Nevarro Brinson and Temyarance Johnson, who were both Marine Corps reservists, were jointly tried for malice murder, conspiracy to commit murder, felony murder, and possession of a firearm during the commission of a felony stemming from the shooting death of Demarcus Waddell. Brinson and Johnson were convicted on all counts, and both were sentenced to life in prison for malice murder and to five consecutive years for the firearm offense, with the other convictions vacated or merged.
1
We have already affirmed Johnson’s convictions. See
Johnson v. State,
1. Viewed in the light most favorable to the verdict, the evidence, which is set forth in detail in
Johnson,
2. Brinson contends that the trial court erred in denying his motion to sever his trial from Johnson’s. We disagree.
In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. In ruling on a severance motion, the trial court 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. It is not enough for the defendant to show that he or she would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger. *436 Rather, the defendant must show clearly that a joint trial will prejudice his or her defense, resulting in a denial of due process.
Krause v. State,
Brinson does not contend that there was a likelihood of confusion about the evidence and the law, and we conclude that he has failed to demonstrate that evidence admissible only against Johnson was considered against him. Brinson specifies as an example of such evidence Charlene Cole’s testimony that Johnson told her that Brinson had the murder weapon in his possession on the weekend that the victim was murdered. This testimony, however, would have been admissible against Brinson in a separate trial, as Johnson’s statements to Cole were non-testimonial statements of a co-conspirator made during the concealment phase of the conspiracy. See OCGA § 24-3-5;
Allen v. State,
Finally, the fact that Brinson and Johnson had somewhat antagonistic defenses is insufficient to require severance unless there is a showing of resulting prejudice and consequent denial of due process. See
Krause,
For these reasons, the trial court did not abuse its discretion in denying the motion to sever. See also
Johnson,
3. Brinson contends that the trial court erred in denying his motion for new trial based on newly discovered evidence. We disagree. At trial, Brinson testified that on the night of the crimes, he was with his girlfriend at his apartment; that he left about 8:00 p.m. to pick up dinner for her at a restaurant on South Slappey Boulevard in Albany, Georgia; that he was gone about 30 to 40 minutes; and that he did not leave the barracks after he returned. Brinson’s girlfriend testified to the same sequence of events as Brinson. At the motion for new trial hearing, Brinson introduced a receipt from the restaurant on South Slappey Boulevard for a purchase at 8:33 p.m. *437 on November 27, which was discovered by his family among his belongings after the trial.
To obtain a new trial based on newly discovered evidence, a defendant must show, among other things, that the new evidence is “so material that it would probably produce a different verdict” and “is not cumulative.”
Timberlake v. State,
4. Finally, Brinson contends that the trial court erred by permitting the prosecutor to improperly comment on his right to remain silent. Brinson, however, failed to object at trial and is therefore barred from raising the issue on appeal. See
Wilkerson v. State,
Judgment affirmed.
Notes
The crimes occurred on November 27, 2005, and Brinson and Johnson were indicted on September 27, 2006. The jury found Brinson and Johnson guilty on November 15, 2006. The trial court sentenced the co-defendants that same day. Brinson filed a motion for new trial on December 6, 2006, and amended the motion on January 17, 2007. The trial court denied the motion on December 28, 2009, and Brinson filed a timely notice of appeal. The appeal was docketed for the September 2010 term of this Court and submitted for decision on the briefs.