2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 8 - Trial
Article 1 - General Provisions
§ 17-8-4. Procedure for Trial of Jointly Indicted Defendants; Right of Defendants to Testify for or Against One Another; Order of Separate Trials; Acquittal or Conviction Where Offense Requires Joint Action or Concurrence; Number of Strikes Allowed Defendants

1. 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. When 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. In any event, a jointly indicted defendant may testify for another jointly indicted defendant or on behalf of the state. When separate trials are ordered in any case, the defendants shall be tried in the order requested by the state. 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.
2. 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, shall 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 to exceed the number of additional strikes as are allowed to the defendants.

(Laws 1836, Cobb's Digest, p. 841; Ga. L. 1855-56, p. 266, § 1; Ga. L. 1858, p. 99, § 1; Code 1863, § 4574; Code 1868, § 4595; Code 1873, § 4692; Ga. L. 1878-79, p. 59, § 1; Code 1882, § 4692; Penal Code 1895, § 969; Penal Code 1910, § 995; Code 1933, § 27-2101; Ga. L. 1971, p. 891, § 1; Ga. L. 1972, p. 618, § 1; Ga. L. 2005, p. 20, § 9/HB 170.)

- Corresponding provision relating to civil procedure, § 9-10-5.

Number of peremptory challenges, § 15-12-165.

- Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"

Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that the 2005 amendment applies to all trials which commence on or after July 1, 2005.

- Joinder of offenses and of defendants, Federal Rules of Criminal Procedure, Rule 8.

ANALYSIS

• General Consideration
• Separate Trials
• Prejudice
• Application
• Juror Strikes in Joint Trials

General Consideration

Constitutionality of distinction between capital cases in which death penalty sought and other capital cases.

- Distinction which former Code 1933, § 27-2101 (see O.C.G.A. § 17-8-4) drew between capital cases in which the state was seeking the death penalty and other capital cases did not constitute a violation of equal protection and due process. Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978).

- It is within the discretion of the trial court to try the defendants jointly or separately when two or more defendants are indicted for a capital felony in which the state does not seek the death penalty, and absent an abuse of discretion, denial of a motion to sever is not grounds for reversal. Mapp v. State, 258 Ga. 273, 368 S.E.2d 511 (1988).

It is well established that joinder of the codefendants is within the discretion of the trial court. Sheppard v. State, 205 Ga. App. 373, 422 S.E.2d 66 (1992).

Whether to grant a motion to sever the trial of some of the defendants is within the discretion of the trial court and the appellants were required to do more that raise the possibility that a separate trial would have given the appellants a better chance of obtaining an acquittal. The test is whether the number of defendants will create confusion during the trial; whether the strength of the evidence against one defendant will engulf the others with a "spillover" effect; and whether the defendants' claims are antagonistic to each other's rights. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009).

- In exercising the court's discretion on a motion to sever, the trial court must consider three factors: (1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other's rights. Robinson v. State, 259 Ga. App. 555, 578 S.E.2d 214 (2003).

- When two or more persons are indicted jointly each defendant is entitled to be considered separately as to that defendant's guilt or innocence. In considering the evidence the jury should not treat the defendants as a single entity or unit but should consider the guilt or innocence of each of the defendants as individuals and distinct from one another, and the guilt of any one of the defendants must be determined on the facts showing what part that defendant had in the commission of the crime charged, and the guilt of one person named in the indictment creates no presumption of the guilt of any other. Thomas v. State, 153 Ga. App. 686, 266 S.E.2d 335 (1980).

- There is no authority for the argument that the court should compel the state to try one defendant before a codefendant, at least when there is an absence of evidence of actual prejudice to the codefendant. House v. State, 203 Ga. App. 55, 416 S.E.2d 108, cert. denied, 203 Ga. App. 906, 416 S.E.2d 108 (1992).

- When the accused is being separately tried, it is not error for the trial judge to charge the jury that the jury is not concerned with the guilt or innocence of the codefendant. Bates v. State, 18 Ga. App. 718, 90 S.E. 481 (1916).

Although the trial court did not give the defendant's own particularized instruction regarding the possible motives of testifying witnesses, the court gave the pattern jury charge on testifying witnesses and, thus, the jury was properly instructed that the jurors were to decide the believability of the witnesses. Kitchens v. State, 296 Ga. 384, 768 S.E.2d 476 (2015).

- If two are tried together without objection, the two have a right to only one argument. Bloodworth v. State, 161 Ga. 332, 131 S.E. 80 (1925).

- There is no error in the refusal of a court to grant counsel for the defendants two hours for the argument of a joint case. Curry v. State, 17 Ga. App. 377, 87 S.E. 685 (1915).

- Prior acquittal of one defendant of the offense jointly charged against that defendant and another does not determine in the second defendant's case that the defendants did not enter into a conspiracy to commit that offense. Weeks v. State, 66 Ga. App. 553, 18 S.E.2d 503 (1942).

- Rule that the acquittal of one of two alleged conspirators negates the existence of the conspiracy does not apply if proof of the conspiracy is sought to be introduced merely as an evidentiary fact to sustain another charge, such as murder. In such case, the conspiracy may be inquired into notwithstanding the acquittal of one of the alleged conspirators. Weeks v. State, 66 Ga. App. 553, 18 S.E.2d 503 (1942).

Defendant's conviction for conspiracy is not invalidated by the fact that the only other conspirator named in the indictment is subsequently acquitted at a separate trial. Any language to the contrary in Weeks v. State, 66 Ga. App. 553, 18 S.E.2d 503 (1942), is mere dicta and is not authority for a contrary ruling. Smith v. State, 162 Ga. App. 821, 292 S.E.2d 423, aff'd, 250 Ga. 264, 297 S.E.2d 273 (1982), overruled on other grounds by Thornton v. State, 298 Ga. 709, 784 S.E.2d 417 (2016).

- First defendant did not show that the trial court erred in severing the first defendant's armed robbery trial from that of the second defendant as the first defendant did not join in the second defendant's motion to sever and did not raise the issue until appeal; although the trial court normally had discretion to determine whether a trial should be severed, the first defendant's failure to raise the issue in the trial court meant the issue was waived on appeal. Bennett v. State, 266 Ga. App. 502, 597 S.E.2d 565 (2004).

Issue of codefendants' testimony and severance was waived on appeal since the issue was not raised as a basis for the codefendants' pretrial severance motion, nor was there any place in the record when the defendants renewed the defendants' motion to sever in order to raise this issue and secure the trial court's ruling thereon. York v. State, 242 Ga. App. 281, 528 S.E.2d 823 (2000).

- Defendant waived any error in the trial court's failure to sever the defendant's trial from the trial of a codefendant as the defendant failed to obtain a ruling from the trial court on the defendant's motion to sever. Terrell v. State, 268 Ga. App. 173, 601 S.E.2d 500 (2004).

- Joinder of charges from 15 robberies was permitted since there were sufficient similarities in the crimes to show a pattern of conduct, and offenses were not joined solely because the offenses were of the same or similar character. Allen v. State, 268 Ga. App. 519, 602 S.E.2d 250 (2004).

Separate Trials

Severance not constitutional right.

- While, as a general matter, courts should grant severance whenever it appears necessary to achieve a fair determination of the guilt or innocence of a defendant, severance is not a constitutional right. Glover v. State, 188 Ga. App. 330, 373 S.E.2d 39 (1988).

- Considerations for the court in exercising the court's discretion on a motion to sever are: whether the number of defendants will create confusion of the evidence and law applicable to each individual defendant; whether there is a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court; and whether the defenses of the defendants are antagonistic to each other or to each other's rights. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975); Jones v. State, 243 Ga. 584, 255 S.E.2d 702 (1979); Myrick v. State, 155 Ga. App. 496, 271 S.E.2d 637 (1980); Ledford v. State, 173 Ga. App. 474, 326 S.E.2d 834 (1985); Lawrence v. State, 174 Ga. App. 788, 331 S.E.2d 600 (1985); Tanner v. State, 176 Ga. App. 77, 335 S.E.2d 133 (1985); Owens v. State, 192 Ga. App. 335, 384 S.E.2d 920 (1989); Hill v. State, 193 Ga. App. 401, 387 S.E.2d 910 (1989); Bailey v. State, 203 Ga. App. 133, 416 S.E.2d 151 (1992); Griffin v. State, 273 Ga. 32, 537 S.E.2d 350 (2000).

Factors to be considered by the court in the court's exercise of discretion are as follows: (1) will the number of defendants create confusion as to evidence and law relative to the separate defendants; (2) is there a danger that evidence admissible against only one defendant (or, when there are more than two defendants, only against certain ones of the defendants) will nevertheless be considered against another; and (3) are the defendants' respective defenses antagonistic to the defenses or the rights of another. It is the defendant who has the burden of showing, on the defendant's motion to sever, that any of the named criteria are applicable so as to prejudice the defendant's defense. Causey v. State, 192 Ga. App. 294, 384 S.E.2d 674 (1989); Sweat v. State, 203 Ga. App. 290, 416 S.E.2d 845 (1992); Brown v. State, 262 Ga. 223, 416 S.E.2d 508 (1992).

In exercising discretion regarding the severance of trials of the codefendants, the trial court should consider: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against the other despite cautionary instructions to the contrary; and whether the codefendants will press antagonistic defenses. Jackson v. State, 249 Ga. 751, 295 S.E.2d 53 (1982); Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983).

- In order to have the defendant's motion for severance granted, the defendant must show not only that a codefendant will probably not testify at trial when the defendant could cross-examine that codefendant or elicit the testimony desired, but also that the testimony of the codefendant would tend to exculpate the defendant. Flores v. State, 159 Ga. App. 336, 283 S.E.2d 372 (1981); 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).

- Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975).

Defendant seeking severance must make a clear showing of harm or prejudice to the defendant and a consequent denial of due process that would result from a denial of the defendant's motion for severance. Jones v. State, 243 Ga. 584, 255 S.E.2d 702 (1979); Louis v. State, 185 Ga. App. 472, 364 S.E.2d 607 (1988); Brown v. State, 262 Ga. 223, 416 S.E.2d 508 (1992).

To mandate severance of trials it must be demonstrated that harm resulted from failure to sever. Tookes v. State, 159 Ga. App. 423, 283 S.E.2d 642 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982).

If consolidation of defendants at trial hinders a fair determination of each defendant's guilt or innocence, then the defendants must be tried separately. Magouirk v. State, 158 Ga. App. 517, 281 S.E.2d 283 (1981).

While certain evidence was introduced pertaining solely to the codefendant, since the appellant did not show how such evidence prejudiced the defendant's own case, it was not error to deny the motion to sever. Jackson v. State, 249 Ga. 751, 295 S.E.2d 53 (1982).

Since the defendant failed to articulate any specific reason for severance, the defendant failed to show any actual prejudice or denial of due process which resulted from the failure to sever, and the trial court did not err in denying the motion to sever. Majors v. State, 203 Ga. App. 139, 416 S.E.2d 156 (1992).

In an armed robbery prosecution, as the evidence and law against the defendant and the codefendant was nearly identical and all of the evidence admissible against one was admissible against the other, the fact that the defendants' defenses were antagonistic was not alone sufficient to warrant severing the defendants' trials under O.C.G.A. § 17-8-4 absent a showing of harm. Bailey v. State, 295 Ga. App. 480, 672 S.E.2d 450 (2009).

- On motion, severance should be granted if severance is deemed appropriate to promote a fair determination of each defendant's guilt or innocence of each offense. Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977); Johnson v. State, 158 Ga. App. 398, 280 S.E.2d 419 (1981).

Severance generally should be granted if severance is necessary to achieve a fair determination of the guilt or innocence of a defendant. Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977).

Defendant entitled to separate trial if conviction is more likely to result from evidence against codefendants than from evidence against the defendant. Johnson v. State, 158 Ga. App. 183, 279 S.E.2d 483 (1981).

- O.C.G.A. § 17-8-4 neither mentions any right to oppose a codefendant's request for severance nor provides a statutory procedure pursuant to which a defendant may seek the joinder of another defendant's trial. Broomfield v. State, 264 Ga. 145, 442 S.E.2d 242 (1994).

- Mere fact that testimony as to one of two codefendants is stronger than that linking the other to the crime does not demand a finding that the denial of a motion to sever is an abuse of discretion. Martin v. State, 162 Ga. App. 703, 292 S.E.2d 864 (1982); Davis v. State, 244 Ga. App. 345, 535 S.E.2d 528 (2000).

Defendant and the first codefendant each consistently denied participation in crimes without directly implicating the other, and both equally sought to place responsibility on a second codefendant; thus, their defenses were not antagonistic, and the mere fact that the case against the defendant was stronger than the case against the first codefendant did not necessitate a separate trial; therefore, the trial court did not err in denying the defendant's motion to sever. Wicks v. State, 278 Ga. 550, 604 S.E.2d 768 (2004).

- Trial court did not err in denying a codefendant's request for severance because a joint trial with the defendant did not present a significant likelihood of confusion of the evidence and law or the possibility that evidence introduced against the defendant could be improperly considered against the codefendant; the law applicable to the defendant and the codefendant was substantially the same, and the evidence at trial showed that the defendants acted together in killing the victim. Krause v. State, 286 Ga. 745, 691 S.E.2d 211 (2010).

Trial court did not abuse the court's discretion by denying the defendant's motion for severance because the defendant did not show any prejudice that could have been avoided by severing the trial; a codefendant said nothing to the police that contradicted witnesses regarding threats the witnesses heard the defendant make. Allen v. State, 288 Ga. 263, 702 S.E.2d 869 (2010).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever because there was no danger of confusion when only two defendants were on trial in connection with the same occurrence, and there was no evidence admissible against the defendant that was not admissible against the codefendant; the fact that the codefendant elicited a witness's testimony concerning a coconspirator's out-of-court declarations as a coconspirator did not show prejudice, and the witness's testimony was admissible under former O.C.G.A. § 24-3-5 (see O.C.G.A. § 24-8-801). White v. State, 308 Ga. App. 38, 706 S.E.2d 570 (2011).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever the defendant's trial from that of an accomplice because the defendant did not demonstrate any clear prejudice and denial of due process that could have been avoided by severing the trials; the testimony of the accomplice implicating the defendant would be admissible in a separate trial, as would evidence of the defendant's attempted flight and, under certain circumstances, statements the defendant made while cooperating with the state. Flores v. State, 308 Ga. App. 368, 707 S.E.2d 578 (2011), cert. denied, No. S11C1072, 2011 Ga. LEXIS 527 (Ga. 2011).

Trial court did not err in denying the defendant's motion to sever the trial from that of the codefendant because the codefendant's testimony implicating the defendant would have been admissible in a separate trial; even if the defendant suffered some prejudicial effect from the admission of evidence of the codefendant's prior conviction, the admission did not amount to the denial of due process necessary to constitute an abuse of discretion that would make the denial of severance reversible error. Smith v. State, 290 Ga. 428, 721 S.E.2d 892 (2012).

It was not an abuse of discretion to deny the defendant's motion to sever the defendant's trial from that of the defendant's codefendant because: (1) the defendant did not show the evidence might have confused the jurors; (2) the defendant did not show the defendant's defenses were antagonistic to the defendant's codefendant's defenses or that any evidence admitted at trial was inadmissible against the defendant in a separate trial; and (3) the evidence showed the defendant's active participation in the crimes alleged. Jones v. State, 315 Ga. App. 427, 727 S.E.2d 216 (2012).

Trial court did not err in denying the defendant's pretrial motion to sever the defendant's trial from that of the codefendant, because the number of defendants was small enough so that the danger of confusion was minimal, especially as both were charged without jointly participating in the same offense. Jones v. State, 318 Ga. App. 26, 733 S.E.2d 72 (2012).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever the defendant's trial from a codefendant because the defendant failed to meet the defendant's burden of showing clearly that the joint trial prejudiced the defendant's defense, resulting in a denial of due process, since the defendant did not point to any evidence that the defendant contended was not admissible against the defendant but was admissible against the codefendant, and the defendant did not claim that the defendant's defense was antagonistic to that of the codefendant. Garmon v. State, 317 Ga. App. 634, 732 S.E.2d 289 (2012).

Denial of the second defendant's request to sever was not erroneous because the trial court gave appropriate limiting instructions cautioning the jury that the similar transaction action could only be considered against the first defendant. Billings v. State, 293 Ga. 99, 745 S.E.2d 583 (2013).

Trial court did not err in denying the first defendant's motion to sever because the evidence of the DVD player pawned by the second defendant did not prejudice the defense of the first defendant given the extensive nature of the evidence tying the first defendant to the victim's murder including all of the items belonging to the victim found in the first defendant's home. Perera v. State, 295 Ga. 880, 763 S.E.2d 687 (2014).

Trial court did not err in denying the second defendant's motion to sever as the defense of the second defendant was not harmed by the introduction of jailhouse letters written to the second defendant by the first defendant given the voluminous evidence linking the second defendant directly to the victim's murder; and because those letters would have been admissible against both of the defendants, even if the defendants had been tried separately as both of the defendants were part of a criminal conspiracy and the criminal project was still ongoing at the time the letters were written. Perera v. State, 295 Ga. 880, 763 S.E.2d 687 (2014).

Trial court did not err in denying the defendant's motion to sever as the defendant and the co-defendants were jointly tried for almost the same offenses, which involved the same witnesses, whose credibility the co-defendants jointly attacked, and the state's evidence indicated that the defendants acted in concert. Blackledge v. State, 299 Ga. 385, 788 S.E.2d 353 (2016).

Trial court did note err in failing to sever the trial or exclude post-arrest statements made by the codefendants as the defendants did not have antagonistic defenses because the defendants all took the position that the defendants had no involvement in the robbery, and, since none of the defendants testified or presented evidence, there was no defense theory presented by one that was antagonistic to the others. Ray v. State, 338 Ga. App. 822, 792 S.E.2d 421 (2016).

Trial court did not err in denying the second defendant's motion to sever because the jury was not confused by the counts in the indictment as the jury returned a verdict of not guilty as to counts 65-80 of the indictment; and, had there been separate trials, evidence of the gang activities of the co-defendants would have been admissible at the second defendant's trial. 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).

In the defendant's trial for attempted armed robbery and aggravated assault arising out of a home invasion in which the victim was shot five times, the defendant failed to explain how trying the defendant together with a co-defendant could have confused the jury, given that the evidence showed a relatively brief and straightforward attempted robbery and the assault of a single victim by both defendants, and their defenses of alibi were not mutually exclusive. Cuyler v. State, 344 Ga. App. 532, 811 S.E.2d 42 (2018), cert. denied, No. S18C0874, 2018 Ga. LEXIS 482 (Ga. 2018).

Trial counsel was not ineffective for failing to seek severance of the defendant's trial from that of the second co-defendant because the mere fact that the case against the second co-defendant was stronger than the case against the defendant did not necessitate a separate trial; the defendant pointed to no evidence with regard to the murder that would have been excluded had the defendant's severance motion been granted and the defendant were tried alone; the defendant was being tried under the theory that the defendant was a party to the crime; and, even if counsel had filed a motion to sever, the court would not have abused the court's discretion in denying the motion as the defendant would not have been able to show prejudice from a joint trial. Green v. State, 302 Ga. 816, 809 S.E.2d 738 (2018).

Trial court did not err in severing the defendant's trial from the codefendant because the law applicable to both was substantially the same, all of the evidence presented at trial was admissible against both the defendants, and there was minimal risk of the jury being confused or of evidence being improperly considered against either of the defendants. Palmer v. State, 303 Ga. 810, 814 S.E.2d 718 (2018).

Trial court did not err in denying the defendant's motion to sever the defendant's trial from the defendant's child's trial as there was nothing particularly confusing about the evidence supporting the defendant's conviction for evidence tampering; and the jury demonstrated the jury's ability to decide each case separately, rather than assuming the defendant's guilt based solely on the criminal conduct of the defendant's child, because the jury acquitted the defendant of making false statements to police. Elkins v. State, 350 Ga. App. 816, 830 S.E.2d 345 (2019).

At the time of trial, trial counsel believed that the trial court had obviated any Bruton violation concerns, and trial counsel was entitled to rely on the steps the trial court had taken in formulating counsel's opinion about filing a motion to sever; thus, the second defendant's counsel did not perform deficiently by failing to file a motion to sever, and the second defendant was not entitled to a new trial on that basis. Hill v. State, 351 Ga. App. 58, 830 S.E.2d 478 (2019).

First defendant's counsel was not ineffective for failing to file a motion to sever as the first defendant did not show antagonistic defenses, that evidence admissible only against the second defendant was improperly used against the first defendant, or that the joint trial created confusion; and the first defendant's argument that had the trials been severed the first defendant would have been able to confront and cross-examine the second defendant's statements was specious as the statements the first defendant pointed to were made during a hearing outside the presence of the jury, and nothing prevented the first defendant from cross-examining the narcotics investigator about the statements as the jury would not have heard that testimony. Hill v. State, 351 Ga. App. 58, 830 S.E.2d 478 (2019).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever because the case involved only two codefendants, tried for the same crimes based on largely the same evidence, and the state's theory was that the defendants acted together. Thus, there was little likelihood that the issues to be tried would be confused or that evidence against one defendant would improperly be considered against the other. Floyd v. State, 307 Ga. 789, 837 S.E.2d 790 (2020).

Trial court did not err in denying the defendant's motion to sever because it was not required under the applicable law on party to a crime to show that any specific co-defendant physically possessed a weapon for that defendant to be convicted of felony murder or of the predicate offense of aggravated assault as a party to a crime; and the fact that the evidence as to one of the co-defendants was stronger did not demand a finding that the denial of a severance motion was an abuse of discretion since there was evidence showing that the defendants acted in concert. Smith v. State, 308 Ga. 81, 839 S.E.2d 630 (2020).

Prejudice

Burden on defendant to show prejudice.

- Without a showing of prejudice, the fact that defenses are antagonistic will not require severance. Everett v. State, 238 Ga. 80, 230 S.E.2d 882 (1976).

Without a clear showing of prejudice and harm by movant, the mere fact that the codefendant's defenses are antagonistic is not sufficient in itself to warrant separate trials. 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).

To warrant a severance, the defendants must show the probability of prejudice and may not present just argument that there is a better probability a separate trial would give the defendants a better chance of acquittal. To obtain a new trial at the appellate level the defendants must show actual prejudice and denial of due process. 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).

There must be a clear showing of prejudice resulting from the joinder, rather than the mere possibility that a separate trial would improve a defendant's chance of acquittal, before severance will be required. Tanner v. State, 176 Ga. App. 77, 335 S.E.2d 133 (1985).

In making a motion for severance, the defendant had the burden to make a clear showing of prejudice and consequent denial of due process. Allen v. State, 255 Ga. 513, 340 S.E.2d 187 (1986).

- Trial court does not manifestly abuse the court's discretion by refusing to sever when appellants failed to make "a showing of clear prejudice" as required to warrant a severance. York v. State, 242 Ga. App. 281, 528 S.E.2d 823 (2000).

- Trial judge must exercise the judge's discretion in each particular case, but the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give defendant a better chance of acquittal; the defendant must make a clear showing of prejudice and a consequent denial of due process. Majors v. State, 203 Ga. App. 139, 416 S.E.2d 156 (1992).

Because the defendant has made a clear showing of prejudice and consequent denial of due process based on the fact that the jury found the defendant guilty of a codefendant's crimes, for which the defendant was not even on trial, the trial court abused the court's discretion in overruling the defendant's motion to sever. Brooks v. State, 311 Ga. App. 857, 717 S.E.2d 490 (2011).

- When the death penalty is not sought, the severance of the defendants' trials is within the sound discretion of the trial court and the court's decision will not be disturbed unless there is an abuse of that discretion; under O.C.G.A. § 17-8-4, the burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide the defendant with a better chance of acquittal, and the defendant must establish a clear showing of prejudice. Robinson v. State, 259 Ga. App. 555, 578 S.E.2d 214 (2003).

- Trial court did not err by denying the defendant's motion to sever the defendant's trial from that of the codefendants pursuant to O.C.G.A. § 17-8-4 because, even if there were antagonistic defenses, this mere fact was not sufficient in itself to warrant severance absent a showing of prejudice, and the defendant failed to show clear prejudice and denial of due process resulting from any antagonistic defenses. Taylor v. State, 285 Ga. App. 697, 647 S.E.2d 381 (2007), cert. denied, No. S07C1515, 2007 Ga. LEXIS 655 (Ga. 2007).

- Since there was ample evidence to show that the defendant was a party to the crime, and did not merely have a passive involvement, the defendant failed to show any prejudice that would have been avoided by a separate trial; therefore, the trial court did not abuse the courts discretion in denying severance. Harrell v. State, 253 Ga. 474, 321 S.E.2d 739 (1984).

- To find that a denial of the motion was an abuse of discretion it must appear that the defendant suffered prejudice amounting to a denial of due process. Aaron v. State, 145 Ga. App. 349, 243 S.E.2d 714 (1978).

Denial of a defendant's motion for severance is not an abuse of discretion in the absence of a clear showing of prejudice. Whitehead v. State, 149 Ga. App. 774, 256 S.E.2d 50 (1979); Depree v. State, 246 Ga. 240, 271 S.E.2d 155 (1980).

Ruling on severance reversed only if abuse of discretion shown. Since the grant or denial of a motion to sever is left to the discretion of the trial court, the court's ruling will be overturned only for an abuse of discretion. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975); Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); Graham v. State, 152 Ga. App. 233, 262 S.E.2d 465 (1979); Jones v. State, 245 Ga. 592, 266 S.E.2d 201 (1980); Brown v. State, 262 Ga. 223, 416 S.E.2d 508 (1992); Knight v. State, 239 Ga. App. 710, 521 S.E.2d 851 (1999);.

- If defendants do not show on appeal in what manner the defendants were prejudiced by a joint trial, it cannot be said that the trial court's denial of the defendants' motions to sever was an abuse of discretion. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

In the absence of a showing that the trial court abused the court's discretion in denying severance, causing the defendant to suffer prejudice amounting to a denial of due process, the trial court's ruling will not be disturbed on appeal. Carroll v. State, 147 Ga. App. 332, 248 S.E.2d 702 (1978); Smith v. State, 154 Ga. App. 258, 267 S.E.2d 863 (1980).

- Trial judge must weigh likelihood of prejudice against interests of judicial economy in ruling on a motion for severance; because that determination is discretionary, the Court of Appeals will disturb the trial court's ruling only when the defendant can show that the trial court abused the court's discretion and, in order to demonstrate an abuse of discretion, the defendant bears a heavy burden of showing specific and compelling prejudice. United States v. Morris, 647 F.2d 568 (5th Cir. 1981).

- Defendant failed to meet the defendant's burden of showing that the defendant was prejudiced as required by law when the codefendant's testimony was admissible against the defendant whether the defendants were tried together or separately. Hill v. State, 212 Ga. App. 448, 442 S.E.2d 298 (1994).

Because the defendant failed to specify how evidence implicating a codefendant "spilled over" to prejudice the defendant's case, the defendant failed to show that the trial court erred in not severing the defendant's trial from that of the codefendant. Cartledge v. State, 285 Ga. App. 145, 645 S.E.2d 633 (2007).

Trial court did not err in denying a codefendant's request for severance because the codefendant did not show specific prejudice from the presentation of antagonistic defenses; although the defendant and the codefendant raised antagonistic defenses, in the sense that each of the defendants pointed to the other as the shooter and the leader in killing the victim and disposing of the body, that alone was insufficient to require severance. Krause v. State, 286 Ga. 745, 691 S.E.2d 211 (2010).

Although the defendant complained that the defendant was not permitted to question a codefendant about the codefendant's possible past involvement in drug activity, absent a showing of prejudice to the defendant, the trial court did not err in denying the defendant's motion to sever. Williams v. State, 308 Ga. App. 464, 708 S.E.2d 32 (2011).

Defendant was not prejudiced by a joint trial based on the defendant and a codefendant's similar appearance because several of the witnesses had known the defendant and the codefendants for years, others were able to identify the defendant by the defendant's distinctive clothing, and any confusion at the joint trial was cleared up by the one witness who confused the defendant and the codefendant and did not amount to a denial of due process; the defendant and the codefendants urged defenses that were, for the most part, consistent; and, even to the extent that the defendant and the codefendants urged antagonistic defenses, the defendant failed to show that the joint trial denied the defendant due process. Thomas v. State, 293 Ga. 829, 750 S.E.2d 297 (2013).

Trial court did not abuse the court's discretion in denying the appellant's motion to sever because there was no showing of prejudice since there was no indication that the jury confused the evidence or the applicable law to the appellant and the co-defendant as all defendants were largely charged with the same offenses that stemmed from the same evidence and fact pattern. McClendon v. State, 299 Ga. 611, 791 S.E.2d 69 (2016).

- See Tanner v. State, 176 Ga. App. 77, 335 S.E.2d 133 (1985); Berry v. State, 267 Ga. 605, 481 S.E.2d 203 (1997), cert. denied, 522 U.S. 852, 118 S. Ct. 144, 139 L. Ed. 2d 91 (1997); Dixon v. State, 268 Ga. 81, 485 S.E.2d 480 (1997); Leonard v. State, 228 Ga. App. 792, 492 S.E.2d 747 (1997); Slaughter v. State, 240 Ga. App. 758, 525 S.E.2d 130 (1999); Ricarte v. State, 249 Ga. App. 50, 547 S.E.2d 703 (2001); Boone v. State, 250 Ga. App. 133, 549 S.E.2d 713 (2001); Hayes v. State, 249 Ga. App. 857, 549 S.E.2d 813 (2001).

Application

Severance in aggravated sodomy cases.

- There was no abuse of discretion in a trial court's denial of defendant's motion to sever the defendant's trial from that of a codefendant as the defendant was on trial for aggravated sodomy; the court found that the defendant failed to make a clear showing that joinder would result in prejudice amounting to denial of due process. Pitts v. State, 263 Ga. App. 322, 587 S.E.2d 811 (2003).

- In a trial of two defendants for aggravated assault with intent to rob and aggravated battery, there was no showing of loss of due process due to confusion of evidence, antagonistic defenses, or unfair implication of one defendant by the other; therefore, the trial court did not abuse the court's discretion in joining the defendants. Autry v. State, 230 Ga. App. 773, 498 S.E.2d 304 (1998).

- Denial of wife's motion to sever her trial for child molestation from that of her codefendant husband was not an abuse of discretion since the relevant evidence against both was unambiguous and the applicable law was straightforward, and the defenses were not antagonistic but were, in fact, mutually supportive. Story v. State, 194 Ga. App. 187, 390 S.E.2d 96 (1990).

In the prosecution of parents for child molestation involving their children, the trial court did not abuse the court's discretion when the court refused to sever the trial. Graham v. State, 239 Ga. App. 429, 521 S.E.2d 249 (1999).

- Trial court did not err under O.C.G.A. § 17-8-4 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 did not establish that, if severance were granted, the defendant would have been able to call the codefendant to testify about a letter without the codefendant invoking rights under the Fifth Amendment to the United States Constitution; even if such questioning could have been conducted, the defendant did not show harm caused by the testimony's absence because it was uncontroverted that the codefendant wrote the letter at issue and there was no showing that the codefendant's testimony would have exculpated the defendant. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).

- There was no abuse of discretion in the trial court's denying the defendant's motion to sever since the defendant failed to show that a joint trial was confusing or misleading with regard to the law or the evidence, when there was no evidence admissible against one defendant that was not admissible against all of the defendants and when there was nothing antagonistic in the defendants' defenses; all defendants denied the charges relating to trafficking in cocaine and none of the defendants pointed to the other as having knowledge of the cocaine or of the large sum of money that was found at the apartment. Owens v. State, 192 Ga. App. 335, 384 S.E.2d 920, cert. denied, 192 Ga. App. 902, 384 S.E.2d 920 (1989).

- Denial of the defendant's motion for severance was proper since no antagonistic testimony existed and, because there was a considerable amount of testimony which authorized the jury to conclude that there was a conspiracy between the defendant and the codefendant, any testimony against the codefendant which would show the furtherance of a conspiracy was relevant as to the defendant. Hull v. State, 265 Ga. 757, 462 S.E.2d 596 (1995).

Trial court did not deprive the first and second defendants of due process under Ga. Const. 1983, Art. I, Sec. I, Para. I and U.S. Const., amend. 5 in failing to sever, pursuant to O.C.G.A. § 17-8-4, the defendants' trials in a case involving the three defendants, who were allegedly involved in a conspiracy; because each defendant was implicated by each defendant's own statement, the defendants failed to show how the defendants were prejudiced by the joint trial, and there was no showing of antagonistic defenses. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91 (2007).

- Because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse the court's discretion in denying the defendant's motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants' defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413, 634 S.E.2d 160 (2006).

- Denial of the defendant's motion to sever the false statement charges against the defendant was proper as the false statement charges stemmed from the defendant's continuing efforts to conceal the defendant's participation in a robbery and a murder. Sampson v. State, 279 Ga. 8, 608 S.E.2d 621 (2005).

- When the defendant and the defendant's codefendant were charged with murder and related offenses, the denial of the defendant's motion to sever the defendant's trial from that of the defendant's codefendant was not an abuse of discretion because there was no likelihood of confusion as there were only two defendants who acted in concert, their defenses were not antagonistic in that the defendants both denied any involvement in the crimes, severance would not have limited the admission of evidence one defendant claimed was unduly prejudicial, and the physical and testimonial evidence against one defendant was not overwhelming in comparison to the evidence against the other defendant. Styles v. State, 279 Ga. 134, 610 S.E.2d 23 (2005).

Two defendants, jointly tried and convicted of malice murder and aggravated assault and other related offenses, failed to meet the burden of showing that the defendants were clearly prejudiced by proceeding with a joint trial since both defendants testified and were cross examined, with each blaming the other for the shooting; even if the motion to sever had been granted, the defendant could have testified at each other's separate trials and related the same testimony, and the defendants had ample opportunity to cross-examine each other concerning the defendants' respective defenses. Appling v. State, 281 Ga. 590, 642 S.E.2d 37 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Denial of motions to sever murder trials under O.C.G.A. § 17-8-4(a) was proper because there was no showing of prejudice from the joint trial of the first defendant and the second defendant, the first defendant's statement to police about a prior altercation with the victim did not, standing alone, inculpate the second defendant in the charged crimes, there was no reasonable probability that the statement contributed to the guilty verdicts, and there was no danger of confusion in this case because there were only two defendants allegedly acting in concert and the evidence was not such that it confused the jury as to their individual participation in the crimes. Daniel v. State, 285 Ga. 406, 677 S.E.2d 120 (2009).

Trial court's refusal to sever two murder counts because the defendant was not involved in those murders was not an abuse of discretion because evidence regarding the subject murders was relevant to the gang's existence as a "criminal street gang" and to certain codefendants' participation in criminal street gang activity, and the jury was instructed on the purpose for which the evidence was offered. Morris v. State, 294 Ga. 45, 751 S.E.2d 74 (2013).

Defendant completely failed to show any specific prejudice such that the joint trial denied the defendant due process because there was little likelihood of actual juror confusion in the case since only four defendants were tried and the law and evidence that applied to each of the defendants were substantially the same and the trial court gave appropriate limiting instructions, indicating that the similar transaction evidence could be considered only as to each co-defendant against whom that evidence was admitted. Nwakanma v. State, 296 Ga. 493, 768 S.E.2d 503 (2015), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

Whether to grant separate trials to co-defendants in a non-death penalty murder case is within the discretion of the trial court. The appellant failed to demonstrate the requisite prejudice from the denial of the motion to sever to establish that the trial court abused the court's discretion in denying the motion. Philpot v. State, 300 Ga. 154, 794 S.E.2d 140 (2016).

In a murder case, the trial court did not err in denying the defendant's motion for severance as the applicable law was the same for the defendant and the defendant's brother; the brother did not present an antagonistic defense; substantially the same evidence would have been introduced at both trials had the defendants been tried separately; and the eyewitness accounts and video evidence were admissible against both the defendant and the defendant's brother. Solomon v. State, 304 Ga. 846, 823 S.E.2d 265 (2019).

- Trial court did not abuse the court's discretion by refusing to sever the defendant's trial from that of a codefendant since the state introduced sufficient evidence to establish a prima facie case that the two were involved in a conspiracy to murder or otherwise harm the victim. Brown v. State, 262 Ga. 223, 416 S.E.2d 508 (1992).

- In a kidnapping prosecution, the defendant was not entitled to sever the codefendant from the trial. Since the codefendant testified and was available for cross-examination, the codefendant's confession was admissible against both defendants; further, the codefendant's defense was not antagonistic to the defendant's as the codefendant simply denied making alleged statements to police or participating in the victim's death. Hunsberger v. State, 299 Ga. App. 593, 683 S.E.2d 150 (2009).

- Trial court did not abuse the court's discretion when the court denied the defendant's motion to separate the defendant's trial from that of a codefendant. In a non-capital case, the decision whether to give codefendants separate trials is within the sound discretion of the trial court, and in the instant case there were only two codefendants, the issues were straightforward, and after the codefendant pled guilty, the codefendant testified on the defendant's behalf in an attempt to show that the defendant was forced to participate in an armed robbery; therefore, the defendant failed to make the requisite showing of harm. Gilbert v. State, 259 Ga. App. 371, 577 S.E.2d 35 (2003).

Denial of the defendant's motion to sever the trial of two armed robbery charges was upheld as the robberies were so similar that the robberies evinced a definite pattern: the crimes were committed in the same neighborhood on Friday evening, the robber on both cases showed the robber's gun to a male friend or acquaintance and announced the robber's intention to get a car moments before the crimes were committed, and both crimes were accomplished by a man wearing a fitted cap or "do-rag" and brandishing a handgun, surprising lone women as the women got into or out of a sport-utility vehicle, and demanding car keys. Johnson v. State, 265 Ga. App. 777, 595 S.E.2d 625 (2004).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever two offenses as: (1) the two armed robberies occurred within a short time, were of hotels in the same county, and had hotel clerks as victims; (2) both victims gave the same general description of the robber and the robber's disguise; and (3) there was nothing complex about the two robberies and either crime could have been introduced at a trial of the other which minimized any prejudice from the joint trial. Dailey v. State, 271 Ga. App. 492, 610 S.E.2d 126 (2005).

For common plan or scheme in narcotics prosecution, see Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980).

- Because the first of two defendants jointly tried voluntarily testified against the second defendant, and the second defendant had the opportunity to effectively cross-examine the first, or otherwise present evidence demonstrating innocence, it was pure speculation for the appeals court to assume that the first defendant's willingness to cooperate with the state without a promise of leniency or immunity would cause the jury to view the testimony presented in a positive light; thus, the trial court did not err in permitting the first defendant to testify for the state against the second defendant. Herberman v. State, 287 Ga. App. 635, 653 S.E.2d 74 (2007).

- Burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give the defendant a better chance of acquittal. Bell v. State, 239 Ga. 146, 236 S.E.2d 47 (1977); Armour v. State, 151 Ga. App. 254, 259 S.E.2d 662 (1979); Robinson v. State, 164 Ga. App. 652, 297 S.E.2d 751 (1982).

- To be entitled to a severance, the defendants were required to do more than raise the possibility that separate trials would have given the defendants a better chance of obtaining acquittals; the defendants were required to make a clear showing of prejudice sufficient to establish a denial of due process. Cook v. State, 221 Ga. App. 831, 472 S.E.2d 686 (1996).

- Based on trial counsel's testimony regarding a trial strategy to have the codefendants tried together, given the opinion that the evidence was stronger against the codefendants and counsel wanted to distance the defendant from the codefendants, no abuse of discretion resulted from the trial court's failure to order severance. Adkins v. State, 280 Ga. 761, 632 S.E.2d 650 (2006).

Fact that evidence as to one of two codefendants is stronger does not demand a finding that denial of a motion to sever is an abuse of discretion if there is evidence showing the codefendants acted together. Whitehead v. State, 237 Ga. App. 551, 515 S.E.2d 866 (1999).

Motion to sever was properly denied even though the evidence against one conspirator was stronger than the evidence against the other conspirator but this gave no reason for severance and individual participation could be sorted out by the jury. Perry v. State, 276 Ga. 836, 585 S.E.2d 614, rev'd, 276 Ga. 839, 584 S.E.2d 253 (2003).

- Trial court did not abuse the court's discretion in failing to sever the defendant's trial from that of four codefendants as no evidence was presented that the jurors were confused, that the defenses were antagonistic to each other, or that evidence admitted against the codefendants was improperly considered in the defendant's trial; indeed, the defendant was acquitted of kidnapping with bodily injury and aggravated assault of one of the victims, indicating that the jury was able to decide each case separately. Jordan v. State, 281 Ga. App. 419, 636 S.E.2d 151 (2006).

Trial court did not abuse the court's discretion by denying a defendant's motion to sever the defendant's trial from the codefendant's trial, with regard to charges of armed robbery and theft by receiving stolen property involving stopping in front of a vehicle and taking the victim's purse by gunpoint as the defendant failed to show that the evidence against the codefendant was stronger since the victim identified the defendant as the driver of the vehicle that stopped in front of the victim's car. Further, the fact that the defendant and the codefendant shared the same last name (as siblings) did not confuse the jury as the case only involved the two defendants, the trial court instructed the jury to consider each of the defendants separately, and the fact that the jury acquitted the defendant of the theft by receiving stolen property crime while the codefendant, who was the owner of the vehicle, was convicted of that charge indicated that the jury had the ability to decide each charge and each of the defendants separately. Rabie v. State, 294 Ga. App. 187, 668 S.E.2d 833 (2008).

Trial court did not err in denying the defendant's motion to sever because the defendant cited only the "volatile relationships" and "irreconcilable differences" among the various defense attorneys, the prosecutor, and the lead detective; there was no indication that the jury confused the evidence or law. All three defendants were charged with identical crimes, and the jury, in reaching different verdicts as to each codefendant, proved itself amply capable of distinguishing the evidence relevant to each. Thorpe v. State, 285 Ga. 604, 678 S.E.2d 913 (2009).

- Although the trial court has discretion to try coindictees for non-capital crimes together or separately under O.C.G.A. § 17-8-4, defendant's claim that the trial court erred by not trying the defendant and the accomplice together was rejected; the claim was not raised below and there was no right to be jointly tried with all coindictees. Holmes v. State, 265 Ga. App. 409, 593 S.E.2d 932 (2004).

- Joinder, when offenses are part of a common scheme or plan, allows for uniformity in decision making; it eliminates a duplication of effort, saves time, and expedites the trial process. Magouirk v. State, 158 Ga. App. 517, 281 S.E.2d 283 (1981).

- Inherent in joinder or consolidation of defendants at trial is the possibility of overlap; that is, that culpatory evidence admitted against one defendant will be considered against another defendant. Magouirk v. State, 158 Ga. App. 517, 281 S.E.2d 283 (1981).

- Joinder, if there is more than one counsel representing the codefendants, affects or restrains freedom of counsel in employing and exercising counsel's particular trial strategy. Magouirk v. State, 158 Ga. App. 517, 281 S.E.2d 283 (1981).

- When joinder of offenses is allowable, the trial judge may balance the interest of the state and the accused by considering such factors as whether the same evidence would be necessary and admissible in each case and whether the joining of the counts in one trial might confuse the jury. Johnson v. State, 158 Ga. App. 398, 280 S.E.2d 419 (1981).

- If appellants do not advance antagonistic defenses, but instead choose to testify and present essentially the same version of events concerning the only crime involved, and if the same witnesses would have testified if two trials had been held, the appellants can show neither prejudice nor an abuse of discretion by the trial court in refusing separate trials. Dixon v. State, 243 Ga. 46, 252 S.E.2d 431 (1979).

In the defendant's trial for home invasion and murder, denial of the defendant's motion to sever the defendant's trial from that of the co-defendant under O.C.G.A. § 17-8-4 was not error because there was no indication of confusion, both men were mostly charged with the same offenses that stemmed from the same evidence and fact pattern, and their defenses were not antagonistic. Harris v. State, 304 Ga. 276, 818 S.E.2d 530 (2018).

- If codefendants assert antagonistic defenses, but the trial judge denies the defendant's motion for separate trial, the defendant is not denied the defendant's right to effective counsel or to confront the witnesses, despite the codefendants' ability to assert the privilege against self-incrimination on cross-examination in a joint trial, unless the defendant can show that the defendant was prejudiced. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975).

- Mere fact that codefendants' defenses are antagonistic is not sufficient in itself to warrant separate trials. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975); Reaves v. State, 146 Ga. App. 409, 246 S.E.2d 427 (1978); Kennedy v. State, 253 Ga. 132, 317 S.E.2d 822 (1984).

Fact that the defenses of the codefendants jointly tried may be antagonistic does not in and of itself dictate the grant of separate trials. James v. State, 157 Ga. App. 763, 278 S.E.2d 696 (1981).

Fact of different defenses or even antagonistic defenses will not of itself require severance. Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983).

Antagonism between codefendants is not enough in itself to require severance, rather the defendant must also demonstrate resulting harm, and if the defendant's own pre-trial statement admitting the defendant's own guilt was identical to a codefendant's statement such harm was not demonstrated. Harris v. State, 218 Ga. App. 472, 462 S.E.2d 425 (1995).

Even if the defendant's defenses are antagonistic, theoretically antagonistic defenses without harm do not warrant a reversal. Brown v. State, 268 Ga. 354, 490 S.E.2d 75 (1997).

- Although the defendant complained that the court failed to sever the two counts of the indictment, but the defendant entered a guilty plea as to the charge of possession of a firearm by a convicted felon, thus the defendant was tried only for murder, and therefore this enumeration of error was without merit. Gentry v. State, 250 Ga. 802, 301 S.E.2d 273 (1983).

Severance must be demanded before a hearing on the evidence. Trowbridge v. State, 74 Ga. 431 (1885).

- Defendant waived any argument concerning severance because, although the codefendants moved to sever, the defendant failed to move to sever the defendant's case from that of the codefendants. Garrison v. State, 276 Ga. App. 243, 622 S.E.2d 910 (2005).

Because the defendant made no motion to sever, made no motion to exclude the similar transaction evidence at trial or during the pretrial hearing on the issue, did not join a co-defendant's motions to sever the trial or exclude the evidence, only raised the issues in a motion for new trial, and did not raise the issues at trial, the defendant waived the right to argue the issues regarding severance and the introduction of similar transaction evidence on appeal. Davis v. State, 331 Ga. App. 585, 771 S.E.2d 232 (2015), cert. denied, No. S15C1287, 2015 Ga. LEXIS 551 (Ga. 2015).

Right to sever is absolute unless the state waives the death penalty. Turner v. State, 136 Ga. App. 42, 220 S.E.2d 57 (1975).

If the state was seeking the death penalty, former Code 1933, § 27-2101 (see O.C.G.A. § 17-8-4) gave any defendant so electing the absolute right to be tried separately. Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978).

- Factors which the trial court must consider in exercising discretion in regard to a motion to sever in case in which the death penalty is not sought are: (1) whether the number of defendants will create confusion as to law and evidence applicable to each; (2) danger that evidence admissible against one defendant will be considered against the other despite the court's instructions; and (3) whether the defenses of the defendants are antagonistic to each other or to each other's rights. Kelley v. State, 248 Ga. 133, 281 S.E.2d 589 (1981); Eady v. State, 182 Ga. App. 293, 355 S.E.2d 778 (1987), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

When the death penalty is waived, the decision of whether the defendants may be tried jointly is in the discretion of the trial judge. Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983).

State may demand a severance if justice requires severance. Stewart v. State, 58 Ga. 577 (1877).

State may withdraw decision as to which defendant shall be tried first. Dixon v. State, 12 Ga. App. 17, 76 S.E. 794 (1912).

If a defendant is indicted separately, the defendant has a right to be tried separately under the law unless the defendant voluntarily waives that right. State v. Connelly, 138 Ga. App. 121, 225 S.E.2d 519 (1976).

- By voluntary waiver, persons indicted separately for a joint offense may be tried together. Towns v. State, 149 Ga. 613, 101 S.E. 678 (1919).

- There was no authority under former Code 1933, § 27-2101 (see O.C.G.A. § 17-8-4) to require the court to sever the trial of a defendant who made no motion to sever. Way v. State, 239 Ga. 316, 236 S.E.2d 655 (1977).

Motion for separate trials is addressed to the discretion of the trial court. Dixon v. State, 243 Ga. 46, 252 S.E.2d 431 (1979).

Denial of a motion to sever the defendants pursuant to O.C.G.A. § 17-8-4 is a matter within the sound discretion of the trial court, and the court's ruling will not be disturbed absent a clear abuse of such discretion. Dover v. State, 192 Ga. App. 429, 385 S.E.2d 417 (1989).

Whether to sever the trials of the codefendants is a matter of discretion with the trial judge, and, absent abuse, the judge's decision will not be disturbed by the appellate court. Causey v. State, 192 Ga. App. 294, 384 S.E.2d 674 (1989).

Grant or denial of a motion to sever is within the discretion of the trial court and absent an abuse of discretion, denial of a motion to sever is not grounds for reversal. Freeman v. State, 205 Ga. App. 112, 421 S.E.2d 308 (1992).

- Defendant's motion to sever the defendant's trial was properly denied since: (1) three defendants was not so numerous that the jury would be likely to confuse the facts and law applicable to each; (2) the relevant evidence against each codefendant was unambiguous, the applicable law was straightforward, and there was no evidence of any spillover effect from one codefendant to another; (3) defendant made no showing of prejudice and a consequent denial of due process; and (4) the fact that the evidence was not as strong against defendant as that against the codefendants did not warrant severance. Further, the burden is on the defendant requesting the severance 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 a consequent denial of due process. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263 (2003).

Trial court properly denied the defendant's motion to sever a joint trial as: (1) each of the codefendants was jointly charged with the same offenses, and the offenses were committed simultaneously; (2) there was no danger of confusion as to the law and evidence applicable to each as virtually all of the evidence tended to show the defendants joint guilt; (3) severance was not required solely because each of the three defendants shared the same last name; and (4) the defenses were complimentary, not antagonistic, in that all argued that the state had charged the wrong men and had failed to prove the case. Hence, the defendant failed in the burden of showing prejudice and a denial of due process. Adkins v. State, 281 Ga. 301, 637 S.E.2d 714 (2006).

Trial court did not err in denying the defendant's motion to sever the defendant's trial from that of a codefendant; the defendant stated that the defendant could not meet the criteria to have severance granted in order to call the codefendant as a witness, and although the defendant later wanted it known that the codefendant had prior convictions, the defendant never asserted this as a basis for the defendant's motion to sever. Lee v. State, 284 Ga. App. 435, 644 S.E.2d 196 (2007).

It was not error for the trial court to refuse to sever the defendant's trial from that of a codefendant because of evidence regarding the codefendant's prior incarceration. The evidence was not complex and the defenses of the defendant and the codefendant were not antagonistic; moreover, admission of evidence suggestive of the codefendant's bad character, even if improper, was harmless in light of the overwhelming evidence of the defendant's guilt. Walker v. State, 282 Ga. 703, 653 S.E.2d 468 (2007).

Because a codefendant could have testified against the defendant in a separate trial if the defendant's motion to sever had been granted, the defendant failed to show harm from the denial of the motion to sever. Accordingly, the trial court did not abuse the court's discretion in denying the defendant's motion to sever due to antagonistic defenses. Hendrix v. State, 284 Ga. 420, 667 S.E.2d 597 (2008).

Trial court did not err in failing to grant a defendant's motion for severance of defendants under O.C.G.A. § 17-8-4(a); because a witness did not exculpate the defendant, but implicated the defendant as a party, the defendant was not prejudiced by the codefendants' attempts to discredit the witness. As for a second defendant, failure to grant a severance was harmless in light of the overwhelming evidence of guilt. Metz v. State, 284 Ga. 614, 669 S.E.2d 121 (2008), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).

With regard to several defendants challenging the trial court's denial of the defendants' motions to sever the cases from the other defendants, the defendants failed to show that the trial court abused the court's discretion by denying the motions as the defendant did not make a clear showing of prejudice sufficient to establish a denial of due process since each defendant was charged with a Georgia Racketeering Influenced and Corrupt Organization Act (RICO) violation, thus, all of the evidence was admissible against all the defendants, and would have been admissible even if they had separate trials on the RICO violations. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009).

Trial court did not err in denying the defendant's motion to sever under O.C.G.A. § 17-8-4(a). The danger of confusion from three defendants appeared minimal; there appeared to be no danger that the evidence against one would be considered against the others, 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; and the defenses were not antagonistic when the motion was considered, although the defenses later became so when one defendant chose to testify against the others. Lankford v. State, 295 Ga. App. 590, 672 S.E.2d 534 (2009).

Trial court did not abuse the court's discretion by denying the defendant's motion to sever the defendant's trial from the codefendant's trial because the law applicable to each defendant was substantially the same, and the evidence at trial showed that the defendant and the codefendant acted together in killing the victim. Moreover, the defendant did not clearly show that a joint trial prejudiced the defendant's defense, resulting in a denial of due process. Herbert v. State, 288 Ga. 843, 708 S.E.2d 260 (2011).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever the defendant's trial from that of the codefendants because the familial and personal interrelationships of the three defendants and one of the victims were not so confusing as to warrant separate trials; the relationships went to motive for the shootings and would have been admissible had the codefendants been tried separately. Glass v. State, 289 Ga. 706, 715 S.E.2d 85 (2011).

Trial court did not err in denying the defendant's motion to sever the defendant's trial from that of the codefendant as the defenses of the defendant and the codefendant were not antagonistic and the jury was instructed that the defendants were on trial only for the offenses charged in the indictment and not for any other acts or occurrences. Harrell v. State, 322 Ga. App. 115, 744 S.E.2d 105 (2013).

Trial court did not err in failing to sever the defendant's trial from that of the codefendant as the evidence showed they acted together, the law applicable to each was the same, and the defendant failed to point to evidence that would not have been admitted in a separate trial. Coe v. State, 293 Ga. 233, 748 S.E.2d 824 (2013).

Trial court did not err in denying a motion to sever because the law applicable to each defendant was substantially the same, the evidence showed the defendants acted together, and there was no showing of prejudice from the presentation of antagonistic defenses. Flournoy v. State, 294 Ga. 741, 755 S.E.2d 777 (2014).

Defendant failed to show that the trial court abused the court's discretion in failing to sever the defendant's trial from the co-defendant's because the defendant failed to show that the evidence may have been confusing to the jurors, especially since there were only two co-defendants involved in the case and the evidence showed that the defendant acted in concert with the co-defendant by driving the getaway vehicle. Broyard v. State, 325 Ga. App. 794, 755 S.E.2d 36 (2014).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever because there was little likelihood of jury confusion as there were only two defendants at trial and no difference in the law applied to the two defendants; the jury addressed the defendants' indictments separately and returned a separate verdict for each defendant; and antagonistic defenses alone were not sufficient to mandate severance. Taylor v. State, 331 Ga. App. 577, 771 S.E.2d 224 (2015).

Trial court did not err in denying the first defendant's motion to sever as there was little likelihood of jury confusion given that there were only two defendants and no difference in the law applied to the defendants and evidence that the second defendant was a gang member would have been admissible against the first defendant in a separate trial. Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever as the presence of antagonistic defenses alone was insufficient to require severance and the defendant made no showing that the codefendant would have been likely to offer testimony exculpatory to the defendant if the offenses had been tried separately. Marquez v. State, 298 Ga. 448, 782 S.E.2d 648 (2016).

- Because a second of two defendants failed to show the presence of any confusion engendered by the number of defendants or the law, the defenses were not antagonistic, and accomplice testimony against the first defendant did not involve or incriminate the second defendant, the trial court did not abuse the court's discretion in denying the second defendant's motion to sever the trial from that of the first defendant; hence, the second defendant failed to show that the court's refusal to sever caused prejudice or a due process violation. Williams v. State, 280 Ga. 584, 630 S.E.2d 370 (2006).

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 mere fact that the defendants' defenses were antagonistic was not sufficient to warrant the grant of separate trials absent a showing of harm; the defendant made no such showing because the codefendant's only witness had previously testified for the state, and that evidence, as well as evidence flowing from the codefendant's cross-examinations of witnesses that arguably could have been construed as implicating the defendant, was merely cumulative of the state's evidence against the defendant. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever the defendant's case from the codefendant's case as the defendant made no argument that there was a confusion of law or facts, that the evidence against the codefendant had a "spillover" effect, or that the defendant's defense was antagonistic to the codefendant's defense. Salgado v. State, 268 Ga. App. 18, 601 S.E.2d 417 (2004).

- Since a robbery victim was exceedingly clear in identifying codefendants separately, in selecting one defendant's photo from a lineup, and in testifying that that defendant and not the other was the one who physically assaulted the victim, the jury could not logically confuse the roles played by the two codefendants; thus, the trial court did not abuse the court's discretion in deciding not to sever the trials of the codefendants. Sims v. State, 195 Ga. App. 631, 394 S.E.2d 422 (1990).

Trial court did not abuse the court's discretion in denying a motion for severance. Emmett v. State, 199 Ga. App. 650, 405 S.E.2d 707, cert. denied, 199 Ga. App. 905, 405 S.E.2d 707 (1991); Nanthabouthdy v. State, 245 Ga. App. 456, 538 S.E.2d 101 (2000); Robinson v. State, 259 Ga. App. 555, 578 S.E.2d 214 (2003).

Denial of the defendant's motion to sever was not an abuse of discretion since there was no evidence admissible against one defendant which was inadmissible against the other and there was no danger of confusion based on the number of defendants because there were only two. Pinson v. State, 266 Ga. App. 254, 596 S.E.2d 734 (2004).

- Grant or denial of a motion for severance lies within the sound discretion of the trial court, and the court's ruling will not be reversed absent a clear abuse of such discretion. 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); Rivers v. State, 178 Ga. App. 310, 342 S.E.2d 781 (1986).

Refusal to sever the trial of the defendants who had antagonistic defenses was not an abuse of discretion because even if the cases had been severed, the codefendant could have given the same testimony at the defendant's separate trial. Heard v. State, 274 Ga. 196, 552 S.E.2d 818 (2001).

Trial court did not abuse the court's discretion in denying a second defendant's motion to sever the trial from that of the first as the court aptly determined that: (1) there was no persuasive argument that evidence offered against one defendant might be considered improperly against another, and no evidence of antagonistic defenses that would jeopardize each other's right to a fair trial, though the court acknowledged the possibility of the codefendants finger-pointing at one another; and (2) the second defendant was a member of the first defendant's organization and provided security for the first defendant. Oree v. State, 280 Ga. 588, 630 S.E.2d 390 (2006).

- Denial of the defendant's severance motion was not an abuse of discretion because there was no likelihood of confusion as the defendant and codefendant acted in concert and their defenses were not antagonistic, substantially similar evidence was presented against the defendants, and the codefendant's statements would have been admissible in a separate trial as statements of a coconspirator. Shelton v. State, 279 Ga. 161, 611 S.E.2d 11 (2005).

- Trial judge's ruling in denying severance will not be disturbed if there is no showing that the defendant suffered prejudice which amounts to a denial of due process. Harper v. State, 166 Ga. App. 797, 305 S.E.2d 488 (1983).

In light of the numerous witnesses called by the state who identified the defendant as the person who shot the victim, and because antagonism between the codefendants was insufficient to require severance, the defendant failed to show the clear prejudicial harm necessary to overturn the trial court's denial of a motion to sever the trial. Rivers v. State, 283 Ga. 1, 655 S.E.2d 594 (2008).

- In order to be entitled to a severance on the ground defendant wishes to call a codefendant as a witness, the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) the testimony's exculpatory nature and effect; and (4) that the codefendant will in fact testify if the cases are severed. Given such a showing, the court should: (1) examine the significance of the testimony in relation to the defendant's theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; and (4) give weight to the timeliness of the motion. 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).

One of the grounds for granting a severance is the need of one defendant to use the exculpatory testimony of a codefendant. House v. State, 203 Ga. App. 55, 416 S.E.2d 108, cert. denied, 203 Ga. App. 906, 416 S.E.2d 108 (1992).

- Two or more defendants charged with different offenses may be tried jointly when the offenses are part of a common scheme or plan. Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977); Allen v. State, 144 Ga. App. 233, 240 S.E.2d 754 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 264, 58 L. Ed. 2d 247 (1978); Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980).

When two or more defendants are charged with identical crimes or with different offenses which are part of a common scheme or plan, the defendants may be jointly tried in the discretion of the trial court. Arnsdorff v. State, 152 Ga. App. 515, 263 S.E.2d 176 (1979).

Trial judge has discretion concerning severance of trial when there is evidence of two or more offenses based on same conduct or on series of connected acts or constituting parts of single scheme or plan. Johnson v. State, 158 Ga. App. 398, 280 S.E.2d 419 (1981).

Offenses which are part of a common plan or scheme may be tried together; provided such a trial does not hinder a fair determination of each defendant's guilt or innocence. Arnsdorff v. State, 152 Ga. App. 515, 263 S.E.2d 176 (1979).

- If a joint trial does not prevent or hinder a fair determination of each defendant's guilt, there is no abuse of discretion in denying severance. Allen v. State, 144 Ga. App. 233, 240 S.E.2d 754 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 264, 58 L. Ed. 2d 247 (1978).

- Defendant was charged with molesting two sisters in the same manner and place and although some acts occurred while the defendant was alone with one child, other acts were conducted on the children simultaneously; therefore, the trial court did not abuse the court's discretion in denying severance. Davidson v. State, 231 Ga. App. 605, 499 S.E.2d 697 (1998).

- When two or more crimes, joined solely on the ground that the crimes are of the same or similar character, are committed at different times and places, and involve transactions with different persons, it is mandatory that the trial judge, upon the defendant's motion, order separate trials for each of the crimes charged. Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977).

If two or more offenses have been joined solely on the ground that the offenses are of the same or similar character, the trial judge, upon the defendant's motion for severance, must order separate trials for each of the offenses charged. Johnson v. State, 158 Ga. App. 398, 280 S.E.2d 419 (1981).

- When codefendants A and B were charged with aggravated assault, armed robbery, and criminal damage to property and B was also charged with aggravated assault on B's spouse in the same indictment, a motion by A to sever the latter charge against B from the rest of the charges in the indictment was properly denied; A's rights in regard to that count were limited to a motion to sever the trial under O.C.G.A. § 17-8-4. Durden v. State, 219 Ga. App. 732, 466 S.E.2d 641 (1995).

- 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).

- 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).

- 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 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).

- 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).

- 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).

- 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).

- See Mulkey v. State, 250 Ga. 444, 298 S.E.2d 487 (1983).

Since the codefendant did testify, allowing 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).

- 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).

- 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).

- State was within the state's statutory right under O.C.G.A. § 17-8-4, when the state 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).

- 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 arguments. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).

- 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 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 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).

- 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).

- 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).

- 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).

- 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).

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 performance 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).

- 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 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).

§ 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 and17-8-4) 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).

- 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).

- 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).

- 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 Ga. App. 258, 267 S.E.2d 863 (1980).

- 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).

- 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 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).

- 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 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).

- 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).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 157 et seq., 172 et seq.

- 22A C.J.S., Criminal Procedure and Rights of the Accused, § 534 et seq. 50A C.J.S., Juries, §§ 335 et seq., 427 et seq., 441 et seq., 474 et seq., 515 et seq.

- Right of defendant in a criminal case to cross-examine a codefendant who has taken the stand in his own behalf, 33 A.L.R. 826.

Right to severance where two or more persons are jointly accused, 70 A.L.R. 1171; 104 A.L.R. 1519; 131 A.L.R. 917.

Successful defense by one codefendant, or a finding for "defendants," as inuring to benefit of defaulting defendant, 78 A.L.R. 938.

Consolidated trial upon several indictments or informations against same accused, over his objection, 59 A.L.R.2d 841.

Husband or wife as competent witness for or against co-offender with spouse, 90 A.L.R.2d 648.

Jury: number of peremptory challenges allowed in criminal case, where there are two or more defendants tried together, 21 A.L.R.3d 725.

Inconsistency of criminal verdicts as between two or more defendants tried together, 22 A.L.R.3d 717.

Effect of abolition of capital punishment on procedural rules governing crimes punishable by death - post-Furman decisions, 71 A.L.R.3d 453.

Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245.

Right of defendants in prosecution for criminal conspiracy to separate trials, 82 A.L.R.3d 366.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution, 41 A.L.R.4th 1189.

Antagonistic defenses as ground for separate trials of codefendants in state homicide offenses - Factual applications, 16 A.L.R.6th 329.

Antagonistic defenses as ground for separate trials of codefendants in criminal cases - state narcotics offenses, 19 A.L.R.6th 115.

Antagonistic defenses as ground for separate trials of codefendants in state homicide offenses - applicable standard and extent of antagonism required, 24 A.L.R.6th 591.

Desire of accused to testify on just one of multiple charges as basis for severance of trials, 32 A.L.R.6th 385.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution, 41 A.L.R.6th 295.

Judicial removal for cause and peremptory strike validity under Batson against jurors based upon viewing police procedural programs, live television trials, reality legal television, or other crime and legal based television programs, 84 A.L.R.6th 229.

Antagonistic defenses as ground for separate trials of codefendants in criminal case - Federal homicide offenses, 7 A.L.R. Fed. 2d 415.

Antagonistic defenses as ground for separate trials of codefendants in criminal case - Federal cocaine offenses, 7 A.L.R. Fed. 2d 491.

Antagonistic defenses as ground for separate trials of codefendants in criminal case - Federal marijuana offenses, 34 A.L.R. Fed. 2d 509.

Propriety of Use of Multiple Juries at Joint Trial of Multiple Defendants in Federal Criminal Prosecution, 40 A.L.R. Fed. 3d Art. 4.

Supreme Court Jurisprudence on Article III Standing, 41 A.L.R. Fed. 3d Art. 5.