Lewis v. StateLewis v. State
After a jury trial in May 2011, Didrekeus Lewis was convicted of malice murder and other crimes for the shooting death of Marvin Printup.1 Lewis raises five claims of error on appeal: (1) that the
We conclude that the evidence is sufficient to support Lewis‘s convictions; that the trial court did not abuse its discretion in concluding that the photograph shown to Varner was not impermissibly suggestive; and that Lewis‘s claim that the trial court
1. Viewed in the light most favorable to the verdicts, the evidence presented at Lewis‘s trial showed the following. Varner rode with Marvin Printup to a gas station on Martin Luther King, Jr. Drive at approximately 4:00 a.m. on September 11, 2010. Varner testified that she and Printup, who was also known as “Kool-Aid,” went to the gas station to “pick up [her] friend” Paul Sadeghy.2
During her testimony, Varner said that she could not remember whether Printup went back to the car with her and Paul to leave the gas station. She also testified that, although she heard a shooting, she did not see it and did not know who did the shooting. Moreover, in her testimony, Varner did not identify Lewis as “Weasel” or “Weasy.” The State, however, introduced into evidence two prior statements that Varner made to police officers in which she described seeing Printup being shot by “Weasel” at his car and in which she identified Lewis as Weasel. In a written statement made within a week of Printup‘s shooting, Varner said the following.
On Friday, Paul called me to get him from the Citgo at MLK. I went up there with Kool-Aid. Paul said that Weasy . . . was the shooter, wanted Paul to buy drugs from him and pay him for a ride. Paul was geeking and in the store waiting. I told him to come on. He was still arguing with the shooter. We got in the car, and this is when Kool-Aid and Weasy started arguing over Weasy owing Kool-Aid $25 for giving him a ride to court earlier in the week. Kool-Aid was mad that he didn‘t get paid and argued with Weasy. At this point, Kool-Aid reached acting like he had a gun to scare Weasy off. Weasy did pull a gun and shoot Kool-Aid.
Varner also made a videotaped statement with the help of a different detective, and in that statement, said that Printup “was taking the pump off his car and putting it back in . . . and . . . Paul came on out still arguing, going towards Kool-Aid‘s car.” She added that
I made Paul get in the back seat and sit down. Then Kool-Aid acted like he had a gun. He came all the way behind his car over there where me and Weasel was at to argue with him like he got a gun. Why is he doing that? I don‘t know. But then he just got down; said f**k you, n*****. F**k you. And he was fixin’ to get ready to get in the car, and Weasel just started shooting, and he just started running towards, and he just ducked down, started running towards the door of the gas station.
In that videotaped statement, Varner also described Weasel, saying
During her videotaped statement, Varner also identified a photograph of Lewis, explaining that he was the person she knew as “Weasel” and said that she had known Weasel “all his life.” The State also introduced other evidence that “Weasel” was Lewis. In this regard, Aziz, who was working as the manager of the gas station on the night of the crimes, testified at trial that he did not remember identifying a photograph shown to him by a detective as a person he knew as “Weasel.” However, a detective testified that, after Printup‘s shooting, he showed a photograph of Lewis to Aziz and Aziz identified the person in the photograph as being a person that he knew as “Weasel.”3 The detective added that Aziz told him that “Weasel” came to the store several times a night.
The State also introduced surveillance video from the gas station that was recorded on the night of Printup‘s shooting.
The computer aid dispatch (“CAD“) report for the 911 call that followed Printup‘s shooting was introduced into evidence at trial. The custodian of records for the 911 call center for the City of Atlanta Police Department testified that a CAD report “gives you all the information that the callers give the 911 taker on that call when they call in.” She added that the CAD corresponding to the 911 call from the gas station on the night of Printup‘s shooting contained a description of the shooter as a “light skinned, late 20-year-old,” wearing a “white t-shirt,” and having a “tattoo under eye.” The report also said that the shooter left the scene in a “gold or green vehicle.”
In addition to the evidence recounted above, a recording of a phone call that Lewis made from jail to his girlfriend was admitted into evidence at trial. On the phone call, Lewis says “they don‘t have nothing on me if they are looking for that b***h Sweet Meat,” referring to Varner by her nickname. He also expressed worry about whether law enforcement had obtained video footage from the gas station. During that call, Lewis referred to himself as “Weasel.”
2. Lewis contends that the evidence was legally insufficient to support his convictions. We disagree.
“When evaluating a challenge to the sufficiency of the
Although Lewis is correct that Varner provided conflicting testimony at trial about whether she recalled the shooting and the events surrounding it and about whether Weasel was the shooter, it “was for the jury to assess the credibility of the witnesses” and “to resolve any discrepancies in the evidence presented at trial.” Smith, 308 Ga. at 85. We conclude that, viewing the evidence presented at trial in the light most favorable to the verdicts, the evidence was sufficient for the jury to have found Lewis guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jones, 304 Ga. at 598.5
(a) As background, before trial, the trial court conducted a hearing on Lewis‘s motion to suppress evidence of Varner‘s identification of Lewis from a photo lineup. At that hearing, Detective Cooper testified that, using a photograph of Lewis, he searched a database for people with “similar physical characteristics” and put together a lineup consisting of photographs of Lewis and five other men. He added that, at the end of his interview of Varner, he showed her the lineup, but that before doing
Detective Cooper acknowledged on cross-examination that Lewis has a “noticeable” tattoo on his face, but disagreed with defense counsel that there was a visible tattoo on Lewis‘s face in the photograph of Lewis used for the lineup. Detective Cooper testified
Lewis called Varner to testify at the suppression hearing. Varner testified that she uses “ridiculous” amounts of drugs “every day all day,” mostly crack and “a little heroin.” She added that she was “high” when she made her statement to Detective Cooper and identified the photograph of Lewis.
At the conclusion of the hearing, Lewis contended that the lineup was impermissibly suggestive because Lewis‘s photograph
It is on video, and I have, I have looked at the lineup, the photo lineup, and that is not suggestive to me in any way; and it looks like a good lineup, and [Varner] doesn‘t look like she is absolutely trashed in that interview and doesn‘t – so that‘s what I observed.
In response, Lewis argued that “there [was] only one person in the photo lineup who has tattoos on his face.” The trial court responded, “Well, I have looked at it. I can‘t tell. He has got something over here, but it could be a shadow. And, I mean, it speaks for itself.” The trial court then denied Lewis‘s motion to suppress the photo lineup.
Later, when testifying at trial about the photo lineup, Varner testified that she “picked the first person [she] could see as close as [she] could get to, so anybody.” Varner also testified that she picked Lewis‘s picture because he was the only person with a tattoo on his face.
Lewis contends that his identification should have been suppressed because the photograph of his face was the only one in the lineup with a tattoo, and because Varner testified at trial that she identified Lewis‘s picture in the photo lineup because it was the only one depicting a person with a tattoo on his face. But the record does not support the conclusion that the photo lineup was “impermissibly suggestive.” See Westbrook, 308 Ga. at 99. To begin, Detective Cooper testified that he could not tell from Lewis‘s photograph that Lewis had a tattoo on his face. Likewise, even after examining Lewis‘s black-and-white lineup photograph, the trial
Given all of the above, we cannot say that the trial court abused its discretion in concluding that the photographic lineup at issue was not impermissibly suggestive. See Westbrook, 308 Ga. at 99. And because we conclude that the photo line-up was not impermissibly suggestive, “it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.” Id.7
4. Lewis contends that the trial court erred by failing to grant Lewis‘s motion for a mistrial based on the State‘s introducing evidence that Lewis contends was ruled inadmissible at the motion
(a) The background relevant to this enumeration of error is as follows. At a pretrial hearing on Lewis‘s motion to suppress Aziz‘s identification of the photograph of Lewis as Weasel, Investigator Conner testified that he had obtained information that someone with the nickname of “Weezie” was a suspect in Printup‘s shooting. Investigator Connor also testified that Aziz told him that he knew a person with that nickname who frequented the gas station where Aziz worked and that that person was at the gas station “when the incident occurred,” in reference to Printup‘s shooting. Over the course of several weeks, Conner showed Aziz a single photograph of three different men, none of which was Lewis, and Aziz said that none of those men were Weezie. However, about six weeks after the crimes, Conner showed Aziz a single photograph of Lewis, and Aziz identified the man in the photograph as Weezie. Investigator Conner also testified that Aziz told him that “he was present” on the night of Printup‘s shooting, “but he did not want his name in it. He
Aziz also testified at the hearing. He acknowledged that he was working at the gas station on the night of Printup‘s shooting, but said that he was in the back of the store and did not see what happened. Aziz also testified that he did not remember Investigator Conner showing him a photograph and did not remember identifying a person in a photograph as Weezie. The prosecutor then asked Aziz if he “remember[ed] telling [the prosecutor] and [his] investigator probably about . . . 20 minutes ago that you identified Weezie in a picture as being one of the people who was there that night.” Aziz responded that he did not remember.
In responding to Lewis‘s motion to suppress Aziz‘s identification, the prosecutor argued that the one-person show-up
I mean [Aziz has] made no identification of anybody that shot anybody. The only reason you could call him—the only thing he could offer based on everything I‘ve heard is that [Lewis], if he‘s known as Weezie, was, you know, at the location that day. . . . The only possible narrow way
you could call him is for him to say, you know, Weezie was there that night.
A short time later, the prosecutor reiterated that he was “not going to ask any witness up there, Aziz or Conner, about the shooting. All I‘m going to ask is was Weezie there that night of the shooting.” In response, the trial court ruled that “I am not going to strike [Aziz‘s] testimony in that narrow area.” The trial court made no ruling on whether the show-up was impermissibly suggestive.
At trial, the prosecutor did not ask Aziz whether he witnessed the shooting, but asked him whether he had seen “a person by the name of Weasel come into the store on the night of the crimes.” Aziz responded, “I don‘t know by name.” The prosecutor then asked whether Investigator Conner had shown Aziz any photographs and, in particular, whether Conner had shown him a photograph of a person that he identified as Weasel. Aziz responded that he did not remember. During the State‘s direct examination of Investigator Conner, the prosecutor asked, “what did Abdul Aziz tell you?” Detective Conner testified as follows:
Mr. Aziz told me that he was at work that night of the incident when it occurred. Told me that the witness Patricia Varner, Sweet Meat, was there at the store, along with the victim and another gentleman was there; and there was an argument inside the store and between the victim and the gentleman that we later identified, Mr. Lewis. During the argument, this victim went outside to pump some gas into his car; at which point, Mr. Lewis followed him outside. They had an argument outside and shots rang out. Mr. Lewis shot the victim. The victim ran back towards the store and collapsed in the doorway of the store.
Lewis requested a bench conference, which was not transcribed. After the bench conference, the trial court instructed the jury as follows:
All right. Ladies and gentlemen of the jury, we have had prior hearings on this case, and the testimony that was just elicited from the detective was ruled out of this case, and I‘m instructing you, you are not to consider it. I‘m sorry that this happened, but I‘m instructing you to disregard the last few questions of this detective and his answers; and if you can‘t do that, please raise your hand. Okay.
After the trial court instructed the jury, defense counsel said that she had a motion to make and that “it needs to be placed on the record in the absence of the jury.” The trial court instructed defense counsel to wait until Investigator Conner left the stand. The
After Investigator Conner finished testifying, the jury was excused from the courtroom, and defense counsel said that she wanted to place on the record that she had moved for a mistrial immediately after Investigator Conner testified about the statement that Aziz had made to him and that the trial court had previously excluded. The State did not object to defense counsel‘s assertion about having moved for a mistrial. Defense counsel reiterated that a mistrial was appropriate, noting that, at the pre-trial hearing, the prosecutor had represented that he did not intend to present such testimony, and the court had instructed him not to do so. The trial court responded that it had “instructed the [jury] to disregard it. They have indicated that they can. I asked them. Nobody responded when I asked them to raise their hand if they couldn‘t follow that instruction.” The trial court then denied Lewis‘s motion for mistrial.
“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” Perkins v. State, 313 Ga. 885, 896 (873 SE2d 185) (2022) (citation and punctuation omitted). Moreover, “[i]t is well established that a trial court ‘can negate the potentially harmful effect of improperly introduced evidence by prompt curative instructions rather than by granting a mistrial.‘” Id. at 897 (quoting Walker v. State, 306 Ga. 44, 49 (829 SE2d 121) (2019)). In addition, “juries ‘are presumed to follow curative instructions in the absence of proof to the contrary.‘” Id. (quoting Rosser v. State, 308 Ga. 597, 603 (842 SE2d 821) (2020)). “[A] new trial will not be granted unless it is clear that the trial court‘s curative instruction failed to eliminate the effect of the prejudicial comment.” Rosser, 308 Ga. at 603 (citation and punctuation omitted).
Here, the trial court instructed the jury to disregard
5. Lewis contends that the trial court erred in denying his motion to suppress evidence of Aziz‘s identification of him pursuant to the one-person show-up. However, Lewis has not preserved this issue for appellate review. At the pre-trial hearing, Lewis raised the issue that the show-up was impermissibly suggestive and raised a substantial likelihood of misidentification. But during the hearing, the only ruling the trial court made was the one limiting the scope of Aziz‘s testimony at trial to the subject of Lewis being at the gas station on the night of the shooting. The trial court did not discuss, let alone make any rulings about, whether the show-up was impermissibly suggestive. Because Lewis failed to obtain such a ruling and did not object at trial to evidence about the show-up, he has not preserved the issue for appeal. See Smith v. State, 302 Ga. 699, 701 (808 SE2d 692) (2017) (holding that “[b]ecause Appellant did not obtain a ruling on his pre-trial motion to suppress the evidence and did not object to the admission of the evidence at trial,
6. Lewis contends that his trial counsel provided constitutionally ineffective assistance of counsel in three respects. For the reasons explained below, his claims fail.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466 U.S. at 687-688. To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. See Strickland, 466 U.S. at 694. “If an appellant fails to
(a) Lewis claims that counsel was constitutionally deficient because she failed to object during trial to the admission of the photographic lineup that Detective Cooper showed Varner. However, even though counsel did not object to this evidence when it was introduced at trial, she did object to the photographic lineup in a pre-trial motion and preserved this issue for appeal by obtaining a ruling on that motion. See Whitehead v. State, 287 Ga. 242, 248 (695 SE2d 255) (2010) (in an old Evidence Code case, explaining that an objection to the admission of evidence that is made and ruled on before trial need not be repeated at trial).8 Thus, we cannot say that counsel performed deficiently by failing to object to the evidence at trial, even though she had already raised the issue before trial and
(b) Lewis contends that trial counsel was constitutionally deficient in failing to object at trial to evidence of the photograph of Lewis that Investigator Conner showed to Aziz, and that this
(1) a witness’ opportunity to view the accused at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of accused; (4) the witness’ level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation.
Newton v. State, 308 Ga. 863, 867 (843 SE2d 857) (2020) (citation omitted). “Moreover, whether the witness knows the defendant is a critical factor in determining the reliability of an identification.” Walker v. State, 295 Ga. 688, 692 (763 SE2d 704) (2014) (citation and punctuation omitted). “The ultimate question is, whether under the totality of the circumstances, the identification is reliable.” Newton, 308 Ga. at 867 (citation and punctuation omitted).
Here, the State introduced evidence that Aziz knew Lewis: Aziz initially told Investigator Conner that the person he knew as Weasel had visited the gas station where Printup was shot several times a night for two or three years before Printup‘s shooting. Moreover, the description that Aziz gave of Weasel as a “light-skinned . . . black
(c) Lewis contends that his trial counsel was constitutionally deficient when she failed to object to the State‘s reference to the contents of the CAD report in its closing argument. Lewis argues that counsel “missed an opportunity to have a mistrial,” contending that the CAD report was not introduced into evidence at trial and that the State‘s closing argument was therefore objectionable. However, the record shows that the CAD report was admitted into evidence. Thus, counsel was not deficient for failing to object to the prosecutor‘s reference to a report that had been admitted into evidence. See Williams v. Harvey, 311 Ga. 439, 445 (858 SE2d 479) (2021) (“[C]losing argument must be based on the evidence presented at trial.“) (citation and punctuation omitted); Ward v. State, 313 Ga. 265, 273 (869 SE2d 470) (2022) (“Failure to make a
Judgment affirmed. All the Justices concur.