After a jury trial, Appellant Willie Bernard Butler, Jr. and his co-defendant Martin Holmes were found guilty of the malice murder and armed robbery of Rickey Gibson, the burglary of Gibson’s and Alexis Yates’ dwelling house, aggravated assault against their infant son Jordan Yates, the aggravated assault and kidnapping of Ms. Yates, two counts of possession of a firearm during commission of the crimes against Gibson and Ms. Yates, the burglary of Randy Manning’s dwelling house, aggravated assault against Greg Pridgen, and hijacking Pridgen’s motor vehicle. Holmes was also found guilty of possession of marijuana. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for murder and to various terms of years for the remaining crimes. A motion for new trial was denied, and he appeals *
1. Construed most strongly in support of the verdicts, the evidence shows that Appellant, Holmes, and at least two other young men, all of whom were carrying guns, broke into Gibson’s and Ms. Yates’ house, demanded money, put a handgun into the baby’s mouth, hit Ms. Yates in the head with a gun, and forced her to go outside. Ms. Yates escaped with the baby, and the men shot Gibson multiple times, killing him. A shoe print near the house was consistent with the shoes that Appellant was wearing, and Ms. Yates later identified Holmes as one of the intruders.
Gibson’s gold watch was stolen during the home invasion and was left behind about two hours later in Manning’s yard after his house was burglarized by Appellant and Holmes. Appellant defecated in the yard and cleaned himself with a bloody sock which tested positive for his DNA. Shortly afterwards, Appellant and Holmes entered Pridgen’s car while it was running and he was *413 delivering a newspaper. Pridgen fought with Appellant, who punched him several times and stabbed him. Police officers responded quickly and found Appellant and Holmes running down the street. Pridgen identified both of them as the perpetrators of the crimes against him. A search of a vehicle in which two of their co-indictees were riding revealed a bottle of pills belonging to Appellant’s mother and a camera with pictures of Appellant and Holmes.
The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.
Jackson v. Virginia,
2. Appellant contends that the trial court erred in denying his motion to sever the parties. “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. [Cits.]”
Herbert v. State,
“ ‘(1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights?’ (Cit.)” [Cit.]
Ward v. State,
“There were only two defendants here, the law applicable to each defendant was substantially the same, and the evidence at trial showed that [Appellant] and [Holmes] acted together in” committing the jointly indicted crimes.
Herbert v. State,
supra. Appellant argues that the evidence against him, especially as to the murder, was weak in comparison to the evidence against Holmes. “However, 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. [Cit.]”
Herbert v. State,
supra. See also
Moon v. State,
[A]ppellant was being tried under the theory that he was a party to the [crimes] and “there was ample evidence to show that (he) was a party to the crime[s].” [Cit.] Where, as here, there is sufficient evidence of a “common scheme or plan” to commit . . . criminal offense[s], joinder is authorized and severance is not mandatory. [Cit.]
Willingham v. State,
Although Appellant also “claims on appeal that severance was warranted because [Holmes’] defense[ ] [was] antagonistic to his, [A]ppellant waived this ground by failing to raise it in the trial court. [Cit.]”
Thorpe v. State,
The defendant must show clearly that a joint trial prejudiced his defense, resulting in a denial of due process. [Cit.] [Appellant] made no such showing. Accordingly, the trial court did not abuse its broad discretion in denying [the] motion for a separate trial.
Herbert v. State, supra.
3. Appellant urges that the trial court erred in denying a motion to suppress the pre-trial identification of Appellant by Pridgen during a one-on-one show-up at the police station.
“ ‘Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible.’ ”
Scruggs v. State,
“permissible in aiding a speedy police investigation and because there were possible doubts as to the identification *415 which needed to be resolved promptly and in order to enhance the accuracy and reliability of identification in order to permit the expeditious relief of innocent subjects. (Cits.)” [Cit.]
Rogers v. State, supra at 596 (1).
We generally first determine “whether the identification procedure was impermissibly suggestive. If the answer to that inquiry is negative, we need not consider the second question — whether there was a substantial likelihood of irreparable misidentification. [Cits.]”
Azizi v. State,
Here, even assuming without deciding that the circumstances surrounding [Appellant’s] identification rendered the showup impermissibly suggestive, the evidence is inadmissible only if under the totality of the circumstances, there was a substantial likelihood of irreparable misidenti-fication. [Cit.]
Frazier v. State,
In that regard, Appellant properly concedes that Pridgen had opportunity to view his attacker’s face and focused his attention thereon. See
Tiggs v. State,
“As identity is a question for the trier of fact, the credibility of the witness making such identification is not to be decided by this Court where a witness identifies a defendant. Instead, the witness’s credibility as well as the weight given his testimony on the perpetrator’s identity were issues for the jury.” [Cit.]
Scruggs v. State, supra. See also Lee v. State, supra.
[Pridgen’s] description of the [attacker] was fairly accurate. [Again,] [t]he length of time between the crime and the confrontation was less than [one] hour[ ]. The trial court, therefore, was not clearly erroneous in concluding that the *416 identification was reliable despite any possible suggestion implied by the officers when they told the victim that they had [caught them], [Cit.]
Ford v. State,
4. During direct examination of Appellant’s eyewitness identification expert, the trial court asked defense counsel whether a question went to the state of Pridgen’s mind and intelligence requiring the witness to judge his credibility, whether after objection to another question the witness had documents and test reports with her for the prosecutor’s examination and use in cross-examination, and whether another question regarding the effect of telling a witness that officers have the perpetrator would depend on the individual in light of the court’s prior experience with reliable show-ups. Appellant contends that in each of these instances, the trial court violated OCGA § 17-8-57 by making comments regarding the reliability of the expert witness and of one-on-one show-ups.
“Under that statute, it is error for a judge to ‘express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.’ ”
Creed v. State,
5. Appellant further contends that the trial court erred in removing Juror Number 12 and replacing him with an alternate juror after the State rested even though the prosecutor failed to show prejudice.
OCGA § 15-12-172 provides: “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” The trial court must exercise its discretion in removing a juror, and it may [e]ffect such a removal even after deliberations have begun. [Cit.] “There must be some sound basis upon which the trial judge exercises his discretion to remove the juror.” [Cit.] A sound basis may be one which serves “the legally relevant purpose of preserving public respect for the integrity of the judicial process.” [Cit.] Where the basis for the juror’s incapacity is not certain or obvious, “some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion.” [Cit.] Dismissal of a juror without any factual support or for a legally irrelevant reason is prejudicial. [Cit.]
State v. Arnold,
“ ‘On appeal, the question is whether evidence supports the trial
*418
court’s determination.’ [Cit.] The fact that the juror eventually stated that he could be impartial ‘does not require the trial court to ignore the numerous times (he)’ ” equivocated or the other jurors’ testimony showing that he expressed a fixed and definite opinion “ ‘and does not make the trial court’s credibility decision to strike (him) error.’ [Cit.]”
Ganas v. State,
Judgments affirmed.
Notes
The crimes occurred on September 24,2008, and the grand jury returned an indictment on August 5, 2009. The jury found Appellant guilty on October 2, 2009, and, on that same day, the trial court entered the judgments of conviction and sentences. The motion for new trial was filed on October 16, 2009, amended on December 3, 2010 and on March 3, 2011, and denied on May 4, 2011. Appellant filed the notice of appeal on May 27, 2011. The case was docketed in this Court for the September 2011 term and submitted for decision on the briefs.