HUNSTEIN, Chief Justice.
Raymond Bunn was indicted in Fulton County on charges of malice murder, felony murder, aggravated assault and violating his oath as a public officer by committing murder, felony murder and aggravated assault. These charges arose out of the shooting death of Corey Ward by Bunn, which occurred while Bunn was an Atlanta Police Department officer on patrol. After his indictment, Bunn filed a motion for immunity from prosecution under OCGA § 16-3-24.21 on the basis that he reasonably believed his actions in shooting Ward were necessary to prevent imminent death or great bodily injury to himself or his partner2 pursuant to OCGA § 16-3-21(a).3
The original trial judge, stating that she could not "determine as a matter of law that [Bunn] was justified in killing" Ward, denied the motion. Bunn appealed this and other rulings to this Court. In Bunn v. State, 284 Ga. 410(3), 667 S.E.2d 605 (2008), we held that a defendant need only prove he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence. Because the wrong standard had been used, we remanded the case to the trial court to allow it to analyze Bunn's motion under the preponderance of the evidence standard. Bunn v. State, supra. On remand, the case originally handled by Judge Lane was reassigned. The trial court subsequently entered an order in which it stated that, after reviewing the record, it adopted Judge Lane's findings of fact and that, after applying the preponderance standard in Bunn v. State, supra, it found Bunn carried his burden of proof and granted his motion for immunity from prosecution. By so ruling, the trial court in effect dismissed the entire indictment. See State v. Yapo, 296 Ga.App. 158(1), 674 S.E.2d 44 (2009) (grant of immunity from prosecution is in substance a dismissal of the pertinent counts of the indictment). The State appeals. See OCGA § 5-7-1(a)(1); State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (2009).
The State asserts that the trial court erred by granting Bunn's immunity motion because justification was not shown by a preponderance of the evidence. The same record was before this Court in Bunn v. State, supra, in which we stated that
[t]he record shows that, on July 14, 2002, Bunn, a City of Atlanta police officer, was on routine patrol with his partner. Upon spotting an apparent vehicle break-in, the officers moved their vehicle so as to block one of the exits from the parking lot where the break-in was allegedly taking place. The alleged burglar jumped into a van, which began to move toward the officers, who were shouting for it to stop. The van continued toward the officers, and Bunn shot and killed the van's driver, Corey Ward.
Id., 284 Ga. at 410, 667 S.E.2d 605.4 The State does not deny that Bunn adduced evidence that supported the above sequence of events, which are also found in Judge Lane's order. Based on these findings of fact, the trial court expressly found that Bunn
reasonably would have held the perception that the driver of the vehicle would not stop, and that he posed an imminent threat to his life and physical well-being. The only effective means [Bunn] had to attempt to stop or pre-empt the danger was his weapon. [Bunn] fired his service weapon in his own self-defense at the driver and was justified in doing so.
The State argues that the trial court was not authorized to reject Judge Lane's conclusion that the evidence did not show justification because Judge Lane heard the actual testimony of the witnesses and noted in her order that certain conflicting fact questions remained. As to the actual testimony of the witnesses, the trial court expressly adopted those factual findings that were made by Judge Lane in her order. As to the evidentiary conflicts regarding certain matters noted by Judge Lane, aside from the fact that most of them were irrelevant to an assessment of Bunn's claim of immunity from prosecution based on a justification defense,5 those conflicts were assessed in light of Judge Lane's improper legal conclusion that Bunn was required to prove "as a matter of law" that he was justified in killing Ward. That error by Judge Lane was corrected when this Court held in Bunn v. State, supra, that the proper standard of review was the preponderance of the evidence. Id., 284 Ga. at 413(3), 667 S.E.2d 605.
"Preponderance of evidence" means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.
OCGA § 24-1-1(5). Nothing in this standard requires the elimination of all fact disputes as a matter of law. Rather, "[t]he standard requires only that the finder of fact be inclined by the evidence toward one side or the other." Murray v. State, 269 Ga. 871, 873(2), 505 S.E.2d 746 (1998).
On appeal of an order denying a motion for immunity from prosecution,
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. [Cit.]
Mullins v. State, 287 Ga. 302(1), 695 S.E.2d 621 (2010). See also State v. Yapo, supra, 296 Ga.App. at 159-160(2), 674 S.E.2d 44. Based on the facts set forth above, the trial court's determination that Bunn is immune from prosecution because he acted in self-defense in discharging his service weapon, although based upon conflicting evidence, was supported by a preponderance of the evidence. Accordingly, the trial court did not err by granting Bunn's immunity motion.
Judgment affirmed.
All the Justices concur, except BENHAM, J., who dissents.
BENHAM, Justice, dissenting.
On the night of July 14, 2002, Raymond Bunn, a plain clothes police officer who was patrolling an Atlanta neighborhood in an unmarked vehicle, fired fatal shots into the driver-side window of a Chevy Tahoe twice wounding its driver, 19-year-old Corey Ward, an African-American male, on the left side of his head. Those facts are certain. Otherwise, the evidence is conflicting as to where Bunn was standing in relation to the Chevy Tahoe Ward was driving;6 how fast Ward's vehicle was moving;7 and whether Ward and his passengers knew Bunn and his partner were police officers.8 There are also discrepancies with Bunn's incident report in which he alleges his knee was "pinned" by Ward's vehicle. Specifically, there is no physical or medical evidence of any injury to Bunn's knee, and Bunn's partner did not actually see Bunn being hit by Ward's vehicle. There is also troubling evidence that Bunn previously used excessive force for which he was found civilly liable for damages stemming from an incident in which he punched a woman in the face during a routine traffic stop.
The first judge, who listened to the live testimony and presentation of evidence, determined that Officer Bunn was not entitled to immunity based on the evidence presented. On remand, the second judge, who was not privy to the live presentation of evidence and who was given direction by this Court to apply a preponderance of the evidence standard, found that Officer Bunn was justified in using lethal force against Ward and, therefore, immune from prosecution for Ward's death under OCGA § 16-3-24.2. I find the conflicting evidence and conflicting outcomes troubling in this pre-trial matter and cannot in good faith join the majority's decision to affirm this latest ruling by the trial court. Not only does the affirmation of the trial court's decision deprive Corey Ward's family of their day in court and the citizens of a public trial of this controversy, but this decision will also make it more difficult to prosecute law enforcement officers who are alleged to have used excessive and/or deadly force in the apprehension of suspected criminals.
OCGA § 16-3-24.2 is seemingly applicable to any ordinary citizen walking the streets who may need to defend himself or herself in certain situations. Police officers, however, are not the typical "objective reasonable persons," as suggested by the majority's reference to Lewis v. State, 270 Ga. 891, 893(2), 515 S.E.2d 382 (1999). Police officers receive special knowledge and training (i.e., training on weaponry, tactics, and the use of deadly force) to which the everyday person is likely not exposed. In addition, police officers are not treated as ordinary suspects when they use deadly force against suspected criminals. Here, the investigating officer admitted that Bunn was not treated as any other homicide suspect, but as a police officer regarding a police-involved shooting.9 The United States Supreme Court has ruled that the use of deadly force by the police during the apprehension of a suspect must be reviewed pursuant to reasonableness standards under the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.
Id. at 11, 105 S.Ct. 1694. See also Graham v. Connor, 490 U.S. 386, 394-395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Thus, the overarching question at issue is what would a reasonable police officer do in a situation where, as here, the only suspected crime in progress is the attempted theft of a car and/or the property therein (a nonviolent felony). See Robinson v. State, 221 Ga.App. 865, 866, 473 S.E.2d 519 (1996) (the police are not ordinary citizens when acting in the line of duty). See also Geoffrey P. Alpert, How Reasonable is the Reasonable Man?: Police & Excessive Force, 85 Crim. L. & Criminology 481, 486-487 (1994) (noting that model policy from International Association of Chiefs of Police would ask what a reasonable police officer would do). It does not appear the trial court at any point considered or applied the dictates of Tennessee v. Garner.
Given the amount of conflicting evidence in this case concerning whether deadly force was necessary, the conflicting rulings by two trial court judges evaluating the same evidence, Officer Bunn's failure to testify when he had the burden of proof as to why he was justified in using deadly force, and the failure to consider United States Supreme Court precedent, I do not believe there has been a showing that the officer acted as a reasonable police officer under the Fourth Amendment or was justified in his actions by a preponderance of the evidence or any other evidentiary standard. Moreover, allowing the outcome of this case to stand necessarily ensures that alleged victims of excessive or deadly force by law enforcement will be unable to sustain criminal recourse in Georgia courts.10 Accordingly, I would reverse and allow the criminal case to proceed and the matter be tried before a jury.
