Lаrry Cornelius Burgess appeals in this case from his convictions for malice murder, kidnapping, aggravated assault, and possession of a firearm by a convicted felon. Hе was indicted jointly with co-defendants Leviticus Swift and Charles Harris for the fatal shooting of Deanthony Denard Carter. Harris pled guilty to lesser charges and testified against the other twо at their joint trial. The facts adduced at trial, were succinctly stated in the opinion affirming Swift’s conviction:
[T]he prosecution showed that Carter stole drugs belonging to [Swift]. Angry about the theft, Swift confronted him at gunpoint. With the assistance of Burgess, [Swift] bound the victim’s hands and ankles with tape. They then put Carter *186 into the trunk of Harris’ car, and Harris drove to a remote arеa. Swift, Burgess and several others, including Desmond Diaz, followed in another vehicle. Carter was shot twice in the head. According to Diaz, Burgess shot the victim and then gave the gun to [Swift] who fired the second bullet. Harris testified that Burgess fired once and, almost a minute later, fired again. The medical examiner testified that either shot would have caused death. He аlso expressed an opinion that both bullets were fired in rapid succession, the implication being that there was only one shooter. In closing argument, the prosecutor acknowledged the discrepancy between Diaz’s and Harrises] version of the homicide. He told the jury that, based upon the medical examiner’s testimony, the State’s theory was that Burgess fired both shots and, therefore, that Diaz was wrong when he attributed the second shot to Swift.
Swift v. State,
1. The evidence adduced at trial was sufficient to authorize a rational trier of fact to find Burgess guilty beyond a reasonable doubt of the crimes charged.
Jackson v. Virginia,
2. Burgess contends the State’s withholding until trial of a statement by Diaz that both Burgess and Swift shdt Carter, and a statement by Harris that Swift asked Burgess not to shoot Carter violated both OCGA § 17-16-7 and
Brady v. Maryland,
3. Burgess contends his convictions are tainted by prоsecutorial misconduct in that the State knowingly used perjured testimony. The alleged perjury was Diaz’s testimony that both Burgess and Swift shot Carter, and Harris’s testimony that he had not been indicted for murder and was not on probation at the time of the crimes involved here. These same contentions were raised by Swift on his appeal and were resolved adversely to him:
*187 [T]he record shows only an inconsistency between the testimony of the witnesses. Diaz testified that appellant fired the second shot, whereas Harris claimed that Burgеss fired both. Harris testified that about a minute elapsed, between shots, but the medical examiner offered an opinion that they were fired almost simultaneously. The prosecutor did not conceal any evidence, and was forthright in informing the jury that the State contended Burgess was the only shooter and appellant was a party to the crime оf murder. Harris made certain claims on direct which Swift contends were false, but the witness was subject to a thorough and sifting cross-examination by the defense and every effort was made to impeach him. Under these circumstances, Swift’s convictions are not based upon the State’s knowing use of perjured testimony, “but upon that version of the events most unfavorable to (him), which version the jury accepted after hearing all of the evidence and resolving the credibility of all of the witnesses. [Cit.]”
Swift v. State,
supra,
4. The trial court denied Burgess’s pretrial motion to sever his trial from Swift’s, and enumerates as error that denial and the trial court’s failure to order severance during the trial. The two bases on which Burgess rests his argument arе that the defenses were antagonistic and that the evidence against Swift was stronger than that against Burgess.
Factors to be considered by the trial court in exercising its discretion concerning a request for severance are: “whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against another defendant despite cautionary instructions to the contrary; and whether the codefendants will press antagonistic defenses. [Cit.]” To be successful, a defendant seeking severance must clearly show that the joinder will result in prejudice to him or her and a consequent denial of due рrocess. [Cit.] The trial court’s ruling as to a request for severance will only be overturned where an abuse of discretion on the part of the trial court can be demonstrаted. [Cit.]
Adams v. State,
There was no likelihood of confusion here since there were just two defendants who were acting in concert; there was no evidence offered against Swift that could spill over to prejudice Burgess; and
*188
the defenses put forward by Burgess and Swift were not antagonistic in that both contended the eyewitnesses were lying. Although one witness testified that Burgess fired both shots and that Swift asked Burgess not to shoot Carter, the discrepancy between that testimony and the testimony of the other eyewitness that Burgess and Swift each fired а shot was not such as to prejudice Burgess. Severance of the two defendants for trial would not have limited the introduction of the evidence Burgess now contends was unduly prеjudicial to him because it would have been admissible against him in a separate trial as part of the res gestae.
Walker v. State,
5. On appeal, Burgess contends that the admission of Harris’s testimony that Swift asked Burgess not to shoot Carter was a violation of his right of confrontation under
Bruton v. United States,
6. The trial court refused to give a requested jury charge informing the jury that Burgess contended that he had been framed by accomplices who were seeking reduced sentences by testifying against him, and instructing them tо acquit him if evidence of the frame created a reasonable doubt of his guilt. Relying on the principle that a defendant is entitled to a charge on his sole defensе, and on United States v. Vole, 435 F2d 774 (C.A. Ill. 1970), in which a conviction was reversed for refusing a similar charge, Burgess contends his conviction must be reversed.
“The trial court must charge the jury on the defendant’s sole dеfense, even without a written request, if there is some evidence to support the charge.”
Tarvestad v. State,
7. Finally, Burgess contends he was denied effective assistance of counsel by his trial counsel. Since appellate counsel in this case entered this case after trial counsel had filed a notice of appeal, and after 30 days had elapsed from the judgment of conviction and sentence, thеre was no opportunity to assert a claim of ineffective assistance of trial counsel at the trial level. Therefore, we remand the case to the trial court for appropriate findings concerning the issue of ineffective assistance of trial counsel.
Mullinax v. State,
Judgment affirmed and case remanded.