Carter v. State , 261 Ga. 344 ( 1991 )

Hunt, Justice,

dissenting.

I respectfully dissent 'to Division 1 and to the judgment because in my view the majority blindly adheres to the severance rule, when application of that rule, under the circumstances of this case, flies in the face of the very purposes behind the rule. The rule was adopted by us from the ABA Standards Relating to the Administration of Criminal Justice. In the abstract, the rule is a good one, and there is no question the two murder counts, because they are completely unrelated, ordinarily should be severed. But before we conclude that the trial court’s refusal to sever the two counts requires a new trial, it is imperative that we examine the purposes behind the severance rule:

“Severance ... is typically sought on the ground that a unified disposition of several charges or several defendants would put those proceeded against at an unfair disadvantage, due to confusion of law and evidence by the trier of the fact, and the ‘smear’ effect such confusion can produce.”

Dingier v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975) (citing ABA Standards Relating to the Administration of Criminal Justice, p. 285 (1974)).

Having done so, it becomes apparent that severance serves no purpose here. Here there would be no confusion of law because the law is the same as to each charge of murder. And because, as the majority concedes, the trial court would have been authorized to allow the state to introduce evidence of each offense in the trial of the other, as a similar transaction, the confusion of evidence and the “smear” effect, to the extent either would have been injected by joinder, would be present anyway. See Terry v. State, 259 Ga. 165, 169 (1) (377 SE2d 837) (1989). In what way, then, is the defendant put at any added disadvantage, or prejudiced further, by joinder of the two offenses?² Where the purposes justifying the rule are not served by its application, as they are not served here, that rule should yield to the rules promoting judicial economy, and favoring joinder where it results in “conserving the time lost in duplicating the efforts of the prosecuting attorney, and possibly his witnesses, and of judges and court officials.” Dingler v. State, supra at 463, citing ABA Standards Relating to the Administration of Criminal Justice, supra.

It is my view, likewise, that the error, if any, referred to in Division 3 of the opinion would not require a reversal. I would affirm the conviction and, accordingly, I dissent.

Decided May 23, 1991 — Reconsideration denied June 21, 1991. Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellant. Douglas C. Pullen, District Attorney, J. Gray Conger, Assistant District Attorney, Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.

2 It is the state, not the defendant, which suffers prejudicially from the reversal of the trial court’s ruling. Because Carter was acquitted of the 1984 charge, its use as a “similar transaction” in a future trial is likely precluded. See Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989).