296 Ga. 371
FINAL COPY


                      S14A1293. FUNCK v. THE STATE.


       HINES, Presiding Justice.

       Following the denial of his motion for new trial, as amended, Marcus

Funck appeals his conviction for felony murder while in the commission of

criminal attempt to possess cocaine in connection with the death of Charles

Johnson. Funck complains of a ruling regarding the cross-examination of his

co-indictee, that he was allegedly required to wear prison garb at his trial, and

that his trial counsel was ineffective. Finding the challenges to be without merit,

we affirm.1

       The evidence construed in favor of the verdict showed the following. On

August 18, 2006, Funck and his girlfriend, Morse, borrowed a van from a friend,

Paz-Sanchez. They wanted to obtain crack cocaine, and planned to get the

       1
         The murder and underlying felony occurred on August 18, 2006. On December 5, 2006,
a Richmond County grand jury returned an indictment against Funck and Lisa Moody Morse,
charging them with the felony murder of Charles Johnson while in the commission of criminal
attempt to possess cocaine by fatally striking Johnson with a vehicle. Funck was tried alone before
a jury November 13-15, 2007, and found guilty of the felony murder; he was sentenced to life in
prison on November 15, 2007. A motion for new trial was filed on November 16, 2007, amended
on December 7, 2012, and denied on July 9, 2013. A notice of appeal was filed on August 6, 2013,
and the case was docketed in this Court’s September 2014 term. The appeal was submitted for
decision on the briefs.
money to purchase it by selling a stolen remote control to a drug dealer.

Unsuccessful in selling or pawning the stolen item, and having no money to

purchase the drugs, the pair decided they would find someone who would sell

them cocaine and after receiving the drugs drive off without paying. They had

previously used this method to obtain drugs.

      Morse and Funck spied Johnson walking downtown and asked him where

they could purchase crack cocaine, telling him that they wanted to purchase $50

worth. Johnson went to get the drugs while Funck and Morse waited in the van.

Five or ten minutes later, Johnson returned to the van, which was running, and

handed Funck the drugs. Funck then twice ordered Morse, who was driving, “to

go, go.” As Morse started driving away, Johnson hung onto the side of the van.

Funck then kicked Johnson off the side of the van by putting his feet through the

open van window. Morse heard and then felt a “thump”; fearing that she might

have hit a person, she muttered, “[O]h God” and started to slow down the van.

But Funck assured her that Johnson was okay and told her to drive on, which

she did.

      Morse and Funck washed the van and returned it to Paz-Sanchez. Morse

told Paz-Sanchez that they had obtained crack cocaine and that Funck had

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punched a man that tried to jump on the side of the van.

      At the time of the fatal impact, a long-time resident of Johnson’s

neighborhood who knew Johnson heard “hollering” and went to investigate.

This man saw Johnson’s shoe in the middle of the street and then saw Johnson

himself lying in the street. He saw that Johnson was not breathing and called for

an ambulance. Johnson was dead at the scene. There was a drag mark from the

sole of the shoe leading up to the lone shoe in the road and then another drag

mark going from the shoe to Johnson’s body.

      Later that night, Morse heard on the news that there had been a fatality,

and once she realized that Johnson had died, she expressed her fear and concern

to Funck, and he responded, “[T]hat’s just one less n _ _ _ _ _.” Morse wanted

to turn herself in to the police, but Funck told her not to. Funck told a friend

about what had happened, saying that after they got the crack cocaine and

“ripped [Johnson] off,” Johnson jumped on the van and Funck and Morse “took

off,” and when they “got to a certain speed,” i.e., about 40 miles per hour, Funck

“threw [Johnson] off” and “he went up under the [van].”

      Johnson died as the result of multiple blunt force trauma to his head, neck,

and anterior torso.

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       1. Funck contends that his conviction should be reversed because his trial

counsel was “per se” ineffective for failing to timely file a valid demurrer to the

indictment, i.e., within ten days of arraignment,2 in that the felony murder

charge is based upon the charge of criminal attempt to possess cocaine, which

is not inherently dangerous or life-threatening so as to be a valid underlying

felony as a matter of law and under the circumstances of this case.

       In order for Funck to prevail on his claim of the ineffectiveness of his trial

counsel, he has to demonstrate, under Strickland v. Washington, 466 U. S. 668

(104 SCt 2052, 80 LE2d 674) (1984), that his counsel's performance was

deficient and that, but for such deficiency, there is a reasonable probability of

a more favorable outcome at trial. Allen v. State, 293 Ga. 626, 627 (2) (748

SE2d 881) (2013). To satisfy the first prong of Strickland, Funck has to

overcome the strong presumption that his trial counsel's performance was within

the broad range of reasonable professional conduct; the reasonableness of such

conduct is assessed from counsel's perspective at the time of trial and under the

particular circumstances then existing in the case. Id. The second prong of

       2
          Funck cites OCGA§ 17-7-110, which provides: “All pretrial motions, including demurrers
and special pleas, shall be filed within ten days after the date of arraignment, unless the time for
filing is extended by the court.”

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Strickland requires that Funck demonstrate the reasonable probability that,

absent any unprofessional errors on counsel's part, the result of his trial would

have been different. Id. Funck cannot meet his burden under Strickland.

       On the final day of trial, Funck’s counsel did in fact move the court for

what counsel termed a “special demurrer” to the indictment and for a directed

verdict of acquittal, arguing that the underlying felony of criminal attempt to

possess cocaine was “not dangerous per se” or inherently dangerous under the

evidence at trial. However, the indictment plainly and with specificity charged

the offense of felony murder while in the commission of the felony of criminal

attempt to possess cocaine as the proximate cause of Johnson’s death.3 The

criminal attempt to possess cocaine can be used as the underlying felony for a

felony murder conviction. Chance v. State, 291 Ga. 241 (728 SE2d 635) (2012).

Therefore, the felony murder charge was not subject to either a pretrial general

or special demurrer. See State v. Wyatt, 295 Ga. 257 (759 SE2d 500) (2014).

Indeed,

       the only limitation on the type of felony that may serve as an

       3
        The indictment charged that Funck “did while in the commission of the felony of Criminal
Attempt to Possess Cocaine, cause the death of Charles Johnson, a human being, by striking him
with a vehicle . . . .”

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      underlying felony for a felony murder conviction is that the felony
      must be inherently dangerous to human life. For a felony to be
      considered inherently dangerous, it must be dangerous per se or it
      must by its circumstances create a foreseeable risk of death. In
      determining whether a felony meets that definition, this Court does
      not consider the elements of the felony in the abstract, but instead
      considers the circumstances under which the felony was committed.


Chance v. State at 242. (Citation and punctuation omitted.) The circumstances

of this case well illustrate the validity of a charge of felony murder premised

upon the criminal attempt to possess cocaine. Funck and Morse’s plan to obtain

cocaine by robbing the supplier of the drugs, and such plan going awry, was the

proximate cause of Johnson's death. Therefore, the committed felony of

criminal attempt to possess cocaine directly and materially contributed to the

subsequent immediate cause of the death. Davis v. State, 290 Ga. 757, 760 (4)

(725 SE2d 280) (2012). Furthermore, the plan to rob an individual dealing in

illegal drugs carried with it a foreseeable risk of danger and death. Id.

      Thus, even a timely pretrial demurrer to the indictment on the basis urged

would not have been successful. The failure to make a meritless motion cannot

provide the basis upon which to find ineffective assistance of counsel. Hampton

v. State, 295 Ga. 665 (763 SE2d 467) (2014). Consequently, Funck’s claim of


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his trial counsel being ineffective in this regard cannot prevail.

      2. As to the evidence at trial, it was sufficient to enable a rational trier of

fact to find beyond a reasonable doubt that Funck was guilty of the felony

murder of Johnson. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d

560) (1979).

      3. Funck next claims error in a ruling by the trial court allegedly limiting

his attorney’s ability to cross-examine Morse, who testified as a State’s witness,

about any deals she may have reached with the State. But, the complaint is

unavailing.

      Immediately before trial, there was a hearing on several defense motions.

At this hearing, Funck’s counsel argued that because certain language regarding

the waiver of sentence modification, new trial, and the right to appeal had been

crossed out in Morse’s plea sentencing sheet, counsel suspected that there was

an agreement with Morse that in exchange for her testimony against Funck,

Morse’s sentence might be modified or her plea agreement be “remolded.” The

prosecutor responded that there was no agreement as to any “remold,” and that

the plea agreement was for a 20-year sentence for manslaughter. The agreement

also required Morse to testify at Funck’s trial. The prosecutor then orally

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“move[d] in limine” that defense counsel not be allowed to “go into anything

speculative,” i.e., without a factual basis, regarding any additional benefit

anticipated by Morse. However, the trial court denied the State’s motion in

limine “as to the cross-examination regarding [Morse’s] motivation, incentive

for any deal that might be there,” but that “it’s not without limitation . . . [a]nd

if you get into it and she says this is all it was you know a reasonable amount of

follow up is probably appropriate but we’re not going to belabor that point. . .

.”

      On direct examination, Morse testified that she entered a guilty plea to

manslaughter and was sentenced to 20 years, and that before the plea she did not

know what her sentence was going to be. On cross-examination Morse was

asked if she had discussed with her attorney about her coming back to court for

possible sentence reconsideration after she testified and she stated that there was

such discussion between her and her attorney and that it was her intention to

return to court to have her sentence reduced.

      Thus, Funck was permitted to question Morse about her plea deal and any

benefit she expected to receive in exchange for her testimony. Indeed, he has

not pointed to any specific information about which he was prevented from

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asking; nor has he alleged what specifics about Morse’s motivation for

testifying were not revealed as a result of her direct and cross-examination

testimony.

      Indeed, a defendant has the right to a thorough and sifting

cross-examination, but the discretion of the trial court to determine its scope and

the relevancy of the sought testimony is broad; the court’s discretion will not be

disturbed on appeal unless it has been abused. Lawton v. State, 281 Ga. 459,

461 (1) (640 SE2d 14) (2007). Certainly, a defendant is entitled to a reasonable

cross-examination on the question of whether the witness believes that he or she

would receive a personal benefit from testifying favorably for the State. Id.

Even so, there are limits on the cross-examiner's inquiry into the potential bias

of an adverse witness; a trial court retains wide latitude in imposing reasonable

limits on such cross-examination. Id. But, in this case, the trial court’s ruling

did not, in actuality, limit Funck’s cross-examination of Morse about what

benefit she did receive and hoped to receive following her testimony for the

State. Even if any limitation imposed by the trial court’s ruling was deemed

error, Funck has failed to show that he was harmed by the court's action. Junior



                                         9
v. State, 282 Ga. 689, 692 (3) (653 SE2d 481) (2007).

      4. Finally, Funck contends that his conviction should be reversed because

he was required to wear his jail jumpsuit throughout his trial, and there was no

justification, disciplinary or otherwise, for doing so. But, the trial court did not

require it; Funck chose to do so on the advice of his attorney.

      At the motion-for-new-trial hearing, Funck testified that his trial counsel

told him to wear the jail jumpsuit because “she wanted everybody to know [he]

had been incarcerated and was still incarcerated,” and that he followed the

advice. Trial counsel provided an affidavit stating that by the time of trial,

Funck had been in jail for over a year, and that after discussion with Funck, the

two decided that as part of their trial strategy, they wanted Funck to remain in

his jail clothing for trial rather than change to “street clothes” so that the jury

would be aware of the time that he had already served in confinement.

      Thus, there was evidence that Funck was not only aware of the strategy

prior to trial but took part in developing it. And, then he chose to pursue that

strategic decision at trial. See Townes v. State, 298 Ga. App. 185, 187 (679

SE2d 772) (2009). A criminal defendant may waive the procedural right to wear



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civilian clothing during trial. Choi v. State, 269 Ga. 376, 377 (4) (497 SE2d

563) (1998); Gay v. State, 258 Ga. App. 854, 857-858 (4) (b) (575 SE2d 740)

(2002). As Funck chose to wear prison garb, there was no objection at trial, and

inasmuch as there was no objection, the trial court was not given the opportunity

to rule on this issue, and take any action. See, e.g., McClarin v. State, 289 Ga.

180, 183 (3) (b) (710 SE2d 120) (2011).

      Insofar as Funck’s argument raises the specter of a claim of ineffective

assistance of trial counsel, he has failed to satisfy the requirements of

Strickland. Given the strength of the evidence against him, Funck cannot show

a reasonable probability that but for the alleged error of counsel, the outcome of

his trial would have been different. See Johnson v. State, 243 Ga. App. 891, 893

(2) (534 SE2d 563) (2000).

      Funck has failed to provide any basis for reversal of his conviction.

      Judgments affirmed. All the Justices concur.




                          Decided January 20, 2015.

      Murder. Richmond Superior Court. Before Judge Annis.


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     Gabriel T. Cliett, for appellant.

     Ashley Wright, District Attorney, Madonna M. Little, Assistant District

Attorney, Samuel S. Olens, Attorney General, Particia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,

Katherine L. Iannuzzi, Assistant Attorney General, for appellee.




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