Frazier v. State

FINAL COPY

                  S20A0088. FRAZIER v. THE STATE.


      MCMILLIAN, Justice.

      Appellant Damon LeShane Frazier was convicted of malice

murder and related offenses arising out of the shooting death of

Corey Damond Echols.1 On appeal, Frazier contends that the


      1  Echols was killed on April 29, 2015. In September 2015, a Fulton
County grand jury indicted Frazier for malice murder, felony murder
predicated on aggravated assault with a deadly weapon, felony murder
predicated on possession of a firearm by a convicted felon, aggravated assault,
possession of a firearm during the commission of a felony, fleeing or attempting
to elude, and possession of a firearm by a convicted felon. Frazier was
reindicted in December 2015 on the same charges except the charges of felony
murder predicated on possession of a firearm by a convicted felon and
possession of a firearm by a convicted felon. Instead, the new indictment
charged felony murder predicated on possession of a firearm by a first offender
probationer and possession of a firearm by a first offender probationer.
       At a trial conducted from January 11 to 15, 2016, a jury found Frazier
guilty on all counts. On January 26, 2016, the trial court sentenced Frazier to
serve life in prison without the possibility of parole for malice murder, a
consecutive five-year term in prison for possession of a firearm during the
commission of a felony, a consecutive five-year term in prison for fleeing or
attempting to elude, and a consecutive five-year term in prison for possession
of a firearm by a first offender probationer, for a total sentence of life in prison
without the possibility of parole plus 15 years. The felony murder convictions
were vacated by operation of law, and the aggravated assault charge merged
into the count of malice murder.
       Frazier filed a timely motion for new trial in January 2016, which he
later amended through new counsel in June and July 2018. Following a July
evidence against him was insufficient, that the trial court erred by

allowing the State to present evidence under OCGA § 24-4-404 (b),

and that trial counsel was ineffective for failing to request a charge

on a justification defense. Finding no error, we affirm.

      1. Construing the evidence in the light most favorable to the

verdict, the record shows that on the evening of April 29, 2015,

Echols was sitting in his car on Kipling Street in the Thomasville

Heights community in Atlanta. Echols had just finished a telephone

conversation with his wife when a white Ford Crown Victoria with

darkly tinted windows2 and black wheels approached from the

opposite direction and pulled alongside Echols’ car. Numerous shots

were fired from the driver’s side of the car, which then sped away.

      Echols was found slumped over inside his car and appeared to

be bleeding from his head. He was transferred to a hospital where



2018 hearing, the trial court denied Frazier’s motion as amended on August
13, 2018. Frazier subsequently filed a timely notice of appeal to this Court.
Because there were delays in completing the appellate record, this case was
docketed in this Court to the term beginning in December 2019 and thereafter
submitted for a decision on the briefs.
      2 Surveillance video from a MARTA bus showed a white Crown Victoria

with tinted windows in the Kipling Street area around the time of the shooting.
he eventually died of a gunshot wound to the head. Echols was later

found to have sustained other wounds consistent with a bullet

traveling through a car window before hitting him. His car had

multiple bullet holes, including a hole in the front window on the

driver’s side, and a bullet jacket3 was later found inside the

doorframe of Echols’ car after a police investigator “took the vehicle

apart.”

      When police arrived on the scene, witnesses provided a

description of the car, although they were not able to identify the

shooter. The car’s description was relayed over the police radio.

Minutes later, an officer in a marked patrol car near the crime scene

spotted a car matching the radioed description of the Crown Victoria

and attempted to initiate a traffic stop. The driver sped away,

leading police on a high-speed chase, reaching speeds up to 100 mph,




      3  This item was referred to by the police investigator as a “9mm
projectile” and by the firearms examiner as “a .38 metal jacketed bullet.” The
firearms examiner explained that because the item was so damaged, she could
not determine the type of firearm used to fire it; however, she noted that “[a]
9mm is part of the .38 class,” so it was possible that the item recovered was
actually a 9mm.
and eventually evading the pursuit. Shortly thereafter, a white

Crown Victoria with darkly tinted windows and black wheels was

reported wrecked and abandoned in a wooded area behind a house

near where police lost sight of the car during the chase. A witness

who reported the crash to police observed a man in a yellow shirt

running from the car.

     An initial search of the abandoned Crown Victoria found an

SKS rifle and a Daisy BB gun. A subsequent search pursuant to a

warrant located three 9mm shell casings, seven .223-caliber shell

casings, a wig, and numerous items linked to Frazier, including a

tequila bottle with Frazier’s fingerprints and DNA on it and a

Walmart receipt.4 While attempting, through the use of police

canines, to track the man seen fleeing the car, officers discovered a

discarded Bushmaster rifle. Frazier’s fingerprints were found on the




     4 The State presented evidence showing, and Frazier admitted at trial,

that after picking up the Crown Victoria with the dark tinted windows from
his girlfriend Catherine Johnson, Frazier then went to a Walmart and
attempted to return stolen merchandise. When the loss control officer for the
store attempted to detain Frazier, Frazier fled, got into the white Crown
Victoria, and escaped.
rifle, and it was later determined that six of the seven .223-caliber

shell casings discovered in the Crown Victoria had been ejected from

that firearm, showing that the Bushmaster rifle had been fired at

least six times and raising an inference that it had been fired from

inside the car. Bullet fragments taken from Echols’ skull were so

damaged that the firearms examiner could not conclude whether the

fragments had been fired from the Bushmaster rifle, although the

examiner was able to determine that they could not have come from

the SKS rifle5 or from the same firearm as the bullet jacket found in

Echols’ car.

         Cellular-tower records admitted at trial showed that a cell

phone Frazier was using (under an alias) was in the area where

Echols was shot at the time of the shooting and then “pinged” other

towers along the route of the high-speed chase. Law enforcement

also learned that the white Crown Victoria had been rented by a

third party for Catherine Johnson, Frazier’s girlfriend and the



         5 The ballistics expert found no evidence that the SKS rifle had been

fired.
mother of his child, and that she had loaned him the car on the day

of the murder.

     Johnson testified at trial that she met Frazier earlier on the

day of the shooting to exchange cars, giving him the white Crown

Victoria with the darkly tinted windows and taking the car Frazier

was driving, a white Crown Victoria with clear windows. Frazier

was wearing a gold or yellow shirt at the time he borrowed the car.

Later that evening, Johnson received a call from Frazier asking her

to come get him. When she picked him up, he was bleeding and

carrying a yellow shirt. Johnson testified that, when she asked what

had happened, Frazier reported that a gun sale had gone wrong,

that he had been pistol-whipped, and that the rental car had been

stolen.

     After Frazier was arrested in connection with Echols’ shooting

in June 2015, he made several statements to police. He first denied

that he was ever in the Crown Victoria that was seen at the crime

scene and later abandoned, but when he realized that police knew

Johnson had rented it, he told them he may have been in the car.
Frazier also denied that he had ever touched the Bushmaster rifle.

     At trial, Frazier testified in his own defense. He told the jury

that around the time of the murder, he was in the area of the

shooting in the Crown Victoria with tinted windows for a planned

meeting to sell the Bushmaster rifle, which Frazier admitted

belonged to him and he had placed in the car. Frazier stated that

when he arrived at the sale location, he was carjacked by two

masked men, one who got in the front passenger seat and another

man who sat behind the driver’s seat. They forced him at gunpoint

to drive to Kipling Street, where they told him to roll down his

window, and one or both of the carjackers shot at a black car through

the driver’s window, but Frazier did not see what happened because

he ducked down as soon as he heard the gunshots. Frazier explained

that he fled at the instruction of the carjackers and drove until he

wrecked the car. At that point, the two masked men took off running,

as did Frazier, who ran through the wooded area to a nearby flea

market where he called Johnson to pick him up.

     The State presented evidence that, in 1998, Frazier was
charged with homicide in connection with a 1997 shooting death in

the same area of Atlanta. Frazier admitted that he shot the victim

in that case, Corey Lundy, and later pleaded guilty to voluntary

manslaughter, although he asserted the shooting was in self-

defense. Frazier also admitted that he was on first-offender

probation at the time Echols was shot and he was not legally

permitted to have any firearms.

       Frazier asserts that the evidence was insufficient to support

any of his convictions, except the charge of possession of a firearm

by a first-offender probationer,6 because the State’s case was

entirely circumstantial and the proved facts did not exclude every

other reasonable hypothesis except his guilt. He notes that none of

the other witnesses could identify the shooter and that as the only

witness inside the car, his testimony that he had been carjacked by

two masked men, one of whom was the shooter, presented a

reasonable hypothesis not excluded by the evidence.


     6 Frazier does not argue that the evidence was insufficient to support

this conviction. However, consistent with our customary practice in murder
cases, we will also review the sufficiency of the evidence for that charge.
     In considering the sufficiency of the evidence as a matter of due

process, we consider whether the evidence presented at trial, when

viewed in the light most favorable to the verdicts, is sufficient to

authorize a rational trier of fact to find the defendant guilty beyond

a reasonable doubt of the crimes of which he was convicted. See

Jackson v. Virginia, 

 (III) (B) (

, 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,

 (1) (

) (2020).

     As an initial matter, this was not a purely circumstantial case

as to the charge of possession of a firearm by a first-offender

probationer because Frazier admitted at trial that he was in the

vicinity of where Echols was shot to sell the Bushmaster rifle, which

he had placed in the car, and possession of the rifle is a “main fact”

of the charge. See Muckle v. State, 

 (1) (b) (

) (2017) (admission that defendant was a party to the attempted

robbery that resulted in the victim’s death was not a “mere
incriminating admission but a confession” that is direct evidence of

his guilt (citation and punctuation omitted)); Merritt v. State, 

 (1) (

) (2013) (because defendant admitted

“main fact” of the crime of which he was convicted, this was not a

purely circumstantial case). Because the State produced evidence

from which the jury could find that Frazier was a first-offender

probationer at the time of his offense and Frazier also admitted that

he was on probation, we conclude that the evidence was sufficient to

support this conviction.

     As to the remaining charges, we conclude that the evidence at

trial was sufficient to support his convictions even if the State’s case

is considered wholly circumstantial. “[T]he fact that the evidence of

guilt was circumstantial does not render it insufficient.” Carter v.

State, 

 (2) (

) (2019) (citation and

punctuation omitted). Rather, under OCGA § 24-14-6,

     in order to convict [Frazier] of the crimes based solely
     upon circumstantial evidence, the proven facts had to be
     consistent with the hypothesis of his guilt and exclude
     every reasonable hypothesis save that of his guilt. Not
     every hypothesis is reasonable, and the evidence does not
     have to exclude every conceivable inference or hypothesis;
     it need rule out only those that are reasonable.

Cochran v. State, 

 (1) (

) (2019)

(citation and punctuation omitted). The determination of “[w]hether

an alternative hypothesis raised by the defendant is ‘reasonable’ is

a question committed principally to the jury[.]” Graves v. State, 

 (1) (

) (2019). And “when the jury is

authorized to find that the evidence, though circumstantial, is

sufficient to exclude every reasonable hypothesis save that of the

accused’s guilt, this Court will not disturb that finding unless it is

insupportable as a matter of law.” Cochran, 

 (1)

(citation and punctuation omitted).

     The evidence showed that on the morning of the shooting,

Frazier traded his Crown Victoria with non-tinted windows for his

girlfriend’s Crown Victoria with tinted windows and that he placed

the Bushmaster rifle in the car. He admitted at trial that he was in

the driver’s seat of the Crown Victoria with the tinted windows on

Kipling Street when shots were fired from the driver’s side window,
killing Echols. He also admitted that a short time later, he fled from

police when they attempted to stop the Crown Victoria and that he

drove until he crashed the car in a wooded area. Frazier then fled

the scene of the crash through the wooded area, and police found the

Bushmaster rifle from which Frazier’s fingerprints were lifted

discarded in the wooded area near the car. The Bushmaster rifle was

the only weapon found in or around the Crown Victoria that could

not be excluded as the weapon that fired the fatal shot at Echols. Six

spent casings from that weapon were found in the Crown Victoria,

indicating that the gun had been fired at least six times. Other

evidence, including his fingerprints and DNA, placed Frazier in the

vehicle. Although Frazier denied shooting Echols and testified that

he was at the crime scene and fled the police only because two

unidentified, armed, masked men carjacked him and forced him to

do so, it was up to the jury to assess the credibility of his testimony

and to determine the reasonableness of this alternative hypothesis

offered by the defense.

     We conclude that the evidence at trial authorized the jury to
determine that the proved facts were not only consistent with

Frazier’s guilt but also that they excluded every other reasonable

hypothesis as to whether Frazier committed the crimes for which he

was convicted and sentenced.7 Therefore, the evidence at trial was

sufficient to support Frazier’s convictions as a matter of due process

and under OCGA § 24-14-6. See Sullivan v. State, __ Ga. __ (1) (a)

(

) (2020); Frazier v. State, 

 (2) (b) (

) (2020); Cochran, 

 (1).

      2. Frazier next contends that the trial court erred in admitting

evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) that Frazier

pleaded guilty to the voluntary manslaughter of Corey Lundy in

1997. Following a hearing,8 the trial court admitted the Rule 404 (b)


      7 Because we have determined that the evidence was sufficient to affirm

Frazier’s conviction for malice murder, his claims that the evidence was
insufficient to support his convictions for felony murder and aggravated
assault are moot because the felony murder counts were vacated by operation
of law and the aggravated assault charge merged into the malice murder
conviction for sentencing. See Chavez v. State, 

 (1) n.3 (

) (2020); Blackledge v. State, 

 (1) n.3 (

)
(2016); Mills v. State, 

 (2) (

) (2010).

      8 The State contends that the record does not show that Frazier objected

to the admission of the Rule 404 (b) evidence and that this Court should review
evidence for the purposes of showing intent, plan, and preparation.

      On appeal, we review a trial court’s decision to admit evidence

pursuant to OCGA § 24-4-404 (b) for a clear abuse of discretion. See

Brannon v. State, 

 (4) (

) (2016).

      Evidence is admissible under Rule 404 (b) only if: (1) the
      evidence is relevant to an issue in the case other than the
      defendant’s character; (2) the probative value of the
      evidence is not substantially outweighed by the danger of
      unfair prejudice; and (3) there is sufficient proof for a jury
      to find by a preponderance of the evidence that the
      defendant committed the other act.

Edwards v. State, 

 (3) (

) (2020).

      At trial, the State presented testimony from a former Atlanta

Police Department homicide detective who interrogated Frazier in

connection with Lundy’s shooting death. He testified that Lundy

was shot at a liquor store in the Thomasville Heights area of

Atlanta, the same area where Echols’ murder occurred, and evidence



this enumeration only for plain error. However, Frazier clearly objected to the
admission of the Rule 404 (b) evidence at the pretrial hearing and the trial
court ruled it admissible. The transcript of this hearing was provided in a
supplemental record to this Court. See OCGA § 24-1-103 (a) (2) (“Once 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.”).
at the scene indicated that Lundy had been shot with a .45-caliber

weapon. After the homicide detective obtained a warrant for

Frazier’s arrest for homicide, he interviewed Frazier, who told the

detective that Frazier’s sister drove Frazier to the liquor store where

he saw Lundy, who had robbed Frazier earlier. Frazier said that

Lundy had “a bulge,” which Frazier took to be a firearm, so Frazier

shot Lundy. Frazier testified at the trial in this case that he shot

Lundy and fled the scene. Frazier said that he pleaded guilty to the

lesser offense of voluntary manslaughter and was sentenced to 14

years, of which he served 12-and-a-half years in prison.

     Turning first to whether the Rule 404 (b) evidence was properly

admitted to show intent, we note that Frazier “put his intent at issue

by pleading not guilty, and he did not take any affirmative steps to

relieve the State of its burden to prove intent.” Jackson v. State, 

 (2) (b) (i) (

) (2019). Therefore, “because a

plea of not guilty puts the prosecution to its burden of proving every

element of the crime ― including intent ― evidence of other acts that

tends to make the requisite intent more or less probable to any
extent is relevant.” Fleming v. State, 

 (3) (b) (

) (2019) (citation and punctuation omitted). See also Olds

v. State, 

 (2) (

) (2016) (“[E]vidence that

an accused committed an intentional act generally is relevant to

show . . . that the same defendant committed a similar act with the

same sort of intent[.]”).

     Here, Frazier claims that the other acts evidence is irrelevant

to intent because he was coerced by the masked carjackers to

participate in the crimes. However, that defense squarely put at

issue whether Frazier intended to participate in the shooting or

whether he was coerced into doing so, and the State was required to

prove malicious intent for the malice murder charge. See OCGA §

16-5-1   (a).   Although    Frazier   pleaded   guilty   to   voluntary

manslaughter in the earlier case, the circumstances of the Lundy

shooting would allow the jury in this case to conclude that Frazier

had the malicious intent to kill Lundy, which is relevant to support

that he had the malicious intent to kill Echols. Therefore, the trial

court did not err in ruling the testimony regarding the 1997 shooting
incident to be relevant to the issue of intent in this case.9 See Gunn

v. State, 

 (

) (2017) (where

defendant’s “participation in the earlier crime required the same

intent as the charged crimes, the evidence of the earlier other act

was relevant”).

     As to the second prong of the Rule 404 (b) test, the trial court

expressly found under OCGA § 24-4-403 that the probative value of

the evidence was not substantially outweighed by the danger of

unfair prejudice. This weighing “must be done on a case-by-case

basis and requires a common sense assessment of all the

circumstances surrounding the extrinsic act and the charged

offense.” Fleming, 

 (3) (b) (citation and punctuation

omitted). “These circumstances include the prosecutorial need for

the extrinsic evidence, the overall similarity between the extrinsic




     9 Under the circumstances of this case, because the Rule 404 (b) evidence

was relevant to prove intent, we need not decide whether it was also relevant
for purposes of showing plan and preparation, as the trial court determined.
See Naples v. State, 

 (2) (e) n.9 (

) (2020).
act and the charged offense, and the temporal remoteness of the

other act.” 

 (citation and punctuation omitted). Moreover, “[w]hen

other act evidence is introduced to prove intent, . . . a lesser degree

of similarity between the charged crime and the extrinsic evidence

is required.” Kirby v. State, 

 (4) (a) (i) (

) (2018) (citation, punctuation and emphasis          omitted).The

application of the balancing test under Rule 403 “is a matter

committed principally to the discretion of the trial courts, but as we

have explained before, the exclusion of evidence under Rule 403 is

an extraordinary remedy which should be used only sparingly.”

Olds, 

 (2) (citation and punctuation omitted).

     We see no abuse of discretion in the trial court’s application of

the balancing test in this case. Here, the State had a high

prosecutorial need for the other acts evidence to counter Frazier’s

defense that he had been coerced into participating in the crimes.

See Fleming, 

 (3) (b) (high prosecutorial need to

overcome defense that defendant was merely present at scene of the

crime). There were significant similarities between the 1997
shooting of Lundy and the 2015 shooting of Echols. Both incidents

took place in the same community in Atlanta. In the 1997 incident,

Frazier arrived at the crime scene in another’s car, shot the victim

in a public location, and fled. He was accused of similar conduct in

this case, arriving in a car that belonged to someone else, shooting

the victim on a public street, and then fleeing. See United States v.

Barnes, 

 (11th Cir. 2012) (evidence of use of

gun in prior robbery admissible to rebut defense that defendant was

coerced by her abusive boyfriend to use a gun).10 See also Brannon,

 (4) (evidence of similar robbery and shooting properly

admitted to show intent when defendant claimed that he was merely

present and did not know that his friend intended to shoot the

victim).

      Even though the Lundy shooting took place almost 18 years




      10 OCGA §§ 24-4-403 and 24-4-404 (b), the evidentiary provisions at issue

here, “largely track their counterparts in the Federal Rules of Evidence,” and
this Court looks “to the decisions of the federal appellate courts, particularly
the Eleventh Circuit, for guidance in construing and applying these
provisions.” Kirby, 

 (4) n.5. See also Olds, 

 (2).
before the Echols shooting, the prior act “[was] not so remote as to

be lacking in evidentiary value.” Kirby, 

 (4) (a) (i)

(citation and punctuation omitted). Frazier testified that he was in

prison 12-and-a-half years of that time, and “the prior crime need

not be very recent, especially where a substantial portion of the gap

in time occurred while the defendant was incarcerated.” 

 (citation

and punctuation omitted) (affirming admission of Rule 404 (b)

evidence of act committed 11 years prior to crimes at issue on

appeal). See also McKinney v. State, 

 (3) (b) (

) (2019) (affirming admission of Rule 404 (b) evidence of

act committed 15 years prior to crimes at issue on appeal).

     Finally, the State met its burden to prove the third prong of the

Rule 404 (b) test because Frazier pleaded guilty to voluntary

manslaughter for shooting Lundy in 1997 and admitted at trial that

he shot Lundy. Accordingly, we discern no abuse of discretion in the

admission of the Rule 404 (b) evidence.

     3. Frazier also contends that he received ineffective assistance

of counsel because his trial attorney failed to ask for a charge to
support a justification defense and instead sought a charge to

support a coercion defense.

     To establish a claim of ineffective assistance of counsel, a

defendant must demonstrate that his counsel’s performance was

deficient and that the deficient performance resulted in prejudice to

the defendant. See Strickland v. Washington, 

(

, 80 LE2d 674) (1984); Brewner v. State, 

(IV) (

) (2017). To show that his counsel’s performance

was deficient, a defendant must show that his attorney “performed

in   an   objectively   unreasonable   way    considering   all   the

circumstances and in the light of prevailing professional norms.”

DeLoach v. State, 

 (2) (

) (2020)

(citation and punctuation omitted); see also Strickland, 

. In order to make this showing, the defendant must overcome

the “strong presumption” that trial counsel’s performance was

adequate. Marshall v. State, 

 (2) (

)

(2015) (citation and punctuation omitted). To overcome this

presumption, the defendant “must show that no reasonable lawyer
would have done what his lawyer did, or would have failed to do

what his lawyer did not.” Davis v. State, 

 (2) (

) (2016). Therefore, “[r]easonable trial strategy and tactics

do not amount to ineffective assistance of counsel.” DeLoach, 308 Ga.

at 287 (2) (citation and punctuation omitted).

     To show the prejudice required by Strickland, the 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, 

. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” 

 “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.” Lawrence v. State, 

 (2) (

) (2010).

     Frazier’s trial counsel requested the following charge related

to coercion, which the trial court gave to the jury:

     A witness is not an accomplice if the participation by the
     witness in the criminal enterprise was due to coercion.
     There is no legal requirement of corroboration of a
      witness whose participation was coerced. Whether or not
      any witness in the case was an accomplice is a question
      for you to determine from the evidence in the case.

Trial counsel testified at the hearing on the motion for new trial that

Frazier’s defense at trial was that Frazier was not a party to the

crimes because he was being held at gunpoint. Trial counsel said

that she probably thought at the time that coercion was the

appropriate defense, and she did not know that it may not be a

defense to the murder charges in this case.11 In any event, trial

counsel did not think that a justification defense was proper under

the facts. The trial court agreed, finding in its order on Frazier’s

motion for new trial that the evidence did not warrant a charge on

justification.

      Under OCGA § 16-3-26, “[a] person is not guilty of a crime,


      11  Frazier was charged with malice murder, and OCGA § 16-3-26
expressly provides that coercion is not a defense to that crime. Frazier was also
charged with two counts of felony murder. This Court has reserved the issue
of whether coercion provides a defense to felony murder. See, e.g., Burgess v.
Hall, 

, 633 n.2 (

) (2019), cert. denied, __ U.S. __ (

, 205 LE2d 128) (2019) (reserving the question); Brooks v. State, 

 (2) n.4 (

) (2019) (same); Kelly v. State, 

 (2) (

) (1996) (same).
except murder, if the act upon which the supposed criminal liability

is based is performed under such coercion that the person

reasonably believes that performing the act is the only way to

prevent his imminent death or great bodily injury.” Although the

statute expressly provides that coercion is not a defense to murder,

Frazier was also charged with crimes other than murder, including

aggravated assault and fleeing or attempting to elude. Coercion is

a valid defense to those crimes. Thus, trial counsel’s requested jury

charge was appropriate. Moreover, Frazier has failed to show that

the requested coercion charge was prejudicial to his defense because

the jury was never instructed that coercion was not a valid defense

to murder. Therefore, the charge given could only have served to

support Frazier’s defense that he was involved in the incident

resulting in Echols’ death because he was being held at gunpoint.

     Nevertheless, Frazier asserts that with regard to the murder

charges, trial counsel should have also requested a jury charge

under OCGA § 16-3-20 (5), which provides: “The defense of

justification can be claimed . . . [w]hen the person’s conduct is
justified for any other reason under the laws of this state[.]” This

theory of justification necessarily relies on principles of law found

outside OCGA § 16-3-20, and Frazier’s only stated basis for a

justification defense was that he was coerced by the two masked

gunmen to participate in the shooting of Echols. But a defense that

Frazier was justified in participating in Echols’ murder because he

was under an immediate threat from the masked gunmen is

identical to a defense that he was coerced into participating in the

crime because he reasonably believed “that performing the act [was]

the only way to prevent his imminent death or great bodily injury[.]”

See Allen v. State, 

 (9) (

) (2015)

(determining that the “omnibus justification defense” under OCGA

§ 16-3-20 (6) was identical to the defense of coercion (citation and

punctuation omitted)). Frazier has failed to show that an

unspecified justification charge under OCGA § 16-3-20 (5) would

have been more beneficial to him than the coercion charge given by

the trial court. Thus, because Frazier has failed to show either that

trial counsel was deficient in failing to request a justification charge
or a reasonable probability that the outcome of his trial would have

been different if his counsel had made such a request, we conclude

that Frazier’s claim of ineffective assistance of counsel is without

merit.

     Judgment affirmed. All the Justices concur.



                     DECIDED JUNE 29, 2020.
     Murder. Fulton Superior Court. Before Judge Ellerbe.
     Stanley W. Schoolcraft III, for appellant.
     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Mathew E. Plott, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Meghan H. Hill, Assistant Attorney General, for appellee.