After a jury trial, Stanley Brooks was convicted of rape, aggravated sodomy, aggravated assault, kidnapping and four counts of possession of a firearm during the commission of a felony. He appeals, asserting that the trial court erred in refusing to sever his trial from that of his co-defendant, William Johnson. We agree and reverse. The record shows that Brooks was prejudiced by the denial of his motion to sever: the jury found him guilty of crimes for which only Johnson had been indicted. Brooks and Johnson were jointly indicted for rape, aggravated sodomy, aggravated assault, kidnapping and four counts of possession of a firearm during the commission of a felony. In the same indictment, Johnson was also charged with numerous other offenses. Some of those additional charges related to an alleged car-jacking that occurred two days before the incident that gave rise to the joint charges against Johnson and Brooks, while the rest of the charges against only Johnson related to an armed robbery that allegedly occurred after the joint incident. The trial court granted Johnson’s motion to sever the counts of the indictment based on the earlier car-jacking incident. However, the trial court denied Brooks’ motion to sever his trial from Johnson’s trial, rejecting his claim that the jury would be misled and would likely punish him for Johnson’s criminal activity.
At trial, the jury heard evidence on the eight jointly-indicted counts, as well as on the charges brought against only Johnson for armed robbery, aggravated assault, two counts of possession of a firearm during the commission of a felony, and fleeing and attempting to elude police. During her closing argument, the prosecutor asserted that the evidence showed similarities between the incident involving both Brooks and Johnson and the subsequent armed robbery involving only Johnson, and she further stated to the jury that “after the armed robbery victim encountered these defendants there was the chase.” Emphasis supplied. Thereafter, counsel for Brooks noted that the state had improperly attempted in its closing argument to tie Brooks to the armed robbery, and the trial court responded: “They can’t find him guilty of something he’s not charged with.” However, the jurors did just that, returning a verdict in which they not only found Brooks guilty of the eight offenses for which he and Johnson were jointly indicted, but also found him guilty of the armed robbery, aggravated assault and two firearm counts for which only Johnson had been indicted. After announcing its verdict, the jury was polled and each juror reaffirmed that this was indeed their verdict. The trial court sentenced Brooks on the offenses for which he had been indicted, but did not sentence him on those for which he had not been indicted. Brooks’ motion for new trial was denied, and this appeal followed.
