State v. Jenkins

355 Ga.App. 39

840 S.E.2d 742

The STATE

v.JENKINS.

A19A2413

Court of Appeals of Georgia.

March 10, 2020

Certiorari Denied December 21, 2020

Daniel J. Porter, Lawrenceville, Brandon Mark Delfunt, for Appellant.

Richard Carter Armond, Lawrenceville, for Appellee.

Doyle, Presiding Judge.

Craig Lynn Jenkins ("the defendant") was charged with two counts of aggravated assault¹ and one count of possession of a firearm during the commission of a felony.² Following his indictment, the defendant filed a motion for immunity from prosecution under OCGA § 16-3-24.2 on the basis that he reasonably believed his actions of shooting two men were necessary to prevent imminent death or great bodily injury to another person. The trial court granted the motion, and the State appeals. For the reasons that follow, we affirm in part and reverse in part.

On appeal of an order granting pretrial immunity, "we review the evidence in the light most favorable to the trial court's ruling, and we accept the trial court's findings with regard to questions of fact and credibility if there is any evidence to support them."³

So viewed, the record shows that on July 22, 2017, at approximately 7:00 p.m., the defendant and two friends — Cacee Gwyn and "Mack" — went to a restaurant in Gwinnett County. The defendant consumed multiple alcoholic beverages while there,⁴ and he socialized with Phillip Williams and another patron, Levi Hencely.⁵ At one point, Williams and Hencely left the restaurant to race each other in their cars; the defendant remained at the bar. Soon thereafter, the men, including Williams's brother — Daniel Jackson, who arrived before the race — returned to the bar and continued to drink.

Shortly before midnight, everyone in the group proceeded into the parking lot, where Hencely and Williams began to argue about the race, "scuffling around like they're fighting." Both Jackson and the defendant retrieved hand guns and fired; the defendant shot Jackson and Williams in the leg, and a bullet from Jackson's gun grazed the defendant's shoulder. The defendant and Mack fled in the defendant's truck, and Jackson and Williams went to a nearby hospital, where they received medical treatment and met with a detective.

The defendant did not call the police the night of the incident. Instead, police identified him and Gwyn three days later through Gwyn's Facebook page after speaking with people at the restaurant. The detective interviewed the defendant, and the interview was recorded and transcribed. Initially, when asked what happened at the restaurant, the defendant stated that he and Gwyn "h[u]ng out with a bunch of guys[,] and at the end, somebody started shooting[,] and we all jumped in and ran like hell." The defendant repeatedly told the detective that he did not see who was shooting, and he stated that although he possessed a gun, he did not have it with him that night. The detective then told the defendant that he had seen video of the incident, at which point the defendant changed his story, explaining that: "As soon as I walked out of the restaurant, I looked up[,] and ... it looked like [one of the men] had grabbed their gun, pulled it out[,] and was behind [Gwyn]."⁶ Because he thought the gunman "was going to shoot [Gwyn,] ... [the defendant] turned around[,] ... pulled [his] gun out[,] and ... pointed it down towards the ground towards the left of [the gunman] and shot a couple times. ... Maybe I thought I would scare him[,] and he would go the other way or not shoot [Gwyn] or something." When asked at what he was aiming, the defendant replied, "The ground and then in the vicinity that dude was that had the gun that was shooting back at me. ... Well, I mean, at first, I was in defense mode for [Gwyn,] and I didn't really want to shoot him because I mean I was scared, but I didn't want to ... shoot somebody." The defendant testified, "I mean, I didn't shoot towards anybody else or at anybody else. It was just the guy with the gun." When asked whether he — the defendant — shot first, the defendant responded, "Yeah, I think so." According to the defendant, the other man returned fire, and the defendant, Gwyn, and Mack fled the scene. According to the defendant, he did not report the incident to police because he "was too scared."

The defendant was charged with possession of a firearm during the commission of a felony and two counts of aggravated assault, one based on shooting Jackson and the other based on shooting Williams. Thereafter, the defendant filed a motion for pretrial immunity pursuant to OCGA § 16-3-24.2, arguing that he was justified in "using force against another" pursuant to OCGA § 16-3-21 "to the extent that he ... reasonably believe[d] that such force [was] necessary to defend ... a third person against such other's imminent use of unlawful force. ..."

At the hearing, Jackson testified that after he left the restaurant, one of the other men began arguing with Jackson and Williams about the race. When the man threatened to stab them, Jackson went to his truck, retrieved a gun from the center console, chambered a round, set the gun on the seat, closed the door, and walked towards the back of his truck. According to Jackson, he then saw the defendant aim a gun towards Williams. Jackson and one of the defendant's friends told him to put the gun down, and when the defendant replied, "you got a gun," Jackson lifted up his shirt and showed him that he did not have a gun. The defendant then fired "eight [or] nine" shots towards Williams. Jackson testified that when he saw "the dust hit around [Williams]" and Williams grab his leg, Jackson ran to his truck, retrieved his gun, and fired three or four shots toward the defendant, who was returning fire, resulting in a bullet wound to Jackson's knee. Jackson and Williams then left and went to a nearby hospital.

The detective testified at the hearing, during which testimony the State played video from the defendant's interview with police, the surveillance video from the restaurant, and cell phone video taken by a witness from inside the restaurant.⁷ The detective explained that after reviewing video and speaking with witnesses, he concluded that at the time the defendant shot Williams, Williams and Hencely were approximately 20 to 30 yards from Jackson's vehicle, where Jackson was standing. The detective also explained that the defendant did not recall shooting in Williams's direction.

The surveillance video from the restaurant shows the defendant leaning against his truck. At one point, several other men appear in the screen, and it appears that two of them are arguing; the argument then moves off-camera. The defendant then retrieves a gun from his truck, points his gun over the hood of his truck in one direction, then makes an adjustment to his left and fires approximately seven shots, walks out from behind his truck and fires several more shots in the same direction followed by another shot five or six seconds later, and then more shots before someone returns fire.⁸ The defendant and his truck are shown on the video, but the men being shot and the other gunman are not because they are outside the frame of the surveillance camera.

The defendant testified at the hearing as well, explaining that he retrieved his own gun from his truck after he saw Jackson with a gun. When asked why he did so, the defendant responded that Jackson was "pointing [a gun] at everybody in the parking lot." According to the defendant, "everybody that was in the situation was probably eight foot [sic] away from each other[,] and it started with ... Jackson closest to the rear of his vehicle, then ... Williams, then [Gwyn], then ... Hencely." The defendant stated that he shot before Jackson did, "five or six [shots] initially," before Jackson shot towards him, striking the defendant in the shoulder. The defendant testified that he "didn't know that Phillip Williams was shot until [the d]etective told me." The following colloquy then ensued:

Q: Okay. Detective Dyals asked you [if you] can explain why you turned your body and shot at ... Williams and ... Hencely first. Do you recall that?

A: I didn't shoot — I mean, he may have asked me. I don't — I didn't shoot at Mr. Williams and Hencely first. I never shot at the guys without the guns .

Q: Well, you hit ... Williams[,] so you must have shot at him; correct?

A: Okay. I shot at Mr. Jackson. Mr. Williams was running back to Mr. Jackson's vehicle, so he got in between me and his line of fire. I mean, who's to say that it wasn't Mr. Jackson that shot Mr. Williams because when I shot, he was pointing his gun this way. ...

Q: Well, you never told Detective Dyals that Mr. Williams ran back, did you?

A: I never seen that he did run back over.⁹

The State then reminded the defendant that there was cell phone video of Williams being shot, and a colloquy between the lawyers and the trial court ensued. The State then asked the defendant:

Q: Is it your testimony that Mr. Williams was over near Mr. Jackson when he is hit? Is that your recollection?

A: I'm not sure ... where Mr. Williams was. ... I was pointing at Mr. Jackson. I know that they were all squaring off together, fighting together, so.

After the hearing, the trial court entered an order granting the defendant's motion for immunity. In the order, the court summarizes the facts, including stating that as the argument between Williams and "the other driver" escalated to "a fist fight," Jackson retrieved a firearm from inside his vehicle,

and although he testified that he only laid the firearm on the back seat of his truck, both the [d]efendant and [the defendant's co-worker] testified seeing the firearm and that ... Williams [sic]¹⁰ became aggressive with the firearm, waiving it around and pointing it at the two men involved in the fight. The [d]efendant's co-worker and friend, also involved in the events of the evening, became entangled in the situation because his car was parked in close proximity to the spot where the

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