In the Supreme Court of Georgia



                                            Decided: September 22, 2014


                     S14A0901. BROWN v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Tyrone Vincent Brown was convicted by a jury of murder and

related offenses for the March 20, 2006 shooting deaths of Stanley Brown and

Norris Degree. Appellant appeals the denial of his amended motion for new

trial, contending that the trial court erroneously denied his motion to suppress.

Finding no error, we affirm.1

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         On March 28, 2007, a Clayton County grand jury indicted Appellant, along
with co-defendants Kevin Michael Brewington and Gary Hakeem Brown, each with
two counts of malice murder, four counts of felony murder, armed robbery, two
counts of aggravated assault, two counts of possession of a weapon during the
commission of a crime, discharge of a firearm near a highway, and discharge of a
firearm on the property of another. The grand jury also charged Appellant with
possession of a firearm by a convicted felon. Brewington and Gary Brown were
initially tried before a jury from November 16-24, 2009, and Appellant's trial was
severed from that of his co-defendants. The trial of Brewington and Gary Brown
resulted in mistrial due to a hung jury. Thereafter, during June 13-22, 2011,
Appellant and his co-defendants were tried before a jury. On June 22, 2011, the jury
returned a verdict of guilty on all counts as to Appellant, except that for possession
of a firearm by a convicted felon, which was nolle prossed. The court declared a
mistrial on all counts as to co-defendants Brewington and Gary Brown. On June 24,
2011, the court sentenced Appellant to life imprisonment for the malice murder of
      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. On March 20, 2006, victim Norris

Degree told his wife he was leaving their apartment to pick up victim Stanley

Brown from work. Later that evening, Degree's wife, who was waiting for him

at their apartment, heard gunshots in the distance. Moments later, Degree

abruptly entered his apartment and told his wife to call for an ambulance

because he and Stanley Brown had been shot. Through his wife, Degree relayed

to the 911 operator that he and Stanley Brown had been shot by three black men

wearing all black clothing and that he did not know the identities of the men.

A Clayton County police officer responded to the 911 call and found Stanley

Brown dead on the ground outside an apartment. The officer found Degree lying

in the doorway of an apartment surrounded by his wife and three children and


Stanley Brown; a consecutive life term for the malice murder of Norris Degree; a
concurrent 20-year term for armed robbery; two consecutive five-year terms, to be
served concurrently with each other, for the weapons possession counts; and a 12-
month term, suspended based on time served, for each count of discharge of a weapon
near a highway and discharge of a weapon on the property of another. The remaining
counts merged or were vacated as a matter of law. Appellant filed a motion for new
trial on June 28, 2011, which was amended on October 9, 2012. The trial court held
a hearing on Appellant’s motion for new trial on October 31, 2012, and denied the
motion in an order entered November 2, 2012. Appellant filed a notice of appeal on
November 19, 2012. The appeal was docketed to the April 2014 term of this Court
and submitted for a decision on the briefs.
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struggling to breathe. Degree died moments later.

      Shannon Dean, who lived in same apartment complex as Degree, testified

at trial that she knew Appellant, and on the evening of the shooting, all three

co-defendants came to her apartment looking for marijuana, with Appellant

carrying a gun. Shortly after the three men left her apartment, she heard six or

seven gunshots in succession. Dean testified that she went outside to a balcony

and saw all three co-defendants shooting the two victims, who were on their

knees and unarmed. Dean made direct eye contact with Appellant and then ran

into her apartment, where she stayed until police arrived. Dean later identified

all three co-defendants in photographic lineups as well as at trial.

      On March 23, 2006, local and federal law enforcement officials converged

on apartment Z1 at the same apartment complex where the shootings had

occurred to serve a fugitive arrest warrant on Brewington. Officers found

Brewington, Appellant, and a female in apartment Z1 and placed Brewington

and Appellant in custody. Officers conducted a security sweep of apartment Z1,

and based on their observations, officers applied for both a federal and state

search warrant. Pursuant to these search warrants, officers discovered several

firearms and ammunition.

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      A forensic pathologist determined that Stanley Brown died of multiple

gunshot wounds, including wounds to his chest and heart, and Degree died of

a gunshot wound to his back, which pierced his lung. Bullet fragments

recovered from each of the victims were fired from a Taurus nine millimeter

pistol, and other bullet fragments recovered solely from victim Stanley Brown

were fired from a Smith and Wesson .38 caliber revolver and a Rossi .38 special

revolver. Among the firearms found in apartment Z1 on March 23 were a

Taurus nine millimeter pistol, a Smith and Wesson .38 caliber revolver, and a

Rossi .38 special revolver.

      1. Though Appellant has not enumerated the general grounds, we find

that the evidence as summarized above was sufficient to enable a rational trier

of fact to conclude beyond a reasonable doubt that Appellant was guilty of the

crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979); see also Vega v. State, 285 Ga. 32, 33 (1) (673

SE2d 223) (2009) (“‘It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the evidence.’”)

(citation omitted).

      2. Prior to trial, the court denied Appellant’s motions to suppress all

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evidence allegedly illegally obtained by law enforcement agents during the

search of apartment Z1 on March 23. On appeal, Appellant argues the court

erroneously denied his motions to suppress because the State failed to prove that

the arrest warrant for Brewington existed and failed to show that the protective

sweep of apartment Z1, which led to the search warrants, was legally

permissible. As a result, Appellant contends that all of the evidence obtained

through the execution of the search warrants should have been excluded.

      “On appellate review of a ruling on a motion to suppress, ‘the trial court's

findings on disputed facts will be upheld unless clearly erroneous, and its

application of the law to undisputed facts is subject to de novo review.’”

Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012). Upon review, we

consider both the transcript of the hearing on Appellant’s motions to suppress

as well as the trial transcript. See White v. State, 263 Ga. 94 (5) (428 SE2d 789)

(1993).

      The Fourth Amendment prohibits unreasonable searches and seizures.

U.S. Const. Amend. IV; see Ga. Const. of 1983, Art. I, Sec. I, Par. XIII.

      “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,

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      and that his expectation is reasonable . . . .” A person has a
      legitimate expectation of privacy in his or her home and may have
      a legitimate expectation of privacy in a house in which the person
      is an overnight guest; however, “one who is merely present with the
      consent of the householder may not [claim the protection of the
      Fourth Amendment].”

Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008) (citations omitted)

(brackets in original) (quoting Minnesota v. Carter, 525 U. S. 83, 88, 89-90 (119

SCt 469, 142 LE2d 373) (1998)). “A person who is aggrieved by an illegal

search and seizure only through the introduction of damaging evidence secured

by a search of a third person's premises or property has not had any of his Fourth

Amendment rights infringed.” Rakas v. Illinois, 439 U. S. 128, 134 (II) (A) (99

SCt 421, 58 LE2d 387 (1978)). “‘The burden is on the defendant to show that

he has standing to contest the alleged violation, i.e., that he has a legitimate

expectation of privacy in the premises searched.’” State v. Carter, 299 Ga. App.

3, 4 (681 SE2d 688) (2009).

      The evidence shows that apartment Z1 was leased to a third party, and

there was no evidence of how long Appellant had been in the apartment or

whether he was an overnight guest.2 There was also no evidence of any of

      2
       The affidavit prepared by one of the officers in support of his application for
a search warrant states that the female found in apartment Z1 told the officer that
                                          6
Appellant’s personal belongings in the apartment. The only possible exception

is that one officer testified that he found “paperwork” in the apartment with

Appellant’s name on it, but the officer did not elaborate further. There was no

evidence presented to show what this paperwork consisted of and why it was at

the apartment. The mere presence of miscellaneous papers bearing Appellant’s

name, without any further evidence connecting Appellant to the apartment, is

insufficient to create a legitimate expectation of privacy for Appellant to contest

the search. Cf. Moses v. State, ___ Ga. App. ___, 760 SE2d 217 (2) (a) (2014)

(the defendant had an expectation of privacy in the house which he owned,

where he received mail, and where he kept personal property including

identification and personal papers). We find that Appellant has not met his

burden to demonstrate that he had any legitimate expectation of privacy in

apartment Z1, and therefore, he may not claim the protections of the Fourth

Amendment to challenge the search. See State v. Carter, 305 Ga. App. 814 (1)

(701 SE2d 209) (2010) (no legitimate expectation of privacy to contest a search

where there was no evidence of how long the defendants had been at the house,


Appellant lived in the apartment. This is inadmissible hearsay. See former OCGA
§ 24-3-1, now codified at OCGA § 24-8-801 under the new Georgia Evidence Code.
                                        7
that the renter had authorized defendants to be there, or that they were overnight

guests); Todd v. State, 275 Ga. App. 459 (1) (620 SE2d 666) (2005) (no

legitimate expectation of privacy where the defendant conceded that the mobile

home was owned by a friend and he failed to come forward with any evidence

to suggest that he had a legitimate expectation of privacy in the mobile home).

Accordingly, the trial court did not err in denying Appellant’s motions to

suppress.

      Judgment affirmed. All the Justices concur.




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