NAHMIAS, PRESIDING JUSTICE.
James Hightower was convicted of malice murder, two counts of
aggravated assault, one count of aggravated battery, a
firearm offense, and misdemeanor obstruction in connection
with the shooting death of Anthony Bowers, the aggravated
assaults of Demetrius Cosby and Myeisha Brown, and the
aggravated battery of Cosby. Appellant contends that the
trial court erred by making a comment that improperly
bolstered an expert witness's credibility and that his
trial counsel provided ineffective assistance by failing to
object to the comment. Appellant also contends that his
conviction for aggravated assault of Cosby should have been
merged into his conviction for aggravated battery of Cosby.
Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. Shortly
after midnight on March 22, 2014, Appellant called Bowers,
who occasionally sold drugs, to arrange a meeting to buy some
drugs. Cosby and his girlfriend Brown were at Bowers's
house at the time and decided to ride along. The plan was for
Bowers to drop them off at Cosby's house after making a
quick detour to complete the drug deal. Bowers drove toward
the Discount Mall in Fulton County and backed into the
driveway of an abandoned house behind the shopping center.
The three friends then waited in the car for Appellant to
show up. Neither Brown nor Cosby knew whom Bowers was
meeting; they had never met Appellant, and Bowers had not
told them Appellant's name. As they waited, Brown was
sitting in the passenger seat, and Cosby was lying down in
the back seat with his head behind Brown and his feet behind
approached the car on foot from the street, headed toward the
passenger-side door, and continued around the back of the car
until he reached the driver side. The front window was not
working, so Bowers lowered the rear window and reached
backward through the open window to hand Appellant a small
bag of drugs. Appellant took the bag, reached into his
pocket, and hesitated. Cosby, who was looking straight at
Appellant, saw a gun in Appellant's pocket and
immediately warned Bowers. Bowers started to drive away, but
Appellant pulled out the gun and fired multiple shots into
the car. Four bullets struck Bowers in the head, torso, and
shoulder; he died instantly. Cosby was struck in the left hip
and briefly blacked out. When he regained consciousness, the
car was rolling out of the driveway and across the street
because Bowers's foot was still on the gas pedal.
the car crashed into the ditch across the street, the
gunshots stopped "for a minute." At that point,
Cosby was able to move his right leg. Cosby asked Brown if
she could see if Appellant was still there. She saw Appellant
walking toward the car, so Cosby told her to play dead.
Appellant then fired four more shots into the car. One of the
bullets struck Cosby in the back, paralyzing him from the
waist down. Appellant left the scene, and Brown, who had not
been hit, called 911.
the police arrived, Brown told them what had happened. She
described the shooter as a black man wearing a black hoodie
and jeans. An officer had seen a man matching that
description walking down a nearby road just before he arrived
at the crime scene. The officer got back in his car and went
to look for the man. He found Appellant, who is
African-American, a few streets away wearing a black hoodie
and dark jeans and pulled over to stop him and ask some
questions. When the officer began to frisk Appellant, he ran
away. The officer chased Appellant through an apartment
complex and into a wooded area, where the officer found
Appellant lying on the ground and arrested him. The police
later recovered Appellant's cell phone at the apartment
complex and a 9mm gun in the woods near where Appellant was
Appellant was arrested, officers took a smartphone picture of
him and showed it to Brown, who was still at the crime scene.
She confirmed that Appellant was wearing the same clothes as
the man who shot at her, Cosby, and Bowers, although Brown
was later unable to identify Appellant's photo in a six-
photo lineup. Cosby was hospitalized for his serious
injuries; a few weeks after the shooting, a detective
interviewed him for the first time. Cosby was shown a
six-photo lineup and identified Appellant's photo as a
picture of the shooter.
and Cosby testified at trial, and Cosby again identified
Appellant as the shooter. Forensic experts testified that the
bullets used in the shooting were 9mm bullets fired from the
gun found in the woods near Appellant and that he had gunshot
residue on his hands at the time of his arrest. In addition,
cell phone records showed that Appellant and Bowers exchanged
text messages about buying drugs and that Appellant had
called Bowers shortly before the shooting. Appellant did not
testify; his theory of defense was mistaken identity.
does not dispute the legal sufficiency of the evidence
supporting his convictions. Nevertheless, as is this
Court's practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial
and summarized above was sufficient to authorize a rational
jury to find Appellant guilty beyond a reasonable doubt of
the crimes of which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d
560) (1979). See also Vega v. State, 285 Ga. 32, 33
(673 S.E.2d 223) (2009) ("'It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.'"
Appellant contends that the trial court improperly bolstered
the credibility of an expert witness in violation of OCGA
§ 17-8-57. We disagree.
trial, the State called Dr. Michelle Stauffenberg, the Deputy
Chief Medical Examiner for Fulton County, to testify about
Bowers's autopsy and the cause and manner of his death.
In response to questions about her qualifications, Dr.
Stauffenberg explained among other things that she had
testified as a forensic pathology expert 184 times. The State
then asked the trial court to qualify her as an expert, and
Appellant had no objection. The court, referring back to an
earlier instruction about expert witness testimony, told the
jury: "She is an expert. Remember, I told you that
experts, in weighing their testimony, you're not required
to accept any testimony, expert or otherwise, but the doctor
is a frequent witness in Fulton Courts."
Appellant contends that the trial court's statement that
"the doctor is a frequent witness in Fulton Courts"
violated OCGA § 17-8-57, but he did not object to that
comment when it was made, so we review it only for plain
error. See OCGA § 17-8-57 (b). To establish plain error,
Appellant must point to a legal error that was not
affirmatively waived, was clear and obvious beyond reasonable
dispute, affected his substantial rights, and seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. See Felton v. State, ___Ga.
___(819 S.E.2d 461, 467) (2018). To show that the error
affected his substantial rights, Appellant must demonstrate
that it caused him harm, meaning "that the outcome of
the trial court proceedings was likely affected." See
id. at ___(819 S.E.2d at 467-468).
has not shown a violation of OCGA § 17-8-57, much less
an obvious error. OCGA § 17-8-57 (a) prohibits a judge
from "express[ing] or intimat[ing] to the jury the
judge's opinion as to whether a fact at issue has or has
not been proved or as to the guilt of the accused." The
trial court's comment indicated nothing about
Appellant's guilt, and the fact that Dr. Stauffenberg
"is a frequent witness in Fulton Courts" was not at
issue. Appellant did not (and still does not) dispute that
fact or Dr. Stauffenberg's qualification as an expert in
even assuming that a jury may consider a particular
witness's testimony to be more credible when the judge
unnecessarily mentions that the witness frequently testifies
as an expert, Appellant cannot show that he was harmed.
Appellant never disputed Dr. Stauffenberg's conclusions
about the cause and manner of Bowers's death, which were
immaterial to Appellant's defense of mistaken identity.
Indeed, the only question Appellant's counsel asked Dr.
Stauffenberg on cross-examination was whether she could
identify the person who shot and killed Bowers, and she
acknowledged that she could not. Accordingly, even if ...