Cochran v. State

CARLEY, Justice,

dissenting.

I concur fully in Divisions 1, 3, 4, and 5 of the majority opinion. With respect to Division 2, I agree that the charge authorizing the jury to draw a permissive inference of intent violated the rule of Harris v. State, 273 Ga. 608, 609 (2) (543 SE2d 716) (2001). In my opin*287ion, however, this non-constitutional error is clearly harmless. Accordingly, I dissent to Division 2 and the judgment of reversal.

It is well-settled that a Harris violation is “not of constitutional magnitude. [Cit.]” Harris v. State, 274 Ga. 422, 426 (6) (d) (554 SE2d 458) (2001). Thus, for the error to be harmless, it need only be “highly probable” that the erroneous charge did not contribute to the judgment. Scott v. State, 275 Ga. 305, 308 (5) (565 SE2d 810) (2002); Harris v. State, 273 Ga., supra at 610 (2). Compare Pace v. State, 274 Ga. 69, 70 (2), fn. 9 (548 SE2d 307) (2001). Therefore, we have repeatedly affirmed convictions with Harris errors, by finding overwhelming or even strong, but less than overwhelming, evidence of malice. Rouse v. State, 275 Ga. 605, 606 (2) (571 SE2d 353) (2002); Harris v. State, 274 Ga., supra at 426 (6) (d).

According to the majority, the non-constitutional error here is reversible merely because the self-serving testimony of the defendant furnished some conflicting evidence of intent. However, the true test for harmless error is whether the evidence of intent other than the defendant’s testimony was so weak that we cannot find a high probability that the improper charge did not contribute to the jury’s verdict. Stockford v. State, 276 Ga. 241, 242 (2) (575 SE2d 889) (2003). In Stockford, the defendant testified that he accidentally shot the victim, but other eyewitness testimony that there was a pause and three more shots made it highly probable that the Harris charging error did not contribute to the verdict, even though four witnesses heard only two shots. Similarly, eyewitnesses in the instant case overwhelmingly refuted Cochran’s uncorroborated testimony that he accidentally shot the victim while trying to defend himself.

Therefore, the correct application of the non-constitutional harmless error analysis results in the conclusion that it was highly probable that the erroneous charge did not contribute to the verdict in this case. See Stockford v. State, supra; Harris v. State, 274 Ga., supra at 426 (6) (d) (the defendant claimed that he was defending against an unlawful sexual assault); Barnes v. State, 269 Ga. 345, 352 (12) (496 SE2d 674) (1998) (Sears, J.) (harmless error analysis involved consideration of the amount of evidence available to refute the defendant’s testimony of self-defense); Sandoval v. State, 264 Ga. 199, 200 (2) (c) (442 SE2d 746) (1994) (eyewitness testimony made evidence overwhelming despite the defendant’s conflicting testimony).

I am authorized to state that Justice Hunstein joins in this dissent.

*288Decided February 10, 2003 Reconsideration denied March 10, 2003. Barry M. Hazen, for appellant. Patrick H. Head, District Attorney, Andrew J. Saliba, Amy H. McChesney, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ruth M. Pawlak, Assistant Attorney General, for appellee.