☢ test - Í

State v. Bunn, 288 Ga. 20, 701 S.E.2d 138 (September 20, 2010). In defendant police officer’s murder prosecution, trial court properly found that defendant proved immunity by a preponderance of the evidence. “[T]he 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.” “Nothing in this [preponderance of the evidence] 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).” Evidence that driver didn’t actually intend to threaten officer with his vehicle is irrelevant: “the law is well-established that the subjective intent of a defendant is irrelevant to the assessment of a claim of justification. See Lewis v. State, 270 Ga. 891, 893(2) (515 S.E.2d 382) (1999) (justification defense assessed on whether circumstances would have ‘excited the fears of an objective reasonable person’). Likewise, fact questions regarding what the occupants of the Tahoe knew and what Bunn's partner (who admitted he tripped over a curb, fell and completely missed what occurred during the pertinent time period) may or may not have seen clearly have no relevance under the facts in this case to a determination whether Bunn himself reasonably believed at the time he fired his service weapon that his action was necessary to prevent death or great bodily injury to himself or his partner. OCGA § 16-3-21(a).” Benham dissents. Accord, State v. Thompson , 288 Ga. 165, 702 S.E.2d 198 (November 8, 2010) (“To avoid trial under OCGA § 16-3-24.2, a defendant must show that he is entitled to immunity by a preponderance of the evidence.”); State v. Sutton , 297 Ga. 222, 773 S.E.2d 222 (June 1, 2015) (same). State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (September 28, 2009). In defendant’s murder prosecution, trial court erred in granting defendant’s motion to quash based on immunity in defense of habitation under OCGA § 16-3-24.2. “[T]he defense of immunity under OCGA § 16-3-24.2 does not apply if the person invoking the immunity statute is carrying a weapon unlawfully.” Defendant here was a convicted felon, forbidden to possess the gun with which he shot the victim. Citing with approval Millen v. State, 267 Ga.App. 879(2)(b) (600 S.E.2d 604) (2004) (similar holding). “Of course, Burks is not precluded from raising the affirmative defense of justification in further proceedings below.” Lightning v. State, 297 Ga.App. 54, 676 S.E.2d 780 (March 26, 2009). Defendants can’t complain about trial court’s failure to determine claim of immunity pre-trial “because they did not seek a ruling on the motion prior to trial.” “By focusing upon receiving a jury instruction on self-defense rather than obtaining a ruling from the trial judge on their motion, the Lightnings acquiesced in the trial court's ruling. ‘A party cannot submit to a ruling or acquiesce to it (or, as here, solicit it), then complain about the ruling on appeal. [Cit.]’ Boone v. State, 229 Ga.App. 379, 381(4) (494 S.E.2d 100) (1997). A party ‘must stand his ground. Acquiescence deprives him of the right to complain further. (Cit.)’ Whisnant v. State, 178 Ga.App. 742, 744 (344 S.E.2d 536) (1986).” Campbell v. State, 297 Ga.App. 387, 677 S.E.2d 312 (February 19, 2009). Trial court properly declined defendant’s request to charge jury on defense of immunity from prosecution. “[T]he issue of immunity under this code section is a question of law for the trial court to decide, not the jury. Boggs v. State, [261 Ga.App. 104, 105 (581 S.E.2d 722) (2003)]. Therefore, any instruction on this issue had the potential to mislead the jury, and the trial court did not err by refusing to give this charge. See Smith v. State, 265 Ga.App. 756, 758(3) (596 S.E.2d 13) (2004); Lewis v. State, 214 Ga.App. 830, 833(3) (449 S.E.2d 535) (1994).” Appears to conflict with Bunn (October 6, 2008), below (defendant entitled to pursue affirmative defense of immunity at trial, same as any other affirmative defense). Bunn v. State, 284 Ga. 410, 667 S.E.2d 605 (October 6, 2008). Defendant, a police officer, claimed immunity from prosecution for murder and other charges on grounds of self-defense. “As a potential bar to criminal proceedings which must be determined prior to a trial, immunity represents a far greater right than any encompassed by an affirmative defense, which may be asserted during trial but cannot stop a trial altogether. With this in mind, we take guidance from other jurisdictions ( State v. Guenther, 740 P.2d 971 (Colo., 1987); Peterson v. State, 983 So.2d 27 (Fla.App., 2008)) and find that, to avoid trial, a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16- 3-24.2 by a preponderance of the evidence. A similar burden is required of defendants who wish to avoid trial and guilt by showing that they are insane or mentally incompetent. See Hester v. State, 283 Ga. 367(3) (659 S.E.2d 600) (2008); Foster v. State, 283 Ga. 47(1) (656 S.E.2d 838) (2008). If a defendant cannot meet his burden of proving immunity prior to trial, he may nonetheless pursue an affirmative defense at trial, even though these affirmative defenses may be based on the same statutory provisions underlying a prior immunity motion. In this instance, the well- established burden of proof for affirmative defenses would be applicable during trial. See, e.g., Bishop v. State, 271 Ga. 291(2) (519 S.E.2d 206) (1999) (‘[w]hen a defendant raises an affirmative defense and offers evidence in support