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Son H. FLEMING

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Robbery - To avoid arrest
Number of victims: 1
Date of murder: February 11, 1976
Date of arrest: Next day
Date of birth: 1929
Victim profile: Ed Giddens, 29 (Ray City Police Chief)
Method of murder: Shooting (a nickel-plated .22 caliber revolver)
Location: Lanier County, Georgia, USA
Status: Sentenced to death in January 1978
 
 
 
 
 
 

Son Fleming, 66, was sentenced to death in January 1978 in Lanier County for the murder of Ray City Police Chief Ed Giddens, 29.

The officer stopped a speeding car in February 1976, not knowing the men inside had just pulled an armed robbery. It was Chief Giddens' last day on the job he had intended to move to Florida.

Mr. Fleming's brother was sentenced to life in prison. Henry Willis III, 36, was sentenced to death, too, and he was executed May 18, 1989. Mr. Fleming was the test case for the 1988 mental retardation exception for the death penalty. He was returned to Lanier County in March 1991 for a new sentencing trial.

 
 

Facts:

Appellant borrowed a red and white Ford car from a friend on February 11, 1976. Around 10 or 10:30 p.m. that day a grocery store in Adel (Cook County) was robbed by two black males identified as Larry Fleming (appellant's nephew) and Henry Willis. One robber was armed with a nickel-plated .22 caliber gun. The stolen money was stuffed in a paper sack, and a carton of Kool cigarettes was also stolen.

The red and white Ford (apparently occupied by two black males) passed through Ray City shortly after the robbery, and aroused the suspicion of Chief Giddens, who had heard of the robbery over his radio. Chief Giddens pursued the car, and reported a description (including the license plate number) of it by radio.

Minutes later Giddens' police car was found abandoned by a friend with whom he had been talking prior to the pursuit. Giddens' disappearance was reported, and at 12:30 a.m. the red and white car was stopped; its three black male occupants (appellant, his nephew, and Willis) were arrested. Giddens' .357 magnum pistol, a nickel-plated .22 revolver, a brown sack of money, and a carton of Kool cigarettes were found in the car.

Giddens' body was found in a pond in Lanier County. He had been shot several times. Powder burns and the patterns of ratshot from the .22 pistol indicated that some of the wounds were made at a range of less than 18 inches. One bullet recovered from the body was fired from Giddens' gun.

After his arrest appellant made a number of statements. He initially stated that his nephew and Willis had borrowed the car from him before the robbery, and that he did not see them again until they picked him up shortly before the arrest.

His next statement indicated that he had been picked up after the robbery, but before the pursuit by Chief Giddens. He stated that the three of them were stopped by Giddens, and when the policeman attempted to search the car he was overpowered and abducted by the other two.

Appellant claimed that he was forced to drive the car while his nephew and Willis held Giddens at gunpoint. After Giddens told them of his report of the license number of the car, they drove to a remote area and let him out. When Giddens ran in an attempt to escape, both Larry Fleming and Willis shot at him. Giddens fell wounded into the nearby lake; Larry Fleming and Willis followed him there. Appellant heard additional shots. This statement also indicated that appellant begged the other two not to kill Giddens, and that he acted only out of fear of them.

The testimony of a fellow inmate at the Cook County Jail indicated that appellant admitted driving the car while the others robbed the store, and that it was appellant who first shot at Giddens as he ran. At all times appellant has denied having shot Giddens as he stood helpless in the water. Appellant denied making this last statement to the fellow inmate.

Appellant's only evidence in defense was his own testimony, in which he returned to his first story. In the sentencing phase his counsel presented no additional evidence of mitigating circumstances, relying on the evidence at the guilt phase. Appellant's personal history sheet shows no convictions for serious or violent crimes, and a long history of employment (more than twenty years) in various jobs. He was 46 at the time of the murder.

 

 
 

FLEMING v. THE STATE.

34192.

(243 Ga. 120)
(252 SE2d 609)
(1979)

MARSHALL, Justice.

Resentencing for murder. Cook Superior Court. Before Judge Lott.

The appellant, Son H. Fleming, was convicted in the Lanier Superior Court of the murder of Police Chief James Giddens of Ray City, Georgia. The jury imposed the death penalty, finding two statutory aggravating circumstances: (1) "The offense of murder was committed against Police Chief James Edward Giddens, a police officer, while he was engaged in the performance of his duties," Code Ann. 27-2534.1 (b) (5) (Ga. L. 1973, pp. 159, 163); and (2) "The offense of murder was committed while the Defendant was engaged in the commission of another capital felony, to wit: kidnapping of and bodily injury to James Edward Gidens, a human being." Code Ann. 27-2534.1 (b) (2).

On direct appeal to this court, the appellant's murder conviction was affirmed, but his death sentence was set aside, because the court had failed to make clear to the jury that they could recommend a life sentence even if they found the existence of a statutory aggravating circumstance. See Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1977). On remand, the appellant's motion for change of venue as granted, and his retrial on the question of punishment was held in the Cook Superior Court. The jury again sentenced the appellant to death, finding the same two statutory aggravating circumstances as found at his original trial. This is the appeal. A factual summary of the case is amply set out in Fleming v. State, supra, and will be repeated here as is necessary for a consideration of the enumerations of error raised.

1. In the first nd eighth enumerations of error, the appellant contends that the evidence is insufficient to support imposition of the death penalty. The real question which these enumerations of error raise is whether the evidence support the jury's finding of statutory aggravating circumstances. See Code Ann. 27-2537 (c) (2) (Ga. L. 1973, pp. 159, 165).

The evidence presented at retrial on the question of punishment was substantially the same as the evidence presented at the original trial. This evidence authorized the jury in finding that Larry Fleming, Henry Willis, and the appellant were stopped by Police Chief Giddens after two black males identified as Larry Fleming and Henry Willis had robbed a grocery store in a car driven by the appellant. Giddens' bullet-riddled body was later found. The testimony of a fellow inmate at the Cook County jail indicated that the appellant admitted driving the car while the others robbed the grocery store, and that the appellant had participated in shooting Giddens.

This enumeration of error is, accordingly, without merit.

2. In the second enumeration of error, the appellant argues that the trial court, in effect, coerced the jury into returning a verdict by delaying providing the jurors the evening meal, and by keeping the jury in session beyond a normal working day.

A review of the transcript fails to disclose any evidence to substantiate this argument. Nor does it appear that the appellant raised any objection to this at trial. We, therefore, find this enumeration of error to be without merit.

3. The third enumeration of error, in which the appellant argues that the death penalty constitutes cruel and unusual punishment, is also without merit. See Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976).

4. In the fourth enumeration of error, the appellant argues that under Code Ann. 27-2503 (Ga. L. 1974, pp. 352, 357), only the jury trying the issue of guilt or innocence can sentence the accused to death. Thus, the appellant argues that since the court set aside the death sentence imposed by the jury returning a verdict of guilty on the murder charge, he could not subsequently be given the death penalty.

The argument made by the appellant in this enumeration of error has been decided adversely to him in Miller v. State, 237 Ga. 557 (229 SE2d 376) (1976), where it was held that a new sentencing trial can be held before a new jury where the jury convicting the accused also sentences him to death and the death sentence is set aside on appeal due to some error infecting the sentence.

5. In the fifth and seventh enumerations of error, the appellant argues that the trial court erred in failing to make clear to the jury that they could recommend a life sentence, for any reason whatsoever, without making a finding of mitigating circumstances.

6. In the sixth enumeration of error, the appellant argues that the trial court erred in allowing the state to read to the jury the testimony of a witness at the prior trial without showing that this witness was legally inaccessible, within the meaning of Code 38-314.

There was no objection made to the admissibility of this testimony at trial, and the defendant can not complain of the admissibility of testimony for the first time on appeal. Mallory v. State, 230 Ga. 657 (2) (198 SE2d 677) (1973); Starr v. State, 229 Ga. 181 (190 SE2d 58) (1972). This enumeration of error is without merit.

7. Finally, we must determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor (Code Ann. 27-2537 (c) (1)) and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. 27-2537 (c) (3).

We find no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The verdict is factually substantiated.

In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1, 1970, in which death or life sentences were imposed and find the similar cases listed in the appendix support the affirmance of the death penalty in this case. Son H. Fleming's sentence to death is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant.

Edward Parrish, Benjamin Zeesman, for appellant.

ARGUED NOVEMBER 13, 1978 -- DECIDED JANUARY 24, 1979 -- REHEARING DENIED FEBRUARY 14, 1979.

 

 

 
 
 
 
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