296 Ga. 636
FINAL COPY


                      S14A1278. ROSS v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Lynitra Ross was found guilty of malice murder

based on her role in a murder-for-hire plot that resulted in the shooting death of

Richard Schoeck.1 On appeal, Ross contends that the trial court erred by failing

to suppress certain cell phone records evidence at trial and that her trial counsel

was ineffective. For the reasons that follow, we affirm.

      1. Viewed in the light most favorable to the jury’s verdict, the record

reveals the following facts. Ross worked as a medical assistant and billing coder

at Georgia Spine and Neurosurgery Center, and her friend, Stacey Schoeck,

worked there as the office administrator. In January 2010, Ross and Schoeck

had lunch together, and Schoeck told Ross that she wanted to have her husband,

      1
       On June 10, 2010, Ross was indicted for malice murder. Following a
May 9-22, 2012 jury trial, Ross was found guilty of murder. On August 10,
2012, the trial court sentenced Ross to life imprisonment. Ross filed a motion
for new trial on August 20, 2012, which she amended with new counsel on April
26, 2013. The trial court denied the motion on July 15, 2013. Following the
payment of costs, Ross’ timely appeal was docketed in this Court for the
September 2014 term and orally argued.
Richard Schoeck, killed because she thought that he was molesting her sons.2

Ross informed Schoeck that her boyfriend, Reginald Coleman, could kill Mr.

Schoeck because Coleman did such work “on the side” for extra money. Ross

told Schoeck that she would talk to Coleman about killing Mr. Schoeck.

      Schoeck followed up with Ross via text message on the weekend after

their lunch conversation to see if Ross had spoken with Coleman. Ross indicated

that she had, and she set up a time for her and Schoeck to meet with Coleman

at his apartment the following week to discuss the details of their arrangement.

Schoeck and Ross met with Coleman at his apartment on January 18, 2010, and

they discussed their plans for the murder and the terms for payment. Ross

suggested that the killing should take place in a secluded area near Schoeck’s

grandparents’ home, and Schoeck said that Belton Bridge Park, which was such

a location, would be a good place. For the killing, Schoeck agreed to pay

Coleman $10,000 in cash, give him her grandparents’ 2009 Chevrolet Impala,

and give him a house that his girlfriend, Ross, had currently been renting from

Schoeck. The parties agreed that the murder would take place on Valentine’s Day


      2
       Schoeck later admitted to police that her husband had not, in fact, been
molesting the children.
                                       2
and that Coleman would kill the victim in a manner that would make it appear to

have been a robbery after Schoeck lured the victim to Belton Bridge Park. Because

Coleman needed a gun to commit the murder, Schoeck took out $600 from a nearby

ATM to pay Coleman’s expenses for purchasing a gun.

      After scoping out the proposed murder location with Ross and Coleman,

Schoeck gave Coleman the Impala as partial payment,3 and she transferred

$8,900 to Ross’ bank account to cover part of the $10,000 for the murder.

Schoeck transferred the remaining $1,100 balance to Ross’ bank account the

Friday before Valentine’s Day, as Ross had previously informed Schoeck that

the murder would not take place until the entire $10,000 had been paid.

      On February 14, 2010, Schoeck spoke with Ross at work about

transferring the $10,000 to Coleman. Schoeck left the office and drove to her

grandparents’ home, where she had told her husband to meet her by driving

there separately. Mr. Schoeck arrived at the grandparents’ home, and, after

dinner, he was to drive to Belton Bridge Park separately from Schoeck. Schoeck

would allegedly meet him at the park later that evening to exchange Valentine’s


      3
        Schoeck gave a bill of sale to Ross in order to make it appear as though
the car had been sold to Ross.
                                        3
gifts. While Schoeck was at her grandparents’ house, Ross called Schoeck,

telling her that Coleman needed to know the color of Mr. Schoeck’s truck,

which Schoeck told her. Schoeck later received a text message from Ross

wishing her a “Happy Valentine’s Day,” after the murder had been completed.

      Schoeck confirmed the likelihood that Mr. Schoeck was dead when she

called his cell phone and he did not answer. Schoeck then drove to Belton

Bridge Park, where she found Mr. Schoeck’s truck and his dead body on the

ground. Mr. Schoeck had been shot six times at close range: three times in the

chest, twice in the head, and once in the hand. However, the scene had not been

made to look like a robbery, as Mr. Schoeck’s money, wallet, watch, and

wedding ring had not been taken from him. Schoeck called 911 and portrayed

herself as distraught to police.

      Police investigators were able to discover tire tread marks at the crime

scene, indicating that another car had been present at the time of the murder. The

police were eventually able to match the tire tread marks to the type of tires that

were on the 2009 Impala that Schoeck had given to Coleman. Information taken

from Schoeck’s cell phone with her consent showed that Ross and Coleman

were on her list of contacts, and that Schoeck had been in contact with Ross

                                         4
around the time that Mr. Schoeck was killed. Police then sought cell phone

records relating to all calls made within four hours of the murder that were

connected to two cell phone towers that were owned by Sprint4 and that were

located in close proximity to the scene of the shooting. Pursuant to 18 USC §

2703,5 police obtained this cell phone “tower dump” information by court order,

      4
       Although Ross’ cell phone provider was Verizon, cell phone calls made
in the area of Mr. Schoeck’s murder had to be relayed through one of these
Sprint cell phone towers.
      5
         As a part of 18 USC § 2701 et seq., 18 USC § 2703 allows governmental
entities to “require a provider of remote computing service to disclose the
contents of any wire or electronic communication” covered under the statute,
and to “require a provider of electronic communication service or remote
computing service to disclose a record or other information pertaining to a
subscriber to or customer of such service (not including the contents of
communications) only when the governmental entity obtains a court order for
such disclosure under subsection (d) of this section.” 18 USC § 2703 (b) and (c).
        A court order for disclosure under subsection (b) or (c) may be issued by
       any court that is a court of competent jurisdiction and shall issue only if
       the governmental entity offers specific and articulable facts showing that
       there are reasonable grounds to believe that the contents of a wire or
       electronic communication, or the records or other information sought, are
       relevant and material to an ongoing criminal investigation. In the case of
       a State governmental authority, such a court order shall not issue if
       prohibited by the law of such State. A court issuing an order pursuant to
       this section, on a motion made promptly by the service provider, may
       quash or modify such order, if the information or records requested are
       unusually voluminous in nature or compliance with such order otherwise
       would cause an undue burden on such provider.

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which showed a call around the time of the murder from Coleman, whose phone

was near one of those towers, to Ross. From this information, police obtained

cell phone records of Coleman and Ross by court order. Further investigation

eventually led to Schoeck’s arrest, and Schoeck testified in significant detail

about the entire murder-for-hire plot at Ross’ trial.

      This evidence was sufficient to enable a rational trier of fact to find Ross

guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307

(99 SCt 2781, 61 LE2d 560) (1979); see also OCGA § 16-2-20 (parties to a

crime).

      2. Ross contends that the trial court erred by admitting into evidence at

trial the Sprint cell phone “tower dump” records that police obtained by court

order pursuant to federal law, 18 USC § 2703 (d). However, while Ross did

move to suppress this evidence prior to trial based on the idea that the evidence

had been obtained in violation of applicable federal laws, her motion was

denied, and when the evidence was presented for admission during the trial, she

affirmatively stated that she had no objection to its admission. She has therefore




18 USC § 2703 (d).
                                        6
waived review of this issue on appeal.6 Monroe v. State, 272 Ga. 201 (6) (528

SE2d 504) (2000).

      In any event, even if the issue had been properly preserved, Ross would

not be entitled to relief. As an initial matter, as Ross properly concedes, she

lacks standing to challenge the admission into evidence of the cell phone “tower

dump” records at issue on Fourth Amendment grounds, because, as to Ross, the

“tower dump” records were only used to show telephone contact between Ross

and Coleman and were owned by Sprint. Ross did not own the “tower dump”

records, and the records were not used to show the location from which Ross

received Coleman’s call when they were in contact with each other around the

time of the murder. Thus, at least as to Ross, the “tower dump” cell phone



      6
        To the extent that Ross argues that the denial of her motion to suppress
should be subject to plain error review, she is mistaken, as, at least for cases like
hers that were tried before January 1, 2013, plain error review is “limited to
alleged error in three circumstances: the sentencing phase of a trial resulting in
the death penalty, a trial judge's expression of opinion in violation of OCGA §
17-8-57, and a jury charge affecting substantial rights of the parties as provided
under OCGA § 17-8-58 (b).” (Citation omitted.) Durham v. State, 292 Ga. 239,
240 (2) (734 SE2d 377) (2012). For cases tried after January 1, 2013, with
regard to “[r]ulings on evidence,” a court is allowed “to consider plain errors
‘affecting substantial rights although such errors were not brought to the
attention of the court.’ OCGA § 24-1-103 (d).” (Citation omitted.) Id.
                                         7
records at issue here are no different than telephone billing records, which

      are business records owned by the telephone company, not the
      defendant. As a result, defendants [like Ross] generally lack
      standing to challenge the release of such records under the Fourth
      Amendment because they do not have a reasonable expectation of
      privacy in records belonging to someone else. Kesler v. State, 249
      Ga. 462, 469 (5) (291 SE2d 497) (1982). Accordingly, [Ross] is not
      entitled to challenge the release of [the tower dump] phone records
      in this case on Fourth Amendment grounds.

Registe v. State, 292 Ga. 154, 156 (734 SE2d 19) (2012).

      In this regard, Ross also would not have standing to challenge the

admission of the “tower dump” records themselves (as opposed to the contents

of her phone calls) under State law, as a defendant who lacks standing to

challenge the admission into evidence of stored electronic records under the

Fourth Amendment similarly lacks standing to challenge the admission of such

records under OCGA § 16-11-67. See Hampton v. State, 295 Ga. 665 (2) (763

SE2d 467) (2014).

      Furthermore, the remedy sought by Ross, namely suppression of the

evidence, is not an available remedy under federal law, as 18 USC § 2707

provides that a civil action, not suppression, is the available remedy when a

party improperly releases covered records or information under 18 USC § 2701


                                       8
et seq. See also Hampton, supra, 295 Ga. at 669 (2); Registe, supra, 292 Ga. at

156-157 and n. 2 (“[T]he remedy sought by [the defendant], namely suppression

of evidence, is not an available remedy under . . . 18 USC § 2702 (c) (4) . . . [as]

18 USC § 2707 allows a subscriber to file a civil action against any party who

improperly releases covered records or information”).

      Thus, the trial court did not err in admitting into evidence the cell phone

“tower dump” records at issue here.

      3. In light of our holding in Division 2, supra, that the trial court did not

err in admitting into evidence the Sprint cell phone tower records, Ross’ claim

that her counsel was ineffective for allegedly having failed to effectively argue

against the admission of these records is without merit. See Hampton, supra, 295

Ga. at 670 (2); Hayes v. State, 262 Ga. 881, 884 (3) (c) (426 SE2d 886) (1993)

(“Failure to make a meritless objection cannot be evidence of ineffective

assistance”).

      Judgment affirmed. All the Justices concur.




                                         9
    Decided February 2, 2015 – Reconsideration denied March 2, 2015.

     Murder. Hall Superior Court. Before Judge Deal.

     Yurachek & Associates, Mark A. Yurachek, for appellant.

     Lee Darragh, District Attorney, Lindsay H. Burton, Wanda L. Vance,

Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.

     Alston & Bird, Emily R. Chambers, Gerald R. Weber, Jr., amici curiae.




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