¶1dissenting: I would not remand this case for a new trial. The basis for a new trial is the refusal of the trial court to sever Martin’s trial from that of Ivory Haislip. It is axiomatic that a defendant seeking trial severance bears the burden of proof. Martin did not sustain his burden. At the time of the court’s *553ruling on the motion there was no showing of prejudicial antagonistic defenses. The prejudice was revealed during the trial as stated by the majority. Since the conditions present at the time the motion is considered are controlling, the trial court did not abuse its discretion in denying the motion to sever the trials. See United States v. Ready, 574 F.2d 1009, 1015 (10th Cir. 1978); State v. Myrick & Nelms, 228 Kan. 406, 416-17, 616 P.2d 1066 (1980); and State v. West, 2 Kan. App. 2d 297, 299, 578 P.2d 287 (1978).
¶2In addition, the evidence against Martin is so overwhelming a new trial has no chance of producing a different result. At least six eyewitnesses identified Martin as the gunman who shot Officer Garofalo. Rowens, the police informer, and his party saw Martin approach the police car that evening carrying a shotgun, heard the gunshots and saw Martin throw down an object and run away. In view of the testimony concerning Martin’s participation in the incident and the overall weight of evidence against him, the failure to sever was not reversible error. See State v. McQueen & Hardyway, 224 Kan. 420, 426, 582 P.2d 251 (1978).
¶3I would affirm the trial court.