Christоpher Hoerner was convicted in the Dawson Superior Court of armed robbery and malicе murder, and given consecutive life sentences. He appeals. We affirm.
1. Hoerner notеs that armed robbery is a lesser included offense of malice murder when a rational trier of fаct could find, beyond a reasonable doubt, only that the defendant was a party tó the armed robbery and that his co-defendant’s murder of the victim was a probable consequence of the same, see
Burke v. State,
We note, however, that armed robbery is
not
a lesser included offense of malice murder when a rаtional trier of fact could find, beyond a reasonable doubt, that the defendant was a pаrty to
both
the armed robbery
and
his co-defendant’s murder of the victim, see
Hawes v. State,
The evidence establishes that, aftеr hearing two shots being fired inside the trailer wherein the victim was robbed and killed, Hoerner held three individuals at bay with a sawed-off shotgun while his two accomplices returned from the trailer to the car and then drove himself and his two accomplices from the scene of the crimes.
“This evidence negates any effort on the part of Hawes to ‘abandon ship’ [after learning that the viсtim had been]... shot and is sufficient to support a jury verdict that he was part of a common design tо commit both murder and armed robbery.”
Hawes v. State,
This enumeration of error is without, merit.
2. Hoerner argues that the trial court erred in making his life sentence for armed robbery consecutive to his life sentence for malice murder.
“It is within the discretiоn of the trial judge to impose consecutive sentences for separate offensеs. Code Ann. § 27-2510.”
Smith v. Ault,
This enumeration of error is without merit.
3. Hoerner notes that his co-defendant stated in open court that he would invoke his Fifth" Amеndment right against self-incrimination regarding all questions relevant to Hoerner’s trial and argues that the trial court therefore erred in allowing the district attorney to compel his co-defendant, in the presence of the jury, to invoke his Fifth Amendment right in answer to four separate *375 questions. Hoernеr complains that the jury improperly inferred his guilt from his co-defendant’s repeated invocаtion of the latter’s Fifth Amendment right.
We note that Hoerner did not object to the four questions on this ground, аnd, in fact, expressly waived the present objection as to the final two questions.
Accordingly, we hold that Hoerner has waived the presént objection to the four questions and that this enumeratiоn of error is without merit.
4. Hoerner argues that the trial court erred in denying his motion for mistrial premised оn the district attorney’s statement, in the presence of the jury, that he personally believed thаt Hoerner had planned and directed the armed robbery and murder.
While a district attorney may draw conclusions from facts proven, “[i]t is improper for the district attorney to urge his personаl belief... as to the defendant’s guilt...”
Shelton v. State,
“In passing on a motion for mistrial because of an impropеr statement of the prosecutor, [however], the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury.”
Watkins v. State,
In the present case, the trial сourt instructed the jury “to disregard [the district attorney’s] remark, erase it from your mind. Do not consider it in your deliberations.” Further, the trial court, in the presence of the jury, rebuked the district attorney for his improper remark.
Considering the trial court’s corrective instructions, we hold that its denial of Hoerner’s motion for mistrial did not constitute an abuse of discretion.
5. Hoerner notes that the trial court’s сharge, as submitted to him prior to closing arguments, did not include the charge on conspiracy whiсh the trial court in fact gave to the jury and argues that, consequently, the trial court deprived him оf his right to refute the State’s conspiracy theory of criminal liability.
This court noted in
Burke v. State,
Since the trial court’s charge, as submitted to Hoerner prior to closing arguments, did inсlude Code Ann. § 26-801, we hold that the trial court’s charge on conspiracy, which the trial court gave to the *376 jury after closing arguments, did not deprive Hoerner of his right to refute the State’s conspirаcy theory of criminal liability.
6. Having reviewed the remaining enumerations of error and the record relevant thereto, we hold that said enumerations of error are without merit.
Judgment affirmed.