Drive-by shooting suspects in court


Thursday, February 23, 2012
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Drive-by shooting suspects in court

By SUE WATSON
Staff Writer

Two suspects went before Judge Ernest Cunningham Friday and another was not present at a preliminary hearing on charges of a Christmas morning drive-by shooting.

Justin Cluck, attorney with the public defender’s office of Smith Whaley Law Firm, told the judge his client, Cory Albright, 31, from the Rossville, Tenn., area, wanted to waive his right to a preliminary hearing. Cunningham authorized the request and Albright will remain in jail without bond until his case is heard by a Marshall County Circuit Court grand jury later this year.

County prosecutor Shirley Byers advised Judge Cunningham that attorney Steve Farese advised the court that defendant Christopher K. Collins, a 16-year-old out on $50,000 bond, wished to waive his preliminary hearing. Byers said Farese had a scheduling conflict and could not be in court. Cunningham said Collins’ bond of $50,000 will serve until his case is presented to a grand jury.

The third defendant, Rico Fleming, 22, of Moscow, Tenn., area, was represented by Oxford attorney Kevin Frye.

Byers read from a transcript of the January 23 bond hearing in circuit court at Oxford by Judge John Andrew Gregory – dealing with a motion to deny bond to Fleming.

In court transcripts, Judge Gregory said the bond hearing in circuit court would stand good as a preliminary hearing as well, as sufficient evidence to establish probable cause had been presented by the state at that hearing.

In Gregory’s ruling to deny bond, he said it was evident to him, from Fleming’s criminal history in Tennessee, that the defendant “got out and back doing the same type thing as he did (in Tennessee).”

And Fleming was a flight risk, as well as a special danger, Gregory said.

“He needs to be where we can put our hands on him as far as the court,” Gregory said.

He said evidence presented by the state was sufficient and the presumption great that Fleming committed the offense.

Frye said Friday that he disagrees with prosecutor Byers’ position that the defendant’s January 23 appearance before Judge Gregory served as a preliminary hearing.

“Judge Gregory had a specific issue dealing with bond and didn’t address binding over to a grand jury,” Frye said. “In my opinion, Judge Gregory did not do that. I oppose her (Byer’s) motion. We stand ready to go forward with a preliminary hearing.”

Byers restated Gregory’s words – “We are really having it (preliminary hearing) now.”

She said Gregory stated there was enough evidence to turn the Fleming case over to a grand jury.

“My position is that this court has no jurisdiction,” said Byers. “We lost jurisdiction January 23 when it was held by Judge Gregory.”

Cunningham agreed with Byers that Gregory had heard enough evidence to rule the January 23 court appearance also served as a preliminary hearing.

“Usually when it goes to circuit court, it is a preliminary hearing and a bond hearing,” Cunningham said. “It has been my experience. This court lacks jurisdiction if he did rule that way. We take this as having been a preliminary hearing. The court rules this court has no jurisdiction in this case.”

Following the hearing, Albright was escorted out of the courtroom and Fleming remained seated with his attorney and what appeared to be family members while the court procedures were explained by Frye.

Fleming was arrested in the St. Louis, Mo., area January 10 after being a fugitive from the law since December 25, 2011. At the time of his arrest he was listed on the Tennessee Bureau of Investigation’s 15 Most Wanted.

In his order denying bond, Gregory said Fleming is charged with murder and drive-by shooting, with murder punishable by life imprisonment and drive-by shooting by a 30-year term of imprisonment, if convicted.

The defendants – Fleming, Albright and Collins – have each been charged with one count murder and five counts of drive-by shooting.

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