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State v. Fleming

March 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LARRY FLEMING, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0286.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 7, 2007

Before Judges Wefing and Yannotti.

Defendant Larry Fleming was charged under a Mercer County indictment with murder, N.J.S.A. 2C:11-3a (count one); felony murder, N.J.S.A. 2C:11-3a (count two); and aggravated arson, N.J.S.A. 2C:17-1a(1) (count three). Defendant was tried to a jury, which found him guilty on all counts. At sentencing, the judge merged count two with count one, and imposed a life term of imprisonment. The judge also sentenced defendant to a consecutive ten-year term, with a parole ineligibility period as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his convictions and the sentences imposed. For the reasons that follow, we affirm.

We briefly summarize the relevant facts, drawn from the evidence presented at trial. On the evening of May 11, 2002, sometime after 10:15 p.m., firefighters responded to a blaze in an abandoned house at 340 Brunswick Avenue, in Trenton, New Jersey. Ellis McNeill (McNeill) was found dead in the second-floor hallway. Dr. Daksha Shah (Shah), the deputy medical examiner for Mercer County, performed the autopsy on McNeill. Shah testified that McNeill was alive during the fire, and he inhaled smoke and gases, which resulted in death from carbon monoxide poisoning.

Detective Lloyd Mathis (Mathis) from the Mercer County Prosecutor's Office investigated the cause and origin of the fire. Mathis testified that he observed substantial fire damage on the first floor of the house, and heat and smoke damage on the second floor. When Mathis moved debris on the first floor, he detected the odor of gasoline. Mathis determined that someone had taken gasoline, poured it on the floor by the front door, as well as in other places on the first floor, and then ignited the gasoline.

Edwin Warren (Warren) was McNeill's friend. He testified that on the day of the fire, he went to the house at 340 Brunswick Avenue with Carmen Jones (Jones). Jones stayed there at times in a room in the rear of the second floor. McNeill also stayed with a woman called Bernadine in a room on the second floor of the house. Warren said that earlier that day, he had purchased beer, wine and some "rock cocaine." Warren and Jones went to Jones' room and "got high."

Warren testified that, late in the afternoon, defendant walked into Jones' room and asked whether Warren wanted to buy drugs. Warren had purchased drugs from defendant in the past. Warren told defendant that he did not have any money. Later, Warren went into the hallway and saw Jones running in his direction. She told him that the house was on fire. Warren saw a "big ball of black smoke and fire."

Jones testified that McNeill was a "good friend." She said that on May 11, 2002, she was in the house with Warren. During the day, Jones left the house about ten times to purchase cocaine. Jones said that drug dealers would come into the house and make sales. Around 8:00 p.m., Jones saw McNeill talking in his room with Bernadine. Jones left the house and went down to the bar and to a store. Jones saw defendant, who told her that she was a "cross-artist," apparently because she had not spent any money with defendant or come to see him.

Jones returned to the house. Jones and Warren were in her room when defendant appeared. Defendant told Warren that he was a "cross-artist" and Warren had "crossed" him. Jones said that she did not purchase any drugs from defendant at this time. According to Jones, defendant did not have any drugs for sale at that time. Defendant left the room and said that if "anyone needed him, they knew where to find him."

Later, Jones went down the stairs and saw defendant with Curtis Hawkins (Hawkins) and Joseph McKinney (McKinney). Jones said that there was a light in defendant's hand "but it wasn't [a] flashlight." Jones also saw a red can with a yellow nozzle in defendant's left hand. Jones testified that she thought defendant was going to put some gasoline in his car.

McKinney went upstairs to a room on the second floor and Jones returned to her room. Jones said that she and Warren were getting "high" when she heard stones being tossed at the window. She heard someone calling "fire, fire." Jones walked out of the room and started down the steps but she was "hit in the face with the smoke" and she "felt the heat." Jones retreated to her room and told Warren that the house was on fire. Jones, McKinney and Warren jumped from a window on the second floor.

Hawkins testified that he knew defendant. Hawkins used to "watch [defendant's] back" while defendant sold drugs. On May 11, 2002, Hawkins was with defendant near a bar close to the abandoned house. Hawkins and defendant had been selling drugs. According to Hawkins, on the day of the fire, he also helped a person named P.J. sell drugs in or around 340 Brunswick Avenue. Defendant was not aware that Hawkins assisted P.J. in the sale of the ...


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