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Fleming v. State

Court of Appeals of Mississippi

April 14, 2015

MARKEITH D. FLEMING A/K/A MARKEITH DARRELL FLEMING, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

DATE OF JUDGMENT: 09/17/2013.

Page 1161

COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. C.E. MORGAN III. TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, MURDER, AND SENTENCED TO LIFE, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCED TO TWENTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, HUNTER NOLAN AIKENS.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART.

BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND JAMES, JJ., CONCUR. ROBERTS AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 1162

NATURE OF THE CASE: CRIMINAL - FELONY

CARLTON, J.

[¶1] This appeal proceeds from a judgment of conviction for murder and aggravated assault entered against Markeith Fleming following a jury trial in the Attala County Circuit

Court on September 16-17, 2013. The trial court sentenced Fleming to life imprisonment on the charge of murder and ordered him to serve a twenty-year sentence for aggravated assault, with the sentences to run consecutively. The trial court denied Fleming's motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Fleming now appeals, arguing that (1) the trial court erred in denying his motion for a continuance; (2) Fleming received ineffective assistance of counsel; and (3) the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

[¶2] On September 1, 2012, Derrick Hannah and his cousin, Christopher Graham, were shot while driving home from Kosciusko, Mississippi. Hannah testified that he and Graham rode in a TrailBlazer, with Graham as the driver and Hannah riding in the passenger seat. Hannah testified that a white car pulled beside the TrailBlazer, and the occupants of the white car started shooting into the TrailBlazer. Graham pulled the TrailBlazer to the side of the road, parked, and died moments later from gunshot wounds to his neck and chest. Hannah testified that when he tried to get out of the vehicle, he fell and lacked the ability to get up due to gunshot wounds to his side and stomach, which left him paralyzed from the chest down.

[¶3] Police at the scene found a bag of what appeared to be marijuana in the lap of the deceased victim, Graham, and a " palm-size amount" of marijuana on the passenger-side floor near the door seal. Police recovered a .40 caliber Glock handgun and a spent shell casing by the driver's (Graham) seat console in the TrailBlazer, and police also discovered four 7.62 x 39 mm spent shell casings in the road within about 400 feet from the TrailBlazer. Police recovered no gun from which the 7.62 x 39 casings were allegedly fired. An Attala County grand jury later indicted and charged Fleming with one count of deliberate-design murder and one count of aggravated assault.

[¶4] At trial, the surviving passenger of the Trailblazer, Hannah, testified that as the white car approached the Trailblazer on the road, the driver, Graham, said " they

Page 1163

about to shoot us," and Hannah " looked right quick" and started ducking. Hannah testified that he possessed " no doubt" that Markeith Fleming was the shooter. Hannah testified that Fleming drove " like a white [Nissan] Altima." Hannah also testified that the gun used in the incident was a pistol. Hannah stated that he and Fleming went to school together, and that he had previously seen Fleming in that type of vehicle. Hannah stated that he knew of no reason why Fleming might want to shoot him or Graham, nor did he know of anyone else who might have reason to shoot them. Hannah claimed that shooting lasted for thirty or forty seconds, but admitted " that's a guess about how long the shooting lasted." When asked if more than one person was in the white car, Hannah responded: " It might have been, but I didn't see nobody else though."

[¶5] Another witness, Fleming's cousin, Latanya Love, arrived at the scene to help Graham and Hannah. Love testified that about fifteen minutes before she arrived at the scene, a white car driving erratically approached her on the same road, and that she let the car pass and turned around to talk to a friend. Love identified the car as a Nissan Maxima, but stated that the car did not belong to Alesia Seals, Fleming's girlfriend.

[¶6] Love further testified that an unidentified man flagged her down and directed her to Hannah and Graham when she resumed her travel down the road. Love walked over to Hannah and tended to him until medical personnel arrived. Love testified that she asked Hannah what happened, and he told her " them M.F.'s shot me." On direct examination, the State asked Love if Hannah told her who shot him, and Love responded, " he just said Maurice - - Markeith. He didn't say he shot me. He just said his name." Love testified that " everybody around that was coming on the scene kept saying that." On cross-examination, Love explained that Hannah gave no name to her but only told her that " them M.F.'s shot me," and she testified that she provided this information in her initial statement to police. She testified that police later went to her house after her initial statement, and told her to rewrite a statement. Love testified that she only told the police that others on the scene were saying " Markeith," but she testified that the police told her to write that Hannah identified Markeith Fleming as the shooter.

[¶7] Officer Jimmy Nunn of the Attala County Sheriff's Department testified that he was dispatched to the scene, where Hannah told Officer Nunn that Fleming had shot him. Officer Randy Blakely, an investigator for the Attala County Sheriff's Department, testified that Fleming came to the police station later that evening, and Officer Blakely obtained a signed waiver-of-rights form and interrogated him. Fleming told Officer Blakely that he was at his girlfriend's house in Winona, Mississippi, during the incident. Fleming stated that he had been at his girlfriend's house since 10:00 p.m. the night before, and that he did not go to Attala County the day of the shooting.

[¶8] Officer Jimmie Dale Thomas of the Mississippi Highway Patrol testified that Fleming also told police that on September 1, 2012, he called his girlfriend, Seals, at 12:15 p.m. and told her that he was going to go get her car washed, and he did so at 1:00 p.m. at a Chevron station. Thomas also testified that Fleming said he spoke with Seals's sister after he washed the car, and they " came back to town." When Officers Blakely and Thomas finished interviewing Fleming, Officer Blakely asked for a number at which he could reach Fleming, and Fleming provided them a contact phone number. Officer Blakely

Page 1164

then used the number to obtain phone records for that number from AT& T. Officer Thomas also took Fleming's fingerprints at the station.

[¶9] Forensic pathologist Erin Barnhart performed an autopsy on Graham. At trial, Dr. Barnhart testified that Graham suffered gunshot wounds to his nose, torso, chest, and left hand. Dr. Barnhart recovered two projectiles from Graham's body; one from his central chest area near the neck, and the other from his lung. Dr. Barnhart's internal examination revealed bleeding into the brain, multiple fractures to the rib cage, and lacerations to the left lung and trachea. Dr. Barnhart concluded that the cause of Graham's death was gunshot wounds, and the manner of his death was a homicide.

[¶10] Crime-scene analyst Khristopher Winger of the Mississippi Bureau of Investigation testified that he discovered numerous bullet holes (" defects" ) on the exterior and interior of the TrailBlazer, as well as projectile fragments and glass in the interior. Winger stated that he found glass and four 7.62 x 39 mm shell casings in the roadway near the TrailBlazer. Winger also discovered a " palm-size amount" of a " green, leafy substance" on the passenger door seal area. Winger collected projectile fragments from the TrailBlazer's front passenger seat, back-passenger support post, and back driver-side door seal. He also ...


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