In the Supreme Court of Georgia

Decided: April 19, 2021

S21A0141. GOBERT v. THE STATE.

 BETHEL, Justice.

In May 2016, a Walker County jury found Michael James 

Gobert guilty of felony murder and other crimes in connection with 

the shooting death of Johnny Montgomery and the aggravated 

assaults of Edrius Putnam and Deisman Harrison. On appeal, 

Gobert argues that the evidence presented at his trial was 

insufficient to sustain his convictions; the trial court erred by 

excluding Gobert from bench conferences; the trial court erred by 

failing to require the court reporter to transcribe jury selection and 

the charge conference; and the trial court erred by failing to rebuke 

the prosecutor for allegedly improper statements made during 

closing argument or grant a mistrial. For the reasons set forth 
2

below, we affirm.1

1. Viewed in the light most favorable to the verdicts, the 

evidence presented at trial showed the following. At around 8:00

p.m. on October 19, 2015, Nicole Carroll, Gobert’s adult stepdaughter, invited both Harrison and Montgomery over to her mobile 

home, which was adjacent to Gobert’s home and on his property. 

Harrison and Montgomery invited Putnam to join them, and the 

three men arrived at Carroll’s mobile home together. Upon their 

 1 The crimes occurred on October 29, 2015. On January 5, 2016, a Walker 

County grand jury indicted Gobert on 11 counts: malice murder of Montgomery 

(Count 1); felony murder of Montgomery (Count 2); aggravated assault of 

Montgomery (Count 3); two counts of aggravated assault of Putnam (Counts 4 

and 5, respectively); aggravated assault of Harrison (Counts 6); and five counts 

of possession of a firearm during the commission of a felony (Counts 7-11). At 

a jury trial held from May 23 to 27, 2016, Gobert was found not guilty on

Counts 1 and 7 but guilty of the remaining counts. The trial court sentenced 

Gobert to life in prison without the possibility of parole on Count 2, 20 years 

each on Counts 4 and 6, to be served concurrently with Count 2; and five years 

each on Counts 8, 10, and 11, to be served consecutively to Count 2. For 

purposes of sentencing, Count 3 merged with Count 2, and Count 9 merged 

with Count 8. Due to a scrivener’s error, in its original sentencing order, the 

trial court erroneously entered a sentence on Count 5. However, the trial court 

amended its sentencing order to remove the sentence for Count 5 as it should 

have merged into the felony murder count. On July 5, 2016, Gobert filed a 

timely motion for new trial, which he later amended. The trial court denied the 

amended motion on July 18, 2019. Gobert filed a notice of appeal on July 26, 

2019. This case was docketed in this Court to the term commencing in

December 2020 and submitted for a decision on the briefs.
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arrival, the group began drinking alcohol, and Harrison, 

Montgomery, and Carroll began to engage in sexual activity as a 

group, as they had done on prior occasions. After Harrison and 

Montgomery exited Carroll’s bedroom, Putnam entered and began 

having sex with Carroll. However, Carroll did not permit Putnam to 

continue their sexual activity. Putnam then became angry with 

Carroll, called her a “b****,” pushed her, and grabbed her throat. 

Upon hearing the commotion in the bedroom, Harrison and 

Montgomery entered to assist Carroll and “de-escalate the 

situation.” Harrison and Montgomery grabbed Putnam and tried to 

remove him from Carroll’s home. Putnam, however, resisted. He 

continued punching at Carroll, so she hit him with a pool cue. When 

Montgomery and Harrison finally got Putnam outside the home, 

Putnam picked up a dehumidifier on Carroll’s porch and threw it at 

Carroll, striking her in the face. 

Harrison and Montgomery managed to get Putnam into 

Montgomery’s car with the intention of leaving the property. 

Montgomery sat in the driver’s seat. As the car began pulling away, 
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Gobert and his wife emerged from their home next door, having 

heard the disturbance at Carroll’s home. Upon exiting his home, 

Gobert began firing toward the occupants of the car. As Montgomery 

tried to drive away, Gobert continued firing. The car hit a shed on 

Gobert’s property and became stuck. 

Putnam exited the car and ran into the woods after the car 

crashed into the shed, but Harrison and Montgomery were unable 

to escape. After Gobert began firing at the vehicle, Harrison hid 

behind a child’s car seat in the backseat. He heard Montgomery say, 

“I’ve been shot,” before Montgomery slumped down over the steering 

wheel. 

Harrison then saw Gobert run toward the car carrying a gun.

When he reached the car, Gobert pointed the gun at Harrison and 

instructed him to get out and get on his knees. Harrison said, 

“Please don’t kill me, sir,” and then asked Gobert if Montgomery was 

okay. Gobert replied that Montgomery was unconscious and may not 

be alive. Gobert held Harrison at gun point until law enforcement 

officers arrived. While holding Harrison at gunpoint on the ground, 
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Gobert told him, “I should shoot you, n*****.”

Four neighbors reported hearing gunshots. After the shooting,

Misty Sanchez and another neighbor, William Swisher, heard 

Harrison “beg for his life.” Another neighbor called 911. 

When police officers arrived in response to the call, they found 

Gobert and his wife holding handguns and standing over Harrison,

who was on his hands and knees. Officers also noticed that the car 

that had struck the shed was still running. Harrison advised the 

police officers that Montgomery was inside the car. The police 

officers then found Montgomery slumped over the center console 

with a gunshot wound to the head. He later died in the ambulance 

on the way to the hospital.

As officers were attending to Montgomery, Putman emerged 

from the woods behind the property, shouting, “I’m a fireman. Don’t 

shoot!” Officers noticed that Putnam was walking with a limp. The 

police later learned that Putnam had been shot in the leg when he 

was a passenger in the car, but a key in his pocket had redirected 

the bullet, leaving him with only a minor leg injury.
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At the scene, the officers also spoke with Carroll, who had 

“bloody marks” on her face. During their investigation, the officers 

opened the door to the police car where Gobert was being detained. 

Before the officers said anything to him, Gobert said, “My life is over,

and I messed up.” After receiving Miranda2 warnings and signing

an acknowledgement and waiver of his rights at the police station, 

Gobert told detectives that earlier in the evening he awoke to voices 

outside. He looked out and saw “a black man” arguing with Carroll.

Gobert told the police that he yelled, “Halt or I’ll shoot,” and that 

Putnam responded, “If you shoot me, you’ll get the murder charge.” 

Gobert responded to Putnam, “I don’t think so, you came onto my 

property starting this trouble.”

Gobert admitted that he shot at the car several times. When 

asked why, he said that when he fired at the car, he did not know if 

Carroll had been injured or know any details of the argument. He 

told the detectives that he shot at the people in the car because, 

 2 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) 

(1966).
7

“they were trespassing and causing trouble.”

Gobert asserts that the evidence was insufficient to support his 

convictions for the felony murder of Montgomery and the aggravated 

assaults of Putnam and Harrison. When evaluating the sufficiency 

of the evidence to support a conviction, “the relevant question is 

whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.”

(Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) 

(99 SCt 2781, 61 LE2d 560) (1979). On appeal, “this Court does not 

reweigh the evidence or resolve conflicting testimony.” Mosby v. 

State, 300 Ga. 450, 452 (1) (796 SE2d 277) (2017).

(a) Gobert first challenges the sufficiency of the evidence as to 

his conviction for felony murder. Gobert was convicted of the felony 

murder of Montgomery predicated on aggravated assault. 

Specifically, Count 2 of the indictment alleged that Gobert caused 

Montgomery’s death while in the commission of aggravated assault 

by shooting Montgomery in the head. Although the trial court 
8

properly merged the underlying aggravated assault count (Count 3)

for sentencing, we must consider whether the evidence presented at 

trial was sufficient to support a finding that Gobert committed the 

aggravated assault because it was the predicate felony for the felony 

murder. See Casey v. State, ____ Ga. ____ (1) (851 SE2d 550, 552-

553) (2020).

OCGA § 16-5-1 (c) provides that “[a] person commits the offense 

of murder when, in the commission of a felony, he or she causes the 

death of another human being irrespective of malice.” OCGA § 16-5-

21 (a) (2) provides, in relevant part, that “[a] person commits the 

offense of aggravated assault when he or she assaults . . . [w]ith a 

deadly weapon[.]” As relevant here, a person commits an assault 

when he or she “[a]ttempts to commit a violent injury to the person 

of another[.]” OCGA § 16-5-20 (a).

Eyewitness testimony established that, after Gobert emerged 

from his home, he shot numerous times into the car occupied by 

Montgomery, Harrison, and Putnam. Gobert admitted shooting at 

the men that night, and witnesses at the scene testified that he 
9

yelled a threat at them after opening fire. Montgomery was struck

in the head by one of the shots and later died.

Gobert argues that the evidence was insufficient in light of the

evidence that he acted in self-defense, defense of others, and defense 

of his property. “When a defendant effectively raises an affirmative

defense such as self-defense the State bears the burden of disproving 

the asserted defense beyond a reasonable doubt.” Mosby v. State, 300 

Ga. 450, 451 (1) (796 SE2d 277) (2017). The State presented evidence 

that Gobert was not in a position to determine whether and to what 

extent Carroll was in danger and other evidence that “undermined 

[Gobert’s] claim of self-defense.” Martin v. State, 306 Ga. 538, 541 

(1) (832 SE2d 402) (2019). Further, Gobert shot at the car while the 

three men were fleeing, and neither Carroll nor the Goberts were in 

any danger or any imminent threat of harm at that point. See OCGA 

§ 16-3-21 (a) (stating that a person is “justified” in using deadly force 

“only if he or she reasonably believes that such force is necessary to 

prevent death or great bodily injury to himself or herself or a third 

party[.]”); see also OCGA § 16-3-23 (defining defense of habitation).
10

Gobert’s arguments in this regard, like his arguments concerning 

the reliability of the police investigation and quality of the State’s 

evidence, were matters within the province of the jury to consider 

and decide. See Lowery v. State, 310 Ga. 360, 360 (1) (a) (851 SE2d 

538) (2020); see also Ferguson v. State, 297 Ga. 342, 344 (1) (733 

SE2d 749) (2015) (jury was authorized to disbelieve defendant’s selfdefense theory).

Accordingly, this evidence was sufficient to authorize a rational 

trier of fact to find Gobert guilty of aggravated assault and the felony 

murder of Montgomery predicated on that aggravated assault. See 

Jackson, 442 U. S. at 319 (III) (B); see also Dunbar v. State, 263 Ga. 

769, 769 (1) (438 SE2d 356) (1994).

(b) Gobert also challenges the sufficiency of the evidence 

presented at trial as to the aggravated assaults of Putnam (Count 4) 

and Harrison (Count 6). As with the evidence supporting Gobert’s 

conviction for felony murder predicated on the assault of 

Montgomery, the evidence presented was sufficient to support the 

jury’s verdicts on these counts of aggravated assault.
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Count 4 alleged that Gobert committed an aggravated assault 

against Putnam by shooting him in the right leg. Count 6 alleged 

that Gobert committed an aggravated assault against Harrison by 

firing a gun in his direction. As to both counts, the jury heard 

evidence that Gobert fired multiple shots into the car where Putnam 

and Harrison were riding and that one of those shots hit Putnam’s 

leg. Thus, the evidence presented at trial was sufficient to support 

the jury’s verdicts as to the aggravated assaults of Putnam and 

Harrison. Accordingly, this enumeration of error fails.3

2. Gobert also contends that the trial court erred by failing to 

include Gobert in bench conferences that Gobert’s attorney 

attended. We disagree.

Before the first bench conference in the jury selection process

after Gobert’s case had been called for trial, the trial court stated the 

 3 Gobert has not challenged the sufficiency of the evidence presented in 

regard to the three counts of possession of a firearm during the commission of 

a felony for which he was found guilty and sentenced. Because this case was 

docketed to this Court’s term commencing in December 2020, we do not review 

the sufficiency of the evidence as to those counts sua sponte. See Davenport v. 

State, 309 Ga. 385, 399 (4) (846 SE2d 83) (2020).
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following: “Let’s take that up, up here. Mr. Dunn, your client’s 

always welcome up here just so you know.” Dunn, Gobert’s trial 

counsel, responded, in Gobert’s presence, “Mr. Gobert, the defendant 

is staying here, Your Honor.” The court then stated, “All right. Noted 

for the record.” The court then conducted four additional bench 

conferences with potential jurors, Gobert’s trial counsel, the 

prosecutor, and a court reporter, which resulted in the dismissal of 

some potential jurors. Gobert made no objection at trial to his 

absence from any of those bench conferences but now asserts on 

appeal that it was error to exclude him.

A defendant has a right to be present at critical stages of the 

criminal proceeding against him. See Huff v. State, 274 Ga. 110, 111 

(2) (549 SE2d 370) (2001). “[P]roceedings at which the jury 

composition is selected or changed are critical stages at which the 

defendant is entitled to be present.” (Citation and punctuation 

omitted.) Zamora v. State, 291 Ga. 512, 518 (7) (b) (731 SE2d 658) 

(2012). However, “the right to be present belongs to the defendant, 

and he is free to relinquish it if he so chooses.” (Citation omitted.) 
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Burney v. State, 299 Ga. 813, 820 (3) (b) (792 SE2d 354) (2016). A 

defendant

may personally waive his right to be present at a stage in 

the trial, or counsel may waive this right for the 

defendant. But in order for the waiver of counsel to be 

binding on the defendant, it must be made in his presence 

or by his express authority, or be subsequently acquiesced 

in by him.

(Citation and punctuation omitted.) Pennie v. State, 271 Ga. 419, 

421 (2) (520 SE2d 448) (1999). Gobert was present in court both

when the trial court invited him to “always” join his counsel at bench 

conferences and when his attorney waived his presence at such 

conferences, and he did not voice any objection to his counsel’s 

statement. Nor did he or his counsel ever seek his inclusion in any 

of the subsequent bench conferences of which Gobert now complains 

on appeal. Thus, his right to be present was waived, and this 

enumeration of error fails.

3. Gobert also contends that the trial court erred when it failed 

to instruct the court reporter to transcribe jury selection and the 

charge conference. However, the record shows that jury selection
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and the charge conference were, in fact, transcribed and recorded, 

including individual queries with potential jurors. Accordingly, this 

claim provides no basis for reversal.

4. Gobert also argues that the trial court erred when it failed 

to either grant his motion for mistrial or rebuke the prosecutor in 

accordance with OCGA § 17-8-75 when the prosecutor, in the 

presence of the jury, referenced the reasons behind a witness’s 

unavailability to testify. For the reasons explained below, we 

conclude that, even if the trial court committed error by not rebuking 

the prosecutor, any such error was harmless. We also conclude that 

the trial court did not abuse its discretion by not granting a mistrial.

During the defense’s closing argument, Gobert’s counsel 

commented on the fact that the State did not call Putnam as a 

witness. In response, during its closing argument, the State 

remarked that “Putnam is a defendant in state court. I can’t put him 

up on the stand.” Outside the presence of the jury, Gobert’s counsel 

objected to this statement and moved for a mistrial on the ground
15

that the State was arguing matters not in evidence.4 The State 

claimed it was responding to Gobert’s argument about the fact that

the State had not called Putnam to testify. The trial court noted that 

the defense had opened the door to the State’s argument and that 

Putnam had invoked his right against self-incrimination. The trial 

court then denied the motion for mistrial and brought the jury back 

in to provide an explanation for what occurred. Before the trial court 

instructed the jury, Gobert’s counsel stated that he would object to 

any instruction and renewed his motion for mistrial. The trial court 

replied that it would allow Gobert to have a standing objection to 

what the trial court told the jury. The trial court then instructed the 

jury that “self-incrimination issues get very tangled” and that if 

either the State or the defense had called a witness, the witness had 

the right against self-incrimination, and if the witness chose to 

assert that right, the jury would not hear testimony from that 

 4 Even though closing arguments were not transcribed, the court 

reporter recorded Gobert’s objection to the prosecutor’s remark, the discussion 

of the remark with the court, the subsequent motion for mistrial, and the 

court’s ruling and curative instruction to the jury. Neither party disputes the 

content of the remarks made during either side’s closing argument.
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witness. The trial court also emphasized that what lawyers said 

during opening and closing remarks is not evidence.

(a) Gobert claims that the trial court erred by failing to rebuke 

the prosecutor, as required by OCGA § 17-8-75, which provides:

Where counsel in the hearing of the jury makes 

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.

However, even assuming that the trial court erred by failing to

rebuke counsel, any such error was harmless. 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). As discussed above, 

the evidence of Gobert’s guilt was strong, and his justification 

defenses were weak and unsupported. Moreover, the trial court 

instructed the jury both before opening statements and after closing 

arguments that the lawyers’ statements were not evidence. See 

Dobbins, 309 Ga. at 168-169 (3) (explaining that even assuming that 
17

the trial court erred in not rebuking the prosecutor under OCGA § 

17-8-75, any such error was harmless because of the strong evidence 

against the defendant and the trial court’s instructions that closing 

argument is not evidence); see also Fleming v. State, 306 Ga. 240, 

243 (2) (830 SE2d 129) (2019) (same). As a result, “it is highly 

probable that the trial court’s alleged error in failing to comply with 

OCGA § 17-8-75 did not contribute to the verdicts.” (Citation and 

punctuation omitted.) Dobbins, 309 Ga. at 169 (3).

(b) Gobert also argues that the trial court abused its discretion 

by denying his motion for mistrial after the prosecutor’s closing 

argument referred to information not in the record. We disagree.

“It is within the sound discretion of the trial court to grant or 

deny a motion for mistrial, and such ruling will not be disturbed 

unless it resulted from a manifest abuse of discretion.” (Citation and 

punctuation omitted.) Jordan v. State, 303 Ga. 709, 713 (4) (814 

SE2d 682) (2018). “When determining whether the trial court 

abused its discretion, [this Court will] consider [the allegedly 

improper statement], other evidence against the accused, and the 
18

actions of the trial court and counsel dealing with the impropriety.”

(Citation omitted.) Taylor v. State, 303 Ga. 225, 229 (3) (811 SE2d 

286) (2018). And when considering requests for mistrial during 

closing arguments, “a closing argument is to be judged in the context 

in which it is made.” (Citation omitted.) Stephens v. State, 307 Ga. 

731, 737 (3) (838 SE2d 275) (2020).

As discussed above, even though the closing arguments were 

not transcribed, both parties agree on the general substance of the 

comments made. As detailed above, the trial court instructed the 

jury that nothing said by the lawyers during opening and closing 

remarks is evidence and further explained Putnam’s Fifth 

Amendment privilege against self-incrimination to the jury. Before 

and after the trial court gave this instruction, Gobert objected that 

this instruction was not enough to cure the harm done by the 

prosecutor’s statements and moved for a mistrial. Under these 

circumstances, especially considering the instructions given by the 

trial court and the strong evidence against Gobert, the trial court 

did not abuse its discretion by denying Gobert’s motion for a 
19

mistrial. See Stephens, 307 Ga. at 737 (3). Accordingly, this 

enumeration fails.

Judgment affirmed. All the Justices concur.