Fleming v. Kemp

Decision Date29 November 1984
Docket NumberNo. 83-8321,83-8321
Citation748 F.2d 1435
PartiesSon H. FLEMING, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Kenneth Shapiro, Atlanta, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

The petitioner, Son H. Fleming, is a Georgia inmate who has been convicted of the murder of James Edward Giddens, the police chief of Ray City, a small town in south Georgia, and sentenced to death. 1 He applied to the district court for a writ of habeas corpus, contending that his conviction and/or sentence were invalid on thirty-nine federal constitutional grounds. All the claims had previously been considered on their merits and rejected by the Georgia courts. 2 The district court refused to issue the writ. Petitioner appeals, raising eight of the claims he brought to the district court. We affirm.


The evidence presented to the petit jury during the state criminal prosecution in this case was introduced at two trials. 3 At the first trial, which began on January 24, 1977, the jury found petitioner guilty of malice murder and recommended that he be sentenced to death. The trial judge, required by Georgia law to follow the jury's recommendation, imposed the death penalty. The Supreme Court of Georgia set aside petitioner's death sentence, 4 and he thereafter received a new sentencing trial. At this trial, convened on December 5, 1977, the parties, collectively, introduced essentially the same evidence adduced at the first trial, and, on the jury's recommendation, the court again sentenced petitioner to death. For ease of presentation, we recite the evidence as if the guilt and penalty phases of petitioner's trial had been held before the same jury. 5


The murder of James Edward Giddens took place between 10:30 and 11:00 p.m. on February 11, 1976 near Lakeland, Lanier County, Georgia. It was the last of a series of crimes committed that night by petitioner, Son H. Fleming, and his accomplices, Henry Willis III and Larry Donnell Fleming (petitioner's nephew), in south central Georgia. On the afternoon of February 11, petitioner, in Moultrie, Georgia, borrowed a red and white Ford car from Terry Coney, a friend. At about 8:00 p.m., petitioner left Moultrie in the car with Larry Donnell Fleming and Henry Willis III as passengers.

The three men robbed a convenience store that evening between 10:00 and 10:30 in Adel, Georgia. 6 Larry Fleming and Willis, one of them armed with a .22 caliber revolver, went into the store while petitioner remained in the car. They accosted the manager, rifled the cash register, and fled with a brown paper bag of money and a carton of Kool cigarettes.

James Edward Giddens, the police chief of Ray City, 7 was sitting in his police car in Ray City talking with a friend, L.V. Dupree, when he received a broadcast over his police radio about the robbery. Shortly thereafter, the red and white Ford passed through Ray City. The car appeared to have two occupants, but, in fact, there was a third who was hidden from view. One of the occupants wore a baseball cap. Chief Giddens pursued the car to investigate. Moments later, he radioed the police dispatcher that he was stopping the car and gave a conclusive description of it, including the license number. Once both cars were stopped, petitioner, the driver of the Ford, got out to speak with Chief Giddens. One of the other men with petitioner jumped Giddens and all three men struggled for his service revolver. After significant difficulty, they subdued Giddens and, at gunpoint, placed him in the Ford. Petitioner then proceeded to drive the car over some isolated country roads.

During the trip, Chief Giddens begged them to spare his life, telling them that he would never report the incident, that he had a wife and three small children, and that he was scheduled to retire from the police force the next day. Petitioner stopped the car near a swamp and everyone got out. Chief Giddens ran into the swamp, whereupon petitioner shot at him three times with Giddens' .38 caliber revolver. One of the bullets went through the chief's body, crippling him. Giddens struggled to escape. Petitioner gave Giddens' revolver to one of the others. The two younger men, now armed with Giddens' revolver and the .22 caliber pistol used in the robbery, hunted down the chief and pumped his body full of bullets from close range.

Twenty minutes after Chief Giddens radioed that he was stopping the red and white Ford, L.V. Dupree found his patrol car along the highway, where petitioner and his accomplices had left it, and used the car's police radio to report the incident to the police radio dispatcher. The police immediately broadcast an alert for the Ford, and two hours later, at 12:30 in the morning of February 12, two Brooks County deputy sheriffs stopped the Ford near Barney, Georgia. 8 The Ford appeared to have two occupants: petitioner, wearing a baseball cap, behind the steering wheel, and a black male passenger in the right front seat. The deputies drew their weapons and ordered the two men to get out of the car. Petitioner and Willis, the passenger, complied and were placed under arrest. One of the deputies then searched the Ford and discovered Larry Fleming hiding by the front seat, under the dashboard. The deputy also discovered Chief Giddens' revolver, a .22 caliber pistol loaded with ratshot, 9 a brown paper bag of money and a carton of Kool cigarettes.

The next day, the police found Chief Giddens' bullet-riddled body face down in the swamp about 100 feet from county road 122, between Lakeland and Hihira. An autopsy revealed that he had been shot several times in the face with ratshot at a range of less than fifteen inches. He had also been shot five times with his own revolver. Chief Giddens had somehow survived all of these gunshot wounds; he died from drowning.


Petitioner, Willis, and Larry Fleming were arrested, advised of their rights and transported to the Brooks County jail. 10 At 10:00 a.m. petitioner gave an oral statement 11 to the police. In this statement, he said that he knew nothing about Giddens' murder and that he was in Valdosta with his uncle, Cain West, when it occurred. Later in the day, the three arrestees were taken before a justice of the peace who advised them of the charges lodged against them--armed robbery, kidnapping with bodily injury, and murder--and of their rights.

On February 16, law enforcement officers confronted petitioner with Cain West's statement that petitioner had not been with him in Valdosta at the time of the murder, as petitioner had contended. At this point petitioner made a second oral statement to the police in which he repudiated his alibi and admitted that he had been with Willis and Larry Fleming on the night of February 11. 12 He professed innocence, however, claiming that Willis and Larry Fleming were completely responsible for the kidnapping and murder of Chief Giddens. Petitioner said the other two forced him, against his will, to participate in the crimes. Willis and Larry Fleming overpowered Chief Giddens. They compelled him to drive the car, and they eventually committed the murder. Petitioner only acted out of fear for his own safety. He even begged Willis and Larry Fleming to spare Giddens' life because of the chief's story about his wife and three small children.

On the afternoon of February 16, petitioner, along with Willis and Larry Fleming, appeared before Judge Lott of the Berrien County Superior Court. 13 Judge Lott advised petitioner of the three crimes for which he was being held and of his right to an attorney. Petitioner replied that his mother was going to hire a lawyer for him.

On February 17, the Berrien County grand jury, having territorial jurisdiction over the kidnapping offense, indicted the three men for kidnapping with bodily injury, a capital felony. The grand juries of Cook and Lanier Counties, where the robbery and murder, respectively, had occurred, were not in session, and new grand juries would not be impaneled until the summer or early fall. Consequently, indictments for the armed robbery and murder charges would be delayed.

On February 24, the three men again appeared before the Berrien County Superior Court. Petitioner's mother had not been able to hire a lawyer to defend petitioner so the judge appointed Edward Parrish, an experienced trial attorney, to represent him on the kidnapping with bodily injury charge. (Petitioner had not been appointed counsel on the armed robbery and murder charges because he had not been indicted for those offenses.) The court also appointed counsel for Willis and Larry Fleming. Larry Fleming's counsel then associated Millard Farmer, an Atlanta criminal defense lawyer with considerable experience and expertise in capital cases, as co-counsel. Shortly thereafter, Farmer requested the prosecutor in the Superior Court for Berrien, Cook, and Lanier Counties to arrange an "evidentiary hearing" before a justice of the peace on all three charges so that the defense could examine the State's evidence. Neither Farmer nor any other defense counsel requested a "committal hearing" 14 for the purpose of determining whether probable cause existed to believe that the accused committed the crimes in question and, if so, whether he should be bound over to the grand jury. (The Berrien County grand jury indictment had already resolved the first issue as to the capital offense of kidnapping with bodily injury, and the three accused were being held on that charge. 15 )

A justice of the peace for Cook County eventually convened the requested evidentiary hearing in Adel on May 14, 1976. 16 Farmer appeared as counsel for all three defendants. Petition...

To continue reading

Request your trial
37 cases
  • Williams v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 4, 2000
    ...(Ala. Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990). "We find that the holding of Fleming v. Kemp, 748 F.2d 1435, 1452 (11th Cir. 1984), cert. denied, 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), is applicable "`In summary, we are not persuaded by......
  • Jenkins v. Allen
    • United States
    • U.S. District Court — Northern District of Alabama
    • August 31, 2016
    ...decision," concerning when to object, should not be second-guessed by those having the benefit of hindsight. Fleming v. Kemp, 748 F.2d 1435, 1450 (11th Cir. 1984), cert. denied, 475 U.S. 1058 (1986). Finally, Jenkins has failed to show that a different outcome of the trial probably would ha......
  • Callahan v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 30, 1999
    ...meaning.' Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974). Here, as in Fleming v. Kemp, 748 F.2d 1435, 1450 (11th Cir.1984), cert. denied, , 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), `We have examined the comments in question and conclude that their pro......
  • Moore v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 21, 1987
    ...charged crime and, if so, whether to bind the accused over to the grand jury. See O.C.G.A. Sec. 17-7-23(a) (1982); Fleming v. Kemp, 748 F.2d 1435, 1439 n. 14 (11th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986).12 Judge Sosebee did not preside over the committ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT