Lowery v. State

• Decision Date: 04 June 2007
• Docket Number: No. S07A0262.,S07A0262.
• Citation: 646 S.E.2d 67,282 Ga. 68
• Parties: LOWERY v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 68

646 S.E.2d 67

LOWERY v. The STATE.

No. S07A0262.

Supreme Court of Georgia.

June 4, 2007.

[646 S.E.2d 70]

Larry David Wolfe, Larry David Wolfe, P.C.; Kathryn Ann Westberry; Bruce Steven Harvey, Atlanta, for Appellant.

Paul Bowden, Dist. Atty., Tifton, Bradford Lee Rigby, Asst. Dist. Atty., Albany; Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.

BENHAM, Justice.

Appellant William Junior Lowery was found guilty of the malice murder of Maxine Harper and sentenced to life imprisonment.¹ On appeal he takes issue with the sufficiency of the evidence, the admission of testimony concerning a prior difficulty between appellant and the victim, the content of several jury instructions, and the trial court's handling of a communication from the jury during its deliberations.

1. Maxine Harper, the mother of appellant's child, suffered a fatal gunshot wound that entered her head through her right ear while she was in a pickup truck with appellant and Stacey Williams, her adult son by another man. Her body was found in the pickup truck which was parked on the shoulder of a road near her Worth County home, and her cellular telephone and the Lorcin .25 caliber semi-automatic handgun that was established to be the murder weapon were found 1519 feet from the body. The State presented evidence appellant had entered the victim's home earlier in the evening by kicking the door in and announcing that his pickup truck had broken down. According to Williams, appellant argued with the victim and accused her "going somewhere." He then asked the victim and Williams to take him to his truck. The trio left in Williams's pickup truck with Williams driving and following the directions appellant gave him from the passenger seat, and with the victim sitting between them. Williams testified that while he was driving he heard a loud click and a popping noise that caused his ears to ring, and his mother rested her head on his shoulder and did not speak again. Williams continued to drive until appellant told him to pull off the road. When Williams stopped his truck, he heard another clicking noise and appellant reached around the victim and made a threatening gesture at Williams, who exited his truck and ran off. He ran to the home of family friends to whom he reported that a man "had whipped" his mother. The friends accompanied Williams back to his pickup truck where several deputy sheriffs had responded to calls for emergency assistance. Williams told investigators he was the only one who had driven his truck that night, and he surrendered his keyring containing the truck's ignition key to the lead investigator that night.

The State presented evidence of prior incidents in which appellant had reacted violently against the victim when he believed she had been seeing another man. A male friend of the victim testified that appellant had "busted in" to the victim's home while the witness was visiting six months before the victim was killed, had complained about the victim having another man there, and had struck the victim with his fist, knocking her off the chair on which she sat and knocking her glasses off her head. Appellant's cousin (and the victim's sister-in-law) testified appellant had called her in January 1999 and told her he had tracked the victim to a local motel by entering her empty home and checking her telephone's "Caller ID" feature where the local motel's telephone number appeared. Appellant told his cousin he saw the victim leave a motel room in the company of another man and "if his gun had not jammed, he would have shot them both."

The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court erred when it admitted the testimony of his cousin recounting appellant's 1999 statement that he would have shot the victim and her male companion had his gun not jammed 34;[E]vidence of the defendant's prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant's motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being tried." Wall v. State, 269 Ga. 506(2), 500 S.E.2d 904 (1998). Threats of violence to the victim made to others are admissible to show motive and intent. Riley v. State, 278 Ga. 677(9), 604 S.E.2d 488 (2004). A witness's testimony concerning a defendant's statements to the witness demonstrating ill will to the victim is admissible. Myers v. State, 275 Ga. 709(2), 572 S.E.2d 606 (2002).² The trial court did not err in allowing the testimony.

3. Before the State presented its evidence of prior difficulties between appellant and the victim, the trial court instructed the jury that its consideration of the evidence was limited to "showing, if it does, the state of feeling between the defendant and the alleged victim and the motive and intent of the defendant or the alleged victim at the time of the incident alleged in the indictment." Citing Stephan v. State, 205 Ga.App. 241, 243, 422 S.E.2d 25 (1992), appellant maintains the trial court's jury instruction was not sufficiently limiting in that the State offered the evidence to establish appellant's bent of mind, but the instruction permitted the jury to consider the evidence to show appellant's motive and intent.

As stated earlier, evidence of prior difficulties between the defendant and the victim in the form of a defendant's threats of violence against the victim is admissible as evidence of the relationship between the defendant and the victim, and is admissible for a very limited purpose: "[it] may show the defendant's motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being tried." Wall v. State, supra, 269 Ga. at 509, 500 S.E.2d 904. In contrast, evidence of a defendant's commission of a similar transaction against one other than the victim is admissible for a number of purposes: to show "knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme course of conduct, identity, or other matters dependent upon a person's state of mind...." Stephan v. State, supra, 205 Ga. App. at 243, 422 S.E.2d 25. Because of the variety of possible purposes authorizing the admission of similar transaction evidence, a trial court's instruction limiting the jury's use of that evidence must be tailored to the specific purposes for which the evidence was admitted, and an instruction articulating a comprehensive list of possible purposes is not appropriate. Id. See also Watson v. State, 230 Ga.App. 79(5), 495 S.E.2d 305 (1998). Such a limitation is not necessary when the trial court admits evidence of a prior difficulty between the defendant and the victim because such evidence is admitted for very limited purposes — the state of feelings between the two and the defendant's motive, intent, and bent of mind. Inasmuch as the trial court appropriately limited the jury's consideration of the evidence of prior difficulties to motive, intent, and bent of mind, the trial court did not err when it did not further constrict the jury's consideration of the evidence to only motive and intent.

4. Appellant next takes issue with several aspects of the trial court's use of an Allen charge the trial court gave the jury upon being informed during their deliberations that they were deadlocked. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

(a) Appellant maintains the charge was impermissibly coercive because it was legally inaccurate, it was given immediately after the trial court requested the numerical split of the jury, and because the length of deliberation following the charge was "disproportionately shorter" than the period of deliberation prior to the charge. "The issue in reviewing an Allen charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors." Wright v. State, 274 Ga. 305(2), 553 S.E.2d 787 (2001).

Appellant points out that language in the Allen charge given by the trial court ("This case must be decided by a jury selected in the same manner in which this jury was selected, and there is no reason to think that a jury better qualified than you would ever be chosen") has been deemed inaccurate by this Court and its further use discouraged. Burchette v. State, 278 Ga. 1, 596 S.E.2d 162 (2004).³ In Burchette, however, this Court concluded that the inaccurate language did not render the Allen charge impermissibly coercive since the inaccurate language "constituted but one small portion of an otherwise balanced and fair Allen charge." Id., at 3, 596 S.E.2d 162. Likewise, giving an Allen charge after inquiring into the numerical division of the jury where there is no announcement of which way the vote is split, is not coercive as it does not place undue pressure on the jurors to abandon their convictions. Black v. State, 255 Ga. 668(2), 341 S.E.2d 436 (1986). See also Muhammad v. State, 243 Ga. 404(4), 254 S.E.2d 356 (1979) (declining to follow Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), where the U.S. Supreme Court, in the exercise of its supervisory authority over the federal courts rather than as an interpretation of the U.S. Constitution, held it was per se reversible error for the trial court to ask a deliberating jury its numerical division).

Finally, we need not address appellant's effort to establish coercion by comparing...