This is an interim appellate review of two related cases in which the State seeks the death penalty. Antron Dawayne Fair and Damon Antwon Jolly allegedly killed Bibb County Deputy Joseph Whitehead, who was on assignment as an investigator with the Middle Georgia Drug Task Force. The State contends that in the early morning hours of March 23, 2006, both defendants opened fire on Deputy Whitehead as he and other members of the Task Force and the Bibb County Drug Unit were executing a “no-knock” warrant at 3135 Atherton Street within the City of Macon in Bibb County. Pursuant to OCGA § 17-10-35.1, we granted their applications for interim review to consider the following issues: 1 whether the trial court erred in denying the defendants’ motions for a pre-trial determination of whether they are entitled to immunity from prosecution under OCGA § 16-3-24.2; 2 whether the trial court erred in denying the defendants’ motions regarding an alleged scienter element in the OCGA § 17-10-30 b 8 statutory aggravating circumstance; and 3 in Fair’s case, whether the trial court erred regarding his motion to suppress evidence seized during a search with a warrant. 1. Both Fair and Jolly filed motions to dismiss the indictment against them on the ground that they are immune from prosecution under OCGA § 16-3-24.2, which provides in relevant part that “a person who uses threats or force in accordance with Code Section . . . 16-3-23 or . . . 16-3-24 shall be immune from criminal prosecution . . . .” OCGA § 16-3-23 governs the use of force in defense of a habitation, and OCGA § 16-3-24 governs its use in defense of personal property or real property other than a habitation. After conducting hearings on the defendants’ motions, the trial court reserved its ruling in both defendants’ cases until trial, stating that “whether the defendants can avail themselves of a defense of habitation will be decided by the court at the conclusion of the evidence and prior to any jury charge.” The defendants contend that, under OCGA § 16-3-24.2, the issue of immunity is to be determined by the trial court pre-trial, and we note that the State is in agreement and in fact filed motions in the trial court in both cases requesting that the trial court reconsider its orders reserving its ruling on the defendants’ motions to dismiss.
The construction of OCGA § 16-3-24.2 is an issue of first impression in this Court. However, the defendants cite and rely upon Boggs v. State , 261 Ga. App. 104, 106 581 SE2d 722 2003. There, the Court of Appeals focused on the plain language of the statute, see Sizemore v. State , 262 Ga. 214, 216 416 SE2d 500 1992, and held thataccording 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. Emphasis supplied.Boggs , supra at 106. See O’Donnell v. Durham , 275 Ga. 860, 861 3 573 SE2d 23 2002 ” ‘Shall’ is generally construed as a word of mandatory import.”. Because we are of the opinion that the Court of Appeals correctly construed and applied OCGA § 16-3-24.2 in Boggs , we hold that the trial court erred in refusing to rule pre-trial on the defendants’ motions, and we therefore remand for a pre-trial determination of whether the defendants are entitled to immunity from prosecution under OCGA § 16-3-24.2.
