Cochran v. State
Cochran v. State
Opinion of the Court
The appellant, Antonio Cochran, appeals from his convictions for several crimes stemming from the shooting death of Sarkis Hazzouri.
1. On the evening of March 27, 1997, Cochran went with a friend to meet some people at a recording studio. As Cochran pulled his car into the parking lot where the studio was located, the people he intended to meet were pulling out. Cochran stopped his car and began a conversation with them. The position of their cars blocked traffic from entering or exiting the parking lot. As Cochran and the people in the other car talked, a Toyota 4Runner pulled up behind the other car. The man driving the Toyota, Rick Cesere, testified that he politely asked the drivers of the other cars to move so that he and his passengers could leave. Cesere testified that Cochran began screaming obscenities at him, and that he (Cesere) told Cochran that he just wanted to “get by” and did not “want any trouble.” Cesere added that Cochran continued to swear at him, and that he (Cesere) reiterated that he just wanted to leave and did not want any trouble. Cesere stated that Cochran continued to swear, and that, as he (Cesere) had no place to go, he got out of the Toyota to ask Cochran “what his problem was.” Cesere’s passengers, Teresa Grant and Sarkis Hazzouri, also got out of the Toyota. According to Cesere, Cochran’s passenger told the two men to “be cool” and “chill,” and Cochran leaned to the right in the car. Cesere testified that he
Cochran testified that he feared for his safety during the altercation and retrieved a gun from underneath his seat and pulled the slide back. As Cesere moved back toward his Toyota, Cochran testified that he began to drive away, but heard the tone signaling that a door of his car was being opened. He testified that he attempted to drive away as Hazzouri grabbed him, that his car stalled and jerked, and that as a result, the gun fired twice, wounding Hazzouri. Hazzouri was hit with two bullets and died almost instantly. Cochran fled the scene, and drove to a nearby apartment complex. It is undisputed that neither Cesere, Hazzouri, nor Grant had a weapon.
Viewing the evidence in the light most favorable to the verdict, we conclude that it was sufficient to support Cochran’s convictions.
2. Cochran correctly contends that the trial court gave a charge on intent that violated the rule that this Court established in Harris v. State.
3. Cochran could not locate an eyewitness to the crime before trial, and the trial court excluded from evidence a statement that the
4. Cochran next contends that the trial court erred by allowing a witness to testify that Cochran had pulled a gun on him after the witness had made a “joke” directed at Cochran. We disagree. In Boyd v. State,
5. Finally, we conclude that the two other issues raised by Cochran are without merit.
Judgment affirmed in part, reversed in part, and case remanded for proceedings consistent with this opinion.
The crimes occurred on March 27, 1997, and Cochran was indicted on May 8, 1997. He was charged with the malice murder and felony murder of Sarkis Hazzouri; with the aggravated assault of Rick Cesere and Teresa Grant; with three counts of the possession of a firearm during the commission of a crime; and with the possession of a firearm by a convicted felon. During trial, the trial court directed a verdict of acquittal as to the aggravated assault
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
273 Ga. 608, 609-610 (543 SE2d 716) (2001).
See Harris, 273 Ga. at 609-610. Compare Rouse v. State, 275 Ga. 605, 606 (571 SE2d 353) (2002) (overwhelming evidence of intent to kill rendered harmless an erroneous charge on intent under Harris).
Wallace v. State, 275 Ga. 879, 881 (2) (572 SE2d 579) (2002). Accord Pace v. State, 274 Ga. 69, 70-71 (548 SE2d 307) (2001).
275 Ga. 237 (564 SE2d 185) (2002).
Those contentions are (1) that trial counsel was ineffective for failing to object to evidence that Cochran alleges was irrelevant and prejudicial, and (2) that the trial court erred by improperly commenting on the evidence.
Dissenting Opinion
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
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.
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