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Moses v. State

Court of Appeals of Georgia

July 15, 2014

MOSES
v.
THE STATE

Reconsideration denied July 30, 2014 -- Cert. applied for.

Page 218

Aggravated assault, etc. Fulton Superior Court. Before Judge Adams.

Garland, Samuel & Loeb, Donald F. Samuel, for appellant.

Paul L. Howard, Jr ., District Attorney, Joshua D. Morrison , Assistant District Attorney, for appellee.

MCFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

Page 219

McFadden, Judge.

A jury found Marco Moses guilty of aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. He appeals his convictions. He argues that the trial court erred in denying his motion to suppress evidence found during a search of a

Page 220

house that he and his mother owned and at which his mother lived. We agree with Moses that the trial court erred in holding that he lacked standing to make this challenge but find that the trial court did not err in denying his motion on the merits, and we find that Moses has waived appellate review of alternative grounds for suppression that he raised post-conviction. Moses argues that the trial court erred in allowing certain impeachment evidence, but we find that the state laid the necessary foundation for the evidence. Moses argues that the trial court erred in allowing various other evidence, argument, and lines of questioning at trial, but we find that he waived appellate review of these claims by failing to object at trial. Finally, Moses argues that his trial counsel was ineffective, but we find he has not met his burden of showing he received ineffective assistance of counsel. Accordingly, we affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence showed that shortly after midnight on September 26, 2007, Dantavious Walker drove his friend's car to a convenience store. As Walker returned to the car after making a purchase, a van (whose driver Walker later identified as Moses) pulled up and a man (whom Walker also later identified) emerged and began shooting at Walker and the car. Walker was shot several times as he fled the scene in the car. Walker identified Moses as the van's driver in an interview with police at the hospital several hours later.

On October 1, 2007, police obtained a warrant to arrest Moses and a warrant to search for him at a house where his mother lived. They found Moses there and arrested him. Later that day, police obtained another warrant to search that house for items including guns. In a bathroom adjoining the master bedroom, police found a gun that a ballistics expert subsequently tied to shell casings found at the scene of the shooting. In the master bedroom, police found Moses's belongings, including his clothing, jewelry, identification, and paperwork bearing his name.

2. Motion to suppress.

Moses moved to suppress the evidence found during the search of the house at which he had been arrested on the ground that the [328 Ga.App. 626] search warrant affidavit contained insufficient facts to support the issuance of the warrant. The trial court denied the motion, finding both that Moses lacked standing to challenge the search of the house and, alternatively, that the motion failed on its merits. The trial court reiterated these two holdings in an order denying Moses's motion for new trial.

" On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous." Wright v. State, 294 Ga. 798, 801 (2) (756 S.E.2d 513) (2014) (citation and punctuation omitted). " [W]e may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial." Jackson v. State, 295 Ga.App. 427, 430 (3) (671 S.E.2d 902) (2009) (citation omitted).

(a) Standing to challenge search.

Moses argues that the trial court erred in finding that he lacked standing to challenge the search. " In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Smith v. State, 284 Ga. 17, 21 (3) (663 S.E.2d 142) (2008) (citations and punctuation omitted). In other words, " a defendant must demonstrate both a 'subjective' expectation of privacy and that the expectation is one that society is willing to recognize as reasonable." Rashid v. State, 292 Ga. 414, 418 (3) (737 S.E.2d 692) (2013) (citation omitted). The trial court held that Moses lacked standing to challenge the search of the house because he did not live there and because people " came and went from the room in question."

Page 221

Viewed most favorably to the trial court's findings and judgment, the evidence is sufficient to sustain the trial court's finding that Moses did not live in the house. Moses concedes in his appellate brief that there was a " clear dispute in the evidence" on this point. Moses's mother testified that he did not live there, and the trial court expressly credited that testimony despite the mother's equivocation on the point and contradictory evidence presented by Moses.

Nevertheless, " a place need not be respondent's 'home,' temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy." Arnold v. State, 237 Ga.App. 857, 859 (1) (517 S.E.2d 97) (1999) (citation omitted). See generally Minnesota v. Olson, 495 U.S. 91, 95-100 (II) (110 S.Ct. 1684, 109 L.Ed.2d 85) (1990) (discussing [328 Ga.App. ...


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