Fleming v. State
306 Ga. 240
| Ga. | 2019Background
- On April 25, 2015, Fleming arrived at Skrine’s house, left, then returned with three men; a short time later the men shot Skrine and Corbin, who died of a chest wound. Fleming was identified by several eyewitnesses and a gang expert as associated with the shooters.
- Ballistics and autopsy evidence indicated multiple guns were used and a ".380" bullet was recovered from Corbin.
- The State introduced evidence of Fleming’s Bloods membership and leadership, including tattoos, phone calls, eyewitness testimony of gang signs/colors, and a gang expert’s testimony about his authority to order attacks.
- The State also introduced a jail surveillance video (and related testimony) showing Fleming directing a retaliatory assault by lower-ranking Bloods while awaiting trial. The trial court admitted this as Rule 404(b) other-acts evidence to prove intent.
- At trial the prosecutor played part of a Tupac song in closing to argue what “M.O.B.” meant after defense argued it meant “Member of Bloods”; defense objected and the court sustained. The jury was instructed closings are not evidence.
- Fleming was convicted of felony murder (predicated on aggravated assault), aggravated assault, and possession of a firearm by a convicted felon; he appealed on sufficiency, evidentiary rulings, prosecutorial misconduct, and ineffective assistance grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to convict Fleming as a party to murder/assault | Evidence insufficient because Fleming did not fire the shots | Fleming was present but not the shooter; prosecution must prove party liability | Evidence sufficient: eyewitness IDs, gang affiliation/authority, conduct before/during/after supported party liability and verdict (Jackson standard) |
| Prosecutorial misconduct in closing (playing Tupac, arguing M.O.B.) and trial court failure to rebuke or declare mistrial sua sponte | Prosecutor improperly introduced matters not in evidence and court should have rebuked or mistried | State conceded impropriety but argued harmless; trial court sustained objections and instructed jury | Error was improper but harmless given prompt objections, curative instruction, substantial evidence; no rebuke or sua sponte mistrial required |
| Admission of gang-affiliation evidence | Gang evidence unduly prejudicial and not shown to be related to the crime | Gang evidence intrinsic: showed motive, authority, association with shooters and completed the story | Admission upheld: intrinsic or inextricably intertwined with charged offenses; probative value outweighed prejudice (Williams framework) |
| Admissibility of jail surveillance (404(b) other-acts) to prove intent/knowledge | Prior assault was prejudicial and unrelated; inadmissible propensity evidence | Other-acts showed same intent, communication via gang signals, retaliation, and temporally close; State needed it to rebut "mere presence" defense | Admitted: relevant to intent, high probative value outweighing prejudice; sufficiently similar and not remote; properly admitted under OCGA § 24-4-404(b) |
| Restriction of cross-examination about Skrine’s texts (motive that others sold bad drugs) | Exclusion curtailed confrontation, denied due process | Trial court ruled texts irrelevant/hearsay; defense later elicited similar evidence from Skrine | Any error harmless: defense later questioned Skrine on same topics and read messages into record; preserved for appeal |
| Ineffective assistance claims (multiple) | Trial counsel failed to seek rebuke/mistrial, preserve song/lyrics, challenge 404(b)/Scarves proof, object to lay-gang testimony, or move against gang evidence | Counsel made objections, proffered arguments, used inconsistencies tactically; many motions would be meritless | Denied: counsel’s actions were reasonable trial tactics, objections preserved issues, and Fleming failed Strickland prejudice/practice showing |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
- Hayes v. State, 292 Ga. 506 (deference to jury credibility determinations)
- Parks v. State, 272 Ga. 353 (party to a crime/common criminal intent)
- Walker v. State, 281 Ga. 521 (improper matters in closing)
- Mullins v. State, 269 Ga. 157 (no duty to rebuke unless requested)
- Williams v. State, 302 Ga. 474 (intrinsic evidence doctrine and Rule 403 balancing)
- Kirby v. State, 304 Ga. 472 (relevance and Rule 403 balancing for other-acts)
- Olds v. State, 299 Ga. 65 (other-acts probative on intent)
- Brannon v. State, 298 Ga. 601 (standard for OCGA § 24-4-404(b) review)