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Fleming v. State

Supreme Court of Georgia

June 24, 2019

FLEMING
v.
THE STATE.

          Melton, Chief Justice.

         Charles Fleming was tried and convicted of murder and related offenses in connection with the crimes he committed against Lamonte Corbin and Tracy Skrine.[1] Fleming appeals, alleging that the evidence was insufficient to support his convictions, that the trial court erred by improperly admitting certain evidence at trial, and that he received ineffective assistance of counsel. Finding no reversible error, we affirm.

         1. Viewed in the light most favorable to the verdict, the evidence presented at trial established that, at all relevant times, Skrine lived in a house in DeKalb County known to be a "hangout spot" from which Skrine sold drugs. Skrine and Fleming were longtime friends, and, in April 2015, Skrine introduced Fleming to Corbin and Howard Archer.

         On April 25, 2015, Archer was at Skrine's house along with Desmond Snider, Lamonte Collins, and Ivy Hampton. Fleming stopped by around 3:00 p.m. and asked if anyone had information regarding who had shot and killed his brother.[2] The men denied having any knowledge about the shooting. Fleming left the house, but returned a few hours later with three unknown men. Hampton later told officers that Skrine and Fleming had argued earlier in the day, and that Fleming told Skrine "he was coming back." Skrine told officers he believed that Fleming had brought the three unknown men to the house because Fleming thought Skrine and Corbin were withholding information regarding who shot Fleming's brother. Archer, who was sitting in his car at this time, saw Fleming and the unknown men make hand signals and perform handshakes associated with the Bloods street gang. Archer further testified that, on a prior occasion, Fleming had self-identified as a member of the Bloods.

         Fleming approached Archer and asked if he had a gun, to which Archer replied, "no." When Hampton told the group of men that Skrine was not at home, Fleming decided to remain outside by the carport while his companions went inside the house.

         Skrine returned home later with his girlfriend, Brittni Chatman, and Corbin. The three walked through the carport and into the house. Archer also went inside. There, he saw Skrine counting money while in the living room with the three unknown men who had arrived with Fleming. At this time, one of the men flashed a gun at Archer, leading him to believe that a drug deal was underway. Then Fleming came inside the house, gave the unknown men a "look," and walked back out to the car. Soon after, the men approached Corbin and Skrine, brandished their guns, and began shooting. Then they fled the house, got into a running car where Fleming was waiting, and drove away.

         After the shooting, Snider, Archer, and Chatman found Corbin lying unresponsive on the floor of the kitchen. Skrine was hiding in his bedroom and had suffered a gunshot wound to his left buttock. Archer and Chatman called the police, but Corbin had died by the time they arrived. Officers found a $1 bill and a small bag with a white powdery substance in Corbin's right hand. The medical examiner concluded that Corbin sustained three gunshot wounds, with the one to his chest being the cause of death.

         During their investigation of the crime scene, officers located one unfired 9mm round and two 9mm cartridge casings on the dining room floor, one 9mm cartridge casing on the kitchen floor by the entrance to the house, and two ".380-caliber"[3] cartridge casings on the living room floor. The medical examiner also located a ".380-caliber" bullet in Corbin's body during the autopsy. Based upon the ballistics evidence found at the scene and during the autopsy, a GBI firearms examiner concluded that between three and five firearms were involved in the shooting. Chatman and Skrine later identified Fleming in a photographic line-up, and Archer, Snider, and Hampton all made in-court identifications of Fleming at trial. In addition to presenting testimony that Fleming was seen making gang signs on the night of the shooting, and that he had previously self-identified as a member of the Bloods, the State called a gang expert at trial to testify about additional evidence of Fleming's gang affiliation. This expert opined that Fleming was a high-ranking Bloods member who had the authority to order a retaliatory and violent attack on a person who had wronged the gang or one of its members. The State also presented evidence pursuant to OCGA § 24-4-404 (b) ("Rule 404 (b)") of a retaliatory gang attack orchestrated by Fleming that occurred at the DeKalb County jail prior to trial. Finally, the parties stipulated to Fleming's status as a convicted felon in relation to the charge of possession of a firearm by a convicted felon.

         Contrary to Fleming's assertion, the evidence presented at trial was sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). "This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Punctuation and citation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 S.E.2d 313) (2013). See also OCGA § 16-2-21 (party to a crime); Parks v. State, 272 Ga. 353, 354-355 (529 S.E.2d 127) (2000).

         2. Next, Fleming argues that the trial court erred by failing to sua sponte rebuke the prosecutor under OCGA § 17-8-75, [4] and for failing to sua sponte declare a mistrial after the State raised matters in closing argument that had not been placed into evidence during trial. The District Attorney concedes that the prosecutor's actions during closing argument were improper, but argues that the error was harmless. We agree with the District Attorney.

         The record reflects that, during the State's direct examination of the medical examiner, the State presented photographs of Corbin's body, which included a picture of a tattoo on his chest that said "M-O-B." Later in the trial, the State called a gang expert to provide testimony regarding the Bloods street gang as well as Fleming's gang affiliation. During cross-examination of the expert witness, defense counsel asked if "M-O-B" was short for "Member of Blood[s]," to which the expert replied, "yes." This was contrary to testimony from Archer that Corbin was not a member of the Bloods. Defense counsel then asked if Fleming had an "M-O-B" tattoo, to which the expert replied "no, sir, not that I recall." Later, on re-cross examination, defense counsel elicited testimony that fellow gang members cannot be violent toward one another without orders from a higher-ranking gang member.

         Relying upon the gang expert's testimony and the picture of Corbin's M-O-B tattoo, defense counsel argued during closing that the jury could infer that Fleming could not have been responsible for Corbin's death because Fleming and Corbin were both members of the Bloods. In response, the prosecutor reminded the jury that the State had elicited testimony from Archer that Corbin was not a Bloods member and further argued that defense counsel had "mischaracterized . . . that M-O-B means member of blood[s]." Defense counsel objected, arguing that the prosecutor had misstated the evidence. The trial court instructed the jury to "recall what the evidence was and base your verdict on your recollection and not on what counsel says it was." The prosecutor then took out a cell phone, played a portion of Tupac Shakur's song, "M.O.B.," and argued that "M-O-B" actually stands for "money over b**ches," not "member of blood[s]." Once again, defense counsel objected, and argued that the prosecutor was trying to present new evidence. The trial court sustained the objection and the prosecutor moved on. Later, during its charge of the jury, the trial court instructed the jury that closing arguments were not to be considered as evidence.

         While the prosecutor improperly extended closing argument into matters not in evidence when she played a portion of Tupac Shakur's song for the jury, see Walker v. State, 281 Ga. 521 (5) (640 S.E.2d 274) (2007), defense counsel's objection to the argument was sustained, and "[w]here the objection to the prejudicial matter is sustained . . . the court has no duty to rebuke counsel or give curative instructions unless specifically requested by the defendant," (citation omitted) Mullins v. State, 269 Ga. 157, 158 (496 S.E.2d 252) (1998). Here, defense counsel made no such request.

         Even if we were to assume that the trial court erred in not rebuking the prosecutor under OCGA § 17-8-75, any such error was harmless. Arrington v. State, 286 Ga. 335 (15) (a) (687 S.E.2d 438) (2009) (trial court's failing to fulfill its duty under OCGA § 17-8-75 is subject to harmless error analysis). In light of the substantial evidence against Fleming, defense counsel's prompt objections, and the trial court's instructions, it is highly probable that neither the prosecutor's argument nor any alleged failure of the trial court to rebuke the prosecutor contributed to the verdict. See Anderson v. State, 302 Ga. 74 (6) (805 S.E.2d 47) (2017).[5] For these same reasons, we conclude that the trial court did not deprive Fleming of a fair trial by not declaring a mistrial sua sponte. See Dolphy v. State, 288 Ga. 705 (2) (a) & (b) (707 S.E.2d 56) (2011).

         3. Prior to trial, the State filed notices of intent to introduce evidence of Fleming's gang affiliation, including testimony from a gang expert, photographs of Fleming's tattoos, testimony from Archer that he witnessed Fleming and the unknown men making gang signs and wearing red scarves on the night of the shooting, and recordings of Fleming's phone calls from jail wherein he referred to himself and others as members of the Bloods. The notices also sought to introduce an incident at the DeKalb County jail wherein Fleming orchestrated a gang attack against another inmate as other-acts evidence pursuant to Rule 404 (b). [6] After a hearing, the trial court admitted both the gang affiliation evidence and the Rule 404 (b) evidence at trial. Fleming contends that both rulings were error. We will review each claim in turn.

         (a) Gang Affiliation Evidence

         Fleming alleges that the trial court erred in admitting evidence of his alleged gang affiliation because there was no evidence that the crime in the instant case was gang-related, and because the evidence of gang membership was highly prejudicial to him. However, because the evidence regarding Fleming's gang ...


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