The appellant and Tommy Joe Hutchins were jointly tried and convicted of aggravated sodomy. The victim, who had known Hutch-ins for years, testified that she accepted a ride home from a bar with Hutchins on the night in question and that the appellant, who was also a passenger, beat her, assaulted her with a knife, and sodomized her. Hutchins corroborated this much of the victim’s testimony, but he denied her further testimony that he had assisted the appellant in carrying out the assault, his version being that he had merely observed the appellant’s conduct and had done nothing to aid or abet him. The appеllant denied any involvement whatsoever and presented an alibi defense. Held:
1. The appellant’s first enumeration of error concerns the trial court’s refusal to grant a severance.
In a noncapital felony case, dеfendants may be tried jointly or separately in the discretion of the trial court. See OCGA § 17-8-4. A defendant requesting a severance must make a clear showing of prejudice.
Cain v. State,
Although the appellant and Hutchins offered contradictory testimony, each had the opportunity to cross-examine the other and each was represented by separate counsel. Under the circumstances of this case, we find no indication that any undue prejudice resulted from the failure to grant separate trials. Accord
Parrish v. State,
2. Appellant contends that the trial court erred in refusing to grant him access to a prior written statement the viсtim had made to police. Apparently, the appellant was unaware such a statement existed until the witness wаs cross-examined, at which time, upon in *881 quiry, the state’s attorney acknowledged possession of the document but deсlined to make it available to appellant unless ordered to do so by the trial court. Appellant did not requеst the trial court to conduct an in-camera inspection of the statement, nor had he made any pretrial mоtion for its production.
“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.” Brady v. Maryland,
3. Appellant cоntends that the trial court erred in refusing to order a mistrial based on the state’s failure to introduce evidence to suрport a comment made during its opening statement to the effect that the evidence would show that appеllant “was placed on the Ten Most Wanted List of Atlanta.” The comment had reference to an extended delаy in effecting appellant’s arrest which had been caused by the need to disseminate arrest warrants to severаl jurisdictions, a fact which was established by evidence during the trial. Under the circumstances, we hold that the trial court did not аbuse its discretion in denying the motion for mistrial.
4. Appellant contends that the trial court erred in refusing to allow the victim to be cross-examined as to whether she was under the influence of marijuana or alcohol on the evening in question. Although the trial judge ruled that counsel could not pursue this inquiry, the witness subsequently testified that she had consumed about three beers that night, and appellant’s counsel was allowed to allude to this consumption of beer during closing argument. Consequently, аssuming
arguendo
that the cross-examination was improperly restricted, appellant suffered no prejudice; and no revеrsible error was committed. See generally
Johnson v. State,
5. Appellant contends that the trial court erred in refusing to order a mistriаl in response to a comment by the state’s attorney during closing argument that Walden and Hutchins were engaged in a continuing conspiracy to discredit the victim as a witness. Assuming ar *882 guendo that the comment was improper, we do not believe it was so рrejudicial as to have warranted the grant of a mistrial, particularly since the appellant was positively idеntified as the active perpetrator of the offense by Hutchins as well as the victim.
6. Appellant contends that the trial court erred in unduly restricting his closing argument with regard to the state’s failure to conduct certain tests on seminal fluid which had been extracted from the vagina and cervix of the victim on the morning after the incident. Appellant’s counsel desired to argue that such tests might have еxcluded any possibility that the appellant was the perpetrator. However, no evidence was presеnted at trial to indicate that any such result might in fact have been established by such tests had they been conducted. In the аbsence of such evidence, we find no error in the trial court’s action. See generally
Durden v. State,
7. As there was evidence from which the jury could have concluded that appellant did in fact attempt to flee to avoid apprehension, and as flight is always a circumstance which the jury may consider in determining guilt or innocence (see
Hogans v. State,
Judgment affirmed.