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Fleming v. State

The trial court properly refused to charge on voluntary manslaughter, self-defense or mutual combat because defendant claimed that he shot the victim by accident.

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A jury convicted Byron Fleming of malice murder, aggravated assault, and possession of a firearm in connection with the shooting death of Gwinnett County Deputy Sheriff Kenneth Lee Wimberly.1 The state sought the death penalty, but the trial court sentenced Fleming to life imprisonment after the jury was unable to reach a unanimous verdict on the sentence. Fleming contends that the trial court should have given requested charges to the jury on voluntary manslaughter, self-defense, and mutual combat. Because there was insufficient evidence to support the charges, the trial court properly refused to given them. Therefore, we affirm.

1. The evidence presented at trial shows that Deputy Wimberly was working as a security officer at an apartment complex when he approached Fleming behind an apartment building, identified himself as an officer, and asked Fleming to return to his apartment due to complaints that he was too loud. The conversation ended peacefully, and Fleming walked back to his apartment. As Wimberly was standing with the maintenance supervisor and assistant manager at the end of the building, they heard a loud noise in the direction of Fleming’s apartment. Wimberly walked back toward the apartment and called for help on his police radio.

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