Lightning v. State

• Decision Date: 26 March 2009
• Docket Number: No. A08A2053.,A08A2053.
• Citation: 676 S.E.2d 780
• Parties: LIGHTNING et al. v. The STATE.
• Court: Georgia Court of Appeals

676 S.E.2d 780

LIGHTNING et al. v. The STATE.

No. A08A2053.

Court of Appeals of Georgia.

March 26, 2009.

William T. Elsey, for appellants.

T. Joseph Campbell, Dist. Atty., Elizabeth M. York, Asst. Dist. Atty., for appellee.

BARNES, Judge.

Azizud Deen Lightning and his brother Forrest Mateen Lightning (collectively "the Lightnings") appeal their convictions for aggravated assault and simple battery. They contend the trial court erred by denying their motion for a hearing under OCGA § 16-3-24.2 seeking immunity from prosecution, by making certain charging errors, by denying their motion to be sentenced under the rule of lenity, and by denying their motion for a new trial. Finding no reversible error, we affirm.

When reviewing a criminal conviction, this court reviews the evidence in the light most favorable to the jury's verdict, and gives deference to the jury's determination of the proper weight and credibility to be given the evidence. Butler v. State, 273 Ga. 380, 382(1), 541 S.E.2d 653 (2001). Viewed in that light, the evidence shows that when the victim and his friend came to the Lightnings' residence, the victim was playing his car radio very loudly. After visiting for a while, the victim went to his truck for cigarettes and when he returned he and Azizud began arguing about the loud radio. According to a witness, Azizud told the victim to leave his house, but the victim denied this.

The argument became a fight. The victim thought Azizud was just joking until suddenly, out of nowhere, Azizud hit the victim in the face. Another man began choking the victim from behind, and he fell to the floor. Azizud straddled his arms and legs and Forrest kicked him in the head. The Lightnings and another man began stomping, kicking, and punching the victim. At some point the victim lost consciousness and when he woke and began to get up, Azizud knocked him down again. He rose again and Azizud told Forrest to leave the victim alone. The victim's face was bleeding, and Azizud told him to leave.

The victim and his friend left and the next day the victim's brother took him to the emergency room. A doctor testified that the victim had a fractured nose and jaw that required surgery to repair. The victim also had black eyes and multiple bruises on his arms and legs. Photographs of the victim's face depicting his injuries when he arrived at the hospital were introduced in evidence. The victim continued to have pain and numbness in his jaw at the time of the trial.

Forrest testified that he was trying to break up a fight between the victim and his brother Azizud when the victim hit him. He denied kicking the victim. Azizud testified that he spoke with the victim about not playing his radio so loud, but the victim said he would do what he wanted to and grabbed Azizud's shoulder hard, causing him pain. Azizud testified he pushed the victim's hand away and told him to leave. Then he pushed the victim, causing him to fall over a cooler and strike his head on the rail. According to Azizud, the victim then hit him and they began fighting. When Forrest and another person tried to break up the fight, the victim hit Forrest. The fight stopped and Azizud again told the victim to leave, but the victim came toward him again. Azizud grabbed him by the pants leg, causing the victim to flip and hit his face on the floor. Azizud testified that no one kicked the victim in the face.

After being charged on the applicable law and hearing the argument of counsel, the jury found Azizud and Forrest guilty of aggravated assault and battery.

1. The Lightnings first contend the trial court erred by denying their motion for a hearing under OCGA § 16-3-24.2 seeking a grant of immunity. The record shows that two days before the trial began, the Lightnings filed a motion titled "Motion for Grant of Immunity From Criminal Prosecution" that included a request for a hearing. On the morning of trial, the Lightnings asked the court to determine whether they were entitled to immunity and if not, whether they were entitled to an immunity charge.

OCGA § 16-3-24.2 provides:

A person who uses threats or force in accordance with Code Section 16-3-21 [use of force in defense of self or others], 16-3-23 [use of force in defense of habitation], 16-3-23.1 [no duty to retreat], or 16-3-24 [use of force in defense of property other than a habitation] shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of this title.

In Fair v. State, 284 Ga. 165, 166(1), 664 S.E.2d 227 (2008), our Supreme Court held that a trial court must rule on a motion for immunity before trial. In doing so, the court approved our decision in Boggs v. State, 261 Ga.App. 104, 106, 581 S.E.2d 722 (2003), stating that "the decision as to whether a person is immune under OCGA § 16-3-24.2 must be determined by the trial court [as a matter of law] before the trial of that person commences." This principle was reaffirmed in Millen v. State, 267 Ga.App. 879, 883(2)(b), 600 S.E.2d 604 (2004).

The trial court has the duty to determine before trial whether a person is immune from prosecution based on OCGA § 16-3-24.2. As we said in Boggs:

According to Black's Law Dictionary, one who is immune is exempt or free from duty or penalty, [cit.] and prosecution is defined as "(a) criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." Therefore, by the plain meaning of [immune from prosecution] and the other language in the statute, the statute must be construed to bar criminal proceedings against persons who use force under the circumstances set forth in OCGA § 16-3-23 or § 16-3-24. Further, as the statute provides that such person "shall be immune from criminal prosecution," the decision as to whether a person is immune under OCGA § 16-3-24.2 must be determined by the trial court [as a matter of law] before the trial of that person commences.

(Footnote omitted; emphasis supplied.) Id. at 106, 581 S.E.2d 722. Moreover, "[a]s a potential bar to criminal proceedings which must be determined prior to a trial, immunity represents a far greater right than any encompassed by an affirmative defense, which may be asserted during trial but cannot stop a trial altogether." Bunn v. State, 284 Ga. 410, 413(3), 667 S.E.2d 605 (2008). The trial court has the duty to determine before trial whether to dismiss a case based upon an evidentiary hearing on the issue of self-defense under OCGA § 16-3-24.2. Fair v. State, supra, 284 Ga. at 166(1), 664 S.E.2d 227.

Nevertheless, in this case the Lightnings waived any error arising from the trial court's failure to determine whether to dismiss the case because they did not seek a ruling on the motion prior to trial. Instead, they stated to the trial court that they were ready for trial "subject to two motions in limine," which they agreed the court could hear after the jury was selected.

After a discussion, counsel for the Lightnings stated:

I presume and I'm sure I presume correctly that you have no intention of dismissing this case under this motion. Assuming that this is correct, then the least I would ask for is that your agreement prior to the beginning of this trial that I am indeed entitled to an instruction to the jury from that case, I mean, from that legislation, which is [OCGA § 16-3-24.2], as amended July 21st, 2006.

The trial court found no basis in the statute or case law giving it "the right to completely dismiss a case based upon an evidentiary hearing on the limited issue of self-defense," but determined that if the Lightnings presented as much evidence as their counsel's client did in a particular previous case it would give a charge of self-defense. The Lightnings said:

[L]et me make it easy what my position is. I'm disappointed that you're not going to dismiss it but secondly, that I would accept at this stage that if you say that if the evidence supports self-defense within the confines of [OCGA § 16-3-24.2] then you will give me that instruction that will suit me just fine in this case. I will take that as a minimum.

The court said if the defendants presented evidence of self-defense, it would charge on self-defense and would consider during the trial whether to charge language that a person who uses threats or force in accordance with the principles of self-defense "shall be immune from criminal prosecutions." After further colloquy on policy considerations and legislative intent defense counsel stated, "I would be happy if you would just say I'll listen to the evidence carefully and at the charge conference I'll go back over it again." The court affirmed that it would do so, and defense counsel responded, "That doesn't comply with my understanding of the statute but rather than go where I know you're not going to go anyway and then I'll be happy to fold my tent at that stage, at this stage. . . ."

By focusing upon receiving a jury instruction on self-defense rather than obtaining a ruling from the trial judge on their motion, the Lightnings acquiesced in the trial court's ruling. "A party cannot submit to a ruling or acquiesce to it (or, as here, solicit it), then complain about the ruling on appeal. [Cit.]" Boone v. State, 229 Ga.App. 379, 381(4), 494 S.E.2d 100 (1997). A party "must stand his ground. Acquiescence deprives him of the right to complain further. [Cit.]" Whisnant v. State, 178 Ga.App. 742, 744(2), 344 S.E.2d 536 (1986).

2. The Lightnings next contend the trial court erred by refusing to give their requested charge number two, based upon Henderson v. State, 227 Ga. 68, 83-84(9), 179 S.E.2d 76 (1970), that

[o]ne who is assaulted by another need no longer stop and determine whether assault constitutes attempt to commit a...