A defendant appealed his case after a jury convicted of him of crimes that he was not charged with.  Brooks v. State, A11A1366.  Brooks was charged and convicted of rape, aggravated sodomy, aggravated assault, kidnapping, and possession of a firearm during a felony.  He claimed that the judge erred in refusing to sever his case from a co-defendant, Johnson.  The Court of Appeals agreed that Brooks was prejudiced by his joint trial with Johnson.

Brooks and Johnson were indicted together for rape, aggravated sodomy, aggravated assault, kidnapping, and possession of a firearm during a felony. Johnson was also charged with other offenses.  Some of Johnson’s additional charges related to an alleged car-jacking that occurred two days before the incident for which Brooks and Johnson were charged together.  Other charges against Johnson related to an armed robbery that allegedly occurred after the incident with Brooks.           

Brooks asked that his trial be severed from Johnson’s trial but the judge denied his request.  At trial, the jury heard evidence about the charges that both Brooks and Johnson were charged with, as well as the charges relating only to Johnson.  During closing arguments, the prosecutor argued that the evidence showed similarities between the incident involving Brooks and Johnson and the later armed robbery involving only Johnson.  The prosecutor said that after the armed robbery victim encountered “these defendants” there was a car chase.  Brooks’ attorney objected on the basis that the prosecutor was improperly trying to tie Brooks to the armed robbery that he was not charged with.  The judge responded that “ they can’t find him guilty of something that he is not charged with.”  Nevertheless, the jury did just that finding Brooks guilty not only of the offenses for which he and Johnson were both charged, but also the armed robbery for which he was not indicted.  The jury was polled (questioned) after the verdict, and each juror stated that the verdict was indeed their verdict.  Even though the judge sentenced Brooks for only those offenses for which he was charged Brooks appealed.           

In every case other than a death penalty case, the judge has broad discretion to grant or deny a motion for severance of defendants. See OCGA § 17-8-4; Shelton v. State, 279 Ga. 161  (2005). It is incumbent upon the defendant who seeks a severance to show clearly that the defendant will be prejudiced by a joint trial. Scruggs v. State, 309 Ga. App. 569 (2011); Krause v. State, 286 Ga. 745 (2010). In ruling on a severance motion, the judge should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. Harper v. State, 300 Ga. App. 757 (2009); Griffin v. State, 273 Ga. 32  (2000).            

The Court of Appeals held that Brooks made a clear showing of prejudice based on the fact that the jury found him guilty of crimes for which he had not been charged.  The Court of Appeals said: “Indeed it is hard to imagine a clearer showing of prejudice and consequent denial of due process than jurors unanimously finding a defendant guilty of offenses for which only his co-defendant had been indicted.  The joint trial obviously created confusion of evidence and law for the jury, and evidence implicating Johnson was clearly considered against Brooks since he was found guilty of Johnson’s crimes.”  The Court of Appeals ruled that it was an abuse of discretion for the judge not to grant Brooks’ motion for severance.             

The Court of Appeals further found that the judge had a responsibility to intervene after the jury returned its verdict finding Brooks guilty of offenses with which he was not charged.  “It is the duty of the trial court not only to tell the jury what the law is, but to insist that they apply it and either render a verdict on some issue or else make a mistrial.” State v. Freeman, 264 Ga. 276 (1994).  According to the Court of Appeals, “when a jury returns an illegal verdict, ‘the trial court should return the jury for further deliberations with directions to return a verdict within the range of instructions originally given to it.’”