In the Supreme Court of Georgia



                                                         Decided:        March 7, 2016


                           S15A1736. MOSS v. THE STATE.


       NAHMIAS, Justice.

       Appellant Willie Moss challenges his convictions for malice murder and

possession of a firearm during the commission of a felony in connection with

the shooting death of Rashymel Young. We affirm.1

       1.      (a)     Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. On the evening of March 5, 2011,

Young and his brother, Dennis Harding, were waiting for an order of food




       1
           The victim was killed on March 5, 2011. On June 8, 2011, a Chatham County grand jury
indicted Appellant and Javonte Wright for malice murder, felony murder, aggravated assault, and
three counts of possession of a firearm during the commission of a felony. The charges against
Wright were later nolle prossed. At a trial from September 9 to 12, 2013, the jury found Appellant
guilty of all charges. The trial court sentenced him to serve life in prison for malice murder and five
consecutive years for possession of a firearm during the commission of that felony; the remaining
counts were vacated or merged for sentencing purposes. On September 24, 2013, Appellant filed
a motion for new trial, which he amended with the assistance of new counsel on April 8, 2014. After
an evidentiary hearing on June 23, 2014, and the filing of a post-hearing brief that the trial court
treated as an amendment to Appellant’s motion, the court denied the motion on February 23, 2015.
Appellant filed a timely notice of appeal directed to the Court of Appeals, which on July 2, 2015,
transferred the appeal to this Court, where the case was docketed to the September 2015 term and
submitted for decision on the briefs.
outside a Chinese restaurant in a strip mall in east Savannah when two men

came out of a nearby barber shop. One of the men, later identified as Appellant,

was tall, with a dark complexion and dreadlocks pulled into a ponytail; the other

man, later identified as Javonte Wright, was shorter, with a light complexion and

a “low haircut.” Harding did not know the men, but his brother seemed to

recognize them. Appellant said that he had marijuana to sell and exchanged

phone numbers with Young. Appellant and Wright then got into a dark green

Camaro with dark-tinted windows and square tail pipes and drove away.

      About ten minutes later, the food was ready, and Young and Harding

began walking towards their grandmother’s house a few blocks away. As they

walked down Nevada Street, Harding saw the same dark green Camaro driving

down the road and remarked to Young that the car looked suspicious. Suddenly,

the car sped towards Young and Harding and then came to a complete stop. The

windows were down, and Harding saw that Appellant was driving and Wright

was in the passenger seat. Appellant pointed a silver and black gun at Young

and opened fire, shooting him three times and killing him. Appellant then drove

down the street, made a U-turn, and stopped briefly by Young’s body before

driving away.

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      Harding, who ran when the shooting started, called 911 from a nearby

house. Santiago Jiminez also saw the shooting and called 911. The police

arrived ten to 15 minutes later. Harding, who had returned to check on his

brother, spoke to the police and described Appellant and Wright, the Camaro,

and the events leading up to the shooting. Harding later realized that he had

seen a picture of Appellant and Wright prior to the shooting on a friend’s

Facebook page, and he brought the photo to the police’s attention. The police

learned from Harding’s friend that Appellant and Wright had attended Savannah

High School, and the principal there helped the police to identify Appellant and

Wright by name. The police then prepared a photographic lineup, and Harding

identified Appellant as the shooter and Wright as his associate. Appellant was

arrested six days after the shooting at a local apartment complex.

      At trial, Jiminez and a second eyewitness, Angel Molina, testified that the

shots were fired at Young from the driver’s side of a dark colored Camaro with

tinted windows. Tim Oliver, a carpenter who worked at the apartment complex

where Appellant was arrested, testified that a few days after the shooting, he

observed a man matching the description Harding had given of the shooter

getting out of a dark green Camaro with tinted windows and a loud tail pipe.

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Harding made an in-court identification of Appellant as the shooter. Appellant

did not testify.

             (b)   Appellant contends that the evidence presented at trial was

legally insufficient to support his convictions, pointing to the lack of physical

evidence connecting him to the shooting and the fact that only the victim’s

brother, Dennis Harding, identified him as the shooter at trial. However, “[t]he

testimony of a single witness is generally sufficient to establish a fact.” OCGA

§ 24-14-8. See Colzie v. State, 289 Ga. 120, 121 (710 SE2d 115) (2011).

Moreover, two other eyewitnesses to the shooting corroborated Harding’s

description of the car driven by the shooter, and another witness testified that he

saw a man matching Harding’s description of the shooter getting out of the

distinctive Camaro a few days after the shooting at the apartment complex

where Appellant was soon arrested. Viewed in the light most favorable to the

verdicts, the evidence presented at trial and summarized above was sufficient to

authorize a rational jury to find Appellant guilty beyond a reasonable doubt of

the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307,

319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33

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

                                        4
witnesses and to resolve any conflicts or inconsistencies in the evidence.’”

(citation omitted)).

      2.    Appellant argues that a number of alleged procedural errors,

considered cumulatively, violated his right to procedural due process. First,

Appellant claims that it took over a year to get full discovery from the

prosecution. However, Appellant’s counsel had the opportunity before trial to

review everything in the State’s case file, including all the evidence that the

State intended to introduce, and Appellant points to no evidence that the State

deliberately withheld discovery to hamper the defense. See Higgenbottom v.

State, 290 Ga. 198, 202 n.1 (719 SE2d 482) (2011). Thus, he was not prejudiced

by the length of time it took to get discovery.

      Second, Appellant complains that the indictment given to the jury should

not have been redacted to remove the name of his co-indictee, Javonte Wright,

whose charges had been nolle prossed. But a trial court has discretion to give

the jury a redacted indictment where the only thing deleted is the name of a

co-indictee, see Chandler v. State, 143 Ga. App. 608, 609 (239 SE2d 158)

(1977), and Appellant has failed to explain how that discretion was abused here.

      Finally, Appellant points to the State’s failure to formally arraign him

                                       5
until after the close of evidence at trial, when the court noted that he had not

been arraigned while reviewing the indictment before sending it to the jury. But

Appellant never objected at trial to the lack of an earlier arraignment, and “any

error in the lack of arraignment was waived by [his] failure to raise the issue

prior to verdict.” Spear v. State, 270 Ga. 628, 632 (513 SE2d 489) (1999).

Moreover, Appellant’s rights were not affected by the late arraignment, as he

does not assert that he was unaware of the charges against him, both sides

participated in discovery and filed motions, and it is clear from his proceeding

to trial that he was offering a plea of not guilty. See Singleton v. State, 324 Ga.

App. 141, 145 & n.9 (749 SE2d 753) (2013).

      For these reasons, Appellant’s claim that his right to due process was

violated has no merit.

      3.    Appellant contends that the trial court erred in denying his motion

to quash a search warrant used to obtain cell phone records from his service

provider (none of which were introduced at trial). Appellant claims that the

warrant was issued in violation of 18 USC § 2703, thereby violating the Fourth

Amendment and depriving him of due process. However, Appellant withdrew

his motion to quash at a motions hearing, before the trial court had ruled on it,

                                        6
so he cannot now complain that the court did not grant it. See Ross v. State, 296

Ga. 636, 638-639 (769 SE2d 43) (2015) (holding that a defendant waived any

challenge to the admission of cell tower records where she affirmatively said at

trial that she had no objection to their admission).

       Even if Appellant had properly preserved his claim, there was no violation

of his Fourth Amendment rights under current doctrine, because the subscriber

and call toll records sought belong to the service provider, not to Appellant, and

he had no reasonable expectation of privacy in them. See id. at 639; Registe v.

State, 292 Ga. 154, 156 (734 SE2d 19) (2012); Kesler v. State, 249 Ga. 462,

469-470 (291 SE2d 497) (1982). Furthermore, the federal statute on which

Appellant relies provides no suppression remedy. See Ross, 296 Ga. at 640;

Hampton v. State, 295 Ga. 665, 669 (763 SE2d 467) (2014).2

       4.      Appellant maintains that the trial court violated his Sixth


       2
           Appellant has raised no claim based on Georgia law, which does provide a statutory
suppression remedy in this context for persons with proper standing. See OCGA §§ 16-11-67,
17-5-30; Hampton, 295 Ga. at 669. Appellant argues that the search warrant was invalid because
it was issued by a recorder’s court rather than a superior court. See 18 USC § 2703 (c) (authorizing
governmental entities to require providers of electronic communication service to disclose records
and other information pertaining to a subscriber, but not the contents of communications, through,
among other means, a state warrant issued “by a court of competent jurisdiction,” which 18 USC §
2711 (3) (B) defines as relevant here to mean “a court of general criminal jurisdiction of a State
authorized by the law of that State to issue search warrants”). In light of our holdings above, we need
not address this argument.
                                                  7
Amendment right to confront the witnesses against him, as well as his Georgia

statutory right to a thorough and sifting cross-examination, by denying his

request to cross-examine Harding and a police detective about a prior shooting

of the victim, which Appellant asserts would show that there were other

potential suspects in the victim’s murder. See Delaware v. Van Arsdall, 475

U.S. 673, 678-679 (106 SCt 1431, 89 LE2d 674) (1986); OCGA § 24-6-611

(b).3

        Certainly a defendant is entitled to introduce relevant and
        admissible testimony tending to show that another person
        committed the crime for which the defendant is tried. However, the
        proffered evidence must raise a reasonable inference of the
        defendant’s innocence, and must directly connect the other person
        with the corpus delicti, or show that the other person has recently
        committed a crime of the same or similar nature.

Klinect v. State, 269 Ga. 570, 573 (501 SE2d 810) (1998) (citation omitted).

The evidence Appellant proffered did not meet the criteria stated in Klinect, and

the trial court was not required to allow Appellant to introduce evidence “based

purely on rumor, speculation, and conjecture.” Woodall v. State, 294 Ga. 624,




        3
          OCGA § 24-6-611 (b) says in relevant part: “A witness may be cross-examined on any
matter relevant to any issue in the proceeding. The right of a thorough and sifting cross-examination
shall belong to every party as to the witnesses called against the party.”
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633 (754 SE2d 335) (2014). See also OCGA § 24-4-403.4 The permissible

scope of cross-examination is a matter committed to the sound discretion of the

trial court, and under the facts of this case, we see no abuse of that discretion.

See Nicely v. State, 291 Ga. 788, 796 (733 SE2d 715) (2012). This enumeration

of error lacks merit.

       5.      Finally, Appellant contends that his two trial lawyers provided him

ineffective assistance in multiple ways. To prevail on this claim, Appellant must

show that his counsels’ performance was professionally deficient and that, but

for the deficiency, there is a reasonable probability that the outcome of the trial

would have been more favorable to him. See Strickland v. Washington, 466

U.S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984); Long v. State, 287 Ga.

886, 891 (700 SE2d 399) (2010). Appellant has not met this burden.

               (a)    Appellant suggests that his trial counsel were deficient in

failing to protect his right to procedural due process in the ways discussed above

in Division 2 and in not pursuing the motion to quash the search warrant



       4
           OCGA§ 24-4-403 says: “Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.”
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discussed above in Division 3. However, as explained in these divisions,

Appellant still has not shown any violation of his rights, and it follows that he

has not shown deficient performance or prejudice. See Hampton, 295 Ga. at 670

(“[T]he failure to make a meritless motion or objection does not provide a basis

upon which to find ineffective assistance of counsel.”).

            (b)   Appellant argues summarily that his trial counsel were

deficient in not objecting to the volume of autopsy photographs admitted and the

accompanying testimony by the medical examiner. Appellant claims that the

probative value of that evidence was substantially outweighed by the danger of

unfair prejudice, see OCGA § 24-4-403, because there was no question that the

victim was shot and killed and the real question for the jury was who did the

shooting.

      The State offered into evidence seven pre-incision autopsy photos

showing the victim’s body. As autopsy photos in murder cases go, these were

not especially gory or gruesome. See United States v. Kaiser, 545 F2d 467, 476

(5th Cir. 1977) (“We have viewed the photographs and . . . we cannot say that

they are in any respect more gruesome or shocking than is inherent in any visual

record of a murder.”). The photos and related testimony were relevant to show

                                       10
the nature and location of the victim’s injuries, which corroborated the account

of the shooting given by Harding and the other eyewitnesses. See United States

v. De Parias, 805 F2d 1447, 1453 (11th Cir. 1986) (“Photographs of homicide

victims are relevant in showing the identity of the victim, the manner of death,

the murder weapon, or any other element of the crime.”), overruled on other

grounds by United States v. Kaplan, 171 F3d 1351, 1356-1357 (11th Cir. 1999).

And the trial court had considerable discretion in determining whether the

potential for prejudice substantially outweighed any probative value. See id.;

State v. Jones, 297 Ga. 156, 163-164 (773 SE2d 170) (2015).

      A lawyer is not required to make an objection that he reasonably believes

will fail, and to demonstrate constitutionally deficient performance, Appellant

must show that no competent attorney would think that the objection in question

would have failed. See Premo v. Moore, 562 U.S. 115, 124 (131 SCt 733, 178

LE2d 649) (2011). A competent attorney in the position of Appellant’s trial

lawyers would have had every reason to believe that an objection to this autopsy

evidence based on OCGA § 24-4-403 would fail, even if Appellant did not

affirmatively dispute the State’s proof that the victim was shot to death. See De

Parias, 805 F2d at 1454. See also Johnson v. State, 292 Ga. 856, 860 (742 SE2d

                                       11
460) (2013) (explaining, in a case governed by Georgia’s old Evidence Code,

that “this Court has routinely found it permissible for the State to introduce pre-

autopsy photographs of a murder victim, even if duplicative and possibly

inflammatory, for the purpose of illustrating the cause and manner of death,”

and that “[s]uch photographs are generally admissible even when the cause of

death is not in dispute”). Accordingly, Appellant has not established that his

trial counsel were ineffective in this respect.

            (c)    Appellant also claims that his trial counsel were ineffective in

failing to move for a mistrial when the victim’s family was “verbally and

visually disruptive” during trial. However, as the trial court found in its order

denying Appellant’s motion for new trial, the trial transcript does not indicate

that anything unusual of this sort happened during the trial or that Appellant was

prejudiced by the presence of the victim’s family.

            (d)    Appellant contends that his trial counsel were deficient in not

calling his employer, Samuel Youmans, to provide an alibi defense. Lead trial

counsel testified at the motion for new trial hearing that he decided not to call

Youmans at trial because Youmans was a convicted felon; there were

inconsistencies in his statements to defense counsel and between those

                                        12
statements and a statement he gave to the police; counsel thought that Youmans

“didn’t come across as a very credible person”; and Youmans said that

Appellant did deliveries as part of his job and at one point said that Appellant

left work early on the night of the shooting to make a delivery on his way home,

which was near where the shooting happened and would have fit the

prosecution’s timeline for the murder. Counsel explained his strategy this way:

“My theory is if you’re going to put up an alibi, it better be something that sticks

because if you start putting up weak evidence before the jury, it makes you look

desperate. And I didn’t think that there was nearly enough there . . . to go down

that road.”

      “A decision as to which defense witnesses to call is a matter of counsel’s

trial strategy and tactics and will not support a claim of ineffective assistance of

counsel unless it is so unreasonable that no competent attorney would have

made the decision under the circumstances.” Shockley v. State, 297 Ga. 661,

666 (777 SE2d 245) (2015) (citation omitted). Given lead trial counsel’s

firsthand concerns about Youmans’s credibility as a witness, the inconsistencies

in and limitations of his statements, and his status as a convicted felon, we

cannot say that the strategic decision not to call Youmans at trial was patently

                                        13
unreasonable. Thus, Appellant failed to show deficient performance. See id;

Andrews v. State, 293 Ga. 701, 703 (749 SE2d 734) (2013). He also failed to

show prejudice, because Youmans would not have given him a solid and

complete alibi for the time of the murder. See Shockley, 297 Ga. at 666; Prince

v. State, 295 Ga. 788, 793-794 (764 SE2d 362) (2014).

            (e)   Finally, Appellant claims that his trial counsel were

ineffective in failing to properly provide the trial court with argument as to why

the victim’s prior shooting was relevant in this case. Appellant abandoned this

claim by not presenting any argument or citation of authority to support it in his

brief. See Supreme Court Rule 22; Sharpe v. State, 272 Ga. 684, 690 (531 SE2d

84) (2000). In any event, as discussed above in Division 4, the prior shooting

has not been shown to be relevant to this case, so Appellant has not established

deficient performance by his trial counsel. Nor has Appellant established any

prejudice. Lead trial counsel explained at the motion for new trial hearing that

there were risks involved in presenting evidence of the victim’s prior shooting,

because that shooting could be connected to one of Appellant’s family members,

which “could ultimately lead to an argument by the State that now there was

motive [for Appellant to shoot the victim,] whereas the case was presented

                                       14
without all of that.” As counsel noted at another point in his testimony, “motive

was one of the things that we could at least count on the State not being able to

prove, and that was one of the things that we harped on.”

      Thus, Appellant has not shown that his trial counsel provided ineffective

assistance in any of the ways alleged.

      Judgment affirmed. All the Justices concur.




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