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Final Copy 288 Ga. 508 S10A1668. MOON v. THE STATE. S10A1671. MARTIN v. THE STATE. S10A1672. MARTIN v. THE STATE.

CARLEY, Presiding Justice.

In a joint trial, a jury found Appellants Clifton Dean Moon and Bobby Leon Martin guilty of felony murder during the commission of criminal attempt to commit armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime, but not guilty of malice murder and possession of a handgun during the commission of malice murder. The trial court entered judgments of conviction on the guilty verdicts and sentenced both Appellants to life imprisonment for the felony murder charge, a consecutive five-year term for the charge of possession of a firearm by a convicted felon, and a consecutive five-year term for the charge of possession

of a firearm during the commission of a crime. Appellants appeal after the denial of separate motions for new trial.* 1. Construed most strongly in support of the verdicts, the evidence shows that, on January 4, 2006, Martin and Torena Johnson, who was driving her Jeep Cherokee, picked up Moon at an apartment complex. Moon was wearing a red shirt and carrying a black tote bag. The three drove to an apartment owned by Kentora Latruan Thomas, a drug dealer, so that Ms. Johnson could buy marijuana. On the way there, Moon stated that Thomas "was sweet," which is slang for a potential robbery target, and that "we can get him." After leaving Martin and Moon in the Jeep, Ms. Johnson went to Thomas' apartment and

The crimes occurred on January 4, 2006, and the grand jury returned the indictment on April 5, 2006. The jury found Martin guilty on December 15, 2006, and found Moon guilty on December 18, 2006. The trial court entered the judgments of conviction and sentences on December 27, 2006. A motion for new trial was filed by Martin on January 2, 2007, amended on March 13, 2008 and February 4, 2009, and denied on August 3, 2009. Martin filed a notice of appeal on September 1, 2009. He filed a motion for reconsideration on August 24, 2009, which was denied on November 12, 2009. He filed a second notice of appeal on November 19, 2009. A motion for new trial was filed by Moon on December 29, 2006, amended on December 21, 2007 and February 16, 2009, and denied on January 4, 2010. Moon prematurely filed a notice of appeal on August 26, 2009. Both cases were docketed in this Court for the September 2010 term and orally argued on October 18, 2010.
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purchased marijuana from Thomas. Also in Thomas' apartment at this time were Lenika Mattox and Thomas' cousin Pedro. As Ms. Johnson was about to leave, there were two knocks at the door and she opened the door. Two masked gunmen entered the apartment and told Thomas to "give it up." According to Ms. Mattox and Pedro, one of the gunmen was wearing a red shirt. Ms. Mattox testified that Ms. Johnson then hit one of the gunmen yelling, "No, y'all, don't do it like that, we weren't supposed to do it like that, ya'll." As Thomas tried to force the two gunmen out of his apartment, he was shot three times. He ultimately died in the hallway. Several other people heard the gunshots and came out to investigate, where they saw two men fleeing the scene, one of whom was wearing a red shirt. They were seen getting into a light-colored Jeep. As Ms. Johnson was leaving Thomas' apartment, she turned to Ms. Mattox and stated that "it wasn't supposed to happen like that." Ms. Johnson then left. Shortly after this, at Ms. Johnson's apartment in front of her, Martin, Martin's sister Maria Fair, and Josh Jackson, Moon admitted that "he shot dude." Jackson testified that, in response to a question from Ms. Johnson as to why Moon shot Thomas, Moon replied that he did not have any choice because Thomas "bucked."
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Following the murder and in exchange for a plea deal, Ms. Johnson assisted the police in recording incriminating telephone conversations with Martin. The police arrested Martin on January 7, 2006, and, in the course of a search of his residence, the police recovered a Taurus 9mm handgun inside a paper bag located in a bathroom trash can. A projectile recovered during the autopsy as well as a shell casing from the crime scene matched the handgun. The evidence was sufficient for a rational trier of fact to find Appellants guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Case Number S10A1668 2. Moon contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant Martin. He claims that there was more direct evidence against Martin, including similar transaction evidence, that raised the probability of spillover evidence, and that the defenses of the two codefendants were antagonistic. In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. [Cits.] In ruling on a severance motion, the trial court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be
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considered against the other defendant; and (3) the presence or absence of antagonistic defenses. [Cit.] It is not enough for the defendant to show that he or she would have a better chance of acquittal at a separate trial or that the evidence against a codefendant is stronger. [Cits.] Rather, the defendant must show clearly that a joint trial will prejudice his or her defense, resulting in a denial of due process. [Cit.] Krause v. State, 286 Ga. 745, 749 (5) (691 SE2d 211) (2010). In the present case, there was no likelihood of confusion by the jury as to the evidence and the law because there were only two defendants "who were jointly indicted for the same offenses, which involved the same witnesses, and the evidence indicated that they acted in concert. [Cit.]" Oliver v. State, 253 Ga. 284 (2) (319 SE2d 856) (1984). Moreover, the danger of spillover evidence was minimal because the bulk of the evidence equally implicated both defendants as the two gunmen. The sole evidence relied on by Moon as implicating only Martin was the telephone calls overheard by the police between Ms. Johnson and Martin as well as the handgun recovered by the police upon Martin's arrest. However, Martin's statements recorded in these phone calls would have been admissible against Moon in a separate trial as statements of a co-conspirator. OCGA

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