THE STATE v. BROWN
S22A0463
In the Supreme Court of Georgia
September 20, 2022
COLVIN, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
COLVIN,
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
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
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 fаct 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
“[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-defеnse 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
“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 SE2d 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,
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
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
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 armed-robbery charge. Nor does the record clearly show that Brown sought immunity on Count 6, and thus that the court was required to rule on the matter.6 Brown‘s written motion for immunity from prosecution did not identify which specific counts were subject to the motion, and, at the immunity hearing, Brown‘s counsel made confusing statements about Count 6, suggesting at one point that the armed-robbery charge would not “go away” based on the “immunity defense.”7 But he also argued at length that the State‘s armed-rоbbery theory was not supported by the evidence and “just simply . . . doesn‘t make sense” because even “the dumbest criminal” would not “invit[e] [people] over to [his own] house to rob them” or “give someone a gun back and then attempt to rob them.” The record is silent on how the court interpreted these arguments and whether it might have reasonably concluded, in the context of the hearing as a whole, that Brown did not seek immunity on Count 6. Because the record is not clear as to whether Brown sought immunity on Count 6 (and thus whether thе court considered such an argument), we cannot conclude that the court‘s omission of Count 6 was necessarily an implicit denial of immunity. The omission might have instead been a mere failure to rule on Count 6, which would not conflict with granting immunity on the other counts: if the court did not consider whether Brown was entitled to immunity on Count 6, it still might have granted immunity on the other counts if it found by a preponderance of the evidence that Brown was not committing an armed robbery when he fired his gun.
Second, although the State asserts that “inherent” in the trial court‘s order is a finding that Brown failed to carry his burden to show he was not engaged in an armed robbery, nothing in the court‘s order supports that assertion. At the immunity hearing, the parties did not raise
In sum, the record on appeal is insufficient for us to determine whether the court ruled on immunity as to Count 6, much less to determine that the court denied Brown immunity on that count and why. Moreover, nothing in the record would preclude the trial court from determining on remand that Brown sought immunity on Count 6, thаt he carried his burden to show that he did not engage in an armed robbery, and that he may have been entitled to immunity on Count 6, in addition to the other counts. Because the record does not permit us to assess whether the trial court erred, a remand is necessary for further clarification and analysis. See Hughes, 296 Ga. at 746 (1) n.6.
3. The State also argues on appeal that the evidence presented at the immunity hearing did not support several of the trial court‘s findings. We disagree. First, the State argues that the court clearly erred in finding thаt “[n]o one contradicted Brown‘s explanation as to when and why he shot his weapon.” According to the State, Roscoe‘s testimony contradicted the testimony of Brown and other witnesses as to when and why Brown shot his gun because there were conflicting details in the witnesses’ accounts. Specifically, the State argues that Roscoe testified that “it was after Hall fired the first shot at Monts, and Monts ended up on the ground and was firing back at Hall, that Brown started shooting at Monts” and that “Monts fired back at Hall, not at Brown.” Acсording to the State, this testimony contradicted the testimony that “Brown did not start shooting until after Monts fired the first shot” and that “[Brown] shot at Monts because Monts was firing in his direction.”
The trial court, however, did not find that there were no conflicts in the testimony about precisely how events unfolded. Rather, the court found that no one contradicted Brown‘s testimony that he fired at Monts after seeing Monts shoot at Hall and that Brown fired out of fear that he would be shot. Because Roscoe also testified that Brown did not shoot until after Monts shot аt Hall, Roscoe‘s testimony does not show that the trial court clearly erred in finding that no one contradicted Brown‘s account of when he fired at Monts. Further, because Roscoe‘s testimony that Monts was shooting at Hall, rather than at Brown, did not show that Brown did not fear being shot, Roscoe‘s testimony does not show that the trial court clearly erred in finding that no one contradicted Brown‘s account of why he fired his gun.
Second, the State argues that the trial court clearly erred in finding that Brown fired in self-defense because, according to the State, Brown‘s belief that Monts would shoot him after shooting Hall was unreasonable. However, we must “accept the trial court‘s findings of fact and credibility determinations if there is any evidence to support them.” Gude v. State, 313 Ga. 859, 871 (6) (874 SE2d 84) (2022). Here, the trial court credited Brown‘s testimony that he feared being shot by Monts when gunfire erupted in “the circle of gamblers” near “the futon where [Brown] was sitting.” Based on the evidence presented at the immunity hearing, the trial court was authorized to find that Brown reasonably fired in self-defense.
Finally, the State argues that no evidence supported the trial court‘s finding that
4. On remand, the trial court is directed to make an express finding as to whether Brown carried his burden to prove by a preponderance of the evidence that he was not engaged in an armed robbery when the shooting occurred. If the court finds that Brown did not carry his burden on this point, it is directed to deny Brown immunity as to all counts against him, in accordance with
Judgment vacated and case remanded with direction. All the Justices concur, except Ellington and LaGrua, JJ., who dissent.
ELLINGTON, Justice, dissenting.
A Fulton County grand jury indicted Terrell Brown on charges of malice murder, felony murdеr, armed robbery, and other offenses related to the fatal shooting of Stacey Monts and shooting of Mario Roscoe. The charges brought by the State were based on its theory that Brown and his co-defendants shot Monts and Roscoe during an armed robbery. Prior to trial, Brown filed a motion seeking “immunity from prosecution” under
The State appealed, arguing that Brown was precluded from seeking immunity based on self-defense for any of the charged crimes because the State had alleged that Brown was in the commission of an armed robbery at the time he committed the crimes. See
Despite these indisputable facts and well-established Georgia law precluding the grant of immunity from prosecution to a person who uses force against another when “attempting to commit, committing, or fleeing after the commission of a felony,”
For this reason, I would hold that the trial court erred when it granted Brown immunity from prosecution on Counts 1, 2, 3, 7, 8, 9, 10, and 11 of the indictment and reverse the judgment of the trial court.16