Murder. Richmond Superior Court. Before Judge Annis.
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.
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.
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 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.
[296 Ga. 372] 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 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.
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, in that the felony murder charge is based upon the charge of criminal [296 Ga. 373] attempt to possess cocaine, which is not inherently dangerous or life-threatening so as to ...