Harris v. State

543 S.E.2d 716, 273 Ga. 608

• Court: Supreme Court of Georgia
• Decided: March 2, 2001
• Docket: S00A1624
• Status: Published

Opinions

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 SC 2781, 61 LE2d 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 SE2d 492) (1995); Wood v. State, 258 Ga. 598 (2) (373 SE2d 183) (1988); Thompson v. State, 257 Ga. 481 (6) (361 SE2d 154) (1987). See also Mitchell v. State, 271 Ga. 242, 244 (6) (516 SE2d 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 SE2d 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 SE2d 430) (1992). Accord Griffith v. Kentucky, 479 U. S. 314 (107 SC 708, 93 LE2d 649) (1987). However, it will not be applied to convictions challenged on habeas corpus. See Teague v. Lane, 489 U. S. 288 (109 SC 1060, 103 LE2d 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 SE2d 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 SE2d 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 Corley, JJ, who dissent.

1 Conway was murdered in early November 1994. The grand jury indicted Harris on May 21,1996, and charged him with malice murder, felony murder predicated on the underlying felony of aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony. Trial commenced on January 13, 1997, and, four days later, the jury found Harris guilty of malice murder and the firearm charge. (The other charges were nolle prossed.) Harris was sentenced on January 22, 1997, to life in prison plus five years (consecutive). Harris’ timely filed motion for a new trial was denied on October 20,1999, and Harris filed a notice of appeal on November 17,1999. The case was docketed in this Court on June 16, 2000, and submitted for a decision on briefs on August 7, 2000.