Durden v

State, 219 Ga. App. 732, 466 S.E.2d 641 (1995). Prejudicial testimony by codefendant. — Claim that codefendant’s testimony implicating the defendant was prejudicial did not amount to the clear showing of prejudice and denial of due process necessary to require a severance. Kennedy v. State, 253 Ga. 132, 317 S.E.2d 822 (1984). If harm shown, failure to sever trials is error. — While the mere fact that codefendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials, if the defendant can demonstrate harm resulting from the failure to sever, then such failure to sever becomes error. Price v. State, 155 Ga. App. 206, 270 S.E.2d 203 (1980), vacated in part on other grounds, 157 Ga. App. 687, 278 S.E.2d 195 (1981). Motion for severance if codefendant will not testify at defendant’s trial. — In order to have the defendant’s motion for severance granted, the defendant must show not only that the codefendant will probably not testify at trial if the defendant could cross-examine the codefendant or elicit the testimony desired, but also that the testimony of the codefendant would tend to exculpate the defendant. Cain v. State, 235 Ga. 128, 218 17-8-4 S.E.2d 856 (1975); Stevens v. State, 165 Ga. App. 814, 302 S.E.2d 724 (1983), overruled on other grounds, Green v. State, 260 Ga. 625, 398 S.E.2d 360 (1990). If a defendant moves for a separate trial, the trial judge should consider whether the codefendant would be more likely to testify if the codefendant was tried separately. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975); Stevens v. State, 165 Ga. App. 814, 302 S.E.2d 724 (1983), overruled on other grounds, Green v. State, 260 Ga. 625, 398 S.E.2d 360 (1990). Joinder with repeat offender does not require reversal for prejudice. — There is no rule of law in Georgia that prejudice requiring reversal accrues to one defendant by virtue of being tried with a repeat offender who has prior convictions alleged against the defendant in the indictment. Davis v. State, 129 Ga. App. 796, 201 S.E.2d 345 (1973). Denial of severance not an abuse of discretion if same crime and same witnesses involved. — Trial judge did not abuse the discretion given the judge in refusing to grant a severance as to the appellant since the codefendants were jointly indicted for the same crime, which involved the same witnesses, the evidence of each of which would be admissible on the trial of the others. Deuser v. State, 138 Ga. App. 211, 225 S.E.2d 758 (1976). Trial judge does not abuse the discretion delegated to the judge by refusing severance to codefendants who are jointly indicted for the same offenses, involving the same witnesses, and the evidence indicates that the defendants acted in concert. Hall v. State, 143 Ga. App. 706, 240 S.E.2d 125 (1977). Count against codefendant different from common count. — If a count of an indictment against a codefendant alone involves a different crime and victim than that contained in the common count, denial of a motion to sever constitutes an abuse of judicial discretion. Burden v. State, 131 Ga. App. 522, 206 S.E.2d 533 (1974). Failure to grant severance not error. — See Mulkey v. State, 250 Ga. 444, 298 S.E.2d 487 (1983). Since the codefendant did testify, allow- 719 Application (Cont’d) ing the defendant the opportunity to cross-examine the codefendant concerning both the codefendant’s trial testimony and in-custody statements, there was no abuse of discretion in the trial court’s denial of the defendant’s motion for a separate trial. Belcher v. State, 207 Ga. App. 117, 427 S.E.2d 88 (1993). Trial court did not err in denying the defendant’s motion to sever the defendant’s trial from that of a codefendant as the defendant offered no evidence of juror confusion, the defendant did not show that the defendant’s and the codefendant’s defenses were antagonistic to each other, that evidence against the codefendant was improperly considered against the defendant, or that the defendant’s guilt or innocence could not otherwise be fairly determined. Moore v. State, 261 Ga. App. 752, 583 S.E.2d 588 (2003). Admission of similar crimes evidence against a codefendant did not mandate severance since the trial judge gave specific limiting instructions regarding that evidence and the evidence itself did not implicate the defendant directly. Banks v. State, 230 Ga. App. 881, 497 S.E.2d 821 (1998). Notice requirements on motions to sever. — Grant of the state’s motion for severance without notice to the defendant and without a hearing was not a denial of due process since the defendant failed to show any harm resulting therefrom. Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998). Burden on the defendant making motion to sever. — When making a motion to sever, the burden is on the defendant to do more than raise the possibility that a separate trial would give the defendant a better chance of acquittal; the defendant must make a clear showing of prejudice and consequent denial of due process and in the absence of this showing, the trial court’s denial of a motion to sever will not be disturbed. Harris v. State, 218 Ga. App. 472, 462 S.E.2d 425 (1995). Order of trial of defendants. — State was within the state’s statutory right under O.C.G.A. § 17-8-4, when the state 17-8-4 proceeded with the trial against the defendant before that of the codefendant; the defendant failed to show that the defendant was prejudiced by the order of the trials, what the substance of the codefendant’s proposed testimony was, or that it was more likely the codefendant would testify on behalf of the defendant if the cases were severed. Avellaneda v. State, 261 Ga. App. 83, 581 S.E.2d 701 (2003). When the defendant was one of the people indicted in a multiple-murder case in which the state sought capital punishment, the defendant did not show that a 38-month delay between the defendant’s indictment and trial was ‘‘presumptively prejudicial,’’ because it was necessary for each coindictee to be tried separately, and this triggered the state’s statutory right, under O.C.G.A. § 17-8-4, to elect which defendant to try first; therefore, when the state elected to try the defendant’s coindictee first, the defendant’s case was prosecuted with the promptness customary for death penalty cases involving multiple defendants, and the trial court did not have to balance the factors considered in deciding whether the defendant’s right to a speedy trial was violated, given the lack of presumptive prejudice. Wimberly v. State, 279 Ga. 65, 608 S.E.2d 625 (2005). Loss of the right to open and close arguments under O.C.G.A. § 17-8-71 because another defendant presented evidence was held not to be grounds for severance under O.C.G.A. § 17-8-4. Robinson v. State, 164 Ga. App. 652, 297 S.E.2d 751 (1982). No harm from order of closing argument. — Trial court did not err in denying a defendant’s motion to sever the defendant’s trial for cruelty to a child and other offenses from that of a codefendant because the defendant showed no harm resulting from evidence against the codefendant that might have spilled over to the defendant or from the fact that the defendant was required to give a closing argument before the codefendant; the mere fact that the evidence against the codefendant might have been stronger than the evidence against the defendant did not mandate severance, and no harm was shown by the order of closing argu- 720 ments. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006). Redaction from codefendant’s statement sufficient. — Court’s denial of the defendant’s motion to sever the defendant’s trial from that of a codefendant was not error as the state agreed to redact from any codefendants’ statements references to the defendant and this was done. Cain v. State, 212 Ga. App. 531, 442 S.E.2d 279 (1994). Denial of defendant’s motion for severance was proper, since, although the defendant testified as to statements made to the defendant by the codefendants while they were incarcerated together, the defendant never mentioned another defendant’s name when testifying to a statement by one defendant. Satterfield v. State, 256 Ga. 593, 351 S.E.2d 625 (1987). Trial court did not err by failing to grant the defendant’s motion for severance requesting a separate trial from a codefendant since the codefendant failed to articulate any specific reason for severance and failed to show any actual prejudice or denial of due process which resulted from the failure to sever. Sweat v. State, 203 Ga. App. 290, 416 S.E.2d 845 (1992). When it could not be said that the number of defendants created confusion, there was no danger that evidence that was inadmissible against one defendant was admissible against another defendant, and the defendant’s and codefendant’s defenses were not antagonistic, the trial court did not abuse the court’s discretion in denying the motion to sever. Carson v. State, 208 Ga. App. 534, 431 S.E.2d 156 (1993). Because the evidence with which each defendant took issue was admissible against both of them inasmuch as each played a separate role in the crimes, and the evidentiary facts and the law applicable to each were substantially the same, a trial court did not err in refusing to grant the defendants’ motions to sever. Bolden v. State, 278 Ga. 459, 604 S.E.2d 133 (2004). Second defendant failed to show harm from the trial court’s failure to sever the second defendant’s trial from that of the two codefendants as there was no evidence that the codefendants would have 17-8-4 been willing to testify at a separate trial, that the codefendants’ testimony would have corroborated the second defendant’s defense of alibi, or that the number of defendants caused confusion. Griffin v. State, 292 Ga. 321, 737 S.E.2d 682 (2013). Defendant waived any error in failure to sever. — Defendant waived any error in the failure to sever the trial from the codefendant’s trial as the defendant did not move to sever nor join in the codefendant’s motion to sever. Robertson v. State, 277 Ga. App. 231, 626 S.E.2d 206 (2006). Eleventh circuit test for review. — Test in fifth (now eleventh) circuit for reviewing denial of severance is that the defendant must be unable to obtain a fair trial without severance and must demonstrate compelling prejudice against which the trial court will be unable to afford protection. United States v. Morris, 647 F.2d 568 (5th Cir. 1981). Right to counsel when state seeks death penalty against any one codefendant. — If the state seeks the death penalty against any one defendant in a criminal transaction, a defendant and a codefendant must be provided with separate and independent counsel. Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 136 (1980). Counsel not prepared as to all defendants. — If defendants’ counsel is prepared as to one defendant and totally unprepared as to another, it is an abuse of trial court discretion to deny a motion for severance or to fail to continue the joined case. Grant v. State, 131 Ga. App. 759, 206 S.E.2d 709 (1974). Failure to request severance not ineffective assistance. — Trial counsel’s failure to file a motion to sever a defendant’s case from a codefendant’s case did not amount to ineffective assistance of counsel; since trial counsel testified that counsel made a tactical decision not to file a motion to sever after consultation with the defendant, and since the defendant had not shown that the defendant would have benefited from a separate trial, there was evidence to support the trial court’s conclusion that trial counsel rendered effective assistance. Hubbard v. State, 274 Ga. App. 184, 617 S.E.2d 167 (2005). 721 Application (Cont’d) Because a codefendant’s statements were non-custodial and were made in furtherance of a conspiracy, the trial court did not abuse the court’s discretion in finding that the statements were admissible under former O.C.G.A. § 24-3-5 (see O.C.G.A. § 24-8-801) and did not violate Bruton; consequently, the defendant failed to demonstrate that counsel’s failure to request a severance constituted ineffective assistance. Hankerson v. State, 275 Ga. App. 545, 621 S.E.2d 772 (2005). Counsel’s defense strategy in failing to move for severance of the defendant’s armed robbery trial from that of a codefendant did not amount to ineffective assistance of counsel as such was reasonable, even if it wasn’t successful, given that: (1) the jury was unlikely to confuse the evidence applicable to either defendants; (2) the defenses were not mutually antagonistic; and (3) the defendant might have actually benefitted from being able to point to the codefendant as being the controlling figure in the robberies. Lee v. State, 281 Ga. App. 479, 636 S.E.2d 547 (2006). With regard to a defendant’s conviction for trafficking cocaine, the defendant was not rendered ineffective assistance of counsel by defense counsel failing to request that the defendant’s trial be severed from a codefendant’s trial since, as testified to by defense counsel at the defendant’s motion for a new trial, there were no legal grounds for a severance. Namely, it was completely permissible that the codefendant testified against the defendant; the codefendant’s testimony would have been admissible against the defendant even if there would have been two trials, and the defendant made no showing otherwise; and the codefendant’s testimony was consistent with the defendant’s theory of defense, specifically, that both tried to place the blame for the presence of the drugs exclusively on another. Mosley v. State, 296 Ga. App. 746, 675 S.E.2d 607 (2009), cert. denied, No. S09C1188, 2009 Ga. LEXIS 322 (Ga. 2009). Trial counsel’s failure to renew a motion to sever did not constitute deficient perfor- 17-8-4 mance because the strategic decision fell within the wide latitude of presumptively reasonable conduct engaged in by trial attorneys; counsel testified that counsel did not renew the motion to sever because counsel had impeached the codefendant on cross-examination and believed that the trial court would not grant severance at that stage of the proceedings. Glass v. State, 289 Ga. 706, 715 S.E.2d 85 (2011). Trial counsel was not ineffective for failing to move to sever the first defendant’s prosecution from that of the other defendants because, during the hearing on the first defendant’s motion for new trial, trial counsel testified that counsel believed it was a better course of action to ensure that the first defendant would not be tried separately; and counsel noted that the first defendant had been offered — and had rejected — a favorable plea deal, and that counsel had reason to believe that if the first defendant were tried alone, a co-defendant would accept a deal similar to the one offered to the first defendant, and would testify against the first defendant. Daniels v. State, 302 Ga. 90, 805 S.E.2d 80 (2017), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Juror Strikes in Joint Trials Number of strikes allowed joint defendants generally. — When two or more defendants are tried jointly for a crime or offense, the defendants collectively are entitled to the same number of strikes as a single defendant tried separately, to be exercised either jointly or proportionately at the trial judge’s direction, in view of Ga. L. 1972, p. 618, § 1, rather than each being entitled to that defendant’s full statutory allowance as was previously the law. Munsford v. State, 129 Ga. App. 547, 199 S.E.2d 843 (1973), overruled on other grounds, Lowe v. State, 133 Ga. App. 420, 210 S.E.2d 869 (1974). No equal protection violation. — O.C.G.A. § 17-8-4(b), which allows defendants tried jointly 14 peremptory challenges (while O.C.G.A. § 15-12-165 allows a defendant tried alone nine such challenges), does not violate equal protection as there are valid reasons for discriminating between the peremptory challenges of 722 single defendants and codefendants: the avoidance of undue delay and a needless burden on the public. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242, 695 S.E.2d 255 (2010). Construction with former Code 1933, § 59-805 (see O.C.G.A. § 15-12-165) as to total strikes allowed joint defendants. — Former Code 1933, § 27-2101 (see O.C.G.A. § 17-8-4), which must be construed in pari materia with former Code 1933, § 59-805 (see O.C.G.A. § 15-12-165), allows only a total of 20 peremptory challenges to two or more defendants when tried jointly. Taylor v. State, 140 Ga. App. 447, 231 S.E.2d 364 (1976). When former Code 1933, §§ 27-2101 and 59-805 (see O.C.G.A. §§ 15-12-165 and 17-8-4) were construed in pari materia, joint defendants in the same case were entitled to a total of 20 strikes to be exercised by all of the defendants. Allen v. State, 235 Ga. 709, 221 S.E.2d 405 (1975). Additional strikes when number of defendants exceeds number of strikes. — Under former Code 1933, § 27-2101 (see O.C.G.A. § 17-8-4), if more than 20 defendants are indicted and tried jointly for a felony, it does not mean that some of the defendants would have no strikes, since the trial judge is allowed to allot up to five additional strikes per defendant in excess of the number of strikes specified in former Code 1933, § 59-805 (see O.C.G.A. § 15-12-165). Albert v. State, 235 Ga. 718, 221 S.E.2d 413 (1975). Denial of motion for additional jury strikes generally. — If nothing in the record indicates that the denial of a motion for allowance of additional jury strikes is an abuse of the court’s sole discretion, that denial will be upheld. Merrill v. State, 130 Ga. App. 745, 204 S.E.2d 632 (1974); Ramsey v. State, 165 Ga. App. 854, 303 S.E.2d 32 (1983). Refusal to allow additional strikes if defendants have not exhausted strikes. — If the record shows that defendants have not exhausted the peremptory strikes to which the defendants are entitled, error, if any, in the trial court’s refusal to allow additional peremptory strikes is harmless. Smith v. State, 154 17-8-4 Ga. App. 258, 267 S.E.2d 863 (1980). Trial court did not abuse discretion by not allowing additional strikes. — Record did not indicate that the trial court abused the court’s discretion by failing to allow additional jury strikes for the defense since the two defendants were being tried jointly. Majors v. State, 203 Ga. App. 139, 416 S.E.2d 156 (1992). There was no abuse by the trial court in a joint trial by failing to allow additional jury strikes to a defendant since the defendant would have used the strikes to remove prospective jurors on the basis of race; the assertion of prejudice was without foundation because such strikes are forbidden. Adams v. State, 264 Ga. 71, 440 S.E.2d 639 (1994), overruled on other grounds by Carr v. State, 281 Ga. 43, 635 S.E.2d 767, 2006 Ga. LEXIS 640 (2006). There was no merit to the defendant’s contention that the trial court erroneously denied the defendant’s motion for additional peremptory challenges in a trial in which the defendant was tried with a codefendant; O.C.G.A. § 17-8-4 gave the trial court discretion as to whether to grant additional challenges, and defendant alleged no harm resulting from the selection of the jury. Denny v. State, 281 Ga. 114, 636 S.E.2d 500 (2006). Allotment of peremptory challenges between cocounsel. — An appropriate procedure when separate counsel representing codefendants fail to agree on a method of sharing peremptory challenges is to divide the 20 strikes between the defendants and exercise discretion whether to allot up to five additional strikes to each. The exercise of those strikes should be as follows: the first juror should be placed on the state and if accepted, then on defendant A. If accepted by defendant A, then on defendant B. The second juror should be placed on the state and if accepted, then on defendant B. If accepted by defendant B, then on defendant A. Defendants A and B should be alternated in this manner and this procedure followed until the jury is selected. Henry v. State, 256 Ga. 313, 348 S.E.2d 640 (1986). Although the political affiliations of joint defendants were not synonymous, additional strikes were not needed 723 Juror Strikes in Joint Trials (Cont’d) to remove potential members of the jury antagonistic to the political philosophy of each since undue prejudice was not shown. Monroe v. State, 250 Ga. 30, 295 S.E.2d 512 (1982). Additional strikes for state. — Trial court properly granted the state two additional jury strikes after the court gave defendants four additional strikes, two for each defendant. While it is true that O.C.G.A. § 17-8-4 is silent on the question 17-8-4 of additional strikes for the state, the statute is to be construed in pari materia with former Code 1933, § 59-805 (see O.C.G.A. § 15-12-165), which provides that the state ‘‘shall be allowed one-half the number of peremptory challenges allowed to the accused.’’ Gerald v. State, 189 Ga. App. 155, 375 S.E.2d 134 (1988). Jointly selected jury proper. — Trial court did not err by forcing the defendant to proceed to trial with a jury that was jointly selected. Swain v. State, 275 Ga. 150, 563 S.E.2d 122 (2002).