TABLE OF CONTENTS
1. Accomplice Testimony 2
1.1 Jury instructions regarding 2
1.2 Corroboration required to sustain conviction 2
1.2.1 Felonies
1.2.2 Misdemeanors
2. Parties to the crime 2
2.1 Definition 2
2.1.1 Drug cases 2
2.2 Conspiracy 2
2.3 Presence at scene of crime 2
3. Joint trial 2
3.1 Death penalty cases 2
3.2 Effect of disposition of one co-defendant on other co-defendants 2
3.3 Jury selection 2
3.4 Statements of co-defendants (Bruton issues) 2
3.4.1 Pretrial statements 2
3.4.2 Testimony at trial 2
4. Severance
4.1 Generally
4.2 Test for whether severance is required
4.2.1 Whether there are so many defendants that the jury would be confused as to what law and facts apply to whom
4.2.2 Whether evidence admissible against one defendant would be considered against others
4.2.3 Whether the defenses are antagonistic to each other
4.3 Order of trials for severed co-defendants
OUTLINE
1. Accomplice Testimony
1.1 Jury instructions regarding
1.2 Corroboration required to sustain conviction
To sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty. The necessary corroborating evidence may be circumstantial and it may be slight. The sufficiency of any corroborating evidence is for the trier of fact to decide. Matthews v. State, 284 Ga. 819, 819 – 20 (2009) (citations omitted).
In this case, Love’s testimony was corroborated by the other evidence in the case, including, but not limited to, the medical examiner’s confirmation that the victim died by manual strangulation, the discovery of appellant’s DNA under the victim’s fingernails, the bite mark on appellant’s arm, and the discovery of appellant’s fingerprints on the victim’s jeep. Accordingly, appellant’s assertion that Love’s testimony was uncorroborated is without merit. The evidence adduced at trial and summarized above was sufficient ot authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder and robbery by force. Matthews v. State, 284 Ga. 819, 820 (2009) (citation omitted).
While accomplice testimony alone is insufficient to sustain a felony conviction, corroborating circumstances may dispense with the need to present a second witness. Slight evidence of defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. In this case the evidence was sufficient to establish that Bailey aided and abetted in the robbery, and sufficiently corroborated Collins’ testimony. The pistol used to rob the victim was found in the locked glove compartment, to which only Bailey had the key. The victim identified Bailey as the driver who approached him first and then backed his car around so that the front passenger side door was next to the victim’s door. Bailey v. State, 295 Ga. App. 480, 482 (2009) (citations omitted).
1.2.1 Felonies
1.2.2 Misdemeanors
Corroboration of an accomplice is not necessary to sustain a misdemeanor conviction. In re: A.F., 236 Ga. App. 60 (1999) (citation omitted).
2. Parties to the crime
Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. O.C.G.A. §16-2-20 (a).
2.1 Definition
A person is concerned in the commission of a crime only if he: (1) directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime. O.C.G.A. §16-2-20 (b).
2.1.1 Drug cases
The theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this court. Little v. State, 230 Ga. App. 803, 805 (1998) (citation omitted).
2.2 Conspiracy
While the evidence on behalf of the State shows that the defendant Mathis had intercourse with the female by force and shortly thereafter she voluntarily and by consent had intercourse with Ralph Kimzey and that Kimzey was charged with rape and kidnapping, there is not one iota of evidence that supports the claim that Kimzey and the defendant entered into, formed or agreed to act in concert in having intercourse with the female. Nor is here a line of evidence that Kimzey aided, assisted or abetted the defendant in having intercourse with the female. On the contrary, all of the evidence in support of the State’s case is that Kimzey’s first knowledge of the defendant’s acts was when the female complained to him of such acts and asked him to protect her from the defendant. There being no evidence of any conspiracy between the defendant and Kimzey to have intercourse forcibly wit the female, it was error for the court to charge on the law of conspiracy. Mathis v. State, 222 Ga. 351, 353 – 354 (1966).
2.3 Presence at scene of crime
Presence at the scene of a crime is not sufficient to show that a defendant is party to the crime. Even approval of the act, not amounting to encouragement, will not suffice. Brown v. State, 250 Ga. 862, 864 (1983) (citations omitted).
There is no direct evidence of any kind that Eddie intended the outcome which occurred. The mere fact that he participated in the act of bringing the shotgun and shells along or that he may have pointed the shotgun at Wayne McGee on he road does not constructively supply any intent to shoot Michael Thigpen. There is no direct evidence of his participation and no circumstantial evidence aside from his presence. … Therefore, the court erred in not granting a directed verdict of acquittal as to Eddie on the basis that the evidence was not sufficient for conviction. Brown v. State, 250 Ga. 862, 864 – 65 (1983) (citations omitted).
The mere presence of a person at the scene of the commission of a crime at the time of its perpetration, without more, will not authorize a jury to find the person who was merely present guilty of consent in, and concurrence in, the commission of the crime, unless the evidence shows, beyond a reasonable doubt, that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor. Lowe v. State, 241 Ga. App. 335, 335-36 (1999).
3. Joint trial
When two or more defendants are jointly indicted … for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court. O.C.G.A. §17-8-4.
3.1 Death penalty cases
When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried unless the state shall waive the death penalty. O.C.G.A. §17-8-4.
3.2 Effect of disposition of one co-defendant on other co-defendants
If the offense requires joint action and concurrence of two or more persons, acquittal or conviction of one defendant shall not operate as acquittal or conviction of others not tried. O.C.G.A. §17-8-4.
3.3 Jury selection
When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. The strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail. The court may allow the state additional strikes not exceed the number of additional strikes as are allowed to the defendants. O.C.G.A. §16-8-4.
3.4 Statements of co-defendants (Bruton issues)
3.4.1 Pretrial statements
For admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant. The relevant portion of Owens’ statement is that, at the time of the arrest for the unrelated kidnapping of Franklin, Thomas had a nine-millimeter gun that he had bought, but which he had not fired, as far as Owens knew. Owens’ statement that he thought Thomas had bought, but had not fired the gun, standing alone, did not clearly inculpate Thomas, and there is no Bruton error. Thomas v. State, 268 Ga. 135, 137-38 (1997) (citations omitted).
The co-defendants repeated their statement to the police in the defendant’s presence. He not only had failed to object to or correct their version of the facts, but had also added more information including a diagram of his route to the murder scene. In doing so, he adopted their statements as his own, and consequently the statements were also admissible against him. Stovall v. State, 236 Ga. 840, 842 (1976) (citations omitted).
3.4.2 Testimony at trial
In any event, a jointly indicted defendant may testify for another jointly indicted defendant or on behalf of the state. O.C.G.A. §17-8-4.
4. Severance
4.1 Generally
Unlike Stahl, Freeman did not enter the house where Dixon was killed. However, the defendants were not pursuing antagonistic defenses, the evidence of each defendant’s role was clear, and the jury was instructed on the law of criminal intent and participation, parties to a crime, conspiracy, and a defendant’s mere presence at the crime scene. Although Freeman argues that Stahl was essentially a State’s witness against him, this is not so; the State rested its case, and Stahl took the stand in his own defense, contending that he had no intention to harm Dixon, or even to confront him, as he believed Dixon was not home. The jury was instructed that a statement of one defendant was to be used only against the defendant who made the statement, and that the guilt or innocence of each defendant must be decided separately. That the joint trial did not produce any confusion on the jury’s part regarding the evidence against each defendant is seen in the fact that the jury found Stahl guilty of malice murder while acquitting Freeman of that charge. There was no abuse of discretion in denying Freeman’s motion to sever his trial from Stahl’s. Freeman v. State, 284 Ga. 830, 833 (2009) (citations omitted).
A defendant desiring severance has the burden of demonstrating more than the possibility that a separate trial would provide him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process in the absence of severance. Stovall v. State, 236 Ga. 840, 841 (1976); Graham v. State, 239 Ga. App. 429, 433 (1999) (citations omitted).
4.2 Test for whether severance is required
A defendant who seeks a severance must show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, this Court will not disturb the trial court’s denial of a severance motion. The trial court is to consider whether a joint trial will create confusion of the evidence and law, whether there is a danger that evidence implicating only one defendant will be considered against a co-defendant despite limiting instructions, and whether the defendants are asserting antagonistic defenses. Freeman v. State, 284 Ga. 830, 833 (2009) (quoting Denny v. State, 281 Ga. 114, 115-16 (2006)).
As the moving party, Lankford had the burden of making a clear showing of prejudice and a denial of due process in the absence of severance. The questions to be considered by the trial court in deciding a motion to sever are: (1) will the number of defendants create confusion as to the law and evidence applicable to each? (2) is there a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions? (3) are the defenses of the defendants antagonistic to each other or to each other’s rights? The trial court has the discretion to determine whether a severance is necessary and we will not set aside that determination unless there is an abuse of that discretion. Lankford v. State, 295 Ga. App. 590, 592 (2009) (citations omitted).
Our law grants the trial court the discretion to try defendants jointly or separately. A defendant seeking severance must show prejudice amounting to a due process denial, and in determining whether to grant a motion to sever, the trial court must consider (1) whether there are so many defendants that the jury would be confused as to what law and facts apply to whom; (2) whether evidence admissible against on defendant would be considered against another; and (3) whether the defenses were antagonistic to each other. Bailey v. State, 295 Ga. App. 480, 482 (2009) (citing Cain v. State, 235 Ga. 128, 129 (1975).
In this case, there are only two defendants, who were also charged as parties to the crime. The evidence and law against each of them was nearly identical and all of the evidence admissible against one would be admissible against another. While their defenses were antagonistic, that fact alone is not sufficient to warrant the grant of a separate trial absent a showing of harm, such as the inability to call a co-defendant as a witness. Given the evidence presented, the trial court did not abuse its discretion in denying Bailey’s motion to sever his trial from Collins’ trial. Bailey v. State, 295 Ga. App. 480, 482 (2009) (citation omitted).
4.2.1 Whether there are so many defendants that the jury would be confused as to what law and facts apply to whom
We discern no abuse in the trial court’s decision to deny severance here. The number of defendants (three) was sufficiently small so that the danger of confusion appeared minimal, especially as the three were charged with jointly participating in the same offenses and as the offenses were committed as part of the same crime scheme. Lankford v. State, 295 Ga. App. 590, 592 (2009) (citation omitted).
4.2.2 Whether evidence admissible against one defendant would be considered against others
There appeared to be no danger that the evidence against one would be considered against the others, as the testimony showed the roles of each of the men to be fairly well defined…. The fact that the evidence as to one of two co-defendants is stronger does not demand a finding that the denial of a severance motion is an abuse of discretion, where there is evidence showing that the defendants acted in concert. Here, the fourth man whose wife owned the car (and later the third man) testified that Garrison and Lankford were acting in concert before, during, and after the robbery. Lankford v. State, 295 Ga. App. 590, 592 – 93 (2009) (citation omitted).
4.2.3 Whether the defenses are antagonistic to each other
With regard to the third question (whether the defendants’ defenses were antagonistic to each other), Lankford readily concedes … that at the time the motion to sever was considered, the defenses indeed were not antagonistic to each other. However, … when the third defendant decided on the fourth day of trial to turn State’s evidence and to confess to his and their involvement in the crimes, the defenses then became antagonistic. We can hardly expect trial judges to be clairvoyant and to predict that defendants who are presenting complementary defenses will later turn on each other. We discern no abuse of discretion in the trial court’s decision to deny severance here. Lankford v. State, 295 Ga. App. 590, 593 (2009)
4.3 Order of trials for severed co-defendants
When separate trials are ordered in any case, the defendants shall be tried in the order requested by the state. O.C.G.A. §17-8-4.
