State v. Remy

• Decision Date: 13 March 2020
• Docket Number: S19A1410
• Citation: 840 S.E.2d 385,308 Ga. 296
• Court: Georgia Supreme Court
• Parties: The STATE v. REMY.

308 Ga. 296

840 S.E.2d 385

The STATE

v.REMY.

S19A1410

Supreme Court of Georgia.

Decided: March 13, 2020

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, F. McDonald Wakeford, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, SW, Third Floor, Atlanta, Georgia 30318, for Appellant.

Brandon A. Bullard, Office of the Appellate Defender, 104 Marietta Street, NW, Suite 600 Atlanta, Georgia 30303, for Appellee.

Nahmias, Presiding Justice.

The State appeals the grant of a motion for immunity and dismissal of its criminal prosecution against appellee Paul Junior Remy. In March 2018, Remy was tried for murder and other crimes related to the shooting death of Jenario Sharone Stark.¹ After the jury had deliberated for a full day without reaching a verdict, the trial court declared a mistrial. Four days later, Remy filed a motion for immunity from prosecution under OCGA § 16-3-24.2, arguing that he shot Stark in defense of himself and others, see OCGA § 16-3-21 (a). Before the hearing on the immunity motion occurred, the State re-indicted Remy for the same incident, omitting a count of aggravated assault and adding a second charge of possession of a firearm by a convicted felon.² After the hearing, the trial court granted Remy immunity. The court then dismissed the new indictment on the ground that it was issued after a court-ordered deadline for the filing of new indictments.

On appeal, the State raises three alleged errors. First, the State contends that Remy was not entitled to file a motion for immunity after a mistrial. Second, the State argues that even if an immunity motion may be considered after the declaration of a mistrial, Remy was not entitled to immunity on the merits. Third, the State asserts the trial court erred when it dismissed the second indictment. For the reasons explained below, we affirm the trial court's judgment in part, reverse it in part, vacate it in part, and remand the case for further proceedings.

1. Prior to 2014, a felon in possession of a firearm generally could not assert a claim for immunity from prosecution under OCGA § 16-3-24.2 for crimes involving the use of deadly force. See State v. Burks , 285 Ga. 781, 782, 684 S.E.2d 269 (2009) (holding that the former version of OCGA § 16-3-24.2 did not apply if the defendant was unlawfully carrying a firearm). The former version of § 16-3-24.2 prohibited a person from seeking immunity predicated on justification if that person carried or possessed a weapon in violation of "Part 2 or 3 of Article 4 of Chapter 11 of [Title 16]," Part 3 of which includes OCGA § 16-11-131, which in turn prohibits felons from possessing firearms.³

In 2014, however, the General Assembly amended OCGA § 16-3-24.2 to eliminate the language referencing a violation of Part 3, thereby allowing defendants charged with violating OCGA § 16-11-131 to raise a claim of immunity. See Ga. L. 2014, p. 599, § 1-3.⁴ Thus, at the times pertinent to this case, felons charged with possession of a firearm in violation of OCGA § 16-11-131 were no longer categorically precluded by the final clause of OCGA § 16-3-24.2 from seeking immunity from criminal prosecution under that statute.

2. The State argues, however, that a motion for immunity under OCGA § 16-3-24.2 must be made before trial and, therefore, was unavailable to Remy because his case went through a full trial and was submitted to a jury before the court declared a mistrial. Although nothing in the language of OCGA § 16-3-24.2 requires an immunity motion to be filed pretrial, such motions are generally made before trial because a grant of immunity terminates a criminal prosecution. And we have held that a trial court errs when it refuses to consider before trial an immunity motion that was filed before trial. See Fair v. State , 284 Ga. 165, 166, 664 S.E.2d 227 (2008).

Even assuming that motions for immunity under OCGA § 16-3-24.2 must be made before trial, however, Remy is now back in a pretrial position. We recently explained that a defendant may file a motion for immunity under OCGA § 16-3-24.2 after the grant of a new trial because when a new trial is granted, it is " ‘as though no trial had been had.’ " State v. Hamilton , Case No. S19A1363, ––– Ga. ––––, ––––, 839 S.E.2d 560, 2020 WL 967006, at *3 (Feb. 28, 2020) (quoting OCGA § 5-5-48 ; emphasis omitted). The declaration of the mistrial put Remy in the same situation: "a mistrial ... is equivalent to no trial at all, and the case stands, when the mistrial is declared, as though it had never been entered upon." Augusta Ry. Co. v. Tennant , 98 Ga. 156, 157, 26 S.E. 481 (1896). See also Hayes v. State , 58 Ga. 35, 45-46 (1877) (holding that the State is not required to re-indict the defendant after a mistrial is declared, citing a case holding that re-indictment is not required after the grant of a new trial); Beecher v. State , 240 Ga. App. 457, 460, 523 S.E.2d 54 (1999) (holding that after a mistrial, the State was required to give notice of its intention to use prior convictions again before the second trial, citing a case that said such notice was required again after the defendant's convictions were reversed on appeal).

Accordingly, Remy was entitled to file a motion for immunity under OCGA § 16-3-24.2 after the trial court declared a mistrial.

3. The State contends next that the trial court erred when it concluded that Remy was entitled to immunity on the merits. To succeed on his immunity motion under OCGA § 16-3-24.3, Remy was required to show by a preponderance of the evidence that he acted in defense of himself or others. See Goodson v. State , 305 Ga. 246, 251, 824 S.E.2d 371 (2019). On appeal of an order granting or denying 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." State v. Bunn , 288 Ga. 20, 23, 701 S.E.2d 138 (2010) (citation and punctuation omitted). See also Mullins v. State , 287 Ga. 302, 302, 695 S.E.2d 621 (2010).

(a) Viewed in the light most favorable to upholding the trial court's ruling, the evidence shows the following.⁵ Stark and his girlfriend Ashley Lucas lived with Lucas's cousin, Chyna Tshitambwe, and Tshitambwe's toddler daughter in Tshitambwe's small studio apartment. Lucas testified that, on the morning of the incident, Stark dragged her by her hair and that the two of them engaged in a verbal and physical altercation. Tshitambwe testified that she saw Stark choke Lucas and punch her in the face. Wanting to get her child away from the altercation, Tshitambwe called two female friends, Jaimee Harris and Mary Shaw, to come over and take her and her daughter away from the apartment.

Harris and Shaw arrived along with two male companions, Alveo Seabrooks and Remy. Harris and Shaw entered Tshitambwe's apartment first. Shaw told Stark that he needed to get his belongings and leave. When Stark saw Seabrooks and Remy enter the apartment, he said, "Who are these b**ch ass n**gas?" Remy testified that he noticed a large bulge in Stark's pocket, which he believed to be a gun. Lucas testified that Stark was armed that morning with a 9mm handgun that he usually kept in his pocket or in a side holster.

Shaw and Remy testified that Stark threatened to beat Shaw. Remy testified that when he heard this threat and saw Stark moving towards Shaw and Harris, who was standing next to Shaw, he moved between them and punched Stark because he believed Stark meant to harm the women. Multiple witnesses testified that Stark and Remy began to "tussle." Remy testified that, during the struggle, he put his hand on Stark's pocket and was able to confirm Stark had a gun.

Witnesses testified that the two men fell over a sofa and onto the floor during their struggle, with Remy ending up on top of Stark. Remy testified he pulled his gun out and pointed it at Stark's chest, verbally demanding that Stark give up his gun. Remy testified that, rather than surrendering, Stark kept trying to pull out his gun, yelling that he had "a license to kill." Remy testified that he believed Stark was psychotic because Stark would not give up his gun even though Remy was armed and had the better of him. Remy then put his gun away and asked for Seabrooks’ assistance in disarming Stark, so Seabrooks entered the melee. Lucas testified that she and Harris also tried to get Stark's gun, but that she started fighting Harris after Harris punched Stark in the face.

Eventually, all the women left the apartment. Remy and Seabrooks continued to struggle with Stark, but they were unable to disarm him. At some point, the men separated. Remy testified that Stark reached for the gun in his pocket, but it caught on the fabric of his pants. In that brief moment, Remy pulled out his gun and fired once because he believed Stark was going to shoot him. Remy and Seabrooks then fled. When Lucas reentered the apartment, Stark was lying wounded

on the floor. Lucas testified that she rolled Stark over and found his gun on the floor underneath him. She testified that the gun's safety was off.

Based on this evidence, the trial court was authorized to find that Remy showed by a preponderance of the evidence that he shot Stark in self-defense. See State v. Green , 289 Ga. 802, 804, 716 S.E.2d 194 (2011) (affirming grant of immunity where decedent, who was "totally irrational," chose to attack even while aware that the defendant was armed with a knife).

(b) Nevertheless, the State contends that Remy's status as a convicted felon precluded the trial court's finding of immunity. We disagree. This Court recently held that, when read together, OCGA §§ 16-3-21 and 16-11-138⁶ create the following rule of...