Moore v. State

FINAL COPY

                  S19A1171. MOORE v. THE STATE.


      PETERSON, Justice.

      William Christopher Moore appeals his malice murder

conviction for the strangling and beating death of his girlfriend,

Mandi Kaiser.1 He challenges the trial court’s rulings on evidentiary

matters, including allowing the State to introduce evidence of his

prior violent acts toward another girlfriend. He also argues that the

trial court erred by denying a request for a jury instruction on



      1 Kaiser was found dead in her apartment on February 18, 2015. On May

20, 2015, a Chatham County grand jury indicted Moore for malice murder, two
counts of felony murder (predicated on aggravated battery and aggravated
assault), aggravated battery–family violence, and aggravated assault–family
violence. At a January 2017 trial, a jury found Moore guilty of malice murder
and the two family violence counts. The trial court sentenced Moore to life
without parole for malice murder and merged the family violence counts into
malice murder. (Although the jury’s verdict form did not reflect any verdicts
on the felony murder counts, the trial court’s final disposition order listed the
disposition for those counts as “[n]ot [g]uilty.”) On February 6, 2017, Moore
filed a motion for new trial, which was amended by appellate counsel on
November 30, 2018. The trial court denied the motion in an order entered on
March 22, 2019. Moore filed a timely notice of appeal, and the case was
docketed to this Court’s August 2019 term and submitted for decision on the
briefs.
mutual combat and by failing to grant a mistrial based on a

comment by the prosecutor in closing argument. Moore also argues

that his trial counsel was ineffective in matters related to the other

acts evidence. We conclude that any error in admitting the other acts

evidence was harmless given the strength of the State’s case.

Because Moore has not otherwise shown trial court error or deficient

performance by counsel, we affirm.

      Moore lived with Kaiser in a Chatham County apartment.2

Both had health problems and abused drugs, and Moore had a

peripherally inserted central catheter (“PICC line”) in his arm.

Speaking to Kaiser on the telephone on the evening of February 17,

2015, Kaiser’s mother, Karen Collins, could hear Moore yelling in

the background. Kaiser asked Collins to come pick her up but

decided to stay when Collins arrived. One of Kaiser’s younger

daughters left with Collins, reporting that Moore “was acting crazy.”


      2Moore and Kaiser together were given two keys to the apartment.
Although there was testimony at trial that Kaiser had given one of the keys to
her adult daughter, who had “lost” the key, neither party suggests on appeal
that any adult other than Moore, Kaiser, and their landlord had access to the
apartment.
                                      2
     Kaiser’s   18-year-old   daughter,   Breanna   Hartlaub,    and

Hartlaub’s husband arrived at Kaiser’s apartment later that night

to retrieve clothing for Kaiser’s younger daughters. Moore screamed

at Hartlaub, saying she was not supposed to be there. Kaiser

responded affirmatively when Hartlaub asked her if Moore had “put

his hands on” her. Kaiser indicated she would move out the following

day, but declined to leave the apartment at that time. Collins again

spoke with Kaiser on the telephone around 11:00 that night, and

Kaiser told Collins that she would break up with Moore and move

back in with Collins the following day.

     The next day, Kaiser did not respond to phone calls and text

messages from her family members, and she was found dead on the

floor of her apartment. The front door was locked and there were no

signs of forced entry. Kaiser had abrasions and bruising all over her

body, multiple fractured ribs, and more than ten separate blunt

force injuries to her scalp. Kaiser’s injuries also included a bite

mark; testing of the wound showed the presence of Moore’s DNA,

and a dental forensics expert testified that Moore made the bite

                                 3
mark. A medical examiner testified that the cause of death was a

combination of strangulation and blunt force injuries that could not

be caused by improper CPR.

      On February 20, 2015, Moore waived his rights under

Miranda3 and spoke with investigators in a recorded interview. In

the interview, Moore maintained that Kaiser was alive when he left

the apartment for the night on February 17. Moore claimed that

they had fought over Moore selling Kaiser’s prescription medication,

with Kaiser trying to pull out Moore’s PICC line and Moore merely

pushing her. He claimed that after he left, he caught a bus from the

mall and spent the night at a laundromat. Moore also reported that

he tried to call the victim while he was on the bus and the following

day. Surveillance video, cell phone records, and other evidence

undermined Moore’s claims about what he did after he left the

apartment. Police observed only superficial scratches on Moore’s

body, and his PICC line was not damaged.



      3 See Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966).
                                   4
     Moore did not testify at the January 2017 trial. He put on a

witness, Dustin Singletary, who testified that he observed the victim

at her apartment on the evening of February 17 screaming and

throwing papers, angry that Moore had sold her pills. Singletary

observed no one other than Kaiser and Moore in the apartment.

     Moore’s counsel told the jury that it should find Moore guilty

of voluntary manslaughter, rather than murder, acknowledging to

the jury in closing that Moore may have grabbed Kaiser’s throat but

did so “in a moment of passion, and to defend himself[.]” Counsel

also argued to the jury that it was possible that Kaiser’s chest

injuries were the result of Moore improperly attempting to perform

CPR on her.

     1.   Although Moore does not challenge the sufficiency of the

evidence, we have independently reviewed the record and conclude

that the evidence presented at trial was legally sufficient to

authorize a rational trier of fact to find beyond a reasonable doubt

that he was guilty of the crime for which he was convicted. See

Jackson v. Virginia, 

 (

, 61 LE2d 560)

                                 5
(1979).

     2.   Moore argues that the trial court erred by allowing the

State to introduce evidence under OCGA § 24-4-404 (b) (“Rule 404

(b)”) regarding Moore’s violent acts against an ex-girlfriend. We

conclude that any error was harmless.

     Before trial, the State gave notice pursuant to Rule 404 (b) that

it intended to offer various evidence of other acts, including acts

against Lisa Bedgood, for the purpose of proving Moore’s intent and

that he used violence to control his romantic partners. In a pre-trial

order, the trial court ruled that various other acts against several

ex-girlfriends would be admissible for the purpose of showing

Moore’s intent. At trial, however, the State sought to introduce only

the other acts committed against Bedgood.

     Bedgood testified at trial that in April 2014 she and Moore had

a physical altercation in which he blocked her from exiting their

hotel room. Bedgood also testified that in May 2014 Moore slapped

her in the chest and bit her as she tried to get out of a vehicle. And

she described an incident on an unspecified date in which Moore

                                  6
tried to choke her.

      [A] party offering evidence under OCGA § 24-4-404 (b)
      must show three things: (1) the evidence is relevant to an
      issue in the case other than the defendant’s character; (2)
      the probative value of the evidence is not substantially
      outweighed by its undue prejudice; and (3) there is
      sufficient proof for a jury to find by a preponderance of the
      evidence that the defendant committed the other act.

Castillo-Velasquez v. State, 

 (2) (

)

(2019) (citation and punctuation omitted). In its pre-trial order, the

trial court found Moore’s actions against Bedgood in the April 2014

and May 2014 incidents amounted to batteries that showed an

intent to cause bodily harm to the victim, the same mental state as

required for the pending aggravated battery charge alleged in Count

4 of the indictment.4 That charge was based on an allegation that




      4 The trial court’s pre-trial order did not address the choking incident.

The defense objected to Bedgood testifying at trial about this incident on the
basis of lack of notice, and the trial court handled the objection by giving the
defense an opportunity to question her prior to her testimony. In denying the
motion for new trial, the trial court found that Bedgood’s testimony was
generally admissible because, by virtue of Moore having requested a charge on
voluntary manslaughter, Moore placed his intent at issue, such that “his use
of violence in prior relationships was relevant and probative of intent under
those circumstances.” Moore does not appear to challenge admission of the
evidence on lack of notice grounds on appeal, but, at any rate, any error in this
regard was harmless for the reasons discussed below.
                                       7
Moore “maliciously cause[d] bodily harm to” Kaiser “by rendering

her chest . . . useless[.]” The trial court also found that there was

sufficient proof to enable the jury to determine by a preponderance

of the evidence that Moore committed the acts allegedly committed

in April and May 2014 and that the probative value of those acts

was not substantially outweighed by undue prejudice. The trial

court instructed the jury to limit its consideration of the other acts

evidence to whether the State had proven intent as to the

aggravated battery charge.

     Moore argues on appeal that “based on [the extent of Kaiser’s

injuries, his] intent was quite clear” and so the State had little need

for Rule 404 (b) evidence to prove his intent. Thus, he argues, even

if the evidence was relevant to an issue other than his character, the

probative value of the Rule 404 (b) evidence was so minimal that it

was substantially outweighed by unfair prejudice. Assuming that

this argument was preserved,5 we find that any error in admitting


     5  Moore argued before the trial court that none of the other acts
evidenced an intent to kill, which he erroneously contended was the only
relevant intent in his case.
                                   8
the Rule 404 (b) evidence was harmless and thus does not merit

reversal.

      The new Evidence Code continues Georgia’s existing
      harmless error doctrine for erroneous evidentiary rulings.
      See OCGA § 24-1-103 (a) (“Error shall not be predicated
      upon a ruling which admits or excludes evidence unless a
      substantial right of the party is affected. . . .”). In
      determining whether the error was harmless, we review
      the record de novo and weigh the evidence as we would
      expect reasonable jurors to have done so. The test for
      determining nonconstitutional harmless error is whether
      it is highly probable that the error did not contribute to
      the verdict.
Smith v. State, 

 (2) (d) (

) (2016)

(citations and punctuation omitted).6 Here, the evidence against

Moore     was    overwhelming.        The     medical     examiner      testified

unequivocally that Kaiser’s injuries were the result of blunt force

trauma and strangulation, detailing a host of injuries all over her

body. Kaiser was found dead in the apartment that she shared with

Moore and where she had been seen alone with him on the previous



      6 Moore conclusorily frames each of his enumerations of error, including

this and others that amount to ordinary issues of evidence or jury instructions,
as constitutional violations. But he cites no authority for the proposition that
any of the alleged trial court errors also constituted violations of any particular
provision of the United States Constitution or the Georgia Constitution.
                                        9
evening. The front door was locked when Kaiser was found, and

there was no sign of forced entry. DNA evidence supported the

State’s position that Moore inflicted Kaiser’s injuries.

     Moore’s defense at trial was that he strangled Kaiser in a

moment of passion or to defend himself after she attacked him

physically. But the jury rejected that defense, and it is highly

unlikely that it would have accepted that defense even in the

absence of Bedgood’s testimony. The jury heard evidence, through

the testimony of Hartlaub, that Moore had been physically violent

toward Kaiser some time before inflicting the injuries that killed

her. The unrebutted physical evidence was that Moore had only

superficial scratches on his body and his PICC line was undisturbed.

The medical examiner gave unrebutted expert testimony that

Kaiser had injuries all over her body and broken ribs that could not

have been caused by improper CPR, thus undermining Moore’s

suggestion at trial that he merely grabbed Kaiser’s throat and then

tried to revive her. The jury had reason to be skeptical of Moore’s

theory of events offered at trial, given his statements to

                                  10
investigators that were both at odds with that theory and

contradicted by surveillance video, cell phone records, and other

evidence. We conclude that it is highly probable that any error in

admitting the other acts evidence did not contribute to the verdicts.7

See Williams v. State, 

 (3) (

)

(2017) (any error in admission of other acts was harmless given

overwhelming evidence against defendant).

      3.    Moore next argues that the trial court erred by overruling

his objection to the admission of 17 photographs associated with

Kaiser’s autopsy. We disagree.

      At trial, Moore objected to the admission of the 17 photographs

on the basis that they were duplicative and unnecessary and their

probative value was outweighed by their prejudicial effect. This

objection appears to have covered all of the post-incision autopsy

photographs. Suggesting that prosecutors should simply “[p]ick

their ten, fifteen best photos,” Moore argued that the probative value


      7  Indeed, Moore’s argument on appeal that admission of Bedgood’s
testimony was error rests on the premise that the extent and nature of Kaiser’s
injuries were themselves sufficient proof of his intent.
                                      11
of the photos was low given that the defense was not going to be

disputing the cause of death or that Kaiser was strangled, while the

prejudicial effect was high given the graphic nature of the

photographs. The trial court denied the motion on the basis that

showing the photographs would assist the medical examiner in

explaining his testimony.

     OCGA § 24-4-403 (“Rule 403”) provides:

          Relevant evidence may be excluded if its probative
     value is substantially outweighed by the danger of unfair
     prejudice, confusion of the issues, or misleading the jury
     or by considerations of undue delay, waste of time, or
     needless presentation of cumulative evidence.

The exclusion of relevant evidence under Rule 403 is an

extraordinary remedy that should be used only sparingly. Castillo-

Velasquez, 

 (2). A trial court’s decision to overrule an

objection under Rule 403 is reviewed for an abuse of discretion. See

 (2).

     Here, the photographs to which Moore objected certainly were

“relevant to show the nature and location of the victim’s injuries,

which corroborated the State’s evidence of the circumstances of the

                                 12
killing.” Pike v. State, 

 (3) (

)

(2018). The State bore the burden to prove all of the elements of all

of the crimes charged.8 And, in the light of the medical examiner’s

testimony that none of the photographs were duplicates that merely

showed the same injury from different angles, the trial court was

entitled to reject the defense argument that the photographs were

so duplicative that their probative value was outweighed by their

prejudicial effect. Moore has not shown an abuse of discretion in

admission of the photographs.

     4.    Moore argues that the trial court erred by refusing his

request to charge the jury on mutual combat. We disagree.

      “A finding that a defendant was engaged in mutual combat at

the time the victim was killed may authorize the jury to find the

defendant guilty of voluntary manslaughter and not malice

murder.” Berrian v. State, 

 (2) (

)


     8  Moreover, although Moore, in arguing against admission of the
photographs, purported to concede that Kaiser died as a result of
strangulation, he ultimately did dispute the circumstances under which she
died, arguing in closing that her chest injuries were the result of improper
CPR.
                                    13
(2015). “Mutual combat occurs when there is combat between two

persons as a result of a sudden quarrel or such circumstances as

indicate a purpose, willingness, and intent on the part of both to

engage mutually in a fight.” Russell v. State, 

 (2)

(

) (2018) (citation and punctuation omitted). Evidence

that the victim attacked the defendant, such that would give rise to

justification based on self-defense, is not a basis for an instruction

on mutual combat. See Pulley v. State, 

 (3) (

) (2012) (trial court did not err in failing to give charge on

mutual combat where defendant testified he threw a television at

the victim in order to protect himself after the victim had attacked

him with a pair of scissors).9

      Here, Moore requested an instruction on mutual combat on the

basis that there was evidence that he and Kaiser had been arguing

prior to her death, that she had tried to remove his PICC line, and




      9 In some cases, we have held that a mutual combat instruction is
warranted only if both combatants are armed with deadly weapons, but there
is some conflict in our case law on that point. See Russell, 

 (2)
n.2. This case does not require us to resolve that conflict.
                                      14
that both of them had received physical injuries. The trial court

instructed the jury on voluntary manslaughter generally but denied

the defense request for a charge on mutual combat, saying there was

no evidence that Kaiser was willingly engaged in a fight with Moore

at the time she was killed. This was not error. Evidence that Moore

and Kaiser had argued is not itself evidence of mutual combat.

Johnson v. State, 

 (4) (c) (

) (2017)

(“evidence of an argument over money that turned violent is not

sufficient to show mutual combat”). And the meager evidence that

Kaiser had physically attacked Moore in some way is evidence that

might have given rise to a charge on self-defense, not a charge on

mutual combat. See 

 (no error in failing to charge on mutual

combat notwithstanding evidence of scratches and blood on

defendant and his statement that victim threw a bottle at him); see

also Venturino v. State, 

 (3) (

) (2019)

(no error in refusing to charge on mutual combat where defendant’s

“own testimony — in which he claimed self-defense — contradicted



                                15
a theory of mutual combat”).10

     5. Moore next argues that the trial court erred by overruling

defense counsel’s objection to a portion of the State’s closing

argument. We disagree.

     In his closing argument, defense counsel posited that, on the

night of her death, Kaiser had attempted to remove Moore’s PICC

line while he was ingesting cocaine through it, trying to “chill.” In

his closing argument, the prosecutor questioned that suggestion,

saying, “[c]ocaine is a stimulant,” “not a drug you take when you just

want to, you know, watch Netflix and chill.” Defense counsel did not

object to the prosecutor’s closing at this point. The prosecutor

continued on for several sentences, then said:

           [Defense counsel] comes in at the very end, and he
     offers to you that Mandi Kaiser tried to pull a PICC line
     from the defendant. He did this for a reason; okay? . . .
     Because with voluntary manslaughter, words alone is not
     enough. . . . He knows that.

At that point, defense counsel objected, saying it was “improper” for




     10 No jury instruction on self-defense was given, and Moore raises no

enumeration of error regarding that.
                                       16
the prosecutor to “say that I’m doing something sinister or wrong”

in making a closing argument. The trial court did not rule on the

objection explicitly, saying: “All right. Gentlemen, let’s keep to the

facts of the case and what the evidence shows or has shown.”

     On appeal, Moore argues that the trial court erred by implicitly

overruling his objection, because the State accused trial counsel of

acting improperly without any basis for doing so. But “a prosecutor

is granted wide latitude in the conduct of closing argument, the

bounds of which are in the trial court’s discretion[.]” Scott v. State,

 (2) (

) (2012). Given that wide latitude,

we find no abuse of the trial court’s discretion.

     Moore also argues that the prosecutor’s reference to cocaine

being a stimulant was improper because it referenced matters not

in evidence. But he made no such objection at trial, merely objecting

to another part of the prosecutor’s argument on the basis that it

suggested that defense counsel had done something improper.

Moore’s argument that the prosecutor’s comment about the

properties of cocaine improperly referenced matters not in evidence

                                  17
thus is waived for appellate review. See Gates v. State, 

 (4) (

) (2016) (plain error review unavailable

for errors related to allegedly improper remarks made during closing

argument).

     6.   Finally, Moore argues that his trial counsel provided

ineffective assistance by failing to move for a mistrial or otherwise

object to (1) a comment by the prosecutor in his opening statement

and (2) certain testimony by Bedgood. We disagree.

     To prevail on a claim of ineffective assistance of counsel, Moore

must show both that his trial counsel’s performance was deficient

and that this deficiency prejudiced his defense. Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

“To establish deficient performance, an appellant must overcome the

strong presumption that his . . . counsel’s conduct falls within the

broad range of reasonable professional conduct and show that his

counsel performed in an objectively unreasonable way” in the light

of all of the circumstances. Smith v. State, 

 (2) (

) (2015) (citation and punctuation omitted). To establish

                                 18
prejudice, an appellant must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 

. An appellant must prove both prongs of the Strickland test,

and if he fails to prove one prong, we need not “examine the other

prong.” Smith, 

 (2) (citation and punctuation omitted).

In reviewing either component of the inquiry, all factual findings by

the trial court will be affirmed unless clearly erroneous. 

     (a)   Moore argues that trial counsel was ineffective in failing

to move for a mistrial or otherwise object when the State told the

jury during its opening statement that it would “hear from other

female victims of Willie Moore” who have “been ruled admissible.”

Moore argues that trial counsel should have objected because the

prosecutor’s statement improperly “gave that evidence the judge’s

seal of approval.” But “[t]he failure to make a meritless objection

cannot serve as a ground for an ineffective assistance claim.” Young

v. State, 

 (5) (

) (2019). And Moore has

pointed to no basis on which counsel could have objected to the

                                  19
remark successfully.

     “It is well established that a prosecutor may set forth in her

opening statement what she expects the evidence adduced by the

State will show.” Wilson v. State, 

 (2) (

) (2003). And preliminary questions concerning the admissibility

of evidence are to be determined by the trial court. See OCGA § 24-

1-104. The prosecutor’s reference to the trial court’s pre-trial

evidentiary ruling was accurate and noted the limited purpose for

which the evidence would be used.

     To be sure, the jury ultimately would be called on to decide

whether Moore actually committed any other acts that the State

introduced. See Olds v. State, 

 (2) (

)

(2016). And “criminal intent is a question for the jury[.]” Coe v. State,

 (1) (

) (2013) (citation and punctuation

omitted). But telling the jury that the trial court had determined the

other acts evidence was “admissible” was not at odds with the jury’s

authority in those respects. See Olds, 

 (2) (“[E]vidence

of other acts is admissible under Rule 404 (b) only to the extent that

                                   20
the evidence is sufficient to permit a jury to conclude by a

preponderance of the proof that the person with whom the evidence

is concerned actually committed the other acts in question.”

(emphasis added)).

     The cases cited by Moore on appeal generally involve remarks

by the trial court or prosecutor as to specific questions ultimately to

be resolved by the jury.11 See Freeman v. State, 

(2) (

) (2014) (reversing murder conviction where trial

court told the jury that the defendant’s out-of-court statement was

“freely and voluntarily given”); Starr v. State, 

, 466-

468 (1) (

) (2004) (conviction reversed when the trial

court gratuitously included in its charge to the jury language from

the Child Hearsay Statute to the effect that the court found the child

victim’s statement had “sufficient indicia of reliability”), overruled

on other grounds by Hatley v. State, 

 (1) (

) (2012); Spry v. State, 

 (3) (

)


     11 Cases about comments by the trial court, which are governed by OCGA

§ 17-8-57, are not germane to a question about the propriety of arguments by
counsel.
                                    21
(1980) (convictions for distribution of obscene material reversed

where prosecutor said in presence of jury that a warrant was issued

after “some judge made the decision on whether or not [magazine]

was obscene”). Another case cited by Moore did not involve a remark

about evidence at all. See Luke v. State, 

(4) (

) (1999) (conviction reversed after prosecutor told

jury that defense argument was “crazy” because if the law actually

supported the defense argument, the judge would have dismissed

the case). Here, “the prosecutor simply restated the evidentiary

ruling by the trial court[.]” Koonce v. State, 

 (2) (e)

(

) (2019). The prosecutor’s remark contained no

suggestion that the trial court had made any determination about

the reliability or credibility of the evidence or whether Moore had

actually committed the acts in question. We cannot say that the

prosecutor’s remark was so improper under our case law that

defense counsel performed deficiently in failing to object.

     (b)   Moore also argues that his trial counsel was ineffective in

failing to move for a mistrial or otherwise object when Bedgood on

                                  22
re-direct examination referenced prior incidents beyond those the

trial court had determined were admissible. In particular, when the

prosecutor asked why Bedgood did not call the police after Moore

choked her, Bedgood responded: “Because it was the last time it

happened. I had made five police reports on him. Nobody ever did

anything. Guess who had to deal with his anger after I made the

police report? I did.” Moore notes on appeal that trial counsel had

objected to Bedgood’s testimony on direct examination that she had

experienced “many” problems with Moore on the basis that this

testimony implicated incidents beyond those ruled admissible by the

trial court.12 Counsel’s failure to object to Bedgood’s remarks allowed

Bedgood to testify to those incidents, anyway, Moore argues.

     In cross-examining Bedgood, defense counsel asked whether

she had reported to police the incident in which he allegedly had

choked her. This opened the door to the prosecutor’s question on re-

direct, which gave her the opportunity to explain why she hadn’t



     12 At that point, the trial court admonished the prosecutor to “make sure

she’s complying.”
                                     23
reported the incident. See Strother v. State, 

 (4) (c)

(

) (2019) (although Rule 404 (b) “precludes the

admission of extrinsic evidence to prove a defendant’s character in

order to show that he acted in accordance with that character,

inadmissible   extrinsic   evidence   is   admissible   on   redirect

examination as rebuttal evidence, when defense counsel has opened

the door to such evidence during cross-examination” (citation and

punctuation omitted)). And trial counsel testified at the motion for

new trial hearing that although he “could” have objected, he did not

do so because it was “pretty standard” to ask a domestic abuse victim

why she did not call the police, and because objecting “sort of cuts

the defense argument off at the path that she didn’t call the police.”

Counsel’s assessment that an objection would undermine his

attempt to challenge Bedgood’s credibility based on her failure to

report the incident was not objectively unreasonable. Moore has not

shown that the failure to object was deficient.

     Judgment affirmed. All the Justices concur.

                    DECIDED NOVEMBER 4, 2019.

                                 24
     Murder. Chatham Superior Court. Before Judge Bass.
     Steven L. Sparger, for appellant.
     Meg E. Heap, District Attorney, Jennifer L. Parker, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, for appellee.




                                 25