A Superior Court Judge ruled Friday that the domestic violence victim charged with murder is immune from prosecution.
Ashlyn Zipperer Griffin was charged in the shooting death of her boyfriend, Brandon McCray, by the Statesboro Police Department back in 2020. Griffin and McCray had a tumultuous multi-year relationship which included several assaults on Griffin by McCray. At one point, now-district Attorney Daphne Totten prosecuted McCray for Aggravated Assault against Griffin while she was pregnant with their child. He accepted a negotiated plea for a short stint in a Probation Detention Center followed by a sentence of probation.
Griffin and McCray reconciled and Griffin was again pregnant on the day of the shooting back in 2020. Griffin told police that during an argument, McCray pulled her from the shower, naked, and was physically assaulting her once again. At one point, she grabbed a gun and shot McCray twice. She ran to the neighbor’s house, wet and with hardly any clothes on, to call 911. Though she cooperated with detectives and participated in scene reenactments, Griffin was arrested after several hours of questioning and charged with Murder and Aggravated Assault.
From the beginning, Griffin claimed she was acting in self-defense and in fear for her life. Her attorney, Mitch Warnock, requested a hearing before a judge to make the case that Griffin was immune from prosecution on the basis of self-defense.
The District Attorney’s Office, led by DA Daphne Totten, said Griffin could not have been acting in self defense because, during an immunity hearing, Griffin testified that she didn’t mean to kill McCray, she simply wanted the assault to stop. Because of Griffin’s testimony, Chief Assistant District Attorney Barclay Black made a motion to end the immunity hearing because Griffin was not ‘owning her actions’ when she said she didn’t mean to kill him. Judge Gates Peed granted the motion to end the hearing and the state proceeded to trial.
During the trial in February 2022, ADA Barclay Black alleged that only the first shot fired by Griffin was justified, but the second was not. He asked Griffin on the stand why she did not simply tell McCray to ‘get away.’ A medical examiner from the GBI Crime Lab testified that they could not determine which wound on McCray’s body occurred first and debunked a number of the state’s allegations.
Griffin testified about the abuse as well as the shooting incident during the trial and a jury found her not guilty on the charge of Felony Murder, which was predicated on an Aggravated Assault charge. But jurors returned a verdict of guilty of the Aggravated Assault and Possession of a Firearm During the Commission of a Felony charges.
ADA Black lobbied for Griffin, now a mother of two, to serve the maximum time behind bars and Judge Peed ultimately sentenced her to 10 years to serve in prison on the Aggravated Assault charge followed by 10 years on probation, plus five additional years for the Possession charge. She was sentenced under the First Offender Act, which the state opposed.
Griffin and her attorneys appealed to the Georgia Court of Appeals on a number of issues.
On June 28, more than two years after the trial, the Georgia Court of Appeals said the trial court erred by failing to apply the correct analysis on the immunity hearing.
“Prior to trial, Griffin moved for immunity from prosecution pursuant to OCGA § 16-3-24.2 on the basis that she acted in self-defense in shooting the victim. At the hearing, Griffin testified that she was scared and feared the victim was going to hurt her and she had to defend herself, but that she did not intend to fire the first or second shot. She testified she had no recollection of pulling the trigger, she did not intend to shoot the victim, and she never meant to hurt him. She also testified that, after she fired the first shot, the victim ran from the bathroom; she headed out of the bathroom behind him; and, as the victim started coming towards her, she then fired the second shot.
“At the conclusion of the hearing, the State moved to dismiss Griffin’s motion for immunity from prosecution on the ground that she did not admit that she committed the act and thus could not claim a justification defense. The trial court granted the State’s motion to dismiss. Griffin moved the trial court to reconsider, but it refused.
When the trial court was presented with Griffin’s pre-trial motion for immunity, it was required to consider whether Griffin met her burden of showing by a preponderance of the evidence that she was entitled to immunity because she acted in reasonable belief that her use of force was necessary to defend herself from the victim. Pate v. State, 364 Ga. App. 107, 108-109 (3) (874 SE2d 132) (2022); Hughes, 312 Ga. at 157 (4). In support of her argument that the trial court failed in this regard, Griffin cites to McClure v. State, 306 Ga. 856 (834 SE2d 96) (2019). But, we have long before held that “[t]here is no requirement that [a defendant] had to admit to the specific allegations of violence in order to obtain the protection of [OCGA § 16-3-21 (a)].” State v. Yapo, 296 Ga. App. 158, 160 (2) (674 SE2d 44) (2009).
Here, however, the trial court determined that Griffin was not entitled to immunity because she testified that her actions were not intentional, as she did not intend to fire the first or second shot and did not intend to harm the victim. In so finding, the trial court relied on language in Lightning regarding the affirmative defense of justification and its requirement for an admission of the crime before raising the defense. Id. at 60 (5). The trial court thus failed to apply the correct analysis.
The trial court made no specific findings regarding whether Griffin had a reasonable fear that such force was necessary to prevent the victim from attacking her. Instead, it conflated immunity from prosecution under OCGA § 16-3-24.2 with the affirmative defense of justification as set forth under OCGA § 16-3-21. See Copeland v. State, 310 Ga. 345, 349 (2) (850 SE2d 736) (2020). Because the trial court failed to apply the proper analysis, we must vacate the trial court’s order dismissing pretrial immunity, and remand the case for reconsideration consistent with this opinion.
Given our conclusion above, we do not address Griffin’s remaining arguments on appeal. Should the trial court once again deny Griffin’s pretrial immunity motion on remand, Griffin may raise her unresolved enumerations in another appeal.”
As such, the immunity hearing must be conducted again – to completion, the court said.
That hearing was again held on Friday, August 2 before Judge Gates Peed, again with Griffin represented by Warnock as well as Statesboro attorney Gabe Cliett. Peed said he would issue an order on the matter after reviewing the transcript and arguments, but by 2:30 p.m., he granted the defense’s motion and ruled Griffin is immune from prosecution. The order effectively ends the case against Griffin.
She’s been in GDC custody since her sentencing in February 2022 – a total of 27 months.
The Griffin case plagued the public reputation of Totten for the duration of her first term in elected office. During her re-election campaign in May 2024, District Attorney Daphne Totten published the face of Ashlyn Griffin on campaign mailers and social media documents along with her statistics for murder cases, despite the fact that Griffin was found not guilty of the offense of murder. Totten ultimately lost her bid for another term in an overwhelming defeat by Statesboro defense attorney Robert Busbee. She lost every precinct in the four county judicial circuit aside from two in Bulloch County.
