Moses v. the State

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

July 15, 2014

In the Court of Appeals of Georgia
A14A0140. MOSES v. THE STATE.

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 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

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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 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 SE2d 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 SE2d 902) (2009) (citation

omitted).

(a) Standing to challenge search.

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 Moses argues that the trial court erred in finding that he lacked standing to

challenge the search. “In order to claim the protections 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 SE2d 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

SE2d 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.”

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.

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 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 SE2d 97) (1999) (citation omitted). See generally Minnesota

v. Olson, 495 U. S. 91, 95-100 (II) (110 SCt 1684, 109 LE2d 85) (1990) (discussing

considerations for determining whether person has legitimate expectation of privacy

in place where he does not live).

Notwithstanding the evidence that Moses did not live in the house, there was

undisputed evidence that he had a legitimate expectation of privacy there. First and

foremost, Moses owned the house, possessing joint tenancy with his mother. Georgia

cases acknowledge that a party’s ownership interest in property is relevant to the

party’s standing to contest a search of that property. See, e.g., Thomas v. State, 274

Ga. 156, 159 (3) (549 SE2d 359) (2001) (noting that defendant had no expectation

of privacy where he had “no ownership or possessory interest in the premises”);

Carreno v. State, 272 Ga. App. 229, 231 (1) (c) (612 SE2d 62) (2005) (finding

defendant had no standing to contest search of apartment in which he had “no

ownership or possessory interest”); Floyd v. State, 237 Ga. App. 586, 587 (516 SE2d

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96) (1999) (“A defendant does not have a reasonable expectation of privacy in the

premises of another where the defendant is a transient visitor who has no ownership

or possessory interest.”).

The trial court discounted Moses’s ownership of the house on the ground that

a property owner can lack a reasonable expectation of privacy in property when it is

leased to a tenant. As noted in 6 LaFave, Search & Seizure § 11.3 (a) (5th ed. 2012),

“the mere fact of ownership standing alone will not necessarily suffice. In particular,

if the owner of certain premises has leased them to another without reserving any

right of possession to himself, then it cannot be said that a police intrusion into those

premises encroaches upon his expectation of privacy.” Id. at 170 (citations omitted).

But no evidence showed that Moses leased the property to a tenant. The persons

residing at the house were his mother (who co-owned the property) and his minor

daughter. And undisputed evidence showed that, in addition to his ownership, Moses

retained other rights in the house – he received mail there and kept his personal

property in the master bedroom, including his clothing, jewelry, identification, and

personal papers. At the time of his arrest, Moses was at the house, and his vehicle was

parked in the garage. In fact, at trial the state emphasized Moses’s connection with

the house, although it maintained that he lived elsewhere.

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 This undisputed evidence showed that Moses was neither a transient visitor at

the house nor a landlord who had relinquished his rights of possession to a tenant. He

owned the house, had access to it, kept personal items there, and spent time there.

Moses had an expectation of privacy that was “rooted in understandings that are

recognized and permitted by society [and was an expectation] society is prepared to

recognize as reasonable.” State v. Brown, 212 Ga. App. 800, 803 (442 SE2d 818)

(1994) (citations and punctuation omitted).

Although the trial court found that people “came and went from the room in

question” – presumably the master bedroom and its adjoining bathroom – the record

does not demonstrate any people having access to those rooms other than Moses, his

mother, the mother of his minor child, and “cleaning people.” It is undisputed that

both Moses’s mother and the child lived in the house, and that the mother co-owned

the house with Moses. The state has pointed to no authority that a property owner

who otherwise had a reasonable expectation of privacy in the house relinquished that

expectation by allowing persons such as household residents, family members of

residents, or housecleaners access to the house. See Arnold, 237 Ga. App. at 859 (1)

(language in tenant’s lease agreement giving landlord “right of entry” into apartment

for specific, normally scheduled purposes such as maid service or repairs did not

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demonstrate that tenant had waived any expectation of privacy as to all entries into

the premises).

For these reasons, we find that the evidence viewed in the light most favorable

to the trial court’s findings and judgment nevertheless showed that Moses had

standing to challenge the search of the house. Accordingly, the trial court erred in

holding that he did not have standing.

(b) Merits of the motion to suppress.

Moses moved to suppress the evidence found in the search of the house on the

ground that there was not probable cause for the warrant authorizing the search. See

OCGA § 17-5-21 (a). Our Supreme Court, in State v. Palmer, 285 Ga. 75 (673 SE2d

237) (2009), described the standards applicable to the various levels of judicial

scrutiny involved in the warrant process as follows:

The magistrate’s task in determining if probable cause exists to
issue a search warrant is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit
before him, including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.

The trial court may then examine the issue as a first level of
review, guided by the Fourth Amendment’s strong preference for

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 searches conducted pursuant to a warrant, and the principle that
substantial deference must be accorded a magistrate’s decision to issue
a search warrant based on a finding of probable cause. A deferential
standard of review is appropriate to further the Fourth Amendment’s
strong preference for searches conducted pursuant to a warrant.
Although in a particular case it may not be easy to determine when an
affidavit demonstrates the existence of probable cause, the resolution of
doubtful or marginal cases in this area should be largely determined by
the preference to be accorded to warrants.

Our appellate courts will review the search warrant to determine
the existence of probable cause using the totality of circumstances
analysis. . . . The duty of the appellate courts is to determine if the
magistrate had a substantial basis for concluding that probable cause
existed to issue the search warrant. . . . In reviewing the grant or denial
of a motion to suppress, we apply the well-established principles that the
trial court’s findings as to disputed facts will be upheld unless clearly
erroneous and the trial court’s application of the law to undisputed facts
is subject to de novo review, keeping in mind that a magistrate’s
decision to issue a search warrant based on a finding of probable cause
is entitled to substantial deference by a reviewing court.

Id. at 77-78 (citations and punctuation omitted).

With these standards in mind, we turn to the search warrant that Moses

challenges on appeal. That warrant authorized the search of the house for items that

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included weapons, ammunition, gun cases and shell casings, and it was supported by

an affidavit pertinently stating:

On September 20, 2007, [a named victim other than Dantavious Walker]
was shot multiple times at [a specified location in] Atlanta, Fulton
County, Georgia. During course of the hom[i]cide investigation,
suspect[ ] Marco Moses was identified as one of several suspects in
listed incident. Suspect[ ] Marco Moses was apprehended at listed
location [for which the warrant was sought], and in plainview [sic],
several gun cases were observed by arresting officers.

Moses argues that this information was too conclusory to demonstrate probable

cause that evidence of a crime would be found at the house. We disagree. The

magistrate could conclude from the affidavit that a homicide involving a firearm had

occurred, that Moses was connected to that crime, that Moses had been found in the

house for which the search warrant was sought, and that there might be guns at that

house as evidenced by the gun cases seen in the house. Moreover, earlier that day the

magistrate had received another affidavit in connection with another warrant that

provided more information connecting Moses to the homicide; that affidavit stated

that there was an outstanding arrest warrant against Moses for murder, that members

of a regional law enforcement task force had obtained information from a confidential

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informant with a history of reliability that Moses was at his mother’s residence, and

that a vehicle matching the description of Moses’s vehicle was parked at the

residence. The affidavit given in connection with the earlier warrant contained details,

including information about the source and reliability of the information linking

Moses to the homicide, that offset the alleged omissions in the affidavit given in

connection with the warrant that Moses challenges on appeal. See Palmer, 285 Ga.

at 79 (where information presented in affidavit is incomplete, magistrate may still

have sufficient information to find that probable cause exists for issuance of warrant

if omissions are offset by independent corroboration of criminal activity). Given that

“[e]ven doubtful cases should be resolved in favor of upholding a magistrate’s

determination that a warrant is proper,” id. (citation and punctuation omitted), the

trial court did not err in denying Moses’s motion to suppress on the merits.

(c) Post-conviction suppression arguments.

In his motion for new trial and at the hearing on that motion, Moses argued two

additional grounds for the suppression of evidence obtained in the search of the

house: that the warrant affidavit misrepresented the crime for which the evidence was

being sought, and that the gun cases referred to in the warrant affidavit were

discovered during an earlier, unlawful search at the time of Moses’s arrest. Because

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Moses did not raise these specific grounds until the post-conviction stage of the

proceedings, he has waived appellate review of these arguments. See Bryant v. State,

288 Ga. 876, 894 (13) (b) (708 SE2d 362) (2011) (defendant waived appellate review

of arguments for suppression of evidence that were not raised in motion to suppress);

Hodges v. State, 319 Ga. App. 657, 658 (2) (a) (738 SE2d 111) (2013) (objection to

evidence on specific ground at trial waived any objection to evidence on other

grounds on appeal); Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987)

(“Grounds which may be considered on motion for new trial or on appeal are limited

to those which were raised at trial.”) (citations omitted).

3. Improper impeachment.

Over objection, the trial court allowed the state to question a detective about

the statement that the victim, Walker, made to the officer shortly after the shooting,

and to admit into evidence and publish to the jury a recording of that statement.

Moses argues that this was error because the state did not establish the foundation

required by former OCGA § 24-9-83 for the introduction of a witness’s prior

contradictory statement to impeach the witness.1 That Code section, which was in

1
Georgia’s new Evidence Code addresses the introduction of a witness’s prior
inconsistent statement at OCGA § 24-6-613 (b).

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effect at the time of Moses’s trial, sets forth the procedure for impeaching a witness

with a prior contradictory statement:

A witness may be impeached by contradictory statements previously
made by him as to matters relevant to his testimony and to the case.
Before contradictory statements may be proved against him, . . . the
time, place, person, and circumstances attending the former statements
shall be called to his mind with as much certainty as possible. If the
contradictory statements are in writing and in existence, they shall be
shown to him or read in his hearing.

“The purpose of laying such a foundation is to give the witness the opportunity to

explain or deny the prior contradictory statement.” Meschino v. State, 259 Ga. 611,

614 (2) (b) (385 SE2d 281) (1989) (citation omitted).

The record shows that the state established the required foundation under

former OCGA § 24-9-83. At trial, Walker denied seeing Moses at the scene of the

shooting. In response to the prosecutor’s questions, however, Walker testified that he

recalled making a statement to a certain detective while at the hospital awaiting

treatment shortly after the shooting. Through this testimony, Walker demonstrated

that the state sufficiently called to his mind the time, place, person, and circumstances

of the statement such that he could explain or deny the statement. See Meschino, 259

Ga. at 615 (c) (finding requirements of former OCGA § 24-9-83 were met where

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witness “acknowledged making some kind of statement”). Compare Daniely v. State,

309 Ga. App. 123, 125-126 (2) (709 SE2d 274) (2011) (finding requirements of

former OCGA § 24-9-83 were not met where “prior statement was not mentioned

during [witness’s] testimony and she was not asked any questions concerning the

time, place, person, or circumstances attending it”). And in fact, Walker did explain

the statement. Although he initially testified that he did not recall telling the detective

that Moses was the van driver, later he admitted that he did identify Moses to the

detective in his statement, but he explained that the identification was based on

information he had heard from others and not what he himself had seen. His

admission that he made the inconsistent statement to the detective did not render the

statement inadmissible. Our Supreme Court has “rejected the assertion that a prior

inconsistent statement is admissible only if the witness denies making the prior

statement, but not if he simply disputes the truth of the earlier statement. There is no

such denial requirement under [former] OCGA § 24-9-83.” Johnson v. State, 289 Ga.

106, 108 (3) (709 SE2d 768) (2011) (citation and punctuation omitted).

Although Moses argues that the recording of his interview also “contained

numerous facts that were not the subject of his direct examination, or the

impeachment,” he does not identify any specific instances of such facts, and it is not

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apparent from this court’s review of the recording that any reversible error occurred

through its admission and publication.

4. Unobjected-to trial errors.

In several enumerations of error, Moses argues that the trial court committed

various errors at trial: permitting the state to make improper comments and

allegations during opening statement and closing argument; permitting the state to ask

state’s witnesses improper questions eliciting prejudicial testimony; and permitting

the state to introduce bolstering hearsay evidence. Moses did not object to any of

these alleged errors, however, and at the time of his 2011 trial plain error review did

not apply to these claims. See generally Durham v. State, 292 Ga. 239, 240 (4) (734

SE2d 377) (2012) (discussing limited circumstances in which plain error review

applied in appeals of criminal cases that were tried before OCGA § 24-1-103 (d) of

the new Evidence Code went into effect on January 1, 2013). Consequently, Moses

has waived appellate review of these claims of error. Durham, supra.

5. Ineffective assistance of counsel.

Moses argues that his trial counsel rendered ineffective assistance during both

the pre-trial proceedings on his motion to suppress and at trial. He has not met his

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burden of showing that any of the alleged errors of trial counsel amount to ineffective

assistance.

To prevail on his ineffective assistance claim, Moses must show both deficient

performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U.S.

668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782,

783 (1) (325 SE2d 362) (1985). If he “fails to meet his burden of proving either

prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App.

108, 114 (7) (686 SE2d 863) (2009) (citation omitted). On appeal, we “accept the trial

court’s factual findings and credibility determinations unless they are clearly

erroneous, but . . . independently apply the legal principles to the facts.” Johnson v.

State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012) (citation omitted).

(a) Counsel’s effectiveness in moving to suppress evidence.

Moses argues that he received ineffective assistance of counsel with regard to

his motion to suppress the evidence obtained in the search of the house in which he

was arrested. He contends that the attorney who represented him at the motion to

suppress stage of the proceedings should have raised two additional arguments in

support of the motion, and that the attorney who represented him at trial should have

sought to reopen the motion to suppress to raise the additional arguments. He also

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argues that his trial counsel failed to present additional evidence relevant to the

standing issue. Because we have found that the evidence that was presented

established Moses’s standing to contest the search, see Div. 2 (a), supra, we need not

address this argument.

(i) The Franks v. Delaware argument.

Moses contends that trial counsel should have argued that the first search

warrant (which authorized the search of the house for Moses himself) was invalid

under Franks v. Delaware, 438 U. S. 154 (98 SCt 2674, 57 LE2d 667) (1978),

because its supporting affidavit contained an inaccuracy. The Franks decision

provides a means for a defendant to challenge the veracity of a warrant affidavit, and

to set aside false material therein, upon a showing that the false statement was made

knowingly and intentionally, or with reckless disregard for the truth. Id. at 155-156.

See generally Watts v. State, 274 Ga. 373, 374-375 (1) (552 SE2d 823) (2001)

(discussing application of Franks in Georgia). Moses asserts that the affidavit falsely

stated that he “had a valid warrant for murder out of the City of Atlanta, Warrant

Number MC092707B.” But Moses has not pointed to evidence substantiating any

basis for arguing that the police officer who submitted the affidavit that contained this

allegedly false statement deliberately or recklessly disregarded the truth. In fact, our

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review of the record has unearthed no testimony whatsoever from that officer on that

issue. Consequently, Moses has not met his burden of showing that his trial counsel’s

performance was deficient for failing to assert this argument in support of the motion

to suppress. See Coleman v. State, 271 Ga. 800, 803 (5) (a) (523 SE2d 852) (1999).

(ii) The fruit of the poisonous tree argument.

Moses contends that his trial counsel should have argued that the evidence

found pursuant to the warrant authorizing the search of the house for guns and other

items was the fruit of the poisonous tree, because that warrant rested on the police

having seen gun cases during an unlawful search of the house earlier in the day while

they were arresting Moses. Again, Moses has failed to point to evidence

substantiating his argument that the earlier search was unlawful. He argues in his

appellate brief that it was unnecessary for the arresting officers to enter the house

where they saw the gun cases because his arrest occurred outside the house. As the

state argues, however, some circumstances can justify police officers to make a

protective sweep of a residence after arresting a person there pursuant to a warrant.

See Inglett v. State, 239 Ga. App. 524, 525 (1) (521 SE2d 241) (1999). The record

contains no evidence as to whether such circumstances existed in this case. The

arresting officers did not testify on the issue. Consequently, Moses has not met his

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burden of showing that his trial counsel’s performance was deficient for failing to

assert this argument in support of the motion to suppress. See Coleman, 271 Ga. at

803 (5) (a).

(b) Counsel’s effectiveness at trial.

Moses argues that his trial counsel was ineffective at trial by failing to object

to “threat” evidence, to “veiled allegations that the [defense] lawyers were engaged

in a cover-up” during the state’s opening statement, and to a number of allegedly

improper actions taken by the state during its closing arguments. Moses devotes very

little space to these ineffectiveness arguments in his appellate brief, and in each case

he has failed to meet his burden of showing that he received ineffective assistance of

counsel.

(i) “Threat” evidence.

Moses argues that his trial counsel should have objected to questions that the

state posed to some of its witnesses during direct examination that concerned whether

the witnesses had felt threatened about cooperating with law enforcement or

testifying. He also argues that his trial counsel should have objected to a police

detective’s testimony that law enforcement “had received information that there were

multiple individuals that could be in danger due to some things that were going on

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that were connected to this investigation.” The state elicited this evidence to explain

“the witness[es’] evasive and extremely reluctant conduct on the witness stand.”

Coleman v. State, 278 Ga. 486, 488 (3) (604 SE2d 151) (2004). As such, it was within

the trial court’s discretion to allow the alleged “threat” evidence, id., and trial counsel

did not perform deficiently in failing to object to it. See Hall v. State, 292 Ga. 701,

704 (4) (d) (743 SE2d 6) (2013). Assuming without deciding that trial counsel should

have made a hearsay objection to the detective’s testimony, the testimony that

“multiple individuals could be in danger” in connection with the investigation was

extremely vague. Moses has not shown a reasonable likelihood that the outcome of

the trial would have been different but for counsel’s failure to object to the testimony.

See Strickland, 466 U. S. at 694 (III) (B).

(ii) Cover-up allegations.

Moses argues that his trial counsel should have objected when, during the

state’s opening statement, a prosecutor stated that Moses and his co-defendant “did

their best to cover up [their crime] in more than one way. One way was very

sophisticated. And they hired lawyers, which they’re entitled to do under our

Constitution[.]” While we agree with Moses that these disparaging comments against

counsel were not appropriate, see generally Geoffrion v. State, 224 Ga. App. 775, 780

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(8) (c) (482 SE2d 450) (1997), overruled in part on other grounds by Mullins v. State,

270 Ga. 450, 451 (2) (511 SE2d 165) (1999), we are not persuaded with his argument

that the prosecutor’s opening statement so impugned his counsel’s role in the judicial

process that his counsel’s failure to object to it constituted ineffective assistance of

counsel. The authorities Moses cites in support of this claim do not hold otherwise.

See Scott v. State, 305 Ga. App. 710 (700 SE2d 694) (2010); Miller v. State, 228 Ga.

App. 754 (492 SE2d 734) (1997); Geoffrion, supra.

(iii) Closing argument.

After pointing to at least seven points in the state’s closing argument that he

contends were improper, Moses makes the cursory argument that “[d]efense counsel

failed to object to any of these improper arguments, thus providing ineffective

assistance of counsel in violation of the Sixth Amendment.” He offers no specific

argument for why his trial counsel was deficient for failing to object at these various

points in the closing argument, and he does not address the prejudice prong at all in

his appellate brief. Consequently, Moses has not met his burden of showing that he

received ineffective assistance of counsel in connection with his trial counsel’s

decision not to object during the state’s closing argument. See Crumity v. State, 321

Ga. App. 768, 772 (2) (743 SE2d 455) (2013) (trial court did not err in finding that

21
defendant failed to carry burden of proving he received ineffective assistance of

counsel where defendant made no effort beyond cursory speculation to show how he

was prejudiced).

Judgment affirmed. Andrews, P. J., and Ray, J., concur.

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