On Junе 6, 1997, Frederick Keith Hope was fatally shot while driving a car near the Atlanta hotel where he was a registered guest. Appellant Courtney Smith was convicted of malice murder in connection with the death of Hope and appeals the judgment of conviction entered against him. * 1
The chief medical examiner for the Georgia Bureau of Investigation (GBI) testified the viсtim died from massive internal bleeding *18 caused by a gunshot that entered and exited his right arm and then entered his chest and damaged his aorta. The vehicle the victim was driving when he suffered the fatal wound side-swiped a parked vehicle occupied by a police officer for the Metropolitan Atlanta Rapid Transit Authority (MARTA), who identified appellant as one of two men whо exited the victim’s vehicle and ran toward a nearby hotel. The MARTA officer described appellant as wearing a blue hooded sweatshirt and blue jeans. While police were gathered in the parking lot of the hotel at which the victim was a registered guest and to which the two occupants of the victim’s vehicle had run, they noticed a room whose occupants repeatedly opened the curtain to peer out at the activity and closed the curtain when they noticed a police officer looking at them. When the occupants opened the room door in response to a police officer’s knock, the police officer observed in plain view a blue hooded sweatshirt and a washcloth with blood on it. The two male occupants of the room, neither of whom was the registered hotel guest assigned to that room, consented to the officer’s request for permission to take the sweatshirt and washcloth and agreed to accompany police to a police station for further questioning. After the occupants left with police, hotеl personnel de-activated the room’s key-card entry system to prevent anyone other than management from entering the room.
When the hotel’s general manager inspected the room the following day to ensure its safety before admitting housekeeping personnel and renting it to a new guest, he found a bloodstained sock behind the headboard of one оf the beds; a gun clip behind a mirror; and a handgun in the air-conditioning vent. GBI forensic biologists testified that the DNA profiles of both the victim and appellant were found on the sock, and a GBI fingerprint examiner testified that a fingerprint removed from the room’s air-conditioning vent cover was that of appellant. The GBI’s firearms examiner testified that the bullet removed from the victim during the аutopsy was fired from the Lorcin .380-caliber pistol found in the air-conditioning vent of the hotel room in which appellant was found. The man in the hotel room with appellant testified that appellant removed the vent cover and placed the pistol in the ductwork.
1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyоnd a reasonable doubt of malice murder.
Jackson v. Virginia,
*19
2. Appellant asserts his conviction should be reversed because his constitutional right to a speedy trial was denied. A speedy trial is guaranteed a criminal defendant by the Sixth Amendment to the United States Constitution and by Article I, Section I, Paragraph XI (a) of the Georgia Constitution. The constitutional right to speedy trial attaches аt the time of arrest or when formal charges are brought, whichever is earlier.
Boseman v. State,
Appellant was arrested on an outstanding warrant charging him with murder in January 1998, and charged in a true bill of indictment returned on June 8, 1999, with malice murder, felony murder, and aggravаted assault with a deadly weapon in connection with the homicide of the victim. Appellant’s trial took place in November 2004. The delay that constitutes presumptive prejudice depends upon the peculiar circumstances of each case
(Barker v. Wingo,
supra,
Part of the delay in trying appellant was attributable to the fact that he was mistakenly released from jail shortly after his arrest in 1998 and was not re-arrested until January 2002. It appears that defense counsel shares responsibility for the delay in trying this case, as trial counsel was given a continuance when she became counsel of record at some point between February and August 2003, the case appeared on trial calendars in May and August 2003 but was not tried, and trial counsel engaged in extensive discovery which resulted in informal continuances and filed several pre-trial motions that required hearings prior to the case being tried in March 2004 (trial ended in a mistrial due to a deadlocked jury). See
Nelloms v. State,
Appellant did not make a statutory demand for trial under OCGA § 17-7-171, and did not assert his constitutional right to a
*20
speedy trial until he filed his motion to dismiss the indictment the day before the commencement of his March 2004 trial. His failure to assert his right to a speedy trial is entitled to strong evidentiary weight against him.
Nelloms v. State,
supra,
The final factor is the prejudice suffered by the defendant resulting from the delay in bringing him to trial. We focus on the three interests the right to speedy trial was designed to protect: the prevention of oppressive pre-trial incarceration; the minimization of the defendant’s anxiety and concern; and, most impоrtantly, the limitation of the possibility the defense will be impaired.
Nelloms v. State,
supra,
After examining the Barker v. Wingo factors in conjunction with the facts of this case, we conclude the trial court did not abuse its discretion when it denied appellant’s motion to dismiss the indictment because appellant had not been afforded a constitutionally guaranteed speedy trial.
3. Appellant contends the trial court erred when it denied his motion to suppress the evidence found in the hotel room. The trial court denied the motion as to the gun, the blood-stained sock, and the gun clip after finding appellant did not have standing to invoke the protection against unreasonable search аnd seizure afforded by *21 the Fourth Amendment since he was not the room’s registered guest and had shown no connection to the room other than his presence. The trial court denied the motion to suppress the blue hooded sweatshirt and the bloody washcloth because those items were in plain view and, even if improperly taken, were admissible under the “inevitable discovery” rule. 2
“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. ...”
Minnesota v. Carter,
Like a householder, the registered guest of a hotel room has an expectation of privacy in that room.
Stoner v. California,
*22 4. Appellant maintains the trial court committed reversible error when it denied his motion to replace а juror who repeatedly appeared to be dozing. On the morning of the second day of trial, defense counsel reported to the trial court her observation of a juror sleeping the day before during the State’s opening statement. The trial court asked counsel to advise the court if it should happen again and, during a mid-afternoon break in the proceedings, defense counsel reported her observation of the juror sleeping. The prosecutor stated his observation that the juror’s eyes appeared closed because she was looking down while she wrote notes on a pad. The trial court stated it had seen the juror with eyes closed, but the juror’s eyes had opened while the court was watching. The trial court addressed the jury and asked them to refrain from sleeping during the trial and to awaken any of their neighboring jurors who dozed off. The following afternoon, after defense counsel advised the trial court that the same juror appeared to be sleeping, the trial court talked with the juror about the need to stay awake. The juror apologized, explaining the rоom was hot and she was on medication. The trial court suggested the juror change seats and stand when she became drowsy, and directed the courtroom deputy sheriff to nudge the juror’s shoulder should the deputy see her doze off. The trial court denied defense counsel’s motion to excuse the juror, to identify the medication the juror was taking, and to ask the juror to evaluаte her ability to concentrate on the evidence.
A trial court is statutorily vested with the discretion to discharge a juror and seat an alternate juror at any time during the proceedings, as long as the trial court has a sound legal basis to do so. OCGA § 15-12-172;
Brooks v. State,
5. The police officer whose parked patrol car was struck by the vehicle in which the victim was found testified that two men ran from that vehicle and came within several feet of the witness. The officer testified he got “a real good look” at the man in a hooded sweatshirt and blue jeans who exited from the passenger side of the victim’s vehicle. The witness acknowledged he had described himself at a 1998 probable cause hearing as 85% sure appellant was the man the witness saw running away, and testified at trial he was not 100% sure appellant was the man he saw running from the victim’s vehicle.
The trial court gave a jury instruction that included an eyewitness’s level of certainty as one of the elements the jury could consider in assessing the reliability of the eyewitness’s identification testimony. In
Brodes v. State,
6. Lastly, appellant contends the trial court erred when it denied appellant’s request for a mistrial after a witness for the proseсution, when asked on cross-examination if she recalled “testifying at a pretrial hearing about this matter back in March,” replied, “Oh, yes, I remember the trial, yes.” Appellant’s first trial on these charges had ended in March with the declaration of a mistrial after the jury had been unable to reach a unanimous verdict. Prior to the presentation of any evidence in the re-triаl in November, the prosecutor and defense counsel told the trial court that, to avoid making the jury aware that appellant had been tried on these charges previously and had not been acquitted, they had agreed to inform their witnesses to refer to testimony at the previous trial as testimony given at a previous hearing.
Whether to grant or deny a motion for mistrial is necessarily a matter largely within the discretion of the trial court
(Stanley v.
*24
State,
Judgment affirmed.
Notes
We do not find the Court of Appeals’ failure to follow the statutory mandate of OCGA § 9-11-12 (b) to be harmless error as Avion Systems urges.
The victim was shot in the early morning hours of June 6,1997. Appellant was arrested for the crime on January 23, 1998, and indicted on June 8, 1999. His first trial in March 2004 ended in a mistrial because the jury was deadlocked. The second trial commenced on November 1, 2004, and concluded with the jury’s return of its verdicts on November 5. *18 Appellant’s sentence of life imprisonment was filed on November 16, 2004. Appellant filed a motion for new trial on November 9 and amended it on June 16, 2006, and January 12, 2007. The amended motion was the subject of hearings held on June 26, 2006, and January 25, 2007, and the motion was denied on February 13, 2007. A timely notice of appeal was filed March 5, 2007, and the appeal was docketed in this Court on September 6, 2007. It was submitted for decision on the briefs.
Assuming arguendo that the hooded sweatshirt and washcloth are not subject to the "standing” ruling, the denial of the motion to suppress these items was not error in light of the testimony that the items were observed in plain view by an officer who was entitled to be where he was at the time of observation, and the items were removed from the room with the consent of appellant and his companion.
In his revised motion to suppress filed shortly before the commencement of appellant’s second trial, appellant sought to establish a reasonable expectation of privacy in the hotel room *22 by showing he intended to spend the night in the hotel room. He relied on the statement of the other occupant of the hotel room that they and the men who rented the hotel room planned to “get a room and pick up some girls. ” Appellant’s planned activity does not trump the fact that he did not demonstrate that he spent the night in the hotel room as a guest of the registered guest. See United, States v. Cody, 434 FSupp.2d 157, 164-167 (S.D. N.Y. 2006).