Holsemback v. State, [ 443 So.2d 1371, 1377 (Ala.Cr.App. 1983)].' " Mitchell v. State, 530 So.2d 908, 910 (Ala.Cr.App. 1988)." Franklin v. State, 629 So.2d 759 (Ala.Cr.App. 1993)
' " Mitchell v. State, 530 So.2d 908, 910 (Ala.Cr.App. 1988)." The appellant has failed to show any "compelling prejudice" resulting from the joint trial.
"The test of whether severance should be granted on the basis of prejudice to the defendant is 'whether under all the circumstances as a practical matter it is within the capacity of the jurors to follow the court's instructions and to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts.' Holsemback v. State, [ 443 So.2d 1371, 1377 (Ala.Cr.App. 1983)]."Mitchell v. State, 530 So.2d 908, 910 (Ala.Cr.App. 1988). The appellant contends that she was prejudiced because the state presented evidence that her co-defendants were in actual possession of the cocaine but presented evidence that she was in constructive possession of the cocaine.
Averett's claim that his right to a speedy trial was violated by an eight-month delay is without merit. See Mitchell v. State, 530 So.2d 908 (Ala.Cr.App. 1988); Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.), aff'd in pertinent part, 440 So.2d 1121 (Ala. 1983). Likewise without merit is his claim that the prosecution failed to comply with his discovery request; the requested information was not in the prosecution's possession.
We find that the nine-and-a-half-month delay was not presumptively prejudicial. E.g., Mitchell v. State, 530 So.2d 908 (Ala.Crim.App. 1988); Cofer v. State, 440 So.2d 1116 (Ala.Crim.App.), rev'd on other grounds, 440 So.2d 1121 (Ala. 1983). We note that the delay was caused by a discovery difficulty and by faulty indictments.
We have carefully reviewed the case history in this matter and find that the seven-month delay was not presumptively prejudicial. See, e.g., Mitchell v. State, 530 So.2d 908 (Ala.Crim.App. 1988); Cofer v. State, 440 So.2d 1116 (Ala.Crim.App.), rev'd on other grounds, 440 So.2d 1121 (Ala. 1983). We note that the case was continued on one occasion because it was not reached on the docket and on another occasion because the appellant's attorney had filed a motion to withdraw.
Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979). The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Mitchell v. State, 530 So.2d 908, 910 (Ala.Cr.App. 1988). See also Cumbo, supra, United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971).