In the Supreme Court of Georgia

Decided: September 20, 2022

S22A0757. LEWIS v. THE STATE.

 WARREN, Justice.

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 

 1 On July 1, 2011, a Fulton County grand jury indicted Lewis for malice 

murder (Count 1), felony murder predicated on aggravated assault (Count 2), 

felony murder predicated on possession of a handgun by a convicted felon 

(Count 3), aggravated assault with a deadly weapon (Count 4), aggravated 

battery (Count 5), possession of a firearm during the commission of a felony 

(Count 6), and possession of a firearm by a convicted felon (Count 7). After a 

trial from March 5 to 7, 2012, a jury found Lewis guilty on all counts. On 

March 15, 2012, Lewis was sentenced to serve life in prison for malice murder, 

15 years for aggravated battery, and 5 years for use of the gun during the 

commission of a felony, with the sentences to run consecutively. Although the 

trial court purported to merge the felony-murder counts, they were actually 

vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (434 SE2d 

479) (1993). The trial court also appeared erroneously to merge the count for 

possession of a firearm by a convicted felon into the malice murder count. See 

Smith v. State, 300 Ga. 532, 537 (796 SE2d 671) (2017). But “when a merger 

error benefits a defendant and the State fails to raise it by cross-appeal,” we 

“exercise our discretion to correct the error upon our own initiative only in 

exceptional circumstances,” Dixon v. State, 302 Ga. 691, 698 (808 SE2d 696) 
2

evidence was insufficient to support his convictions; (2) that the trial 

court erred when it denied Lewis’s motion to suppress evidence that 

Yvette Varner identified a man in a photo lineup as “Weasel”; (3) 

that the trial court erred when it denied Lewis’s motion for mistrial 

made after a detective summarized a pre-trial statement from a 

witness, Abdul Aziz, that the trial court had ruled was inadmissible 

before trial; (4) that the trial court erred by denying Lewis’s motion 

to suppress evidence that Aziz identified a man in a photograph as 

“Weasel”; and (5) that Lewis received ineffective assistance of 

counsel. 

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 

 

(2017), and we decline to do so here. In addition, the count for assault with a 

deadly weapon merged with the malice murder count. Through trial counsel, 

Lewis filed a timely motion for new trial on March 26, 2012. Through new 

counsel, Lewis filed an amended motion for new trial on June 1, 2018. On 

January 23, 2019, following a hearing on Lewis’s motion for new trial, the trial 

court denied Lewis’s motion. On February 7, 2019, Lewis filed a timely notice 

of appeal. The case was docketed in this Court to the April 2022 term and 

submitted for a decision on the briefs. 
3

abused its discretion in denying his motion for mistrial is without 

merit. We also conclude that Lewis’s claim that the trial court erred 

in failing to suppress Aziz’s identification of a man in a photograph 

as Weasel is waived because Lewis failed to obtain a ruling on the 

issue at a pre-trial hearing and did not object to the evidence at trial. 

Finally, trial counsel was not constitutionally deficient in failing to 

object at trial to the photographic lineup shown to Varner; by failing 

to object to the photograph of Lewis shown to Aziz; or by failing to 

make a meritless objection about the prosecutor’s closing argument. 

We therefore affirm. 

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 

 2 In his opening statement, the prosecutor said that Paul Sadeghy was 

out of the country at the time of trial. Paul did not testify at trial. 
4

Varner testified that she went into the convenience store, where she 

saw Paul arguing with someone. Varner added that she did not 

know who he was arguing with, but when asked whether she had 

previously told a detective that Paul was arguing with a person she 

knew as “Weasel,” Varner said, “Yes. I think so.” Shortly thereafter, 

however, she testified that “I ain’t going to say Weasel. Weasy, 

maybe, but not Weasel. Something like that. I think it is Weasy.” 

The prosecutor then asked Varner if she had told a detective that 

she had known “Weasel” all of his life. Varner testified that “that’s 

just a thing that I say. I do drugs a lot, and I just say that just to 

get, you know, what I’m trying to get.” According to Varner, Printup 

came into the store and “started arguing” with the “guy that Paul 

was arguing with.” When asked what happened next, Varner 

testified that “I really can’t remember. I remember seeing this guy 

that was going out the store, and I hugged him, and [said] I hadn’t 

seen you in a long time.” Varner added that the “guy” was “Weasel”;

that he was the person that Paul and Printup were arguing with;

that the argument “was all about money with Paul and Weasel”; and 
5

that “[a]fter that, there was a lot of arguing, and me and Paul was 

going towards the car. I heard a lot of shooting.” According to 

Varner, she heard “about three, no more than four shots.” Varner 

added that she and Paul got “in the car with Bobby, and . . . left.” 

Bobby was a friend of Varner’s who arrived at the gas station just 

before the shooting. Varner also testified that she was with Printup 

all day and did not see him with a gun and that, after the shooting, 

Weasel left the gas station in a green car. 

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. 
6

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 KoolAid and Weasy started arguing over Weasy owing KoolAid $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 KoolAid 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 
7

that he was “approximately 5 foot 5, 5 foot 6 in height,” “with a light 

brown complexion,” and “a tattoo somewhere on his face.”

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. 

 3 At trial, Aziz testified that he was in the back of the store at the time 

of the crimes, and he offered no testimony about the argument that Lewis had 

with Paul and Printup or about the shooting. 
8

Although no witness at trial identified the people shown in it, the 

video depicted an altercation that corresponded to the altercation 

Varner described in her trial testimony and prior statements to 

detectives, culminating with a man who was wearing a white t-shirt 

shooting another man by a car parked near a gas pump. A 

responding police officer testified that he found four shell casings by 

the gas pump where the shooting occurred. 

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.” 
9

Printup suffered a gunshot wound to the abdomen, which 

caused multiple injuries to his abdominal cavity, including injuries 

to his intestines and pancreas. After a seven-month hospitalization, 

Printup eventually went into septic shock and died. A treating 

physician testified that Printup would not have died had he not been 

shot at the gas station. In addition, the medical examiner who

performed Printup’s autopsy testified that the cause of death was 

“delayed complications of [a] gunshot wound to the torso.” 

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 
10

evidence” as a matter of constitutional due process, “we view all of 

the evidence presented at trial in the light most favorable to the 

verdict[s] and ask whether any rational trier of fact could have found 

the defendant guilty beyond a reasonable doubt of the crimes of 

which he was convicted.” Jones v. State, 304 Ga. 594, 598 (820 SE2d 

696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 

2781, 61 LE2d 560) (1979)). “We leave to the jury the resolution of 

conflicts or inconsistencies in the evidence, credibility of witnesses, 

and reasonable inferences to be derived from the facts,” Smith v. 

State, 308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not “reweigh 

the evidence,” Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) (2019) 

(citation and punctuation omitted).4

 4 We note that we initially returned the entire record in this case to the 

trial court because two exhibits—the surveillance video and the recording of 

Lewis’s phone call from the jail—did not properly function and were thus 

unreviewable. The trial court later re-filed the record with this Court again, 

with the two exhibits submitted in a condition that allowed them to be 

reviewed. Lewis contends that we may not consider these exhibits in 

determining the sufficiency of the evidence because the chain of custody of the 

exhibits was “compromised.” But Lewis does not contend that the two exhibits 

have been modified or are somehow incorrect or inaccurate. And if he thought 

that they were, he could have sought to remedy the problem in the trial court, 

but did not do so. See OCGA § 5-6-41 (“If anything material to either party is 
11

We conclude that there is ample evidence from which the jury 

could have “found [Lewis] guilty beyond a reasonable doubt of the 

crimes of which he was convicted.” Jones, 304 Ga. at 598. To begin, 

there was evidence, including statements from Varner, Aziz, and 

Lewis, from which the jury could infer that the person that Varner 

and Aziz referred to as “Weasel” or “Weasy” was Lewis. Moreover, 

Varner testified that the person she knew as Weasel was arguing 

with Paul and Printup at the gas station before Printup’s shooting 

and later identified a photograph of Lewis as the “person who 

committed the crime.” Varner also testified that she has known 

“Weasy” for a long time and hugged him when she saw him in the 

gas station parking lot. And in both Varner’s written and 

videotaped statements, she said that she observed the shooting and 

that “Weasy” or “Weasel” was the shooter. Furthermore, the jury 

 

omitted from the record on appeal or is misstated therein, the parties by 

stipulation, or the trial court, either before or after the record is transmitted to 

the appellate court, on a proper suggestion or of its own initiative, may direct 

that the omission or misstatement shall be corrected.”). Accordingly, we 

ascertain no reason we cannot consider the two exhibits in question as part of 

the record on appeal in evaluating the sufficiency of the evidence. 
12

heard a recording of a phone call Lewis made from jail where he 

expressed concern about whether law enforcement had a “tape” of 

the shooting. Finally, the CAD report matched Varner’s physical 

description of Lewis, whom she identified as the shooter, and the 

surveillance video supports Varner’s story of how the crimes 

occurred that night. 

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

 5 Contending that the “verdict in this case is contrary to evidence and 

the ends of justice,” Lewis also asks this Court to act as the “thirteenth juror” 
13

3. Lewis contends that the trial court committed reversible 

error when it failed to grant Lewis’s motion to suppress evidence 

that Varner identified a photograph of Lewis from a photographic 

lineup as the person she knew as Weasel because the lineup was 

unduly suggestive and because Varner admitted that she was under 

the influence of drugs at the time of the identification. Lewis’s 

contentions fail.

(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 

 

and, presumably, to grant him a new trial. But a “thirteenth juror” argument 

is “not properly addressed to this Court as such a decision is one that is solely 

within the discretion of the trial court.” Smith v. State, 300 Ga. 532, 534 (796 

SE2d 671) (2017).
14

so, he told Varner that the group of photographs may or may not 

include a photo of the person who had shot Printup and that she 

“should only make an identification if you can do so.” The detective 

also informed Varner that because “hairstyles, beards, and 

mustaches are easily changed, the photographs you are viewing may 

or may not depict the hairstyle or facial hair similar to that of the 

person who committed the crime”; that “photographs do not always 

depict the true complexion of a person,” which “may be lighter or 

darker than shown”; and that she should “[p]ay no attention to 

markings or numbers appearing in any particular photograph.” 

After finishing the admonition, Detective Cooper placed the lineup 

face-down in front of Varner and told her to turn the lineup over 

when she was ready. Cooper testified that “within 3 seconds at the 

most,” Varner identified the photo of Lewis as depicting the person 

that she knew as Weasel and also commented that the men in the 

lineup “looked so much alike.” Detective Cooper testified that he 

thought that Varner was certain of her identification and that she 

never repudiated it. 
15

On cross-examination at the pre-trial hearing, Lewis asked 

Detective Cooper if he knew whether Varner was a crack addict and 

whether Varner appeared “to be under the influence” at the time of 

the identification. Detective Cooper testified that he did not have 

information that Varner was a crack addict and that she did not 

appear to be under the influence when she identified Lewis’s picture 

from the photographic lineup. Detective Cooper added that he “was 

a homicide detective for 10 years, interviewed countless people, both 

under the influence of crack [and] narcotics”; that he had made 

“conscious decision[s] . . . not to interview someone because I do feel 

like they are under the influence of something”; and that based on 

his “experience and knowledge,” he “did not feel that [Varner] was 

under the influence of anything at the time that [he] conducted the 

interview.” 

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 
16

that he copied the photographic lineup in black and white, so that 

he could control the “lightness, the darkness, [and] the contrast,” 

especially because “several of the people [in the lineup] ha[d] 

inflections or dark spots in their photographs.” He continued by 

explaining, “That’s why this, this photograph, you cannot visually 

tell what that is on [Lewis’s] face.” Defense counsel then said, “I’m 

going to put it to you that if you look at the photograph, there is a 

visible tattoo of a cross below the left eye of Mr. Lewis?” Detective

Cooper responded that after looking at the photograph several 

times, he could not tell that Lewis had a tattoo, and agreed that no 

one else in the lineup had a tattoo on his face. 

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
17

was the only one of the six in the lineup in which the man in the 

photograph had a tattoo on his face and that there was a substantial 

likelihood of misidentification because Varner was high at the time 

she made the identification. The trial judge, however, explained,

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. 
18

(b) “If an out-of-court identification by a witness is so 

impermissibly suggestive that it could result in a substantial 

likelihood of misidentification, evidence of that out-of-court 

identification violates due process and is inadmissible at trial.” 

Westbrook v. State, 308 Ga. 92, 99 (839 SE2d 620) (2020) (citation 

and punctuation omitted). “This Court employs a two-step process 

in examining a trial court’s admission of identification evidence for 

error.” Bowen v. State, 299 Ga. 875, 879 (792 SE2d 691) (2016). 

First, we decide “whether the identification procedure used was 

impermissibly suggestive.” Id. “[A]n identification procedure is not 

impermissibly suggestive unless it leads the witness to the virtually 

inevitable identification of the defendant as the perpetrator, and is 

the equivalent of the authorities telling the witness, ‘This is our 

suspect.’” Westbrook, 308 Ga. at 99 (citation and punctuation 

omitted). Second, if a trial court properly “concludes that the State 

employed an impermissibly suggestive pretrial identification 

procedure, the issue becomes whether, considering the totality of the 

circumstances, there was a substantial likelihood of irreparable 
19

misidentification.” Curry v. State, 305 Ga. 73, 76 (823 SE2d 758) 

(2019) (citation and punctuation omitted). If, however, a trial court 

properly determines that “the identification procedure is not unduly 

suggestive, it is not necessary to consider whether there was a 

substantial likelihood of irreparable misidentification.” Westbrook, 

308 Ga. at 99 (citation and punctuation omitted). “We review a trial 

court’s determination that a lineup was not impermissibly 

suggestive for an abuse of discretion.” Id. 

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 
20

court concluded that it could not tell that there was a visible tattoo 

on Lewis’s face, noting in reference to the photograph that “I can’t 

tell. He has got something over here, but it could be a shadow.” 

Moreover, the black-and-white photo lineup contained in the record

on appeal does not contradict the trial court’s finding on this point.6 

In fact, it shows that the photographs in the lineup at issue consist 

of Lewis and five other males of similar age, race, hairstyles, and 

facial features. And on this point, the record further shows that 

Detective Cooper read the standard admonitions to Varner, telling 

her, among other things, that she “should only make an 

 6 In Newton v. State, 308 Ga. 863 (843 SE2d 857) (2020), in rejecting the 

defendant’s claim that his photographic array was impermissibly suggestive, 

we noted that “[a]n appellant has the burden of proving trial court error by the 

appellate record,” id. at 866 n.3, and said that “[t]he photographic array 

produced along with the record on appeal is a black-and-white copy (and not a 

good one) of the actual color array used for the lineup, so it is difficult for us to 

discern anyone’s facial tattoos or skin tone.” Similarly, here, the photographic

lineup in the record is a not-so-good black-and-white copy of a black-and-white 

copy, making it difficult for us to determine if Lewis has a visible tattoo in the 

photograph used in the array. But given that it was Lewis’s burden to prove 

trial court error using the appellate record, and given the trial court’s express 

finding that it “couldn’t tell” from the photographic lineup presented at trial 

whether Lewis had a tattoo on his face in the photo, we cannot say that the 

trial court was clearly erroneous on this point. Tidwell v. State, 312 Ga. 459, 

464 (863 SE2d 127) (2021) (explaining that a trial court’s factual findings on a 

motion to suppress must be upheld unless clearly erroneous). 
21

identification if you can do so,” “that photographs do not always 

depict the true complexion of a person,” which “may be lighter or 

darker than shown,” and that she should “[p]ay no attention to 

markings or numbers appearing in any particular photograph.” 

Under similar circumstances, we have held that trial courts have 

not abused their discretion in denying motions to suppress 

identifications from photo lineups. See Westbrook, 308 Ga. at 99 

(holding that the trial court did not abuse its discretion in denying 

a motion to suppress the defendant’s identification by way of a 

photographic lineup, in part, because the lineup consisted “of six 

black males with similar hairstyles, with several of the males having 

a skin tone similar to [the defendant’s] and all of the males having 

similar, short facial hair” and because the police officer gave the 

witness making the identification an admonition like that given by 

Detective Cooper in this case); Blackmon v. State, 300 Ga. 35, 38 

(793 SE2d 69) (2016) (holding that an array consisting of 

“photographs of [the defendant] and five other males of similar age 

and with similar physical characteristics and facial features” was 
22

not impermissibly suggestive).

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 

 7 Lewis notes that Varner testified that she was “high” at the time she 

made the identification of Lewis, and Lewis appears to contend—as he did at 

the hearing on the motion to suppress—that this factor is relevant to the issue 

of whether an impermissibly suggestive identification would have led to a 

substantial likelihood of misidentification. See Blackmon, 300 Ga. at 37 

(holding that whether a witness was under the influence of intoxicants when 

making an identification “does not establish that the identification procedure 

was impermissibly suggestive,” but instead “relates to the determination of 

whether there was a substantial likelihood of misidentification, an issue that 

arises only after a court determines the identification procedure was 

impermissibly suggestive”). However, because we need not reach the issue of

whether there was a substantial likelihood of misidentification in this case, we 

also need not address Lewis’s contention about Varner’s use of potential 

intoxicants.
23

to suppress hearing. We disagree that the trial court abused its 

discretion by failing to grant a mistrial. 

(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 
24

did not want to be involved in it, but he would, if I showed him 

photos of the person, he would tell me if I had the correct person.” 

Investigator Conner added that he did not obtain a written 

statement from Aziz because Aziz “didn’t want to be involved in it,” 

but that Aziz told him that he saw what happened on the night of 

the crimes and that Weasel “was the person who shot Mr. Printup.” 

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 
25

(i.e., Investigator Conner showing Aziz a single photograph of Lewis) 

would not have led to substantial likelihood of misidentification 

because Aziz had “the opportunity to view the criminal at the time.” 

The trial court interjected that, “[w]ell, he said he didn’t see it. He 

said he was in the back.” The prosecutor responded that he 

“understood what [Aziz] said today” on the witness stand, but that 

“20 minutes ago he told my investigator and I something completely 

different.” The trial court asked the prosecutor if Aziz had told the 

investigator he had “witnessed the crime.” The prosecutor said, “no, 

and I wouldn’t ask that. I’m not asking—I wouldn’t ask at trial if he 

saw the shooting. What he said was the person who I picked out in 

that picture was there the night of the shooting.” Later in the 

hearing the prosecutor again said that he was not going to ask Aziz 

whether he saw the shooting because “the officer clearly didn’t put 

that in his report.” The trial court then said, 

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 
26

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:
27

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 
28

prosecutor then continued questioning Investigator Conner, who 

testified that he showed Aziz three individual photographs over the 

course of three meetings, and that Aziz identified the third 

photograph—one of Lewis—as being Weasel.

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.
29

(b) Lewis contends that the trial court erred in denying his 

motion for mistrial. We disagree. 

“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 
30

Investigator Conner’s testimony immediately after it was given and 

asked the jurors to raise their hands if they felt that they could not 

follow that instruction. None of the jurors did so. Under these 

circumstances, we conclude that the trial court did not abuse its 

discretion in denying Lewis’s motion for mistrial. See Martin v. 

State, 310 Ga. 658, 662 (852 SE2d 834) (2020) (holding that the trial 

court did not abuse its discretion in denying a motion for mistrial 

where, among other things, the trial court promptly gave a curative 

instruction and asked the jurors if they understood the instruction 

and the jurors responded that they did); Lee v. State, 306 Ga. 663, 

669 (832 SE2d 851) (2019) (“[A] trial court acts within its discretion 

when it provides adequate curative instructions to the jury to cure 

any prejudice stemming from the introduction of improper 

evidence.”); Coleman v. State, 301 Ga. 720, 722 (804 SE2d 24) (2017) 

(holding that the trial court did not err in declining to grant a 

mistrial, in part, because the court promptly gave a curative 

instruction “telling the jurors that the informant’s testimony was 

inadmissible” and that they should “disregard that evidence in its 
31

entirety” and because we “ordinarily presume that a jury follows 

such instructions”). 

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, 
32

he has not preserved this issue for appellate review”). 

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 
33

meet his or her burden of proving either prong of the Strickland test, 

the reviewing court does not have to examine the other prong.” 

Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).

(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 

 8 Our old Evidence Code is applicable to this case because it was tried 

before January 1, 2013. We note that our current Evidence Code provides that 

“[o]nce the court makes a definitive ruling on the record admitting or excluding 

any evidence, either at or before trial, a party need not renew an objection or 

offer of proof to preserve such claim of error for appeal.” OCGA § 24-1-103 (a).
34

preserved the issue for appeal. Moreover, as explained above in 

Division 3, Lewis’s claim that the lineup Detective Cooper showed 

to Varner was impermissibly suggestive is without merit. 

Accordingly, even if Lewis’s trial counsel had failed to preserve this 

issue, his claim that she was constitutionally deficient for failing to 

do so would likewise fail. See, e.g., Reeves v. State, 309 Ga. 645, 649 

(847 SE2d 551) (2020) (holding that because we had held that the 

defendant’s claim that he had a right to be present at bench 

conferences was without merit, “it follow[ed] that [the defendant 

could not] show that his trial counsel performed deficiently by failing 

to assert that right”); Stroud v. State, 301 Ga. 807, 813 (804 SE2d 

418) (2017) (holding that because we had concluded that there was 

no error in the trial court’s admission of certain evidence, trial 

counsel did not perform “deficiently in failing to challenge the court’s 

ruling regarding its admissibility”). 

(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 
35

deficiency caused him to suffer prejudice under Strickland. As we 

explained in Division 5, trial counsel filed a pre-trial motion to 

suppress Aziz’s identification of Lewis on the ground that the showup was impermissibly suggestive and raised a substantial likelihood 

of misidentification. However, counsel did not obtain a ruling on 

that motion and did not object to the identification at trial. Lewis 

has failed to show that an objection to the identification evidence 

would have been successful, so his claim of ineffective assistance of 

counsel fails. Specifically, Lewis has failed to show that, even if the 

show-up was impermissibly suggestive, there was a substantial 

likelihood of irreparable misidentification. See Pearson v. State, 311 

Ga. 26, 29 (855 SE2d 606) (2021) (explaining that “evidence of an 

identification made during such a show[-]up is inadmissible only if 

the show[-]up procedure was impermissibly suggestive and there 

was a substantial likelihood of irreparable misidentification,” and 

that there is therefore no need to decide whether a show-up is 

impermissibly suggestive if there was no substantial likelihood of 

irreparable misidentification) (emphasis in original). 
36

We consider several factors in evaluating the likelihood of 

irreparable misidentification, including:

(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 
37

male” with tattoos on his face and neck was consistent with the 

description Varner provided to detectives and with that contained in 

the CAD report from the night of Printup’s shooting. In addition, 

Aziz told Investigator Connor that the man he knew as Weasel was 

at the gas station on the night of the crimes; he quickly rejected 

photographs of three men other than Lewis as being Weasel; and he 

quickly said, when shown a photograph of Lewis, that the person in 

the photograph was the person he knew as Weasel. Under the 

totality of these circumstances, we conclude that Investigator 

Connor’s presentation of a single photograph to Aziz did not create 

a substantial likelihood of misidentification. See Newton, 308 Ga. 

at 867 (holding that the statement of a witness that he had known 

the defendant for two years and saw and spoke with him at the crime 

scene made it “highly unlikely that the photographic array caused 

[the witness] to misidentify the suspect”); Pruitt v. State, 270 Ga. 

745, 751-752 (514 SE2d 639) (1999) (holding that there was no 

substantial likelihood of misidentification because, among other 

things, the witness testified that she recognized the defendant as a 
38

regular customer at her store). And because Lewis has “failed to 

show that an objection to the identification[] would have been 

successful, [he] has failed to establish deficient performance by his 

trial counsel for not securing a ruling” on the identification issue. 

Pearson, 311 Ga. at 31 (citation and punctuation omitted). 

(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 
39

meritless objection cannot be considered deficient or prejudicial.”) 

(citation and punctuation omitted). 

Judgment affirmed. All the Justices concur.