In the Supreme Court of Georgia



                                            Decided: September 22, 2014


                   S14A1096. WINGSTER v. THE STATE


      MELTON, Justice.

      Following a jury trial, Marquis Wingster was found guilty of malice

murder, felony murder, and various other offenses in connection with the

shooting death of Mark Boston.1 On appeal Wingster contends, among other

things, that the evidence presented at trial was insufficient to support the verdict

      1
        On April 11, 2008, Wingster was indicted for malice murder, two counts
of felony murder (predicated on aggravated assault and possession of a firearm
by a convicted felon), aggravated assault, possession of a firearm during the
commission of a felony, and possession of a firearm by a convicted felon.
Following a December 15 - 21, 2009 jury trial, Wingster was found guilty on all
charges. On December 21, 2009, the trial court sentenced Wingster to life
imprisonment for malice murder and five consecutive years for possession of a
firearm during the commission of a felony. The felony murder convictions were
vacated by operation of law (see Malcolm v. State, 263 Ga. 369 (4) (434 SE2d
479) (1993)), and the remaining charges of aggravated assault and possession
of a firearm by a convicted felon were merged for sentencing purposes. That
same day, Wingster filed a motion for new trial, which he amended on June 30,
2010, August 19, 2011, and February 16, 2012. The trial court denied the
motion on August 13, 2013. Following the payment of costs, Wingster’s timely
appeal was docketed in this Court for the April 2014 Term and submitted for
decision on the briefs.
and that his trial counsel was ineffective. We affirm.

      1. Viewed in the light most favorable to the jury’s verdict, the evidence

reveals that, at around 9:00pm on November 24, 2007, Wingster, a convicted

felon, was standing in a gas station convenience store. Shortly after receiving

a phone call, Wingster exited the store, walked up to Boston (who was sitting

in a truck), and shot him in front of several witnesses – two of whom knew

Wingster personally. Boston suffered gunshot wounds to the head and chest, and

died from his injuries.

      This evidence was sufficient to enable a rational trier of fact to find

Wingster guilty of all of the crimes of which he was convicted beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d

560) (1979).

      2. Wingster contends that the trial court erred by denying his motion to

strike Juror Number 19 for cause. “The decision to strike a potential juror for

cause lies within the sound discretion of the trial court and will not be set aside

absent some manifest abuse of that discretion.” (Citation omitted.) Abdullah v.

State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008). There is no such manifest

abuse of discretion regarding a decision not to strike a juror

                                        2
      unless it is shown that the juror’s opinion is so fixed and definite
      that he or she will be unable to set the opinion aside and decide the
      case based upon the evidence and the trial court's instructions.
      Neither a prospective juror’s doubts as to his ability to be impartial
      nor his statement that he will try to set aside any preconceived
      notions mandate as a matter of law that the juror be excused for
      cause.

(Punctuation and footnotes omitted.) Miller v. State, 275 Ga. 730, 736 (5) (571

SE2d 788) (2002).

      Here, Juror 19 stated that, although she was “really against guns,” she

would “do [her] best” to give the defendant a fair trial by deciding the case

based upon the evidence presented. Also, even though Juror 19 further admitted

that her beliefs about guns could lead her to think negatively about someone

who owned a gun, she stated that she would try her “hardest” to set aside any

bias that she may have because it was “[her] duty as a citizen.” Under these

circumstances, it cannot be said that the trial court abused its discretion in

denying Wingster’s motion to strike the prospective juror for cause. The

prospective juror’s self doubts did not “mandate as a matter of law that the juror

be excused for cause” (id.) and “[n]othing in the juror's responses compel[led]

a finding that she had formed an opinion of [Wingster’s] guilt or innocence that

was so fixed and definite that she would be unable to set the opinion aside, or

                                        3
that she would be unable to decide the case based upon the court’s charge and

upon the evidence.” Corza v. State, 273 Ga. 164, 167 (3) (539 SE2d 149)

(2000).

      3. Wingster argues that the trial court erred by overruling his objections

to portions of the State’s closing argument. Specifically, he claims that the State

improperly argued facts that were not in evidence when it stated that Wingster

had previously called Boston on the telephone before the murder and that a

woman who was with Boston at the time of the shooting “might [have been] a

hooker.” However, Wingster’s arguments are belied by the record. Telephone

records introduced at trial revealed that Wingster had called Boston the day

before the murder. Furthermore, a detective testified at trial that, during his

interview with Wingster, Wingster revealed that the woman who was with

Boston at the time of the shooting could have been a prostitute. We find no

error. See, e.g. Robinson v. State, 257 Ga. 194 (4) (357 SE2d 74) (1987).

      4. Wingster claims that his trial counsel was ineffective for (a) failing to

object to Natasha Bell’s testimony relating to the photographic lineup evidence

of State’s Exhibits Eleven and Eleven -A, (b) failing to move to suppress and

object to the testimony of Jerrell Smith relating to the photographic lineup

                                        4
evidence of State’s Exhibit Seventeen and (c) failing to move to suppress

Wingster’s involuntary custodial statements.

      In order to succeed on his claim of ineffective assistance, [Wingster] must
      prove both that his trial counsel’s performance was deficient and that
      there is a reasonable probability that the trial result would have been
      different if not for the deficient performance. Strickland v. Washington,
      466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails
      to meet his or her burden of proving either prong of the Strickland test,
      the reviewing court does not have to examine the other prong. Id. at 697
      (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing
      the trial court's decision, “‘[w]e accept the trial court's factual findings and
      credibility determinations unless clearly erroneous, but we independently
      apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga.
      75, 76 (586 SE2d 313) (2003).

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Furthermore,

“[w]hen trial counsel’s failure to file a motion to suppress is the basis for a claim

of ineffective assistance, the defendant must make a strong showing that the

damaging evidence would have been suppressed had counsel made the motion.”

(Citation and punctuation omitted.) Biggs v. State, 281 Ga. 627, 631-632 (4) (b)

(642 SE2d 74) (2007).

      (a) Wingster’s claims to the contrary notwithstanding, the record reveals

that the identification process with respect to Natasha Bell’s identification of

Wingster was not unduly suggestive. In this regard,


                                          5
      [a]n unduly suggestive procedure is one which leads the witness to the
      virtually inevitable identification of the defendant as the perpetrator, and
      is equivalent to the authorities telling the witness, 'This is our suspect.'
      Where the identification procedure is not unduly suggestive, it is not
      necessary to consider whether there was a substantial likelihood of
      irreparable misidentification.

(Citations and punctuation omitted.) Williams v. State, 286 Ga. 884, 888 (4) (b)

(692 SE2d 374) (2010).

      Here, the record reveals that the police did not suggest in any way that

Bell needed to choose any particular person from the lineup as the shooter. Nor

was the composition of the photographic lineup itself designed to suggest that

Bell should pick a particular person, as it featured six African-American males

of similar appearance. Bell also testified that she picked Wingster out of the

lineup with no aid from police. Because Wingster has not shown that the

photographic lineup identification of him would have been inadmissible had his

counsel challenged it, his claim of ineffective assistance fails. See Williams v.

State, 290 Ga. 533 (2) (a) (722 SE2d 847) (2012).

      (b) Contrary to Wingster’s assertion, the record reveals that his counsel

did in fact file a motion to suppress Jerrell Smith’s testimony relating to State’s

Exhibit 17. This contention of ineffective assistance is therefore without merit.


                                         6
See Ford v. State, 290 Ga. 45, 47 n.5 (5) (717 SE2d 464) (2011).

      (c) The record reveals that, before Wingster was interviewed by police,

he signed a voluntary waiver of his right to an attorney after being read his

Miranda rights. Then, for the first time at the motion for new trial hearing, he

claimed that he had invoked his right to an attorney at the time that he was

interviewed by the police, but that the police nevertheless continued to question

him. However, there is no evidence of record that Wingster ever informed his

trial counsel that he had allegedly invoked his right to an attorney before being

interviewed by police, as Wingster did not testify that he ever informed his

attorney of this. Nor did Wingster question his trial counsel at the motion for

new trial hearing about whether he was ever informed about Wingster’s alleged

invocation of his right to an attorney before his custodial interrogation. In this

regard, Wingster cannot satisfy his burden of showing deficient performance on

the part of his trial counsel. Indeed, trial counsel cannot possibly have

performed deficiently by failing to act on information that Wingster has not

shown that he ever provided to him. See Lewis v. State, 294 Ga. 526 (755 SE2d

156) (2014).

      Judgment affirmed. All the Justices concur.

                                        7
