Derrick Woods was convicted of voluntary manslaughter based on evidence, supplied in part by his co-defendant, that Woods shot *266 and killed a rival drug dealer. On appeal he claims three errors: (1) the court should have severed his co-defendant’s trial; (2) the court should have allowed him to cross-examine the co-defendant on a pending (though dead-docketed) drug charge; and (3) the court should have excluded out-of-court statements made by the State’s primary eyewitness. We affirm, holding: (1) the court did not abuse its discretion in not severing the trials, as Woods had the opportunity to cross-examine the co-defendant; (2) the alleged bias to be shown by the pending drug charge — namely that the co-defendant was testifying to curry the favor of the prosecution so as to avoid that charge — is nonsensical in light of the prosecution vigorously pursuing a murder charge against this same co-defendant in this very case in which he was testifying; and (3) the out-of-court statements were admissible as prior consistent statements and as part of the res gestae.
The eyewitness testified that without provocation, Woods and the co-defendant began shooting toward him and the victim as they were sitting on a porch. Two bullets struck the victim, who soon died. Within minutes of the shooting, the hysterical eyewitness told a local resident and police of this event and of the identity of the perpetrators. The co-defendant approached police the next day and admitted to being present at the scene, but claimed that only Woods fired a gun.
Both men were jointly indicted for murder, felony murder, and aggravated assault. The court denied their requests to sever the trials. At trial the co-defendant announced he intended to testify as part of his defense, and Woods again moved to sever, which was denied. Repeated motions to sever were denied throughout the trial. Following the State’s case, the co-defendant testified in his own defense, identifying Woods as the sole shooter and as acting without provocation. Woods also testified, describing this as a “drug turf” dispute and admitting he fired his gun but claiming self-defense. The jury acquitted the co-defendant on all counts but found Woods guilty of a lesser included charge of voluntary manslaughter and of aggravated assault and reckless conduct (which latter two counts the court merged into the manslaughter conviction). He appeals.
1. Woods contends that the court erred in not severing the trials. “The question of whether to grant a severance in a joint trial for a capital crime in which the death penalty is not sought is within the discretion of the trial court.”
Green v. State,
Woods does not argue that the first two factors weigh in favor of severance, but only the third. Absent a showing of harm, however, the mere existence of antagonistic defenses between two co-defendants will not require severance.
Graham v. State,
The co-defendant’s testimony did not require a separate trial. “No prejudice amounting to a denial of appellant’s due process protection is demonstrated by the circumstance that an accomplice, who is subject to cross-examination, takes the stand and blames the appellant or attributes to him a greater degree of culpability than the accomplice himself bears.”
Adams v. State,
Nor did Woods carry his burden in clearly showing that he was prejudiced by his inability to impeach the co-defendant by use of a prior drug conviction. Beyond the fact that Woods failed to describe the conviction in detail and to proffer certified copies thereof, Woods only contends that he would have used the co-defendant’s prior conviction as a mere general attack on his credibility, which is insufficient to show clear prejudice.
Adams,
supra,
Since evidence supported a finding that Woods did not carry his burden of showing clear prejudice, we will not overturn the trial court’s denial of severance. See
Green,
supra,
2. Woods argues that the court erred in precluding him from cross-examining the co-defendant on a pending drug charge that had been dead docketed. Citing
Hines v. State,
3. Woods contends that the trial court erred in admitting two out-of-court statements made by the State’s eyewitness: one to a resident at the scene while awaiting the arrival of police, and one to an officer at the scene. During the 20 minutes before police arrived, the hysterical eyewitness told the resident that Woods and the co-defendant had shot the dying victim. Soon after police arrived, the eyewitness, who was still upset, told an officer that two men had fired on them without provocation. Finding the statements were either res gestae or prior consistent statements, the trial court allowed them in.
The trial court did not abuse its discretion. “[P]rior consistent statements are admissible . . . where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” (Punctuation omitted.)
Armour v. State,
Judgment affirmed.