Ellison v. State ( 2022 )

In the Supreme Court of Georgia
Decided: January 19, 2022
S22A0041. ELLISON v. THE STATE.
PETERSON, Justice.
Emanuel Ellison appeals his convictions for felony murder and
other offenses stemming from the fatal shooting of Kentrealvist
Malcom during an argument at an apartment complex. 1 Ellison’s
1 The shooting took place on May 16, 2014. On July 18, 2014, a Walton
County grand jury indicted Ellison for malice murder, two counts of felony
murder, aggravated assault, possession of a firearm by a convicted felon, two
counts of possession of a firearm during the commission of a felony, and
tampering with evidence. Ellison filed a motion for immunity from prosecution
under OCGA § 16-3-24.2. At a September 2017 evidentiary hearing, the trial
court issued an oral ruling denying the motion. The case was tried from
October 2 to 6, 2017, and a jury found Ellison not guilty of malice murder and
one of the counts of possession of a firearm during the commission of a felony,
but guilty of both counts of felony murder and all other charged offenses. On
November 15, 2017, the trial court sentenced Ellison to serve life in prison
without the possibility of parole for one count of felony murder, a consecutive
five-year sentence for possession of a firearm during the commission of a
felony, a concurrent five-year sentence for possession of a firearm by a
convicted felon, and a concurrent 12-month sentence on the tampering with
evidence count; the other counts merged or were vacated by operation of law.
On November 17, 2017, Ellison filed a motion for new trial, which was amended
by appellate counsel on May 1, 2020. The trial court denied the motion in an
sole claim of error is that the trial court erred in denying his motion
for immunity from prosecution under OCGA § 16-3-24.2 based on a
justification defense. But the record supports at least one of the trial
court’s two bases for its ruling — an adverse credibility
determination — and so we affirm.
As the trial court’s ruling on a motion for immunity under
OCGA § 16-3-24.2 must be based solely on the evidence presented at
the pretrial hearing on the motion, our review of Ellison’s argument
is limited to that evidence as well. See Sifuentes v. State, 293 Ga.
441, 444-445 (2) & n.3 (746 SE2d 127) (2013). The evidence at the
pretrial hearing showed that Ellison frequented an apartment
complex where his mother and sister resided. On direct
examination, Ellison testified as follows.
Malcom had become embroiled in a series of physical
altercations at the apartment complex, some involving firearms. In
May 2014, Ellison “assisted” law enforcement officers in arresting
order entered on July 2, 2021. Ellison filed a timely notice of appeal, and the
case was docketed to this Court’s term beginning in December 2021 and
submitted for a decision on the briefs.
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Malcom for various offenses. When Ellison next encountered
Malcom in the neighborhood, Malcom was “hostile” toward Ellison.
On May 16, Ellison was visiting with his wife, children, and
other family members in front of his mother’s apartment when he
saw Malcom beating a teenage girl. After Ellison’s mother argued
with Malcom, Malcom left the area, but Ellison remarked to his
mother that he thought Malcom would return with a gun. When
Malcom did return, he made “a gun symbol” over the head of
Ellison’s mother. Ellison repeatedly asked Malcom to leave the area,
but Malcom instead made statements such as, “We run this s**t,”
and “BOSS run this s**t.” “BOSS” was a reference to Malcom’s
Gangster Disciples street gang. Malcom ultimately began pulling a
firearm out of his pocket, at which point Ellison “popped off” and
shot him out of fear for the lives of his family members.
Malcom then began to back away, but Ellison did not even
realize that he had hit Malcom. Malcom “trot[ted]” away, still
holding his gun and saying, “Boot up” and “Get the gun.” Ellison fled
the scene, fearful and panicking. He turned himself in to the police
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after spending time with family. Ellison had been in a gang — the
Black Gangster Disciples, which was different from the Gangster
Disciples — but had not been affiliated with it for the previous 16
years.
On cross-examination, however, a different picture emerged.
Ellison acknowledged that he regularly carried a firearm despite
being a convicted felon2 and pulled a gun out of his own coat pocket
when he shot Malcom. He also acknowledged that he bumped chests
with Malcom during their May 16 altercation. And Ellison
acknowledged that he told the police that he had thrown his gun into
Lake Oconee, when in fact he had thrown it into a dumpster. The
State also introduced two series of Facebook posts by Ellison, one
from February 2013 and the other from March 2014. In the February
2013 posts, Ellison appeared to warn a “window peeper” that Ellison
might respond with violence if the “peeper” came back to Ellison’s
2 Although the details of Ellison’s criminal background were not
thoroughly developed at the immunity hearing, at trial it was shown that in
2009, Ellison pleaded guilty to possession of a firearm by a convicted felon and
discharge of a firearm on or near a public highway. The charging document in
that case referenced a 2002 felony cocaine-possession conviction.
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home; noting that he had “been in and out of prison” his whole life,
Ellison said that he would not “lose one day of sleep” over “takin one
less n***a out [of the] world.” In the March 2014 posts, Ellison
appeared to discuss some sort of theft, saying that his “name [was]
on everything” and that he would “DIE for mine[.]” He said that
certain people were “bout to catch dis rapid fire over here” and that
he had “enough clips[,]” adding, “I shoot shot outlawed in all 50
states[.]” In his testimony, Ellison tried to explain his Facebook
posts by pointing to property crimes by gang members and an
incident involving a peeping tom.
Ellison called one other witness, a detective who testified that
Malcom was a known Gangster Disciple operating in the area
surrounding the apartment complex at the time of the shooting. The
detective also testified that within a couple of days before Malcom
was shot, Malcom was arrested at the apartment complex on an
outstanding warrant, and arresting officers located in the
apartment a gun of which Malcom claimed ownership. The detective
testified that shortly before Malcom’s arrest, he received
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information that Malcom had been “terrorizing” the neighborhood
and “pulling guns on people.”
The State presented testimony at the hearing from three
associates of Malcom. Jamal Johnson, a friend of Malcom, testified
that he witnessed the May 16 argument between Ellison and
Malcom, as well as the shooting. Johnson testified that he did not
see any physical contact between the two, except perhaps Ellison
pushing Malcom away, and did not see Malcom appear to reach for
a gun or see a gun in Malcom’s hands. Another witness, Malcom’s
cousin Jabbarrius Green, denied seeing the shooting itself, but said
he was with Malcom before the shooting and saw him after, and did
not see Malcom with a gun that day. Another relative of Malcom,
Keshaoun Jones, testified that he saw Malcom running and holding
a gun just after a gunshot rang out, but also said he subsequently
heard Malcom say, “Go get my gun.” All three witnesses disclaimed
familiarity with the Gangster Disciples gang.
The trial court issued an oral ruling denying the motion for
immunity at the end of the hearing. The court ruled that Ellison was
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statutorily precluded from pretrial immunity because he was a
convicted felon who had acted while in possession of a firearm.
Alternatively, the court ruled that Ellison had not carried his
burden of showing that the shooting was justified under a “more
probable than not” standard, saying that Ellison was not credible
because he admittedly lied to police about the incident and “the only
evidence” that he had presented was his own testimony as a
convicted felon.
The case proceeded to trial later in 2017. Ellison again testified
that he shot Malcom after Malcom pulled a gun. The jury found
Ellison not guilty of malice murder but guilty of felony murder and
other offenses. The trial court denied Ellison’s motion for new trial,
in which he argued that the court had erred in denying his motion
for immunity. Ellison now appeals.
Ellison argues that he met his burden of showing by a
preponderance of the evidence that he was acting in defense of
himself and his family when he shot Malcom and that the trial court
thus erred in denying his motion for immunity pursuant to OCGA §
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16-3-24.2. We conclude that the trial court did not err in denying the
motion.
With some exceptions, a person who uses threats or force in
accordance with OCGA § 16-3-21 shall be immune from criminal
prosecution. See OCGA § 16-3-24.2. 3 OCGA § 16-3-21 (a) provides
that a person generally “is justified in using force which is intended
or likely to cause death or great bodily harm . . . if he or she
reasonably believes that such force is necessary to prevent death or
great bodily injury to himself or herself or a third person.” To prevail
on a motion for immunity under OCGA § 16-3-24.2, a defendant
must establish his justification defense by a preponderance of the
3 Ellison argues that the trial court erred in concluding that a 2014
amendment to OCGA § 16-3-24.2 does not apply to his case. Prior to July 1,
2014, the immunity statute excluded from pretrial immunity persons who used
a weapon that they carried or possessed in violation of Title 16, Chapter 11,
Article 4, Part 3, which includes OCGA § 16-11-131, the felon-in-possession
statute. The General Assembly removed that exclusion effective July 1, 2014.
See Ga. L. 2014, pp. 599, 602-603, § 1-3; Johnson v. State, 308 Ga. 141, 146 n.8
(839 SE2d 521) (2020). The trial court apparently concluded that Ellison could
not take advantage of the amendment because the crimes charged took place
prior to its effective date. Ellison argues that the new statute applies because
it took effect prior to his immunity hearing. The State agrees with Ellison that
the new statute applies. We do not decide this issue, because we conclude that
the evidence supports the court’s alternative basis for denying Ellison’s motion
— that he did not meet his burden of showing that the shooting was justified.
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evidence. See Sifuentes, 293 Ga. at 444 (2). “In reviewing the denial
of a motion for pretrial immunity, we must view the evidence in the
light most favorable to the trial court’s ruling and accept the trial
court’s findings of fact and credibility determinations if there is any
evidence to support them.” Id. at 444 (2).
Here, the trial court was authorized to conclude that Ellison
did not meet his burden. Although the trial court’s remark that
Ellison presented “only” his own testimony in support of his motion
was not entirely correct, it is true that the only eyewitness testimony
that the defense presented about what transpired between Ellison
and Malcom when Malcom was shot came from Ellison himself. And
the trial court explicitly discredited Ellison’s testimony about the
circumstances of the shooting. The trial court identified two specific,
proper bases for discrediting Ellison’s testimony: his prior felony
conviction, and his admitted untruthfulness with the police about at
least some of the circumstances surrounding the shooting — in
particular, where he had discarded the gun. See OCGA § 24-6-609
(impeachment by evidence of conviction of crime); Holmes v. State,
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311 Ga. 698, 701 (2) (859 SE2d 475) (2021) (in evaluating sufficiency
of the evidence to support conviction, noting that defendant’s
credibility as a witness was undermined by admission that he lied
to police). And testimony of the State’s witnesses undermined
Ellison’s testimony that Malcom drew a gun before Ellison shot him;
two said they did not see Malcom with a gun, and the witness who
said he saw Malcom with a gun after the shooting also said he
subsequently heard Malcom call for his gun. The hearing record also
included evidence in the form of Ellison’s Facebook posts that
supported an inference that Ellison shot Malcom out of anger, to
assert dominance, or to avenge past wrongs, rather than in self-
defense.
Given this evidence, the trial court was authorized not only to
reject Ellison’s self-serving testimony but also to conclude that he
had not met his burden to prove justification so as to entitle him to
immunity. See Hughes v. State, 312 Ga. 149, 157-158 (4) (861 SE2d
94) (2021) (trial court authorized to find that defendant failed to
carry his burden that he was entitled to immunity where evidence
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showed that defendant had been able to leave the bedroom where
the victim had confronted him, and the trial court did not credit
defendant’s testimony that the victim had a gun); Hornbuckle v.
State, 300 Ga. 750, 753 (2) (797 SE2d 113) (2017) (where physical
evidence and defendant’s statements in the 911 call and on cross-
examination provided some evidence that the encounter did not
occur in the manner she described, trial court was authorized to
conclude that defendant’s actions were motivated by aggression or
anger rather than self-defense and so deny immunity); Sifuentes,
293 Ga. at 444-445 (2) (trial court did not err in denying immunity
where evidence supported a finding that shooting was motivated by
gang rivalry and a desire for revenge).
Judgment affirmed. All the Justices concur.
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