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Docket Number

30102.

Attorney(S)

Sanders, Mottola, Haugen, Wood Goodson, Parnell Odom, for appellant. Eldridge W. Fleming, District Attorney, Arthur K. Bolton, Attorney General, Julius C. Daugherty, Jr., Staff Assistant Attorney General, for appellee.

Judges

HALL, Justice.

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Smart Summary

Summary of Opinion: Cain v. The State, Supreme Court of Georgia (Decided Sept. 12, 1975)

Factual and Procedural Background

Hardwick Cain was tried before a jury in Coweta Superior Court (Judge Knight presiding) and convicted of armed robbery of the Oaks Motel in Newnan and of aggravated assault for the shooting of the motel proprietor. Cain's trial was conducted jointly with two co-defendants, Willie Howard Cunningham and Willie James Bettie. At trial the motel owner directly identified Cain; Cain testified that he had never been at the Oaks Motel, claimed he and the two co-defendants had remained on Interstate 85, and asserted that he had purchased the gun (identified as the proprietor's) from three men at a highway filling station.

The co-defendants admitted being present at the motel and testified that Cain and Cunningham entered the motel office, that Cunningham returned to the car with a beer, and that while they sat in the car in the rain with the radio playing they did not realize Cain had shot and robbed the proprietor. Because of these inconsistent accounts, both defense counsel repeatedly moved to sever Cain's trial from that of the co-defendants; the trial court denied all motions to sever. Cain appealed the denial, claiming the denials violated his Sixth Amendment rights to effective assistance of counsel and to confront witnesses.

The Supreme Court of Georgia received the appeal (submitted June 30, 1975) and decided it on September 12, 1975, affirming the trial court's denial of severance and thus affirming the judgment of conviction.

Legal Issues Presented

Whether the trial court abused its discretion in denying Cain's motions to sever his trial from that of his co-defendants.
Whether a joint trial in the face of antagonistic or conflicting defenses deprived Cain of his Sixth Amendment rights to effective assistance of counsel and to confront the witnesses against him.

Arguments of the Parties

Appellant's (Cain's) Arguments

Cain argued that his defense was inconsistent with those of his co-defendants (the co-defendants admitted presence at the motel while Cain denied it), creating antagonistic defenses that prejudiced him in a joint trial.
He asserted the denial of severance infringed his Sixth Amendment rights to effective assistance of counsel and to confront the witnesses against him.
Cain urged the court to consider Moore v. State (129 Ga. App. 612, 200 S.E.2d 320) in support of his position.

Appellee's (State's) Arguments

The opinion does not contain a detailed account of the appellee's legal arguments. The court's discussion does, however, reference the statutory framework (Code Ann. § 27-2101) and prior authorities addressing severance and standards of review.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mathis v. State, 231 Ga. 401 (202 S.E.2d 73)	Establishes that the grant or denial of a motion to sever is within the trial court's discretion and reviewable only for abuse of discretion.	Used to identify the proper standard of review; the court applied the abuse-of-discretion standard in evaluating the denial of severance.
Grant v. State, 131 Ga. App. 759 (206 S.E.2d 709)	Supports the proposition that severance motions are within the trial court's discretion.	Used alongside Mathis to frame the discretionary standard governing severance rulings.
Tillman v. United States, 406 F.2d 930 (5th Cir. 1969)	Explains that the trial judge must exercise discretion considering the facts of each case and that the defendant's burden is greater than showing that a separate trial might result in a better chance of acquittal.	Applied to require Cain to make a clear showing of prejudice; the court relied on Tillman to emphasize the nature of the defendant's burden.
Smith v. United States, 385 F.2d 34 (5th Cir. 1967)	Holds defendant must show prejudice and addresses issues about calling a co-defendant as a witness and its effect on severance analysis.	Applied to determine that Cain did not establish that severance was necessary to secure exculpatory testimony from co-defendants and that Cain had not been prejudiced.
Milam v. United States, 322 F.2d 104 (5th Cir. 1963), cert. denied, 377 U.S. 911 (1964)	Supports the requirement that a defendant make a clear showing of prejudice to justify severance.	Used to reinforce the burden-of-proof principle in severance motions; the court cited it as part of the controlling authority.
People v. Maestas, 517 P.2d 461 (Colo. 1973)	Identifies considerations for severance: confusion from multiple defendants, risk of admissible-evidence spillover, and antagonistic defenses.	The court adopted Maestas' list of considerations and focused its analysis on the antagonistic-defense factor relevant to this appeal.
Sylvia v. State, 210 So.2d 286 (Fla. 1968)	States that mere antagonistic defenses are insufficient alone to require severance; a showing of harm is necessary.	Applied to reject Cain's contention that antagonistic defenses alone mandated severance; the court required a showing of prejudice.
Brown v. United States, 375 F.2d 310, cert. denied, 388 U.S. 915 (1967)	Affirms that a showing of harm is necessary to justify severance despite antagonistic defenses.	Used to support the proposition that Cain had to show actual prejudice and failed to do so.
United States v. Echeles, 352 F.2d 892 (7th Cir. 1965)	Addresses whether a co-defendant would be more likely to testify if tried separately and how that bears on severance.	Applied in analyzing whether Cain could have obtained exculpatory testimony by separate trial; the court observed that both co-defendants testified at the joint trial.
Moore v. State, 129 Ga. App. 612 (200 S.E.2d 320)	Cited by appellant to argue for severance where a co-defendant made an unsworn statement not subject to cross-examination.	The court considered Moore and distinguished it: Moore did not compel a different result because (there) testimony was not contradictory and no prejudice was shown; the present case likewise did not show prejudice.
Merrill v. State, 130 Ga. App. 745 (204 S.E.2d 632)	Referenced in context with Moore as authority concerning joint trials and prejudice.	Used as supporting authority indicating that contradictory testimony alone does not necessarily establish prejudice warranting severance.

Court's Reasoning and Analysis

The court began by identifying the controlling statutory and standard-of-review framework: Code Ann. § 27-2101 permits joint trials for non-capital felonies at the trial court's discretion, and the decision to grant or deny a severance will be overturned only for an abuse of that discretion. The court then adopted relevant guidance from the American Bar Association Minimum Standards (cited) and prior case law, explaining that the trial judge must exercise discretion with reference to the specific facts of each case.

The court limited its analysis to the single relevant consideration in this case — whether the defendants' defenses were antagonistic and whether that antagonism resulted in prejudice to Cain. The court emphasized established principles from cited authorities:

Mere antagonistic or inconsistent defenses do not automatically require severance; the defendant must show actual prejudice or harm.
If the defendant seeks severance to call a co-defendant as a witness, he must show the co-defendant would probably not testify at the joint trial and that the co-defendant's testimony would tend to exculpate him; the judge should consider whether the co-defendant would be more likely to testify if tried separately.

Applying these principles to the record, the court found Cain had not shown any prejudice that a severance would have avoided. The court observed that both co-defendants testified at the joint trial (so Cain had the opportunity to cross-examine them), diminishing any argument that he was prevented from confronting witnesses or eliciting exculpatory testimony. The court rejected Cain's claim that his counsel was ineffective because counsel feared eliciting harmful information on cross-examination; the court characterized such fear and the burden of knowing co-defendants will testify against a defendant as insufficient to establish a Sixth Amendment violation.

The court also noted the statutory language permitting a defendant to testify for a co-defendant or on behalf of the State in joint trials, and it distinguished Moore v. State (and related authority) on the ground that Moore involved an unsworn statement not subject to cross-examination, whereas here the co-defendants testified and were cross-examined. Overall, the court concluded Cain failed to meet the burden of showing that denial of severance resulted in prejudice or denied due process.

Holding and Implications

Holding: The Supreme Court of Georgia affirmed the trial court's denial of Cain's motions to sever; the court held that the trial court did not abuse its discretion in refusing to grant severance and that Cain was not prejudiced in a manner that violated his Sixth Amendment rights.

Implications: The direct consequence is that Cain's convictions and the trial court's rulings were affirmed. The court treated the matter as one of discretionary trial-court management under established precedent and statute and focused on whether prejudice was shown; because no prejudice was shown, no relief was warranted. The opinion does not announce a new rule of law beyond reiterating that antagonistic defenses alone do not require severance absent a showing of actual prejudice. The judgment was affirmed; the opinion contains no suggestion that it establishes broader or novel precedent beyond these applications of existing authority.

Judgment affirmed. All the Justices concur, except Undercofler, P. J., and Gunter, J., who concur in the judgment only.

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CAIN v. THE STATE.

HALL, Justice.

Hardwick Cain was convicted by a jury of the armed robbery of the Oaks Motel in Newnan and of aggravated assault for the shooting of the motel proprietor. He appeals the denial of his motions to sever his trial from that of his two co-defendants, Willie Howard Cunningham and Willie James Bettie.

At trial, despite direct identification of the defendant by the motel owner, Cain denied ever being at the Oaks Motel and claimed that he and the two other indictees had never left Interstate 85. He testified further that he had purchased the gun identified as that of the motel proprietor from three men at a filling station along the highway.

The co-defendants, Cunningham and Bettie, however, fully admitted their presence at the Oaks Motel. They testified that, although Cunningham and Cain had gone into the motel office, Cunningham had returned to the car with a beer. While sitting in the car in the rain with the radio playing, they had not realized that Cain had shot and robbed the motel owner. Because of this conflict in testimony, both defense attorneys, the one for Cain and the other for the co-defendants, made repeated motions to sever Cain's trial from that of the other two defendants. All of these motions were denied, and Cain asserts these denials as error. He claims that because his defense was inconsistent with that of the other two defendants, the denial of the motion to sever resulted in infringement of his Sixth Amendment rights to the effective assistance of counsel and to confront the witnesses against him.

In this case, the state was not seeking the death penalty. Code Ann. § 27-2101 provides that, "when indicted for a capital felony when the death penalty is waived or for a felony less than capital, or for a misdemeanor, defendants may be tried jointly or separately in the discretion of the trial court; in any event either defendant may testify for the other or on behalf of the State ..." Since the grant or denial of a motion to sever is left to the discretion of the trial court, its ruling will be overturned only for an abuse of discretion. Mathis v. State, 231 Ga. 401 ( 202 S.E.2d 73); Grant v. State, 131 Ga. App. 759 ( 206 S.E.2d 709).

The relevant American Bar Association Minimum Standards relating to joinder and severance provide that the court should grant a severance before or during the trial whenever it appears "necessary to achieve a fair determination of the guilt or innocence of a defendant." ABA Standards, § 2.3 (b). It is thus evident that the trial judge must exercise his discretion in contemplation of the facts of each particular case. Tillman v. United States, 406 F.2d 930 (5th Cir. 1969). But the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. Tillman v. United States, supra. He must make a clear showing of prejudice and a consequent denial of due process. Smith v. United States, 385 F.2d 34 (5th Cir. 1967); Milam v. United States, 322 F.2d 104 (5th Cir. 1963), cert. denied, 377 U.S. 911 (1964).

Some of the considerations for the court in exercising its discretion have emerged from the cases considering motions to sever: 1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other's rights? See, People v. Maestas, 517 P.2d 461 (Colo. 1973). If the defendant can show the court by some facts that failure to sever will prejudice him under one or more of these considerations, his motion should probably be granted.

In the case before the court, Cain claims that his trial was prejudiced because his defense was antagonistic to that of his co-defendants. Therefore we consider only the third of these guidelines.

The mere fact that co-defendants' defenses are antagonistic is not sufficient in itself to warrant separate trials. Sylvia v. State, 210 So.2d 286 (Fla. 1968). A showing of harm is necessary. Brown v. United States, 375 F.2d 310, cert. den. 388 U.S. 915 (1967). For example, if the defendant wishes to call his co-defendant as a witness, he will not be able to do so in a joint trial because of his co-defendant's Fifth Amendment rights. In order to have his motion for severance granted, however, the defendant must show not only that his co-defendant will probably not testify at trial where he could cross examine him or elicit the testimony desired, but also that the testimony of the co-defendant would tend to exculpate the defendant. The trial judge should also consider whether the co-defendant would be more likely to testify if they were tried separately. Smith v. United States, 385 F.2d 34 (5th Cir. 1967); United States v. Echeles, 352 F.2d 892 (7th Cir. 1965).

In the case at bar, Cain has not showed any prejudice to his case which might have been avoided by severing the trials. The co-defendants, of course, could testify at his separate trial and would most probably not have changed their testimony. Furthermore, since both co-defendants did testify at the trial now on appeal, Cain had ample opportunity to cross examine them. Therefore, defendant's contention that he was denied effective assistance of counsel and his right to confront the witnesses against him because his attorney was not able to cross examine the co-defendants fully is without merit. Fear of eliciting information harmful to the defendant's interests on cross examination, and the "burden" of knowing the co-defendants are going to testify against the defendant, do not amount to a denial of Sixth Amendment rights. Since the statute clearly provides that a jointly tried defendant "may testify for the other or on behalf of the state,..." Cain may not complain merely because he does not like his co-defendants' testimony.

Moore v. State, 129 Ga. App. 612 ( 200 S.E.2d 320), urged by Cain does not demand a contrary result. In that case, the co-defendant made an unsworn statement which could not be cross examined by the defendant at their joint trial. The court held however that because the two defendants' testimony was not contradictory the defendant was not prejudiced. See also Merrill v. State, 130 Ga. App. 745 ( 204 S.E.2d 632). This should not be read to mean, as Cain suggests, that if the co-defendant's testimony is contradictory a severance should be granted. Instead, the focus is properly on whether or not the defendant is prejudiced. Since Cain had a chance to cross examine the co-defendant, he was not unfairly prejudiced by the contradictory testimony.

We therefore hold that the trial court did not err in denying the defendant's motion to sever.

Judgment affirmed. All the Justices concur, except Undercofler, P. J., and Gunter, J., who concur in the judgment only.