immunity hearing in Georgia

2020Calmer filed a pretrial motion for immunity from prosecution under OCGA § 16-3-24.2, which provides that a defendant is immune from criminal prosecution if he used justifiable force to protect himself or his home.7 To avoid trial based on a justification defense presented at an immunity hearing, “a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence.” Bunn v. State, 284 Ga. 410, 413 (3) ( 667 SE2d 605 ) (2008).

2020Calmer filed a pretrial motion for immunity from prosecution under OCGA § 16-3-24.2, which provides that a defendant is immune from criminal prosecution if he used justifiable force to protect himself or his home.7 To avoid trial based on a justification defense presented at an immunity hearing, “a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence.” Bunn v. State, 284 Ga. 410, 413 (3) ( 667 SE2d 605 ) (2008).

2017Importantly, we acknowledged as well that sovereign immunity at common law, as it long had been understood by Georgia courts, and the sovereign immunity reserved by the 1974 amendment were one and the same: “Because of the adoption of this constitutional amendment, and it is now effective as a part of our Constitution, we hold that the immunity rule as it has heretofore existed in this state cannot be abrogated or modified by this [C]ourt.” 14 Id. (emphasis added).

2017Ga. L. 1973, p. 1489. 22 “Because of the adoption of this constitutional amendment, and it is now effective as a part of our Constitution, we hold that the immunity rule as it has heretofore existed in this state cannot be abrogated or modified by this [C]ourt.”14 Id. (emphasis added).

2022Although the State presented only one witness at the immunity hearing in this case, and the trial court’s ruling with respect to the pretrial motion for immunity must be based solely on the evidence presented at the pretrial hearing, see Sifuentes v. State, 293 Ga. 441, 444 (2), n. 3 ( 746 SE2d 127 ) (2013), the transcript from the hearing – viewed under the above standards – supports the trial court’s conclusion that Jennings failed to demonstrate by a preponderance of the evidence that he acted in self-defense.

2022Although the State presented only one witness at the immunity hearing in this case, and the trial court’s ruling with respect to the pretrial motion for immunity must be based solely on the evidence presented at the pretrial hearing, see Sifuentes v. State, 293 Ga. 441, 444 (2), n. 3 ( 746 SE2d 127 ) (2013), the transcript from the hearing – viewed under the above standards – supports the trial court’s conclusion that Jennings failed to demonstrate by a preponderance of the evidence that he acted in self-defense.

2018We agree and reverse. *824 "To avoid trial based on a justification defense presented at an immunity hearing, 'a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence.' " Cotton v. State , 297 Ga. 257 , 258 (2), 773 S.E.2d 242 (2015), quoting Bunn v. State , 284 Ga. 410 , 413 (3), 667 S.E.2d 605 (2008).

2018We agree and reverse. *824 "To avoid trial based on a justification defense presented at an immunity hearing, 'a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence.' " Cotton v. State , 297 Ga. 257 , 258 (2), 773 S.E.2d 242 (2015), quoting Bunn v. State , 284 Ga. 410 , 413 (3), 667 S.E.2d 605 (2008).

2024See also Rivera v. Washington, 298 Ga. 770, 778 ( 784 SE2d 775 ) (2016) (“[A] defendant asserting an immunity defense may move to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1), on consideration of which, the trial court may hear evidence and make relevant factual findings to decide the threshold issue.”). 2 stopped at an intersection at the time, turned to follow the Marquis, immediately activated his blue lights, and attempted to execute a traffic stop based on the seat belt violation.3 Prosser noticed the passenger “sit up and then quickly sit back,” and he not

2024See also Rivera v. Washington, 298 Ga. 770, 778 ( 784 SE2d 775 ) (2016) (“[A] defendant asserting an immunity defense may move to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1), on consideration of which, the trial court may hear evidence and make relevant factual findings to decide the threshold issue.”). 2 stopped at an intersection at the time, turned to follow the Marquis, immediately activated his blue lights, and attempted to execute a traffic stop based on the seat belt violation.3 Prosser noticed the passenger “sit up and then quickly sit back,” and he not

2018See Robinson v. State , 277 Ga. 75 , 77 (2), 586 S.E.2d 313 (2003) (appellant could not show prejudice from counsel's failure to seek funds to retain an expert to refute medical examiner's testimony, given physical evidence and eyewitness testimony that was consistent with medical examiner's position); Smith v. State , 309 Ga. App. 241 , 247-248 (3) (c), 709 S.E.2d 823 (2011) (appellant could not demonstrate how failure to pursue motion for immunity under OCGA § 16-3-24.2 harmed him, given that evidence amounted to a "swearing contest" between victim and appellant, who could point to no additi

2018See Robinson v. State , 277 Ga. 75 , 77 (2), 586 S.E.2d 313 (2003) (appellant could not show prejudice from counsel's failure to seek funds to retain an expert to refute medical examiner's testimony, given physical evidence and eyewitness testimony that was consistent with medical examiner's position); Smith v. State , 309 Ga. App. 241 , 247-248 (3) (c), 709 S.E.2d 823 (2011) (appellant could not demonstrate how failure to pursue motion for immunity under OCGA § 16-3-24.2 harmed him, given that evidence amounted to a "swearing contest" between victim and appellant, who could point to no additi

2012On a motion for summary judgment, if the applicable law was clearly established at the time the defendant acted [and it prohibited the action], the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” (citations omitted) Porter v. Massarelli, 303 Ga. App. 91, 93 ( 692 SE2d 722 ) (2010).

2012On a motion for summary judgment, if the applicable law was clearly established at the time the defendant acted [and it prohibited the action], the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” (citations omitted) Porter v. Massarelli, 303 Ga. App. 91, 93 ( 692 SE2d 722 ) (2010).

1994Cooper v. Swofford, 258 Ga. 143 ( 368 SE2d 518 ) (1988); Hennessy v. Webb, 245 Ga. 329 ( 264 SE2d 878 ) (1980); Truelove v. Wilson, 159 Ga. App. 906, 907 ( 285 SE2d 556 ) (1981).” Guthrie v. Irons, 211 Ga. App. 502 (1) ( 439 SE2d 732 ).

1994Cooper v. Swofford, 258 Ga. 143 ( 368 SE2d 518 ) (1988); Hennessy v. Webb, 245 Ga. 329 ( 264 SE2d 878 ) (1980); Truelove v. Wilson, 159 Ga. App. 906, 907 ( 285 SE2d 556 ) (1981).” Guthrie v. Irons, 211 Ga. App. 502 (1) ( 439 SE2d 732 ).

2020Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.”14 “A person who uses threats or force in accordance with OCGA § 16-3-21 ‘shall be immune from criminal prosecution therefor,’ except in certain circumstances not at issue here.”15 OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against 12 See State v. Yapo, 296 Ga. App. 158, 159 (1) ( 674

2020Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.”14 “A person who uses threats or force in accordance with OCGA § 16-3-21 ‘shall be immune from criminal prosecution therefor,’ except in certain circumstances not at issue here.”15 OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against 12 See State v. Yapo, 296 Ga. App. 158, 159 (1) (674

2018See Robinson v. State , 277 Ga. 75 , 77 (2), 586 S.E.2d 313 (2003) (appellant could not show prejudice from counsel's failure to seek funds to retain an expert to refute medical examiner's testimony, given physical evidence and eyewitness testimony that was consistent with medical examiner's position); Smith v. State , 309 Ga. App. 241 , 247-248 (3) (c), 709 S.E.2d 823 (2011) (appellant could not demonstrate how failure to pursue motion for immunity under OCGA § 16-3-24.2 harmed him, given that evidence amounted to a "swearing contest" between victim and appellant, who could point to no additi

2018See Robinson v. State , 277 Ga. 75 , 77 (2), 586 S.E.2d 313 (2003) (appellant could not show prejudice from counsel's failure to seek funds to retain an expert to refute medical examiner's testimony, given physical evidence and eyewitness testimony that was consistent with medical examiner's position); Smith v. State , 309 Ga. App. 241 , 247-248 (3) (c), 709 S.E.2d 823 (2011) (appellant could not demonstrate how failure to pursue motion for immunity under OCGA § 16-3-24.2 harmed him, given that evidence amounted to a "swearing contest" between victim and appellant, who could point to no additi

1977(No implementation of this amendment has been made by the General Assembly.) This amendment concludes with the sentence: 'Nothing contained herein shall constitute a waiver of the immunity of the State from suit, but such sovereign immunity is expressly reserved except to the extent of any waiver of immunity provided in this Constitution and such waiver or qualification of immunity as is now or may hereafter be provided by act of the General Assembly.’ "In Sheley v. Board of Public Ed. &c., 233 Ga. 487 ( 212 SE2d 627 ) (1975), this court reassessed the rule of sovereign immunity in the light o

1977(No implementation of this amendment has been made by the General Assembly.) This amendment concludes with the sentence: 'Nothing contained herein shall constitute a waiver of the immunity of the State from suit, but such sovereign immunity is expressly reserved except to the extent of any waiver of immunity provided in this Constitution and such waiver or qualification of immunity as is now or may hereafter be provided by act of the General Assembly.’ "In Sheley v. Board of Public Ed. &c., 233 Ga. 487 ( 212 SE2d 627 ) (1975), this court reassessed the rule of sovereign immunity in the light o

2026Under these circumstances, we must reverse the trial court’s order in this regard and remand the 12 Cox Enters., Inc. v. Nix, 273 Ga. 152, 153 ( 538 SE2d 449 ) (2000).

2026Under these circumstances, we must reverse the trial court’s order in this regard and remand the 12 Cox Enters., Inc. v. Nix, 273 Ga. 152, 153 ( 538 SE2d 449 ) (2000).

2026Cf. Perkins v. State, 313 Ga. 885, 895 (2022) (concluding trial court implicitly denied motion for mistrial where trial court adjourned for the day and took the matter under advisement before ultimately giving a curative instruction). 16 over at [Frazier’s] house, because he went over there and threat- ened the old man, and the cops were called.” Benson confirmed that he knew nothing else about what had transpired between Timothy and Frazier.

2023See Ellison v. State, 313 Ga. 107, 111 (868 SE2d 189) (2022) (given the evidence presented, the trial court was authorized to reject the defendant’s self-serving testimony and conclude he had not met his burden to prove justification); Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial court was authorized to conclude defendant’s actions were motivated by aggression or anger and to deny immunity from prosecution where the physical evidence and defendant’s statements provided some evidence that the encounter did not occur in the manner she alleged).

2023See Ellison v. State, 313 Ga. 107, 111 (868 SE2d 189) (2022) (given the evidence presented, the trial court was authorized to reject the defendant’s self-serving testimony and conclude he had not met his burden to prove justification); Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial court was authorized to conclude defendant’s actions were motivated by aggression or anger and to deny immunity from prosecution where the physical evidence and defendant’s statements provided some evidence that the encounter did not occur in the manner she alleged).

2023See Ellison v. State, 313 Ga. 107, 111 (868 SE2d 189) (2022) (given the evidence presented, the trial court was authorized to reject the defendant’s self-serving testimony and conclude he had not met his burden to prove justification); Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial court was authorized to conclude defendant’s actions were motivated by aggression or anger and to deny immunity from prosecution where the physical evidence and defendant’s statements provided some evidence that the encounter did not occur in the manner she alleged).

2023See Ellison v. State, 313 Ga. 107, 111 (868 SE2d 189) (2022) (given the evidence presented, the trial court was authorized to reject the defendant’s self-serving testimony and conclude he had not met his burden to prove justification); Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (trial court was authorized to conclude defendant’s actions were motivated by aggression or anger and to deny immunity from prosecution where the physical evidence and defendant’s statements provided some evidence that the encounter did not occur in the manner she alleged).

2022Cf. Bordeaux, 352 Ga. App. at 403 (4) (“Although judges are immune from liability in civil actions seeking damages for acts performed in their judicial capacity, this immunity does not bar claims for declaratory or injunctive relief.” (punctuation omitted)). 30 See supra note 29. 31 Lathrop v. Deal, 301 Ga. 408, 421 (II) (B) ( 801 SE2d 867 ) (2017); accord Price v. Dept. of Transp., 257 Ga. 535, 537 ( 361 SE2d 146 ) (1987). 32 Lathrop, 301 Ga. at 421 (II) (B). 15 in “their official capacities—since a suit against a county officer in his official capacity is a suit against the county itself—enj

2022Cf. Bordeaux, 352 Ga. App. at 403 (4) (“Although judges are immune from liability in civil actions seeking damages for acts performed in their judicial capacity, this immunity does not bar claims for declaratory or injunctive relief.” (punctuation omitted)). 30 See supra note 29. 31 Lathrop v. Deal, 301 Ga. 408, 421 (II) (B) ( 801 SE2d 867 ) (2017); accord Price v. Dept. of Transp., 257 Ga. 535, 537 ( 361 SE2d 146 ) (1987). 32 Lathrop, 301 Ga. at 421 (II) (B). 15 in “their official capacities—since a suit against a county officer in his official capacity is a suit against the county itself—enj

2022See generally City of Gainesville v. Dodd, 275 Ga. 834, 838-839 ( 573 SE2d 369 ) (2002) (holding that appellate courts retain discretion in determining whether to apply the right-for-any-reason rule and consider alternative legal theories not addressed by the trial court, or to vacate order and remand for the trial court to consider alternative legal theories in the first instance).

2022See generally City of Gainesville v. Dodd, 275 Ga. 834, 838-839 ( 573 SE2d 369 ) (2002) (holding that appellate courts retain discretion in determining whether to apply the right-for-any-reason rule and consider alternative legal theories not addressed by the trial court, or to vacate order and remand for the trial court to consider alternative legal theories in the first instance).

2022Cf. Bordeaux, 352 Ga. App. at 403 (4) (“Although judges are immune from liability in civil actions seeking damages for acts performed in their judicial capacity, this immunity does not bar claims for declaratory or injunctive relief.” (punctuation omitted)). 30 See supra note 29. 31 Lathrop v. Deal, 301 Ga. 408, 421 (II) (B) ( 801 SE2d 867 ) (2017); accord Price v. Dept. of Transp., 257 Ga. 535, 537 ( 361 SE2d 146 ) (1987). 32 Lathrop, 301 Ga. at 421 (II) (B). 15 in “their official capacities—since a suit against a county officer in his official capacity is a suit against the county itself—enj

2022Cf. Bordeaux, 352 Ga. App. at 403 (4) (“Although judges are immune from liability in civil actions seeking damages for acts performed in their judicial capacity, this immunity does not bar claims for declaratory or injunctive relief.” (punctuation omitted)). 30 See supra note 29. 31 Lathrop v. Deal, 301 Ga. 408, 421 (II) (B) ( 801 SE2d 867 ) (2017); accord Price v. Dept. of Transp., 257 Ga. 535, 537 ( 361 SE2d 146 ) (1987). 32 Lathrop, 301 Ga. at 421 (II) (B). 15 in “their official capacities—since a suit against a county officer in his official capacity is a suit against the county itself—enj

2022This omission may explain why the trial court concluded it was authorized to grant immunity to Brown on Counts 1, 2, 3, 7, 8, 9, 10, and 11 while leaving Count 6 unaffected. 14 Nevertheless, this case illustrates why it is important for trial courts to include clear and thorough findings of fact and conclusions of law in their orders. 21 regardless of whether Brown shot his gun in self-defense when he shot Roscoe, Brown remains under indictment for armed robbery, and, as a matter of law, is not entitled to immunity from prosecution on the others charges involving the use of force intended or l

2022This omission may explain why the trial court concluded it was authorized to grant immunity to Brown on Counts 1, 2, 3, 7, 8, 9, 10, and 11 while leaving Count 6 unaffected. 14 Nevertheless, this case illustrates why it is important for trial courts to include clear and thorough findings of fact and conclusions of law in their orders. 21 regardless of whether Brown shot his gun in self-defense when he shot Roscoe, Brown remains under indictment for armed robbery, and, as a matter of law, is not entitled to immunity from prosecution on the others charges involving the use of force intended or l

2022Cf. Bordeaux, 352 Ga. App. at 403 (4) (“Although judges are immune from liability in civil actions seeking damages for acts performed in their judicial capacity, this immunity does not bar claims for declaratory or injunctive relief.” (punctuation omitted)). 30 See supra note 29. 31 Lathrop v. Deal, 301 Ga. 408, 421 (II) (B) ( 801 SE2d 867 ) (2017); accord Price v. Dept. of Transp., 257 Ga. 535, 537 ( 361 SE2d 146 ) (1987). 32 Lathrop, 301 Ga. at 421 (II) (B). 15 in “their official capacities—since a suit against a county officer in his official capacity is a suit against the county itself—enj

2022Cf. Bordeaux, 352 Ga. App. at 403 (4) (“Although judges are immune from liability in civil actions seeking damages for acts performed in their judicial capacity, this immunity does not bar claims for declaratory or injunctive relief.” (punctuation omitted)). 30 See supra note 29. 31 Lathrop v. Deal, 301 Ga. 408, 421 (II) (B) ( 801 SE2d 867 ) (2017); accord Price v. Dept. of Transp., 257 Ga. 535, 537 ( 361 SE2d 146 ) (1987). 32 Lathrop, 301 Ga. at 421 (II) (B). 15 in “their official capacities—since a suit against a county officer in his official capacity is a suit against the county itself—enj

2021See White v. State, 305 Ga. 111, 121 (3) (823 SE2d 794) (2019) (Court of Appeals is bound by older precedent from that court “until 9 such time as the older law [is] properly overruled by that court or reversed or overruled by this Court.”).

2021See White v. State, 305 Ga. 111, 121 (3) (823 SE2d 794) (2019) (Court of Appeals is bound by older precedent from that court “until 9 such time as the older law [is] properly overruled by that court or reversed or overruled by this Court.”).

2021See Lanier v. State, 310 Ga. 520, 525 (852 SE2d 509) (2020) (“The fact that appellate counsel would have pursued the defense in different ways does not render trial counsel ineffective.”) (citation and punctuation omitted); Szorcsik v. State, 303 Ga. 737, 743 (814 SE2d 708) (2018) (“[W]hile other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel . . . made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representat

2021See Lanier v. State, 310 Ga. 520, 525 (852 SE2d 509) (2020) (“The fact that appellate counsel would have pursued the defense in different ways does not render trial counsel ineffective.”) (citation and punctuation omitted); Szorcsik v. State, 303 Ga. 737, 743 (814 SE2d 708) (2018) (“[W]hile other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel . . . made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representat

2021See Lanier v. State, 310 Ga. 520, 525 ( 852 SE2d 509 ) (2020) (“The fact that appellate counsel would have pursued the defense in different ways does not render trial counsel ineffective.”) (citation and punctuation omitted); Szorcsik v. State, 303 Ga. 737, 743 ( 814 SE2d 708 ) (2018) (“[W]hile other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel . . . made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the represe

2021See Lanier v. State, 310 Ga. 520, 525 (852 SE2d 509) (2020) (“The fact that appellate counsel would have pursued the defense in different ways does not render trial counsel ineffective.”) (citation and punctuation omitted); Szorcsik v. State, 303 Ga. 737, 743 (814 SE2d 708) (2018) (“[W]hile other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel . . . made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representat

2021See id. at 300 . 8 (emphasis omitted) testifying before trial at an immunity hearing and gaining the potential benefit of forgoing a trial entirely “would have been strategically sound.” But even if requesting an immunity hearing would have been a reasonable strategy, that does not mean that trial counsel’s different strategy was objectively unreasonable.

2021See id. at 300. 8 trial if he had any hope of acquittal on self-defense grounds,” (emphasis omitted) testifying before trial at an immunity hearing and gaining the potential benefit of forgoing a trial entirely “would have been strategically sound.” But even if requesting an immunity hearing would have been a reasonable strategy, that does not mean that trial counsel’s different strategy was objectively unreasonable.

2020Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.”14 “A person who uses threats or force in accordance with OCGA § 16-3-21 ‘shall be immune from criminal prosecution therefor,’ except in certain circumstances not at issue here.”15 OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against 12 See State v. Yapo, 296 Ga. App. 158, 159 (1) (674

2020Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.”14 “A person who uses threats or force in accordance with OCGA § 16-3-21 ‘shall be immune from criminal prosecution therefor,’ except in certain circumstances not at issue here.”15 OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against 12 See State v. Yapo, 296 Ga. App. 158, 159 (1) (674

2020Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.”14 “A person who uses threats or force in accordance with OCGA § 16-3-21 ‘shall be immune from criminal prosecution therefor,’ except in certain circumstances not at issue here.”15 OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against 12 See State v. Yapo, 296 Ga. App. 158, 159 (1) (674

2020Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.”14 “A person who uses threats or force in accordance with OCGA § 16-3-21 ‘shall be immune from criminal prosecution therefor,’ except in certain circumstances not at issue here.”15 OCGA § 16-3-21 (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against 12 See State v. Yapo, 296 Ga. App. 158, 159 (1) (674