BLACKWELL, Justice.
Marquez Powell was tried by a Fulton County jury and convicted of the murder of Shah Walton, as well as possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Powell appeals, contending that the evidence is insufficient to sustain his convictions, that the prosecuting attorney made improper and prejudicial remarks in her closing argument, and that the court below impermissibly allowed the State to constructively amend the indictment at trial. Upon our review of the briefs and the record, we find no reversible error, and we affirm.
1. Viewed in the light most favorable to the prosecution, the evidence shows that Walton, Powell, and Jacques Shockley were traveling together in a car on the evening of April 18, 2005. Walton was driving, Powell was seated behind Walton, and Shockley was seated in the front passenger seat. Two witnesses saw the car stop suddenly in the road, and the witnesses saw two men exit the car on the passenger side, stand together for a moment at the front of the car, and then flee from the scene together on foot. After the passengers fled, the witnesses approached the car and found Walton, who had been shot in the head at close range. Walton died as a result of the gunshot wound. After the shooting, Powell went to the home of a friend, a few blocks from the scene of the shooting, and Shockley went to the same house, although he arrived after Powell. Notwithstanding that Powell later described Walton as a close friend, Powell did not notify law enforcement that his friend had been shot, and he instead called his sister, who picked him up and took him to the home of his mother.
A month after the shooting, an Atlanta Police detective interviewed Powell, who denied that he had met with Walton in a parking lot shortly before the shooting and that he was in the car with Walton at the time of the shooting. Powell told the detective that
On appeal, Powell claims that the evidence is insufficient to sustain his convictions because no evidence shows that he fired the fatal shot or was a party to the firing of the fatal shot. We disagree. "[A] person who does not directly commit a crime may be convicted upon proof that the crime was committed and that person was a party to it." Walsh v. State, 269 Ga. 427, 429(1), 499 S.E.2d 332 (1998) (citation omitted). See also OCGA § 16-2-20(b) (defining parties to a crime). Although mere presence at the scene of a crime is not sufficient to prove that one was a party to the crime, "presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." Brown v. State, 288 Ga. 902, 904(2), 708 S.E.2d 294 (2011) (citation and punctuation omitted). See also Hill v. State, 281 Ga. 795, 797(1)(a), 642 S.E.2d 64 (2007); Simpson v. State, 265 Ga. 665, 665-666, 461 S.E.2d 210 (1995). Here, even assuming that Shockley, not Powell, fired the fatal shot, the evidence shows that Powell and Shockley were engaged in a common enterprise at the time of the shooting, that Powell was in the car at the time of the shooting but failed to summon any help for Walton, and that Powell and Shockley stood together at the front of the car after the shooting, ran off together, and eventually made their ways to the same place. The evidence also shows that Powell "repeatedly gave false statements to the investigator." Mutazz v. State, 290 Ga. 389, 390(1), 722 S.E.2d 47 (2012). See also Brown, 288 Ga. at 904-905(2), 708 S.E.2d 294. Although Powell claimed at trial that he had nothing to do with Shockley shooting Walton and that he was, in fact, afraid of Shockley, it was for the jury to assess the credibility of this testimony. See Williams v. State, 287 Ga. 199, 200, 695 S.E.2d 246 (2010). One reasonably might infer from the evidence that Powell and Shockley shared a criminal intent with respect to the shooting, and for this reason, the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Powell was a party to the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Mutazz, 290 Ga. at 390(1), 722 S.E.2d 47; Brown, 288 Ga. at 904-905(2), 708 S.E.2d 294.
2. In her closing argument, the prosecuting attorney said that prosecutors do not seek the indictment of persons whom they believe to be innocent:
We agree with Powell that these remarks were improper. See DeNamur v. State, 156 Ga.App. 270, 270(1), 274 S.E.2d 673 (1980) (improper for prosecutor to ask in closing argument "[w]ho wants to prosecute innocent people?"). Courts have correctly chastised prosecutors "for arguing or even suggesting that `the government only prosecutes guilty people.' This line of argument is forbidden because it implies that the prosecutor reached the determination that the defendant is guilty before trial and that the jury should weigh this fact in making its determination." United States v. Stefan, 784 F.2d 1093, 1100 (11th Cir.1986). Nevertheless, we conclude that the improper remarks of the prosecuting
(a) Powell contends that the court below should have rebuked the prosecuting attorney for her improper remarks and should have given a curative instruction to the jury. But his lawyer "did not object to the now challenged comments by the prosecutor. In the appeal of a non-capital case, the defendant's failure to object to the State's closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal." Scott v. State, 290 Ga. 883, 885(2), 725 S.E.2d 305 (2012) (citations and punctuation omitted). And a trial judge has no obligation under OCGA § 17-8-75 to rebuke a prosecuting attorney or give a curative instruction in the absence of a timely objection. See id.; Simmons v. State, 281 Ga. 437, 438(4), 637 S.E.2d 709 (2006). Compare O'Neal v. State, 288 Ga. 219, 221-222(1), 702 S.E.2d 288 (2010).
(b) Powell also contends that the failure of his lawyer to object to the improper argument of the prosecuting attorney deprived him of the effective assistance of counsel. To prevail on a claim of ineffective assistance, Powell must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, Powell must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. See id. at 687-688(III)(A), 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyer, Powell must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574. Powell, we conclude, has failed to carry his burden.
Notwithstanding that the challenged remarks of the prosecuting attorney were highly improper, it is important to view those remarks not in isolation, but in their proper context. See Alexander v. State, 263 Ga. 474, 478(2)(d), 435 S.E.2d 187 (1993); see also Stefan, 784 F.2d at 1100. By the time the prosecuting attorney made those remarks, Powell's lawyer already had delivered his closing argument, and he had argued that the evidence showed that the detective responsible for the investigation of the shooting had taken a warrant for Shockley, but not for Powell. That was a fair point for the lawyer to make, but then he went beyond the evidence, speculating about the reasons for the prosecuting attorney having sought to indict Powell. When the time came for the prosecuting attorney to give her closing argument, she understandably attempted to respond to the earlier speculation about why Powell had been indicted. Just before she made the improper remarks at issue, the prosecuting attorney explained that the responsibility for charging decisions belongs ultimately to the district attorney, not police officers. And immediately following the improper remarks, the prosecuting attorney said that it was for the jury — not the district attorney, and not the detective — to decide whether Powell was guilty of the crimes with which he was charged. It seems rather "obvious that the [improper] remarks made by the [S]tate were in response to those made by the defense." Keen v. State, 164 Ga.App. 81, 88(7), 296 S.E.2d 91 (1982). And although "two improper arguments — two apparent wrongs — do not make for a right result," United States v. Young, 470 U.S. 1, 11(III), 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), we must keep this context in mind as we consider whether the failure of Powell's lawyer to object to the improper argument of the prosecuting attorney amounts to ineffective assistance under Strickland.
About deficient performance, the first element of ineffective assistance, we recall the admonition of the United States Supreme
Moreover, even if the failure of his lawyer to object might amount to deficient performance, Powell has not shown that he was prejudiced by that failure. The speculative remarks by his lawyer about the motives of the prosecuting attorney "were improper and, although they drew no objection, they certainly invited response." Keen, 164 Ga. App. at 88(7), 296 S.E.2d 91. Indeed, the prosecutor "was entitled to respond to defense counsel's remarks." Humphrey v. Lewis, 291 Ga. 202, 215(V)(A)(ii), 728 S.E.2d 603 (2012) (citation omitted). As we already have explained, the closing argument of the prosecuting attorney was improper, and two wrongs do not make a right. Young, 470 U.S. at 11(III), 105 S.Ct. 1038. But under the "invited response" or "invited reply" doctrine, inappropriate prosecutorial comments ordinarily do not amount to prejudicial error if, taken in context, they were "invited" by "defense counsel's opening salvo" and "did no more than respond substantially in order to `right the scale.'" Id. at 12-13(III), 105 S.Ct. 1038 (footnote omitted). We conclude that, viewed in context, the improper remarks of the prosecuting attorney did not undermine the fundamental fairness of the trial, and any potential harm "was mitigated by the jury's understanding that the prosecutor was countering defense counsel's ... attack[ ] on the prosecution's integrity." Id. at 17(IV), 105 S.Ct. 1038. See also Stefan, 784 F.2d at 1100 ("the harm inflicted by the prosecutor's improper remarks was lessened by the jury's
3. Powell also contends that the indictment was constructively amended at trial, apparently based on the argument of the prosecuting attorney that robbery was the motive for the murder of Walton. Robbery not having been charged in the indictment, Powell implies that this constructive amendment permitted the jury to convict him of felony murder and aggravated assault based on a legal theory that was not charged. But because the convictions for felony murder and aggravated assault were either vacated by operation of law or merged into the malice murder conviction, the claim that the indictment was improperly amended is moot. Darville v. State, 289 Ga. 698, 700(3), 715 S.E.2d 110 (2011); Parker v. State, 282 Ga. 897, 899(4), 655 S.E.2d 582 (2008). For the same reason, the additional claim that Powell was deprived of the effective assistance of counsel when his lawyer failed to object to the alleged constructive amendment of the indictment also is moot. Darville, 289 Ga. at 702(4), 715 S.E.2d 110(b).
Judgments affirmed.
All the Justices concur.
466 U.S. at 690(III)(A) (emphasis supplied); see also Harrington v. Richter, ___ U.S. ___ (IV)(A)(1), 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ("Strickland ... calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind."). In other words, it is the conduct of the lawyer, not his thinking, that we assess for reasonableness, even though the thinking of the lawyer may inform the reasonableness of his conduct.