Koonce v. State

FINAL COPY
                 S19A0012. KOONCE v. THE STATE.


      BOGGS, Justice.

      Norman Koonce, Jr., was convicted of malice murder, armed

robbery, aggravated battery, two counts of possession of a firearm

during the commission of a felony, and possession of a firearm by a

first offender probationer in connection with the killing of Quahfee

Murphy and the wounding of Allen Moore III. He was sentenced to

life in prison plus 30 years. His amended motion for new trial was

denied, and he appeals, asserting ineffective assistance of counsel.

Finding no error, we affirm. 1


      1 The crimes occurred on April 26, 2014. On July 9, 2014, a Chatham

County grand jury indicted Koonce for malice murder, three counts of felony
murder, criminal attempt to commit a felony, armed robbery, two counts of
aggravated assault, aggravated battery, seven counts of possession of a firearm
during the commission of a felony, and possession of a firearm by a first
offender probationer. After a trial from January 25-29, 2016, a jury found
Koonce guilty on all 17 counts. The trial court sentenced Koonce to serve life
in prison for malice murder, life in prison concurrent with the malice murder
count for armed robbery, 20 years consecutive for aggravated battery, and five
years on each of three firearms charges, two of which were consecutive, for a
total sentence of life in prison plus 30 years. The trial court clarified in a
subsequent order that the felony murder counts were vacated by operation of
law, one aggravated assault count merged into the malice murder count, the
      The evidence presented at trial showed that Koonce

encountered Moore, who knew him slightly, at a gas station in

Savannah and struck up a conversation about obtaining a rifle.

Moore said that he had a friend, Murphy, who would be willing to

trade his rifle for some handguns. The meeting eventually took place

at Moore’s home, while Moore’s girlfriend and two of Koonce’s

friends waited in their cars outside. Inside the home, Koonce shot

both Murphy and Moore in the head, killing Murphy and severely

wounding Moore, who survived. Koonce then took the rifle and left,

telling his friends, “We good.” Koonce told one of his friends to “get

rid of” the car and told his girlfriend to report the car as stolen.

Moore identified Koonce to police as the shooter. Koonce testified at

trial and admitted the shooting, but claimed that he acted in self-




criminal attempt count and one aggravated assault count merged with the
aggravated battery, and five of the firearms charges merged into the remaining
three firearms charges, one of which was concurrent with the malice murder
and armed robbery sentences. On February 4, 2016, Koonce’s trial counsel filed
a motion for new trial, which was amended by appellate counsel on August 31,
2016. After a hearing on November 15, 2016, the trial court denied Koonce’s
motion on March 27, 2018. Koonce filed a timely notice of appeal, and his case
was docketed in this Court for the term beginning in December 2018 and
submitted for decision on the briefs.
defense after Moore pointed the rifle at him and Murphy lifted up

his shirt, as if to reach for a concealed weapon. No handguns were

found in Moore’s home.

     1. Though Koonce has not enumerated sufficiency, we have

concluded that the evidence as summarized above was sufficient to

enable a rational trier of fact to conclude beyond a reasonable doubt

that Koonce was guilty of the crimes of which he was convicted. See

Jackson v. Virginia, 

 (

, 61 LE2d 560)

(1979).

     2. In his sole enumeration of error, Koonce asserts that his trial

counsel provided ineffective assistance and lists six instances of

alleged deficiency on the part of his trial counsel. To prevail on a

Sixth Amendment claim of ineffective assistance, Koonce must

prove both that the performance of his lawyer was deficient and that

he was prejudiced by this deficient performance. Strickland v.

Washington, 

 (III) (

, 80 LE2d 674)

(1984); Terry v. State, 

 (2) (

) (2008). To

prove deficient performance, Koonce must show that his attorney
“performed at trial in an objectively unreasonable way considering

all the circumstances and in the light of prevailing professional

norms.” Romer v. State, 

 (3) (

) (2013).

And to prove prejudice, Koonce “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” 

 (III) (B). “This burden

is a heavy one. [Cit.]” Young v. State, 

 (5) (

) (2019). Having reviewed the alleged instances of ineffective

assistance asserted by Koonce, we conclude that his claim is without

merit.

     (a) Koonce first asserts that trial counsel was ineffective in

failing to move for a mistrial or otherwise object to the prosecutor’s

misstatement of a witness’ testimony. This witness was present at

the gas station and described Koonce’s behavior there, referring to
him as “[t]he subject that supposedly did all of this.” 2 Responding to

his description, the prosecutor asked, “Okay. Let’s take it back a

little bit. You said the person that did all of this.” At the hearing on

the motion for new trial, trial counsel testified that he did not see

this as a misstatement, and the trial court agreed. As noted in

Division 1, Koonce testified at trial and admitted that he shot both

victims, although he claimed that he did so in self-defense. While

Koonce cites, without comment or differentiation, 14 cases for his

general assertion that failure to object to objectionable testimony

“can establish ineffective assistance of counsel,” he has failed to

show, particularly in light of his own testimony, that trial counsel’s

decision not to object was deficient, or a reasonable probability that

the result of the trial would have been different had counsel

interposed an objection.

     (b) Koonce also contends trial counsel was ineffective in failing

to object or move for a mistrial when detectives summarized their


     2  The witness, a friend of victim Moore, testified that Koonce had a
handgun in his waistband and was behaving in a threatening and agitated
manner. He expressed his concerns about Koonce to Moore, but Moore told him
not to worry because Koonce had dated his sister.
interviews with witnesses, and when the State played a recorded

interview of Moore, in alleged violation of the rule against hearsay.

Koonce asserts that trial counsel admitted at the hearing on the

motion for new trial that he had no strategic reason for not objecting,

but the transcript shows that trial counsel gave several strategic

and tactical reasons for not objecting, including that he wanted to

show inconsistencies between the witnesses’ statements, their

testimony, and the facts of the case. He also testified that he “wanted

the interviews to be heard,” and that “the jury got a chance to see

Mr. Moore and hear Mr. Moore. I got a chance to cross-examine Mr.

Moore.” He particularly noted that the witnesses all knew each other

but Koonce only knew Moore; Moore and Murphy insisted on the

transaction taking place at Moore’s home; and at one point, Moore

told police that Murphy, the deceased victim, had a gun. In counsel’s

opinion, this evidence supported Koonce’s claim of self-defense, and

he argued that theory to the jury in closing.

     A decision to refrain from objecting to testimony in favor of

impeaching a witness or showing inconsistencies in the evidence is
a trial strategy and, if reasonable, will not support an ineffectiveness

claim. See Marshall v. State, 

 (2) (a) (

) (2016) (counsel’s decision not to object to witnesses’ recorded

statements because of inconsistencies was reasonable trial strategy

and counsel’s performance was not deficient); Johnson v. State, 

 (7) (b) (

) (2013) (counsel’s decision not to

object to witness’ hearsay testimony in favor of cross-examination

was matter of trial strategy and not patently unreasonable so that

no competent lawyer would have made it). Trial counsel’s decision

not to object to the complained-of evidence and instead to use it to

support Koonce’s claim of self-defense was a matter of trial strategy

and not patently unreasonable; it therefore fails to demonstrate

deficient performance. See 

     Moreover, Koonce has made no effort to demonstrate how the

alleged deficiency of trial counsel affected the result of the trial, or

whether a reasonable probability exists that the outcome would

have been more favorable to him if counsel had objected. He again

lists the same 14 cases without discussion, other than altering his
assertion to claim that failure to raise a valid objection will — rather

than can — establish ineffective assistance of counsel. Here, Koonce

himself testified and admitted to most of the circumstances leading

up to the encounter. Koonce has failed to show, particularly in light

of his trial testimony, a reasonable probability that the result of the

trial would have been different had counsel interposed an objection

to the statements or recordings.

     (c) Koonce also contends trial counsel was ineffective in failing

to object or move for a mistrial when one of the investigating officers,

Detective Jonathan Puhala, testified regarding his interview of

Moore. Specifically, Koonce complains that Detective Puhala gave

inadmissible opinion testimony regarding Moore’s ability to

remember details, bolstering Moore’s credibility. Detective Puhala

testified that he conducted a “very brief, brief interview” with Moore

in the emergency room, observing that Moore “had been shot in the

head. He did not look well.” He stated that Moore appeared to be

blind, and his ability to communicate was “limited. His answers

were generally one word answers, short, short sentences.” He added
that the purpose of the interview was simply to obtain basic

information in case Moore did not survive and to see if Moore could

identify his assailant. The prosecutor then asked if the detective

“ever had to interview people that have suffered brain injuries kind

of shortly after it’s happened.” He responded, “Yes . . . [p]retty

frequently,” and agreed that it was “normal for them to not have all

the details at that point.” Asked if that was the case with Moore,

Detective Puhala responded, “Yes. . . . It appeared to me he was

trying to answer my questions the best he could, but he was

struggling. . . .” At the hearing on the motion for new trial, trial

counsel testified that he did not object because he did not think the

answers were objectionable. Asked if the detective had been

“qualified as any sort of expert to talk about brain injuries,” trial

counsel responded, “No, he was not in that case. But I don’t think

you have to be qualified to answer a question.”

     Koonce contends that trial counsel should have objected to this

testimony as improper testimony that bolstered Moore’s credibility.

He first cites Bly v. State, 

 (1) (

)
(2008), in which a police officer who did not witness a traffic stop

and was not qualified as an expert testified that the officer involved

“acted appropriately.” This Court held that admission of that

testimony was error, because the officer did not base his opinion

upon personal observation but merely on the testimony and evidence

presented to the jury. See 

 Koonce relies upon that holding to

contend that the detective gave improper opinion testimony

regarding his interview of Moore. But here, in contrast to the officer

in Bly, the detective “personally observed the events to which [he

was] testifying,” and was authorized to “state his impressions drawn

from, and opinions based upon, the facts and circumstances

observed by him or the effect which they produced upon his mind.”

(Citation, punctuation and emphasis omitted.) 

 (1).

     Koonce further contends that the detective’s testimony invaded

the province of the jury, relying upon 

 (2),

and McCartney v. State, 

 (1) (

) (1992),

overruled on other grounds, Linson v. State, 

 (4)

(

) (2010), and improperly bolstered the credibility of
another witness as to whether that witness was telling the truth,

relying upon Word v. State, 

 (

)

(2011), Howie v. State, 

 (

) (2006),

and Patterson v. State, 

 (

) (2006).

But these decisions are likewise inapposite. The effects of Moore’s

head injury as observed by Detective Puhala were not expert opinion

as to Moore’s truthfulness. And it is by no means clear that

testimony that Moore appeared confused and was “struggling” to

respond to the detective’s questions bolstered Moore’s testimony.

     Additionally, the prosecutor inquired extensively into Moore’s

injuries and deficits, including defects of memory, in the State’s

direct examination of Moore. And the lead detective, Allison Nichols,

also interviewed Moore and testified to his confusion and lack of

memory. Koonce did not object to this testimony, and appellate

counsel does not enumerate this as an instance of ineffectiveness.

Detective Puhala’s testimony regarding the effects of Moore’s injury

therefore was largely cumulative of other, unobjected-to evidence of

the same facts. See Marshall v. State, 

 (2) (a) (

) (2015). Once again, Koonce simply repeats his 14-case

citation, failing entirely to address what effect, if any, trial counsel’s

failure to object to this testimony had upon the outcome of the trial,

particularly in light of the cumulative nature of the testimony. He

therefore has failed to show either deficiency or prejudice from

counsel’s failure to object.

     (d) Koonce also contends trial counsel was ineffective in failing

to object or move for a mistrial when Detective Nichols testified to

the results of her investigation. Koonce acknowledges that Detective

Nichols was present at the crime scene and that some of her

testimony “may have been based on her personal knowledge,” but

asserts that “most” of her testimony was based upon what she was

told or read in reports and thus was inadmissible hearsay.

Specifically, he points to Detective Nichols’ testimony regarding the

firearms involved, the shell casings found on the crime scene, and

the number of shots fired.

     But Detective Nichols testified that she responded to the crime

scene, observed Murphy’s body still lying undisturbed on the floor,
and collected evidence from his body and the surrounding area,

including three shell casings which she identified. Thus, the record

contradicts Koonce’s claim that Detective Nichols was repeating

inadmissible hearsay. Moreover, even to the extent that the

testimony regarding the number of shots fired or the terms of the

exchange of firearms was hearsay, it was cumulative of other

evidence presented, including Koonce’s own testimony. Koonce

testified at some length to the terms of the exchange and the

firearms involved, and he also testified that he fired three shots

during the altercation. Trial counsel was not deficient in failing to

object to the cumulative testimony of Detective Nichols on these

matters. Marshall, supra, 

 (2) (a).

     Koonce further contends that Detective Nichols “bolstered

Murphy’s testimony that he did not have a handgun or that Koonce

was the only person with any handguns.” But Murphy is deceased

and did not testify. And Koonce in his testimony acknowledged that

he brought two handguns to the house to trade for the rifle which he

observed in Moore’s possession. Koonce thus has failed to
demonstrate that objection was warranted or that trial counsel was

deficient in not objecting. Morever, he once again repeats his 14-case

citation without addressing the effect, if any, of the alleged

deficiency upon the outcome of the trial, and thus has failed to show

prejudice.

     (e) Koonce also contends trial counsel was ineffective in failing

to object or move for a mistrial when the prosecutor commented on

an evidentiary ruling by the trial court in the presence of the jury.

Trial counsel objected to the replaying of a video interview of Moore,

and in a sidebar conference the trial court sustained the objection in

part, instructing the State to limit its replaying of the recording to

those portions referring to matters as to which Koonce had cross-

examined witnesses or presented other evidence challenging the

testimony. After the sidebar concluded, the prosecutor added, “And

just to be clear, and pursuant to the defense[’]s request, we’ll just

play specific portions. If anyone requests — requires the entire video

to be play[ed], we can.” The trial court responded, “Certainly.”

     Koonce asserts that the prosecutor improperly commented on
a ruling by the trial court and insinuated that the defense was

hiding evidence from the jury. He cites Spry v. State, 

 (

) (1980), and Luke v. State, 

 (

) (1999), but neither case supports his assertion. In Spry,

the prosecutor in closing argument on a charge of distributing

obscene material asserted to the jury that a judge had already made

a determination that the magazine was obscene before warrants

issued and the defendants were arrested. The Court of Appeals held

that this was evidence improperly injected into the case and

required a new trial. See 

 (3). In

Luke, the prosecutor in closing argument argued that, if the defense

asserted by the defendants had any merit, “the judge would be done

dismissed the case and we’d all be done gone home.” Id. at 544 (4).

The Court of Appeals reversed, noting that the argument was

“objectionable as introducing into the argument the opinion of the

trial judge on questions of fact which opinion should not have been

in the minds of the jurors in arriving at the verdict.” Id. at 545 (4).

Here, the prosecutor simply restated the evidentiary ruling by the
trial court, a ruling which became apparent to the jurors when the

State played only portions of the interview. Koonce has not shown

that an objection was warranted or that trial counsel was deficient

in not objecting; nor has he shown prejudice by merely repeating the

14-case string citation without addressing the effect, if any, of the

alleged deficiency upon the outcome of Koonce’s trial.

     (f) Finally, Koonce also contends trial counsel was ineffective

in failing to object to the State’s examination of Detective Nichols

with regard to a statement given to her by witness Davawn Minor.

Trial counsel did in fact object that the witness had already testified,

and argued that it was “improper for this witness to testify [to] what

Davawn Minor said. We’ve already heard from Davawn Minor.” The

trial court overruled the objection. Koonce asserts, however, that

trial counsel should have objected on the additional ground that the

State had already played the recording of Minor’s police interview

and that Detective Nichols’ testimony therefore was improper

bolstering. But, as the State asserted in response to the objection, it

was seeking to impeach Minor, not bolster Minor’s testimony: “I’m
impeaching his testimony of things that he’s said on the stand, like,

‘I can’t remember,’ and, ‘I never said certain things.’ I’m only

covering those brief topics.” An objection on this ground therefore

would have been meritless, see Danenberg v. State, 

, 441-

442 (3) (

) (2012), and failure to interpose a meritless

objection does not constitute ineffective assistance. See Faust v.

State, 

 (4) (a) (

) (2017). Nor has Koonce

offered any argument beyond the 14 cases already cited to show a

reasonable probability that, but for trial counsel’s failure to object to

this testimony, the result of the proceedings would have been

different, particularly in light of Koonce’s admission of the

circumstances of the transaction and the shooting. 3

      Judgment affirmed. All the Justices concur.




      3 Koonce asserts that trial counsel’s alleged errors must be viewed
cumulatively. See Schofield v. Holsey, 

 (II) n.1 (

)
(2007). But, as noted above, Koonce has failed to demonstrate deficiency in any
instance alleged, nor has he shown prejudice. His reliance on Schofield is
therefore unavailing. See Dent v. State, 

 (4) (e) (

)
(2018).
                      Decided April 29, 2019.

     Murder. Chatham Superior Court. Before Judge Abbot.

     Steven L. Sparger, for appellant.

     Meg E. Heap, District Attorney, Matthew Breedon, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia

B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Katherine D. Emerson,

Assistant Attorney General, for appellee.