Fleming found not guilty
Gasp were heard and family and friends began to cry after the case of the State of Kansas (Attorney Mark Noah) vs. Charles R. Fleming (Defense Attorney Julie A. Efffenbeck) murder trial verdict was read as not guilty. The verdict came out around 1:45 on Tuesday afternoon at the Mitchell County Courthouse, Beloit. Chief Judge of the 12th Judicial District, Kim Cudney presided.
On Tuesday, Nov. 6, 2018, Chuck Fleming pleaded not guilty in the matter of the first degree murder charge, an off grid felony, after his arrest charge of First Degree Murder for the murder of his mom, Carol Fleming, which occurred on August 16, 2003 in Beloit, Kansas.
Fleming appeared in a two day preliminary hearing on Oct. 17, 2018 with District Magistrate Judge Debra Wright presiding, led to a probable cause decision for a six long day trial.
"I am very pleased with the verdict of the jury," said Effenbeck. "I don’t think this case should have been filed against Chuck Fleming. I am glad the jury considered the credibility of all the witnesses and carefully thought about the evidence.I don’t know if anyone will ever know what happened the morning of Aug. 16, 2003 but I am glad my client has been exonerated."
"Though the verdict was not the result desired by the state, it was important that a trial was held to tell the story of what happened in the early morning hours of Aug. 16, 2003, to Carol Fleming," said Noah. "Although much speculation has been made over the years, through a joint law enforcement effort, it was the decision to file charges and pursue justice for Carol Jean Fleming. The case proceeded from a preliminary hearing where it was determined that sufficient evidence existed to bring the matter to trial. Unfortunately, the jury believed that there was reasonable doubt as to the guilt of the defendant. We in the law enforcement community are thankful that a jury took the time to review the available evidence and render a verdict and we respect their decision."
Jurors headed for the jury room on Monday around 4:45 p.m. and remained until 8 p.m. before ending sessions to reconvene at 9 a.m. for the final sixth day on Tuesday.
The jury was asked to form either a guilty in the 1st degree, guilty in the 2nd degree or a not guilty verdict.
Tuesday morning the jury requested to hear certain testimonies repeated before deciding a final verdict.
– Previously and leading up to day five on Monday, began with a third time appearance of Mitchell County Sheriff Tony Perez. He was questioned again about how evidence had been transported from the KBI facility to Beloit's holding facility and about the gun that had been reassembled. Perez then placed some new exhibits on the table.
– KBI Senior Agent Robert Jacobs was then sworn onto the stand as Lincoln County Attorney Jennifer O'Hare questioned about evidence of the pellets that were collected on and around Carol Flemings body.
Jacobs was involved in the Fleming case on Aug. 18, 2003 in the forensics autopsy of Carol Fleming's body. He was in Beloit both Aug. 18-19, took photos and was asked to review the photos presented as exhibits in the trial including items 1-10.
Jacobs viewed photos showing pellets collected from the autopsy around the head/ neck regions of the body, that were then sent to the KBI facility. He agreed that these were accurate findings.
– Sedgwick County Assistant District Coroner Dr. Jamie Oeberst was called to the stand. She performed postmortem examination autopsy's, having performed from 3,000 to 4,000 autopsies including those of shot gun victims.
Oeberst was involved in the Carol Fleming case on Aug. 18-19 of 2003. She said an injury shot gun wound had entered on the frontal temporal right side of her head and perforated her skull/brain left side of her face and exited her left cheek. She also received pellet injuries on her arms and legs. X-rays had also been taken showing skull fractures.
Photos of the injuries were shown to the jury as some of those in the audience began to cry and became emotional.
Pellets were also found in the neck and chest area. Pathways of the forensics pathology defined range of fire, showing that the barrel was very nearly a direct contact with the skin.
Carol Flemings cause of death was found caused by a shot gun wound to her head. The manner of her death was found as homicide. The pronouncement time was given as her death time.
Samples of alcohol were also performed concluding that Carol was at 0.16 gram percent. Her eye fluid content was 0.20 gram of alcohol, higher then her blood levels.
In Effenbeck's cross examination she asked if Oeberst had received any information about Carol's death before she arrived. She said she was told the victim was found with a gun shot wound and was known for alcohol abuse and that the gun had not been found. Oeberst also stated that there was no scientific method to determine time of death and that they do not ever estimate the time of death.
– Mark Noah next called the jury to watch a big screen video conference with Amy Coody, a KBI Forensic Scientist, that resided in Florida.
Effenbeck objected to the conference, saying that the witness had plenty of time to appear to the courtroom and that the cost to the county should not be an issue. Judge Cudney overruled her objection.
Coody stated that she had examined the firearm that was sent to her from the Carol Fleming case. She also examined the shot gun shells, tool, marks serial restoration, based on the garments taken from the victim. She confirmed that she recognized information shown to her of evidence documents, what each one was and how it was submitted. She examined shot gun shell internal wads showing accuracy and velocity. She also examined a combination of shot gun shell wads and 15 shot gun pellets showing a .12 gauge cartridge with .6 shot. They were live shells and the components were examined.
When asked to verify the gun serial number in the evidence presented in the court room, she could not see on the video conference.
Effenbeck stated that she clearly testified that she could not see the numbers, but on a second time, she said she could then read them.
Coody said the pellets she examined were number .6 shot wad components consistent with lab components that were sent to her. She also said that shot guns are not rifled meaning the barrel is smooth based and nearly impossible to tell if pellets were even shot from a particular shot gun. Pump action shells stay in the chamber, extracted from the fire arm while semi-automatics eject automatically. When asked about seeing a plug, but she didn't recall seeing one, if she did, she would have reported it, she said.
Coody said tests had confirmed that the live shells in this particular gun had two live shot shells that had been extracted. Her marks were consistent with the markings she had created.
When Effenbeck asked about the gun being disassembled, she said yes to make sure it was safe to test fire (with no modifications). When asked if she thought it would be easier if she could handle and examine those items inside the Mitchell County courtroom, she said yes.
– Effenbeck called Brian Foulke to the stand. He said he had known Chuck Fleming all the way through high school and remembered when his mom had died. Foulke was a bartender of 15 years at the Captains Quarters and said Chuck would frequent when he was in town. He said he always talked to everyone and seemed interested in a girl that night. He didn't recall Aaron Cox being in the bar that night. After closing the bar, some friends went to Chucks house to look at his new truck. Foulke asked Chuck if he could have a beer and he said yes, go and get one. Foulke found the walk-in garage and the patio door were both locked. Eventually Chuck asked Foulke if he had gotten a beer and he said no because the doors were locked. Chuck said, "Mom must be home". Chuck left about 20 minutes later. Foulke said he noticed someone was on the left side of the garage, peeking around and they then found it was Chad. He asked were Chuck was and was told he left looking for a girl he had met at the bar.
After Foulke left he later noticed lights around the Fleming house. When he arrived he said Chad was dressed in blue jeans and a tee shirt and Chuck was dressed in the same matter.
– Bill Pettijohn returned to the stand, already under oath. He was the local KBI Senior Special Agent in charge the night of Carol Fleming's homicide, along with Bill Halverson who later arrived on the scene.
Pettijohn said Mitchell County Sheriff's Officer Wayne Loy was in charge of search warrants at the time and helped with initial interviews.
Pettijohn reconfirmed that Rick Harris had stated clearly that he did not hear a shot gun. He said he was awakened by a mist covering he's face and arm. Harris smelled something like from firecrackers and was worried it was an electrical fire so he walked around the kitchen area and then back into the bedroom where he saw Carol.
Rick Harris never answered to as why he called it a terrible accident when calling 911.
When Chuck arrived home that night he said he pulled in, took dog food to feed his dogs and then heard and saw the police lights.
Loy, Daugherty, Tom Hall and Pettijohn searched the detached garage as a first priority as Chad had said he saw Chuck with a gun in that area. The gun was found in Chucks old green Ford truck and was found to not have been fired recently.
Pettijohn was asked if when shooting a shot gun, would he use ear protection and why? "Yes, because they are very loud."
Unused shells were found to the west, from the neighbors yard. Gutters on the house were searched for spent (live shells that may have been used). A full thorough investigation was made into the neighbors yard and over a full block area search. Walls inside which had holes in them were also searched for live shells.
Pettijohn went on to say that no usable prints or blood was found on the gun.
He said all evidence was collected, bagged and tagged and marked and taken to the KBI facility. "As far as the investigation, all reports were ran through me, with copies sent to the BPO and MCSO."
When asked if he ever stopped working the Carol Fleming case, Pettijohn said no, up until the day I retired. I did follow-ups from crime stoppers, ideas from family members and any other leads. We investigated the Schmidt family because of the narcotic usage and Steve Schmidt's history of violence as a kick boxer, that would beat up a lot of people, some just for looking at him. They were all involved on a drug trade along with Chad Fleming as well.
Were you aware of Chad Fleming's involvement in drugs? "Yes I was aware," said Pettijohn.
Pettijohn said the Carol's Joint Effort business had not been searched but when looking at one of her logs, they had found that she, was indeed, scheduled to co-sign for a vehicle for David Harris. A Pontiac Grand Am.
Pettijohn reported to seeing no blood spatter on anyone at the house that night. Blood spatter was observed on the dresser near the bed, an ironing board across the room, on the curtains and around the area.
"We examined Rick Harris and we could not find any blood on him," said Pettijohn.
"Would he have had time to clean up?"
"Yes, he would. And it was a concern if someone would have taken a shower. It would be harder to find blood then. There was also no blood found on the gun, which would have been inside the barrel as well with that close of a range shooting. There also would have been blood blown back onto the shooter."
As the drain traps and a towel lying on the floor were both to be tested by Halvorson. They never were.
"Did Rick Harris
ever tell you that another gun existed as he said Carol mentioned that her husband had a shot gun, in earlier testimony?
"No, he did not," said Pettijohn. "We never found another gun other than the one in the pickup."
Pettijohn also expressed that some of the witnesses had since died.
When referring back to the shot gun shells, Pettijohn was asked if the two live shell cartridges from the .870 Remington lead pellets were .6 gauge shell wads, consistent of coming out of the State shells (that meaning it could have come from that shell or another shell as well).
"Do you believe the gun here in the courtroom found at the Flemings house that night was used at the crime scene?
"I can not definitely say it was," said Pettijohn. "I don't believe it was the gun, no."
As far as immunity, Pettijohn said it was discussed in Mark Noah's office about granting Rick Harris immunity, so as to make him come forward and offer more information. I never knew if anything had come out of that conversation. I do know there were concerns about Rick Harris not telling everything."
When Pettijohn heard there had been an arrest on the case, he said he thought there must be new evidence.
"Based on my investigations on the case and as an officer at that time, I did not think the gun found was a murder weapon," Pettijohn said. "Through three different county attorneys and 15 years, there had been no new arrest made."
"Do you believe the KBI did a thorough investigation, within their experience at that time," asked Effenbeck.
"Yes, but there were the drains and the towel that didn't get checked."
– Sheriff Perez was called to the stand once again and was asked about previous reports from Aaron Cox reporting a long haired dude, that walked pass him and Chuck the night of Carol's murder. He said it was possibly Chad because he was known to wear wigs. He was questioned on if he remembered saying that no reports were prepared in the October pre-trial.
"With three unsolved murders in Beloit, including Carol Fleming, Gary Nelson and Diane Sibley, was the opening of these cases a part of a campaign purpose while running for sheriff?
"No, it wasn't campaign driven," said Perez. "It was for the families, and for the community."
Perez was asked about reassembling the gun and if there was a plug. He said there should have been one in the box.
"After searching, he stated that it was not in the box, but Chief Elam may have it."
So both of you handled the gun?
– Wayne Loy took the stand and recalled his duties at the Fleming homicide. He said he was called to the scene by dispatch and arrived not minutes later to the house.
"City and county officers were there," said Loy. "They had already secured the area with crime tape and a log was started for who had entered and exited. Bill Pettijohn was in charge and I was sent to get search warrants for the house.
"An injury shot gun wound had entered on the frontal temporal right side of her head and perforated her skull/brain left side of her face and exited her left cheek. She also received pellet injuries on her arms and legs. X-rays had also been taken showing skull fractures.
"Did you find anything significant inside the house?," asked Effenbeck.
"Yes, I found a wet towel inside the bathroom where Carol was found," said Loy. "I found it significant and said we needed to check the drains. Pettijohn agreed, but Halvorsen did not do it."
"When the gun was found, did you handle it?"
"Yes, I did," Loy said. "I did not smell anything, showing it had ever been fired."
Loy was a certified firearms officer for the state of Kansas at the time. He was also a professional guide for Ringneck Ranch and knew about guns.
"How long would it take you to clean a gun?"
"Around 20 minutes," said Loy. "The gun didn't smell. No one smelled anything on the gun. There were also no fingerprints found on the gun."
"Did you observe Rick Harris' hair that night."
"Yes, I would say it was freshly neat," Loy said.
Loy said there were always follow-ups in the investigation of Carol Fleming's murder. The family members were looked at, other people with drug arrest prior to arrest.
"Did anything stand out about Aaron Cox's interview?"
"Yes, he was late. I saw him walking to the interview and he shouldn't have been late."
"Over the years, what did you do if there was a lead?,"
" A lot came through over the KBI hot line and both I and Pettijohn would take them," Loy said. "Chad Fleming was looked at because of his meth arrest as well."
"I never thought the gun found was the one used in the murder," said Loy.
"After you left the department in 2008, were you contacted by Elam and Perez?"
"Yes, I told them I didn't believe it was the gun," Loy said. "I believe there is another weapon that hasn't been recovered."
– Travis Fleming was the last witness to take the stand in the trial. The now Senior Account Manager had been served a subpoena so had never seen any of the evidence or testimonies. He recalled again about having received a phone call about his mothers death and his arrival to Beloit. He was asked about if he knew of his dad ever having a shot gun.
"Everything of that nature was in my dad's garage in a safe keeping place for nobody to get into," said Travis. "I know he did not have a shot gun."
Travis said the brothers called Rick, "Slick Rick", and that they didn't like him, because it didn't seem that their mom really cared for him. We observed them as, not in love. I never saw them hug, kiss or show affection.
"I once saw them together and they were looking into renewable energy," said Travis. "I didn't feel it was her idea, I felt it was Rick's idea."
"Did you see David at the house.?"
"I don't recall. Just at mom's store. I was rarely home."
"Did you know Chad's involvement with meth?"
"Yes, around the age of 18. He always had a problem with that," said Travis. "One time, I observed issues with him on meth when he was changing the windshield wipers on my mom's car. It took him over five hours to do and he was sweating. It didn't make sense."
"Was Aaron around a lot?"
"Where did you boys sleep?"
"Brad slept upstairs in a bedroom. Me and Chuck downstairs in bedrooms and Chad in the bar on a pull-out sofa."
"Did your mom have a favorite?"
"Yes, Brad was the favorite. He played sports and such. But consigning for vehicles, and help with rent at college was pretty common for us. With Chad she helped with a car for college, which he destroyed."
"Are you close to Chuck?"
"Yes, I see him and his kids. We spend time together shooting pool, motorcycle riding and such."
"Has this been difficult for you?"
"Yes, it has brought a lot of stigma to our family, and I don't want to come to this town," said Travis.
Travis was then allowed to stay in the courtroom as he sat down and embraced his family and girlfriend.
Judge Cudney instructed the jury to their duties as to coming to a conclusion of finding the defendant guilty in the 1st degree, the 2nd degree or not guilty.
In Mark Noah's closing remarks, they resembled somewhat of his opening remarks stating that it was a case of greed and death, with the defendant wanting his money and that his mom Carol's death had to be done to receive it.
Julie Effenbeck closed in asking the jury if they had heard anything new. "As promised, you were delivered a 15 year old circumstantial case, with no new DNA evidence or any physical evidence except for a fingerprint on a Sprite bottle that was found in the garage of the house he lived in. No new witnesses, just old witnesses that all of a sudden at trial, have vastly improved memories. Those who especially have an interest in having my client convicted, have conveniently remembered more details."
"I submit that the State has quite simply not met its burden. Don't be pressured to bring back a guilty verdict just because the State wants you to believe that this case is solved. It's not. My client and I want to thank you for your time. I know that you will carefully consider the evidence and the witnesses. We ask you to find Charles R. Fleming not guilty of charges."
After three and half hours on Monday night, the jury had not yet come to a verdict.
On Tuesday morning, they asked to review testimonies including those of Justin Paul, Aaron Cox and Chad Fleming.
At around 1:45 p.m., the juries reentered the courtroom and Judge Cudney asked if verdict had been reached in which they replied yes. It was given to Clerk of the District Court Pam Thiessen to read.
Before announced, Cudney stated she knew it had been a long and emotional case, but advised that no emotional outburst would be tolerated and thanked everyone for the cooperation that had been shown.
"The State vs. Charles R. Fleming (18CR-73), "We the Jury, find the defendant, "Not Guilty". To the defendant, the State will prepare a journal entry stating, not guilty in the case 18SR-73."
"You are free to go," said Judge Kim Cudney, to the defendant."
When asked how he felt the night before the ruling, Chuck Fleming said, "I am very confident. I think the evidence presented speaks for itself."
After sitting eight long months in the Mitchell County Jail, Chuck was released just in time for his nine year old daughters birthday on Wednesday.
Is this the last we will hear from Chuck Fleming?
“That is not an area of law that I practice in, but I would not be surprised if my client is reviewing what his options are," said Effenbeck.