416 S.E.2d 108 | Ga. Ct. App. | 1992
Cheryl Ann House was jointly indicted with her husband of one month, Marvin Tucker, on charges of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony arising from the robbery of a package store. Upon House’s motion, her trial was severed from that of Tucker. She was convicted by a jury and now appeals from the judgment.
1. Appellant first contends the trial court should have entertained and ruled favorably on her motion to grant use immunity to Tucker so that he could testify on her behalf without compromising his right against self-incrimination. This enumeration is controlled adversely to appellant by Dampier v. State, 249 Ga. 299, 300 (290 SE2d 431) (1982), in which the Supreme Court held that “[u]nder Georgia law, the district attorney has discretion to grant immunity to witnesses for the state. [OCGA § 24-9-28.] Our statutes provide no such discretion to the court and, further, make no provision for a grant of immunity to defense witnesses.” Moreover, even if our law recognized such an immunity, here, as in Dampier, the State’s interest in denying use immunity to Tucker outweighed appellant’s need for his testimony, as the State was planning to proceed with his prosecution if he decided not to plead guilty. See id. at 301-302.
2. House next contends that once her motion for severance was granted, the court should have compelled the State to try Tucker first so that he would have become available as a defense witness for her trial. The record reveals that Tucker had agreed to appear at appellant’s trial as a defense witness to provide “significantly exculpatory” testimony — i.e., that he conceived of the robbery without appellant’s knowledge and that she was not an active participant — if he were tried first, but that if appellant’s trial occurred first he would assert his privilege against self-incrimination. When appellant’s case was called for trial, she raised the question of Tucker’s appearance as a witness and his intention to refuse to testify if her trial occurred before his. The prosecutor then stated that Tucker had indicated he wanted to plead guilty, and that in response the State had given him its sentencing recommendation but Tucker had declined to enter a plea until after he was sentenced in another case pending in federal court in Arkansas. The court then denied appellant’s motion to order the State to try Tucker first.
When a severance motion is granted, “the defendants shall be tried in the order requested by the state.” OCGA § 17-8-4; see Dixon v. State, 12 Ga. App. 17 (1) (76 SE 794) (1912). We note that one of the grounds for granting a severance is the need of one defendant to use the exculpatory testimony of a co-defendant, see Cain v. State,
Judgment affirmed.
