In the Supreme Court of Georgia

Decided: August 23, 2022

S22A0531. PRICKETT v. STATE.

 MCMILLIAN, Justice.

Santron Prickett appeals his conviction for felony murder and 

other charges in connection with the death of Antwan Curry.1 On 

 1 Curry was killed on March 15, 2010. On June 15, 2010, a Fulton County 

grand jury indicted Prickett and Jaquavious Reed in connection with Curry’s 

death, charging them jointly with murder (Count 1); felony murder predicated 

on aggravated assault (Count 2); aggravated assault (Count 4); and possession 

of a firearm during the commission of a felony (Count 5). Prickett was also 

charged with felony murder predicated on possession of a firearm by a 

convicted felon (Count 3) and possession of a firearm by a convicted felon 

(Count 6). Reed and Prickett were tried together before a jury from May 2 to 

May 10, 2011. Reed was convicted of all counts charged against him, and 

Prickett was convicted of all counts except malice murder. Reed filed a separate 

appeal, which has been docketed as Case No. S22A0530. Prickett was 

sentenced to life in prison on Counts 2 and 3 and five years in prison on Count 

5 to run consecutive to Count 2. Prickett’s conviction under Count 4 was 

merged into Count 3, and his conviction under Count 6 was merged into Count 

2 for sentencing purposes. 

Prickett’s trial counsel filed a timely motion for new trial on May 19, 

2011, and new counsel filed an amended motion for new trial on January 10, 

2020. Following a hearing on the motion on July 21 to 23, 2021, the trial court 

entered an order denying the motion as amended on October 21, 2021. Prickett 

filed a timely notice of appeal, and the case was docketed to the April 2022 

term of this Court and submitted for a decision on the briefs. 
2

appeal, Prickett asserts that the trial court erred in denying his 

motion for new trial because (1) he received ineffective assistance of 

trial counsel when his attorney failed to stipulate to his status as a 

felon, thereby tainting the jury with evidence of Prickett’s prior 

criminal conviction; (2) his constitutional right to be present at all 

critical stages of the trial was violated when the trial court conferred 

with counsel out of his presence 26 times during trial; and (3) the 

trial court failed to rebuke the prosecutor and declare a mistrial, or, 

in the alternative, give a curative instruction to the jury following 

defense counsel’s objection to an improper comment by the 

prosecutor during closing arguments. Because we determine that 

the trial court erred in sentencing Prickett, we vacate his convictions 

and sentences and remand the case for resentencing, but we 

otherwise affirm.

The evidence at trial showed that on the afternoon of March 

15, 2010, Curry stopped at an apartment complex in Fulton County, 

and purchased marijuana. At around 1:00 p.m., Curry became 

involved in a physical altercation with Prickett at the complex. Five 
3

witnesses, who all knew Prickett, testified at trial that they 

observed the altercation. 

Laketa Smith was across the street from the apartment 

complex when she saw Prickett “tussling” with another man and 

heard two gunshots. She told police at the time that Prickett pulled 

out a gun and shot the other man, but she testified at trial that 

Prickett did not have a gun.2 After the shots were fired, Prickett ran 

away. The other man started to follow him but stopped when two 

other men came up to him. 

Willie Wilson was outside his apartment when he saw Prickett 

and another man fighting, and it looked like Prickett was being 

beaten up. Pricket was yelling, “[G]et this f*****g n r off me.” 

While they were fighting, Wilson heard a “pop” when a gun went off.

Wilson testified at trial that it looked like the other man had the 

gun, but he told police at the time that he did not know who had the 

gun. The other man was shot in the leg, and Prickett was bleeding 

 2 Smith further testified at trial that the other man did not have a gun 

and also that she could not see whether the other man had a gun.
4

from his hand. Prickett started running after he was shot, leaving 

the other man in the parking lot on his knees. 

That same day, Bianca Haney heard a verbal altercation 

between Prickett and another man at the apartment complex. She 

saw the other man go back to his truck and then charge at Prickett. 

The two men engaged in “a tussle” on the ground, and the other man, 

who appeared to be winning the fight, was on top of Prickett. Haney 

heard shots, but she never saw who had the gun. Everybody started 

running, and Prickett ran past her. She did not see what happened 

next, but she heard more gunshots.

Harriett Feggins said that she was sitting in her car at the 

apartment complex when she saw an altercation involving Prickett

and another man. She observed the other man go to his truck, get a 

handgun, and head toward Prickett. Prickett turned around, and the 

two men started scuffling. At first she thought they were just 

wrestling, but it appeared “pretty intense.” Then she heard a shot 

and saw Prickett grab his hand and run away.

Keon Burns testified that he was at the apartment complex 
5

when he heard Prickett and another man3 arguing about the fact 

that the man bought marijuana from someone other than Prickett. 

Prickett shot the man in the leg. As the two men wrestled over the 

gun, Burns saw Prickett shoot himself in the hand, and Prickett’s 

co-defendant, Jaquavious Reed, whom Burns knew, took the gun 

from Prickett as Prickett ran away. Burns stated that after Prickett 

left, Reed approached the other man and shot him. The gunshot

victim, who died at the scene, was later identified as Curry.

The medical examiner testified that in addition to the gunshot 

wound to Curry’s knee, Curry had gunshot wounds to the chest and 

the shoulder. She stated that Curry died from a bullet that entered 

his shoulder and traveled through his body striking his lung, heart, 

and liver. 

The State also presented evidence at trial showing that after 

his altercation with Curry, Prickett made a number of phone calls 

to Latasha Bigby, the mother of one of his children. In the days after 

 3 Burns recognized the other man as the man who sometimes sprayed for 

bugs in the apartment of his child’s mother.
6

Curry’s death, Bigby informed police that Prickett told her that, as 

he ran away from the area, he said, “[T]hat n** **r shot me. . . . [Y]’all 

kill that p***y n****r.” Bigby also told police that Prickett said he 

and another man got into a scuffle because the man would not 

purchase marijuana from him. Prickett told her that he shot the 

other man in the leg and ran, but the man tackled him and they 

started scuffling, which is when Prickett shot himself. However, at 

trial, Bigby recanted her statements to police, explaining that 

everything she told them earlier was a lie because she was mad at 

Prickett at the time.

Zakkiah Robinson, Prickett’s then-girlfriend, testified that at 

around 7:00 or 8:00 p.m. on the night of the altercation, Prickett 

returned to the apartment they shared, which was about ten 

minutes away from the crime scene. Prickett had been shot in the 

finger, but Robinson testified that they did not seek medical 

treatment for his injuries. Prickett told Robinson that he had gotten 

into a fight at the apartment complex, and the other man had been 

shot. Prickett said that he jumped up and took off running after he 
7

was shot. As Prickett was running, he said he heard more gunshots. 

Robinson and Prickett left their apartment that evening to get 

supplies to treat Prickett’s injuries and stayed the night at 

Robinson’s mother’s house. Prickett was arrested there the next day 

and taken to the hospital for treatment of his hand. 

Prickett presented two witnesses at trial. The first witness said 

that, on the day of the altercation, he saw Curry go to his truck and 

get something from under his seat, which the witness later saw was 

a gun. The witness saw Curry and Prickett “tussling,” and when a

shot was fired, the witness ran back into his apartment. The second 

witness was a former Fulton County Police officer who testified 

about a 1999 incident involving Curry, for which Curry was indicted 

on a number of charges, including aggravated assault on a police 

officer. Curry later pleaded guilty to one charge of obstruction of a 

law enforcement officer. 

1. Prickett contends that the trial court erred in denying his 

motion for new trial because his trial counsel rendered ineffective 

assistance by failing to stipulate that Prickett was a convicted felon, 
8

thereby exposing Prickett’s criminal record to the jury and “tainting”

his trial. 

“To prevail on a claim of ineffective assistance of counsel, a 

defendant generally must show that counsel’s performance was 

deficient and that the deficient performance resulted in prejudice to 

the defendant.” Sawyer v. State, 308 Ga. 375, 381 (2) (839 SE2d 582) 

(2020) (citation and punctuation omitted). See also Strickland v. 

Washington, 466 U.S. 668, 687-95 (III) (104 SCt 2052, 80 LE2d 674)

(1984). In order to show that trial counsel’s performance was 

deficient, a defendant must “overcome the strong presumption that 

counsel’s performance fell within a wide range of reasonable 

professional conduct, and that counsel’s decisions were made in the 

exercise of reasonable professional judgment.” Marshall v. State, 

297 Ga. 445, 448 (2) (774 SE2d 675) (2015) (citation and punctuation 

omitted). And to prove the required prejudice, a defendant must 

show a reasonable probability that, in the absence of counsel’s 

deficient performance, the result of his trial would have been 

different. See Strickland, 466 U.S. at 694 (III). “A reasonable 
9

probability is a probability sufficient to undermine confidence in the 

outcome.” Id. The burden of establishing each of these two factors is 

“a heavy one.” Brown v. State, 302 Ga. 454, 457-58 (2) (807 SE2d 

369) (2017) (citation omitted), and this Court need not consider “both 

components of the inquiry if the defendant makes an insufficient 

showing on one.” Strickland, 466 U.S. at 697 (IV).

The indictment in this case charged Prickett with possession of 

a firearm by a convicted felon based on his 2007 conviction for 

possession of cocaine with the intent to distribute. At the hearing on 

the motion for new trial, Prickett’s trial counsel had no specific 

recollection of why he did not pursue a stipulation of Prickett’s 

status as a felon and/or a redaction of the indictment in Prickett’s 

case. But he testified that, although any prior conviction is 

concerning for a defendant, in this case, he thought the facts were 

in Prickett’s favor, and he still thought so at the time of the motion 

hearing. Although he could not recall the reasons for his decision in

Prickett’s case, trial counsel said that, generally, if he saw 

something that would help a client in not stipulating, he would 
10

choose that course. Therefore, he believed that he and his co-counsel 

would have made their decision in the way that they thought was 

going to help Prickett, and they may have thought that the facts 

were so much in Prickett’s favor that they wanted to look like they 

were not hiding anything in order to gain credibility with the jury.

Pretermitting whether Prickett can show that his counsel’s 

performance was deficient in this regard, we conclude that he failed 

to demonstrate a reasonable probability that the result of his trial 

would have been different if his trial counsel had sought a 

stipulation. See Parker v. State, 309 Ga. 736, 745 (5) (848 SE2d 117) 

(2020) (citation and punctuation omitted) (trial counsel’s failure to 

stipulate to defendant’s status as a felon did not support a claim of 

ineffective assistance of counsel where defendant failed to show a 

reasonable probability that the result of his trial would have been 

different with a stipulation). Although this Court has previously 

acknowledged that error may occur if, for example, a trial court 

refuses to allow a stipulation to a prior offense “where a defendant’s 

prior conviction is of the nature likely to inflame the jury’s passions 
11

and raise the risk of a conviction based on improper considerations, 

and the purpose of the evidence is solely to prove the defendant’s 

status as a convicted felon,” we also have determined that “even 

violent crimes, crimes involving firearms, and drug offenses were 

not likely to inflame the jury’s passions in murder cases.” Id.

Therefore, we have recognized that the absence of a stipulation does 

not always have prejudicial impact. Id.

At Prickett’s trial, his prior drug offense was identified only in 

passing when the prosecutor introduced, without objection, a 

certified copy of the conviction. The prosecutor then immediately

began eliciting testimony unrelated to the prior conviction and did 

not mention the nature of the prior offense again. During closing 

argument, the prosecutor stated only that if the jury found that 

Prickett brought a gun to the crime scene and was a convicted felon, 

they could find him guilty of the charge of possession a firearm by a 

convicted felon. Thus, any impact from the disclosure of this 

conviction was minimal. 

In contrast, the evidence against Prickett was strong. Five 
12

witnesses identified Prickett as the person involved in the 

altercation with Curry during which Curry was shot. There was 

evidence that the altercation occurred because Prickett was upset 

that Curry had bought marijuana from someone else and not 

Prickett. And Prickett admitted to Bigby that he shot Curry and his 

own hand during the encounter. Burns testified that as Prickett fled 

the scene, he gave Reed the gun he used to shoot Curry, and Prickett 

told Bigby that he directed the others present to kill Curry. Even 

though Bigby later recanted her prior statements, “the jury was 

authorized to believe [Bigby’s] inculpatory pre-trial statements and 

to reject [her] exculpatory testimony at trial.” Handley v. State, 289 

Ga. 786, 787 (1) (716 SE2d 176) (2011) (citations and punctuation 

omitted). Thus, although there was evidence that Reed, not Prickett, 

fired the fatal shot, there also was evidence that Prickett gave the 

gun to Reed and directed that Curry be killed.

Moreover, during its final jury charge, the trial court gave a 

limiting instruction on the use of the prior conviction evidence. That 

instruction informed the jurors that evidence sometimes is admitted 
13

for a limited purpose and directed them to consider the evidence of 

Prickett’s prior conviction only as it related to a required element of 

Count 3 (felony murder based on possession of a firearm by a 

convicted felon) and Count 6 (possession of a firearm by a convicted 

felon) “and not for any other purpose or count.” The trial court’s 

charge later defined the crime of possession of a firearm by a 

convicted felon and instructed the jury that possession of cocaine 

with intent to distribute is a felony. We ordinarily presume that 

jurors follow such instructions without clear evidence to the 

contrary, which we do not have here. See Ash v. State, 312 Ga. 771, 

782 (2) (865 SE2d 150) (2021); Collins v. State, 312 Ga. 727, 737 (4) 

(864 SE2d 85) (2021). 

Under these circumstances, we conclude that Prickett’s claim 

of ineffective assistance of counsel fails because Prickett has failed 

to show that there was a reasonable probability that the outcome of 

the trial would have been different if trial counsel had stipulated to 

Prickett’s felony status. See Bentley v. State, 307 Ga. 1, 9-10 (2) (b) 

(834 SE2d 549) (2019) (ineffective assistance of counsel claim fails 
14

where no prejudice resulted from trial counsel’s failure to stipulate 

to defendant’s status as a felon as evidence against defendant was 

compelling, mention of prior felony was minimal and appropriate for 

proof of charged crime, and trial court gave limiting instruction). Cf.

Stephens v. State, 307 Ga. 731, 739 (4) (838 SE2d 275) (2020) 

(holding that trial court did not abuse its discretion in denying 

defendant’s motion to stipulate to his prior felony, where “the name 

or nature of [the] prior offense, possession of cocaine with intent to 

distribute, did not raise the risk that [defendant’s] verdict for the 

murder of [the victim] was tainted by improper considerations”). 

2. Prickett next asserts that the trial court erred in denying 

his motion for new trial because the court violated his constitutional 

right to be present at all critical stages of his trial by conferring with 

counsel out of Prickett’s presence 26 times during bench 

conferences.4 

 4 Although Prickett references the right to be present under the federal 

constitution in his enumeration of error, his argument only addresses his right 

to be present under the Georgia Constitution, and he makes no argument that 

the federal constitution provides different or more extensive rights. . 
15

It is well settled that “the Georgia Constitution guarantees a 

criminal defendant the right to be present, and see and hear, all the 

proceedings which are had against him on the trial before the 

Court.” Steen v. State, 312 Ga. 614, 617 (2) (864 SE2d 27) (2021) 

(citation and punctuation omitted). See also Zamora v. State, 291 

Ga. 512, 517-18 (7) (b) (731 SE2d 658) (2012). This right “attaches 

at any stage of a criminal proceeding that is critical to its outcome if 

the defendant’s presence would contribute to the fairness of the 

procedure.” Nesby v. State, 310 Ga. 757, 758 (2) (853 SE2d 631)

(2021) (citation and punctuation omitted).

Although the right to be present can extend to bench 

conferences, it “does not extend to situations where the defendant’s 

presence bears no relation, reasonably substantial, to the fullness of 

his opportunity to defend against the charge, and thus would be 

useless, or the benefit but a shadow.” Champ v. State, 310 Ga. 832,

840 (2) (b) (854 SE2d 706) (2021) (citation and punctuation omitted). 

“Such situations include bench conferences that deal with questions 

of law involving essentially legal argument about which the 
16

defendant presumably has no knowledge, or with procedural or 

logistical matters.” Id. (citation and punctuation omitted). See also 

Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013)

(defendant’s absence from such bench conferences did not violate his 

right to be present).

Moreover, a defendant may waive the constitutional right to be 

present. We have held under the Georgia Constitution that

the right to be present belongs to the defendant, and he is 

free to relinquish it if he so chooses. A defendant may 

relinquish his right in several ways: if he personally 

waives the right in court; if his counsel waives the right

at his express direction; if his counsel waives the right in 

open court while he is present; or, as seen most commonly 

in our case law, if his counsel waives the right and the 

defendant subsequently acquiesces to that waiver.

Champ, 310 Ga. at 841 (2) (c) (citation and punctuation omitted). 

“Acquiescence occurs if a defendant is aware of the proceedings 

taking place in his absence but remains silent, so long as he had 

sufficient information concerning the matters occurring outside his 

presence for his silence to be fairly construed as consent.” Steen, 312 

Ga. at 617 (2) (citation and punctuation omitted). See also Champ, 
17

310 Ga. at 841 (2) (c). 

In this case, counsel for the co-defendants entered into a

stipulation with the State in which they agreed that there were “26 

unrecorded bench conferences” (the “Stipulation”);5 the 

participating trial counsel could not recall the substance of what 

occurred in those bench conferences; and no amount of time or effort 

on behalf of the parties would enable those attorneys to recall what 

occurred. The trial court subsequently issued an order stating that 

despite good-faith efforts by all parties involved, the record of those 

bench conferences could not be recreated nor the transcript 

completed. Prickett argues that each of these bench conferences was 

held outside his presence in violation of his constitutional right to be 

present.

At the hearing on Prickett’s motion for new trial, his trial

 5 Although the parties and the trial court repeatedly reference 26 

unrecorded bench conferences, the Stipulation only identifies 25 bench 

conferences. One of the conferences mentioned in the prior motion to complete 

the record was omitted from the list of bench conferences in the Stipulation 

and other later filings. The transcript reflects that most of the omitted 26th

conference was held in open court without the jury present.
18

counsel testified that he had no recollection of what the unrecorded 

bench conferences in this case involved or of discussing them with 

Prickett, but he stated that it was his “routine practice” to come back 

to the defense table and tell his client “what generally was discussed 

or what decision the judge may have made.” Trial counsel also stated 

that he did not make a formal waiver of Prickett’s right to be present 

at those conferences; instead, counsel said that he attended the 

bench conferences “and told [Prickett] what happened.” Trial 

counsel also noted that never in his career has he ever had a client 

approach the bench to participate in bench conferences. Prickett did 

not testify at the hearing, and thus trial counsel’s testimony is 

uncontradicted.

In its order denying Prickett’s motion on this ground, the trial 

court stated it had reviewed the record, especially the portions 

before and after the bench conference, and determined that those 

conferences “dealt with either logistical/procedural matters or 

questions of law,” and specifically ruled that any issues regarding 

jury selection were done in open court where Prickett could hear all 
19

the arguments and rulings. The court further determined that 

Prickett acquiesced in the proceedings when his trial counsel made 

no objection and Prickett thereafter remained silent.

We note as an initial matter that Prickett makes no attempt to 

address any specific bench conference or to contest the trial court’s 

findings that the bench conferences at his trial involved legal, 

procedural or logistical matters as to any individual conference.

Instead, he simply asserts that all the bench conferences took place 

during critical phases of his trial and thus his rights were violated 

as to all of them. And although Prickett criticizes the trial court’s 

methodology in determining the subject of the bench conferences

from their surrounding context, he makes no effort to show as to any 

individual conference how the court’s methodology led to an 

inaccurate conclusion. 

The fact that the bench conferences were not transcribed does 

not excuse the failure to show that any of the bench conferences 

“were the sort that implicated his right to be present,” Nesby, 310 

Ga. at 759 (2) (involving unrecorded bench conferences) (citation and 
20

punctuation omitted). Moreover, “mere speculation as to what may 

have been discussed at the conference cannot serve as the basis for 

the grant of a new trial.’” Reeves v. State, 309 Ga. 645, 648 (2) (847 

SE2d 551) (2020) (citation and punctuation omitted). Therefore, 

Prickett has failed to show that his constitutional right to be present 

was violated. See Nesby, 310 Ga. at 759 (2); Heywood, 292 Ga. at 774

(3).

 In any event, even if Prickett’s constitutional right to be 

present were implicated, the record supports the trial court’s 

conclusion that Prickett acquiesced in his trial counsel’s waiver of 

his right to be present. Prickett’s trial counsel testified that he had 

never had a client come to the bench for conferences, but it was his 

practice when he returned from such conferences to tell the 

defendant what had transpired at the bench, and there was no 

evidence that he deviated from this practice at Prickett’s trial. The

trial court expressly credited counsel’s testimony in ruling on the 

motion for new trial. Under these circumstances, we conclude that 

Prickett acquiesced in his counsel’s waiver of his right to be present 
21

during the bench conferences in his trial. See Young v. State, 312 

Ga. 71, 79 (9) (860 SE2d 746) (2021); Murphy v. State, 299 Ga. 238, 

241-42 (2) (787 SE2d 721) (2016). Accordingly, Prickett is not 

entitled to a new trial on this ground. 

3. Prickett also argues that the trial court erred in denying his 

motion for new trial because the trial court failed to rebuke the 

prosecutor and declare a mistrial, or, in the alternative, give a 

curative instruction to the jury, following his counsel’s objection to a

comment by the prosecutor during closing arguments in which the 

prosecutor referenced a redacted portion of a jailhouse conversation.

In the disputed portion of the argument, the prosecutor stated, 

“Because you know from the jail recordings Prickett says, ‘I couldn’t 

go to the doctor; I had to go to the CVS because I knew they were 

looking for me.’” Prickett’s counsel immediately asked to approach 

the bench for a conference, which was not transcribed. Following the 

conference, the trial court neither rebuked the prosecutor nor gave 

a curative instruction, and the prosecutor continued her closing 

argument. After the prosecutor concluded her argument, the jury 
22

was excused for a ten-minute recess, and Prickett’s counsel restated 

his objection to the State’s use of that portion of the jailhouse 

recording. The trial court noted the objection for the record and

summoned the jury back to the courtroom but gave no curative 

instructions regarding the prosecution’s argument. Prickett 

contends that the trial court’s failure to take any action in response 

to his objection was an abuse of discretion, which resulted in 

harmful error, as the court had a duty under OCGA § 17-8-756 to 

intervene with a curative instruction or to grant a mistrial.7

“A trial court has broad discretion when responding to an 

alleged violation of OCGA § 17-8-75.” Parker v. State, 276 Ga. 598, 

 6 OCGA § 17-8-75 provides: 

Where counsel in the hearing of the jury make statements of 

prejudicial matters which are not in evidence, it is the duty of the 

court to interpose and prevent the same. On objection made, the 

court shall also rebuke the counsel and by all needful and proper 

instructions to the jury endeavor to remove the improper 

impression from their minds; or, in his discretion, he may order a 

mistrial if the prosecuting attorney is the offender.

7 To the extent that Prickett also raises an issue of prosecutorial 

misconduct on appeal, any such argument is waived because he did not raise 

it below. See Gates v. State, 298 Ga. 324, 328-29 (4) (781 SE2d 772) (2016) 

(defendant’s failure to object to the prosecutor’s argument at trial waives

appellate review of alleged errors based on improper remarks during closing 

argument).
23

599 (3) (581 SE2d 7) (2003). Pretermitting whether the trial court 

failed to fulfill its duty under OCGA § 17-8-75 in this case, we 

conclude that any such error was harmless in light of the evidence 

at trial that supported the inference that Prickett had chosen not to 

seek medical treatment because he knew that the police were 

looking for him and the otherwise strong evidence against Prickett.

See Dobbins v. State, 309 Ga. 163, 168 (3) (844 SE2d 814) (2020) 

(trial court error under OCGA § 17-8-75 analyzed for harmless 

error). See also Caldwell v. State, 313 Ga. 640, 648 (2) (872 SE2d 

712) (2022) (in assessing error under OCGA § 17-8-75, this Court

reviews the record de novo and weighs the evidence as we would 

expect reasonable jurors to have done).

The evidence showed that Prickett ran away after his 

altercation with Curry, and he chose not to seek professional 

medical treatment. Instead, Robinson treated the gunshot wound to 

Prickett’s finger, after she and Prickett went somewhere to get 

supplies to clean the wound. Additionally, Prickett did not go 

directly home after the incident with Curry, which took place 
24

midday; instead, he arrived home hours later, at 7:00 or 8:00 p.m., 

even though the two locations were only minutes apart. And Prickett

did not stay home once he got there but instead spent that night 

away from his apartment. Thus, even assuming the jury did not hear 

Prickett’s recorded statement explaining that he did not seek 

medical treatment because he knew the police were looking for him 

during the trial, the State presented evidence that would have 

supported such an inference. And in contrast to the fleeting 

reference to Prickett’s recorded statement in closing, the evidence 

supporting Prickett’s guilt was substantial, as recounted in Division 

1.

In addition, in his preliminary charge to the jurors, the trial 

judge instructed them that evidence consists of testimony and 

exhibits and that what the lawyers say in opening statements is not

evidence. In his final charge, the judge repeated that definition of 

evidence and stated that evidence does not include opening

statements or closing arguments. And we presume that the jurors 

followed the trial court’s instructions not to treat counsel’s 
25

arguments as evidence. See Lofton v. State, 309 Ga. 349, 366 (6) (b) 

(iv) (846 SE2d 57) (2020); Robinson v. State, 308 Ga. 543, 552 (2) (b) 

(ii) (842 SE2d 54) (2020). 

Under these circumstances, any error in the trial court’s 

response to Prickett’s objection was harmless, as we cannot say it is 

highly probable that the prosecutor’s reference to the redacted 

portion of the conversation contributed to the verdict. See Gobert v. 

State, 311 Ga. 305, 312 (4) (a) (857 SE2d 647) (2021) (harmless error 

under OCGA § 17-8-75 where evidence of defendant’s guilt was

strong and trial court instructed the jury that the lawyers’ 

statements were not evidence); Dobbins, 309 Ga. at 168-169 (3) 

(alleged error under OCGA § 17-8-75 harmless because of the strong 

evidence against the defendant and the trial court’s instructions 

that closing argument is not evidence).8

 8 For purposes of analysis, we have assumed one deficiency on the part 

of trial counsel and one trial court error, but we found each to have been 

harmless. Prickett does not argue that that this deficiency and error 

cumulatively resulted in prejudice, and, pretermitting whether this type of 

trial court error can be cumulated with trial counsel’s deficiency for purposes 

of a cumulative error analysis, we discern no apparent cumulative prejudice 
26

4. Finally, although not raised by Prickett on appeal, we 

discern certain errors in the trial court’s sentencing order, which we 

will exercise our discretion to address. See Lynn v. State, 310 Ga. 

608, 611 (1) (852 SE2d 843) (2020) (recognizing court’s discretion to 

correct sua sponte certain sentencing errors on appeal).

The most significant error we discern in Prickett’s sentence is

the trial court’s imposition of a life sentence on each of his two felony 

murder convictions when there was only one victim in this case. See 

Martin v. State, 308 Ga. 479, 484 (3) (841 SE2d 667) (2020); Coe v. 

State, 274 Ga. 265, 266 (2) (553 SE2d 784) (2001). This sentence 

failed to take into account that one of the two felony murder verdicts 

was vacated by operation of law. See McCoy v. State, 303 Ga. 141, 

144 (3) (810 SE2d 487) (2018). “And . . . the decision as to which of 

the felony murder verdicts should be deemed vacated—a decision 

that may affect which other verdicts merge and thus what other 

 

on this record. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] 

defendant who wishes to take advantage of the [cumulative error rule] should 

explain to the reviewing court just how he was prejudiced by the cumulative 

effect of multiple errors.”).
27

sentences may be imposed—is left to the discretion of the trial court 

on remand.”9 Martin, 308 Ga. at 484 (3) (citation and punctuation 

omitted). Therefore, we vacate Prickett’s convictions and sentences

and remand the case to the trial court for resentencing in accordance 

with this opinion. See id.; Cowart v. State, 294 Ga. 333, 336 (2) (751 

SE2d 399) (2013).

Judgment affirmed in part, vacated in part, and case remanded

for resentencing. All the Justices concur.

 9 Additionally, we note that the trial court erred in merging Count 4 

(aggravated assault) into Count 3 (felony murder based on possession of a 

firearm by a convicted felon) and Count 6 (possession of a firearm by a 

convicted felon) into Count 2 (felony murder based on aggravated assault). See 

Crayton v. State, 298 Ga. 792, 800-01 (7) (784 SE2d 343) (2016) (aggravated 

assault and felony murder premised on the possession of a firearm by a 

convicted felon generally do not merge). See also Smith v. State, 298 Ga. 357, 

358 (2) (782 SE2d 26) (2016) (trial court erred in merging offenses underlying 

felony murder counts vacated by operation of law into those vacated counts; 

rather, defendant should have been convicted and sentenced for the crimes 

underlying the vacated felony murder counts).