the bullet removed from the victim had been fired from the same gun from which the shell casings were ejected.²

Appellant contends the State's failure to apprise defense counsel before trial of the

695 S.E.2d 213

expert's findings violated Brady. However, trial counsel voiced no Brady objection during the expert's testimony. Appellant's failure to raise the issue at trial forecloses review of the issue on appeal. See Wisdom v. State, 234 Ga. 650, 651-652, 217 S.E.2d 244 (1975) Bell v. State, 203 Ga.App. 109(1), 416 S.E.2d 344 (1992).

3. Appellant also takes issue with the admission of the testimony of the first-responding police officer that, in response to her question of what happened, the victim's hysterical girlfriend said that appellant had shot the victim. The girlfriend did not testify at trial, and appellant objected to the admission of the officer's hearsay testimony. Before this Court, appellant contends the admission of the officer's testimony violated his constitutional right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. See also Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

There is a distinct difference between a challenge to the admission of evidence based upon the Confrontation Clause and that based upon an exception to the hearsay rule.... Consequently, [appellant's] failure to raise an objection to the admission of the evidence under the Sixth Amendment precludes consideration of the issue on appeal.

Walton v. State, 278 Ga. 432(1), 603 S.E.2d 263 (2004). See also Treadwell v. State, 285 Ga. 736(1)(a), 684 S.E.2d 244 (2009).

4. Appellant believes there was reversible error in the trial court's failure to give a requested charge on no duty...