NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
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.