Fleming v. Zant

• Decision Date: 25 March 1983
• Docket Number: Civ. A. No. 81-68-VAL.
• Citation: 560 F. Supp. 525
• Parties: Son H. FLEMING, Petitioner, v. Walter ZANT, Warden, Respondent.
• Court: U.S. District Court — Middle District of Georgia

560 F. Supp. 525

Son H. FLEMING, Petitioner, v. Walter ZANT, Warden, Respondent.

Civ. A. No. 81-68-VAL.

United States District Court, M.D. Georgia, Valdosta Division.

March 25, 1983.

Kenneth A. Shapiro, Atlanta, Ga., for petitioner.

Nicholas G. Dumich, Atlanta, Ga., for respondent.

OWENS, Chief Judge:

Pursuant to laws passed by Congress giving a convicted state prisoner the legal right to apply to this United States District Court for a writ of habeas corpus "only on the ground that he is in state custody in violation of the Constitution ... of the United States," 28 U.S.C. § 2254, and requiring this court to consider his application, petitioner Son H. Fleming seeks a writ of habeas corpus overturning his conviction for the February 11, 1976, murder of Ray City, Georgia, Police Chief James Edward Giddens and the jury imposed-sentence of death therefor. Consistent with the adage that "perfect vision is 20/20 hindsight" petitioner Fleming's second set of pro bono habeas attorneys urge this court to "fly speck" petitioner's several trials, appeals and state habeas proceedings, and, because of technical alleged constitutional errors observable only with "perfect vision" and having no effect upon the constitutional fairness of Son Fleming's conviction or sentence, set aside his conviction and sentence. Having carefully read and considered the entire transcript of petitioner's state court proceedings together with ALL that has been submitted by petitioner's attorneys, and having concluded that petitioner has been constitutionally tried, convicted, and sentenced to die upon evidence—including his own unsolicited confession to a fellow jail inmate—more than sufficient to convince any twelve jurors of his guilt beyond a reasonable doubt, this court, for reasons hereinafter stated, refuses to disturb his conviction for murder or his sentence of death. The reasons and the facts hereinafter stated represent this judge's de novo determination and rejection in whole of the findings and recommendations of the magistrate on the one issue addressed by the magistrate and further represent this judge's findings of fact and conclusions of law as to all remaining issues raised by petitioner and not included in the magistrate's proposed findings and recommendations. Rule 8(b), Section 2254 Rules.

THE FACTS¹

The murder of James Edward Giddens between 10:30 and 11:00 p.m. on February 11, 1976, near Lakeland, Lanier County, Georgia 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 three counties—Cook, Berrien and Lanier—of the southern central portion of Georgia. The following is a highlighted map of the area in question:

On the afternoon of February 11, 1976, petitioner Son H. Fleming, a black male then living at the Circus Motel in Moultrie, Colquitt County, Georgia, borrowed a 1968 red and white Fairlane Ford equipped with mag wheels and a jacked-up rear end, from his friend, Terry Coney, who also resided at the Circus Motel. Around nine o'clock that night petitioner, with his nephew, Larry Donnell Fleming, and Henry Willis, III as passengers, left Moultrie in the 1968 red and white Fairlane and drove to Adel, Cook County, Georgia, some 25 miles away. Petitioner, the only one possessing a driver's license, drove at all times. When they got to Adel, they drove to Jim's Minit Market for the purpose of robbing the store. Larry Fleming and Henry Willis, III got out of the car, went inside, and with guns robbed the store while petitioner waited in the car at a point where neither he nor the car could be seen by store personnel. The store manager gave them the store's currency and coin in a paper bag and they departed. At about 10:15 p.m. the police were notified of the robbery of the store and a report of the robbery was then broadcast over the area police radio.

James Edward Giddens, the Police Chief of Ray City, Georgia—situated some 14 miles easterly of Adel in the adjoining county of Berrien—was sitting in his police car in Ray City talking to a friend and listening to the police radio at the time the robbery report was broadcast. Soon thereafter he saw a vehicle with two black males as passengers, passing through town and decided to check it out. At 10:30 p.m. Chief Giddens reported by police radio that he was proceeding on Highway 129 east behind a red and white Ford with its back jacked up, tag number GBO 282, and two black males as passengers.

L.V. Dupree, the man with whom Chief Giddens was talking when the radio report was heard and when the Chief left in pursuit of the red and white Ford, became concerned when the Chief did not return to Ray City and went looking for him. At about 11:00 p.m. he found the Chief's police car sitting on the side of the road with its lights off and the Chief not in the car. Using the police radio he notified the Nashville police dispatcher who immediately put out a lookout for the red and white Ford and dispatched others to the scene. Prior to that the dispatcher had unsuccessfully tried to reach Chief Giddens by radio.

Among the area law enforcement officers receiving the report of Chief Giddens' disappearance and the description of the red and white Ford, were two Brooks County Deputy Sheriffs who decided to assist by driving to the intersection of Highways 76 and 122 at Barney, Georgia and waiting there to see if they were needed. Around midnight they were advised by radio that a CBer had reported seeing the wanted car and was then following it on Highway 94 as it was passing through the nearby town of Morven. The deputies proceeded to the intersection of Highways 122 and 94, parked and waited. In a few minutes the wanted vehicle followed by the CBer came by on Highway 94. The deputies followed, pulled between the cars and after verifying the tag number of the Ford, pulled it over. Son Fleming, the driver, got out first and Henry Willis, III got out next. Only after Son Fleming and Willis were laying on the ground did one of the deputies see someone else in the car and require him to also get out. The third person was Larry Donnell Fleming. A search of the car resulted in two pistols—a .357 magnum issued to Chief Giddens and a .22—being found under the driver's seat; a paper sack containing currency and coin being found under the seat; and wet clothes being found in the trunk. The three apprehended black males denied knowing anything about Chief Giddens.

A massive search participated in by area law enforcement officers began soon thereafter and continued until Chief Giddens' uniform shirt was found hanging on a bush by the side of a road in Lanier County and his bullet-riddled body was found in the water of a nearby swamp around 5:00 a.m.

While the search was underway, the manager of the robbed Adel store had been taken to the point where the red and white Ford had been stopped and had identified Larry Fleming and Henry Willis, III as the robbers. Larry Fleming, Henry Willis, III and Son Fleming were held under arrest. Later that day—February 12—they were taken before Justice of the Peace Henry Snead in Berrien County and advised of their rights, among other things, to a committal hearing and to a lawyer. (V. Nugent testimony, p. 40).

As will be more fully discussed, each of the three after being advised of his rights, made one or more statements to investigating officers in which Larry Fleming and Henry Willis, III admitted the participation of all three defendants in the Cook County robbery, the Berrien County kidnapping of Chief Giddens and the Lanier County murder of Chief Giddens. Son Fleming first denied even being with Larry and Henry during the robbery and kidnapping. Subsequently he admitted driving the car until they reached the swamp, at which point he said he begged Larry and Henry not to shoot Chief Giddens, and that he did not participate in the shooting.

On Monday, February 16, at 5:30 p.m. Larry Fleming, Henry Willis, III and Son Fleming were brought before Superior Court Judge H.W. Lott in Berrien County. He advised each of them of their right to an attorney: Larry Fleming said his family was trying to get him a lawyer; Henry Willis said to wait and see if he could get himself a lawyer; and Son Fleming said his mother was going to get him a lawyer. (Exhibit IX).

The next day—February 17—the already impaneled grand jury of Berrien County Superior Court indicted Larry Fleming, Henry Willis, III and Son Fleming for kidnapping with bodily injury, a capital felony. 1933 Ga.Code § 26-1311. (Exhibit XI). The grand juries of Cook and Lanier Counties had met and disbanded and new grand juries were to be impaneled in September and August preceding the regular term of Superior Court in October and September. Indictments for armed robbery and murder could only be returned by those grand juries. In the meantime they were held on the kidnapping indictment charges.

On February 24 at 3:15 p.m. Larry Fleming, Henry Willis, III and Son Fleming appeared again before Superior Court Judge Lott in Berrien County. Henry Willis asked for an appointed lawyer; Larry Fleming asked for an appointed lawyer; and Son Fleming asked for an appointed lawyer to serve until he could employ his own. M. Dale English, an attorney of Adel, Georgia, was appointed for Larry Fleming; George H. Wynn, an attorney of Lakeland, Georgia, for Henry Willis, III; and Edward Parrish, an attorney of Adel, Georgia, for Son Fleming. On April 30, 1976, each defendant appeared before the Superior Court of Berrien County with appointed counsel, was arraigned on the kidnapping with bodily injury indictment and pled not guilty. Trial was set for June 14. (Exhibit XI).

In the meantime, indictments had not been considered in Cook County for armed robbery and Lanier County for murder because their grand juries had not met. (Nugent testimony, p. 44).

From the time of their arrest and...