State v. Burks

The defendant, a convicted felon, was not entitled to immunity under O.C.G.A. § 16-3-24.2-defense of habitation, because he is not entitled to carry or possess a firearm.

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Rufus Leonard Burks was indicted by a grand jury in Muscogee County and charged with murder, felony murder two counts, voluntary manslaughter, aggravated assault, possession of a firearm by a convicted felon, possession of a firearm during the commission of a homicide, and tampering with evidence. Burks filed a motion to quash the indictment on the ground that he is immune from prosecution under OCGA § 16-3-24.2.1 The State moved to dismiss the motion to quash, arguing that Burks was not entitled to immunity because, as a convicted felon, it was unlawful for him to carry or possess a firearm. After an evidentiary hearing, the motion to quash was granted. As the court’s order dismisses the indictment against Burks, the State was entitled to file this direct appeal under OCGA § 5-7-1 a 1. At the hearing on the motion to quash, the State introduced without objection a certified copy of a 2001 indictment charging Burks with two felony counts of selling marijuana, along with the final disposition sheet reflecting a negotiated guilty plea to those charges and the entry of judgment of conviction and sentence of three years in confinement. Eyewitness testimony at that hearing established that Burks was hosting a Labor Day barbeque party at his home when Eddia Moss drove up to the house with several friends in his car. Burks told Moss that he had not been invited and he instructed Moss to leave. An argument ensued between the two men and angry words were exchanged. Burks then entered his home and Moss followed him inside where the argument continued. The evidence was in conflict as to what transpired next but at some point, Moss picked up a clothes iron and Burks shot and killed Moss.

1. The State asserts that the trial court erred in granting Burks’ motion to dismiss because the defense of immunity under OCGA § 16-3-24.2 does not apply if the person invoking the immunity statute is carrying a weapon unlawfully. We agree.

State v. Burks

The defendant, a convicted felon, was not entitled to immunity under O.C.G.A. § 16-3-24.2-defense of habitation, because he is not entitled to carry or possess a firearm.

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