CARLEY, Presiding Justice.
After a jury trial, Appellant Willie Bernard Butler, Jr. and his co-defendant Martin Holmes were found guilty of the malice murder and armed robbery of Rickey Gibson, the burglary of Gibson's and Alexis Yates' dwelling house, aggravated assault against their infant son Jordan Yates, the aggravated assault and kidnapping of Ms. Yates, two counts of possession of a firearm during commission of the crimes against Gibson and Ms. Yates, the burglary of Randy Manning's dwelling house, aggravated assault against Greg Pridgen, and hijacking Pridgen's motor vehicle. Holmes was also found guilty of possession of marijuana. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for murder and to various terms of years for the remaining crimes. A motion for new trial was denied, and he appeals.
1. Construed most strongly in support of the verdicts, the evidence shows that Appellant, Holmes, and at least two other young men, all of whom were carrying guns, broke into Gibson's and Ms. Yates' house, demanded money, put a handgun into the baby's mouth, hit Ms. Yates in the head with a gun, and forced her to go outside. Ms. Yates escaped with the baby, and the men shot Gibson multiple times, killing him. A shoe print near the house was consistent with the shoes that Appellant was wearing, and Ms. Yates later identified Holmes as one of the intruders.
Gibson's gold watch was stolen during the home invasion and was left behind about two hours later in Manning's yard after his house was burglarized by Appellant and Holmes. Appellant defecated in the yard and cleaned himself with a bloody sock which tested positive for his DNA. Shortly afterwards, Appellant and Holmes entered Pridgen's car while it was running and he was delivering a newspaper. Pridgen fought with Appellant, who punched him several times and stabbed him. Police officers responded quickly and found Appellant and Holmes running down the street. Pridgen identified both of them as the perpetrators of the crimes against him. A search of a vehicle in which two of their co-indictees were riding revealed a bottle of pills belonging to Appellant's mother and a camera with pictures of Appellant and Holmes.
The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Ward v. State, 288 Ga. 641, 644(3), 706 S.E.2d 430 (2011).
"There were only two defendants here, the law applicable to each defendant was substantially the same, and the evidence at trial showed that [Appellant] and [Holmes] acted together in" committing the jointly indicted crimes. Herbert v. State, supra. Appellant argues that the evidence against him, especially as to the murder, was weak in comparison to the evidence against Holmes. "However, it is not enough for the defendant to show that he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger. [Cit.]" Herbert v. State, supra. See also Moon v. State, 288 Ga. 508, 510(2), 705 S.E.2d 649 (2011). Appellant "has not pointed to any evidence admitted at his joint trial that would not have been admitted had his severance motion been granted and had he been tried alone." Morgan v. Mitchell, 272 Ga. 134, 137(1), 527 S.E.2d 556 (2000). "As to ... any `guilt by association,' the trial court instructed the jury ... that it was not authorized to find a person guilty of a crime who was `merely associated' with other involved persons. [Cit.]" Denny v. State, 281 Ga. 114, 116(1), 636 S.E.2d 500 (2006).
Willingham v. State, 265 Ga. 435, 436(2), 457 S.E.2d 561 (1995).
Although Appellant also "claims on appeal that severance was warranted because [Holmes'] defense[] [was] antagonistic to his, [A]ppellant waived this ground by failing to raise it in the trial court. [Cit.]" Thorpe v. State, 285 Ga. 604, 609(4), 678 S.E.2d 913 (2009). Moreover, "neither [defendant] attempted to point the blame at the other[, and] ... `unless there is a showing of resulting prejudice, antagonistic defenses do not automatically require a severance. (Cits.)' [Cit.]" Moon v. State, supra. Although Appellant complains that Holmes neither gave any statement nor testified, Appellant "has made no showing on appeal that [Holmes] could or would have provided exculpatory evidence." Denny v. State, supra.
Herbert v. State, supra.
3. Appellant urges that the trial court erred in denying a motion to suppress the pre-trial identification of Appellant by Pridgen during a one-on-one show-up at the police station.
"`Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible.'" Scruggs v. State, 309 Ga.App. 569, 575(4), 711 S.E.2d 86 (2011). In Sherwin v. State, 234 Ga. 592, 593, 216 S.E.2d 810 (1975), this Court held that, "[a]lthough as a general rule a police station
Rogers v. State, supra at 596(1), 415 S.E.2d 49.
We generally first determine "whether the identification procedure was impermissibly suggestive. If the answer to that inquiry is negative, we need not consider the second question—whether there was a substantial likelihood of irreparable misidentification. [Cits.]" Azizi v. State, 270 Ga. 709, 713(5), 512 S.E.2d 622 (1999). Conversely, we may immediately proceed to the second question and, if the answer thereto is negative, we may entirely pretermit the first question.
Frazier v. State, 305 Ga.App. 274, 278(3), 699 S.E.2d 747 (2010). See also Lee v. State, 298 Ga.App. 630, 631(1), 680 S.E.2d 643 (2009).
In that regard, Appellant properly concedes that Pridgen had opportunity to view his attacker's face and focused his attention thereon. See Tiggs v. State, 287 Ga.App. 291, 292(a), 651 S.E.2d 209 (2007). Although Appellant asserts that portions of Pridgen's prior description of the attacker were inaccurate and incomplete, the existence of some inconsistencies did not render Pridgen's testimony inadmissible, but rather is a matter for the jury.
Scruggs v. State, supra. See also Lee v. State, supra.
Ford v. State, 289 Ga.App. 865, 867(2), 658 S.E.2d 428 (2008).
4. During direct examination of Appellant's eyewitness identification expert, the trial court asked defense counsel whether a question went to the state of Pridgen's mind and intelligence requiring the witness to judge his credibility, whether after objection to another question the witness had documents and test reports with her for the prosecutor's examination and use in cross-examination, and whether another question regarding the effect of telling a witness that officers have the perpetrator would depend on the individual in light of the court's prior experience with reliable show-ups. Appellant contends that in each of these instances, the trial court violated OCGA § 17-8-57 by making comments regarding the reliability of the expert witness and of one-on-one show-ups.
"Under that statute, it is error for a judge to `express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.'" Creed v. State, 255 Ga.App. 425, 427(1), 565 S.E.2d 480
5. Appellant further contends that the trial court erred in removing Juror Number 12 and replacing him with an alternate juror after the State rested even though the prosecutor failed to show prejudice.
State v. Arnold, 280 Ga. 487, 489, 629 S.E.2d 807 (2006). The trial court individually questioned the bailiff and all of the jurors. The bailiff stated that Juror 12 emotionally told other jurors over and over again that the jury had no right to take the young defendants' lives in its hands and weigh their lives against the evidence. Two of the jurors stated that on several occasions, Juror 12 expressed his opinion that the defendants are innocent. The jurors also stated that they could still be impartial to both the State and the accused. One of those jurors further indicated that Juror 12 strongly expressed his opinion and took issue with specific evidence which had been offered by the State. Juror 12 himself admitted that he was confused by the evidence, could not see finding the two young defendants guilty of murder, and mentioned this opinion once to one of the jurors. After a considerable number of ambiguous statements, Juror 12 eventually indicated that he could still be fair and impartial to the State and the accused. The trial court, noting that it was resolving a question of credibility, found that Juror 12 had violated the court's instructions not to discuss the case and had already formed an opinion.
"`On appeal, the question is whether evidence supports the trial court's determination.'
Judgments affirmed.
All the Justices concur.