In the Supreme Court of Georgia


                                                     Decided: September 22, 2014


                      S14A0853. WIGGINS v. THE STATE.

       HINES, Presiding Justice.

       Calvin Wiggins appeals the denial of his motion for new trial, as amended,

and his convictions for felony murder while in the commission of aggravated

assault and possession of a firearm during the commission of a felony in

connection with the fatal shooting of Mahdi Thomas. Wiggins challenges the

admission into evidence of statements by the victim as dying declarations and

the effectiveness of his trial counsel. Finding the challenges to be without merit,

we affirm.1

       The evidence construed in favor of the verdicts showed the following.

On September 22, 2007, Wiggins, who was known as “Weedi,” and Thomas

       1
         The crimes occurred on September 22, 2007. On December 28, 2007, a Fulton County
grand jury returned an indictment against Wiggins charging him with malice murder, felony murder
while in the commission of aggravated assault, aggravated assault with a deadly weapon, and
possession of a firearm during the commission of a felony. Wiggins was tried before a jury
September 20- 24, 2010, and acquitted of malice murder but found guilty of the remaining charges.
On September 30, 2010, he was sentenced to life in prison for the felony murder and a consecutive
five years in prison for the firearm possession; the aggravated assault with a deadly weapon merged
for the purpose of sentencing. A motion for new trial was filed on October 25, 2010, amended on
July 6, 2012, and denied on March 13, 2013. A notice of appeal to the Court of Appeals was filed
on April 11, 2013, and the appeal was transferred to this Court. The case was docketed in this
Court’s 2014 April Term, and the appeal was submitted for decision on the briefs.
robbed a local drug dealer at gunpoint, taking up to five pounds of marijuana

and $7,000 in cash. Thomas left taking the marijuana and money with him,

while Wiggins stayed behind, keeping a handgun on the drug dealer. After a

few minutes, Wiggins left, taking the drug dealer’s cell phone and car.

      That evening Thomas was to meet Wiggins at a gas station in Fulton

County. Wiggins was not happy with his share of the proceeds from the armed

robbery. At approximately 10:00 p.m., Thomas was in the driver’s seat of his

vehicle, which was stopped at one of the station’s gas pumps. Wiggins and

another man were in the vehicle with Thomas; Wiggins was sitting in the front

passenger seat next to Thomas, and the other man had gotten into the back seat

of Thomas’s car after exiting a car parked nearby. The front seat passenger shot

Thomas, exited the vehicle, and again fired the handgun he was wielding at the

then fleeing Thomas. The back seat passenger moved from the rear of Thomas’s

car and rummaged through the front seat area, emerging with the stolen

marijuana and cash. The shooter and the back seat passenger entered the car

parked nearby and “peeled off” toward the highway.

      Thomas sustained severe injuries from multiple gunshot wounds, and was

transported to a hospital where he died following three surgical procedures in


                                       2
an attempt to save his life.

       1. Shortly after the first surgery, Thomas made two non-verbal statements

- one to his brother and another to his wife- indicating that it was Wiggins who

shot him.2 Wiggins contends that the trial court erred in admitting evidence of

the statements as an exception to hearsay testimony as the victim’s dying

declarations because the victim was not in the “article of death” at the time such

statements were made.

       Certainly, in order for a statement to be admissible as a dying declaration

under former OCGA § 24-3-6,3 the deceased must have been conscious of his

condition; however, “it need only appear to the court from the circumstances of

the case that there was a probability that the deceased was conscious of his



       2
        Thomas’s brother visited Thomas around 5:00 a.m. on September 23, 2007, and asked
Thomas whether it was “Weedi” who shot him. Thomas could not speak because of the tubes in his
mouth, but responded affirmatively by nodding his head. The brother then telephoned Thomas’s
wife and told her about the question and Thomas’s response. Later that morning, between 8:00 a.m.
and 9:00 a.m., Thomas’s wife visited him. She first asked Thomas several questions to determine
if he was coherent. She also observed that his eyes were normal, not dilated. In addition, Thomas’s
wife asked him to pray and ask God to forgive him for his sins. Thomas nodded his head. His wife
then asked him, “Did Weedi shoot you?” Thomas nodded his head, “yes.”

       3
           Former OCGA § 24–3–6 provided:

                Declarations by any person in the article of death, who is conscious of his condition,
                as to the cause of his death and the person who killed him, shall be admissible in
                evidence in a prosecution for the homicide.

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condition at the time he made the statement.” Sanford v. State, 287 Ga. 351, 353

(2) (695 SE2d 579) (2010). The testimony which is introduced as a dying

declaration does not have to contain any statement by the deceased to the effect

that he is conscious of his impending death at the time the declaration is made;

this may be inferred from the nature of the wounds and other circumstances. Id.

      The circumstances in this case demonstrate that Thomas was conscious of

his dire condition at the time he made the non-verbal statements inculpating

Wiggins as the shooter: Thomas prayed with his wife for forgiveness; Thomas’s

intestines were shot like “swiss cheese”; he had a hole in his diaphragm; he had

a gunshot wound that went through his liver; he had an injury to the vessel that

drained his left kidney, causing it to die; he had holes in his colon and stomach;

the first operation ended prematurely around 2:20 a.m. on September 23, 2007

because Thomas became very ill; his stomach was left open and his intestines

were visible through clear plastic tape; he was tied to the bed and had a chest

tube in place; although Thomas was on medication for pain, he was awake and

alert after the first operation; and his mental status was evaluated as “11T,”

meaning he was following commands and able to make motions. However, after

a second operation on September 24, 2007, Thomas developed a serious


                                        4
infection that caused him to “swell up like a balloon”; his exposed intestines

turned from pink to jet black. By the next day, September 25, 2007, Thomas was

not responsive and had to breathe with the aid of a breathing machine. He died

on September 26, 2007 due to multi-organ failure caused by the gunshot wounds

to his chest and abdomen that led to sepsis.

      These circumstances made a prima facie showing for the admission of the

subject statements as Thomas’s dying declarations. Sanford v. State, 287 Ga.

351, 353 (2) (695 SE2d 579) (2010); Ventura v. State, 284 Ga. 215, 217 (2) (663

SE2d 149) (2008).

      2. Wiggins contends that his trial counsel rendered ineffective assistance

for not objecting to or having the State redact certain portions of his custodial

interrogation on the basis that it was inadmissible hearsay in violation of the

Sixth Amendment’s Confrontation Clause. However, in order to prevail on such

a claim, Wiggins must show both that his counsel performed deficiently and

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

his trial would have been more favorable. Strickland v. Washington, 466 U.S.

668 (104 SCt 2052, 80 LE2d 674) (1984). While the test imposed by Strickland

is not impossible to meet, the burden is a heavy one. Mosley v. State, 295 Ga.


                                         5
123, 124 (2) (757 SE2d 828) (2014). What is more, this Court need not

determine whether trial counsel's performance was deficient prior to examining

whether there was the required prejudice suffered by the defendant resulting

from the alleged deficient performance inasmuch as grading counsel’s

performance is not the object of an ineffectiveness claim. Id. Indeed, if it is

expedient to dispose of an ineffectiveness claim on the basis of lack of sufficient

prejudice, which is often the situation, that course should be followed. Id. This

ineffectiveness challenge is such a case.

      During trial, a redacted version of Wiggins’s videotaped interview with

the East Point police and a transcript of the interview were admitted into

evidence, and the recorded interview was played for the jury. The redacted

version of the interview contained statements by the interviewing police officers

to the effect that numerous unnamed individuals had called and named Wiggins

as Thomas’s killer. Wiggins argues that his trial counsel was deficient in not

objecting to the statements about anonymous callers as inadmissible hearsay,

and that their exclusion would have changed the outcome at trial because he was

subjected to trial based on rumors, the evidence bolstered the inculpatory

testimony of Thomas’s brother and wife, and the only other evidence


                                         6
implicating him was the testimony of an eyewitness, who was never shown a

photo lineup to identify Wiggins as the shooter.

      However, Wiggins ignores his own inculpatory statements about having

robbed a drug dealer, and being at the murder scene and in the front seat of the

victim’s car, which was the position seen occupied by the shooter. Wiggins’s

own statements coupled with the eyewitness account of the fatal shooting, the

forensic evidence, and the death bed declarations of the victim naming Wiggins

as his killer, constituted overwhelming evidence of Wiggins’s guilt, thereby

belying any claim of the reasonable probability that the outcome of Wiggins’s

trial would have been more favorable had trial counsel attempted to exclude the

statements at issue. See Lambert v. State, 287 Ga. 774, 777 (2) (700 SE2d 354)

(2010).

      3. Although insufficiency of the evidence of Wiggins’s guilt is not

specifically enumerated as error, this Court has undertaken a review of the

evidence, and finds that it is sufficient to enable a rational trier of fact to find

Wiggins guilty beyond a reasonable doubt of the crimes of which he was

convicted. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560)

(1979).

      Judgments affirmed. All the Justices concur.
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