NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 15, 2025
S25A0650. MOSS v. THE STATE.
PINSON, Justice.
Demarko Marquez Moss was convicted of malice murder and
other crimes in connection with the shooting death of Keshia Smith.1
On appeal, Moss contends that the trial court committed plain error
1 Smith was killed on September 2, 2018. On November 30, 2018, a Ful-
ton County grand jury indicted Moss for malice murder (Count 1), felony mur- der predicated on aggravated assault (Count 2), felony murder predicated on possession of a firearm by a first offender probationer (Count 3), aggravated assault (Count 4), two counts of cruelty to children in the third degree (Counts 5 and 6), possession of a firearm during the commission of a felony (Count 7), and possession of a firearm by a first offender probationer (Count 8). Moss was tried by a jury from May 22 to 24, 2023. The jury found Moss not guilty of the two counts of cruelty to children, but guilty of all other counts. Moss was sen- tenced to life in prison without the possibility of parole for malice murder, 10 years in prison for possession of a firearm by a first offender probationer, and five years in prison for possession of a firearm during the commission of a fel- ony, all to be served consecutively. The remaining counts merged for sentenc- ing or were vacated by operation of law. Moss filed a timely motion for new trial, which he later amended through new counsel. The trial court held an evidentiary hearing on the motion for new trial, and denied the motion on No- vember 4, 2024. Moss filed a timely notice of appeal. The case was docketed to the April 2025 term of this Court and submitted for a decision on the briefs. by failing to instruct the jury that a confession cannot support a con-
viction unless it is corroborated; that the trial court erred by denying
Moss’s motion for a mistrial when the State improperly introduced
evidence that Moss did not speak to a detective who tried to inter-
view him; and that the trial court erred by admitting the testimony
of an expert witness on domestic violence. He also contends that trial
counsel provided constitutionally ineffective assistance by failing to
request a jury instruction about confession corroboration, failing to
contemporaneously move for a mistrial, failing to file a general de-
murrer to one count of the indictment, and failing to suppress evi-
dence obtained under a search warrant for Moss’s cell phone. Fi-
nally, Moss contends that he was prejudiced by the cumulative effect
of these errors by trial counsel and by the trial court.
Those claims fail. Moss did not give a confession, so there was
no need for a confession-corroboration jury instruction. Moss’s mo-
tion for a mistrial was not preserved for appellate review because he
did not make it contemporaneously. Any error in admitting the ex-
pert’s testimony about domestic violence was harmless given the
2 non-specific nature of the testimony and the strong evidence of
Moss’s guilt. And Moss cannot show that he received ineffective as-
sistance of counsel: Moss did not give a confession, so counsel was
not deficient for failing to request a confession-corroboration jury in-
struction. Counsel made a strategic decision not to call attention to
the testimony that alluded to Moss’s not speaking to the police, so
counsel did not perform deficiently by failing to contemporaneously
move for a mistrial. It was not clear under existing precedent that a
general demurrer would have succeeded, so counsel was not defi-
cient for failing to file one. And it was not clear that the search war-
rant for Moss’s phone did not satisfy the Fourth Amendment, so
counsel was not deficient for failing to file a motion to suppress. Fi-
nally, because Moss has not shown that at least two errors occurred
at his trial, he cannot show cumulative error. For these reasons,
Moss’s convictions are affirmed.
1. The evidence at trial showed the following. On the evening
of September 2, 2018, Moss was playing video games with two of his
brothers at the home of one of the brothers, Deondre Trammell. At
3 one point, Trammell went upstairs to use the bathroom and stayed
there for a while, “scrolling through [his] phone.” While he was in
the bathroom, Trammell heard gunshots outside. He looked out the
window, and saw Smith’s car slowly rolling into another vehicle, and
Moss driving away. Several minutes later, Trammell got a call from
Moss. Moss said: “Damn, bro, what did I just do?” Phone records
from Trammell’s cell phone showed that Moss’s phone called Tram-
mell’s phone four times between 10:08 p.m. and 10:10 p.m.
At 10:11 p.m., a neighbor called 911. Responding officers found
a black car that had rolled into a parked truck. Slumped in the
driver’s seat of the black car was Smith, who had been shot multiple
times at close range, and was pronounced dead at the scene. Two
small children, aged about three and one, were sleeping in the back
seat. The children were taken to a nearby fire department to wait
for the Department of Family and Children Services.
Shortly after the killing, Moss’s father came forward and told
police that Moss may have been the shooter. Police followed up on
that lead and interviewed Trammell and Moss’s parents. Moss
4 turned himself in the next day.
Investigators got a search warrant for Moss’s cell phone. The
phone records revealed that Moss’s phone had been texting with
Smith’s phone in the days before Smith was killed. Four days before
the shooting, Moss’s phone texted Smith’s phone: “Let me see a preg-
nancy test[.] I put money to see that I think u been playing me from
day one.” Smith’s phone responded: “Please leave me the f**k alone
I do not have time for the s**t u sit at home and think about all day.”
Moss’s phone texted back, “U lieing talking about u didn’t know
nothing,” and Smith’s phone responded, “I’m not finna keep dealing
with this. U was wrong the first time kuz u ‘thought’ u knew what u
was talking about and u wrong again[.] Goodbye.”
The conversation resumed four days later, on the morning of
the day Smith died. That morning, Moss’s phone texted Smith’s
phone, “How u been doing [ ... ] Can we see eachother sometime out
the day.” This time, Smith’s phone responded: “I need u to pay for
me to get an abortion.” Moss’s phone replied: “OK when want me to
get u the money.” The phones stayed in communication through the
5 day. In the evening, Moss’s phone texted, “U know how strong our
bond is,” and Smith’s phone replied, “Not that strong like that any-
more.” Moss’s phone texted, “I told u am make things work out,” and
Smith’s phone responded, “Yea I guess[.] Idk how u gone fix what u
did.” Moss’s phone then texted, “I apologize bae from my heart i do,”
and Smith’s phone replied, “Yea.” Finally, at 8:45 p.m., Smith’s
phone texted Moss, “I’m finna come by there to pick the money up.”
Moss’s phone replied, “Ok.” At 9:22 p.m., Smith’s phone texted,
“Here.” One minute later — 48 minutes before the 911 call — Moss’s
phone responded, “okay, here I come.”
The State introduced some evidence about domestic violence,
some of which related to Smith. Smith’s father testified that Smith
called him a few days before her death to say that she had broken
up with “some guy” and that she had “a problem” with him because
he would not stop calling her. Similarly, Smith’s aunt testified that
Smith had said that, in her relationship, “she wasn’t allowed to go
anywhere” and “he had hit her.” Neither the father nor the aunt
6 identified the person with whom Smith was in a relationship. Fi-
nally, the State called an expert on violence in intimate relation-
ships, Rosa James. James had not reviewed this case and knew
nothing about Moss or Smith specifically; rather, she testified gen-
erally about the dynamics of abusive relationships. James explained
that many people who are in an abusive relationship are subjected
to tactics and abuse — name-calling, isolation, threats, withholding
money, and physical and sexual abuse — that the abuser uses to
maintain power and control. James described the “cycle of abuse”:
while the tension is building, the victim is “walking on eggshells,”
waiting for something to happen; then the incident happens; then
there is a period of reconciliation and “blaming and minimizing”; and
finally, a “honeymoon phase” when everything is calm and the inci-
dent is forgotten. James used a demonstrative exhibit to help illus-
trate the “cycle of abuse.” James also testified that victims of domes-
tic violence return to their abusers an average of seven times before
they finally leave the relationship.
2. Moss contends that the trial court should have instructed
7 the jury that under Georgia law, a confession alone, with no corrob-
oration, “shall not justify a conviction.” See OCGA § 24-8-823. In
Moss’s view, the instruction was required because his remark to his
brother, “Damn, bro, what did I just do,” was a confession.
Because Moss did not request a confession-corroboration jury
instruction, our review is only for plain error. See OCGA § 24-1-
103(d) (“Nothing in this Code section shall preclude a court from
taking notice of plain errors affecting substantial rights although
such errors were not brought to the attention of the court.”); Floyd
v. State, 321 Ga. 717, 722 (2025). To establish plain error, an appel-
lant must show that the trial court committed an error that (1) was
not affirmatively waived, (2) was clear and obvious and not subject
to reasonable dispute, (3) affected the appellant’s substantial rights,
which usually means showing that it affected the outcome of trial,
and (4) “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Floyd, 321 Ga. at 722.
Moss’s claim fails on the second part of the plain-error test. The
trial court did not commit a clear and obvious error by failing to give
8 a confession-corroboration instruction, because Moss’s remark to his
brother was not clearly a confession. We have explained that a con-
fession, for the purposes of the corroboration requirement of OCGA
§ 24-8-823, is an admission of guilt in which “the entire criminal act
is confessed.” English v. State, 300 Ga. 471, 474 (2017) (citation
omitted). That makes a confession different from a mere incriminat-
ing admission, in which the accused admits to some incriminating
circumstances but still denies ultimate responsibility for the crime
by “putting forward exculpatory or legally justifying facts.” See
Walker v. State, 314 Ga. 390, 393 (2022) (citation omitted). Compare,
e.g., id. at 392–93 (defendant’s statement that he shot the victim but
did so in self-defense was not a confession requiring corroboration),
with Hood v. State, 311 Ga. 855, 858–59, 866 (2021) (defendant’s
statements to witnesses that he killed the victims, without adding
any facts to mitigate or justify the act, were confessions requiring
corroboration). An incriminating admission, unlike a confession,
does not require corroboration under OCGA § 24-8-823. See Walker,
314 Ga. at 393. And here, Moss’s remark — “Damn, bro, what did I
9 just do?” — was at most an incriminating admission. The remark
does not confess to an entire crime, or even part of a crime.2 Because
this remark was not clearly a confession, the trial court did not com-
mit a clear and obvious error by failing to give a confession-corrobo-
ration instruction, and this claim of plain error therefore fails.
3. Moss contends that the trial court should have granted his
motion for a mistrial, which he made after a State witness made a
comment that, in Moss’s view, improperly referred to his right to
remain silent. See Whitaker v. State, 283 Ga. 521, 524 (2008) (“[T]he
fact that a defendant has exercised the right to remain silent is not
to be used against the defendant at trial.”).
(a) Before trial, the State moved in limine to exclude any infor-
mation about Moss’s mental health. The record shows that Moss had
2 Moss points out that the State referred to his remark several times in
its closing argument and suggested that it was a confession. But a closing ar- gument is neither evidence nor legal instruction, and the State has wide lati- tude when presenting its closing to characterize the evidence and to draw in- ferences. See Arnold v. State, 309 Ga. 573, 577 (2020) (“A prosecutor is granted wide latitude in the conduct of closing argument …. Within that wide latitude, a prosecutor may comment upon and draw deductions from the evidence pre- sented to the jury.”) (cleaned up); Gates v. State, 298 Ga. 324, 328 (2016) (clos- ing arguments are not evidence). It is entirely appropriate for the State to make use of the defendant’s incriminating admissions in its closing argument. 10 behaved unusually when he turned himself in to police — he was
not speaking to anyone and was “shaking his body as if he had no
control” — and as a result he was given a psychiatric evaluation.
But that evaluation concluded that Moss was fabricating his symp-
toms, and Moss was later found to be competent to stand trial. On
the first day of trial, Moss agreed to the State’s motion to exclude
references to Moss’s mental health. Moss suggested, however, that
the State might open the door to the subject if it introduced evidence
about Moss’s “behavior” during his arrest. The trial court said that
the State was “now on notice for that,” and granted the motion in
limine to exclude information about Moss’s mental health.
At trial, the lead investigator, Detective Tasha Armand, testi-
fied that after she received the tip that Moss may have shot Smith,
she interviewed members of Moss’s family. Then she added: “And I
attempted to interview Demarko Moss.” The State asked, “And the
person that you attempted to interview, do you have their name?”
The detective repeated, “Demarko Moss.”
11 Moss did not immediately object to this statement from the de-
tective. But after the detective finished her direct testimony, counsel
asked for the jury to be excused, and then, once the jury was out of
the courtroom, he moved for a mistrial. He explained that he had
“thought about” objecting right when the detective said she “at-
tempted” to interview Moss, but that, on “further contemplation,” he
had decided not to “draw attention” to the detective’s remark. (At
the motion-for-new-trial hearing, counsel testified that he had no
strategic reason for not making a timely objection.) On the merits,
counsel at trial argued that a mistrial was necessary because the
jury did not know why Moss was not interviewed at the time of his
arrest — that is, that he was thought to be mentally unstable — and
that the jury might thus conclude, improperly, that Moss had in-
voked his right to counsel or to remain silent.
The trial court denied the motion for mistrial. The court noted
that defense counsel had not made a contemporaneous objection to
the detective’s testimony. And the court found that the detective’s
12 testimony, “while it went right up to the line,” did not actually com-
ment on Moss’s mental health or his invocation of any rights, and
did not “connect[ ] the dots” of why he was not interviewed. The court
concluded there was no “manifest necessity” for a mistrial.
(b) Moss’s claim that the trial court abused its discretion by
denying his motion for a mistrial is not preserved for appeal because
Moss did not move for a mistrial “at the earliest opportunity in the
trial court.” See Bates v. State, 317 Ga. 809, 818 (2023) (explaining
how a mistrial motion is preserved). To preserve his mistrial motion
for appellate review, Moss needed to make a “contemporaneous mo-
tion … at the time [he] became aware of the matter giving rise to the
motion.” Thomas v. State, 310 Ga. 579, 581 (2020). Here, that would
have been the moment when Detective Armand testified that she
“attempted” to interview Moss. But counsel waited for the detective
to finish her testimony before moving for a mistrial. Because the mo-
tion was not contemporaneous, the claim is not preserved for appel-
late review. See Bates, 317 Ga. at 818; Thomas, 310 Ga. at 581–82.
13 4. Next, Moss contends that the trial court should not have al-
lowed the State’s expert on domestic violence, Rosa James, to testify.
At trial, Moss objected that James’s testimony was not relevant be-
cause she had no knowledge of this specific case, but the trial court
overruled that objection. On appeal, Moss makes the same argument
about relevance, relying on OCGA § 24-4-401 (Rule 401) and OCGA
§ 24-7-702 (Rule 702).
Assuming without deciding that the trial court abused its dis-
cretion by allowing James to testify, the error was harmless. A non-
constitutional evidentiary error is harmless if it is “highly probable
that the error did not contribute to the verdict.” Smith v. State, 313
Ga. 584, 587 (2022). When we assess whether an error was harm-
less, “we review the record de novo and weigh the evidence as we
would expect reasonable jurors to have weighed it.” Johnson v. State,
316 Ga. 672, 684 (2023).
Applying that standard, it is highly probable that James’s tes-
timony did not contribute to the verdict. To begin with, the evidence
of Moss’s guilt was quite strong. Trammell testified that when he
14 heard gunshots and looked out the window, he saw Moss driving
away and Smith’s car rolling into a third vehicle. Smith’s body was
found in her car soon afterward. A few minutes after that, Moss
called Trammell and said, “Damn, bro, what did I just do?” And
other evidence cast Moss and Smith’s relationship in a negative
light. Members of Smith’s family testified that she had recently bro-
ken up with, or was trying to break up with, a man who was control-
ling, who “hit” her, and who would not leave her alone. Although the
family members did not identify the man, the text message conver-
sation between Moss’s phone and Smith’s phone supported an infer-
ence that the man was Moss. Among other things, those messages
showed that Moss accused Smith of faking a pregnancy, Smith ex-
plicitly told Moss to leave her alone, and then Smith asked for money
to pay for an abortion. And Smith was shot when she arrived to col-
lect that money from Moss. Combined with the testimony from
Smith’s family, the messages between Smith’s phone and Moss’s
phone showed that the relationship between the two was at least
tumultuous.
15 Compared to that strong evidence of guilt, James’s testimony
was highly unlikely to have contributed to the verdict. James dis-
cussed some general principles about domestic violence and abusive
relationships, but she did not testify about Moss specifically or refer
to any facts of this case. To the contrary, she testified that she had
not reviewed the police reports or any evidence in the case. And alt-
hough her testimony may have underscored the theme of domestic
violence for the jury, the jury had already heard evidence that Smith
may have been in an abusive relationship with Moss, so James’s tes-
timony was not the only evidence of that kind.
In short, James’s testimony was not especially prejudicial to
Moss, and given the strong evidence of his guilt, it was highly prob-
able that any error in admitting the expert’s testimony did not con-
tribute to the verdict. See, e.g., Mack v. State, __ Ga. __, S25A0773,
slip op. at 12–13 (Aug. 26, 2025) (testimony of expert witness was
harmless when it was partly cumulative of other evidence and the
overall evidence of guilt was strong). See also Johnson v. State, 316
Ga. 672, 684 (2023) (error in admitting graphic pre-autopsy photos
16 was harmless where evidence of guilt was strong and other properly
admitted photos were even more graphic). 3
5. Moss also contends that his trial counsel was constitution-
ally ineffective in a number of ways. To prevail on a claim on inef-
fective counsel, an appellant must show both that counsel’s perfor-
mance was professionally deficient and that he suffered prejudice as
a result. See Strickland v. Washington, 466 US 668, 687
(1984); Washington v. State, 313 Ga. 771, 773 (2022). To show defi-
ciency, the appellant must show that his lawyer performed “in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms.” Heyward v. State, 319
Ga. 588, 592 (2024). That means the defendant must “overcome the
strong presumption that counsel’s performance fell within a wide
range of reasonable professional conduct.” McIver v. State, 321 Ga.
3 Moss’s enumeration of error and section heading also contend that the
trial court should not have admitted James’s demonstrative exhibit illustrat- ing the cycle of abuse. But Moss makes no separate argument about the ex- hibit, so that contention is abandoned. See Ga. Sup. Ct. R. 22 (1) (“Any enu- merated error or subpart of an enumerated error not supported by argument, citations to authority, and citations to the record shall be deemed abandoned.”).
17 565, 569 (2025). To overcome that presumption, the defendant must
show that “no reasonable lawyer would have done what his lawyer
did, or would have failed to do what his lawyer did not.” Evans v.
State, 315 Ga. 607, 611 (2023) (quotation omitted). To show preju-
dice, the appellant must show that, but for counsel’s deficient per-
formance, there was a “reasonable probability” that the result of the
trial would have been different. Heyward, 319 Ga. at 592 (quotation
marks omitted).
(a) Moss first contends that his counsel was ineffective for not
requesting a jury instruction about confession corroboration. That
claim fails because Moss cannot show that his counsel performed
deficiently. As explained in Division 2, Moss’s remark to his brother
was not clearly a confession, so counsel could reasonably conclude
that there was no basis for a confession-corroboration instruction.
Moss has therefore not shown that any reasonable lawyer would
have requested the instruction that his lawyer did not request. See
Evans, 315 Ga. at 611. See also Whittaker v. State, 317 Ga. 127, 137
(2023) (counsel does not perform deficiently by failing to request a
18 jury instruction that is not supported by the evidence).
(b) Next, Moss contends that his counsel was constitutionally
ineffective by not moving for a mistrial contemporaneously — that
is, right when Detective Armand testified that she “attempted” to
interview Moss — and thus preserving the mistrial motion for ap-
pellate review.
That claim also fails because Moss cannot show that his coun-
sel performed deficiently. Moss’s counsel articulated a strategic rea-
son for not objecting to the detective’s remark about “attempt[ing] to
interview” Moss: he did not want to “draw attention” to the remark.
An attorney’s strategic decisions at trial can serve as the basis for
an ineffectiveness claim only if they are “so patently unreasonable
that no competent attorney would have made such a decision,” Clark
v. State, 321 Ga. 732, 738 (2025) (quotation marks omitted), and
counsel’s decision here does not meet that threshold. A strategic de-
cision not to draw attention to testimony or argument by making a
contemporaneous objection or mistrial motion generally falls within
the range of reasonable professional conduct. See, e.g., Lay v. State,
19 305 Ga. 715, 720 (2019) (counsel reasonably could have chosen not
to object to a brief comment during testimony about the defendant’s
invocation of his right to remain silent so as not to draw attention to
it); Atkinson v. State, 301 Ga. 518, 527 (2017) (counsel reasonably
decided not to object to a comment about the defendant smoking ma-
rijuana because “she did not find it to be important enough to draw
attention to it”). Just so here, especially because, as the trial court
explained, the detective’s remark did not “connect[ ] the dots” — did
not say explicitly — that Moss had invoked his right to remain si-
lent. See Whitaker, 283 Ga. at 524 (explaining that some remarks
about a defendant’s silence are less prejudicial and do not require a
mistrial or reversal on appeal). Given the relatively benign nature
of the detective’s remark, it was not “objectively unreasonable” for
counsel to decide not to draw attention to it, and so this claim of
error fails. See Heyward, 319 Ga. at 592 (quotation marks omitted).
(c) Moss also contends that his counsel was ineffective for fail-
ing to file a general demurrer to Count 8 of the indictment. Count 8
20 charged Moss with “the offense of possession of firearm by first of-
fender probationer O.C.G.A. § 16-11-131(b),” and alleged that Moss,
“on the 2nd day of September, 2018, did knowingly and without law-
ful authority possess a firearm; accused having been sentenced ... to
a term of probation as a Felony First Offender on December 5, 2017.”
A general demurrer challenges the sufficiency of the substance
of an indictment. See Powell v. State, 318 Ga. 875, 880 (2024). The
general demurrer must be granted if the indictment fails to either
(1) “recite the language of the statute that sets out all the elements
of the offense charged” or (2) “allege the facts necessary to establish
a violation of a criminal statute.” Id. (cleaned up) (citing State v.
Mondor, 306 Ga. 338, 341 (2019)). Put another way, a general de-
murrer will be granted if the defendant “can admit each and every
fact alleged in the indictment and still be innocent of any crime.” Id.
(quoting State v. Williams, 306 Ga. 50, 52–53 (2019)). Because grant-
ing a general demurrer results in dismissal of the charges, an attor-
ney who fails to file a meritorious general demurrer may be held
constitutionally ineffective. See State v. Heath, 308 Ga. 836, 841–42
21 (2020).
Moss contends that Count 8 here would not have survived a
general demurrer because it failed to allege one essential element of
the charged offense: that Moss was on probation at the time he pos-
sessed a firearm. See OCGA § 16-11-131(b) (“Any person who is on
probation as a felony first offender ... and who receives, possesses,
or transports a firearm commits a felony”) (emphasis added); Chavez
v. State, 307 Ga. 804, 808 (2020) (reversing a conviction for posses-
sion of a firearm as a first-offender probationer when “the State pre-
sented no evidence that [the defendant] possessed a firearm during
the term of his probation and prior to his discharge”). We are not so
sure. In Moss’s view, Count 8 did not allege that essential element
because the only facts that it alleged were that (1) Moss was sen-
tenced to probation on December 5, 2017, and (2) Moss possessed a
firearm on September 2, 2018. Moss is correct that he could admit
to both of those facts and still be innocent of the charged crime: the
probation that was imposed on December 5, 2017 could have ended
22 before September 2, 2018. But as the State points out, the State la-
beled the offense that Moss was charged with in the indictment as
“possession of a firearm by first offender probationer,” which in-
cludes the word “probationer,” which means someone on probation.
And Moss obviously could not admit to possessing a firearm as a
“probationer” and still be innocent of that charge. So in sum, Count 8
could have withstood a general demurrer only if the name of the of-
fense being charged can be read as a factual allegation.
We are not aware of any precedent resolving the question
whether the State’s chosen name for an offense being charged in an
indictment may be read as a factual allegation. Although we have
held that indictments are to be read as a whole, see, e.g., Powell, 318
Ga. at 882, Moss has not pointed to any authority holding that that
rule means we treat the name of the charged offense as a factual
allegation. On the other hand, we also have not held that the name
of the offense cannot be counted among the factual allegations of an
indictment. In short, existing precedent does not establish whether
Count 8 would have survived a general demurrer.
23 That uncertainty forecloses Moss’s ineffective-counsel claim. If
“existing precedent” at the time did not make clear that a legal ar-
gument would have supported a demurrer, then a defendant “cannot
show that trial counsel’s failure to file a demurrer asserting that ar-
gument amounted to deficient performance.” State v. Riley, 321 Ga.
323, 328 (2025) (quotation marks omitted). And speaking more gen-
erally, counsel usually will not be deficient for failing to advance a
legal theory that would require “an extension of existing precedents
and the adoption of an unproven theory of law.” Esprit v. State, 305
Ga. 429, 438 (2019) (quotation marks omitted). See also Walker v.
State, 306 Ga. 579, 583 (2019) (“[T]here is no general duty on the
part of defense counsel to anticipate changes in the law.”) (citation
omitted). Here, a general demurrer to Count 8 necessarily would
have relied on the unproven legal theory that the name of a charged
offense cannot be counted among the factual allegations of the in-
dictment. Because Count 8 was not unambiguously defective under
existing law, it was not deficient for counsel not to file a general de-
murrer, and so this claim fails. See Riley, 321 Ga. at 327 (counsel
24 was not ineffective for failing to file general demurrer to a charging
document that was “not unambiguously an indictment” but that con-
tained certain indications that it was).
(d) Moss finally contends that counsel was ineffective for failing
to move to suppress the evidence obtained under the search warrant
for his cell phone. The warrant included the following description of
the items to be seized:
Information stored in the phone to include outgoing and incoming calls, voice mails, text messages, address book, photos, sim card information, and other information on the device that may be used during the investigation for Murder (O.C.G.A. 16-5-1) Possession of Firearm During Commission of Certain Crimes (O.C.G.A. 16-11-106), and Cruelty to Children in the Third Degree (O.C.G.A. 16-5- 70).
In Moss’s view, that description did not satisfy the particularity re-
quirement of the Fourth Amendment to the United States Constitu-
tion, which states that a search warrant must “particularly de-
scrib[e] the place to be searched, and the persons or things to be
seized.”
When we evaluate a claim that counsel was deficient for failing
to file a motion to suppress, we ask whether “a motion to suppress 25 on the specific basis proposed by the appellant would clearly have
succeeded” if counsel had raised it. Pugh v. State, 318 Ga. 706, 720
(2024) (quotation marks omitted). See also Ward v. State, 313 Ga.
265, 275 (2022). That “basis” here is that the warrant was not par-
ticularized. In that regard, a warrant will generally satisfy the par-
ticularity requirement if it gives officers “enough guidance to locate
and seize only those items the warrant authorizes” and is “as specific
as the circumstances and nature of activity under investigation per-
mit.” Jones v. State, 321 Ga. 137, 148 (2025). By contrast, a warrant
that authorizes a “general search” — a “general, exploratory rum-
maging in a person’s belongings” — does not satisfy the particularity
requirement, and is unconstitutional. State v. Wilson, 315 Ga. 613,
614–15 (2023) (quoting Coolidge v. New Hampshire, 403 US 443, 467
(1971)).
Moss’s claim of ineffective assistance fails because a motion to
suppress evidence obtained under the search warrant based on lack
of particularity would not clearly have succeeded. Some elements
were problematic when combined: it did not limit the date range that
26 officers could search, and it included a “catch-all” provision that al-
lowed officers to seize “other information on the device” beyond the
communications-related data (text messages, phone calls, photos,
voicemails, the address book, and sim card information) tied most
closely to the basis for probable cause — i.e., that police had learned
that Smith had been texting with Moss immediately before she ar-
rived at the location where she was shot to death. But those issues
do not clearly invalidate the warrant. In light of the list of commu-
nications-focused data, the catch-all clause may be reasonably con-
strued to refer to other data of a similar nature, see, e.g., Reaves v.
State, 284 Ga. 181, 186 (2008) (search warrant’s residual “catch-all”
phrase “must be read in light of the items that precede it”; residual
clause did not authorize a general search when it was “specifically
limited … to the crime under investigation” and came “at the end of
a list of specific items which also provided guidelines for the officers
conducting the search”) (cleaned up), rather than as permitting a
wholesale seizure of any and all information on the phone for any
and all purposes. And we are aware of no precedent — and Moss
27 cites none — supporting the notion that an unlimited date range,
either alone or combined with a catch-all clause that is limited like
the one here, is enough to nudge an otherwise valid warrant outside
the bounds of the particularity requirement.
Moss relies on our decision in Wilson, where we held that a
search warrant was not particularized when it authorized the sei-
zure of “any and all stored information” on the defendant’s cell
phones, without placing any limit on either the date or the type of
information to be seized. See Wilson, 315 Ga. at 613, 616. But again,
the warrant here was not so unlimited, at least not clearly so. It
listed only certain communications-related categories of data — as
opposed to “any and all stored information” — and it tied them to
the investigation of specific crimes. In that respect, the closer com-
parison is to the search warrant that we upheld in Pugh, which,
“paint[ed] a broad stroke” in places, but also listed specific categories
of items to be seized and limited some of those categories “by time
or by reference to the specific crime under investigation.” Pugh, 318
Ga. at 722. In Pugh, we held that the warrant there, so limited, was
28 “not as easily read as the warrant in Wilson as authorizing the sei-
zure of all data without limitation on the target cell phone.” Id. The
same can be said of the warrant here.
To put it simply, a reasonable lawyer could look at the search
warrant in this case and conclude that it satisfied the Fourth
Amendment, or at least that a motion to suppress asserting the con-
trary claim would not clearly succeed. See Pugh, 318 Ga. at 720. Be-
cause Moss cannot show that “no reasonable lawyer” would have
failed to move to suppress evidence obtained under the warrant, this
claim of error fails. See Evans, 315 Ga. at 611.
6. Finally, Moss contends that the cumulative effect of the er-
rors at his trial requires his convictions to be reversed. But to estab-
lish cumulative error, Moss must show that “at least two errors were
committed in the course of the trial,” and that, considered together
along with the entire record, the errors “so infected the jury’s delib-
eration that they denied [him] a fundamentally fair trial.” Perrault
v. State, 316 Ga. 241, 248 (2023) (quotation marks omitted). And
Moss has not made that showing because we have assumed only one
29 error by the trial court — admitting the expert testimony of Rosa
James — and concluded that trial counsel did not perform defi-
ciently in any of the ways that Moss contends. Because Moss cannot
show that at least two errors occurred, there is “no basis for evalu-
ating the cumulative effect of errors,” and so this claim fails. See
Kirkland v. State, 318 Ga. 639, 658 (2024).
Judgment affirmed. All the Justices concur.