Fleming v. State, 89-KA-276

CourtUnited States State Supreme Court of Mississippi
Citation604 So.2d 280
Docket NumberNo. 89-KA-276,89-KA-276
PartiesFred FLEMING v. STATE of Mississippi.
Decision Date17 June 1992

Page 280

604 So.2d 280
STATE of Mississippi.
No. 89-KA-276.
Supreme Court of Mississippi.
June 17, 1992.

Page 283

Jacqueline Smith Pierce, Jackson, for appellant.

Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.

McRAE, Justice, for the Court:

Fred Fleming was convicted of strong-arm robbery and aggravated assault by the Circuit Court of Hinds County, and sentenced to serve a term of fifteen (15) years on the robbery conviction and twenty (20) years on the aggravated assault conviction in the custody of the Mississippi Department of Corrections, with both sentences to run concurrently. Fleming appeals to this Court, assigning ten separate grounds for reversal. We affirm, but we do so with great reluctance given the manner in which the attorneys for both the defense and the prosecution conducted the trial below.


On October 24, 1987, Officer Shirley Williams of the Jackson Police Department found Mr. Keith Nichols lying unconscious near his eighteen wheeler truck near a Jackson park called "The Community Center." Officer Williams smelled alcohol, but upon reviving, Nichols told her that someone had hit him on the head. Nichols was hospitalized for four days. His injuries included a laceration of the scalp requiring sutures, a non-displaced fracture of the left mandible (jaw bone), and a comminuted (pulverized) mid shaft fracture to the left ulna (outer forearm). The latter injury required surgery under general anesthesia. The surgeon attached a compression plate and performed a bone graft. Nichols was unable to return to work for at least four weeks. Nichols testified that while unconscious he had been deprived of a wallet

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containing approximately $40, an envelope containing $60, and his keys. A portable television set, a CB radio, a cooler, and a water jug had been taken from inside his truck.

Nichols stated that on the evening of the attack he was preparing to carry a load to El Paso, Texas. As he was getting into his truck, several young men approached him and began to converse with him about truck driving. Suddenly, Nichols alleged, "they kinda grabbed me and I woke up beside the truck was the next thing I remembered." Nichols testified that Fleming was one of the young men, but admitted that he did not know who hit him.

Nichols claimed to have met Fleming for the first time earlier that same day. The two allegedly struck up a conversation near Nichols' truck. Nichols stated at trial that Fleming had asked for a ride to El Paso but that Nichols had refused since the company for which he worked did not allow riders. Nichols also admitted that he had asked Fleming where he could get some marijuana but denied actually getting any.

Sgt. Cleon Butler of the Jackson Police Department was assigned to the case. In the course of his investigation, Butler spoke with a confidential informant who had seen Fleming leaving the park area in the company of "a number of other black males" on the night the of the attack. Butler prepared a photographic spread which included a picture of Fleming along with four other subjects of similar age, stature, build, and ethnicity. On October 27, Butler showed the spread to Nichols, and Nichols identified Fleming.

On October 28, Fleming was arrested along with two other codefendants, Leroy Andrews and Flavian Gray. Andrews and Gray signed written statements in which they implicated themselves and Fleming in the attack and robbery.

Andrews testified against Fleming at trial. He stated that the robbery had been planned at a vacant house known as "the temple" and that Fleming had been present and participated in the planning. According to Andrews, the group proceeded from the temple to the scene of the attack. Gray was carrying a short iron pipe wrapped with red and black tape. At some point (Andrews did not know when), the pipe was transferred to Fleming's possession and Fleming perpetrated the assault upon Nichols. Andrews stated, however, that Gray, not Fleming, entered the truck to remove Nichols' property. He further testified that he did not know who relieved Nichols of his wallet.

On cross-examination, Andrews stated five times that his testimony did not result from a "deal" with the state. Defense counsel, however, produced a signed and notarized statement in which Andrews had declared: "Detective Butler told me that if I would tell him what Fred Fleming did that they would not charge me with strong armed robbery." The defense also brought out on cross-examination that Andrews had previously been convicted of aggravated assault and business burglary, that he had been drinking heavily on the occasion when Nichols was assaulted, and that he had twice come into court to plead guilty in the instant case but had changed his mind in hopes of getting a better "deal." The defense called Michael Hopson as a witness to impeach Andrews' testimony. Hopson, awaiting trial for capital murder, testified concerning a conversation he allegedly held with Andrews:

A. He [Andrews] said that Fred Fleming was mad with him 'cause he won't tell the truth about hitting the man with the pipe. He said, "They don't have no proof or evidence that he hit the man with the pipe. Why should he tell it?" That's all.

. . . . .

Q. They don't have any evidence that Leroy [Andrews] hit the man with the pipe--

A. Yes, ma'am--

Q. --and why should he tell it?

A. Yes, ma'am--

. . . . .

Q. Was that all of the conversation?

A. Yes, ma'am.

On cross-examination, Hopson admitted that he and Fleming had been cell-mates

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for several months and had become good friends.

Fleming testified in his own defense. He affirmed that he had spoken with Nichols during the afternoon of October 24; that Nichols had asked him where he could get marijuana, and that he had asked Nichols for a ride to El Paso. He further admitted that he had gone to the vacant house with his cousin Reginald that evening and that "a bunch of more guys" were there. He testified that he heard nothing about a robbery while there.

Afterwards, he and Reginald went to the park to talk with Nichols about taking Reginald to Texas. According to Fleming, Andrews, Gray, and "a bunch of them guys that was up to the house" had also come to the park. Nichols refused to take a rider to Texas, and Fleming began to walk away. Fleming further testified as follows:

Well, after I walk away--walked away, Reggie called me and I turnt 'round. He came to me. He told me that they was gonna rob Keith Nichols. And Mr. Keith Nichols, when I looked at his--when I looked at him, he was getting off his truck, fixing to go 'cross the park to his house. And I told Reggie that if he hadn't of brought all those guys down there with us that Keith Nichols probably would have took us out of town. And I told him not to rob Mr. Keith Nichols 'cause Mr. Keith know where I stay at and he also--I had gave him my phone number and my name and told him if I hadn't came back to call and see was I still going.

Q. Okay. Then what happened after that?

A. Well, by the time me and Reginald got through talking, Mr. Keith Nichols was on his way back through the park and that's when he was attacked.

Q. Okay. Did you see what happened?

A. Yes, Ma'am, I seen what happened.

Q. All right. Tell the jury what happened.

A. I seen Leroy Andrews hit--hit--hit Mr. Keith Nichols in the head with a pipe.

Q. Do you know where that pipe came from?

A. No.

Q. Did you bring a pipe from the house?

A. No, ma'am, I didn't--I didn't have a pipe none that day.

Q. Did you see anybody rob Mr. Nichols?

A. Well, I seen 'em beating Mr. Nichols and I seen Flavian Gray run to his truck and, you know, I just--I just looked at 'em. They jumped on him, beat him.

The prosecution called Tyrone Mitchell as a rebuttal witness. Mitchell testified that he was in the vicinity of the park shortly after the incident occurred and saw Fleming, Gray, and Andrews climbing down out of Nichols' truck. He saw Nichols lying on the ground by the truck. He acknowledged on cross-examination that he did not see anything in Fleming's hands.

The prosecution also called Detective Jones to the stand as a rebuttal witness. Jones testified that he had taken a written statement from Leroy Andrews in October of 1987. The writing was introduced as a prior consistent statement.

Proceedings Below

Fleming was indicted at some time early in 1988. The precise occasion and contents of the indictment are unclear since the indictment does not appear of record. Fleming asserts in his appellate brief that it occurred in February, 1988; the state places the indictment in January, 1988. According to the state, the unrecorded indictment charged Fleming with only strong-arm robbery; Fleming states that the indictment included strong-arm robbery, aggravated assault, and habitual offender provisions. In any event, Fleming was reindicted on April 11, 1988 for strong-arm robbery, aggravated assault, and recidivism. The second indictment appears in the record.

On May 12, 1988, Fleming filed a Motion to Quash Indictment and Motion for Preliminary Hearing. He asserted that although a preliminary hearing had been held prior to his first indictment, the second

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indictment was entered without the benefit of a second preliminary hearing. Fleming argued that he should have been afforded a second hearing prior to the second indictment since the second indictment included, in addition to strong-arm robbery, an additional count of aggravated assault. 1 The motion was apparently denied. Fleming subsequently filed another unsuccessful motion to quash the indictment on grounds that the warrant under which he was arrested had not been supported by an adequate affidavit.

During the first week of July, 1988, Fleming filed additional motions including a Motion for Severance of Defendants and a Motion for Discovery. On July 7, 1988, Fleming...

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