The appellant, Antonio Cochran, appeals from his convictions for several crimes stemming from the shooting death of Sarkis Hazzouri.1 On appeal, Cochran contends, among other things, that the trial court erred in its charge on intent and in excluding a statement given to the police by a witness shortly after the crime. We conclude that the erroneous charge on intent necessitates the reversal of Cochran’s malice murder conviction, and that on remand the State may retry Cochran for malice murder, or may, instead, have the trial court sentence Cochran on his felony murder conviction, which is not affected by the erroneous charge on intent. We find no reversible error in Cochran’s other contentions. Accordingly, we reverse his malice murder conviction, affirm his convictions for aggravated assault and for the possession of a firearm during the commission of a crime, and remand for proceedings consistent with this opinion.
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 thought Cochran might be reaching for a gun; that he Cesere then turned to walk back to his Toyota; and that he told Hazzouri and Grant that it was time to leave. Cesere added he and Hazzouri and Grant started to walk back to his Toyota, but that Cochran called Grant a “bitch” and asked Hazzouri, “Why don’t you keep your bitch under control” Cesere testified that Hazzouri took two steps toward Cochran’s car, “the door came open,” and there were three shots. Grant testified that after Hazzouri stepped toward the car, she realized that Cochran’s door was open, and that she saw gunshots being fired.
