Kelly v. State, 477 S.E.2d 110 (Ga. 1996). · Go Syfert
Kelly v. State, 477 S.E.2d 110 (Ga. 1996). Cases Citing This Book View Copy Cite
“a trial court's finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous”
121 citation events (75 in the last 25 years) across 2 distinct courts.
Strongest positive: Suggs v. State (ga, 2000-02-14)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (quoted) Suggs v. State (2×) also: Cited as authority (rule)
Ga. · 2000 · quote attribution · 1 verbatim quote · confidence low
a trial court's finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous
cited Cited as authority (rule) Pike v. State
Ga. · 2018 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Pike v. State
Ga. · 2018 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Jeffery Williams v. State
Ga. Ct. App. · 2014 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). (a) Williams contends that his trial counsel’s performance was deficient because she failed to challenge the arrest warrant on the basis that, having been sworn before a deputy clerk of the Civil Court of Richmond County, it was not sworn before a judicial officer, as required by OCGA § 17-4-40 (a) (“Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws[.]”).
discussed Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2014 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). (a) Williams contends that his trial counsel’s performance was deficient because she failed to challenge the arrest warrant on the basis that, having been sworn before a deputy clerk of the Civil Court of Richmond County, it was not sworn before a judicial officer, as required by OCGA § 17-4-40 (a) (“Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws [.]”).
cited Cited as authority (rule) Fitzpatrick v. State
Ga. Ct. App. · 2012 · confidence medium
(Citation omitted.) Kelly v. State, 267 Ga. 252, 254 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Michael Fitzpatrick v. State
Ga. Ct. App. · 2012 · confidence medium
Although trial counsel did not recall how long he spent preparing for trial, at the motion for new trial hearing, he testified that he met with Fitzpatrick several times and had “ample opportunity to talk about . . . what our defense would be.” Further, Fitzpatrick testified that he wanted to testify on his own behalf and felt prepared to do so. “[T]here exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel.”12 As Fitzpatrick does not address how additional communication with his lawyer would have had a rea…
cited Cited as authority (rule) Quintin May v. State
Ga. Ct. App. · 2012 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) May v. State
Ga. Ct. App. · 2012 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Sevostiyanova v. State
Ga. Ct. App. · 2012 · confidence medium
Kelly v. State, 267 Ga. 252, 254 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Herbert v. State
Ga. · 2011 · confidence medium
See Zafiro, 506 U. S. at 540 ; Kelly v. State, 267 Ga. 252, 253 ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Krause v. State
Ga. · 2010 · confidence medium
See id.; Kelly v. State, 267 Ga. 252, 253 ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Biggs v. State
Ga. · 2007 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). (a) Biggs asserts trial counsel was ineffective by failing to show him, prior to trial, telephone records used to establish his alibi defense.
cited Cited as authority (rule) Mayberry v. State
Ga. · 2006 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). (a) Mayberry contends counsel was ineffective because he pursued an accident defense not supported by the facts.
discussed Cited as authority (rule) Chapman v. State
Ga. Ct. App. · 2006 · confidence medium
Skandalakis, District Attorney, Kevin T McMurry, Assistant District Attorney, for appellee. 1 Davis v. State, 275 Ga. App. 714, 715 (1) ( 621 SE2d 818 ) (2005). 2 OCGA§ 16-13-31. 3 Smith v. State, 262 Ga. App. 614, 615 ( 585 SE2d 888 ) (2003). 4 State v. Bryant, 203 Ga. App. 69, 70 ( 416 SE2d 368 ) (1992). 5 State v. Folk, 238 Ga. App. 206, 207 ( 521 SE2d 194 ) (1999). 6 State v. Tollefson, 259 Ga. App. 320, 322 (1) (b) ( 577 SE2d 21 ) (2003). 7 McClain v. State, 226 Ga. App. 714, 716 (1) ( 487 SE2d 471 ) (1997). 8 Coolidge v. New Hampshire, 403 U. S. 443, 466 (II) (C) (91 SC 2022, 29 LE2d 56…
discussed Cited as authority (rule) Terrell v. State
Ga. Ct. App. · 2005 · confidence medium
Miller and Bernes, JJ., concur. 1 Escutia v. State, 277 Ga. 400, 402 (2) ( 589 SE2d 66 ) (2003). 2 Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). 3 Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). 4 Graham v. State, 269 Ga. App. 590, 594 (4) ( 604 SE2d 651 ) (2004). 5 Avans v. State, 251 Ga. App. 575, 576 ( 554 SE2d 766 ) (2001). 6 Lloyd v. State, 258 Ga. 645, 648 (2) (a) ( 373 SE2d 1 ) (1988). 7 Joiner v. State, 245 Ga. App. 415, 416 (3) ( 537 SE2d 792 ) (2000). 8 Brantley v. State, 271 Ga. App. 733, 737 (1) ( 611 SE2d 71 ) (2005). 9 Ney v. …
discussed Cited as authority (rule) Mendoza v. State
Ga. Ct. App. · 2005 · confidence medium
Additionally, “a trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct.” Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Anderson v. State
Ga. Ct. App. · 2003 · confidence medium
Ellington and Phipps, JJ, concur. 1 Pollard, v. State, 230 Ga. App. 159 ( 495 SE2d 629 ) (1998). 2 Walters v. State, 244 Ga. App. 657, 658 ( 538 SE2d 451 ) (2000). 3 Manous v. State, 205 Ga. App. 804, 805 (1) ( 423 SE2d 721 ) (1992). 4 Burnette v. State, 168 Ga. App. 578, 579 (2) ( 309 SE2d 875 ) (1983). 5 Ranson v. State, 198 Ga. App. 659, 660 (2) ( 402 SE2d 740 ) (1991). 6 Ryans v. State, 226 Ga. App. 595, 597 (2) ( 487 SE2d 130 ) (1997). 7 Smarr v. State, 199 Ga. App. 572, 573 (2) ( 405 SE2d 561 ) (1991). 8 Carroll v. State, 255 Ga. App. 230, 232 (3) ( 564 SE2d 833 ) (2002). 9 Paul v. State…
cited Cited as authority (rule) Woodall v. State
Ga. Ct. App. · 2003 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Lowery v. State (2×)
Ga. Ct. App. · 2003 · confidence medium
Further, by relying on his conclusory assertion that Pearson’s counsel was ineffective, Lowery failed to show any reasonable probability that the verdict would have been different had he been tried separately. “[I]t is not enough for a defendant to raise the possibility that a separate trial would have given him a better chance of acquittal; a defendant is entitled to severance only where there is a clear showing of harm or prejudice and a showing that failure to sever would result in the denial of due process.” (Citation omitted.) Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1…
discussed Cited as authority (rule) Stewart v. State
Ga. Ct. App. · 2003 · confidence medium
Andrews, P. J., and Mikell, J, concur. 1 See Pollard v. State, 230 Ga. App. 159 ( 495 SE2d 629 ) (1998). 2 See Sanders v. State, 252 Ga. App. 609, 611 (1) ( 556 SE2d 505 ) (2001). 3 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 4 (Citations omitted.) Gilbert v. State, 163 Ga. App. 688, 690 (3) ( 295 SE2d 173 ) (1982). 5 Smith v. State, 249 Ga. App. 39, 40 (1) ( 547 SE2d 598 ) (2001). 6 Houston v. State, 242 Ga. App. 300, 302 (2) ( 529 SE2d 431 ) (2000). 7 See Rocha v. State, 234 Ga. App. 48, 53 (5) ( 506 SE2d 192 ) (1998). 8 See id. 9 See Redding v. State, 219 Ga. App. 182, 184 (3) ( 464 SE2…
discussed Cited as authority (rule) Whitehead v. State
Ga. Ct. App. · 2002 · confidence medium
Co. v. Crosby, 273 Ga. 454, 456-457 (2) ( 543 SE2d 21 ) (2001). 9 Underwood v. State, 218 Ga. App. 530, 534 (3) ( 462 SE2d 434 ) (1995). 10 See, e.g., Johns v. State, 253 Ga. App. 207, 208 (2) ( 558 SE2d 426 ) (2002) (the question of whether the trial court erred in denying defendant’s motion for mistrial is not preserved ■ for appellate review if defendant fails to renew motion for mistrial following trial court’s curative instructions). 11 Foshee v. State, 256 Ga. 555, 557 (2) ( 350 SE2d 416 ) (1986). 12 Id. 13 See Cobb v. State, 236 Ga. App. 265, 269 (3) (b) ( 511 SE2d 522 ) (1999) (d…
cited Cited as authority (rule) Quinn v. State
Ga. Ct. App. · 2002 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Richardson v. State
Ga. Ct. App. · 2002 · confidence medium
Pray, Assistant District Attorneys, for appellee. 1 Pollard, v. State, 230 Ga. App. 159 ( 495 SE2d 629 ) (1998). 2 Cook v. State, 180 Ga. App. 139, 140 ( 348 SE2d 687 ) (1986). 3 Johnson v. State, 149 Ga. App. 273, 274 (1) ( 253 SE2d 889 ) (1979). 4 Although not entered in evidence, a Georgia Crime Information Center report indicates that Richardson has availed himself of multiple birth dates, several different Social Security numbers, and multiple aliases, including that of “Randy Robinson.” 5 West v. Waters, 272 Ga. 591 (1) ( 533 SE2d 88 ) (2000). 6 Mullinax v. State, 242 Ga. App. 561, 5…
cited Cited as authority (rule) Crawford v. State
Ga. Ct. App. · 2001 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Callahan v. State
Ga. Ct. App. · 2001 · confidence medium
After Callahan filed a writ of mandamus, the trial judge voluntarily recused himself. 2 Pollard v. State, 230 Ga. App. 159 ( 495 SE2d 629 ) (1998). 3 See Anderson v. State, 246 Ga. App. 189, 190 (1) ( 539 SE2d 879 ) (2000). 4 Hayes v. State, 262 Ga. 881, 883 (3) ( 426 SE2d 886 ) (1993). 5 Brewer v. State, 224 Ga. App. 656, 657-658 (2) ( 481 SE2d 608 ) (1997). 6 McCant v. State, 234 Ga. App. 433, 435-436 (2) ( 506 SE2d 917 ) (1998). 7 See Brewer, supra, 224 Ga. App. at 658 (2). 8 See Slade v. State, 270 Ga. 305, 307 (2) ( 509 SE2d 618 ) (1998). 9 Meredith v. State, 211 Ga. App. 213, 215 (4) ( 4…
discussed Cited as authority (rule) Warren v. State
Ga. Ct. App. · 2001 · confidence medium
Johnson, P. J, and Smith, P. J., concur. 1 Benn v. State, 244 Ga. App. 67, 70 ( 535 SE2d 28 ) (2000). 2 Id. 3 Humphrey v. State, 207 Ga. App. 472, 474 (1) ( 428 SE2d 362 ) (1993). 4 See OCGA § 17-9-41 (affidavits of jurors may be taken to sustain but not to impeach verdict). 5 See Young v. State, 194 Ga. App. 335, 336 (1) (a) ( 390 SE2d 305 ) (1990). 6 See Vaughn v. State, 226 Ga. App. 318, 320 (2) ( 486 SE2d 607 ) (1997) (court cannot consider argument being raised for first time on appeal). 7 (Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388 -389 (1) ( 411 SE2d 119 ) (1…
cited Cited as authority (rule) Ricarte v. State
Ga. Ct. App. · 2001 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Woolums v. State
Ga. Ct. App. · 2000 · confidence medium
Andrews, P. J, and Ellington, J., concur. 1 244 Ga. App. 524 ( 536 SE2d 208 ) (2000). 2 (Punctuation omitted.) Right v. State, 242 Ga. App. 13, 15-16 (1) ( 528 SE2d 542 ) (2000). 3 (Emphasis in original.) Gregg v. State, 201 Ga. App. 238, 240 (3) (b) ( 411 SE2d 65 ) (1991). 4 Id. at 241 . 5 See Knight v. State, 239 Ga. App. 710, 711-712 (1) ( 521 SE2d 851 ) (1999). 6 Supra at 528-529 (3). 7 Watson v. State, 243 Ga. App. 636, 637 ( 534 SE2d 93 ) (2000). 8 (Punctuation omitted.) Parrish v. State, 237 Ga. App. 274, 283 (10) ( 514 SE2d 458 ) (1999). 9 Id. 10 See Kelly v. State, 267 Ga. 252, 253 (2…
discussed Cited as authority (rule) Conger v. State
Ga. Ct. App. · 2000 · confidence medium
For example, Conger could have had any gonorrhea treated before being picked up by police. 2 “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” 3 (Citation omitted.) Pruitt v. State, 258 Ga. 583, 590 ( 373 SE2d 192 ) (1988). 4 Id. 5 OCGA § 5-5-24 (c). 6 Strickland v. Washington, 466 U. S. 668, 689-693 (III) (104 SC 2052, 80 LE2d 674) (1984); Rogers v. State, 195 Ga. App. 446, 447 (2) ( 394 SE2d 116 ) (1990). 7 (Citation omitted.) Jack…
discussed Cited as authority (rule) Holloway v. State
Ga. Ct. App. · 2000 · confidence medium
Smith, P. J, and Phipps, J., concur. 1 Ferguson v. State, 232 Ga. App. 616 ( 502 SE2d 556 ) (1998); Sawyers v. State, 211 Ga. App. 668, 669 (3) ( 440 SE2d 256 ) (1994). 2 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Ferguson, supra; Sawyers, supra. 4 Hindman v. State, 234 Ga. App. 758, 762 (1) ( 507 SE2d 862 ) (1998). 5 Anderson v. State, 237 Ga. App. 382, 384 (2) ( 515 SE2d 195 ) (1999). 6 Champion v. State, 238 Ga. App. 48, 49 (1) (a) ( 517 SE2d 595 ) (1999); Letson v. State, 236 Ga. App. 340, 341 (2) ( 512 SE2d 55 ) (1999). 7 See Court of Appeals Rule 26 (c); Williams v. State, 168 Ga.…
cited Cited as authority (rule) Turner v. State
Ga. Ct. App. · 2000 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). 5.
cited Cited as authority (rule) Ellis v. State
Ga. Ct. App. · 2000 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Ward v. State
Ga. Ct. App. · 2000 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Mitchell v. State
Ga. Ct. App. · 2000 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). *180 In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.
cited Cited as authority (rule) Harper v. State
Ga. Ct. App. · 2000 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Cunningham v. State
Ga. Ct. App. · 1999 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 447 SE2d 110 ) (1996).
cited Cited as authority (rule) Washington v. State
Ga. Ct. App. · 1999 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2), 477 S.E.2d 110 (1996); Ross, 231 Ga.App. at 795 , 499 S.E.2d 642 . 3.
cited Cited as authority (rule) Nhek v. State
Ga. · 1999 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) .(1996).
cited Cited as authority (rule) Washington v. State
Ga. Ct. App. · 1999 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996); Ross, 231 Ga. App. at 795 .
cited Cited as authority (rule) Lawrence v. State
Ga. Ct. App. · 1999 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
cited Cited as authority (rule) Turner v. State
Ga. Ct. App. · 1999 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Griffin v. State
Ga. Ct. App. · 1999 · confidence medium
“A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct.” Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) [(1996)].
discussed Cited as authority (rule) Leon v. State
Ga. Ct. App. · 1999 · confidence medium
Further, “[a] trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct.” Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) [(1996)].
cited Cited as authority (rule) Cammon v. State
Ga. · 1998 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996). (a) The failure to request certain charges is cited as an example of ineffectiveness.
cited Cited as authority (rule) Carter v. State
Ga. · 1998 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited as authority (rule) Milliken v. State
Ga. Ct. App. · 1998 · confidence medium
The trial court found that appellant’s counsel did not render ineffective assistance of counsel but “made a strategic decision not to request a jury charge on false imprisonment based on his determination that the element of asportation was supported by the evidence and his client would be better served by following an all- or-nothing tactic in defense of the kidnaping charge.” “A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel…
cited Cited as authority (rule) Martin v. State
Ga. · 1997 · confidence medium
Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996).
discussed Cited "see" Doleman v. State (2×)
Ga. · 2018 · signal: see · confidence high
See Kelly v. State, 267 Ga. 252, 253 (2) ( 477 SE2d 110 ) (1996) (it is not sufficient for appellant to raise the possibility that a separate trial would have given him or her a better chance of acquittal).
discussed Cited "see" Doleman v. State (2×)
Ga. · 2018 · signal: see · confidence high
See Kelly v. State , 267 Ga. 252 , 253 (2), 477 S.E.2d 110 (1996) (it is not sufficient for appellant to raise the possibility that a separate trial would have given him or her a better chance of acquittal).
Kelly
v.
the State
S96A1402.
Supreme Court of Georgia.
Nov 4, 1996.
477 S.E.2d 110
Alterman & Associates, Cathy M. Alterman, for appellant., Lewis R. Slaton, District Attorney, Leonora Grant, Kirby Clements, Jr., Assistant District Attorneys, Michael J. Bowers, Attorney General, Wesley S. Homey, Assistant Attorney General, for appellee.
Hunstein.
Cited by 60 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 74%
Citer courts: Supreme Court of Georgia (1)
Hunstein, Justice.

Osceola Kelly was indicted on charges of murder, felony murder, two counts of kidnapping, and aggravated assault, arising out of the death of Aisha Heard and injuries to Jamina Bolston and Kelly’s co-defendant, William Berry. Following a joint trial with Berry, a jury found Kelly guilty of malice murder and the other related charges. He now appeals from the denial of his amended motion for new trial. [1]

1. Evidence was adduced from which the jury was authorized to find that Kelly and Berry were involved in a “shoot-out” on a playground at an Atlanta public housing complex on the night of September 10, 1993. The confrontation left Kelly wounded in the foot, Jamina Bolston wounded in the buttocks and Aisha Heard dead from a gunshot wound to the head. The children, Bolston and Heard, were shot by Berry after Kelly grabbed them and used them as shields during the gunfight.

We find the evidence sufficient to enable a rational trier of fact to find Kelly guilty of the crimes for which he was convicted beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his sole enumeration of error on appeal, Kelly contends he was denied effective assistance of counsel because his trial attorney failed to request a severance of his trial from that of his co-defendant.[*253] He also maintains that he was prejudiced because this was counsel’s first criminal trial.

A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 2064, 80 LE2d 674) (1984); Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985). In cases where ineffectiveness of trial counsel is alleged, “[t]he burden is on the defendant to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.]” Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). The trial court’s finding here was not clearly erroneous. At the hearing on the motion for new trial, trial counsel testified that he considered seeking a severance, but chose not to because he believed the contrast between his client and Berry, whom he sought to show as the aggressor, would be beneficial to Kelly’s defense. This decision was clearly part of counsel’s trial tactic and strategy and “the fact that such a motion was not filed does not require a finding that trial counsel was ineffective.” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Moreover, Kelly cannot show that there is any reasonable probability that the verdict would have been different had he been tried separately. Whether a co-defendant to a non-capital offense should be tried jointly or separately is within the discretion of the trial court. OCGA § 17-8-4; Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993). There was nothing confusing about the evidence in this case and nothing which presented a danger that evidence against one defendant would be used against the other. Kelly asserts that he was defending himself against Berry’s attack during the incident and as such his motives were “diametrically opposed” to Berry. He complains that because he was tried with Berry he was more likely to be convicted of Aisha Heard’s murder even though Berry fired the fatal shot. However, it is not enough for a defendant to raise the possibility that a separate trial would have given him a better chance of acquittal; a defendant is entitled to severance only where there is a clear showing of harm or prejudice and a showing that failure to sever would result in the denial of due process. Jones v. State, 243 Ga. 584 (4) (255 SE2d 702) (1979). A defendant cannot rely upon antagonism between co-defendants to show prejudice and the consequent denial of due process; a defendant must show that the failure to sever harmed him. Dennard v. State, supra at 455 (5). Under the facts of this case, the trial court was authorized to conclude that trial counsel’s failure to seek a severance of the parties did not result in a deficient performance by counsel and did not prejudice Kelly under Strickland v. [*254] Washington, supra.

Decided November 4, 1996. Alterman & Associates, Cathy M. Alterman, for appellant. Lewis R. Slaton, District Attorney, Leonora Grant, Kirby Clements, Jr., Assistant District Attorneys, Michael J. Bowers, Attorney General, Wesley S. Homey, Assistant Attorney General, for appellee.

Nor is there any merit to Kelly’s assertion that a claim of ineffectiveness can be based upon a showing of his counsel’s lack of criminal trial experience. The successful claim for ineffectiveness of trial counsel rests upon specific errors made by counsel and does not rest upon trial counsel’s inexperience. United States v. Cronic, 466 U. S. 648, 665 (104 SC 2039, 80 LE2d 657) (1984).

Judgment affirmed.

All the Justices concur.
1

The crimes occurred on September 10, 1993. Kelly was indicted on February 25, 1994 in Fulton County. He was found guilty on August 19, 1994 and was sentenced on September 12, 1994. His motion for new trial, filed on October 12, 1994, as amended by new appellate counsel on December 18, 1995, was denied on December 19, 1995. A notice of appeal was filed on January 2, 1996. The transcript was certified on May 15, 1996, and the appeal was docketed on May 24, 1996. Oral arguments were heard on September 17, 1996.