State v. Brown

314 Ga. 588

878 S.E.2d 445

The STATE

v.BROWN.

S22A0463

Supreme Court of Georgia.

Decided: September 20, 2022

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Elizabeth Rosenwasser, A.D.A., Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, Lyndsey Hurst Rudder, General Counsel, FSIG, 41 Islanders Retreat, Savannah, Georgia 31411, Juliana Sleeper, Assistant County Attorney, Fulton County - Office of the Fulton County Attorney, 141 Pryor Street, SW, Suite 4038, Atlanta, Georgia 30303, for Appellant.

Keisha A Steed, Office of the Metro Conflict Defender, 270 Washington Street, Suite 5161, Atlanta, Georgia 30303, James Gabriel Banks, Banks Weaver LLC, 100 Peachtree Street, Suite 260, Atlanta, Georgia 30303, for Appellee.

Colvin, Justice.

In connection with the fatal shooting of Stacey Monts and the shooting of Mario Roscoe, a Fulton County grand jury jointly charged appellee Terrell Brown and co-defendants Milton Rufus Hall and Andrew Dontavius Glass with malice murder, felony murder, aggravated assault, armed robbery, aggravated battery, and possession of a firearm during the commission of a felony.¹

Brown filed a pretrial motion for immunity from prosecution under OCGA § 16-3-24.2² based on self-defense. Following a hearing on the motion, the trial court issued an order granting Brown immunity on most of the charges against him. The court's ruling, however, omitted any reference to Count 6, which charged Brown and his co-defendants with committing an armed robbery by "tak[ing] a handgun" from Monts.

On appeal, the State argues that the court's failure to grant immunity on the armed-robbery charge conflicted with its grant of immunity on the other charges because, under OCGA § 16-3-21 (b) (2), a person cannot be justified in using force while "attempting to commit, committing, or fleeing after the commission or attempted commission of a felony," such as armed robbery. As explained below, the State correctly identifies a potential conflict within the trial court's ruling. However, the record on appeal does not permit us to determine whether the trial court erred because we cannot discern whether the court even ruled on whether Brown was entitled to immunity on Count 6, much less that the court denied Brown immunity on that count. Because the record on appeal is insufficient for meaningful appellate review, we vacate the judgment and remand the case for further clarification and analysis consistent with this opinion. See Hughes v. State , 296 Ga. 744, 746 (1) n.6, 770 S.E.2d 636 (2015) ("If the trial court has made express findings of fact, but not with sufficient detail to permit meaningful appellate review, an appellate court may remand for further findings.").³

1. Brown filed a pretrial motion for immunity from prosecution, which co-defendant Hall joined.⁴ Following a three-day hearing on the motions, where Brown, Hall, Roscoe, and other witnesses testified, the court found the following, in relevant part. On July 14, 2018, Monts, Roscoe, and another friend arrived at the home of Brown and Hall, where Glass was also living, "for an afternoon of gambling [with dice] and smoking weed." "[T]here was no animosity existing between anyone" when the dice game began, and the players engaged only in "the typical fussing ... over details of the game" as the game developed. At some point before the shooting, however, "there was commotion surrounding the whereabouts of Monts’[s] gun." Brown, who was not gambling, "ultimately found [the gun] in between the cushion of the living room couch and returned it to Monts, while trying to assure him nobody there was trying to steal the gun." Despite Brown's assurances and the fact that Monts had been winning the dice game, "Monts remained upset about the misplacement of his gun." At some point during the game, "folks started shooting three loaded weapons," killing Monts and causing Roscoe and Hall to sustain serious gunshot injuries in the "cross-fire." When law enforcement officers and EMS arrived, "the cash, guns[,] and stash of pot were gone."

The court noted that "Brown and Hall each testified that they fired a weapon in self-defense only after Monts began shooting"; that Hall testified that he shot Monts in response to being shot by Monts; and that Brown testified that, when he saw Monts shoot at Hall, Brown reached for a "rifle stashed under the futon where he was sitting ... and fired back toward Monts ... out of fear that Monts would shoot him next." (Emphasis in original.)

Addressing Hall's motion for immunity, the court found that "[t]he evidence was conflicting as to whether Monts shot Hall first and why, or vice versa." The court questioned the plausibility of both the State's theory of the case ("that Brown and Hall decided to rob Monts and Roscoe in their home after handing Monts his gun") and the defense's theory of the case ("that Monts would end a dice game where he [was] ahead by thousands of dollars by shooting the losing player"). The court called both theories "far-fetched." The court further found that "[t]he odds in favor of" young men (i.e., Hall and Monts) "exercis[ing] ... good judgment"—while playing a "high stakes dice game[,] ... handling guns[,] and smoking pot on a hot summer day"—were "dangerously low." Accordingly, the court concluded that "Hall ha[d] failed to show by a preponderance of the evidence that he [was] entitled to immunity."

"[R]egardless of whether Monts or Hall initiated the gunfire," however, the court found that "Brown ha[d] shown by a preponderance of the evidence that he fired his weapon in self-defense." As noted above, the court found that the State's theory of the case (that Brown and Hall decided to rob Monts at their own home, after Brown handed a gun to Monts) "seem[ed] far-fetched." The court further found that "[n]o one contradicted Brown's explanation as to when and why he shot his weapon"—that Brown fired only after seeing Monts shoot at Hall and that he fired in self-defense because he feared for his life. Accordingly, the court ruled that Brown was "entitled to immunity from prosecution on Counts 1, 2, 3, 7, 8, 9, 10 and 11." The court's ruling omitted any reference to the armed-robbery charge (Count 6).

2. On appeal, the State contends that the trial court abused its discretion in granting Brown immunity from prosecution on any of the charges against him under OCGA § 16-3-24.2. In relevant part, OCGA § 16-3-24.2 provides that "[a] person who uses threats or force in accordance with Code Section 16-3-21 ... shall be immune from criminal prosecution therefor." OCGA § 16-3-21, in turn, provides that a person who "reasonably believes that [deadly] force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony" is generally justified in using such force. OCGA § 16-3-21 (a). This general rule, however, is subject to an important exception: a person who uses deadly force while "attempting to commit, committing, or fleeing after the commission or attempted commission of a felony" is not justified in using such force. OCGA § 16-3-21 (b) (2).

"To avoid trial, a defendant bears the burden of proof to show that he is entitled to immunity by a preponderance of the evidence." Hughes v. State , 312 Ga. 149, 156 (4), 861 S.E.2d 94 (2021). Accordingly, a defendant must show by a preponderance of the evidence not only that he "reasonably believe[d] that [deadly] force [was] necessary" under the circumstances, OCGA § 16-3-21 (a), but also that he did not use deadly force while "attempting to commit, committing, or fleeing after the commission or attempted commission of a felony," OCGA § 16-3-21 (b) (2). On appeal, we view the evidence "in the light most favorable to the trial court's ruling." Hughes , 312 Ga. at 156 (4), 861 S.E.2d 94. "[T]he trial court's findings of fact and credibility determinations are accepted if there is any evidence to support them." Id.

In arguing that the trial court erred in granting Brown immunity from prosecution on any count, the State relies upon two factual premises. First, the State asserts that the trial court "denied [Brown] immunity for the armed robbery charge." Second, the State asserts that "inherent in the trial court's [denial of immunity on the armed-robbery charge] is a factual finding that Brown was committing a felony when he shot the victims." Based on these factual premises, the State concludes that, as a matter of law, Brown was not entitled to immunity on any charge because, under OCGA § 16-3-21 (b) (2), a person who uses deadly force while committing a felony is not entitled to immunity under OCGA § 16-3-24.2.⁵

The logic of the State's argument is sound, at least as to the armed-robbery offense charged here, if the trial court denied Brown immunity on the armed-robbery charge (Count 6) because he failed to carry his burden by a preponderance of the evidence to show that he was not engaged in an armed robbery when he shot at Monts. OCGA § 16-3-21 (b) (2) would have then precluded him from receiving immunity on any of the remaining counts, all of which arose from the same shooting. The record on appeal, however, does not permit us to determine the accuracy of these factual premises.

First, the record does not establish whether the court issued any ruling as to whether Brown was entitled to immunity on Count 6, much less that the court denied Brown immunity on that count. Because Count 6 was simply omitted from the court's determination that Brown was "entitled to immunity from prosecution on Counts 1, 2, 3, 7, 8, 9, 10 and 11," the record does not include any express ruling on immunity as it applied to the...