State v. Brown ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 20, 2022
S22A0463. THE STATE v. BROWN.
COLVIN, Justice.
In connection with the fatal shooting of Stacey Monts and the
shooting of Mario Roscoe, a Fulton County grand jury jointly
charged appellee Terrell Brown and co-defendants Milton Rufus
Hall and Andrew Dontavius Glass with malice murder, felony
murder, aggravated assault, armed robbery, aggravated battery,
and possession of a firearm during the commission of a felony. 1
Brown filed a pretrial motion for immunity from prosecution under
The crimes allegedly occurred on July 14, 2018. On October 16, 2018,
1
the grand jury issued a 13-count indictment. Brown was jointly charged with
his co-defendants in Counts 1-3 and 6-11, which charged the following offenses:
malice murder (Count 1); felony murder predicated on armed robbery (Count
2); felony murder predicated on aggravated assault (Count 3); armed robbery
(Count 6); aggravated assault of Monts and Roscoe (Counts 7 and 8,
respectively); aggravated battery of Roscoe (Count 9); and possession of a
firearm during the commission of a felony (Counts 10 and 11). The remaining
charges named only Brown’s co-defendants.
OCGA § 16-3-24.2 2 based on self-defense. Following a hearing on
the motion, the trial court issued an order granting Brown immunity
on most of the charges against him. The court’s ruling, however,
omitted any reference to Count 6, which charged Brown and his co-
defendants with committing an armed robbery by “tak[ing] a
handgun” from Monts.
On appeal, the State argues that the court’s failure to grant
immunity on the armed-robbery charge conflicted with its grant of
immunity on the other charges because, under OCGA § 16-3-21 (b)
(2), a person cannot be justified in using force while “attempting to
commit, committing, or fleeing after the commission or attempted
commission of a felony,” such as armed robbery. As explained below,
the State correctly identifies a potential conflict within the trial
court’s ruling. However, the record on appeal does not permit us to
determine whether the trial court erred because we cannot discern
whether the court even ruled on whether Brown was entitled to
2 See OCGA § 16-3-24.2 (providing that “[a] person who uses threats or
force in accordance with Code Section 16-3-21 [addressing self-defense] . . .
shall be immune from criminal prosecution therefor”).
2
immunity on Count 6, much less that the court denied Brown
immunity on that count. Because the record on appeal is insufficient
for meaningful appellate review, we vacate the judgment and
remand the case for further clarification and analysis consistent
with this opinion. See Hughes v. State, 296 Ga. 744, 746 (1) n.6 (770
SE2d 636) (2015) (“If the trial court has made express findings of
fact, but not with sufficient detail to permit meaningful appellate
review, an appellate court may remand for further findings.”). 3
1. Brown filed a pretrial motion for immunity from
prosecution, which co-defendant Hall joined. 4 Following a three-day
hearing on the motions, where Brown, Hall, Roscoe, and other
witnesses testified, the court found the following, in relevant part.
On July 14, 2018, Monts, Roscoe, and another friend arrived at the
home of Brown and Hall, where Glass was also living, “for an
afternoon of gambling [with dice] and smoking weed.” “[T]here was
3The State also raises several arguments challenging specific findings of
fact made by the trial court. For the reasons stated below, the State’s
arguments fail.
4 Although co-defendant Glass also initially joined the motion, he
withdrew his request for immunity partway through the immunity hearing.
3
no animosity existing between anyone” when the dice game began,
and the players engaged only in “the typical fussing . . . over details
of the game” as the game developed. At some point before the
shooting, however, “there was commotion surrounding the
whereabouts of Monts’[s] gun.” Brown, who was not gambling,
“ultimately found [the gun] in between the cushion of the living room
couch and returned it to Monts, while trying to assure him nobody
there was trying to steal the gun.” Despite Brown’s assurances and
the fact that Monts had been winning the dice game, “Monts
remained upset about the misplacement of his gun.” At some point
during the game, “folks started shooting three loaded weapons,”
killing Monts and causing Roscoe and Hall to sustain serious
gunshot injuries in the “cross-fire.” When law enforcement officers
and EMS arrived, “the cash, guns[,] and stash of pot were gone.”
The court noted that “Brown and Hall each testified that they
fired a weapon in self-defense only after Monts began shooting”; that
Hall testified that he shot Monts in response to being shot by Monts;
and that Brown testified that, when he saw Monts shoot at Hall,
4
Brown reached for a “rifle stashed under the futon where he was
sitting . . . and fired back toward Monts . . . out of fear that Monts
would shoot him next.” (Emphasis in original.)
Addressing Hall’s motion for immunity, the court found that
“[t]he evidence was conflicting as to whether Monts shot Hall first
and why, or vice versa.” The court questioned the plausibility of both
the State’s theory of the case (“that Brown and Hall decided to rob
Monts and Roscoe in their home after handing Monts his gun”) and
the defense’s theory of the case (“that Monts would end a dice game
where he [was] ahead by thousands of dollars by shooting the losing
player”). The court called both theories “far-fetched.” The court
further found that “[t]he odds in favor of” young men (i.e., Hall and
Monts) “exercis[ing] . . . good judgment”—while playing a “high
stakes dice game[,] . . . handling guns[,] and smoking pot on a hot
summer day”—were “dangerously low.” Accordingly, the court
concluded that “Hall ha[d] failed to show by a preponderance of the
evidence that he [was] entitled to immunity.”
“[R]egardless of whether Monts or Hall initiated the gunfire,”
5
however, the court found that “Brown ha[d] shown by a
preponderance of the evidence that he fired his weapon in self-
defense.” As noted above, the court found that the State’s theory of
the case (that Brown and Hall decided to rob Monts at their own
home, after Brown handed a gun to Monts) “seem[ed] far-fetched.”
The court further found that “[n]o one contradicted Brown’s
explanation as to when and why he shot his weapon”—that Brown
fired only after seeing Monts shoot at Hall and that he fired in self-
defense because he feared for his life. Accordingly, the court ruled
that Brown was “entitled to immunity from prosecution on Counts
1, 2, 3, 7, 8, 9, 10 and 11.” The court’s ruling omitted any reference
to the armed-robbery charge (Count 6).
2. On appeal, the State contends that the trial court abused
its discretion in granting Brown immunity from prosecution on any
of the charges against him under OCGA § 16-3-24.2. In relevant
part, OCGA § 16-3-24.2 provides that “[a] person who uses threats
or force in accordance with Code Section 16-3-21 . . . shall be immune
from criminal prosecution therefor.” OCGA § 16-3-21, in turn,
6
provides that a person who “reasonably believes that [deadly] force
is necessary to prevent death or great bodily injury to himself or
herself or a third person or to prevent the commission of a forcible
felony” is generally justified in using such force. OCGA § 16-3-21
(a). This general rule, however, is subject to an important exception:
a person who uses deadly force while “attempting to commit,
committing, or fleeing after the commission or attempted
commission of a felony” is not justified in using such force. OCGA §
16-3-21 (b) (2).
“To avoid trial, a defendant bears the burden of proof to show
that he is entitled to immunity by a preponderance of the evidence.”
Hughes v. State, 312 Ga. 149, 156 (4) (861 SE2d 94) (2021).
Accordingly, a defendant must show by a preponderance of the
evidence not only that he “reasonably believe[d] that [deadly] force
[was] necessary” under the circumstances, OCGA § 16-3-21 (a), but
also that he did not use deadly force while “attempting to commit,
committing, or fleeing after the commission or attempted
commission of a felony,” OCGA § 16-3-21 (b) (2). On appeal, we view
7
the evidence “in the light most favorable to the trial court’s ruling.”
Hughes, 312 Ga. at 156 (4). “[T]he trial court’s findings of fact and
credibility determinations are accepted if there is any evidence to
support them.” Id.
In arguing that the trial court erred in granting Brown
immunity from prosecution on any count, the State relies upon two
factual premises. First, the State asserts that the trial court “denied
[Brown] immunity for the armed robbery charge.” Second, the State
asserts that “inherent in the trial court’s [denial of immunity on the
armed-robbery charge] is a factual finding that Brown was
committing a felony when he shot the victims.” Based on these
factual premises, the State concludes that, as a matter of law, Brown
was not entitled to immunity on any charge because, under OCGA §
16-3-21 (b) (2), a person who uses deadly force while committing a
felony is not entitled to immunity under OCGA § 16-3-24.2.5
5 Brown was charged with committing armed robbery, which is a felony,
by using his firearm to “take [Monts’s] handgun.” See OCGA § 16-8-41 (a) (“A
person commits the offense of armed robbery when, with intent to commit
theft, he or she takes property of another from the person or the immediate
8
The logic of the State’s argument is sound, at least as to the
armed-robbery offense charged here, if the trial court denied Brown
immunity on the armed-robbery charge (Count 6) because he failed
to carry his burden by a preponderance of the evidence to show that
he was not engaged in an armed robbery when he shot at Monts.
OCGA § 16-3-21 (b) (2) would have then precluded him from
receiving immunity on any of the remaining counts, all of which
arose from the same shooting. The record on appeal, however, does
not permit us to determine the accuracy of these factual premises.
First, the record does not establish whether the court issued
any ruling as to whether Brown was entitled to immunity on Count
6, much less that the court denied Brown immunity on that count.
Because Count 6 was simply omitted from the court’s determination
that Brown was “entitled to immunity from prosecution on Counts
1, 2, 3, 7, 8, 9, 10 and 11,” the record does not include any express
ruling on immunity as it applied to the armed-robbery charge. Nor
presence of another by use of an offensive weapon . . . .”). See also OCGA § 16-
8-41 (b) (felony punishment provision for armed robbery).
9
does the record clearly show that Brown sought immunity on Count
6, and thus that the court was required to rule on the matter. 6
Brown’s written motion for immunity from prosecution did not
identify which specific counts were subject to the motion, and, at the
immunity hearing, Brown’s counsel made confusing statements
about Count 6, suggesting at one point that the armed-robbery
charge would not “go away” based on the “immunity defense.” 7 But
he also argued at length that the State’s armed-robbery theory was
not supported by the evidence and “just simply . . . doesn’t make
sense” because even “the dumbest criminal” would not “invit[e]
[people] over to [his own] house to rob them” or “give someone a gun
back and then attempt to rob them.” The record is silent on how the
court interpreted these arguments and whether it might have
reasonably concluded, in the context of the hearing as a whole, that
6 If it were clear from the record that Brown sought immunity on Count
6, we might reasonably infer that the court’s omission of Count 6 from its ruling
was an implicit denial of immunity on that count.
7 How to interpret the statement of Brown’s counsel that immunity
would not make the armed-robbery charge “go away” is further complicated by
the fact that counsel’s purported basis for the statement was an argument
made by Hall’s counsel. Hall’s counsel, however, expressly argued that
immunity did apply to the armed-robbery charge.
10
Brown did not seek immunity on Count 6. Because the record is not
clear as to whether Brown sought immunity on Count 6 (and thus
whether the court considered such an argument), we cannot
conclude that the court’s omission of Count 6 was necessarily an
implicit denial of immunity. The omission might have instead been
a mere failure to rule on Count 6, which would not conflict with
granting immunity on the other counts: if the court did not consider
whether Brown was entitled to immunity on Count 6, it still might
have granted immunity on the other counts if it found by a
preponderance of the evidence that Brown was not committing an
armed robbery when he fired his gun.
Second, although the State asserts that “inherent” in the trial
court’s order is a finding that Brown failed to carry his burden to
show he was not engaged in an armed robbery, nothing in the court’s
order supports that assertion. At the immunity hearing, the parties
did not raise OCGA § 16-3-21 (b) (2) as a potential barrier to
immunity, and the court did not expressly determine in its order
whether Brown showed by a preponderance of the evidence that he
11
was not engaged in a felony when he fired at Monts. Moreover, the
court’s findings suggest that it implicitly found that Brown did carry
his burden to prove he was not engaged in an armed robbery. Not
only did the court find that “the State’s theory that Brown and Hall
decided to rob Monts and Roscoe in their home, after handing Monts
his gun[,] seem[ed] far-fetched,” but it also found that Brown had
carried his burden to show he was entitled to immunity on Count 2,
which charged Brown with felony murder predicated on armed
robbery.8 These are findings that we cannot disregard on appeal.
See Hughes, 296 Ga. at 746 (1) (“[A]n appellate court generally must
accept [trial court] findings [on disputed factual issues] unless they
are clearly erroneous.”). Still, we cannot be sure what conclusion
the court reached because it failed to make an express finding on
whether Brown proved he was not engaged in a felony, such as
armed robbery, when the shooting occurred. Id. (“[A]n appellate
8 Counts 10 and 11, which charged Brown with possession of a firearm
during the commission of a felony, also charged armed robbery as a predicate
felony, although additional predicate felonies were charged as well.
12
court generally must limit its consideration of the disputed facts to
those expressly found by the trial court.”).9
In sum, the record on appeal is insufficient for us to determine
whether the court ruled on immunity as to Count 6, much less to
determine that the court denied Brown immunity on that count and
why. Moreover, nothing in the record would preclude the trial court
from determining on remand that Brown sought immunity on Count
6, that he carried his burden to show that he did not engage in an
armed robbery, and that he may have been entitled to immunity on
Count 6, in addition to the other counts. Because the record does
not permit us to assess whether the trial court erred, a remand is
necessary for further clarification and analysis. See Hughes, 296
9The dissent states that, “as a matter of law,” Brown is not entitled to
immunity on any charges against him because “Brown remains under
indictment for armed robbery.” Dissent at 3-4. No legal authority supports
this proposition. To the contrary, as explained above, the relevant legal
question for immunity is whether Brown carried his burden to show by a
preponderance of the evidence that he was not committing, attempting to
commit, or fleeing after the commission or attempted commission of an armed
robbery when he used deadly force. See Hughes, 312 Ga. at 156 (4). See also
OCGA § 16-3-21 (b) (2). If he carried that burden, he was entitled to immunity
on the other counts, even if the armed-robbery charge remained pending
against him.
13
Ga. at 746 (1) n.6.
3. The State also argues on appeal that the evidence
presented at the immunity hearing did not support several of the
trial court’s findings. We disagree. First, the State argues that the
court clearly erred in finding that “[n]o one contradicted Brown’s
explanation as to when and why he shot his weapon.” According to
the State, Roscoe’s testimony contradicted the testimony of Brown
and other witnesses as to when and why Brown shot his gun because
there were conflicting details in the witnesses’ accounts.
Specifically, the State argues that Roscoe testified that “it was after
Hall fired the first shot at Monts, and Monts ended up on the ground
and was firing back at Hall, that Brown started shooting at Monts”
and that “Monts fired back at Hall, not at Brown.” According to the
State, this testimony contradicted the testimony that “Brown did not
start shooting until after Monts fired the first shot” and that
“[Brown] shot at Monts because Monts was firing in his direction.”
The trial court, however, did not find that there were no
conflicts in the testimony about precisely how events unfolded.
14
Rather, the court found that no one contradicted Brown’s testimony
that he fired at Monts after seeing Monts shoot at Hall and that
Brown fired out of fear that he would be shot. Because Roscoe also
testified that Brown did not shoot until after Monts shot at Hall,
Roscoe’s testimony does not show that the trial court clearly erred
in finding that no one contradicted Brown’s account of when he fired
at Monts. Further, because Roscoe’s testimony that Monts was
shooting at Hall, rather than at Brown, did not show that Brown did
not fear being shot, Roscoe’s testimony does not show that the trial
court clearly erred in finding that no one contradicted Brown’s
account of why he fired his gun.
Second, the State argues that the trial court clearly erred in
finding that Brown fired in self-defense because, according to the
State, Brown’s belief that Monts would shoot him after shooting Hall
was unreasonable. However, we must “accept the trial court’s
findings of fact and credibility determinations if there is any
evidence to support them.” Gude v. State, 313 Ga. 859, 871 (6) (874
SE2d 84) (2022). Here, the trial court credited Brown’s testimony
15
that he feared being shot by Monts when gunfire erupted in “the
circle of gamblers” near “the futon where [Brown] was sitting.”
Based on the evidence presented at the immunity hearing, the trial
court was authorized to find that Brown reasonably fired in self-
defense.
Finally, the State argues that no evidence supported the trial
court’s finding that Brown was entitled to immunity on the charges
of aggravated assault and aggravated battery against Roscoe
(Counts 8 and 9).10 The State contends that there was no reason to
shoot at Roscoe, who was between Hall and Monts when the
shooting started, because Roscoe was unarmed and could not have
been a threat to Brown. However, we owe deference to the trial
court’s decision to credit Brown’s testimony that he “fired back
toward Monts,” not at Roscoe. See id. Because the court found that
Brown carried his burden to show that he was justified in shooting
10Although the State also asserts that “the trial court’s order is silent on
Brown’s self-defense claim for Brown’s shooting of Roscoe,” that is not the case.
The trial court expressly found that Brown had carried his burden of proof to
show he fired in self-defense as to the counts that charged offenses against
Roscoe.
16
at Monts, the court was authorized to conclude that Brown was also
entitled to immunity as to the charged offenses against Roscoe, who
was not Brown’s intended target. See Howard v. State, 307 Ga. 12,
22 (5) (834 SE2d 11) (2019) (“Under th[e] principle [of transferred
justification], no guilt attaches if an accused is justified in shooting
to repel an assault, but misses and kills an innocent bystander.”
(citation and punctuation omitted)); Allen v. State, 290 Ga. 743, 746
(3) (723 SE2d 684) (2012) (noting that a defendant should be
acquitted based on “the doctrine of transferred justification” if the
factfinder “determine[s] he was justified in firing his weapon,
regardless of whom the bullet struck”). 11
4. On remand, the trial court is directed to make an express
finding as to whether Brown carried his burden to prove by a
preponderance of the evidence that he was not engaged in an armed
robbery when the shooting occurred. If the court finds that Brown
11 The evidence presented at the immunity hearing did not clearly
establish who (Brown, Hall, or Monts) shot Roscoe, and the court made no
express finding on that matter. However, the court was authorized to conclude
that, to the extent that Brown unintentionally shot Roscoe, he was justified in
doing so.
17
did not carry his burden on this point, it is directed to deny Brown
immunity as to all counts against him, in accordance with OCGA §§
16-3-21 (b) (2) and 16-3-24.2. If, on the other hand, the court finds
that Brown did carry his burden to show that he was not engaged in
an armed robbery when the shooting occurred, the court is further
directed to (1) clarify whether and why it grants, denies, or issues
no ruling on whether Brown was entitled to immunity on Count 6,
(2) expressly determine whether Brown carried his burden to show
he was entitled to immunity on the other counts, and (3) issue
rulings consistent with its findings.
Judgment vacated and case remanded with direction. All the
Justices concur, except Ellington and LaGrua, JJ., who dissent.
18
ELLINGTON, Justice, dissenting.
A Fulton County grand jury indicted Terrell Brown on charges
of malice murder, felony murder, armed robbery, and other offenses
related to the fatal shooting of Stacey Monts and shooting of Mario
Roscoe. The charges brought by the State were based on its theory
that Brown and his co-defendants shot Monts and Roscoe during an
armed robbery. Prior to trial, Brown filed a motion seeking
“immunity from prosecution” under OCGA § 16-3-24.2, in which he
admitted he shot Roscoe but claimed he shot him in self-defense.
Following a hearing on Brown’s motion, the trial court issued an
order granting immunity to Brown on “Counts 1, 2, 3, 7, 8, 9, 10 and
11,” all counts in which he was charged, except for Count 6. The
State alleged in Count 6 that Brown and his co-defendants
committed an armed robbery by taking a handgun from Monts.
The State appealed, arguing that Brown was precluded from
seeking immunity based on self-defense for any of the charged
crimes because the State had alleged that Brown was in the
commission of an armed robbery at the time he committed the
19
crimes. See OCGA § 16-3-21 (b) (2). Brown did not file an appeal
from the trial court’s immunity order, which left unaffected the
armed robbery count of the indictment. 12 Thus, as this case appears
before us, Brown remains under indictment for an armed robbery
the State alleges he committed while in the commission of the other
crimes with which he was charged.
Despite these indisputable facts and well-established Georgia
law precluding the grant of immunity from prosecution to a person
who uses force against another when “attempting to commit,
committing, or fleeing after the commission of a felony,” OCGA § 16-
3-21 (b) (2), the majority finds the record on appeal is insufficient to
render a decision because it “cannot discern whether the court even
ruled on whether Brown was entitled to immunity on Count 6.” Maj.
Op. at 2-3. Although I share some of the majority’s concerns
regarding the dearth of findings and conclusions in the trial court’s
12 Pertinent to this appeal, the trial court made no findings of fact
specifically related to the armed robbery charge for which it declined to grant
Brown immunity.
20
immunity order, 13 no clarification or speculation as to the trial
court’s intent is necessary to reach the conclusion that reversal is
required in this case.14 Even assuming, as the majority argues, that
it is not clear from the trial court’s order that the court denied
Brown’s request for immunity as to Count 6, that the trial court
failed to rule on Brown’s request for immunity from prosecution on
Count 6, or that Brown withdrew his request for immunity, it is
indisputable that Count 6 was unaffected by the trial court’s
immunity order. An order from which Brown did not appeal.
Therefore, regardless of any speculation by this Court as to whether
Brown meant to include Count 6 in his motion for immunity when
he sought immunity from prosecution “in this case,” regardless of
the rationale behind the trial court’s legal conclusions, and
13 It is unclear from the record whether the trial court even considered
OCGA § 16-3-21 (b) in ruling on Brown’s motion for immunity. Neither the
State nor Brown mentioned the statute or its preclusive effect in their trial
court briefs, and the statute was not mentioned at the immunity hearing or in
the trial court’s immunity order. This 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 likely to
cause death or great bodily harm, which he is alleged to have
committed while in the commission the armed robbery. 15 See
Reynolds v. State, 275 Ga. 548, 549 (569 SE2d 847) (2002) (no error
in trial court’s refusal to give jury charge on defense of a third party
where evidence showed defendant was either in the commission of
or a party to an armed robbery when he shot the victim because
15 The majority opinion too narrowly construes the application of OCGA
§ 16-3-21 (b) by stating that “if the court did not consider whether Brown was
entitled to immunity on Count 6, it still might have granted immunity on the
other counts if it found by a preponderance of the evidence that Brown was not
committing an armed robbery when he fired his gun.” Maj. Op. at 11. OCGA §
16-3-21 (b) precludes the grant of immunity from prosecution to a person who
uses force when “attempting to commit, committing, or fleeing after the
commission of a felony.” Thus, under the facts of this case, Brown would not be
entitled to immunity on the other charges if he could be found guilty of
committing an armed robbery, as either the perpetrator or a party to the crime,
regardless of when he fired his gun. Similarly, even if the court merely failed
to rule on Count 6, as suggested by the majority opinion, Brown would not be
entitled to immunity under OCGA § 16-3-21 (b) for his other charged crimes
because he was indicted for having committed those crimes during the
commission of a felony for which he remains under indictment.
22
OCGA § 16-3-21 (b) “specifically provides that a person who is
committing a felony is not justified in his use of force”).
For this reason, I would hold that the trial court erred when it
granted Brown immunity from prosecution on Counts 1, 2, 3, 7, 8, 9,
10, and 11 of the indictment and reverse the judgment of the trial
court. 16
I am authorized to state that Justice LaGrua joins in this
dissent.
16 Because this case will be remanded to the trial court for “further
clarification and analysis,” I also note that absent from the trial court’s original
immunity order is any analysis related to whether Brown could be found guilty
as a party to the crimes of his co-defendants or whether the admitted sale of
marijuana in the apartment before the shooting might also preclude the grant
of immunity to Brown on any of the crimes with which he is charged. See OCGA
§ 16-2-21 (“Any party to a crime who did not directly commit the crime may be
indicted, tried, convicted, and punished for commission of the crime upon proof
that the crime was committed and that he was a party thereto.”).
23