In the Supreme Court of Georgia



                                                 Decided:        June 16, 2014


                          S14A0410. LOWE V. THE STATE.


       HINES, Presiding Justice.

       Marquis Torez Lowe (“Lowe”) appeals from his convictions and

sentences for malice murder and possession of a firearm during the commission

of the crime of malice murder in connection with the death of Dajohn Milton.

For the reasons that follow, we affirm.1

       Construed to support the verdicts, the evidence showed that Milton

arranged for a friend to drive him to a certain apartment complex; en route,

       1
         The crimes were committed on March 20, 2011. On May 31, 2011, a Houston County grand
jury indicted Lowe for malice murder, felony murder while in the commission of aggravated assault,
felony murder while in the commission of aggravated battery, aggravated assault, aggravated battery,
possession of a firearm during the commission of the crime of malice murder, possession of a
firearm during the commission of the crime of aggravated assault, and possession of a firearm during
the commission of the crime of aggravated battery. Lowe was tried before a jury February 6-9, 2012,
and found guilty on all counts. On February 10, 2012, he was sentenced as a recidivist to life in
prison without the possibility of parole for the crime of malice murder, and a consecutive term of
five years in prison for possession of a firearm during the commission of the crime of malice murder;
the remaining convictions either merged with a crime for which a sentence was entered or were
vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-374 (4) (5) (434 SE2d 479)
(1993). Lowe moved for a new trial on February 13, 2012, amended the motion on March 28, 2012,
and again on May 7, 2012. On August 8, 2013, the motion, as amended, was denied. Lowe filed
a notice of appeal on September 5, 2013, and the appeal was docketed in this Court for the January
2014 term and submitted for decision on the briefs.
Milton used the friend’s cell phone to place a call to a cell phone of Lowe’s. A

few minutes later, gunshots were heard in the apartment complex, and a man

was seen standing over Milton, shooting down. The shooter fired multiple times

and began to walk away; the shooter then appeared to hear something, walked

back toward Milton, and shot him several more times before the shooter and

another man walked away. A witness went to the site of the shooting and found

Milton on the ground; Milton said he had been shot by “Trey Deuce,” which is

an alias of Trey Dinkins. An ambulance arrived, Milton was taken to a hospital,

and died shortly thereafter, having sustained nine bullet wounds.

      While police officers were at the scene of the shooting shortly after it

occurred, two women approached a police officer and asked if the victim was

Trey Dinkins; the police officer said no. Lowe’s cell phone was found at the

scene of the shooting, and its history revealed that it had received the call placed

from the cell phone of Milton’s friend shortly before the shooting.

      The two men who left the scene of the shooting immediately after Milton

was shot fled in the direction of a mobile home park. At the mobile home park,

a resident saw them walking along the property’s fence line; the two men

removed their white t-shirts, put on black t-shirts, placed something along the

                                         2
fence line, and left. Later that night a man arrived in a white car with a dent in

its front; he exited the car, and appeared to search the area for something. A later

search of this site by law enforcement officers produced a .38 caliber revolver

and a .380 caliber pistol wrapped in a white t-shirt; the .380 caliber pistol was

determined to be the weapon used to shoot Milton.

      Shortly after the shooting, Dinkins telephoned a female friend, Chastain,

said that he “had just gotten into it,” and needed a ride. Chastain, along with

another woman, drove to the location Dinkins identified, and found Dinkins and

Lowe together; during the drive to another location, Lowe said that he might

have dropped his cell phone. When they arrived at the later location, Dinkins

and Lowe approached Smith, who was in her white car which had a dented

hood; Smith had already told a companion that she did not want to lend her car

to him. Lowe and Dinkins argued and Smith told them to get in her car or she

would leave; Lowe told her that this was not a time “to be running [her] mouth”

as she “could lose [her] life.” The two men returned to Chastain’s car, and she

drove them to the home of a relative of Lowe’s, and left them there.

      Lowe was apprehended nine days after the shooting, hiding in a bedroom

closet in a house; two cell phones were in the bedroom. While he was in jail

                                         3
awaiting trial, Lowe told Blaine Arnold that: together with Dinkins, and through

a woman, they set up a drug deal with Milton but that they actually intended it

to be a robbery; when Milton resisted, Dinkins shot him with a .380 caliber

pistol; and, upon seeing that Milton was still alive, Lowe took Dinkins’s pistol

and shot Milton again. Arnold further testified that Lowe told him that the men

went to a nearby mobile home park, put the .380 caliber pistol, and another

handgun not used in the shooting, inside a t-shirt, which they hid in a bush, and

telephoned two women for a ride.

      1. Lowe contends that the evidence against him was insufficient to prove

beyond a reasonable doubt that he was guilty of the crimes of which he was

convicted. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). He questions the credibility of witness Arnold, but it is for the jury to

assess the credibility of witnesses, not this Court, and the jury’s resolution of

such adversely to a criminal defendant does not render the evidence insufficient.

Heidt v. State, 292 Ga. 343, 345 (1) (736 SE2d 384) (2013). Lowe also notes

that there was no eyewitness to the shooting who identified him as a perpetrator,

and that no forensic evidence placed him at the crime scene, but the fact that the

evidence against him was largely circumstantial does not render it insufficient;

                                        4
questions as to the reasonableness of hypotheses other than the guilt of the

defendant are generally for the jury to decide, and this Court will not disturb a

finding of guilt unless the evidence is insupportable as a matter of law. Daniels

v. State, 281 Ga. 226, 228-229 (2) (637 SE2d 403) (2006). Nor does the

circumstantial evidence presented by the State show that Lowe was, at most,

merely present at the scene when Dinkins shot Milton, rather than acting as a

party to the crimes. See Jones v. State, 292 Ga. 656, 658 (1) (a) (740 SE2d 590)

(2013). Rather, the evidence authorized the jury to draw reasonable inferences

about Lowe’s participation in the crimes; it was Lowe whom Milton telephoned

just before the shooting, not Dinkins, and when Dinkins’s mother searched for

him after the shooting, she telephoned Lowe. Lowe and Dinkins were together

shortly after the shooting, and, as noted, Dinkins said he “had just gotten into

it” and needed a ride, and Lowe said he may have lost his cell phone, which was

found at the scene of the shooting. “‘Presence, companionship, and conduct

before and after an offense is committed are circumstances from which

participation in the criminal act may be inferred.’ [Cits.]” Rush v. State, 294 Ga.

388, 399 (1) (754 SE2d 63) (2014). The evidence authorized the jury to find

Lowe guilty of the crimes for which he was convicted. Jackson, supra.

                                        5
      2. At trial, the State introduced 12 exhibits that were identified as either

shell casings or projectiles found at the scene of the shooting, or projectiles

taken from Milton’s body during the autopsy. The identifying witness testified

that she collected each item from the crime scene, or was given it during the

autopsy by the physician performing the autopsy, she placed each item in a box

that she then marked, and that each box at trial bore her markings. Lowe

objected to the admission of each of these exhibits on the ground that, although

the witness identified the items and the boxes in which they were enclosed, she

did not identify each envelope in which each box was sealed, those envelopes

having been marked by an individual who did not testify at trial.

      What the State must do with evidence such as bullet casings and

projectiles is establish “with reasonable certainty that the [items] introduced into

evidence were the same ones [recovered earlier] and had not been tampered with

or replaced.” Moore v. State, 285 Ga. 157, 158 (2) (674 SE2d 315) (2009)

(Citation and parenthetical omitted.) This the State did. Even if these items

were fungible rather than separate objects, the failure to have each person who

was in control of the challenged evidence testify at trial would “not, without

more, make the substance or testimony relating to it inadmissible.” Collins v.

                                         6
State, 290 Ga. 505, 506 (2) (722 SE2d 719) (2012) (Citation and punctuation

omitted.)

      3. Lowe asserts that the trial court erred in denying his motion to suppress

a .40 caliber handgun recovered from the home in which he was apprehended

pursuant to an arrest warrant, contending that the search of the home and seizure

of the weapon violated his rights under the Fourth Amendment to the

Constitution of the United States. See Geiger v. State, ___ Ga. ___, ___ (2)

(___ SE2d ___) (2014) (Case no. S14A0168, decided May 19, 2014). When

such a motion is made,

      [a]lthough “the burden of proving that the search and seizure were
      lawful shall be on the [S]tate,” [Cits.], the defendant bears the
      burden of proof where his or her standing to raise a challenge to the
      legality of a search or seizure is contested by the State. [Cits.]

Stinski v. State, 281 Ga. 783, 783-784 (1) (642 SE2d 1) (2007). And, at the

hearing on the motion to suppress, the State clearly contested Lowe’s standing

to challenge the search of the home and the seizure of the weapon found there,

asserting that he was not a resident of the house, nor did he have any standing

otherwise, but that “he’s just there.” Nonetheless, neither at the hearing on the

motion to suppress, at trial, in his pleadings, nor at the hearing on his motion for


                                         7
new trial,2 did Lowe attempt to meet his burden of proof to show that he had

standing to move to suppress this evidence.

       4. Finally, Lowe contends that his trial counsel failed to provide effective

representation in several respects. In order to prevail on such a claim, he must

show both that counsel’s performance was deficient, and that the deficient

performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783

(1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U.S. 668 (104

SCt 2052, 80 LE2d 674) (1984). To meet the first prong of the required test, he

must overcome the “strong presumption” that counsel’s performance fell within

a “wide range of reasonable professional conduct,” and that counsel’s decisions

were “made in the exercise of reasonable professional judgment.” Id. The

reasonableness of counsel’s conduct is examined from counsel’s perspective at

the time of trial and under the particular circumstances of the case. Id. at 784.

To meet the second prong of the test, he must show that there is a reasonable

probability that, absent any unprofessional errors on counsel’s part, the result

of his trial would have been different. Id. at 783. “‘We accept the trial court’s


       2
        In his second amended motion for new trial, Lowe enumerated the denial of the motion to
suppress as one of the grounds justifying a new trial.

                                              8
factual findings and credibility determinations unless clearly erroneous, but we

independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State,

277 Ga. 75, 76 (586 SE2d 313) (2003).

      At the hearing on the motion for new trial, Lowe testified that trial counsel

visited him at the jail four times before trial, but “never talked to me.” Although

this testimony was rebutted by that of counsel, in any event, there is “no magic

amount of time which counsel must spend in actual conference with his client.”

Harris v. State, 279 Ga. 304, 307 (3) (b) (612 SE2d 789) (2005) (Citations and

punctuation omitted.). Although Lowe speculates that further contact with

counsel might have enabled them to develop a more fruitful plan of defense than

the one pursued at trial, he does not show what that might have been, or how

additional contact with counsel might have produced such; thus, he fails to

demonstrate how spending additional time with counsel would have changed the

outcome of his case. Ruffin v. State, 283 Ga. 87, 91 (12) (d) (656 SE2d 140)

(2008). Similarly, Lowe points to the fact that, before trial, counsel did not

interview all of the potential witnesses, but again, he fails to show that, had

counsel done so, some evidence would have been revealed that would have



                                         9
altered the outcome of his trial.3 See Reaves v. State, 292 Ga. 545, 550 (4) (739

SE2d 368) (2013).

        Finally, Lowe testified at the hearing on his motion for new trial that he

wanted to testify at trial, but trial counsel “talked [him] out of it.”4 However,

even if Lowe’s post-trial testimony were credited, he has presented no evidence

as to what the content of any trial testimony would have been, and thus fails to

show how such testimony would have altered the outcome of his trial. Sims v.

State, 278 Ga. 587, 591 (3) (d) (604 SE2d 799) (2004).

        Judgments affirmed. All the Justices concur.




        3
          Lowe specifically notes that counsel did not interview Arnold before trial, but counsel
testified that Arnold was represented by an attorney at the time, he met with the attorney, and
reviewed Arnold’s video-recorded statement before trial. On cross-examination, counsel elicited
from Arnold that he faced nine charges of burglary and sentences totaling over 180 years; Arnold
denied that he had received any deal from the State in exchange for his testimony against Lowe.
        4
          During the hearing on the motion for new trial, trial counsel testified that he advised Lowe
not to testify in his own behalf because, although Lowe believed he could show the jury that he was
a person of good character, his criminal record would indicate otherwise. At trial, after the last
witness testified, the trial court advised Lowe that the decision whether to testify was his, despite any
consultation he had with counsel. Before closing arguments the next day, the court again advised
Lowe that whether to testify was a decision he must make, and Lowe affirmed on the record that it
was his decision not to testify.

                                                   10
