Harris v. State

Decision Date02 March 2001
Docket NumberNo. S00A1624.,S00A1624.
Citation273 Ga. 608,543 S.E.2d 716
CourtGeorgia Supreme Court
PartiesHARRIS v. The STATE.

OPINION TEXT STARTS HERE

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Elizabeth A. Baker, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., for appellee.

THOMPSON, Justice.

Alan Shawn Harris was convicted of malice murder, and possession of a firearm during the commission of a felony, in connection with the death of Deonte Conway.1 In this appeal, Harris asserts the trial court erred in charging the jury that it could infer intent to kill from the use of a deadly weapon. We agree and reverse.

1. Viewing the evidence in a light favorable to the verdict, we find the following: Harris, who was 16 years old, and Conway, who was 17 years old, were friends. Shortly after Halloween, Conway was reported missing. One month later, the police found Conway's body under the porch of the house in which Harris lived; it was wrapped in bed linens and bound with a cord. Conway had been shot twice: once in the head, and once in the chest.

Harris told a friend that he shot somebody, "wrapped him up and put him under the house." Harris also told the friend that he "wanted to get rid of the [bloody] mattress, but his dad would be missing a mattress. So he just turned it over."

When the police initially interviewed Harris, he denied knowledge of, or involvement in, the murder. However, when his room was searched, the police discovered that his mattress had been soaked with blood. In a subsequent interview, Harris said that Conway shot himself once in the head, and that he concealed Conway's body because he was scared.

At trial, Harris testified that Conway asked him to participate in an armed robbery and, when he refused, Conway put a gun to his head; that the gun was still pressed against Harris' head when Conway "clicked it"; that, at that point, Harris told Conway to do the robbery himself; that Conway again put the gun to Harris' head and clicked it; that he then punched Conway in the mouth; and that a fight ensued and, in the course of the struggle, the gun went off two times, killing Conway.

The evidence was sufficient to enable any rational trier of fact to find Harris guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2.

The trial court charged the jury: You may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of his intentional acts, and if a person of sound mind and discretion intentionally and without justification uses a deadly weapon in the manner in which the weapon is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill.

We have previously held that this charge was not error. Clark v. State, 265 Ga. 243, 246, 454 S.E.2d 492 (1995); Wood v. State, 258 Ga. 598(2), 373 S.E.2d 183 (1988); Thompson v. State, 257 Ga. 481(6), 361 S.E.2d 154 (1987). See also Mitchell v. State, 271 Ga. 242, 244(6), 516 S.E.2d 782 (1999). However, we admonished against the use of this charge, especially where, as here, the jury is not instructed that it can use its discretion to determine whether to make the authorized inference. See Thompson, supra. As we noted in both Wood and Clark, our trial courts should use a simple charge on intent; and any other practice is "strongly discouraged." We now go a step further and hold that the giving of a "use of a deadly weapon" charge is error, whether or not it is accompanied by an instruction that the jury has discretion to make the inference.

Because the evidence of malice in this case is weak, it cannot be said that it is highly probable that the improper charge did not contribute to the jury's verdict. See Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976). It follows that Harris' conviction for malice murder must be reversed.

The new rule of criminal procedure which we announce in this case will be applied to all cases in the "pipeline"—i.e., cases which are pending on direct review or not yet final. Taylor v. State, 262 Ga. 584, 586, 422 S.E.2d 430 (1992). Accord Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, it will not be applied to convictions challenged on habeas corpus. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

3. The trial court did not err in refusing to give a requested charge on bare suspicion. Lowe v. State, 267 Ga. 180, 181(2), 476 S.E.2d 583 (1996).

4. The trial court's determination that Harris' custodial statements were voluntary and admissible was not clearly erroneous, and, therefore, must be upheld. Gober v. State, 264 Ga. 226, 228, 443 S.E.2d 616 (1994).

5. The remaining enumerations of error, in which Harris questions the efficacy of trial counsel, are not likely to recur upon retrial and need not be addressed.

Judgment reversed.

All the Justices concur, except FLETCHER, P.J., who concurs in judgment only, and HUNSTEIN and CARLEY, JJ., who dissent.

CARLEY, Justice, dissenting.

In Division 2, the majority declares that it "now go[es] a step further and hold[s] that the giving of a `use of a deadly weapon' charge is error, whether or not it is accompanied by an instruction that the jury has discretion to make the inference." I submit that the Court has not taken only a "step," but has made a giant unwarranted leap.

The trial court gave the following charge:

You may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of his intentional acts, and if a person of sound mind and discretion intentionally and without justification uses a deadly weapon in the manner in which the weapon is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill.

(Emphasis supplied.) I do note at the outset that today's ruling does not purport to affect the introductory, unemphasized portion of this charge. Therefore, the trial courts of this state apparently still may give general instructions on permissive inferences. See Wallace v. Higgs, 262 Ga. 437, 421 S.E.2d 69 (1992). The majority concludes that only the latter, emphasized language related to the use of a deadly weapon should not be included in the charge. However, the majority does not explain why it finds that portion of the charge to be so egregious. The language certainly cannot be attacked as an erroneous statement of the law, as it correctly states that the jury "may" infer from evidence that "a person of sound mind and discretion" (OCGA §§ 16-2-3, 16-3-2, 16-3-3) who "intentionally and without justification" (OCGA §§ 16-2-1, 16-3-20, 16-3-21) used a weapon to kill another person intended to accomplish that result. The instruction does not suggest that the jury must either find that factual predicate or presume that intent, and it is not unconstitutionally burden-shifting. Mitchell v. State, 271 Ga. 242, 244(6), 516 S.E.2d 782 (1999); Wallace v. Higgs, supra. In fact, the charge is simply an application to a specific set of factual circumstances of the general law on permissive inferences contained in the introductory language of the charge which the majority does not disapprove. If a sane defendant intentionally uses a weapon to kill another person other than in self-defense, it logically follows that the...

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