CourtListener 10679793

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: October 4, 2022

S22A0812. LOWE v. THE STATE.

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

1 On May 9, 2018, a Gwinnett County grand jury indicted Lowe for
crimes against Powell occurring on two different dates. In connection with
Powell’s July 20, 2017 shooting death, the indictment alleged: malice murder
(Count 1); felony murder predicated on aggravated assault (Count 2); felony
murder predicated on possession of a firearm by a convicted felon (Count 3);
family violence aggravated assault (Count 4); possession of a firearm or knife
during the commission of a felony (Count 5); and possession of a firearm by a
convicted felon (Count 6). The grand jury also indicted Lowe for crimes against
Powell and others occurring on August 19, 2015: family violence aggravated
assault (Count 7); terroristic threats (Count 8); family violence battery (Count
9); simple battery (Count 10); hindering an emergency telephone call (Count
11); cruelty to children in the third degree (Count 12); and obstruction of an
officer (Count 13). Prior to trial, Lowe pled guilty to Counts 9 through 11 and
Count 13, but the trial court deferred sentencing on these counts until after
trial on the remaining charges. During Lowe’s trial, which commenced on
August 6, 2018, the court granted Lowe’s motion for a directed verdict on Count
8 (terroristic threats). The jury found Lowe guilty on Counts 2 and 3 (felony
murder), but not guilty on Count 1 (malice murder). With respect to Count 7
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

(family violence aggravated assault), the jury found Lowe guilty of the lesser
offense of family violence battery. The jury returned guilty verdicts on the
remaining counts.
On October 18, 2018, the court sentenced Lowe to life in prison without
the possibility of parole on Counts 2 and 3; a five-year prison term on Count 5
(consecutive to Count 2); a five-year prison term on Count 6 (concurrent with
Count 2); a 20-year prison term on Count 7 (concurrent with Count 2); and 12-
month consecutive prison terms on Counts 9 through 13 (the first in the series
of sentences to run consecutive to Count 5). Count 4 merged for purposes of
sentencing with Count 2. On October 8, 2018, Lowe filed a timely motion for a
new trial through trial counsel. Shortly thereafter, the court appointed new
counsel, but allowed that attorney to withdraw on May 25, 2021. Lowe’s
current counsel filed an entry of appearance on August 5, 2021. Thereafter, the
court held a hearing on Lowe’s motion for a new trial and denied it on
December 9, 2021. Lowe filed a timely notice of appeal. Lowe’s appeal was
docketed to the April 2022 term of this Court and submitted for a decision on
the briefs.
2
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

2Counsel relied on our decision in Dingler v. State, 233 Ga. 462, 464 (211
SE2d 752) (1975), which set forth criteria for determining whether joinder of
offenses was proper. See Division 2, supra.
3
and credibility of the evidence.” (Citation and punctuation omitted.)

Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013). See also

Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 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

4
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 of 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

5
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.

6
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.

7
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.

8
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) that 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

9
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.

(Citations and punctuation omitted.) Simmons v. State, 282 Ga. 183,

185 (4) (646 SE2d 55) (2007). See also Carson v. State, 308 Ga. 761,

765 (843 SE2d 421) (2020) (“Offenses have not been joined solely

because they are of the same or similar character when evidence of

one offense can be admitted upon the trial of another.” (citation and

punctuation omitted)).

Given the evidence in the case, the trial court did not abuse its

discretion in denying Lowe’s severance motion because the charged

offenses were similar, related acts of physical violence that were

part of a continuing pattern of domestic abuse wherein Lowe, while

intoxicated, lashed out at Powell when he felt that he had been

wronged by her. And, had the 2015 and 2017 incidents not been tried

10
together, the trial court would have been authorized to admit

evidence of the 2015 incident between Lowe and his wife at the

murder trial as other-acts evidence demonstrating the parties’ prior

difficulties, Lowe’s motive, and the lack of an accident.

This Court has held that, under Rule 404 (b),3 other-acts

evidence may be admitted if a three-part test is met: (1)
the evidence is relevant to an issue in the case other than
the defendant’s character, (2) the probative value is not
substantially outweighed by the danger of unfair
prejudice as required by Rule 403, and (3) there is
sufficient proof for a jury to find by a preponderance of the
evidence that the defendant committed the prior act.

Jones v. State, 301 Ga. 544, 545 (802 SE2d 234) (2017). “The major

function of Rule 403 [as it relates to the admissibility of 404 (b)

evidence] is to exclude matter of scant or cumulative probative force,

dragged in by the heels for the sake of its prejudicial effect.”

(Citation and punctuation omitted.) Smart v. State, 299 Ga. 414 (2)

3 OCGA § 24-4-404 (b) provides, in pertinent part:
Evidence of other crimes, wrongs, or acts shall not be admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
11
(b) (788 SE2d 442) (2016).

The evidence of the 2015 incident would have satisfied this

three-part test. First, the evidence was relevant to issues other than

Lowe’s character, specifically the prior difficulties between the

parties as well as Lowe’s motive to commit the offenses charged.

Pursuant to Rule 404 (b), evidence of a defendant’s prior acts toward

another person may be admissible in evidence “when the defendant

is accused of a criminal act against that person, where the nature of

the relationship between the defendant and the victim sheds light

on the defendant’s motive in committing the offense charged.”

(Citation omitted.) Payne v. State, 313 Ga. 218, 222 (1) (869 SE2d

395) (2022). The evidence presented in support of the 2015 charges

showed that Lowe, while intoxicated, violently lashed out at Powell

when he was angry with her. It showed the tumultuous nature of

their relationship as well as Lowe’s controlling nature, substance

abuse, and erratic behavior toward her when under the influence of

drugs and alcohol. As such, evidence of the 2015 incident would have

been relevant as a prior difficulty to show motive. See id. See also

12
Smart, 299 Ga. at 419 (Although motive was not an element of the

charged offenses, evidence of prior acts of violence was relevant

under Rule 404 (b) to help the jury understand that the defendant

used violence to control the victim.).

Second, the evidence of the 2015 offenses also would have

satisfied Rule 403’s requirement that the probative value of the

evidence was not substantially outweighed by the danger of unfair

prejudice. “In weighing the probative value of other acts evidence, a

court may consider a number of factors, including (1) prosecutorial

need, (2) overall similarity of the other acts and the acts charged,

and (3) the temporal remoteness of the other acts.” Thompson v.

State, 308 Ga. 854, 859 (2) (843 SE2d 794) (2020).

In this case, while evidence of Lowe’s prior violent acts against

Powell may well have had a prejudicial effect on the jury, that effect

would not have substantially outweighed the probative value of the

evidence in this case, as explained below. Prejudicial effect matters

only if it’s unfair prejudice. See Anglin v. State, 302 Ga. 333, 337 (3)

(806 SE2d 573) (2017) (“[I]n a criminal trial, inculpatory evidence is

13
inherently prejudicial; it is only when unfair prejudice substantially

outweighs probative value that the rule permits exclusion.” (citation

and punctuation omitted)). Here, a number of factors would weigh

in favor of admitting the 2015 acts as other-acts evidence. For

example, although the forensic evidence undercut Lowe’s claim that

the gun went off while he and Powell struggled for control of it, there

was no eyewitness testimony to rebut Lowe’s account of how the

shooting occurred. Thus, the other-acts evidence would serve the

prosecutorial need of persuading the jury to reject Lowe’s claim of

accident because he had a motive to shoot Powell. We have held that

evidence of motive may be relevant to counter claims of accident as

well as self-defense. See Harrison v. State, 310 Ga. 862, 868 (3) (855

SE2d 546) (2021) (“Evidence that Harrison had a history of

committing jealousy-fueled violent acts against a romantic partner

thus had significant probative value in establishing that his conduct

here was intentional and not accidental.”); Anthony v. State, 298 Ga.

827, 833 (4) (785 SE2d 277) (2016) (Motive is “the reason that

nudges the will and prods the mind to indulge the criminal intent,”

14
and was probative under the circumstances to rebut the defendant’s

claim of self-defense. (citations omitted)). Also, although there exists

a two-year gap between the 2015 and 2017 acts, the significant

similarity between those acts of domestic violence and the testimony

concerning Lowe’s history of controlling and abusive behavior

toward Powell, shows that the 2015 acts are probative of his motive

and not so remote as to be lacking in evidentiary value. See

Hounkpatin v. State, 313 Ga. 789, 795 (a) (873 SE2d 201) (2022)

(Given “the overall similarities between the offenses” the two-year

gap between their commission did not reduce their probative value

on the issue of intent.). For these reasons, it would have been within

the trial court’s discretion to find that the probative value of the

2015 other-acts evidence was not substantially outweighed by any

unfair prejudice. See Harrison, 310 Ga. at 868 (3).

Third, and finally, given the testimony of several eyewitness to

the 2015 acts, sufficient evidence existed to prove by a

preponderance of the evidence that the 2015 acts occurred. See

Hounkpatin, 313 Ga. at 797 (2) (a) (testimony about prior acts of

15
violence that the witness observed firsthand is sufficient to meet the

third prong of the Rule 404 (b) admissibility test).

Given these circumstances, the trial court would have been

authorized to admit evidence of Lowe’s 2015 prior acts of domestic

violence against Powell in a trial for her 2017 murder under Rule

404 (b). Consequently, the record demonstrates that the trial court

did not abuse its discretion in denying the motion to sever offenses.

See, e.g., Carson, 308 Ga. at 765 (2) (a); Simmons, 282 Ga. at 185

(4).

(b) Although Lowe’s attorney moved to sever the 2015 offenses

from the trial of the 2017 offenses based, in part, on controlling case

law of this Court, Lowe argues that counsel was ineffective because

he did not base his severance argument on the most recent ABA

Standards concerning joinder of offenses, which is the 1980 version.4

4 ABA Standard 13-3.1 (1980) provides:
(a)Whenever two or more unrelated offenses have been
joined for trial, the prosecuting attorney or the defendant shall
have a right to a severance of the offenses.
(b) The court, on the application of either the prosecuting
attorney or the defendant, should grant a severance of related

16
Lowe argues that severance was “mandated” under those standards

and, had counsel based his severance argument on them, the trial

court would have been required to sever the charges. Therefore,

Lowe argues, counsel’s failure to make this argument was clearly

deficient, and that deficiency prejudiced him.

To prevail on his claim of ineffective assistance of counsel,

Lowe must show that his counsel’s performance was deficient, and

that the deficient performance resulted in prejudice to him. See

Campbell-Williams v. State, 309 Ga. 585, 588-599 (2) (b) (847 SE2d

583) (2020), citing Strickland v. Washington, 466 U. S. 668, 6874

offenses:
(i) before trial, whenever severance is deemed appropriate
to promote a fair determination of the defendant’s guilt or
innocence of each offense; or
(ii) during trial, whenever, upon the consent of the
defendant or upon a finding of manifest necessity, severance is
deemed necessary to achieve a fair determination of the
defendant's guilt or innocence of each offense.
(c) When evaluating whether severance is appropriate to
promote or necessary to achieve a fair determination of the
defendant’s guilt or innocence for each offense, the court should
consider among other factors whether, in view of the number of
offenses charged and the complexity of the evidence to be offered,
the trier of fact will be able to distinguish the evidence and apply
the law intelligently as to each offense.
17
(III) (104 SCt 2052, 80 LE2d 674) (1984). Thus, Lowe must first show

that his trial counsel “performed his duties in an objectively

unreasonable way, considering all the circumstances and in the light

of prevailing professional norms.” Thornton v. State, 307 Ga. 121,

126 (3) (834 SE2d 814) (2019). Second, he must prove that “there is

a reasonable probability that, but for counsel’s deficiency, the result

of the trial would have been different.” Id. If Lowe fails to show

either prong, it is unnecessary to examine the other and his claim

fails. See Green v. State, 291 Ga. 579, 580 (2) (731 SE2d 359) (2012).

Here, Lowe cannot show that it was objectively unreasonable

for his counsel not to rely on the 1980 standards in the motion to

sever, because it is clear that relying on those standards would not

have changed the outcome of the motion. There are at least three

reasons why not. First, the 1980 ABA Standards that Lowe relies on

are not binding Georgia precedent on the issue of joinder. Second, in

Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975), which

Lowe’s counsel relied on in his severance motion, this Court adopted

as our rule to evaluate joinder the 1975 ABA Standards on Joinder

18
of Offenses, under which

[t]wo or more offenses may be joined in one charge, with
each offense stated in a separate count, when the offenses,
whether felonies or misdemeanors or both: (a) are of the
same or similar character, even if not part of a single
scheme or plan; or (b) are based on the same conduct or
on a series of acts connected together or constituting parts
of a single scheme or plan.

(Punctuation omitted.) Id. at 463. 5 Lowe has not shown that

argument based on the non-binding 1980 ABA standards would

have prevailed over controlling authority from this Court, especially

since a ruling in Lowe’s favor would require a departure from the

rule in Dingler. And, it is well settled that “[a] criminal defense

5 In addressing Lowe’s claim that counsel’s severance argument was
deficient, we cite to Dingler because it is the case that Lowe’s trial counsel
primarily relied on in his making his argument. We note, however, that at least
one Justice of this Court has argued that Dingler was wrongly decided because,
in adopting the ABA standards, this Court departed “from a long-tenured
practice of leaving the question of severance to the sound discretion of the trial
judge, except as otherwise provided by statute.” Cooper v. State, 253 Ga. 736,
739 (325 SE2d 137) (1985) (Weltner, J., concurring specially). Also, OCGA §
17-8-4 (a) provides, in pertinent part: “When indicted for a capital felony when
the death penalty is waived, or for a felony less than capital, or for a
misdemeanor, such defendants may be tried jointly or separately in the
discretion of the trial court.” Nevertheless, this Court has continued to apply
the criteria for joinder first set forth in Dingler. See, e.g., Harris v. State, 314
Ga. 238, 281 (4) (875 SE2d 659) (2022); Hickman v. State, 299 Ga. 267, 270 (2)
(787 SE2d 700) (2016); Harrell v. State, 297 Ga. 884, 888 (2) (778 SE2d 196)
(2015).
19
attorney does not perform deficiently when he fails to advance a

legal theory that would require an extension of existing precedents

and the adoption of an unproven theory of law.” (Citation and

punctuation omitted.) Esprit v. State, 305 Ga. 429, 438 (2) (c) (826

SE2d 7) (2019).

Third, the trial court’s pre-trial ruling on Lowe’s motion to

sever shows that it considered Dingler and other applicable Georgia

law in denying the motion to sever. For example, the trial court

specifically cited to the reasoning in Madison v. State, 329 Ga. App.

856, 866 (3) (766 SE2d 206) (2014), where the Court of Appeals held

that joinder was proper because the offenses constituted “prior

difficulties” between the victim and the accused. That is, in Lowe’s

case, the charges were of the same or similar character and involved

a pattern of prior acts of domestic violence against the same victim

that would have been admissible in the trial regardless of whether

they were formally charged. Further, as discussed above, Lowe’s

prior acts of domestic violence against Powell showed that he lashed

out against Powell violently when he was intoxicated and when he

20
felt that he had lost control. These acts would have been admissible

to show Lowe’s motive. See Smart, 299 Ga. at 417-418 (2) (a).

Consequently, Lowe has failed to show that his trial counsel’s

performance was deficient in this regard. And, because Lowe has

failed to show that counsel’s performance was deficient, we need not

address the second prong of the Strickland analysis. See Green, 291

Ga. at 580 (2).

3. Although Lowe’s claims of error are without merit, we must

vacate his felony murder sentences and remand this case to the trial

court to correct a sentencing error. Counts 2 and 3 of the indictment

both allege that Lowe committed felony murder against the same

victim. Count 2 was predicated on aggravated assault, and Count 3

was predicated on possession of a firearm by a convicted felon. The

State agrees that Lowe should not have been sentenced on both

felony murder counts and that “the trial court is to use its discretion

in resentencing [Lowe].” Harris v. State, 274 Ga. 835, 836 (2) (561

SE2d 73) (2002). Because Lowe murdered a single victim, he may be

sentenced on either count of felony murder, but not both. See id.;

21
Turner v. State, 281 Ga. 487, 490 (3) (640 SE2d 25) (2007) (A

defendant “may not be convicted on [two] felony murder counts when

only one person was killed because such action improperly subjects

[him] to multiple convictions and punishments for one crime. OCGA

§ 16-1-7 (a).” (citations omitted)). See also McClellan v. State, 274

Ga. 819 (1) (a) (561 SE2d 82) (2002); Malcolm v. State, 263 Ga. 369

(4) (434 SE2d 479) (1993). Accordingly, we must vacate the felony

murder convictions and remand this case to the trial court for

resentencing.

Judgment affirmed in part and vacated in part, and case
remanded for resentencing. All the Justices concur.

314 Ga. 788
FINAL COPY

S22A0812. LOWE v. THE STATE.

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

1 On May 9, 2018, a Gwinnett County grand jury indicted Lowe for
crimes against Powell occurring on two different dates. In connection with
Powell’s July 20, 2017 shooting death, the indictment alleged: malice murder
(Count 1); felony murder predicated on aggravated assault (Count 2); felony
murder predicated on possession of a firearm by a convicted felon (Count 3);
family violence aggravated assault (Count 4); possession of a firearm or knife
during the commission of a felony (Count 5); and possession of a firearm by a
convicted felon (Count 6). The grand jury also indicted Lowe for crimes against
Powell and others occurring on August 19, 2015: family violence aggravated
assault (Count 7); terroristic threats (Count 8); family violence battery (Count
9); simple battery (Count 10); hindering an emergency telephone call (Count
11); cruelty to children in the third degree (Count 12); and obstruction of an
officer (Count 13). Prior to trial, Lowe pled guilty to Counts 9 through 11 and
Count 13, but the trial court deferred sentencing on these counts until after
trial on the remaining charges. During Lowe’s trial, which commenced on
August 6, 2018, the court granted Lowe’s motion for a directed verdict on Count
8 (terroristic threats). The jury found Lowe guilty on Counts 2 and 3 (felony
murder), but not guilty on Count 1 (malice murder). With respect to Count 7
(family violence aggravated assault), the jury found Lowe guilty of the lesser
offense of family violence battery. The jury returned guilty verdicts on the
remaining counts.
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

On October 18, 2018, the court sentenced Lowe to life in prison without
the possibility of parole on Counts 2 and 3; a five-year prison term on Count 5
(consecutive to Count 2); a five-year prison term on Count 6 (concurrent with
Count 2); a 20-year prison term on Count 7 (concurrent with Count 2); and 12-
month consecutive prison terms on Counts 9 through 13 (the first in the series
of sentences to run consecutive to Count 5). Count 4 merged for purposes of
sentencing with Count 2. On October 8, 2018, Lowe filed a timely motion for a
new trial through trial counsel. Shortly thereafter, the court appointed new
counsel, but allowed that attorney to withdraw on May 25, 2021. Lowe’s
current counsel filed an entry of appearance on August 5, 2021. Thereafter, the
court held a hearing on Lowe’s motion for a new trial and denied it on
December 9, 2021. Lowe filed a timely notice of appeal. Lowe’s appeal was
docketed to the April 2022 term of this Court and submitted for a decision on
the briefs.
2
(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 SE2d 313) (2013). See also

2 Counsel relied on our decision in Dingler v. State, 233 Ga. 462, 464 (211

SE2d 752) (1975), which set forth criteria for determining whether joinder of
offenses was proper. See Division 2, infra.
3
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 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

4
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,

5
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

6
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,”

7
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

8
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.