Appellant Ernest Glass seeks reversal of his convictions for malice murder, three counts of aggravated assault, and four counts of possession of a firearm during the commission of a crime. He challenges the sufficiency of the evidence, contends the trial court erred when it denied his motion to sever his trial from that of his co-defendants and when it denied his motion for a continuance, and *707 asserts that his trial counsel provided ineffective assistance of counsel when counsel failed to renew his motion to sever following the testimony of one of his co-defendants. After reviewing the record, we affirm the judgment of conviction. 1
1. The State presented evidence that Lisa Odell Mosby was fatally shot as she stood on the front porch of a friend’s home. She was killed by a bullet that entered her left breast at the fifth rib, perforated her heart and, traveling in a downward direction, exited her back at the tenth rib. The three men with her when she was shot identified appellant as the man who fired six to eight shots at them and Ms. Mosby from the front passenger seat of a gray Chevrolet Caprice owned by one of the co-defendants. Four 9-mm shell casings were found in the street in front of the house, and one of two bullet holes in an exterior wall of the house contained a 9-mm bullet. There was testimony that appellant was the current boyfriend of a woman who was the former girlfriend of one of the three men with the murder victim, and that appellant and the former boyfriend had exchanged heated words earlier the day the victim was killed as well as the afternoon of the day before the shooting.
Appellant contends the evidence was insufficient to authorize his conviction in light of testimony that one of the men at the house fired a gun at the car and evidence that the bullet passed through the victim’s body in a downward direction, which was at odds with testimony that the victim was standing on a porch above the level of the street when she was shot. “It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses. [Cit.] The resolution of such conflicts adversely to the defendant does not render the evidence insufficient. [Cit.]”
Johnson v. State,
2. Appellant argues the trial court abused its discretion when it denied his motion to sever his trial from that of his co-defendants. 2
When two or more defendants are jointly indicted for a capital felony where the death penalty is waived, defendants may be tried jointly or separately in the discretion of the trial court. OCGA § 17-8-4. . . . The burden is on the defendant requesting the severance to ... make a clear showing of prejudice and a consequent denial of due process. [Cit.] In exercising its discretion, the court must consider three factors: (1) Whether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses.
Dennard v. State,
On appeal, appellant maintains that the number of defendants (three) and the relationships among the defendants and the victims created confusion that warranted separate trials. “Merely because three defendants are tried together is not cause for a severance.”
Green v. State,
3. Appellant believes trial counsel did not provide him with effective assistance of counsel when, after his co-defendant testified, appellant’s counsel failed to renew his motion to sever his trial from that of his co-defendants. To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced appellant to the point that a reasonable probability exists that, but for counsel’s deficient performance, the outcome of the trial would have been different.
Pruitt v. State,
4. Lastly, appellant sees reversible error in the trial court’s refusal to grant a continuance appellant requested the morning the trial was scheduled to commence. Appellant sought the continuance on the ground that the State had notified defense counsel of two new witnesses a day earlier. The assistant district attorney informed the trial court that one of the witnesses at issue was included in discovery provided by the State, and the witness’s name, date of birth, gender, race, and address were provided to appellant ten days prior to trial. The assistant district attorney also stated she would refrain from calling the second witness and would cross-examine that witness when the witness was called to testify by one of the *710 co-defendants. 3 The trial court denied the motion for continuance and offered to start the trial later in the day or to take a longer lunch break in order to give appellant time to interview the two witnesses. When appellant’s counsel stated that his concern was not with the content of the witnesses’ testimony but with investigating whether appellant had an alibi defense for the 3 1/2-year-old incident about which he believed the witnesses would testify, the assistant district attorney offered the assistance of the district attorney’s investigators to locate whomever defense counsel could identify, and the trial court offered to allocate funds defense counsel could use to retain an investigator. After a recess, defense counsel informed the court he had spoken with the district attorney’s investigator and was trying to gather the necessary information.
“All applications for continuance are addressed to the sound legal discretion of the court” (OCGA § 17-8-22), and the trial court’s exercise of discretion will not be disturbed in the absence of clear abuse.
Carter v. State,
Judgment affirmed.
Notes
The crimes occurred on February 10, 2003. Appellant and two others were charged in the eight-count indictment returned by the Fulton County grand jury on May 30, 2003. After the State successfully appealed the trial court’s grant of a motion to suppress a photo identification of appellant by a witness
(State v. Glass,
The motion was filed by one of appellant’s co-defendants and adopted by appellant and the remaining co-defendant.
The witness who had been mentioned in discovery provided before trial was called by the State to testify in its case-in-chief; the other witness did not testify until one of appellant’s co-defendants called her. Counsel for a co-defendant also informed the trial court that the witness called by the State had been mentioned in earlier discovery and her identifying information had been shared with defense counsel ten days before trial.