State v. Fleming

Citation512 S.E.2d 720,350 N.C. 109
Decision Date09 April 1999
Docket NumberNo. 175A97.,175A97.
PartiesSTATE of North Carolina v. John Henry FLEMING.
CourtUnited States State Supreme Court of North Carolina

Michael F. Easley, Attorney General, by Barry S. McNeill, Special Deputy Attorney General, for the State.

Elizabeth G. McCrodden, Raleigh, for defendant-appellant.

PARKER, Justice.

Defendant John Henry Fleming was indicted on 23 September 1996 for the first-degree murder of Genie Pelham ("victim"). Defendant was tried capitally and found guilty of first-degree murder on the basis of premeditation and deliberation. Following a capital-sentencing proceeding, the jury recommended a sentence of death; and the trial court entered judgment accordingly.

The State's evidence at trial tended to show the following. On or about 17 May 1996, defendant entered the home of the victim and assaulted him with a blunt object. Based upon the blood-spatter marks found at the crime scene, Anthony Jernigan, a special agent with the State Bureau of Investigation ("SBI") and a crime-scene specialist, concluded that the assault began in the victim's den. The victim moved from the middle of the love seat to the north end of the love seat. While the assault continued, the victim moved from the den, to the kitchen, and finally to the main hallway. Judging from the level of the blood-spatter marks, the victim rose and fell approximately six different times as his assailant hit him on the head. Defendant's black watch and a shoe impression matching defendant's unique shoe imprint were found at the scene of the crime.

The autopsy revealed over a dozen contusions and lacerations on the victim's head. The forensic pathologists also found abrasions on the victim's neck, arms, and right leg. The injuries to the victim's arms and shin may have been defensive wounds. Additionally, the left side of the victim's hyoid bone, which is found at the base of the tongue, was broken. The cause of death was strangulation with the hand or hands. This conclusion was consistent with the fingernail marks found on the victim's neck, the hemorrhage into the tissues underneath the skin of the neck, and the fracture and hemorrhage of the hyoid bone.

At the time of the murder, defendant and Eugenia Pelham, the victim's daughter, were having a relationship; the victim did not approve of this relationship. The victim also intended to be a prosecuting witness against defendant for three counts of uttering forged checks on the victim's bank account. Defendant's uttering trial was scheduled for 23 May 1996.

Defendant presented no evidence at the guilt-innocence phase.

Additional facts will be presented as necessary to discuss specific issues.

PRETRIAL ISSUES

By his first assignment of error, defendant contends that the trial court erred in denying his motion to prohibit the use of the aggravating circumstance that the victim's murder was especially heinous, atrocious, or cruel. N.C.G.S. § 15A-2000(e)(9) (1997). Defendant argues, inter alia, that the (e)(9) aggravating circumstance is unconstitutionally vague and overbroad and that, based on the evidence presented at trial, its submission was unwarranted. For the following reasons we disagree.

As to defendant's first argument, we have repeatedly rejected the contention that N.C.G.S. § 15A-2000(e)(9) is unconstitutional for being overbroad or vague. See State v. Gray, 347 N.C. 143, 189-90, 491 S.E.2d 538, 560 (1997),

cert. denied, ___ U.S. ___, 118 S.Ct. 1323, 140 L.Ed.2d 486 (1998); see also State v. Syriani, 333 N.C. 350, 391-92, 428 S.E.2d 118, 141,

cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993).

Further, whether a trial court properly submitted the (e)(9) aggravating circumstance depends on the facts of the case. State v. Gibbs, 335 N.C. 1, 61, 436 S.E.2d 321, 356 (1993),cert. denied, 512 U.S. 1246, 114 S.Ct. 2767, 129 L.Ed.2d 881 (1994). We have stated that the (e)(9) aggravating circumstance is appropriate "when the murder in question is conscienceless, pitiless, or unnecessarily torturous to the victim." State v. Kandies, 342 N.C. 419, 450, 467 S.E.2d 67, 84,cert. denied, 519 U.S. 894, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996). In determining whether the evidence is sufficient to support the trial court's submission of the especially heinous, atrocious, or cruel aggravating circumstance, we must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom. See, e.g., State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998)

.

Applying these principles in this case, we conclude that the evidence was sufficient to support submission of the (e)(9) aggravating circumstance. Here, the State's evidence tended to show that the victim was repeatedly assaulted with a blunt object in his own home. As the victim struggled to defend himself, defendant continued to hit him on the head as the victim moved from the den, through the kitchen, and into the main hallway. The victim had multiple cuts and bruises on his head, arms, and right leg. Defendant also manually strangled the victim to the point where his hyoid bone was fractured.

The forensic pathologists testified that the repeated blows to the victim's head did not render the victim unconscious. Defendant then applied so much pressure to the victim's neck that blood could not reach his brain. At this point the victim lost consciousness, his brain lost its ability to function, he stopped breathing, his heart stopped beating, and he ultimately died of cardiac arrest. One of the forensic pathologists testified that it would take approximately two minutes or more for a strangling victim to lose consciousness.

We hold that this evidence, when viewed in the light most favorable to the State, was sufficient to support a reasonable inference that the victim remained conscious during his ordeal and suffered great physical pain and torture as, already bloodied and bruised from the beatings, he was strangled so forcefully that his neck was repeatedly scratched. See State v. Artis, 325 N.C. 278, 320, 384 S.E.2d 470, 494 (1989)

(holding that the (e)(9) aggravating circumstance was properly submitted where strangulation victim physically and psychologically suffered), sentence vacated on other grounds, 494 U.S. 1023, 110 S.Ct. 1466, 108 L.Ed.2d 604 (1990). This assignment of error is overruled.

JURY SELECTION

Next, defendant argues that the trial court erred in denying his motion for individual voir dire and sequestration of jurors during voir dire and that the voir dire process under N.C.G.S. § 15A-1214(d) through (f) was unconstitutional.

"In capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." N.C.G.S. § 15A-1214(j) (1997). Whether to grant sequestration and individual voir dire of prospective jurors rests within the trial court's discretion and will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Atkins, 349 N.C. 62, 105-06, 505 S.E.2d 97, 123 (1998).

Defendant's sole argument in support of abuse of the trial court's discretion in refusing to permit individual voir dire or sequestration during voir dire is that prospective jurors who were unwilling to serve as jurors did not truthfully answer questions during voir dire. A careful review of the transcript does not reveal that prospective jurors misled the court in order to avoid jury duty. Of the three prospective jurors defendant now claims may have been less than candid, one was excused because he knew the victim's family; and the other two were excused because they unequivocally stated that they could not recommend the death penalty based on their personal and religious beliefs. Defendant does not allege there is any indication, and we detect no such indication, that the prospective jurors were not telling the truth during voir dire. Therefore, defendant's argument that the denial of his motion has harmed him is dismissed. Defendant further argues that, as a direct result of the statutory process under N.C.G.S. § 15A-1214(d) through (f), his constitutional rights were violated. N.C.G.S. § 15A-1214 provides, in pertinent part:

(d) The prosecutor must conduct his examination of the first 12 jurors seated and make his challenges for cause and exercise his peremptory challenges. If the judge allows a challenge for cause, or if a peremptory challenge is exercised, the clerk must immediately call a replacement into the box. When the prosecutor is satisfied with the 12 in the box, they must then be tendered to the defendant. Until the prosecutor indicates his satisfaction, he may make a challenge for cause or exercise a peremptory challenge to strike any juror, whether an original or replacement juror.
(e) Each defendant must then conduct his examination of the jurors tendered him, making his challenges for cause and his peremptory challenges. If a juror is excused, no replacement may be called until all defendants have indicated satisfaction with those remaining, at which time the clerk must call replacements for the jurors excused. The judge in his discretion must determine order of examination among multiple defendants.
(f) Upon the calling of replacement jurors, the prosecutor must examine the replacement jurors and indicate satisfaction with a completed panel of 12 before the replacement jurors are tendered to a defendant. Only replacement jurors may be examined and challenged. This procedure is repeated until all parties have accepted 12 jurors.

First, defendant argues that this process created a confusing method of questioning prospective jurors since the questioning of prospective jurors skipped from one juror to another. As a result prospective juror Brenda Jordan was called to juror seat number ten, but she was never excused or seated as a juror; and a Mr. Reeves was...

To continue reading

Request your trial
83 cases
  • State v. Hooks, 89A00.
    • United States
    • United States State Supreme Court of North Carolina
    • 20 Julio 2001
    ...light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom." State v. Fleming, 350 N.C. 109, 119, 512 S.E.2d 720, 729, cert. denied, 528 U.S. 941, 120 S.Ct. 351, 145 L.Ed.2d 274 (1999). Contradictions in the evidence pertaining to the ag......
  • State Carolina v. Waring
    • United States
    • United States State Supreme Court of North Carolina
    • 5 Noviembre 2010
    ......Fleming, 350 N.C. 109, 139, 512 S.E.2d 720, 740 (citation omitted), cert. denied, 528 U.S. 941, 120 S.Ct. 351, 145 L.Ed.2d 274 (1999). The prosecutor's ......
  • State v. Anthony
    • United States
    • United States State Supreme Court of North Carolina
    • 18 Diciembre 2001
    ......It prevents harassment of the prospective jurors based on their personal views toward the death penalty." .          State v. Fleming, 350 N.C. 109, 124, 512 S.E.2d 720, 731 (quoting State v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990)), cert. denied, 528 U.S. 941, ......
  • State v. Call, 341A96-2.
    • United States
    • United States State Supreme Court of North Carolina
    • 4 Mayo 2001
    ......Fleming, 350 N.C. 109, 119, 512 S.E.2d 720, 728, cert. denied, 528 U.S. 941, 120 S.Ct. 351, 145 L.Ed.2d 274 (1999); State v. Lee, 335 N.C. 244, 285, ......
  • 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