*1
charges
that the other
were known.”
“show[ed]
Ga.
Smith
App.
(
for theft This failure is fatal to his jeopardy double claim. Judgment Phipps, J., Dillard, J., P. concurs. concurs affirmed.
fully judgment only in Division 1 and in in Division 2. Judge, concurring fully concurring
DILLARD, in Division 1 and judgment only in Division 2. fully majority opinion.
I concur as to Division 1 of the I concur in judgment only agree as to Division 2 because I do not with all that is majority opinion. result, said in that division of the As a Division 2 of majority’s opinion only presented decides the issues in that may binding precedent. division and not be cited as See Court of Appeals (a). Rule 33
Decided October 2016. appellant. Reeves,
Brandi for S. Attorney, Armstrong, Howard, Jr., Paul L. District Kevin C. Attorney, appellee. Assistant District for A16A1704. THE STATEv. HALL. 522) Presiding Judge.
BARNES, Clayton County police Ryan officer, A Coker was indicted simple battery during based on his use of force an encounter with might burglar. a homeowner whom he believed be a Hall filed a *2 16-3-24.2, motion under OCGA seeking immunity prosecution § that his use of force was reasonable and in of arguing light the homeowner’s resistance to handcuffed and detained. Fol- an that included witness lowing evidentiary hearing testimony incident, cell video of most of thе the trial court footage granted Hall’s motion for in this the State. For immunity, resulting appeal by below, the reasons discussed we affirm.
On from the trial court’s or denial of appeal grant 16-3-24.2, under OCGA we view the evidence in the most § favorable to the trial court’s 293 Ga. ruling. Sifuentes viewed, So the evidence at (2) (746 127) (2013). presented 2, 2014, the showed that around noon on a immunity hearing May concerned called 911 and in at neighbor reported burglary progress a residential address in Jonesboro. The told the 911 dis neighbor that a red vehicle was patcher Durango sport utility (“SUV”) parked in the rear of a renovated house in the and that newly neighborhood a man was in and out of the house. The described the going neighbor man as into” the house and the with “breaking provided dispatcher the residential street address. the time in Hall was an officer with the
During period question, Police to a crime Clayton County Department assigned special sup- unit that to residential and other pression responded burglaries high calls. Hall and his to the 911 call of the priority partner responded burglary progress.
Hall and his down the street from the house partner parked where the was and were suspected burglary taking place joined by another officer and a The four officers then patrol police captain.1 toward the house on foot with their drawn. When the proceeded guns house, officers arrived at the did not see visible they any signs doors, forced such as broken windows or but a red entry, Durango house, SUV was in the back of the consistent with the parked the 911 caller. description provided by house, Hall,
Hall’s went to the back of the the partner patrol officer, and the the front of the house from police captain approached different directions. The officer onto the front patrol stepped up where he saw a man later identified as 70-year-old Almyahid Bin-Wahad at an window and for him to come to the upstairs gestured door, front door. Once Bin-Wahad came to the officer asked patrol However, him to himself. Bin-Wahad would not his identify provide reference, responded For ease of the four officers who first to the scene will be referred to officer, collectively separately partner, patrol as the “officers” and as Hall’s and the police captain. *3 name and demanded to know the officers were at his house. why house, When asked if else was inside the Bin-Wahad anyone initially did not but then said that no one else was there. respond According officer, to the Bin-Wahad was waved his hands around patrol angry, as he the officer as he tried to spoke, kept interrupting patrol that were at the house to explain they investigate suspected burglary.
Unsure whether Bin-Wahad was in fact the homeowner or a call, intruder of the 911 officer asked possible patrol Bin-Wahad to calm down and instructed him to come outside onto the front for further Bin-Wahad porch investigation. initially questioned he needed to come outside but then out onto the why stepped porch. firearms, officer and who had holstered their stood patrol near Bin-Wahad on the while the stood a short porch police captain distance and observed the interaction. away officers, to the Bin-Wahad told them that he
According angrily was into the house that was moving day, belligerent argumen- tative in to their would not his response investigatory questions, keep down, hands at the officers about their at kept yelling presence the home their that he calm down. Bin-Wаhad was despite requests so at the officers that Hall’s could hear him yelling loudly partner from the back of the house.
While on the the officers to see Bin-Wahad’s porch, requested identification, but Bin-Wahad said that his driver’s license was in the SUV in the back of the house. The officers then offered to have parked SUV, another officer the driver’s license out of the but Bin-Wahad get said the car doors were locked and the were inside the house. keys officer, to the “it was a little that According patrol merry-go-round on, we were where we were nowhere” in Bin- getting ascertaining Wahad’s identity.
As the officers with Bin-Wahad and to calm him spoke attempted down, Hall took hold of Bin-Wahad’s arm to him from keep moving around on the conducted a search for pat-down weapons, officers, found none. to the Bin-Wahad remained According belliger- him, ent and as continued to argumentative they question Bin-Wahad became that Hall was onto his arm. Hall upset holding then instructed Bin-Wahad to sit on the repeatedly porch safety reasons, but Bin-Wahad refused to until the cooperate police captain came to the front and convinced him to sit down. Hall up porch down, released Bin-Wahad’s arm once he sat and Bin-Wahad again said that no one else was in the house. Bin-Wahad,
As Hall was with the seated speaking patrol officer went inside the house to secure it. Because he was focused on Bin-Wahad, house, Hall did not see the officer enter the and the patrоl *4 patrol police officer did not communicate on the radio that he was entering Shortly thereafter, the house. Hall received a radio trans- partner, positioned mission from his who remained at the back ofthe just peeking house, that he had seen another male out of a back window of the house.
Believing suspect that another was in the house and that Bin- by claiming Wahad had deceived the officers that no one else was place securely there, Hall decided tо Bin-Wahad in handcuffs to more porch detain him on the while the inside of the house was secured. point, somebody Hall testified that at that he did not know “if was going running dealing to come outside the house ... and now I’m with people porch.” two on the front deciding Bin-Wahad,
Hall testified that after to handcuff he told put Bin-Wahad that he was detained and to his hands behind according However, Hall, his back. wrist to handcuff Bin-Wahad as he took Bin-Wahad’s left pulled away it, his left arm body, began response turned his to stand. In to Bin-Wahаd’s attempted technique actions, Hall testified that he to use an arm bar bring porch as a defensive tactic to Bin-Wahad down on the so that he position could be handcuffed. Hall further testified that Bin-Wahad’s difficult, steps on the apply and Bin-Wahad’s movement made it for him to technique, ground the arm bar and Bin-Wahad fell to the struck his head and shoulder on the front wall of the house as Hall attempted technique police captain to use the on him. Hall and the porch then handcuffed Bin-Wahad and detained him on the front while other officers secured the house.
After Bin-Wahad was handcuffed and detained on the by suspects officers, house was secured other and no other were partner found. The officers then realized that Hall’s patrol had mistaken the initially suspect.2 officer who entered the house for another truck, Bin-Wahad’s driver’s license was obtained from his and the officers were able to determine that he lived at the house. Once that made, determination was Hall removed the handcuffs and released injuries. Bin-Wahad, who had no visible visiting officers, Unbeknownst to the a witness who was a friend neighborhood police at another house in the recorded most of the phone through house, encounter on his cell a front window of the approximately away which was 200 feet from where the encounter phone recording any footage occurred. The cell did not include audio police of the encounter. patrol disciplined violating protocol by entering officer was later the house to by announcing
secure it without assistance and not the same on the radio.
A indicted Hall on one count of grand jury subsequently simple arm and him to the battery “grabbing taking [Bin-Wahad’s] in a manner that caused to his neck and shoulder area.” ground injury Hall filed a motion to be from under granted immunity prosecution OCGA 16-3-24.2 on the that his actions were reasonable grounds § and in of Bin-Wahad’s resistance to handcuffed. justified being The trial court thereafter conducted an on Hall’s evidentiary hearing motion.
At the the defense of the case was that immunity hearing, theory Hall an arm bar to take Bin-Wahad to the applied technique ground as a defensive measure when Bin-Wahad resisted handcuffed being after the erroneous radio transmission about another in the suspect house, and that Hall’s use of force was reasonable and under contrast, the circumstances to himself. In the State’s protect theory of the case was that Bin-Wahad never resisted and that Hall instead arm, him the lifted him from the threw him to grabbed by up the and handcuffed him in an unreasonable ground, unprovoked use of force after the erroneous radio transmission. hearing case, testified,
In of the defense of the Hall as support theory above, summarized that he the arm bar as a applied technique defensive measure when Bin-Wahad resisted handcuffed being by his left arm to stand pulling away turning, attempting on the after there had been a radio transmission that a up porch Likewise, second was in the house. as summa- suspect previously rized, the other three officers testified that Bin-Wahad responding had been their encounter argumentative belligerent throughout with him and had been when commands the uncooperative given by officers.
In addition to the of Hall and the other testimony responding officers, Hall the of several in presented testimony experts support the defense of the case. An in the areas of theory expert police force, use of defensive tactics testified that training, рolice officers are trained that a in is a burglary progress dangerous, high call. to the often are committed priority According expert, burglaries armed, more than one are by suspect, suspects frequently in the act often will or flee or suspects caught fight may try “bully” their out of arrested. The also went the cell way expert through video and made observations about the interaction between phone actions, Hall and Bin-Wahad and about how Hall’s use of including the arm bar conformed to Police technique, Clayton County Depart- ment’s use of force in his policy, professional opinion.
Hall of another presented testimony expert police training on the use of force and testified that he legal procedures. expert video, had created still from the cell and the photographs *6 were introduced into evidence at the The photographs hearing. a detailed of the actions of Hall and Bin- expert gave explanation Wahad that could be seen in each still and he testified photograph, that Hall’s stance while to handcuff the seated particular attempting Bin-Wahad was inconsistent with the State’s that Hall had theory Rather, Bin-Wahad from a seated the pulled up position. expert the still showed that Bin-Wahad had turned and opined, photographs tried to stand when Hall to handcuff him and that Hall up attempted then had to the arm bar attempted apply technique. expert further that based on Bin-Wahad’s resistance to hand- opined being stand, cuffed to turn and Hall’s defensive actions were by attempting consistent with the use of force standards which upon Clayton officers are trained. County
The State relied the of Bin-Wahad to its upon testimony support Hall, of the case. In contrast to the of Bin-Wahad theory testimony that, testified without Hall him from a seated warning, pulled up on the threw him to the and handcuffed him position ground, after the radio transmission that someone else was in the receiving house. Bin-Wahad denied that he attеmpted pull away turn, handcuffed, that, or stand when and he testified up being officers, to the of the he had not been contrary testimony belligerent toward them and had answered all of the that questions they posed to him. The State did not witnesses in of present any expert support its of the case. theory
In addition to witness a testimony, recording transcript call, the 911 a of the radio transmissions recording transcript scene, between the officers at the and the cell of the phone recording encounter were introduced into evidence at the Both police hearing. sides claimed that the cell video corroborated their version of phone events.
After the the cell hearing conflicting testimony reviewing exhibits, video and other the trial court entered its order motion, Hall’s motion for In Hall’s the granting granting trial court declined to credit of Bin-Wahad expressly testimony incident. The trial court instead found regarding handcuffing that Hall had of the evidence that his proven by preponderance actions were reasonable because he had reason to believe that Bin-Wahad be involved in a might burglary progress residence, and that another be in the Bin-Wahad was suspect might officers, to the and Bin-Wahad had aggressive belligerent physi- resisted detained as Hall tried to handcuff him. Based on cally these the trial court ruled that Hall was immune from findings, to OCGA 16-3-24.2. This prosecution simple battery pursuant § the State followed. appeal by
243 person threatening using against “A is or force reasоnably another when and to the extent that he or she believes necessary that such threat or force is to defend himself or herself or person against a third such other’s imminent use ofunlawful force[.]” (a). person’s justified, OCGA 16-3-21 If the use of force is so then § provides person OCGA 16-3-24.2 that the “shall be immune from § prosecution.” criminal person prosecution
Whether a
is immune from criminal
under
by
OCGA 16-3-24.2 must be determined
the trial court before trial.
§
(1) (664
227) (2008).
State,
165,
Fair v.
284 Ga.
165-166
SE2d
The
showing
pre
defendant carries the burden of
that he is entitled to
immunity by preponderance
State,
trial
a
of the evidence. Bunn v.
(3) (667
605) (2008).
appeal
410,
284 Ga.
413
SE2d
On
from the trial
grant
pre-trial
immunity,
court’s
or denial of
“we must view the
ruling
evidence in the
accept
most favorable to the trial court’s
findings
credibility
the trial court’s
of fact and
determinations
any
support
(2).
Sifuentes,
if there is
evidence to
them.”
App. (1) (583 158) (2003). suspect right 478, 479 SE2d A has no to by effectuating resist the use of reasonable force investigatory an officer State, a lawful Bynes v. App. (3) detention, 223, 336 Ga. 228 see (a) (784 71) (2016), conversely, and, SE2d an officer is entitled to protect by suspect himself from attack or resistance a hostile “may lawfully [suspect] reasonably necessary detain the in a manner protect personal safety quo.” his and to maintain the status (Citation punctuation omitted.) Gray App. State, 878, v. 296 Ga. (1) (676 36) (2009). 879-880 SE2d particular
The reasonableness of a use of force must be judged perspective from the of a reasonable officer on the hindsight.... scene, rather than with the 20/20 vision of embody calculus of reasonableness must allowance for the police split-second fact that officers are often forced to make judgments tense, uncertain, in circumstances that are rapidly evolving necessary about the amount of force that is particular in a situation.
(Citations
punctuation omitted.) Graham,
Mindful of this and in of the of responding experts officers, the other three and Hall’s in the use of support force, we conclude that there was some evidence to the trial finding physically resisting being court’s that Bin-Wahad was hand by application cuffed and detained technique and that Hall’s ofthe arm bar bring ground as a defensive measure to Bin-Wahad to the pro and handcuff him was a use of force that was reasonable and portionate to the resistance offered. “Construed in a most ruling,... favorable to the trial court’s the evidence was sufficient for proving the trial court to determine that met his burden of that [Hall] prosecution pursuant he was entitled to to OCGA § (Citation punctuation omitted.) Jennings, 16-3-24.2.” v. State App. (786 545) (2016). 164, Bunn, 337 Ga. 167 SE2d See v. 288 State (701 138) (2010). 20, Ga. 23 SE2d argues
The State that the cell video contradicts Hall’s version of events and shows that Bin-Wahad did not resist detained, handcuffed and and that the trial court therefore erred in finding proved justification by preponderance that Hall of the evidence. It is true that Court owes no deference to a trial “[t]his findings gleaned videotape court’s factual from a review of a that are subject testimony requiring weighing not the the trial court’s of credibility resolving Clay State, or ofconflicts in the evidence.” v. (1) (A) (2), (725 260) (2012). Hughes 822, Ga. n. 1 SE2d See (1), 636) (2015). 296 Ga. n. 5 But where the
245 trial court’s resolution of the factual issues turns on an part assessment of witness rather than conflicting testimony, exclusively on what is shown in a we defer to the trial court’s factual videotape, under the evidence” standard of review. See v. findings “any State 764, 296 Ga. n. 5 SE2d Chulpayev, (2), (770 808) (2015); Clay, 753, 1; Ga. at 825 n. v. 326 Ga. (1) (A) (2), McKinney App. 402, 402, n. 5 SE2d v. 306 Ga. (1), (755 315) (2014); Floyd, App. State Mohammed, n. 1 SE2d 304 Ga. (702 467) (2010); App. State 231-232 721) (2010).
Here, video, there was no audio included in the cell and phone thus the video did not resolve the conflict in the testimony regarding whethеr Bin-Wahad was toward the argumentative belligerent officers, and whether Hall told Bin-Wahad that he was regarding detained and to his arms behind his back before put attempting Furthermore, to handcuff him. resolution of the central factual — in this case whether Bin-Wahad his left arm dispute pulled away Hall, turned, from to stand when Hall attempted sought him, handcuff or whether Hall without Bin-Wahad warning pulled up — from a seated on the and threw him to the position porch ground was based in on the of the witnesses rather part confliсting testimony than on a review of the cell video. exclusively
Because resolution of the
issues in this case turned in
on witness
we defer to the trial court’s factual
part
testimony,
We therefore affirm the court’s
that Hall established
findings.
ruling
of the evidence that his use of force was reason-
by preponderance
circumstances,
able and
under the
him to immu-
entitling
Bunn,
23;
from
See
Judgment Boggs fully affirmed. specially. Judge, concurring fully specially.
PETERSON, I concur in the and all that I understand it to majority opinion I write to make clear of what that say separately my understanding As the the critical factual opinion says. majority opinion explains, was “whether Bin-Wahad his left arm dispute pulled away turned, and to stand when Hall to handcuff him” attempted sought Hall with reasonable to believe him (and thereby provided grounds an imminent “or whether Hall without threat), warning pulled Bin-Wahad from a seated on the and threw him to up position porch the ground.”
The video is not clear for us to determine with confidence enough was, which set of facts are true. If it we would owe no def- disputed erence to the trial court’s factual on this findings question, regard- *10 they part resolving conflicting less of whether were based in on wit- testimony. ness But we do owe deference here because the video alone dispute, does not resolve the factual and the trial court had to resolve conflicting testimony witness to decide the matter. Judge Boggs joins special
I am authorized to state that in this concurrence.
Decided October 2016. Tracy Attorney, Tanjuatco, Lawson, District Erman Graham J. Attorney, appellant. Assistant District for appellee. Martin, Keith C. HEALTHCARE,
A16A1990. EXTREMITY INC. et al. v. ACCESS AMERICA, TO CARE LLC et al. 529) BARNES, Presiding Judge. dispute
This case centers on a between several businesses over enforceability buyout agreement the relating of an arbitration clause in a joint Extremity Healthcare,
to a failed venture. Plaintiffs (“EHI”), Village Podiatry Group, (“Village Podiatry”), Inc. LLC — Extremity Marietta, ASC, EHI Vascular Solutions (“Vascular Solutions”) appeal LLC f/k/a LLC compеlling
the trial court’s order arbi- against America, tration of their claims Defendants Access to Care (“ATCA”) (“Sweet Anesthesia, LLC Dreams”) and Sweet Dreams Nurse Inc. dismissing plaintiffs the case. The contend that the compelling buyout agree- trial court erred in arbitration because the containing ment the arbitration clause was invalid and unenforce- plaintiffs able due to lack ofmutual assent and a mutual mistake. The also argue that the defendants waived enforcement ofthe arbitration participation litigation. clause based on their in this For the reasons properly below, discussed we conclude that the trial court ordered the case to arbitration and therefore affirm. party
Arbitration is a matter ofcontract and a cannot be required any dispute to submit to arbitration which he has agreed question Therefore, not so to submit. of arbitra- bility, agreement duty i.e., whether an creates a for the parties particular grievance, undeniably to arbitrate the is judicial an issue for determination.