Moses v. the State
328 Ga. App. 625
Ga. Ct. App.2014Background
- Shortly after midnight on Sept. 26, 2007, Dantavious Walker was shot; he later identified Marco Moses as the driver of the van from which shots were fired.
- Police obtained an arrest warrant for Moses and arrested him at a house co-owned by Moses and his mother; officers later obtained a search warrant for that house.
- During the search officers found a gun in a bathroom adjacent to the master bedroom; ballistics linked the gun to shell casings from the shooting.
- Moses’s personal effects (clothing, ID, mail, paperwork) were found in the master bedroom; police also observed gun cases in plain view.
- Moses moved to suppress evidence from the house, arguing the search-warrant affidavit lacked probable cause; the trial court ruled Moses lacked standing and, alternatively, denied suppression on the merits.
- On appeal the Court of Appeals held the trial court erred in finding Moses lacked standing but affirmed denial of suppression on the merits; the court also rejected other claimed trial errors (many waived) and Moses’s ineffective-assistance claims.
Issues
| Issue | Moses' Argument | State's Argument | Held |
|---|---|---|---|
| Standing to challenge the search | Moses contended he had a reasonable expectation of privacy in the house he co-owned and where his belongings and vehicle were present | State argued Moses did not live there and thus lacked standing | Court: Moses had standing (ownership, personal effects, presence at arrest) — trial court erred in finding no standing |
| Probable cause for the search warrant | Moses argued the search-warrant affidavit was conclusory and insufficient to show a fair probability of finding firearms/evidence at the house | State pointed to affidavit facts (connection to homicide, Moses found at house, gun cases observed) and corroborating earlier affidavit including CI and vehicle corroboration | Court: Magistrate had substantial basis for probable cause; denial of suppression on the merits affirmed |
| Admission of prior inconsistent statement (impeachment) | Moses argued state failed to lay the OCGA §24-9-83 foundation for admitting/publishing a recording of Walker’s hospital statement | State showed Walker recalled making the statement and was asked about time/place/person/circumstances; Walker later admitted identifying Moses (with explanation) | Court: Foundation satisfied; admission of the recording was proper |
| Ineffective assistance / unpreserved trial errors | Moses contended counsel should have raised additional suppression/F r a n k s and "fruit of poisonous tree" claims, objected to various trial statements/evidence, and reopened suppression hearing | State argued either there was no factual basis for Franks/poisonous-tree claims and many objections were not made at trial (waived) | Court: Moses failed to show deficient performance or prejudice; many claims waived for lack of timely objection; ineffective-assistance claims denied |
Key Cases Cited
- State v. Palmer, 285 Ga. 75 (describing magistrate’s role and deferential review of warrants)
- Franks v. Delaware, 438 U.S. 154 (1978) (procedure to challenge veracity of warrant affidavit)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Minnesota v. Olson, 495 U.S. 91 (1990) (factors for expectation of privacy in place where defendant does not reside)
- Arnold v. State, 237 Ga. App. 857 (discussing expectation of privacy where nonresident has legitimate privacy interest)
- Meschino v. State, 259 Ga. 611 (discussing required foundation for impeachment by prior inconsistent statement)
- Johnson v. State, 289 Ga. 106 (prior inconsistent statement admissible even if witness disputes truth rather than denies making it)