Appeal from Jefferson Circuit Court. (CC-93-2253; CC-93-3734; and CC-93-335). Michael McCormick, Rudolph Slate, Trial Judge.
Rule 39(k) Motion Denied April 14, 1995. Rehearing Denied April 14, 1995. Certiorari Denied May 26, 1995. Released For Publication November 20, 1995.
Taylor, Presiding Judge. All The Judges Concur.
The opinion of the court was delivered by: Taylor
The appellant, Otis Frazier, was convicted of three counts of robbery in the first degree, violations of § 13A-8-41, Code of Alabama 1975. He was sentenced, on each count, as a habitual felony offender to life in the penitentiary without parole.
The appellant initially contends that the trial court erred in denying his motion to sever the offenses. The appellant was indicted in separate indictments for three counts of robbery in the first degree, the offenses occurring on December 23 and December 24, 1992. The state moved to join the offenses for trial and the court granted the motion. The appellant then requested that the offenses be severed. The court denied this motion.
"The trial court may order a separate trial if it appears that the defendant is prejudiced by a joinder of offenses. Ala. R. Crim. P. Temp 15.3; Ala. R. Crim. P. 13.4. 'The burden of proof is on the defendant to demonstrate specific and compelling prejudice which the trial court cannot protect against and which causes him to receive an unfair trial.' Hinton v. State, 548 So. 2d 547, 555 (Ala. Crim. App. 1988), aff'd, 548 So. 2d 562 (Ala. 1989), cert. denied, 493 U.S. 969 110 S. Ct. 419, 107 L. Ed. 2d 383 (1989). The granting of a severance rests within the discretion of the trial court and its refusal to sever counts or defendants that are properly joined will only be reversed for a clear abuse of discretion. King v. State, 518 So. 2d 880 (Ala. Crim. App. 1987)."
Summerlin v. State, 594 So. 2d 235, 236 (Ala. Cr. App. 1991). See also Friedman v. State, [Ms. CR-92-854, May 6, 1994] So. 2d (Ala. Cr. App. 1994). "It is only the most compelling prejudice, against which the trial court will not be able to afford protection, that will be sufficient to show the court abused its discretion." Hinton v. State, 548 So. 2d 547, 555 (Ala. Cr. App. 1988), aff'd, 548 So. 2d 562 (Ala.), cert. denied, 493 U.S. 969, 110 S. Ct. 419, 107 L. Ed. 2d 383 (1989). (Emphasis added.)
The appellant contends that trying him for all three counts of robbery in one trial prejudiced him because not all three victims could identify him. However, as the state points out, two victims identified the appellant as one of the robbers, and although the third victim could not identify him, the appellant was in this victim's stolen car when he was arrested. There was no showing of compelling prejudice. The court did not err in denying the appellant's motion for severance.
The appellant further contends that the trial court erred in failing to grant his motion for a new trial.
Initially, he contends that prejudicial error requiring a new trial occurred when he was forced to appear in front of the jury in prison clothes. The record reflects that the following occurred:
"The Court: Mr. Frazier, I meant to bring this up a minute ago. The Court is going to have to bring you over for the purposes of identification in this case at some point. We intend to have you dressed and presented at some point during the trial for the purpose of identification or non-identification. And I wanted you to know that before you ...