CourtListener 10680354

Full text

In the Supreme Court of Georgia

Decided: April 16, 2024

S24A0125. STRYKER v. THE STATE.

COLVIN, Justice.

Appellant Austin Stryker appeals his convictions for malice

murder and other crimes related to the shooting and stabbing death

of Hannah Bender.1 On appeal, Appellant contends that the trial

1 Bender died on September 15, 2019. On December 18, 2019, a Dawson

County grand jury indicted Appellant and co-defendants Issac Huff, Dylan
Reid, and Jerry Harper in connection with Bender’s death. Huff and Reid each
entered negotiated guilty pleas in exchange for their testimony at Appellant’s
trial. On July 27, 2021, the grand jury reindicted Appellant and co-defendant
Harper in a 29-count indictment related to Bender’s death, which charged
Appellant in Counts 1-24 and Harper in Counts 25-29. Appellant was charged
with malice murder (Count 1), three counts of felony murder (Counts 2-4),
three counts of aggravated assault (Counts 5-7), two counts of aggravated
battery (Counts 8-9), possession of a firearm during the commission of a felony
(Count 10), possession of a knife during the commission of a felony (Count 10),
11 counts of violating the Street Gang Terrorism and Prevention Act (Counts
12-22), concealing the death of another (Count 23), and tampering with
evidence (Count 24).
Appellant was tried before a jury without Harper from November 1
through 9, 2021, and the jury returned verdicts of guilty as to all counts. On
December 15, 2021, the trial court sentenced Appellant to life in prison without
the possibility of parole for malice murder (Count 1) and consecutive sentences
court violated his constitutional right to present a complete defense

when it prevented defense counsel from making a closing argument

that co-defendants Issac Huff and Dylan Reid would have faced

minimum sentences of life in prison had they not pled guilty.

Appellant also contends that the prosecutor personally attacked

defense counsel in closing argument and that the trial court abused

its discretion in overruling his objection to those personal attacks.

Finally, Appellant argues that the trial court erred in failing to

charge the jury on “grave suspicion” after, as he contends, the

of 20 years in prison for aggravated battery (Count 9), a total of ten years in
prison for possession of a firearm and knife during the commission of a felony
(Counts 10 and 11), and ten years in prison for concealing the death of another
(Count 23). The court imposed concurrent sentences of 20 years in prison for
aggravated assault (Count 7), 20 years in prison for each count of violating the
Street Gang Terrorism and Prevention Act (Counts 12-22), and ten years in
prison for tampering with evidence (Count 24). The remaining aggravated-
assault charges (Counts 5 and 6) and aggravated-battery charge (Count 8)
were merged for sentencing purposes. And although the court purported to
merge the felony-murder counts (Counts 2-4) with malice murder for purposes
of sentencing, those counts were actually vacated by operation of law. See
Malcom v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993).
Appellant timely filed a motion for new trial on January 12, 2022, and
amended the motion on February 28, 2023. Following a hearing on March 14,
2023, the trial court denied the motion for new trial, as amended, on June 30,
2023. Appellant timely filed a notice of appeal directed to this Court on July
12, 2023. The case was docketed to this Court’s December 2024 term and
submitted for a decision on the briefs.
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prosecutor misconstrued the beyond-a-reasonable-doubt standard in

closing arguments. Although we conclude that Appellant’s claims

fail, we have identified merger errors in Appellant’s sentencing that

require correction. Accordingly, we affirm in part and vacate in part

the judgment below.

1. The evidence presented at trial showed the following.

Appellant was a member of a small gang called “THIS,” alongside

Jerry Harper, Jeremiah Wazar, Dylan Reid, Issac Huff, and Damien

Edge. Bailey Williams was also associated with “THIS,” although

she was not an official member, and Bender was Williams’s friend.

Huff and Reid testified that the gang sold drugs and committed

robberies, including armed robberies of two stores in the months

leading up to Bender’s death. Huff and Williams admitted that they

helped Appellant commit an armed robbery of a store in Dahlonega.

Huff also testified that Appellant told him about an armed robbery

Appellant and Edge committed in Dawsonville.

Reid testified that, prior to the date of Bender’s death,

Appellant mentioned that he suspected Bender was “snitch[ing]”

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about the armed robberies committed by the gang and that he

wanted to “[g]et rid of her.” Then, in the early hours of September 5,

2019, while Appellant, Huff, and Reid were hanging out in Huff’s

basement drinking “[a] little alcohol” and using “[a] little drugs,”

their conversation turned again to Bender. Reid testified that

Appellant made another statement about getting rid of Bender. And

Huff testified that the men talked about how they were going to

“prove to everybody” that they were “not a joke” by “roughing

[Bender] up a little bit or something like that.”

Reid testified that Appellant then asked Reid to send a

message to Williams telling her that Appellant and Huff were on

their way to her house. Reid, who stayed behind, testified that, on

the way out of Huff’s residence, Appellant decided to take a pistol

Appellant had gotten from a man named Robert Youngblood, saying,

“You never know. I might need it.” Huff testified that he then drove

Appellant in a Mazda truck to a gas station and then to Williams’s

home. Huff said that he waited in the truck while Appellant talked

to Williams inside her home. Williams said that, during this visit,

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Appellant asked her to message Bender and told Williams he “had a

problem he needed to deal with.”

Huff drove Appellant to Bender’s house, and Appellant went

inside. According to Huff, Appellant planned to convince Bender to

come with them by telling her that they were taking her on a trip to

Florida. And when Bender came out to the truck with Appellant, she

was carrying a duffle bag.

Appellant and Bender sat across from each other in the “two

fold-out seats” behind the driver and passenger seats of the truck.

According to Huff, after they stopped at a gas station to purchase

gas and cigarettes, they drove to Appellant’s house because, as Huff

later learned, Appellant suspected that the gas station cameras had

recorded the clothes he had been wearing and he wanted to change

clothes. Huff testified that, while Appellant was inside changing,

Bender talked about how excited she was to visit Florida.

Appellant returned to the truck, and they started driving to

Huff’s residence. Huff testified that a few minutes into the drive,

Appellant told Huff to “slow down,” so Huff “dropped gears in the

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truck.” “[S]hortly after that,” Huff testified, he “heard a shot go off

in the back of the truck,” and then Appellant “climb[ed] into the

front seat” and “told [Huff] to drive faster, to go now, get out of

there.”

Huff testified that he heard “a gurgling-type noise” coming

from Bender after the shooting, and when they arrived at Huff’s

house, Huff saw that Bender was slumped over in the back seat in a

pool of blood. Huff then went into the house, woke up Reid, and told

Reid to go outside.

Reid testified that he walked outside, finding Appellant

shirtless and wiping Reid’s knife on the ground. Appellant

instructed Reid to grab a trash bag and a blanket from inside the

house, which he did. Appellant then instructed Reid to help him get

Bender’s body out of the truck. Reid testified that he and Appellant

put a trash bag over Bender’s head, pulled her out of the truck,

wrapped her in a blanket, and threw her body in a nearby firepit.

According to Huff, Appellant told him not to let anyone walk near

the firepit, and Reid recalled Appellant telling Huff “to keep an eye

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on her [be]cause she may still be alive.” Appellant and Reid then

drove the Mazda to Appellant’s house, where they retrieved

Appellant’s Ford Explorer.

Huff testified that when Appellant and Reid returned to Huff’s

house, Appellant told Huff that they were going to get rid of all the

evidence. Reid said that he and Appellant then drove the Ford to

Williams’s house, where, according to Williams, Appellant told her

she needed to go with them. Williams testified that they drove the

Ford to Appellant’s house, where Appellant got into the Mazda with

Reid, and that Appellant asked Williams to follow them in the Ford

and swerve if she saw any cops to distract them.

Shortly after leaving Appellant’s house, Appellant stopped the

car and told Reid to switch places with Williams. Williams testified

that, when she got into the truck, she smelled blood and saw blood

“everywhere.” After driving a while, they stopped at the end of a

gravel road, and Appellant instructed Reid to return the Ford to

Appellant’s wife before she went to work, which he did.

Williams testified that she and Appellant then drove to a

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campground, where Appellant disposed of Bender’s belongings.

According to Williams, Appellant also unbolted the two front seats

of the truck at the campground but did not remove them because a

park ranger was nearby. Later, they drove to Youngblood’s property,

where Harper’s camper was located. According to Williams,

Appellant talked about Bender during the drive, saying that he “shot

her” and that, “when she didn’t die right away[,] . . . he stabbed her.”

Williams further testified that Appellant said, “I had to do it, didn’t

I? A rat is a rat. I had to do it.”

Youngblood testified that Appellant asked for help, and

Youngblood agreed to drive Appellant. Appellant then directed

Youngblood to a campground, where, according to Youngblood,

Appellant got out to look for something. Youngblood testified that,

at some point, Appellant talked to him about Bender, saying that he

“thought that she was undercover” and had “stabbed her.”

Appellant returned to Huff’s house later to retrieve the body

from the firepit. With Reid’s help, Appellant moved Bender’s body

into a toolbox from the bed of the Mazda truck. Appellant’s wife then

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drove the Ford to Huff’s house, and they loaded the toolbox

containing Bender’s body into the vehicle. Appellant, Appellant’s

wife, Appellant’s baby, and Reid all drove in the Ford to

Youngblood’s property. They left the toolbox containing Bender’s

body by a camper, which the evidence showed belonged to Harper,

and then stripped out parts of the Mazda. Reid said that they bagged

up the Mazda parts and then drove them to another location, where

they threw the parts off the side of a hill.

Later, Harper drove the Mazda to a local farmer’s property

with Appellant following him in the Ford. The farmer testified that

Harper offered him the Mazda, and that he agreed to take it.

According to the farmer, Harper and Appellant then went down to a

creek on the property. The farmer believed that they were going

down to the creek “to get some sand,” but Reid testified that

Appellant buried Bender’s body there.

Appellant asked Huff and Reid to put dirt on Bender’s body

every few days to prevent it from being discovered. Appellant also

separately asked Huff, Reid, and Williams to drive him out of the

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state, but they declined, and Harper ultimately drove Appellant to

West Virginia. 2

Youngblood testified that he kept a loaded pistol on top of his

refrigerator, that Appellant had taken the gun without Youngblood’s

knowledge or permission, and that the gun was unloaded when

Appellant returned it. After hearing that Bender was missing and

discovering bloodstained clothing in his laundry room, Youngblood

called the police and turned over the clothing and his gun. Prompted

by a news report, the farmer also contacted the police, and officers

took possession of the Mazda truck.

Investigators discovered Bender’s body buried in a shallow

grave by the creek on the farmer’s property on September 25, 2019.

The medical examiner who performed Bender’s autopsy testified

that Bender’s injuries consisted of a single gunshot wound to the

head and 32 stab wounds to her head, neck, chest, abdomen, back,

and arms. The medical examiner said that the bullet entered

2 In October 2019, Appellant turned himself in and was extradited back

to Georgia.
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Bender’s forehead at a downward angle, and he agreed that it was

“extremely unlikely” that someone would accidentally shoot

themselves in that manner. He also testified that he observed

fractures of three ribs “consistent with having been caused by the

stab wounds.” The medical examiner determined that the cause of

Bender’s death was the gunshot wound, the stab wounds, or a

combination of both.

A crime scene specialist examined the Mazda truck and found

high-velocity blood spatter that was consistent with a gunshot to the

head in the rear passenger side of the vehicle, as well as medium-

velocity blood spatter in the truck that was consistent with castoff

from a hand or weapon. DNA testing revealed that blood samples

taken from the Mazda matched Bender’s DNA profile, and that DNA

samples taken from the inside and outside of a pair of jeans

recovered from Youngblood’s house matched Appellant’s and

Bender’s DNA profiles, respectively.

A ballistics expert testified that, based on his analysis of bullet

fragments recovered from the medical examiner and the firearm

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recovered from Youngblood, the bullet was fired from Youngblood’s

gun. He also opined that, due to the gun’s design, holding the gun

improperly could make it “a lot more difficult to fire.”

Testifying in his own defense at trial, Appellant confirmed

many of the details testified to by other witnesses. Specifically,

Appellant testified that he was a member of a gang called “THIS,”

that he committed an armed robbery in 2019 with Huff, Wazar, and

Williams, and that he had smoked methamphetamine and drank

alcohol while in Huff’s basement with Huff and Reid in the early

hours of September 15, 2019.

Diverging from Huff’s and Reid’s accounts, however, Appellant

testified that he left Huff’s house to go steal methamphetamine from

a drug dealer known as “Cuz.” Appellant testified that he and Huff

drove to Williams’s house because he thought Cuz might be there.

After discovering that Cuz was not there and “smok[ing] a little

dope,” Appellant asked Williams to come with them, thinking that

it would be easier to find Cuz if Williams was the one to contact him

because “[p]eople who sell drugs like beautiful women.” When

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Williams declined, Appellant decided to ask Bender for help instead

because Bender and Cuz had previously had “a romantic

relationship for a long time,” and Appellant knew that Bender “had

a crush on [Appellant].” Appellant testified that he and Huff then

went to Bender’s house, where he went inside and told her that he

“had the tools necessary to rob Cuz” and that they would go to

Florida after robbing Cuz.

According to Appellant, as they were driving, Bender asked

him if he had a gun. Appellant said that he responded by tapping

his right pocket, and, when “[s]he looked at [him] kind of funny,” he

“pulled [the gun] out, dropped the clip real quick, trying to seem

cool,” and “handed it to her.” Describing how Bender held the gun,

Appellant said “[s]he ha[d] it in her left hand with her fingers back,”

her “index finger pointing up,” “her thumb in the trigger guard,” and

the gun “pointed at her head,” which Appellant said was

“[c]ompletely opposite of how you would hold a gun.” Appellant

testified that he had told Huff to slow down because Huff was

driving too fast, and that, when he saw the gun was pointed at

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Bender’s head, he realized he had not cleared the chamber and tried

to say, “Hey.” According to Appellant, he did not “remember a jerk

in the vehicle,” only that there “was the gunshot,” and Bender

“immediately slump[ed] over.” Appellant said that he then picked

up the gun, jumped in the front seat, “said a cuss word and told

[Huff] to go. Hurry. Get to the house.”

Appellant testified that, after arriving at Huff’s house, he tried

to remove Bender from the truck, but she was too heavy. He said

that Bender did not show any signs of life and there was a knife in

the passenger seat of the truck, so he stabbed her for a “[c]ouple of

minutes,” thinking “maybe [he] could make her weigh less” if he

“drain[ed] the blood.” Appellant also admitted that he tried to cover

up Bender’s death, testifying that he put her body in a firepit at

Huff’s house, disposed of her belongings at a campground,

transported Bender’s body in a toolbox, stripped out parts of the

Mazda and disposed of them, attempted to get rid of the Mazda, and

buried Bender’s body. But he denied murdering Bender.

2. Appellant argues that the trial court violated his right under

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the United States Constitution to present a complete defense when

it prohibited him from making a closing argument about the specific

sentences Huff and Reid avoided by pleading guilty. We conclude,

however, that any error in limiting the scope of Appellant’s closing

argument was harmless.

At trial, Huff and Reid each testified about their plea deals.

Huff testified that he had initially been charged with felony murder

as an accomplice in the case and that he had pled guilty to the lesser

offenses of aggravated assault, concealing a death, and violating the

Street Gang Terrorism and Prevention Act in exchange for testifying

at Appellant’s trial and receiving a reduced sentence of 30 years with

12 to serve. He further testified that he understood felony murder

carried a mandatory minimum sentence of life in prison, and that he

was concerned that his plea deal could be revoked and he could

receive a harsher sentence if he lied at trial. Reid similarly testified

that he had initially been charged with felony murder in connection

with the case and that he had pled guilty to aggravated assault,

concealing the death of another, tampering with evidence, and

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violating the Street Gang Terrorism and Prevention Act in exchange

for testifying at Appellant’s trial and receiving a sentence of 35 years

with 15 to serve. On cross-examination, Reid agreed that “15 [years

was] a hell of a lot better than life” and admitted that he felt like he

was in a tough situation because prosecutors had met with him

before trial, making it clear that, if he said anything different at trial

than he had said during his plea colloquy, they would take steps to

revoke his plea deal.

During closing arguments, defense counsel attempted to use a

demonstrative, which defense counsel described as “a slide on the

risks that [Huff and Reid] avoided, [the] sentence they avoided[,] by

taking a plea deal.” 3 But the court prohibited defense counsel from

using the demonstrative or “talk[ing] about a minimum of life in

prison” because it was concerned that, “by conveniently talking

about what [sentences Huff and Reid] could have gotten, [counsel

was improperly] talking about what [sentence Appellant] could get.”

The court ruled that defense counsel could argue only that Huff and

3 The demonstrative is not in the record on appeal.

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Reid “were charged with felony murder, and it was reduced.”

Defense counsel then argued to the jury that, although Huff

was “one of the most reliable individuals here,” Huff and Reid were

noticeably “reluctant or hesitant” to testify, that Reid had admitted

“he was in a tough spot,” and that both men “had been charged with

felony murder” but “bargained with the State” to “ple[a]d guilty to

something that did not include the word ‘murder’” so they could

receive reduced sentences of 12 and 15 years in prison, respectively.

Defense counsel further argued that the plea deals “may have

shaped, colored, [or] influenced their testimony” and caused Huff

and Reid to “fill[ ] in some gaps after the fact” because they were

trying to make a deal with the State, which needed information that

only Huff and Reid could provide, namely, “what happened to

[Bender], what was the cause and manner of her death.”

On appeal, Appellant argues that the limitation the trial court

imposed on his closing argument violated his “federal constitutional

right” to present a defense because he was unable to argue bias

based on the fact that Huff and Reid avoided mandatory minimum

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sentences of life in prison by pleading guilty and testifying at

Appellant’s trial.

The right to counsel guaranteed by the Sixth Amendment to

the United States Constitution, which is “extended to a defendant

in a state criminal prosecution through the Fourteenth

Amendment,” includes a “right of the defense to make a closing

summary of the evidence to the trier of facts.” Herring v. New York,

422 U.S. 853, 857, 860 (II) (95 SCt 2550, 45 LE2d 593) (1975). Cf.

Nevada v. Jackson, 569 U.S. 505, 509 (II) (133 SCt 1990, 186 LE2d

62) (2013) (“The Constitution guarantees criminal defendants a

meaningful opportunity to present a complete defense[.]” (citation

and punctuation omitted)). That right is violated where a trial court

“den[ies] absolutely the opportunity for any closing summation at

all.” Herring, 422 U.S. at 863 (II). But the United States Supreme

Court has never held that a restriction on closing arguments falling

short of a complete denial of an opportunity for closing summation

violates the federal Constitution. See Glebe v. Frost, 574 U.S. 21, 23-

24 (135 SCt 429, 190 LE2d 317) (2014) (“[a]ssuming for argument’s

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sake that the trial court violated the Constitution” by “restricti[ng]”

the arguments defense counsel could present in closing (emphasis

omitted)). And the Court has further clarified that trial courts “have

broad discretion” and are “given great latitude in . . . limiting the

scope of closing summations.” Herring, 422 U.S. at 862 (II).

Assuming without deciding that the trial court violated

Appellant’s federal constitutional right to make a closing argument

by preventing defense counsel from referencing the specific

sentences that Huff and Reid avoided by pleading guilty, we

conclude that any error was harmless. It is well established that “an

error of constitutional magnitude, such as the denial of the Sixth

Amendment right to counsel, can be harmless if the State can prove

beyond a reasonable doubt that the error did not contribute to the

verdict.” Muse v. State, 316 Ga. 639, 657 (5) (c) (889 SE2d 885) (2023)

(citation and punctuation omitted). See Glebe, 574 U.S. at 23-24

(holding that, “even assuming that [the U.S. Supreme Court’s

decision in] Herring established that complete denial of summation

amounts to structural error, it did not clearly establish that the

19
restriction of summation also amounts to structural error,” and

noting that “[m]ost constitutional mistakes call for reversal only if

the government cannot demonstrate harmlessness” (emphasis in

original)). See also State v. Frost, 160 Wash. 2d 765, 782 (2) (161 P3d

361) (2007) (en banc) (holding that the standard for reviewing a trial

court’s erroneous limitation on the scope of defense counsel’s closing

argument was proof “beyond a reasonable doubt that any reasonable

jury would have convicted [the defendant], even absent the trial

court’s limitation on counsel’s argument” (citation and punctuation

omitted)); United States v. Real, 45 Fed. Appx. 647, 650 (4) (9th Cir.

2002) (unpublished) (holding that “[t]he district court erred in

disallowing [the defendant’s] argument,” which “was not misleading

and was fairly raised by the evidence,” but that the error “was

harmless beyond a reasonable doubt”).

Here, any error in limiting Appellant’s closing argument was

harmless beyond a reasonable doubt because Appellant’s convictions

were supported by overwhelming evidence that came not just from

Huff and Reid, but from Appellant himself, as well as other sources.

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Appellant admitted on the stand that he stabbed Bender and

covered up her death by putting her body in a firepit, transporting

her body in a toolbox, removing parts of the truck where she was

shot, disposing of her belongings, getting rid of the truck, and

ultimately burying her body. Thus, the only disputed issue at trial

was whether Appellant shot Bender or Bender had instead

accidentally shot herself.

The trial evidence overwhelmingly showed that Appellant,

rather than Bender, fired the bullet that struck Bender, and that he

did so with malice aforethought. Williams, who testified without the

benefit of a negotiated plea deal, said that Appellant had admitted

to her that he shot Bender and stabbed her when she did not

immediately die because she was a “rat.” And Youngblood similarly

testified that Appellant had admitted to him that he stabbed Bender

believing she was an undercover informant. Further, the medical

examiner testified that the bullet’s trajectory through Bender’s head

made it unlikely that the wound resulted from an accidental, self-

inflicted gunshot. And the ballistics expert testified that improperly

21
holding the gun, as Appellant claimed Bender had done, could have

made it even more difficult to fire the gun accidentally.

Thus, there was overwhelming evidence undermining

Appellant’s defense and proving his guilt. Cf. Ricketts v. State, 276

Ga. 466, 471 (4) (579 SE2d 205) (2003) (holding that an erroneous

limitation on the appellant’s closing argument was harmless

because the “evidence rendered [the appellant’s] story that he acted

out of the heat of passion virtually without belief”). In addition to

the overwhelming evidence of Appellant’s guilt, the jury also heard

testimony from Reid and Huff from which they could conclude that

Reid and Huff received greatly reduced sentences by entering pleas

to charges less than murder, and defense counsel was able to make

that argument in closing, albeit without specifically arguing that

Reid and Huff would have received minimum life sentences. And, as

a result, any error in limiting the scope of defense counsel’s closing

argument “was harmless beyond a reasonable doubt.” Muse, 316 Ga.

at 657 (5) (c).

Appellant argues for a different result based on Palma v. State,

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280 Ga. 108 (624 SE2d 137) (2005). In that case, we concluded that

the trial court had erroneously prevented defense counsel from

“pointing out to the jury in argument the extent of the benefit th[at]

witnesses received from agreeing to testify against [the defendant]”

based on evidence introduced at trial about “the specific punishment

the witnesses received and the potential punishments they avoided

by agreeing to testify.” Id. at 110 (2). And we concluded that the

appellant was entitled to a new trial. See id.

But Appellant’s reliance on Palma is misplaced. First, Palma

did not address a criminal defendant’s constitutional right to make

a closing argument. Rather, we concluded in Palma that the trial

court’s ruling had deprived the appellant of a right recognized in our

decisional law “to argue all reasonable inferences arising from the

evidence presented in the trial.” Palma, 280 Ga. at 110 (2). Second,

in resolving the appellant’s claim, Palma applied a standard of

review derived from our precedent concerning violations of a

criminal defendant’s statutory right to make a closing argument of

a particular duration. See id. (“A presumption of harm requiring the

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grant of a new trial accompanies the abridgement of the right to

make a closing argument, and that presumption is overcome ‘when

the denial of the right is not complete and only in those extreme

cases in which the evidence of a defendant’s guilt is so overwhelming

that it renders any other version of events virtually without belief.’”

(quoting Hendricks v. State, 277 Ga. 61, 62-63 (3) (586 SE2d 317)

(2003)). See, e.g., Hendricks, 277 Ga. at 62-63 (3) (addressing an

alleged violation of OCGA § 17-8-73, which governs the duration of

closing arguments in criminal cases); Hayes v. State, 268 Ga. 809,

813 (7) (493 SE2d 169) (1997) (same). And we have previously

indicated that cases addressing violations of “the statutory

requirement that counsel be given [a certain amount of time] for

closing argument . . . do not” supply the standard for assessing a

claimed violation of a constitutional right to present a closing

argument. Knighton v. State, 310 Ga. 586, 595-596 (2) (b) & n.8 (853

SE2d 89) (2020) (emphasis supplied) (addressing a claimed violation

of the defendant’s constitutional right to a fair trial based on

interruptions that allegedly prevented defense counsel “from

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making a full closing argument”). Finally, Palma is distinguishable

because there we concluded that the trial court’s error was not

harmless because the evidence of guilt was not “overwhelming.”

Palma, 280 Ga. at 110 (2). Here, by contrast, overwhelming evidence

established Appellant’s guilt. Accordingly, this claim fails.

3. Appellant argues that the trial court abused its discretion in

overruling his objection that the prosecutor personally attacked

defense counsel during closing arguments. We discern no abuse of

discretion.

As an initial matter, Appellant did not make contemporaneous

objections to most of the prosecutor’s statements that he now

challenges on appeal, so his challenges to those statements are not

preserved for appellate review. See Moon v. State, 311 Ga. 421, 426

(4) (858 SE2d 18) (2021) (noting that “we do not review unpreserved

challenges to closing arguments in non-death penalty cases, even for

plain error”); Chapa v. State, 288 Ga. 505, 506 (2) (705 SE2d 646)

(2011) (holding that the appellant’s argument that the prosecutor

made an improper closing argument “ha[d] not been preserved for

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appeal because appellant failed to object to the prosecutor’s closing

argument at the time”).

Appellant raised only one objection during closing arguments

related to this enumeration of error. Specifically, Appellant objected

that the prosecutor had made an improper “personal attack” after

the prosecutor said that “the defense’s argument” was “[a]s

reasonable as saying that aliens came down and shot Hannah

Bender,” that the argument “d[id] not compute with common sense,”

and that “they are insulting our intelligence[,] [t]hey’re insulting the

whole process, and they’re insulting and disrespecting Hannah

Bender’s memory.” Following Appellant’s objection, the prosecutor

offered to move on, and the court did not rule on the objection. Then,

after the court charged the jury, Appellant asked for a ruling on his

objection to the prosecutor’s statements.4 The court overruled the

objection, finding that the prosecutor’s argument “didn’t have

4 Although Appellant asked the trial court to give a “curative instruction

of the sympathy charge,” Appellant does not argue on appeal that the
prosecutor made improper sympathy arguments in closing, so we do not
address that issue.
26
anything to do with” defense counsel or “say you were somehow bad

lawyers or had done something improper or unethical.” In its order

denying Appellant’s motion for new trial, the court reached the same

conclusion, finding that the prosecutor’s argument was not in fact a

personal attack but instead an attack on the defense’s theory of the

case.

Assuming without deciding that Appellant’s objection that the

prosecutor personally attacked defense counsel in closing arguments

is adequately preserved for appellate review, even though defense

counsel did not obtain a ruling on the objection until after closing

arguments concluded and the court had charged the jury, Appellant

has not shown that the trial court abused its discretion in overruling

the objection. Appellant argues that the prosecutor’s argument was

“essentially the same” as the one that the Court of Appeals

concluded was improper and required a new trial in Estep v. State,

129 Ga. App. 909 (201 SE2d 809) (1973). But Estep is not analogous

to this case.5 In Estep, the Court of Appeals concluded that the

5 We express no opinion as to whether Estep was correctly decided.

27
prosecutor had made improper “comment[s] that opposing counsel

kn[ew] the defendant to be guilty [and] kn[ew] his client’s case [was]

not meritorious” when the prosecutor told the jury that defense

counsel was “a good friend of mine” and that “he knows he doesn’t

have any merits on this case and he is just trying to confuse you.”

Id. at 915-916 (8) (punctuation omitted). Here, by contrast, the

prosecutor did not indicate that he had a personal relationship with

defense counsel or knew that defense counsel believed Appellant

was guilty.

Further, the context surrounding the prosecutor’s remarks

supported the trial court’s finding that the prosecutor was

challenging the reasonableness of the defense theory, not, as

Appellant contends, making an ad hominem attack on defense

counsel. Specifically, in the objected-to portion of the prosecutor’s

argument, the prosecutor expressly said that it was “the defense’s

argument” that was unreasonable. (Emphasis supplied.) As a result,

the trial court reasonably interpreted the prosecutor’s following

remarks about the defense “insulting our intelligence,” “insulting

28
the whole process,” and “insulting and disrespecting Hannah

Bender’s memory” as criticisms of the theory of the defense, not of

defense counsel personally. See Gissendaner v. State, 272 Ga. 704,

713 (10) (a) (532 SE2d 677) (2000) (affirming the trial court’s

rejection of defense counsel’s argument that the prosecutor made an

improper “personal attack” during closing arguments where the

prosecutor said that “[w]hat you just heard from defense counsel has

done a tremendous violence to the truth in this case” and that

defense counsel’s argument was “an insult to the truth”

(punctuation omitted)). Accordingly, this claim fails.

4. Appellant also argues that the trial court erred in failing to

charge the jury on “grave suspicion” after, as Appellant claims, the

prosecutor misconstrued the burden of proof in closing arguments.

See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases

(2007), § 1.20.20 Grave Suspicion (“Facts and circumstances that

merely place upon the defendant a grave suspicion of the crime

charged or that merely raise a speculation or conjecture of the

defendant’s guilt are not sufficient to authorize a conviction of the

29
defendant.”). This argument also fails.

In closing argument, defense counsel drew attention to the

beyond-a-reasonable-doubt standard, explaining that there were

three different standards of proof commonly used in the judicial

system. Defense counsel said that the preponderance-of-the-

evidence standard was “the lowest standard of proof”; “[t]he next

level up from that is clear and convincing evidence,” which is “a high

threshold” that is “above preponderance” and “below proof beyond a

reasonable doubt”; and “[h]igher than that is” proof beyond a

reasonable doubt, which “does not mean proof to a mathematical

certainty[,] . . . but it’s close.” Responding to defense counsel’s

statements about the standard of proof, the State argued:

The judge is not going to tell you about clear and
convincing evidence or preponderance or how reasonable
doubt is higher than clear or lower than clear. That’s not
what the judge is going to tell you because that’s not the
law. . . . What you’re going to get from the judge is
reasonable doubt means just what it is. A reasonable
doubt is a doubt based upon—once again I’m highlighting
these words—common sense and reason. It’s that basic.
It’s that basic. You’re not going to see a chart about clear
and convincing, and it’s higher than that. That’s just
inaccurate. . . . So the judge will tell you that reasonable

30
doubt is a doubt based upon common sense and reason.

Appellant did not object to this statement. And following closing

arguments, the court charged the jury on, among other things, the

presumption of innocence, the State’s burden to prove guilt beyond

a reasonable doubt, and the definition of reasonable doubt as “doubt

of a fair-minded, impartial juror honestly seeking the truth[,] . . . a

doubt based upon common sense and reason.”

Because Appellant did not object to the trial court’s failure to

give a “grave suspicion” charge following the court’s charge to the

jury, we review Appellant’s claim only for plain error. See Rountree

v. State, 316 Ga. 691, 693 (1) (889 SE2d 803) (2023) (noting that

“objections at a charge conference do not suffice to preserve

objections to the charge as subsequently given,” and holding that the

trial court’s failure to give the defendant’s requested jury instruction

could be reviewed only for plain error because he “made no objection

when the trial court finished reading the charge to the jury” (citation

and punctuation omitted)). To show that a trial court plainly erred

in failing to give a jury instruction, “an appellant must show that (1)

31
the alleged error was not affirmatively waived, (2) it was obvious

beyond reasonable dispute, . . . (3) it affected the appellant’s

substantial rights,” and (4) it “seriously affected the fairness,

integrity or public reputation of judicial proceedings.” Willis v. State,

315 Ga. 19, 26 (3) (b) (880 SE2d 158) (2022) (citations and

punctuation omitted).

Appellant has not shown any error, much less plain error.

When evaluating whether a trial court erred in failing to give a jury

instruction, “we view the charge as a whole to determine whether

the jury was fully and fairly instructed.” Clark v. State, 315 Ga. 423,

440 (4) (883 SE2d 317) (2023) (citation and punctuation omitted).

Here, a “grave suspicion” charge was unnecessary to fully and fairly

instruct the jury because that charge was adequately covered by the

charge as a whole, which included instructions on, among other

things, the presumption of innocence, the State’s burden to prove

guilt beyond a reasonable doubt, and the definition of reasonable

doubt. See Payne v. State, Case No. S23A1205, __ Ga. __, __ (4) (__

SE2d __) (2024) (holding that the trial court did not err in failing to

32
instruct the jury on grave suspicion because “the trial court’s

instructions on reasonable doubt, the presumption of innocence,

mere presence, and mere association adequately covered the

requested grave suspicion charge”); Adkins v. State, 314 Ga. 477,

483 (3) (887 SE2d 582) (2022) (holding that the trial court did not

err in failing to instruct the jury on grave suspicion “because the

concept was covered in other jury instructions,” including

instructions on reasonable doubt and the presumption of

innocence). And even assuming that the prosecutor misconstrued

the burden of proof, Appellant has not explained how a grave

suspicion instruction would have resolved any confusion caused by

the prosecutor’s statements. Nor has he shown that the trial court’s

instructions, as given, were insufficient to resolve any such

confusion. Accordingly, Appellant has not established plain error.

5. Although Appellant has not raised the issue on appeal, we

have identified two merger issues in his sentencing. See Goodman

v. State, 313 Ga. 762, 770 (2) (c) (873 SE2d 150) (2022) (noting that

“we often . . . exercise our discretion sua sponte to vacate a sentence

33
for the benefit of defendants if we notice that it is void”); Jackson v.

Crickmar, 311 Ga. 870, 873 (2) (860 SE2d 709) (2021) (noting that

a sentence imposed on “a conviction that merges with another

conviction is void” (citation and punctuation omitted)).

To authorize separate convictions for aggravated assault and

malice murder of a single victim, or for aggravated battery and

malice murder of a single victim, the trial evidence must show “that

the defendant committed an aggravated assault [or aggravated

battery] independent of the act that caused the victim’s death.”

Edwards v. State, 301 Ga. 822, 828-829 (4) (a), (b) (804 SE2d 404)

(2017). This requires evidence not only that there was a “deliberate

interval” between the infliction of two separate wounds but also

that one of the wounds was “fatal” while the other was “non-fatal.”

Willis v. State, 304 Ga. 686, 692 (2) (820 SE2d 640) (2018) (citation,

punctuation, and emphasis omitted).

The record reflects that Appellant was charged with

committing malice murder “by shooting [Bender] and by stabbing

[Bender]” (Count 1), committing aggravated assault “by shooting

34
[Bender] and by stabbing [Bender]” (Count 7), and committing

aggravated battery “by seriously disfiguring [Bender’s] body by

stabbing [Bender]” (Count 9). The trial court did not merge for

sentencing purposes Counts 7 and 9 with Count 1 but rather

imposed a 20-year concurrent sentence for Count 7 and a 20-year

consecutive sentence for Count 9. This was error.

Although the trial evidence showed that there was a

“deliberate interval” between Appellant shooting Bender and

Appellant subsequently stabbing her, the evidence did not support

a finding that any shooting or stabbing wounds inflicted on Bender

before she died were “non-fatal.” Willis, 304 Ga. at 692 (2) (citation,

punctuation, and emphasis omitted). To the contrary, the evidence

showed that any shooting or stabbing wounds Bender sustained

before she died were fatal. Specifically, the medical examiner

testified that the “cause of death” was the “gunshot wound to the

head and stab wounds,” as Bender had died from “either the

gunshot wound or the stab wounds or some combination of those.”

Because the trial evidence failed to show “that the defendant

35
committed an aggravated assault [or aggravated battery]

independent of the act that caused the victim’s death,” the trial

court erred in failing to merge for sentencing purposes Counts 7 and

9 with Count 1. Edwards, 301 Ga. at 828-829 (4) (a), (b). See Willis,

304 Ga. at 692 (2) (holding that, where the medical examiner

testified that “any one of the wounds would have caused [the

victim’s] death,” separate convictions for aggravated assault and

malice murder were not authorized); Alvelo v. State, 290 Ga. 609,

611-612 (2) (724 SE2d 377) (2012) (holding that aggravated assault

merged into malice murder where the pathologist “did not describe

any specific wound as being a fatal injury” and there was no

evidence that the victim suffered separate “fatal” and “non-fatal”

injuries); Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427)

(2009) (holding that an aggravated assault charge merged with

malice murder because, although a “series of shots [were] fired,” the

medical examiner “testified that the cause of death was ‘gunshot

wounds’” without “identify[ing] any injury as the fatal shot,” and

thus there was no “evidence that one wound was fatal and was

36
preceded by . . . the infliction of non-fatal wounds”). Accordingly, we

vacate Appellant’s convictions and sentences for Counts 7 and 9.

Judgment affirmed in part and vacated in part. All the Justices
concur.

318 Ga. 769
FINAL COPY

S24A0125. STRYKER v. THE STATE.

COLVIN, Justice.

Appellant Austin Stryker appeals his convictions for malice

murder and other crimes related to the shooting and stabbing death

of Hannah Bender.1 On appeal, Appellant contends that the trial

1 Bender died on September 15, 2019. On December 18, 2019, a Dawson

County grand jury indicted Appellant and co-defendants Isaac Huff, Dylan
Reid, and Jerry Harper in connection with Bender’s death. Huff and Reid each
entered negotiated guilty pleas in exchange for their testimony at Appellant’s
trial. On July 27, 2021, the grand jury reindicted Appellant and co-defendant
Harper in a 29-count indictment related to Bender’s death, which charged
Appellant in Counts 1-24 and Harper in Counts 25-29. Appellant was charged
with malice murder (Count 1), three counts of felony murder (Counts 2-4),
three counts of aggravated assault (Counts 5-7), two counts of aggravated
battery (Counts 8 and 9), possession of a firearm during the commission of a
felony (Count 10), possession of a knife during the commission of a felony
(Count 10), 11 counts of violating the Street Gang Terrorism and Prevention
Act (Counts 12-22), concealing the death of another (Count 23), and tampering
with evidence (Count 24).
Appellant was tried before a jury without Harper from November 1
through 9, 2021, and the jury returned verdicts of guilty as to all counts. On
December 15, 2021, the trial court sentenced Appellant to life in prison without
the possibility of parole for malice murder (Count 1) and consecutive sentences
of 20 years in prison for aggravated battery (Count 9), a total of ten years in
prison for possession of a firearm and knife during the commission of a felony
(Counts 10 and 11), and ten years in prison for concealing the death of another
(Count 23). The court imposed concurrent sentences of 20 years in prison for
aggravated assault (Count 7), 20 years in prison for each count of violating the
court violated his constitutional right to present a complete defense

when it prevented defense counsel from making a closing argument

that co-defendants Isaac Huff and Dylan Reid would have faced

minimum sentences of life in prison had they not pled guilty.

Appellant also contends that the prosecutor personally attacked

defense counsel in closing argument and that the trial court abused

its discretion in overruling his objection to those personal attacks.

Finally, Appellant argues that the trial court erred in failing to

charge the jury on “grave suspicion” after, as he contends, the

prosecutor misconstrued the beyond-a-reasonable-doubt standard in

closing arguments. Although we conclude that Appellant’s claims

Street Gang Terrorism and Prevention Act (Counts 12-22), and ten years in
prison for tampering with evidence (Count 24). The remaining aggravated-
assault charges (Counts 5 and 6) and aggravated-battery charge (Count 8)
were merged for sentencing purposes. And although the court purported to
merge the felony-murder counts (Counts 2-4) with malice murder for purposes
of sentencing, those counts were actually vacated by operation of law. See
Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993).
Appellant timely filed a motion for new trial on January 12, 2022, and
amended the motion on February 28, 2023. Following a hearing on March 14,
2023, the trial court denied the motion for new trial, as amended, on June 30,
2023. Appellant timely filed a notice of appeal directed to this Court on July
12, 2023. The case was docketed in this Court to the term beginning in
December 2023 and submitted for a decision on the briefs.
2
fail, we have identified merger errors in Appellant’s sentencing that

require correction. Accordingly, we affirm in part and vacate in part

the judgment below.

1. The evidence presented at trial showed the following.

Appellant was a member of a small gang called “THIS,” alongside

Jerry Harper, Jeremiah Wazar, Dylan Reid, Isaac Huff, and Damien

Edge. Bailey Williams was also associated with “THIS,” although

she was not an official member, and Bender was Williams’s friend.

Huff and Reid testified that the gang sold drugs and committed

robberies, including armed robberies of two stores in the months

leading up to Bender’s death. Huff and Williams admitted that they

helped Appellant commit an armed robbery of a store in Dahlonega.

Huff also testified that Appellant told him about an armed robbery

Appellant and Edge committed in Dawsonville.

Reid testified that, prior to the date of Bender’s death,

Appellant mentioned that he suspected Bender was “snitch[ing]”

about the armed robberies committed by the gang and that he

wanted to “[g]et rid of her.” Then, in the early hours of September 5,

3
2019, while Appellant, Huff, and Reid were hanging out in Huff’s