Georgia criminal lawyer obtains immunity for client after pretrial hearing in domestic violence case

The Georgia Court of Appeals was faced with deciding whether a trial court properly granted a defendant immunity when the alleged victim recanted her story and the state failed to produce any other evidence at a pretrial hearing. The court ruled that the defendant was entitled to immunity, since there was evidence for the trial court to find that defendant acted in self-defense prior to trial.

In State v. Yapo, the defendant, Yapo, and his girlfriend got into a fight on the way to a convenient store. The girlfriend held her car door open while Yapo drove which forced Yapo to pull the car over. The girlfriend then left the car and found a large bolt which she threw at the windshield and shattered it. She then got into the back-driver side seat and kicked the driver’s seat. This forced Yapo into the steering wheel and broke the seat. Yapo then retrained his girlfriend by grabbing her and giving her a “bear hug.” Someone called the police, and the girlfriend allegedly told the police at the scene that Yapo had choked her. From this incident, Yapo was arrested for battery and simple battery for choking his girlfriend.

Yapo moved to dismiss the battery charges by claiming he acted in self-defense and was therefore immune. At a pretrial evidentiary hearing, the girlfriend testified as to the facts stated above; however, she denied telling the police that she had been choked. The State had no other witnesses or evidence to offer the trial judge. The judge found the girlfriend’s testimony credible and ruled that Yapo was immune from the battery charges. The State appealed.

The State argued that the trial court erred in granting immunity, since the ruling will harm domestic violence prosecutions in the future. The State argued that domestic violence victims often recant prior testimony even though the alleged crimes actually occurred. However, the court reasoned that Georgia law clearly grants immunity to a defendant who acts in self-defense. Immunity for acting in self-defense is decided by a trial judge prior to trial, and the defendant must prove he acted in self-defense by the greater weight of the evidence. At Yapo’s pretrail hearing, the trial court found the girlfriend’s testimony to be credible and the state offered no other evidence. Thus, the appellate court concluded that this was enough evidence to properly grant immunity.

This opinion is important because the court recognized the defendant’s right to a pretrial hearing on the self-defense claim. This type of immunity is provided by statute, but it is an unusual provision in Georgia criminal law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia’s “Super Lawyers”, and included among Georgia’s “Legal Elite” by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.


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