Peabody v. State

276 S.E.2d 47, 156 Ga. App. 853, 1980 Ga. App. LEXIS 3223

• Court: Court of Appeals of Georgia
• Decided: November 21, 1980
• Docket: 60857, 60862
• Status: Published

Opinions

Quillian, Presiding Judge.

These two appeals involve co-defendants who were indicted and convicted for armed robbery. Held:

1. In case 60862 the defendant contends the court erred in refusing to grant his motion for severance.

Submitted October 7, 1980 Decided November 21, 1980 Rehearing denied December 19, 1980 R. Michael Key, for appellant (Case No. 60857).

The grant of a motion to sever will be reversed only in the event of an abuse of discretion by the trial judge. The defendant requesting the severance has the burden to make a clear showing of prejudice. Baker v. State, 238 Ga. 389, 391 (2) (233 SE2d 347). Without such a showing the mere fact that the defenses of co-defendants are antagonistic is not sufficient in itself to warrant separate trials. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856).

This enumeration of error is without merit.

2. In both appeals the defendants contend it was error to fail to suppress certain evidence. This involves the question of whether the trial court erred in receiving evidence regarding the motion to suppress during the trial and in the jury’s presence.

Code Ann. § 27-313 (b) (Ga. L. 1966, pp. 567, 571) explicitly provides after a motion to suppress has been filed “The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion, and the burden of proving that the search and seizure were lawful shall be on the State.” In Lloyd v. State, 139 Ga. App. 625 (229 SE2d 106), while positively declining to sanction such procedure, we found no harmful error where counsel expressly agreed to the jury hearing a portion of the evidence on a motion to suppress. In this case there was no express agreement by counsel for the defendants that the evidence be heard by the jury prior to ruling on the motion. Hence, the rule set forth in Gray v. State, 145 Ga. App. 293 (243 SE2d 687) is applicable: “Failure to hold this mandatory hearing was error, and the error was preserved by the appellant’s objection to admission of the evidence sought to be suppressed.”

As pointed out in Evans v. State, 146 Ga. App. 480, 483 (246 SE2d 482): “The Georgia Supreme Court has repeatedly held that ‘(i)t is no answer to the violation of a mandatory rule to say that the record does not show any harm to have resulted to the defendants because of this error, since it has been held in numerous cases that, whenever the rights of a party are withheld or violated, the presumption of law is that he has been injured unless the contrary plainly appears. (Cits.)’ ”

It was error to permit evidence relative to the motion to suppress in the presence of the jury.

Judgments reversed.

Shulman and Carley, JJ., concur. Allison W. Davidson, for appellant (Case No. 60862). William F. Lee, District Attorney, Gerald S. Stovall, Assistant District Attorney, for appellee.