Appellant Brandon Higginbotham was convicted of the 2006 malice murder of Pierre King in Calhoun, Georgia, and sentenced to life imprisonment. He was also convicted of use of a weapon while a convicted felon and possession of a firearm during the commission of a crime and received terms of years to be served consecutively to each other and to the life sentence for the malice murder conviction.1 On appeal, he contends he did not receive effective assistance of trial counsel, the State did not provide him with material and exculpatory evidence prior to trial, his constitutional right to confront the witnesses against him was compromised, and the trial court erred when it did not give a requested charge on no duty to retreat. 1. Pierre King died on January 9, 2006, as a result of a gunshot wound that perforated his aorta and injured both of his lungs. Witnesses who had known appellant for years testified that appellant, the former boyfriend of King’s current girlfriend, entered King’s apartment with a gun visible in his waistband and forced his former girlfriend to leave the apartment. He and the woman struggled outside the apartment, with the mother of the woman intervening. The victim came from his apartment, fought with appellant, and fled when someone shouted appellant had a gun. Two women sitting in a nearby car identified appellant as the only person they saw holding a gun when they heard gunshots, and one of the women testified she saw appellant pull a black handgun from his side and fire three or four shots at the victim. The State introduced certified copies of appellant’s 2003 conviction for violation of the Georgia Controlled Substances Act and his 2002 conviction for possession of a firearm by a convicted felon. The evidence was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of malice murder, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon. Jackson v. Virginia , 443 U.S. 307 99 SC 2781, 61 LE2d 560 1979.
2. Appellant contends his constitutional rights to due process and a fair trial were violated when the State failed to apprise defense counsel prior to trial of potentially exculpatory information related by the GBI’s expert firearms examiner during his testimony. See Brady v. Maryland , 373 U.S. 83, 87 83 SC 1194, 10 LE2d 215 1963. The expert testified that the bullet extracted from the victim was a 9mm Black Talon manufactured by Winchester, with a rifling configuration consistent with having been fired from a gun manufactured by Hi-Point. The expert identified the four shell casings found at the scene to be 9mm Lugars manufactured by Remington that were consistent with being fired from a firearm manufactured by Hi-Point. Without the firearm, the expert testified, there was no way to say that the bullet removed from the victim had been fired from the same gun from which the shell casings were ejected.2
