Joe Freddie Fleming v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division

954 F.2d 1109, 1992 U.S. App. LEXIS 3578, 1992 WL 28196
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 6, 1992
Docket88-1334
StatusPublished
Cited by20 cases

This text of 954 F.2d 1109 (Joe Freddie Fleming v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joe Freddie Fleming v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, 954 F.2d 1109, 1992 U.S. App. LEXIS 3578, 1992 WL 28196 (5th Cir. 1992).

Opinions

EDITH H. JONES, Circuit Judge:

We voted this state habeas corpus case en banc to explore the reach of the public safety exception to Miranda’s3 prophylactic rules protecting fifth amendment rights. New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Disagreeing with the panel majority, we apply the public safety exception in this case and affirm the district court’s denial of Fleming’s petition for writ of habeas corpus.4

I. FACTS

On February 20, 1979, three men, including Fleming, entered the Buckner State Bank in Dallas, armed with pistols, apparently intending to rob it. Their attempt was foiled by the heroic efforts of security guard Hubert Hider who, after being pistol whipped about the head, managed to knock a gun out of the hand of one of the felons [1110]*1110and retrieve his own weapon. Shots were fired at Hider. As the assailants fled the bank, Hider shot Fleming, but Fleming continued running toward a used car dealership a block away.

Don Adams was working at the dealership when Fleming crossed the front of his lot. Adams heard a gunshot, saw that it seemed to have hit Fleming, and saw the bank security guards in a commotion. When Fleming refused to stop at Adams’s command and kept on going into the median of the road, looking for a safe retreat, Adams followed. He jumped into his wrecker truck, where a loaded pistol was stored, and cut Fleming off in a nearby field. Adams, standing beside the wrecker and brandishing his pistol, pinned Fleming kneeling on the ground.

This dramatic frieze riveted the attention of Dallas police officers Jan Montgomery and Valerie Dentherio as they were driving toward the bank in response to its silent alarm, triggered a few minutes earlier. They never reached the bank and did not then know whether the alarm had gone off in error.

What followed can best be described by Officer Montgomery’s testimony at the suppression hearing.5

DIRECT EXAMINATION

BY MS. LUDWICK:
Q: State your name, please.
A: Jan Montgomery.
Q: Ms. Montgomery, I notice that you’re wearing a uniform of the Dallas Police Department. How long have you been with the Dallas Police Department?
A: Nine years in August.
Q: Were you on duty around 1:15 in the afternoon on February the 20th of 1979?
A: Yes, ma’am, I was.
Q: About that time, did you receive a call to go to a silent alarm location?
A: Yes, ma’am, I did.
Q: And what location was that?
A: The Buckner State Bank at 3600 North Buckner.
Q: Did you have a partner with you, or were you alone in your squad car?
A: I had a partner.
Q: When you got to the Buckner State Bank to answer your call, did you notice anything unusual going on there?
A: I never made the bank.
Q: Did something unusual stop you before you got to the Buckner State Bank?
A: Yes, ma’am.
Q: What would that have been?
A: In the 3500 block of North Buckner, there were two men in a field, and one of them had a pistol in his hand, and the other one was bent over on the ground on his knees.
Q: Okay. Did you and your partner approach the two men in the field?
A: Yes, ma’am, we did.
Q: At that time, did you have any conversation with either of the men?
A: With both of the men.
Q: Okay. Did you have your pistol drawn?
A: Yes, ma’am, we did.
Q: Okay, and did you order the man who was standing there with a gun pointed at the one on the ground to drop his gun?
A: Yes, we did.
Q: Did you later determine that that was a witness and not a bank robber?
A: Yes, we did.
Q: Did you later determine the bank robber was the one who was on the ground?
A: Yes, ma’am, we did.
Q: About how long did it take you to figure that out?
A: About two to three minutes.
Q: And when you finally figured out that the bank robber was the man on [1111]*1111the ground, did you place him under arrest?
A: Yes, we did.
Q: At the time that the man was on the ground and you had the drop, so to speak, on the guy in front of the wrecker as well as the bank robber, did the man on the ground say anything?
A: Yes, he did.
Q: What did he say?
A: He said, “I’m shot. I’m shot.”
Q: Okay. Did you tell him to do anything?
A: Yes. I told him to put his hands up in the air. I couldn’t tell whether he was armed. I didn’t know who he was. And so I told him to put his hands up, and he said, “I can’t. I’m shot. I’m shot.”
Q: Okay. Did you check that out a little further?
A: Yes, ma’am. He finally raised or attempted to raise his left arm and I did search him down for weapons and determined that he did have a hole — I could see the hole in his jacket just above his elbow. He had been shot.
Q: After you instructed him to put his hands up, did you say anything else to him?
A: I asked him, “Who shot you?” because I didn’t know if it was the man holding the gun. I didn't know who he was or anything and he said, “The man at the bank.”
Q: He said that the man at the bank had shot him?
A: Yes.
Q: Did you ask him anything else?
A: I asked him several questions. I said, “Who was with you?” And he said, “I was alone,” and I asked him his name and he told me, “Johnny Ray Powers” was the name he gave us.
Q: Okay.
A: I asked him, “Where is the gun?” and he said, “I dropped it.” And he said, “I didn’t get any money,” and that was the first couple of minutes conversation—
MR. BERG: I object to the leading, Your Honor.
Q: (By Ms. Ludwick) Did he say anything about whether or not anybody had been shot or shots had been fired at the bank?
A: Yes.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Chhay Lim
897 F.3d 673 (Fifth Circuit, 2018)
State v. Smith
138 A.3d 223 (Supreme Court of Connecticut, 2016)
United States v. Fautz
812 F. Supp. 2d 570 (D. New Jersey, 2011)
United States v. Percy Green
388 F. App'x 375 (Fifth Circuit, 2010)
United States v. Salahuddin
668 F. Supp. 2d 1136 (E.D. Wisconsin, 2009)
United States v. Duncan
308 F. App'x 601 (Third Circuit, 2009)
United States v. Kelley
268 F. App'x 304 (Fifth Circuit, 2008)
United States v. Brathwaite
458 F.3d 376 (Fifth Circuit, 2006)
United States v. Lee
188 F. App'x 326 (Fifth Circuit, 2006)
United States v. Jones
154 F. Supp. 2d 617 (S.D. New York, 2001)
Crook v. United States
771 A.2d 355 (District of Columbia Court of Appeals, 2001)
Joppy v. State
719 So. 2d 316 (District Court of Appeal of Florida, 1998)
United States v. Gonzalez
864 F. Supp. 375 (S.D. New York, 1994)
United States v. Kosek
41 M.J. 60 (United States Court of Military Appeals, 1994)
United States v. Dodge
852 F. Supp. 139 (D. Connecticut, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
954 F.2d 1109, 1992 U.S. App. LEXIS 3578, 1992 WL 28196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-freddie-fleming-v-james-a-collins-director-texas-department-of-ca5-1992.