State v. Cook

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

No. S26A0898

The State

v.

Billy Joe Cook

On Appeal from the Superior Court of Gwinnett County

No. 18B040717

Decided: October 14, 2026

PINSON, Justice.

Billy Joe Cook was indicted on two counts of malice murder and felony murder in connection with the death of Leslie Adams, his “on-again/off-again” girlfriend. The crimes happened on Octo- ber 21, 2005. Adams’s body was not found until May 2007, when two people in Franklin County found parts of her body “in a swampy area not far from the interstate.” The Gwinnett County cold case unit took up the investigation, which discovered “[cell] phone records … that put [Cook] in th[e] vicinity of where [Ad- ams] was when she went missing.” Cook was indicted in Septem- ber 2018, roughly 13 years after the alleged events. 1 After two

1 The indictment charged Cook with two counts of mal- ice murder (Counts 1 and 2), felony murder predicated on aggravated assault with a deadly weapon (Count 3), and fel- ony murder predicated on aggravated stalking (Count 4). Count 1 alleged malice murder based on the shooting of Ad- ams while Count 2 alleged malice murder by causing Ad- ams’s death “in a manner unknown.”

pretrial hearings, the trial court issued two orders: One order granted Cook’s general demurrer and struck Count 4 of the in- dictment. The other found, among other things, that the State had not met the requirements for authenticating certain cell phone records under OCGA § 24-9-902(11) (Rule 902(11)). The State timely appealed both orders under OCGA §§ 5-7-1 and 5-7-2. 2 As to the first order, we conclude that the trial court erred in grant- ing the demurrer because the count in question tracked the lan- guage of OCGA § 16-5-1(c) and alleged the essential elements of felony murder. As for the second order, we conclude that the State has not shown that it has statutory authorization to appeal it as an order “excluding ... evidence” under OCGA § 5-7-1(a)(5). So the trial court’s order granting the general demurrer is reversed, and the State’s appeal of the Rule 902(11) order is dismissed.

1. The State appeals the trial court’s order granting Cook’s general demurrer to Count 4 of the indictment, which charged him with felony murder predicated on aggravated stalking. 3 In its order, the trial court concluded that “[t]he State did not establish any causal connection between the felony aggravated stalking and the death.” To survive a general demurrer, the challenged indictment need only “recite the language of the statute that sets out all the elements of the offense charged” or “allege the facts necessary to establish a violation of a criminal statute.” Moss v. State, 322 Ga. 757, 765 (2025) (quotation marks omitted). See also Budhani v. State, 306 Ga. 315, 319 (2019). A trial court’s ruling

2 This case was docketed to our April 2026 term and is submitted for a decision on the briefs.

3 The State appeals under OCGA § 5-7-1(a)(1), which authorizes the State to appeal “[f]rom an order … dismissing any indictment … or any count thereof.”

on a general demurrer is reviewed de novo. State v. Phillips, 323 Ga. 125, 128 (2025).

Count 4 of the indictment survives Cook’s general demur- rer. That count charges Cook with felony murder, which a person commits when, in the commission of a felony, he causes the death of another human being. See OCGA § 16-5-1(c). Count 4 alleges that Cook “caused the death” of Adams “while in the commission of a felony, Aggravated Stalking (OCGA sec 16-5-91), by having non-consensual, in person contact with” Adams “for the purpose of harassing and intimidating her,” which violated an existing Temporary Protective Order and “resulted in [ ] Adams being killed by [Cook] in a manner unknown to the Grand Jury.” These allegations track the language of OCGA § 16-5-1(c) and allege the essential elements of felony murder, including that the defendant caused the death of another person. That is enough to survive a general demurrer. See, e.g., State v. Wyatt, 295 Ga. 257, 260 (2014); Clark v. State, 315 Ga. 423, 443 (2023); Stinson v. State, 279 Ga. 177, 179 (2005); Lowe v. State, 276 Ga. 538, 539 (2003); Wallace v. State, 320 Ga. 272, 286 (2024). Thus, the trial court erred in granting Cook’s general demurrer to Count 4.

2. The State also appeals the trial court’s order of Septem- ber 15, 2025, which, among other things, found that “the require- ments for authentication under [R]ule 902(11) have not been met as to the cell phone records that the State seeks to introduce at trial.” For authorization to appeal this order, the State relies on OCGA § 5-7-1(a)(5), which provides that “[a]n appeal may be taken by” the State in criminal cases “[f]rom an order, decision, or judgment excluding any other evidence to be used by the state at trial” if certain timing and certification requirements are met. 4 In interpreting subsection (a)(5), we have made clear that an or- der “exclud[es] ... evidence” whether it does so expressly or “by operation of law.” State v. Islam, 321 Ga. 30, 32, 34 (2025). That is, if preventing the evidence in question from being admitted at trial is the “necessary consequence” of an order, that order is an order “excluding ... evidence,” whether or not it uses those words. See id. at 34. See also OCGA § 5-7-6 (“This chapter shall be liber- ally construed to effectuate the purposes stated in this chapter.”); United States v. Drogoul, 1 F3d 1546, 1551 n.13 (11th Cir. 1993) (construing a materially similar federal statute authorizing the United States to appeal from a decision or order of a district court “suppressing or excluding evidence” to permit an appeal when an order “ha[s] the practical effect of excluding evidence at trial”).

Applying that standard here, the State has not shown that the order in question is an order “excluding ... evidence” that it has authorization to appeal under OCGA § 5-7-1(a)(5). See State v. Wheeler, 310 Ga. 72, 76, 81 (2020) (dismissing the State’s ap- peal for failing “[t]o properly invoke this Court’s jurisdiction” by complying with the requirements of OCGA § 5-7-1(a)(5) authoriz- ing interlocutory review, which are jurisdictional). A pretrial or- der finding that the State’s notice did not meet the requirements of Rule 902(11) does not, taken in isolation, exclude any evidence. Authentication is a “condition precedent” to admitting evidence,

4 The statute says “any other evidence,” OCGA § 5-7- 1(a)(5) (emphasis added), because the prior subsection, OCGA § 5-7-1(a)(4), allows an appeal “[f]rom an order, deci- sion, or judgment suppressing or excluding” a subset of evi- dence: evidence “illegally seized or excluding the results of any test for alcohol or drugs.”

OCGA § 24-9-901(a), and Rule 902 is a shortcut to authentication in some cases: it excuses a party that seeks to introduce evidence from the additional work of presenting extrinsic evidence to prove that the evidence is what the party claims it is. See OCGA § 24- 9-902. So failing to meet the requirements for authenticating ev- idence under Rule 902 just means that the party must instead put forth “evidence sufficient to support a finding that the matter in question is what its proponent claims” (often, testimony from a person with knowledge of the evidence in question) before that evidence may be admitted at trial. OCGA § 24-9-901. And here, the State has given no indication — nor do we see any such indi- cation in the record — that, as a result of the trial court’s order, the State will not be able to authenticate the records at trial. So the record supplies no basis for concluding that, as a “necessary consequence” of the trial court’s order, the cell phone records here have been excluded from the evidence at trial. See Islam, 321 Ga. at 32, 34. To the contrary, at the pretrial hearing addressing this issue, the trial court explained that an earlier order denying Cook’s motion to suppress went to “the admissibility of [the cell phone] evidence,” whereas its ruling on Cook’s objection to the State’s Rule 902(11) notice was only that “the way it has been submitted by the State doesn’t meet the foundation, so it doesn’t come in that way,” “[b]ut it doesn’t mean that the State can’t get it in other ways.” See State v. Sims, 322 Ga. 769, 775 (2025) (ex- plaining that, to the extent they are consistent, “a trial court’s oral pronouncements ‘may provide insight on the intent of a later written judgment’” (quoting Williams v. Williams, 295 Ga. 113, 114 (2014)). 5 Thus, the State has not shown that OCGA § 5-7-

5 During the pretrial hearing, the trial court also men- tioned OCGA § 24-8-803(6) (Rule 803(6)), but the court did 1(a)(5) gives it authorization to appeal that order. 6

Appeal dismissed in part and judgment reversed in part. All the Justices concur.

not address that rule in its written order. A trial court’s com- ments made in an earlier hearing cannot modify an order later reduced to writing. See, e.g., Sims, 322 Ga. at 775 (“[A]ny discrepancy between the written judgment and oral pronouncement is resolved in favor of the written judg- ment.”). So the State remains free at trial to seek to authen- ticate the cell phone records in whatever way it is able, and to seek their admission under Rule 803(6) (or any other rule that may apply).

6 This conclusion is, of course, based on our under- standing of the limited import of the written order address- ing Rule 902(11). If the trial court meant to preclude the State from introducing the phone records at trial, it should make that clear in a written order, which the State could then seek to appeal before trial.