784 S.E.2d 743
W. Va.2016Background
- In September 2012 Fleming, an Iraq combat veteran diagnosed with PTSD, drove through a neighbor’s yard, threatened people with a rifle, fired at multiple persons and vehicles, and was arrested after a brief pursuit and an exchange with deputies.
- Fleming was indicted on multiple counts (twelve wanton endangerments, one attempted murder, one fleeing in reckless indifference) and raised an insanity/mental-defense based on PTSD; the defense filed a notice of mental defense and sought evaluations.
- A court-appointed psychologist (Trainor) found Fleming competent but with diminished capacity re: criminal responsibility; the trial court ordered a second psychiatric evaluation (Adamski) which concluded Fleming was criminally responsible.
- The State withdrew an earlier plea offer premised on the Trainor report after the Adamski report; Fleming proceeded to a jury trial, where experts for both sides testified about PTSD and responsibility. The jury convicted Fleming on all counts.
- Fleming moved for a new trial (arguing improper court participation in plea bargaining, insufficiency of evidence on sanity and attempted murder, prosecutorial misconduct, mistrials for certain questioning, and disproportionate sentence); the trial court denied the motion and the Supreme Court of Appeals affirmed.
Issues
| Issue | Fleming's Argument | State's Argument | Held |
|---|---|---|---|
| Court-ordered second forensic evaluation / alleged court participation in plea bargaining | Court impermissibly participated in plea discussions by sua sponte ordering a second evaluation after Fleming had a signed plea-letter | Plea was never formally tendered to the court; court statute authorizes sua sponte competency/criminal-responsibility evaluations | No abuse of discretion; ordering second evaluation was authorized and not impermissible plea participation |
| Sanity at time of offense / burden of proof | Fleming presented expert testimony (Trainor, Feingold) establishing insanity/diminished capacity, shifting burden to State to prove sanity beyond a reasonable doubt | State presented Adamski who testified Fleming was sane; credibility for experts was for the jury | Sufficient evidence supported jury’s finding of sanity; jury credited State expert; conviction affirmed |
| Sufficiency of attempted murder conviction / plain error | Attempted murder requires specific intent; only evidence of malice was use of rifle and Fleming claimed lack of memory, so plain error should be invoked | Trial testimony showed deliberate rifle fire at Slade’s car with bullets that could have killed—jury could infer malice and requisite intent | No plain error; evidence, viewed favorably to prosecution, supports attempted murder conviction |
| Motions for mistrial based on witness questioning (Heather Ludwick, Drs. Adamski and Feingold) | Prosecutor elicited prejudicial or improper testimony (Arabic/military commands/spaceships; alleged expert bias; ethics of opining without interview) warranting mistrials | Questions were relevant to rebut insanity/PTSD claims or were proper cross/examination; some objections not timely | Trial court did not abuse discretion in denying mistrials; issues were for jury and many objections were waived by failure to move timely |
| Admission of mother’s testimony re: prior employment/divorce/anger/alcohol (Rule 404(b)) | Such testimony improperly introduced prior bad acts/character evidence | No contemporaneous objection; if error, it was harmless given overwhelming other evidence | Any Rule 404(b) argument waived by failure to object; if error, harmless under Atkins test |
| Sentence proportionality | Fleming argued sentence excessive given no criminal record and veteran status | Sentence within statutory ranges and trial court considered mitigating factors | Sentences within statutory limits and not disproportionate; no abuse of discretion |
Key Cases Cited
- State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (standard of review for trial court rulings and findings)
- State v. Sanders, 209 W.Va. 367, 549 S.E.2d 40 (competency re-evaluation requirement discussed)
- State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (insanity test and burden for criminal responsibility)
- State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (credibility and sufficiency standards for appellate review)
- State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (plain error doctrine elements)
- Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (proportionality analysis factors)