CourtListener 10845992

Full text

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: March 17, 2026

S26A0174. FADESIRE v. THE STATE.

PINSON, Justice.

Faruk Adedapo Fadesire was convicted of murder and other

crimes in connection with the shooting death of Mikfeesha Dotson.1

On appeal, he contends that his trial counsel rendered ineffective

assistance by failing to object to two remarks the prosecutor made

1 Dotson was killed on October 24, 2020. On August 3, 2021, a DeKalb

County grand jury indicted Fadesire for malice murder (Count 1), felony mur-
der predicated on aggravated assault (Count 2), aggravated assault (Count 3),
and possession of a firearm during the commission of a felony (Count 4).
Fadesire was tried before a jury from October 17 to 19, 2023, and was found
guilty of all charges. The trial court sentenced Fadesire to life in prison for
malice murder and five years in prison for possession of a firearm during the
commission of a felony; the other charges merged for sentencing or were va-
cated by operation of law. Fadesire filed a timely motion for new trial, which
he later amended twice through new counsel. The trial court held a hearing on
the motion for new trial and then denied the motion on May 23, 2025. Fadesire
filed a timely notice of appeal. The case was docketed to the term of this Court
beginning in December 2025 and submitted for a decision on the briefs.
during closing argument. The first remark, in Fadesire’s view, com-

mented on Fadesire’s right to remain silent. The second remark,

again in Fadesire’s view, expressed the prosecutor’s personal belief

about Fadesire’s guilt. But that claim of ineffective assistance of

counsel fails because a reasonable lawyer could have decided as a

matter of strategy not to object to the prosecutor’s remarks. So

Fadesire’s claim fails and his convictions are affirmed.

1. The evidence at trial showed the following. On the evening

of October 24, 2020, Fadesire was in a motel room in Stone Mountain

with a woman, Bianca Walker. It was pouring rain outside. At some

point, Dotson knocked on the door and Walker let her in. Dotson sat

down in a chair and Walker turned away. While Walker’s back was

turned, she heard gunshots. She turned back around and saw that

Dotson had been shot. Fadesire, the only other person in the room,

looked “scared.” Fadesire immediately left the room, and Walker fol-

lowed. Walker found someone she knew and asked the person to call

911. The call came in at 7:22 p.m.

Police soon arrived. Dotson had been fatally shot in the head

2
and torso. In the motel room, police found a debit card and identifi-

cation cards belonging to Fadesire, as well as three spent 9-millime-

ter cartridge casings. Police confirmed with employees at the motel

that the room was registered to Fadesire. Investigators were then

quickly able to locate and interview Walker, and she later identified

Fadesire in a photo lineup as the man who was in the room when

Dotson was shot.

About a month later, police arrested Fadesire at an acquaint-

ance’s home in DeKalb County. The acquaintance testified that

Fadesire had shown up at his home late one rainy night, two weeks

or “[p]robably longer” before his arrest, “soaking wet” and carrying

a gun. A search of the home incident to the arrest turned up a 9-

millimeter semi-automatic pistol, which, according to the acquaint-

ance, belonged to Fadesire. The gun was later determined to have

ejected the three spent cartridge casings that were found at the

crime scene.

2. Fadesire’s contention on appeal concerns his counsel’s fail-

3
ure to object to two remarks the prosecutor made during closing ar-

gument. The first had to do with motive. The prosecutor reminded

the jury that the State does not have to prove why the defendant

committed the crime, and then he said: “We are not required to prove

why because that would require us to step into the brain of another

person. And that is really hard to do. And with the constitutional

protections afforded, nearly impossible. So we don’t have to prove

why.” The second remark related to the question of identity. The

prosecutor said: “Basically, this case boils down to identity. Who did

it? It’s the only question. I don’t think it’s a question, but it’s the

question that’s raised. So let’s talk about it. I know who did it. I’m

pretty sure you guys know who did it. Identity.” Fadesire contends

that trial counsel’s failure to object to these remarks violated his

right to the effective assistance of counsel under the Sixth Amend-

ment to the United States Constitution.

To prevail on a claim on ineffective counsel, a defendant must

show both that counsel’s performance was professionally deficient

4
and that he suffered prejudice as a result. See Strickland v. Wash-

ington, 466 US 668, 687 (1984); Washington v. State, 313 Ga. 771,

773 (2022). To show deficiency, the appellant must show that his

lawyer performed “in an objectively unreasonable way,” Heyward v.

State, 319 Ga. 588, 592 (2024) (quotation marks omitted), which gen-

erally means showing that “no reasonable lawyer would have done

what his lawyer did, or would have failed to do what his lawyer did

not,” Evans v. State, 315 Ga. 607, 611 (2023) (quotation marks omit-

ted). To show prejudice, a defendant must show that, but for coun-

sel’s deficient performance, there was a “reasonable probability”

that the result of the trial would have been different. Heyward, 319

Ga. at 592.

With those standards in mind, we consider the two challenged

remarks in turn.

(a) Fadesire contends his counsel should have objected when

the prosecutor said that “constitutional protections” make it impos-

sible to “step into the brain” of another person. In Fadesire’s view,

that remark was an impermissible comment on the fact that

5
Fadesire did not testify at trial.

The Fifth Amendment to the United States Constitution pro-

tects a criminal defendant from being “compelled … to be a witness

against himself.” US Const. amend. V. See also OCGA § 24-5-506(a)

(“No person who is charged in any criminal proceeding with the com-

mission of any criminal offense shall be compellable to give evidence

for or against himself or herself.”). If a defendant invokes that right,

for instance by choosing not to testify at trial, the State may not

comment on his doing so. See Glover v. State, 309 Ga. 102, 106 (2020)

(argument or evidence about the defendant’s exercise of the right to

silence or the right to counsel is generally considered improper); Al

Amin v. State, 278 Ga. 74, 85 (2004) (“[A] prosecutor may not make

any comment upon a criminal defendant’s failure to testify at trial.”).

But not every remark that may incidentally relate to a defendant’s

silence is necessarily improper. In general, a prosecutor’s remark is

considered an improper comment on a defendant’s right not to self-

incriminate if “the prosecutor’s manifest intention was to do just

that” or if “the remarks were such that a jury would naturally and

6
necessarily” understand them as such. Menzies v. State, 304 Ga. 156,

163 (2018) (quotation marks omitted). See also Kilgore v. State, 300

Ga. 429, 432 (2017). And when the remark in question is made dur-

ing a prosecutor’s closing argument, that analysis means viewing

the remark “in the context in which it was made.” Pyne v. State, 319

Ga. 776, 785 (2024) (quotation marks omitted). Prosecutors are al-

lowed wide latitude in their closing arguments, see Blaine v. State,

305 Ga. 513, 519 (2019), and within the bounds of that latitude, it is

not improper for a prosecutor to “argue that evidence showing guilt

has not been rebutted or contradicted,” or to “respond to points made

in — and issues omitted from — the defendant’s closing argument,”

id. (quotation marks omitted).

Considered in that light, the prosecutor’s comment here — that

“constitutional protections” make it impossible to “step into the

brain” of another person — was not improper, or at least not obvi-

ously so. Although the remark may have been an oblique reference

to the right to remain silent, the prosecutor did not refer specifically

to Fadesire’s decision not to testify, and he did not try to shift the

7
burden of proof to Fadesire. Instead, in context, the remark was

most reasonably understood as a comment on the difficulty of prov-

ing motive and an explanation for why the State did not have to do

so. That is, the prosecutor was addressing a weakness in the State’s

case: there was no “why.” Doing so was not obviously outside the

bounds of the wide latitude permitted to prosecutors in closing ar-

guments. See Pyne, 319 Ga. at 784, 786 (prosecutor’s comment that

“if there had been” evidence connecting an alternate suspect to the

crime, “you would have seen it,” was not improper burden-shifting

but rather a response to the defense’s argument); Pearson v. State,

277 Ga. 813, 815 (2004) (prosecutor’s question during closing argu-

ment about why the defendant did not produce the gun he claimed

he had fired in self-defense was not a comment on the defendant’s

right to remain silent, but rather a “valid attack on the credibility of

[the defendant’s] claim that the homicide was justified”). And be-

cause the comment was not obviously improper, a reasonable lawyer

in Fadesire’s counsel’s place could have determined that an objection

8
would have been meritless. Not only that, but counsel also reasona-

bly could have determined that an objection would not be in

Fadesire’s interest because it might have called more attention to

Fadesire’s silence than the remark itself. Trial counsel therefore did

not perform deficiently by failing to make that objection. See King v.

State, 316 Ga. 611, 624–25 (2023) (counsel was not deficient for fail-

ing to make an objection to the prosecutor’s closing argument that

would have failed); Mattox v. State, 308 Ga. 302, 304–05 (2020)

(same).

(b) Fadesire also contends his counsel should have objected

when the prosecutor said “I know who did it” while discussing the

killer’s identity. In Fadesire’s view, that remark impermissibly in-

jected into the argument the prosecutor’s personal belief about

Fadesire’s guilt. See Wyatt v. State, 267 Ga. 860, 864 (1997) (a pros-

ecutor “may not state before the jury a personal belief in the defend-

ant’s guilt”). But even assuming the prosecutor’s remark was im-

proper, counsel reasonably could have decided not to object for stra-

tegic reasons. First, an objection could have drawn attention to the

9
remark, which could have underscored for the jury the strength of

the State’s case against Fadesire. It is generally not objectively un-

reasonable for counsel to choose not to highlight an argument or

piece of testimony with an objection. See, e.g., Blalock v. State, 320

Ga. 694, 700 (2025) (counsel could reasonably have decided not to

object to a witness’s testimony “to avoid drawing the jury’s attention

to the questions and [the witness’s] invocation of her right against

self-incrimination in response”); Troutman v. State, 320 Ga. 489, 498

(2024) (counsel could reasonably have decided not to object to the

prosecutor’s reference in closing argument to graphic photos that

had been excluded from evidence, because the jury had already

heard that the victim received gruesome injuries and an objection

“would serve only to highlight the severity” of the injuries). Also,

counsel could have reasoned that there was little to be gained by

objecting. It was far from assured that the trial court would have

granted a mistrial based on the prosecutor’s relatively insignificant

comment. See, e.g., Ballin v. State, 307 Ga. 494, 498–99 (2019) (trial

court did not abuse its discretion by denying a mistrial and instead

10
giving a curative instruction after the prosecutor said “I’m clear on

who killed [the victim]” while cross-examining a defense witness).

More likely the trial court would have admonished the prosecutor

not to express his personal opinion about Fadesire’s guilt and then

instructed the jury that it was responsible for deciding the question

of identity — an instruction that the court gave anyway. See id.

Counsel could have decided as a matter of strategy that those poten-

tial benefits were not worth the risk of emphasizing the State’s case.

See Evans v. State, 322 Ga. 652, 675–76 (2025) (counsel could rea-

sonably have decided that “little would be gained” by objecting to the

prosecutor’s remark in closing argument that it was not known why

the defendant was not charged with one of the robberies, because it

was “unclear how [the defendant] could have benefitted” from an ob-

jection); Powell v. State, 291 Ga. 743, 745, 748 (2012) (counsel could

reasonably have decided that “little would be gained” by objecting to

the prosecutor’s improper remark in closing argument that “[w]e

don’t bring it to indictment if we think the person is innocent,” be-

cause, while the trial court might have rebuked the prosecutor, it

11
might also have rebuked defense counsel for his earlier speculation

about the motives of the prosecution in bringing the indictment). Be-

cause counsel’s failure to object was not objectively unreasonable,

this claim fails.

Judgment affirmed. All the Justices concur.