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Fleming v. State

January 28, 1999

JESSIE J. FLEMING
v.
STATE OF MISSISSIPPI



Before Prather, C.j., McRAE And Waller, JJ.

The opinion of the court was delivered by: McRAE, Justice

DATE OF JUDGMENT: September 17, 1997

TRIAL JUDGE: HON. C. E. MORGAN, III

COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: DOUG DOUGLAS EVANS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - January 28, 1999

MOTION FOR REHEARING:

MANDATE ISSUED:

¶1. Jessie J. Fleming appeals a conviction for fraud by a public officer. Fleming argues that the trial court erred in denying his Batson objections to the State's use of peremptory challenges, that the trial court erred for refusing Fleming's causal challenge to venirewoman Kathy England, and that the jury verdict is against the overwhelming weight of the evidence. As explained below, we find no reversible error as to any of the issues. Hence, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

¶2. On September 6, 1991, Fleming was indicted for the offense of fraud by a public officer pursuant to Miss. Code Ann. § 97-11-31 (Rev. 1994). Fleming allegedly feloniously defrauded Attala County of $156.93 by causing his personal 24-volt John Deere starter repaired with county funds. Fleming pled not guilty at his September 10 arraignment. On March 25, 1992, the jury returned a verdict of guilty. On March 26, 1992, Fleming was sentenced to 5 years-4 years of which were suspended-in the custody of the Mississippi Department of Corrections (MDOC). Fleming filed a Motion for Judgment Notwithstanding the Verdict or for a New Trial, which the court denied. Subsequently, Fleming filed a Notice of Appeal.

¶3. On October 5, 1992, Fleming filed a Motion to Stay Appeal and Allow Defendant to Proceed in Trial Court. Fleming argued that after filing his Notice of Appeal he learned that Clarence T. Foster, one of the jurors in his case, was a convicted felon whom, when asked during voir dire if he had ever been charged with or convicted of a crime, did not reveal his conviction. On March 11, 1993, Justice Roberts of the Mississippi Supreme Court stayed Fleming's appeal for a period of 45 days. On April 12, 1993, Fleming filed a Motion for New Trial. On June 29, 1993, the Attala County Circuit Court issued an Order Denying Defendant's Motion for a New Trial. Final judgment was entered July 6, 1993, followed by a timely appeal on August 4, 1993. On September 8, 1993, the Supreme Court dissolved its stay.

¶4. On January 9, 1997, the Supreme Court reversed and remanded the case. Fleming v. State, 687 So. 2d 146 (Miss. 1997). On September 17, 1997, the jury rendered a verdict of guilty. Pursuant to such verdict, the trial court held a sentencing hearing on September 19, at which time the court sentenced Fleming to serve 5 years with MDOC, 4 of which were suspended. Final judgment was entered. Then, Fleming filed a Motion for Judgment Not Withstanding the Verdict or for a New Trial, which was denied. Fleming subsequently filed a Notice of Appeal both from the final judgment and from the denial of the Motion for Judgment Notwithstanding the Verdict or for a New Trial. Fleming argues on appeal:

"I. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S BATSON OBJECTIONS TO THE PROSECUTOR'S PEREMPTORY CHALLENGE OF BLACK VENIREMEN. "II. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S CAUSAL CHALLENGE TO VENIREWOMAN, ENGLAND, BECAUSE OF HER FAMILY RELATIONS TO ONE OF THE STATE'S MAIN WITNESSES, MR. CHARLES ENGLAND. "III. THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S MOTION FOR A DIRECTED VERDICT, FOR A PEREMPTORY INSTRUCTION OF NOT GUILTY, AND THE DEFENDANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE JURY VERDICT OR IN ALTERNATIVE A NEW TRIAL BECAUSE THE VERDICT OF THE JURY WAS CONTRARY TO OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE."

STATEMENT OF THE FACTS

¶5. Jessie J. Fleming was elected supervisor of District (Beat) 4 in Attala County in 1984. Fleming served 8 years and was elected to a third term. Upon entering office, Fleming was presented an inventory by the chancery clerk, Charles England. Fleming proceeded to take inventory of the District's property. Fleming was to confirm that all of the equipment on the inventory was present. Fleming testified that some items could not be found. When Fleming returned the inventory sheet, he informed the chancery clerk that he could not find all the equipment, including a 4020 John Deere tractor, so Fleming refused to sign the inventory sheet that listed the tractor. The situation was resolved by the chancery clerk giving Fleming another inventory sheet, but with the tractor deleted. Of note is the fact that both Marshall Fleming and Jerry Jones testified that while they were employed with the county, but before Fleming's administration, Beat 4 kept a 4020 John Deere tractor at the barn. Marshall further testified that he saw an old, rusty starter on the tool table.

¶6. Fleming testified that in May 1991, Sammie Ball, the maintenance man, suggested that Fleming order repair of a John Deere starter, which was found in the Beat 4 Barn. Fleming testified that the starter had been in the barn several years because in May of 1991 no equipment was being operated that would have possessed such a starter. Indeed, Fleming testified that the starter at issue was neither on the inventory list nor his. Fleming testified that he was having problems getting equipment repaired through the central shop, so, at the suggestion of Ball, he had the starter repaired in case there were problems with some of the equipment. At the time of the repair, no machinery needed a starter.

¶7. Sammie Ball testified he told Fleming that Fleming could take the starter, get it rebuilt, and save the county some money. Ball further stated that the county did not always wait for a starter to quit working before the county would purchase starter parts because the county wished to keep parts in stock so machines are available for use even if a part breaks down. Indeed, Ball testified he told Fleming the starter at issue could be rebuilt so "[w]e will have it when we get ready for it."

¶8. Fleming took the starter to Delmer Larson of D & C Auto Electric for repairs. Fleming told Larson he would pick up the starter when Larson completed repairing it. Fleming testified that after the starter was repaired, Fleming took the part back to the county barn where it stayed for several days.

¶9. Delmer Larson testified that he became suspicious of Fleming when Fleming told him not to follow Larson's typical procedure of taking such a part to the county barn; rather, Fleming wanted to pick up the starter. Larson further testified that Fleming did not ask for the starter to be modified despite the fact that the starter would not fit anything other than a 4020 John Deere tractor without modification.

¶10. According to Fleming's testimony, upon having the starter repaired and placed in the barn, he expressed concern to his employees as to whether the starter actually worked. So, Fleming told his employees that he would take the starter to see if it worked, then return it to the county barn. Fleming testified he took the starter to his home and partially installed it on his own John Deere tractor. Fleming's tractor contained Fleming's personal starter, which was working version of the same type of starter he was testing. Fleming's tractor had not been used in several months.

ΒΆ11. According to Fleming, there were problems installing the county's starter, so the person helping him went to check exactly how the starter should be installed, but, before Fleming's helper returned, Investigator Drane told the chancery clerk that he [Drane] wanted to talk with Fleming. Fleming testified that it was neither his intention to keep nor use the starter, just to test it. Fleming further ...


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