WALLACE
v.
The STATE.
No. S02A1115.
Supreme Court of Georgia.
November 12, 2002. Reconsideration Denied December 13, 2002.*580 Carl P. Greenberg, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Christopher M. Quinn, Asst.
*581 Dist. Attys., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee.
FLETCHER, Chief Justice.
A jury convicted Jermeal Wallace of malice murder and possession of a firearm in the shooting death of Shaun Gunn.[1] Wallace appeals, contending that the trial court erred in charging the jury that the law presumes intent to kill from the use of a deadly weapon and presumes malice from the fact of a killing using a deadly weapon. These charges were clearly improper, and because we cannot say they were harmless beyond a reasonable doubt, we reverse the malice murder conviction. The erroneous charge, however, did not affect the felony murder conviction, and we remand for sentencing on that charge.
1. The evidence at trial, construed in the light most favorable to the guilty verdicts, showed that Wallace, his co-defendant Quincy Thomas,[2] and Thomas's brother drove to the Thomasville Heights apartments where they encountered the victim and two of his friends. Wallace stepped out of the car holding a gun, yelled that he was robbing the victims, and started firing when the victims tried to run away. Gunn was shot and died later that day. After the shooting, Wallace got back in the car and Thomas drove off. A police car began pursuit immediately and Wallace and Thomas were apprehended when their car crashed.
After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Wallace guilty of the crimes charged.[3]
2. The trial court twice instructed the jury that the law presumes the intent to kill from the use of a deadly weapon and malice from the fact of a killing with a deadly weapon. In charging on intent, the trial court instructed the jury that:
The law presumes that a person intends to accomplish the natural and probable consequences of his acts and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrument is ordinarily employed to produce death and cause [sic] the death of a human being, the law presumes intent to kill. The presumption may be rebutted and itif the State proves the defendant killed the person named in the bill of indictment in this county, by the use of a deadly weapon in the manner likely to produce death, then the killing is presumed to be intentional and malicious unless, as stated, circumstances of alleviation, excuse, or justification appear to your satisfaction from the evidence.
In charging on malice murder, the trial court charged,
The law presumes every killing to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification....
If a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrument is ordinarily employed to produce death and causes the death of a human being, the law presumes *582 intent to kill. The presumption may be rebutted.
As the State appropriately concedes, and as we previously concluded in Bridges v. State,[4] these types of charges are erroneous under Sandstrom v. Montana[5] and its progeny because they impermissibly shift the burden from the State to the defendant. A Sandstrom error may be harmless in certain rare situations if the instruction applied to an element of the crime that was not at issue in the trial and if the evidence of guilt is overwhelming.[6]
The State's eyewitnesses testified consistently that Wallace jumped out of the car and began shooting without provocation. Wallace, on the other hand, testified that he did not have a weapon, the victims were selling drugs, there was a dispute between one of the victims and Thomas's brother over drugs, one of the victims shot at the car, and Thomas responded with gunfire. Thomas testified that there was an argument about the drugs he was purchasing from one of the victims, one of the victims appeared to be reaching for a gun, and Wallace jumped out of the car and began shooting.
Thus, collectively, the defendants admitted being present and responsible for the death of the victim; however, they presented evidence that the shooting was justified and that there was no malice towards the victim. With these facts before the jury, a primary issue for their determination was the intent of the person shooting and the presence of malice. Because the unconstitutional charges did apply directly to an issue at trial, we must reverse Wallace's conviction for malice murder.[7]
Because we are reversing the malice murder conviction, Wallace's felony murder conviction no longer stands vacated as a matter of law.[8] The State may now choose to retry Wallace on malice murder, or it may choose to have Wallace sentenced on the felony murder conviction.[9] Therefore, we remand to the trial court for retrial or resentencing.
3. Wallace also contends that the trial court erred in refusing to excuse for cause two jurors who allegedly had preconceived opinions about guns and drug activity. The State contends that Wallace has not demonstrated harm because the record does not show that he exhausted his peremptory strikes. For many years this Court held that it would not reverse a conviction where a trial court erroneously disallowed a challenge for cause unless the defendant could show that he was compelled to exhaust his peremptory challenges for the purpose of excusing the juror.[10] However, in 1986, in Harris v. State, this Court abandoned that rule and held that "[t]he defendant's use of his peremptory strikes will ... no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror."[11] Therefore, we must examine the record to determine whether the trial court erred in refusing to strike the jurors for cause.
The record shows that both jurors expressed only general opinions about drugs and guns. Neither juror had a personal connection to anyone involved in the case; nor did the jurors express fixed beliefs about the guilt or innocence of Wallace. Therefore, *583 the trial court did not abuse its discretion in refusing to strike the jurors for cause.
Judgment affirmed in part, reversed in part and case remanded.
All the Justices concur.
NOTES
[1] The crimes occurred December 11, 1996. Wallace was indicted on August 29, 1997 and tried before a jury beginning May 17, 1999. On May 21, 1999, the jury found Wallace guilty on six counts: malice murder, felony murder with underlying felony of aggravated assault, aggravated assault, possession of a firearm during the commission of a crime, felony murder with underlying felony of possession of a firearm by a convicted felon, and possession of a firearm by a convicted felon. The court sentenced Wallace to life imprisonment for malice murder and five years imprisonment for each possession charge, with all sentences to run consecutively. The trial court also sentenced on the felony murder/possession of a firearm by a convicted felon charge; however, the felony murder conviction was vacated by operation of law, see Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479 (1993). Wallace filed a motion for new trial on May 28, 1999, which was denied on October 22, 2001. Wallace filed his notice of appeal on November 20, 2001; it was docketed in this Court on April 10, 2002, and submitted for decision without oral argument on June 3, 2002.
[2] The Court recently affirmed Quincy Thomas's conviction for murder. See Thomas v. State, 275 Ga. 882, 572 S.E.2d 537 (2002).
[3] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[4] 268 Ga. 700, 706, 492 S.E.2d 877 (1997).
[5] 442 U.S. 510, 513, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); see also Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
[6] Pace v. State, 274 Ga. 69, 70, 548 S.E.2d 307 (2001); Bridges, 268 Ga. at 706, 492 S.E.2d 877.
[7] Pace, 274 Ga. at 70, 548 S.E.2d 307.
[8] The trial court's attempt to sentence Wallace on both malice and felony murder was invalid. See Malcolm v. State, 263 Ga. at 371-372, 434 S.E.2d 479.
[9] See Pace, 274 Ga. at 71, 548 S.E.2d 307.
[10] See, e.g., Foster v. State, 240 Ga. 858, 859, 242 S.E.2d 600 (1978); Kemp v. State, 226 Ga. 506, 507, 175 S.E.2d 869 (1970); Ethridge v. State, 163 Ga. 186, 191, 136 S.E. 72 (1926).
[11] 255 Ga. 464, 465, 339 S.E.2d 712 (1986). The court of appeals's continued reliance on the old rule is erroneous and we overrule all cases that have relied upon the old rule, including Upshaw v. State, 249 Ga.App. 741, 744, 549 S.E.2d 526 (2001); McKenye v. State, 247 Ga. App. 536, 544 S.E.2d 490 (2001); McGriff v. State, 232 Ga.App. 546, 502 S.E.2d 482 (1998).