Fraser v. State

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In the Supreme Court of Georgia



                                                   Decided: September 16, 2025


                        S25A0856. FRASER v. THE STATE.


        LAND, Justice.

        Appellant Marcus Fraser challenges his convictions for malice

murder and other crimes in connection with the shooting death of

Rodricous Gates, Jr. Fraser contends that his trial counsel rendered

ineffective assistance by failing to stipulate that Fraser was a

convicted felon and by “opening the door” to testimony about

Fraser’s juvenile criminal history. We affirm in part and vacate in

part.1


        1 Gates was killed on August 6, 2017. On January 31, 2018, a Clayton

County grand jury indicted Fraser for malice murder, two counts of felony
murder, two counts of aggravated assault for shooting Gates in the neck and
in the abdomen, and possession of a firearm by a convicted felon based on a
felony conviction for first degree attempted criminal sexual act in the
Westchester County Court in New York. At a trial from February 4 to 7, 2019,
the jury found Fraser guilty of all charges. The trial court sentenced Fraser to
serve life in prison without the possibility of parole for malice murder, a
consecutive term of 20 years in prison for shooting Gates in the abdomen, and
      1. The evidence presented at trial showed the following. Fraser

sold marijuana to Gates on several occasions. On August 6, 2017,

Gates arranged to meet with Fraser to borrow marijuana from him,

promising to pay Fraser back later for the drugs. They agreed to

meet at the apartment complex where Fraser had been living with

his girlfriend, Shantavier Willis. Prior to Gates arriving, Fraser was

in Willis’s apartment with her and two of her friends. To one of

Willis’s friends, Fraser appeared “[a] little edgy[,] ... [j]ust walking

around the apartment[,]” and the friend noticed what he thought

was the handle of a black “semi-auto Smith [& Wesson]” handgun in




a consecutive term of five years for possession of a firearm by a convicted felon.
The felony murder counts were vacated by operation of law and the aggravated
assault count for shooting Gates in the neck merged with the malice murder
count. On March 4, 2019, with the assistance of new counsel, Fraser filed a
motion for new trial, which he amended on December 27, 2019. The trial court
held an evidentiary hearing on December 12, 2022, and entered a one-sentence
order granting Fraser’s motion for new trial on May 1, 2023. On May 11, 2023,
the State filed a motion to reconsider. On June 1, 2023, the trial court entered
an order vacating its May 1 order and denying Fraser’s motion for new trial.
On June 11, 2023, Fraser filed a notice of appeal directed to the Court of
Appeals. Fraser later filed a motion to transfer the case to this Court, which
the Court of Appeals granted on February 27, 2025. See State v. Thornton,
253
Ga. 524, 524
(1984). The case was docketed to this Court’s April 2025 term
and submitted for a decision on the briefs.

                                        2
Fraser’s back pocket. Gates called Fraser when he arrived, and

Fraser told Gates to meet him at one of the buildings in the complex.

     Moments after Fraser left Willis’s apartment, Willis’s friends

heard gunshots from outside, and a neighbor saw Fraser running

with a “black handle in his hand,” which she “assumed ... was a gun.”

Shortly after the gunshots, Fraser ran back into Willis’s apartment

and said “I shot somebody, we have to go.” Fraser, Willis, and

Willis’s friends left the apartment shortly after, and Fraser and

Willis called a rideshare service and went to Fraser’s mother’s

house. Fraser did not call 911.

     After receiving a “person-shot call,” police were dispatched to

the complex, where they found Gates lying dead next to his car. At

the scene, the police recovered eight .45-caliber shell casings that

appeared to be freshly fired and a 9mm pistol containing six live

rounds near a trail of blood drops.

     At trial, the medical examiner who conducted the autopsy on

Gates’s body testified that Gates suffered two gunshot wounds—one

to the right side of his neck and one to the front left side of the

                                  3
abdomen, the latter of which “didn’t play much of a role in the

death[.]”The medical examiner also recovered two bullets from

Gates’s body.

     A GBI firearms examiner testified that the eight .45-caliber

shell casings recovered from the scene were all fired from the same

gun, that the two .45-caliber bullets recovered during Gates’s

autopsy were fired from the same gun, and that both the shell

casings and bullets had characteristics that were consistent with

having been fired from a Smith & Wesson .45-caliber semi-

automatic pistol.

     Fraser, who was a convicted felon, elected to testify in his own

defense at trial. He admitted that he shot Gates but claimed that he

did so in self-defense. Fraser testified that he was unarmed when he

went to meet Gates and that Gates and another man, who were both

armed, attempted to rob Fraser at gunpoint. Fraser claimed that he

wrested the gun away from the other man and started to run away

with the gun. Fraser stated that Gates began to chase him with a

gun in his hand. Fraser then fired shots in the direction of Gates

                                 4
until Gates stopped pursuing him.

     2. Fraser argues that he was denied the effective assistance of

counsel. To establish a claim of ineffective assistance of counsel, a

defendant must prove both deficient performance by his counsel and

resulting prejudice. See Strickland v. Washington,
466 US 668, 687
(1984).

     To prove deficient performance, a defendant must show that

his attorney performed his duties in an objectively unreasonable

way, considering all the circumstances and in the light of prevailing

professional norms. See Strickland, 466 US at 687–88. The law

recognizes   a   “strong   presumption”   that   counsel   performed

reasonably, which the defendant bears the burden of overcoming.
Id.

at 689
.

     Judicial scrutiny of counsel’s performance must be highly
     deferential. It is all too tempting for a defendant to
     second-guess counsel’s assistance after conviction or
     adverse sentence, and it is all too easy for a court,
     examining counsel’s defense after it has proved
     unsuccessful, to conclude that a particular act or omission
     of counsel was unreasonable. A fair assessment of
     attorney performance requires that every effort be made
     to eliminate the distorting effects of hindsight, to

                                 5
     reconstruct the circumstances of counsel’s challenged
     conduct, and to evaluate the conduct from counsel’s
     perspective at the time ... There are countless ways to
     provide effective assistance in any given case. Even the
     best criminal defense attorneys would not defend a
     particular client in the same way.
Id.
(citations omitted). Accord Wells v. State,
295 Ga. 161
, 163–64

(2014). See also Harrington v. Richter,
562 US 86, 105
(2011) (“[T]he

standard for judging counsel’s representation is a most deferential

one. Unlike a later reviewing court, the attorney observed the

relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the

judge.”).

     To overcome the strong presumption of competence, a

defendant must show that no reasonable attorney would have done

what his attorney did or would have failed to do what his attorney

did not do. See Wells,
295 Ga. at 164
. In particular, “decisions

regarding trial tactics and strategy may form the basis for an

ineffectiveness claim only if they were so patently unreasonable that

no competent attorney would have followed such a course.” Id.


                                 6
(citation omitted).

     Even when a defendant has proved that his counsel’s

performance was deficient in this constitutional sense, the

defendant also must prove resulting prejudice to prevail on a claim

of ineffective assistance of counsel. To do so, the defendant must

establish that but for his counsel’s unprofessional errors, there is a

“reasonable probability” that the outcome of the proceeding would

have been different. Strickland,
466 US at 694
. “It is not enough ‘to

show that the errors had some conceivable effect on the outcome of

the proceeding.’” Harrington,
562 US at 104
(quoting Strickland).

Rather, the defendant must demonstrate a “reasonable probability”

of a different result, which is “a probability sufficient to undermine

confidence in the outcome.” Strickland,
466 US at 694
. “If either

Strickland prong is not met, this Court need not examine the other

prong.” Palmer v. State,
303 Ga. 810, 816
(2018).

     In all, the burden of proving a claim of ineffective assistance of

counsel is a heavy one. See Harrington,
562 US at 105
. We conclude

that Fraser’s trial counsel did not render ineffective assistance for

                                  7
the reasons stated below.

     (a) Fraser first argues that trial counsel was ineffective for

failing to stipulate to his felon status. Relying on Ross v. State,
279

Ga. 365
(2005), Fraser argues that, had trial counsel offered to

stipulate to Fraser’s status as a convicted felon, the offer would have

had to be accepted by the trial court. See
279 Ga. at 368
(holding

that when a defendant’s prior conviction is offered solely for the

purpose of proving the defendant’s status as a convicted felon and

“is of the nature likely to inflame the passions of the jury and raise

the risk of a conviction based on improper considerations, ... then it

is an abuse of discretion for the trial court to spurn the defendant’s

offer to stipulate to his prior conviction and admit the evidence to

the jury”). As discussed below, the problem with Fraser’s argument

is that, regardless of whether trial counsel stipulated to Fraser’s

status as a convicted felon, once Fraser decided to testify in his own

defense, the relevance of his prior conviction was not limited merely

to proving his status as a convicted felon on the firearm charge but

included the impeachment of his testimony pursuant to OCGA § 24-

                                  8
6-609.

     During the State’s case-in-chief at trial, it presented State’s

Exhibit 79, a “felony certified conviction ... for the offense of

attempted criminal sexual act in the first degree,” as evidence of

Fraser’s convicted-felon status. Fraser’s trial counsel stated that he

had no objection to the exhibit “[s]ubject to how it’s published.” The

State indicated that it did not intend to publish Exhibit 79 to the

jury, and the trial court admitted the exhibit.

     After the State rested, however, Fraser indicated that he was

going to testify. The State then moved to admit Exhibit 79 for

impeachment purposes under OCGA § 24-6-609. 2 Exhibit 79 showed

a date of conviction of June 10, 2008, and the State represented that

Fraser was released from confinement on April 6, 2016, which

Fraser did not contest. Fraser’s trial counsel objected on the grounds




     2   OCGA § 24-6-609(a)(1) provides, in relevant part, that “[f]or the
purpose of attacking the character for truthfulness of a witness ... evidence
that an accused has been convicted” of a crime punishable by death or
imprisonment in excess of one year “shall be admitted if the court determines
that the probative value of admitting the evidence outweighs its prejudicial
effect to the accused.”
                                     9
that the conviction occurred when Fraser was a juvenile and thus

the evidence would be more prejudicial than probative. The trial

court overruled Fraser’s objection, finding that Fraser was 17 years

old at the time of conviction and therefore not a juvenile; that the

conviction was not substantially similar to the case at trial and did

not present “danger of any prejudice;” that the conviction fell within

the parameters set forth in OCGA § 24-6-609(b)3 because fewer than

10 years had elapsed since Fraser’s release from confinement for the

conviction; and that the conviction had probative value as to Fraser’s

credibility. The trial court therefore “allow[ed] the State to conduct

an impeachment as it relates to State’s [Exhibit] 79.”

      On direct examination, Fraser’s trial counsel asked him about

the circumstances leading to his 2008 conviction. Fraser explained

that while he was in a juvenile group home in New York serving a



      3 OCGA § 24-6-609(b) provides, in relevant part, that “[e]vidence of a

conviction under this Code section shall not be admissible if a period of more
than ten years has elapsed since the date of the conviction or of the release of
the witness from the confinement imposed for such conviction, whichever is the
later date, unless the court determines, in the interests of justice, that the
probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.”
                                      10
sentence for other charges, he received an additional 10 years in

prison because, while “beat[ing] up” a female counselor, he told the

counselor to “suck my d**k.” On cross-examination, the State asked

Fraser whether it was his “testimony that [he] got 10 years in prison

because [he] told somebody suck [his] d**k?” Fraser replied, “yes,

sir.” The State then asked whether Fraser had in fact pleaded guilty

to an “attempt to engage in oral sexual conduct with another person

by forcible compulsion.” Fraser replied that he had. The State also

asked Fraser whether he “decided as a convicted person of criminal

attempt to commit sexual act in the first degree to come from New

York down to Clayton County,” to which Fraser replied, “yes.”

State’s Exhibit 79 was sent out with the jury during deliberations.

     At the hearing on Fraser’s motion for new trial, trial counsel

testified that, notwithstanding any stipulation regarding Fraser’s

felon status, he believed that the State would have been able to

admit Fraser’s 2008 conviction for first-degree attempted criminal

sexual act to impeach him if Fraser testified. Counsel also stated

that Fraser told him that he wanted to testify, that he and Fraser

                                 11
“had extensive discussions about the consequences of [Fraser]

testifying,” and that he was “comfortable” that Fraser understood

the risk of testifying.

     We discern no deficiency in trial counsel’s failure to stipulate

to Fraser’s felon status. As an initial matter, Fraser’s reliance on

Ross is misplaced. In Old Chief v. United States,
519 US 172
, 186–

87 (1997), the United States Supreme Court reaffirmed the general

rule that the State “is entitled to prove its case by evidence of its

own choice, or, more exactly, that a criminal defendant may not

stipulate or admit his way out of the full evidentiary force of the case

as the Government chooses to present it.” However, the Old Chief

Court recognized an exception to that general rule, holding that

“when the name or nature of the prior offense raises the risk of a

verdict tainted by improper considerations, and when the purpose of

the evidence is solely to prove the element of prior conviction, a trial

court abuses its discretion under [Federal Rule of Evidence] 403 by

spurning the defendant’s offer to stipulate and instead admitting the

evidence of the earlier conviction.” Bentley v. State,
307 Ga. 1
, 6–7

                                  12
(2019) (citing Old Chief,
519 US at 174
). Accordingly, in cases where

the defendant stipulates to his status as a felon for purposes of a

felon-in-possession charge, the government may not refer to the

specific name or nature of the defendant’s prior convictions in its

case-in-chief. See Old Chief, 519 US at 186–87.

      In Ross, the Georgia Supreme Court adopted the rule outlined

in Old Chief. See
279 Ga. at 365
. However, “Ross was decided under

Georgia’s old Evidence Code, and so Old Chief – an interpretation of

federal evidence law – was not controlling on this Court.” Bentley,
307 Ga. at 7
. Thus, “because Ross was decided under the old

Evidence Code, it is no longer the controlling authority for this

Court.”
Id.
(emphasis omitted). Instead, we have explained that

Georgia’s current “Evidence Code adopted Federal Rule of Evidence

403 as interpreted by the Supreme Court of the United States,” and

thus Old Chief, the case relied on in Ross, “is now the most

controlling decision on this issue.”4
Id.
(cleaned up).


      4 Because OCGA § 24-4-403 was borrowed from the Federal Rules of

Evidence, we “look to decisions of the federal appellate courts construing and

                                     13
     However, as relevant here, OCGA § 24-6-609(a)(1) provides

that a defendant’s prior felony convictions “shall be admitted if the

court determines that the probative value of admitting the evidence

outweighs its prejudicial effect to the accused.”5 OCGA § 24-6-

609(a)(1) is identical in all relevant respects to the corresponding

federal rule and in such circumstances, we look for guidance to

federal case law, especially case law from the United States

Supreme Court and federal appellate courts, including particularly

the Eleventh Circuit Court of Appeals. See State v. Almanza,
304

Ga. 553
, 556–58 (2018) (when Georgia courts consider the meaning

of the current Evidence Code, they should be guided by federal case

law, particularly the decisions of the Eleventh Circuit, prior to its

adoption, until a Georgia appellate court decides the issue under the

new Code).



applying the Federal Rules, especially the decisions of the United States
Supreme Court and the Eleventh Circuit.” Olds v. State,
299 Ga. 65, 69
(2016).
      5 This is not the same balancing standard as OCGA § 24-4-403. See 28

Charles Alan Wright & Victor James Gold, Federal Practice & Procedure §
6134 at 230 (1993) (“[Federal] Rule 609(a)(1) is intended to make it harder to
admit conviction evidence when offered against an accused than it is when
offered against another witness.”).
                                     14
     While this Court has yet to address whether Old Chief applies

when the State seeks to admit evidence of a defendant’s prior

convictions under OCGA § 24-6-609(a)(1), we have found on this

point persuasive federal authority, including from the Eleventh

Circuit, explaining that Old Chief does not apply to evidence used to

impeach a defendant’s credibility as a witness. See Anderson v.

United States, No. 23-12770,
2024 WL 778514
, at *1 (11th Cir. 2024)

(rejecting argument that trial counsel was ineffective for failing to

obtain a stipulation regarding the defendant’s prior cocaine

trafficking   conviction   because     “the   district   court   correctly

determined that Old Chief was inapplicable, as the government

introduced the evidence of Anderson’s prior cocaine trafficking

conviction for impeachment purposes, not to establish a legal-status

element of a charged offense”); United States v. Smith,
131 F3d 685,

687
(7th Cir. 1997) (holding that the trial court did not abuse its

discretion in admitting the titles of the defendant’s prior convictions

under Federal Rule of Evidence 609(a)(1) and explaining that Old

Chief did not apply because in that case “the prior conviction was

                                  15
not used for impeachment purposes”); United States v. Ledford,
127

F3d 1103
, *3–4 (6th Cir. 1997) (holding that the trial court did not

abuse its discretion in admitting evidence of the defendant’s prior

convictions under Federal Rule of Evidence 609(a) and explaining

that in Old Chief, “the prior conviction was not used for

impeachment purposes … nor did the defendant attempt to

minimize his guilt.”); United States v. Tracy,
36 F3d 187
, 191–92 (1st

Cir. 1994) (even where defendant stipulates to a prior conviction, the

State may introduce prior convictions for impeachment purposes

under Federal Rule of Evidence 609 where the defendant testifies in

his own defense). See also Robinson v. State,
336 Ga. App. 627, 633
(2016) (holding that trial court did not abuse its discretion in

admitting evidence of defendant’s prior convictions for impeachment

purposes under OCGA § 24-6-609(a)(1) even where defendant

acknowledged his prior convictions on the stand).

     Here, because Fraser chose to testify, his prior conviction was

relevant and admissible for impeachment purposes pursuant to

OCGA § 24-6-609(a)(1). Thus, under these circumstances, even if

                                 16
counsel had offered to stipulate to the admission of the conviction

during the State’s case-in-chief, the State would have been able to

use the 2008 conviction later when Fraser elected to testify. See

Sinkfield v. State,
318 Ga. 531, 544
(2024) (“Under Federal Rule of

Evidence 609(a), while the fact of the conviction, the nature of the

conviction, and the punishment are all properly admitted, the

specific facts and circumstances of the prior convictions generally

are not admissible.”). Moreover, once Fraser attempted to explain

away his 2008 conviction on direct examination, the State was

permitted to impeach him on the details of that prior conviction. See

United States v. Smith,
454 F3d 707
, 716–17 (7th Cir. 2006) (trial

court did not err in allowing the government to impeach defendant

with his prior conviction for possession with intent to deliver

controlled substances, noting that “[w]here a defendant attempts to

explain away the prior conviction by giving his or her own version of

events, the door has been opened to impeachment by the prosecution

on the details of the prior conviction”).

     Thus, trial counsel’s decision not to stipulate to Fraser’s felon

                                   17
status was not deficient and Fraser’s ineffective assistance of

counsel argument fails. Cf. Parker v. State,
281 Ga. 490, 493
(2007)

(trial counsel not deficient for failing to file a motion to suppress a

statement that would have been admissible for impeachment

purposes). See also Anderson,
2024 WL 778514
at *1 (trial counsel

was not ineffective for failing to obtain a stipulation regarding the

defendant’s prior cocaine trafficking conviction).

     (b) Fraser also argues that he was denied effective assistance

of counsel because his trial counsel “opened the door” to testimony

regarding Fraser’s juvenile criminal history. For the reasons

explained below, this claim fails.

     During Fraser’s direct examination, trial counsel asked Fraser

why he was in a juvenile group home in New York at the age of 15.

Fraser explained that in 2006, he received a juvenile “conviction”

and was sent to the group home. Fraser also testified that while he

was in the group home, he was “going through a real stressful time

because [his] father ... passed away,” and the group home denied him

the opportunity to go to his father’s funeral or to see his father’s

                                     18
headstone. Counsel also asked Fraser what he did after being

released from the group home, and Fraser responded, among other

things, that he had enrolled in drug and anger management

programs, but that he “couldn’t stop smoking weed” and violated his

parole as a result. Fraser testified that rather than turning himself

in, he fled to Georgia in May 2017.

     On cross-examination, the State sought to introduce evidence

of Fraser’s juvenile criminal history because trial counsel had

“opened the door” on direct examination. The trial court agreed and

allowed the State to admit State’s Exhibits 88 and 89. State’s

Exhibit 88 was a certified copy of an order entered by the Family

Court of the State of New York in Brooklyn on June 29, 2006. The

order found beyond a reasonable doubt, based on “proof and

testimony,” that Fraser, “while under 16 years of age,” did the

following acts “which if done by an adult would constitute the

crime(s) of” attempted robbery by force with the use of an

instrument, second degree menacing with a weapon, and criminal

possession of weapon with intent to use. State’s Exhibit 89 was a

                                 19
certified copy of an order entered by the same court on August 7,

2006, in which that court found that Fraser had admitted in open

court that he had committed an act that would constitute third-

degree robbery if he were an adult. On cross-examination, the State

asked Fraser whether he had “caught some charges” for the 2006

crimes. Fraser answered in the affirmative. The State also asked

Fraser whether he had violated his parole, whether he knew he was

“wanted” in New York for violating his parole, and whether he sold

marijuana to young people in Clayton County after he fled New

York. Fraser answered in the affirmative, although he denied that

he sold marijuana to young people.

     At the motion for new trial hearing, trial counsel testified that

because Fraser testified in his own defense, he had discussions with

Fraser about “how [we] wanted to approach that.” Trial counsel

testified it was a part of his strategy to elicit testimony about

Fraser’s “juvenile life” to demonstrate his state of mind at the time

of the shooting. Through that line of questioning, trial counsel

attempted to place Fraser in a more sympathetic light, showing that

                                 20
Fraser was in a juvenile group home at 15, had been dealing with

the death of his father, was participating in rehabilitation programs,

and was addicted to drugs. Although that strategy may in hindsight

be easily criticized and indeed “may have backfired,” that “is not to

say that it was ineffective.” See Redding v. State,
311 Ga. 757
, 764–

65 (2021) (concluding that counsel’s decision to elicit incriminating

evidence did not require a finding of deficiency, because it was a

strategic decision to place the defendant in a more sympathetic

light). Because trial counsel made an objectively reasonable

strategic decision to ask Fraser about his troubles as a juvenile for

the purpose of casting him in a more sympathetic light, even though

it was also possible that doing so could result in Fraser talking about

criminal conducted he engaged in as a juvenile, we cannot say that

no competent attorney would have made the same decision under

these circumstances. See
id.
Accordingly, we conclude that trial

counsel’s performance was not deficient.

     3. Although not raised by Fraser, we have identified a

sentencing error with respect to Count 5, which charged him with

                                  21
aggravated assault based on shooting Gates in the abdomen.

See Dixon v. State,
302 Ga. 691
, 696–98 (2017) (this Court has the

authority to sua sponte correct merger errors and that authority is

most commonly exercised with errors that harm a defendant). The

trial court should have merged Count 5 into Fraser’s malice murder

conviction on Count 1 because there was no evidence of a deliberate

interval separating the non-fatal shot to Gates’s abdomen and the

fatal shot to his neck. See Reddings v. State,
292 Ga. 364, 366
(2013)

(“[W]here a victim suffers a series of injuries inflicted by a single

assailant in rapid succession, each injury does not constitute a

separate assault.”). See also Donaldson v. State,
302 Ga. 671, 674
(2017) (addressing merger issues not raised by defendant and

holding that “[t]he evidence (viewed in the light most favorable to

the verdict) showed that the two shots were fired back to back as

part of a single incident, and so the two aggravated assault counts

both should have merged into felony murder for sentencing

purposes”) (cleaned up); Jeffrey v. State,
296 Ga. 713, 718
(2015)

(“Because there was no evidence that the shooting occurred in a

                                 22
manner other than in a single transaction, with no ‘deliberate

interval’ separating any of the shots, only a single verdict for

aggravated assault can stand, and the remainder must be merged

into that verdict.”) (cleaned up). We therefore vacate Fraser’s

conviction and sentence on Count 5. Because Fraser’s sentence was

otherwise proper, we need not remand this case to the trial court for

resentencing. See Atkinson v. State,
301 Ga. 518, 521
(2017).

      Judgment affirmed in part and vacated in part. All the
Justices concur.




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