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Final Copy 288 Ga. 341 S10A1064. LACEY v. THE STATE HUNSTEIN, Chief Justice. Following a jury trial, appellant Cleondre Lamarr Lacey was convicted of malice murder, felony murder (two counts), armed robbery, aggravated assault (two counts), and possession of a firearm during the commission of a crime in connection with the shooting death of Kenneth Brett Cunningham and shooting injury of Paul Mayhew. Lacey appeals from the denial of his motion for new trial,1 arguing that the trial court erred by denying two of his

The crimes occurred on March 17, 2007, and the Gwinnett County grand jury returned a true bill of indictment against Lacey and his co-defendant, Stephanie Buskey, on June 13, 2007. The indictment charged Lacey with malice murder, felony murder (aggravated assault), felony murder (armed robbery), two counts of aggravated assault with a deadly weapon (upon Cunningham and Mayhew), armed robbery, and possession of a firearm during the commission of a felony. Lacey was tried before a jury beginning on March 3, 2008, and the jury returned a verdict of guilty on all counts on March 10, 2008. On April 3, 2008, the trial court imposed a life sentence on the malice murder conviction, a concurrent life sentence on the armed robbery conviction, a consecutive 20 year sentence on the conviction of aggravated assault on Mayhew, and a consecutive five year sentence on the firearm possession conviction. The felony murder convictions were vacated by operation of law, Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the conviction of aggravated assault on Cunningham merged with the malice murder conviction. See Bell v. State, 284 Ga. 790 (1) (671 SE2d 815) (2009). Lacey's motion for new trial, filed April 10, 2008 and amended November 4, 2009, was denied January 19, 2010. A notice of appeal was filed on February 16, 2010. The appeal was docketed to the April 2010 term in this Court and submitted for decision on the briefs.

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requests to charge; that the prosecutor improperly commented on his exercise of his right to remain silent and presented improper victim impact argument and evidence; and that his trial counsel was ineffective in failing to object to the foregoing prosecutorial misconduct. Discerning no error, we affirm. 1. The evidence at trial authorized the jury to find that on the afternoon of March 17, 2007, Cunningham was planning to sell marijuana out of his home to an individual he did not know and asked Mayhew and another friend, Phillip Freeman, to be present. Cunningham, Mayhew, and Freeman were out on the front porch when a man later identified as Lacey arrived in a car driven by Stephanie Buskey. After exiting the vehicle, Lacey approached the house and went inside with Cunningham to retrieve a scale from Cunningham's room. Thereafter, Mayhew and Freeman heard a commotion in the house and Cunningham yelling for help. Mayhew ran inside, and upon entering Cunningham's room, he saw Cunningham holding Lacey's arms up in the air. Mayhew grabbed Lacey from behind and choked him as Cunningham began punching Lacey, but Mayhew released Lacey when he heard gunshots and saw Cunningham fall on the bed. As he fled the room, Lacey shot Mayhew. Cunningham later died as a result of a gunshot wound

to his abdomen. Buskey testified at trial2 that on the day in question she was in Georgia visiting her boyfriend, Antonio Dyer. She stated that on that day, Dyer's friends, Daniel Chapman and Michael Torres, came over to Dyer's house, Chapman mentioned that Cunningham had just "re-upped" on marijuana, and she told Dyer that she wanted some. According to Buskey, Dyer said that he was going to get some marijuana by robbing Cunningham and although "he couldn't do it . . . he knew somebody that could." Buskey testified further that she met Lacey later in the day, and in Lacey's presence, Dyer said that Cunningham would be suspicious if he saw Dyer's car because Dyer had robbed Cunningham previously and it would look better if a female drove the car. Ultimately, Buskey drove Lacey to Cunningham's house. After entering the house, Lacey ran back to the car with some marijuana and reported that the men "rushed him," and he "hoped a bullet didn't hit [Mayhew]." Chapman testified that a dispute existed between Dyer and Cunningham

Buskey was indicted on charges of felony murder (armed robbery) and armed robbery. During her testimony against Lacey at trial, she stated that she had entered into a plea agreement under which she was to plead guilty under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), to conspiracy to commit armed robbery and conspiracy to possess marijuana with intent to distribute, testify truthfully at Lacey's trial, and thereafter receive a sentence of fifteen years, eight to serve.

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because Dyer had stolen marijuana from Cunningham, who, in turn, "shorted" Dyer in a later drug transaction. He further stated that on the day of the crimes, Dyer told Buskey that he had been wanting to rob Cunningham. Dyer testified that on the relevant date, Lacey was looking for marijuana; he told Lacey that Cunningham had some; and he, Torres, Buskey, and Sam Crossley met with Lacey before Lacey went to Cunningham's house. According to Dyer, Lacey later relayed that he had an argument with Cunningham, another man grabbed him, the gun fell, and he picked it up and fired three times. Torres testified that on the day in question, Lacey said that he was going to "hit a lick" and Lacey later explained that when he "went to rip [Cunningham] off," a struggle ensued, Mayhew grabbed him, and he fired a round after fighting free. Crossley testified that Lacey reported that once he grabbed the drugs, he got into a fight with Cunningham, his gun fell, and he picked it up and fired three times. We conclude that the evidence adduced at trial was sufficient to enable a rational trier of fact to find Lacey guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Lacey contends that the trial court erred by denying his requests to charge on party to a crime and conspiracy that largely tracked the language of OCGA

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