Defendant was indicted with Robert Brown, Jr., on two counts of violating the Georgia Controlled Substances Act, i.e., selling cocaine. The case was tried before a jury and defendant was found guilty on both counts of the indictment. This appeal followed. Held:

In her sole enumeration, defendant contends the trial court erred in denying her motion for mistrial after the State's attorney "stated in his opening argument that the co-defendant had pleaded guilty and admitted his guilt."

During his opening statement, the State's attorney stated, "Robert Brown was indicted with [defendant]. The evidence will show that he has plead guilty, he has admitted his guilt." Defense counsel moved for a mistrial, arguing that evidence of a co-defendant's guilty plea inappropriately suggests that "the other party is somehow also culpable or guilty." The trial court held that evidence of a co-defendant's guilt was not inadmissible and denied the motion for mistrial.

"We have acknowledged a 'rule of inadmissibility with regard to a non-testifying co-indictee's guilty plea. The cases which apply this rule of inadmissibility rely upon the language of OCGA 24-3-52 and, based upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, hold that it cannot be used as substantive evidence "against" him. (Cits.)' Foster v. State, 178 Ga. App. 478, 479 (343 SE2d 745). [However,] OCGA 24-3-52 is inapplicable to the case sub judice since the co-indictee[, Robert Brown,] took the stand and was subject to cross-examination by defendant's attorney. [Cits.]" Greer v. State, 188 Ga. App. 808 (1) (374 SE2d 337). Consequently, the State's attorney's comment regarding Robert Brown's guilty plea was not harmful to defendant and the trial court did not err in denying defendant's motion for mistrial.

Summer & Summer, Daniel A. Summer, for appellant.