Severance of Defendants
In every case other than a death penalty case, the judge has broad discretion to grant or deny a motion for severance of defendants. See OCGA § 17-8-4; Shelton v. State, 279 Ga. 161 (2005). It is incumbent upon the defendant who seeks a severance to show clearly that the defendant will be prejudiced by a joint trial. Scruggs v. State, 309 Ga. App. 569 (2011); Krause v. State, 286 Ga. 745 (2010).
In ruling on a severance motion, the judge should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. Brooks v. State, 311 Ga. App. 857 (2011); Harper v. State, 300 Ga. App. 757 (2009); Griffin v. State, 273 Ga. 32 (2000). Although the judge must consider these factors, he does not have to explain his findings on each factor, Garmon v. State, 317 Ga. App. 634 (2012).
Unless there is a showing of resulting prejudice, antagonistic defenses do not automatically require a severance. Green v. State, 274 Ga. 686 (2002); Zafiro v. United States, 506 U.S. 534 (1993). It is not enough for the defendant to show that he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger. Butler v. State, 290 Ga. 412 (2012); Kelly v. State, 267 Ga. 252 (1996). The defendant must show clearly that a joint trial would prejudice his defense, resulting in a denial of due process. Howard v. State, 279 Ga. 166 (2005); Herbert v. State, 288 Ga. 843 (2011); Cruz v. State, 305 Ga. App. 805 (2010).
The simple fact that a defendant desires certain testimony of a co-defendant, which might not be available at a joint trial, is not enough to require severance, absent a showing of prejudice to the defendant. In fact, as a initial matter, when the defendant requests a severance under these circumstances, the defendant must prove: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed. Avellaneda v. State, 261 Ga. App. 83 (2003); Williams v. State, 308 Ga. App. 464 (2011); Brinson v. State, 288 Ga. 435 (2011).
Bruton
A defendant's Sixth Amendment right to be confronted with the witnesses against him is violated when co-defendants are tried jointly and the custodial statement of a co-defendant who does not testify at trial is used to suggest the involvement of the other co-defendant in the crime. Boone v. State, 250 Ga. App. 133 (2001); Herbert v. State, 288 Ga. 843 (2011). Bruton v. United States, 391 U.S. 123 (1968). This is called the Bruton rule. Bruton is not violated if a co-defendant's statement does not incriminate the defendant on its face and only becomes incriminatory when linked to other evidence at trial. Smith v. State, 308 Ga. App. 190 (2011).
The prosecution can redact the co-defendant's statement to take out the portions that refer to the defendant. This is done by redacting the statement to eliminate any reference to the defendant and the judge instructing the jury to consider the statement only against the co-defendant who made the statement. However, a co-defendant's statement that merely replaces the defendant's name with a blank or a symbol violates Bruton even if the jury is instructed to limit its consideration of the statement. Anderson v. State, 311 Ga. App. 732 (2011). Further, codefendant statements, that refer directly to some person that the jury may infer is the defendant violate the Bruton rule. Davis v. State, 272 Ga. 327 (2000).
The defendant whose redacted statement is being played does not have the right to introduce other portions of the statement which point to a codefendant's involvement. An exception exists if the portion of the statement the defendant wants to be admitted points to the co-defendant but also contains the defendant's defense, then the defendant would be able to admit the statement and the defendants would have to be given separate trials. Wilson v. State, 285 Ga. 224 (2009).
Severance of Offenses
A defendant can also ask that certain counts of the indictment be severed. When considering a motion to sever offenses the judge engages in a two part inquiry. The judge must first determine whether the offenses in the indictment were joined solely because they are of the same or similar character. If they were, severance is required. If they are not, the judge court must then decide whether severance would promote a just determination of guilt or innocence as to each offense. Willis v. State, 309 Ga. App. 414 (2011); Dingler v. State, 233 Ga. 462 (1975); Stewart v. State, 277 Ga. 138 (2003).
There are circumstances in which the law recognizes that offenses are not joined solely because they are of the same or similar character, but rather because there is an independent basis for them to be joined in the indictment. The circumstances that courts have found to create an independent basis for joinder are: (1) if the crimes are so strikingly similar as to evidence a common motive, plan, scheme or bent of mind Austin v. State, 286 Ga. App. 189 (2007); (2) where the two offenses demonstrate ongoing criminality or a modus operandi that the totality of the facts demonstrate and designate that the defendant is the common perpetrator, Mack v. State, 163 Ga. App. 778 (1982); and (3) if the evidence is so intertwined that the evidence of one crime will be admissible during a separate trial of the other because of an independent evidentiary basis to prove the other crime. For example, one offense is the predicate of another such as possession of a firearm by convicted felon and felony murder; one offense constitutes the circumstances of arrest of the other, Jackson v. State, 316 Ga. App. 128 (2012); Roundtree v. State, 270 Ga. 504 (1999); one offense is evidence of flight from the other, Woolfolk v. State, 282 Ga. 139 (2007); or one offense is admissible as similar transaction evidence because it tends to prove guilt on the other offense, Heck v. State, 313 Ga. App. 571 (2012); Allen v. State, 268 Ga. App. 519 (2004). In these cases, severance is not mandatory, but the trial court must still decide whether severance would promote a just determination of guilt or innocence as to each offense. The judge considers whether, in light of the number of offenses charged and the complexity of the evidence, the jury will be able to distinguish the evidence and apply the law intelligently to each offense. Fielding v. State, 299 Ga. App. 341 (2009). The appeals court reviews the trial court's determination for abuse of discretion. Gadson v. State, 223 Ga. App. 342 (1996); Loyless v. State, 210 Ga. App. 693 (1993).
In cases where a felon in possession of a firearm charge is unrelated to another count in the indictment the trial should be bifurcated so the jury will hear and decide the other charges before learning about the defendant's prior conviction. However, a motion to bifurcate should be denied where the possession of a firearm by a convicted felon charge serves as the underlying felony for a felony murder charge. Poole v. State, 291 Ga. 848 (2012).