Lowe v. State

• Citation: 314 Ga. 788,879 S.E.2d 492
• Decision Date: 04 October 2022
• Docket Number: S22A0812
• Parties: LOWE v. The STATE.
• Court: Supreme Court of Georgia

314 Ga. 788

879 S.E.2d 492

LOWE

v.The STATE.

S22A0812

Supreme Court of Georgia.

Decided: October 4, 2022

C. Samuel Rael, 2221 Peachtree Road Suite D-114, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Patsy A. Austin-Gatson, District Attorney, Christopher Mark DeNeve, Assistant District Attorney, Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Appellee.

Ellington, Justice.

A Gwinnett County jury found Walter Jerome Lowe guilty of felony murder and other offenses in connection with the July 2017 shooting death of his wife, Erica Powell.¹ The jury also found Lowe guilty of family violence aggravated assault and cruelty to children in the third degree, crimes that occurred on August 19, 2015. Lowe enumerates two claims of error, both of which are related to the joinder in one indictment of the 2015 acts of domestic violence against Powell and her 2017 murder: (a) the trial court erred in denying Lowe's motion to sever and (b) trial counsel's deficient argument in support of Lowe's motion to sever constituted ineffective assistance.

As more fully explained below, because Lowe's 2015 criminal acts involving Powell would have been admissible in the trial of Powell's 2017 murder pursuant to OCGA § 24-4-404 (b) ("Rule 404 (b)"), Lowe has not shown that the trial court abused its discretion by denying the motion to sever. Lowe also contends that his trial counsel was ineffective in failing to cite the non-binding 1980 ABA guidelines on joinder of offenses in his argument for severance.

However, this claim of error is also without merit because severance was properly denied based upon the relevant and controlling Georgia law counsel cited in his severance motion and supporting brief.² Consequently, we affirm the trial court's order denying Lowe's motion for a new trial. However, as explained in Division 3, we vacate Lowe's felony murder sentences and remand for resentencing on those counts because the trial court erred in sentencing Lowe on two counts of felony murder when there was a single victim.

1. This Court views the evidence in the "light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citation and punctuation omitted.) Hayes v. State , 292 Ga. 506, 506, 739 S.E.2d 313 (2013). See also Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). So viewed, the evidence shows the following. Powell and Lowe married in 2011. They lived in a home in Snellville, Gwinnett County, with three of Powell's six children. Powell had two handguns, which she kept in a safe.

Witnesses testified that Lowe's relationship with Powell was troubled, marred by Lowe's drug and alcohol abuse, his controlling behavior, and his lack of full-time employment. Powell had expressed frustration over having to support Lowe, who was routinely drunk. When Lowe was drunk, he often became violent and would strike Powell.

In 2015, Lowe got into an argument with Powell after Powell had accused Lowe of taking money from her. Lowe, who was intoxicated, threatened to kill her. He also punched her in the face. Powell's children heard the argument and saw that Powell was bleeding from facial injuries. One of the older children wrestled Lowe outside and locked him out of the house. Police officers responding to the domestic violence call saw signs of a struggle and damage to furniture inside the master bedroom. When the police finally found and arrested Lowe for these offenses, he violently resisted arrest.

A friend of Lowe's testified at trial that, shortly before the shooting, Lowe confided to him that he was "stressed at home" and had gotten into a fight with Powell. Lowe believed that Powell was having an affair with a person who lived in their neighborhood and that she was about to leave him. Lowe said that he was "going to get" the man with whom Powell was allegedly having an affair.

Witnesses testified that, in mid-July 2017, Powell told Lowe that she was contemplating divorcing him. The weekend before Powell was murdered, Lowe told Powell's sister that he was going to try to improve himself and that he wanted to throw a surprise birthday party for Powell. Powell, however, told Lowe that if he was not employed by July 20, 2017, she was leaving him. On July 20, Lowe was supposed to have a second interview for a job. According to one of Powell's co-workers, Lowe called Powell on July 20 and told her that he had missed his second job interview. Powell, meanwhile, had gotten a new, better-paying job in Norcross and was in the process of moving and finding a new home. Powell's employment at the new job was set to start the week after July 20.

On July 20, one of Powell's co-workers dropped her at home shortly after 7:00 p.m. At 8:00 p.m., Powell telephoned her sister. Powell told her sister that she was in bed and that Lowe had just come home. Powell did not indicate that anything was wrong. Then, at 8:42 p.m., a neighbor's security camera showed Lowe leave the house, get into his car, and drive away. As he was walking to his car, Lowe told one of his neighbors: "It's over ... you'll see later." After Lowe left, no one else entered or exited the house until Powell's youngest child returned at 9:00 p.m.

When the child came home, he called out for Powell, but he received no answer. He stayed downstairs for the next two hours. When he went upstairs, he looked into the master bedroom and saw Powell lying in bed. He saw blood on the bedding around her head. The child ran to get a neighbor, who returned with him to the house. The neighbor testified that Powell had an obvious head injury

. He saw a shell casing on the floor next to the bed. He observed that Powell's hands and lower body were beneath the covers of the neatly made bed and that Powell was propped up on her pillows "as if she fell asleep watching TV[.]" The neighbor called 911 as he checked Powell for signs of life. But Powell was already dead. The Gwinnett County medical examiner determined that Powell died from injuries caused by a gunshot wound to the head. The medical examiner noted no other wounds on Powell's body.

Officers responding to the home found no sign of forced entry and no sign of a struggle in any part of the residence. They noted that Powell's body was in bed, as the neighbor had described it, with blood pooling beneath it. They found two shell casings on the bedroom floor and a bullet lodged in the headboard. Six days later, officers found Lowe's car. From inside it they recovered an empty beer can, denim clothing that tested positive for blood, and a clear glass tube that tested positive for cocaine.

Lowe testified at trial. He said that, when he got home, he went to the bedroom. Powell told him "I'm tired of your s***[;] I'm done," and then she pointed a gun at him. Lowe tried to wrestle it from her, but the gun went off as they struggled. Lowe claimed he was disoriented following the incident and left home without realizing that Powell had been shot. He admitted that he took the gun with him after the shooting and fled. He testified that he disposed of the gun by selling it to an unknown person. He admitted to abandoning his car. He also admitted to drinking, smoking marijuana, and to using and selling cocaine.

Finally, the State submitted evidence of prior domestic violence incidents by Lowe against women other than the victim. A 1990 conviction from New York was admitted, which showed that Lowe beat and kidnapped his former girlfriend and their child. Lowe also threatened to injure his former girlfriend with a screwdriver during the kidnapping. On August 11, 2005, Lowe was convicted of a domestic violence offense for putting his hands on the throat of another woman to whom he had been previously married.

2. In related claims of error, Lowe contends that: (a) the trial court erred in denying his motion to sever the 2015 charges for acts of domestic violence against Powell from the 2017 murder charges; and (b) trial counsel's argument in support of Lowe's motion to sever amounted to ineffective assistance.

For the following reasons, both claims of error are without merit.

(a) Lowe contends that the 2015 and 2017 charges were improperly joined and that the trial court abused its discretion in refusing to sever them. Lowe argues that the offenses were not part of a continuing scheme, that they occurred two years apart, and that the State only joined the offenses because they were similar in character and, as such, would only serve to prejudice the jury. The trial court denied Lowe's motion to sever because evidence of the 2015 incident between Lowe and Powell would have been admissible at the trial pursuant to Rule 404 (b) as other-acts evidence of prior difficulties between Lowe and Powell.

This Court has held that a defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges. However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. Furthermore, where evidence of one charge would be admissible in the trial of another, a trial court does not abuse its discretion by denying a motion for severance.

(Citation and punctuation omitted.) Simmons v. State, 282 Ga. 183, 185 (4), 646 S.E.2d 55 (2007). See also Carson v. State , 308 Ga. 761, 765 (2) (a), 843 S.E.2d 421 (2020) ("Offenses have not been joined solely because they are...