Cummings v. State

715 So. 2d 944, 1998 WL 303862
CourtSupreme Court of Florida
DecidedJune 11, 1998
Docket86413
StatusPublished
Cited by10 cases

This text of 715 So. 2d 944 (Cummings v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. State, 715 So. 2d 944, 1998 WL 303862 (Fla. 1998).

Opinion

715 So.2d 944 (1998)

Derrick CUMMINGS, Appellant,
v.
STATE of Florida, Appellee.

No. 86413.

Supreme Court of Florida.

June 11, 1998.
Rehearing Denied August 17, 1998.

*946 Jeanine B. Sasser, Jacksonville, for Appellant.

Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Derrick Cummings. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

Cummings was charged with first-degree murder for the shooting death of Shelton Lucas, Jr. The evidence introduced at trial revealed the following facts. On the evening of February 15, 1994, Karlon "Dap" Johnson yelled at Andre Fisher to turn on the lights of his car and slow down as he drove down a street in Jacksonville. Fisher got out of his car and a fight ensued between Johnson and Fisher. Johnson hit Fisher in the head with a beer bottle. Justin Robinson interceded to break up the dispute and convinced Fisher to leave. Robinson testified that Fisher resisted leaving the scene.

After the fight, someone contacted Fisher's nephew Derrick Cummings by phone and told him about the fight between Fisher and Johnson. Michael Gardner, Cummings' companion at the time he received the call and learned about the fight, testified that Cummings was upset by this information and asked Gardner to drive him to get his gun. Gardner also testified that he dropped Cummings off at the house where Fisher lived. Sometime after the fight, Robinson saw Cummings in a burgundy car with an "Uzi-type gun" on his lap. Cummings asked about the fight and inquired as to Johnson's whereabouts.

Later that evening, a white Honda Accord drove by the house where Johnson's sister Charlsie Lucas and her children lived. Johnson stayed at his sister's house several nights each week; Johnson's car, which apparently was quite distinctive, was also parked in the carport of his sister's house. Shelton Lucas, Sr., Johnson's brother-in-law, was smoking a cigarette in the carport when he noticed the car driving down the street. Lucas Sr. is the same height and weight as Johnson and was wearing clothes similar to those worn by Johnson earlier that evening. After Lucas Sr. reentered the house from the carport through the kitchen door, he heard what sounded like firecrackers. The passengers in the car fired at least thirty-five shots at the house from three different nine millimeter guns, a Glock, a Luger, and an Uzi. Several bullets penetrated the kitchen door. One of the bullets traveled through the kitchen into the living room and struck five-year-old Shelton Lucas, Jr., who was sleeping on a couch with his mother. The next day the child died from this wound.

Robinson testified that the white Honda Accord passed him shortly before the shooting. There were four people in the car, and he recognized Fisher in the front passenger seat. He watched the car go along the street and turn right at the house where Johnson's sister lived.[1] Shortly thereafter Robinson heard shots being fired. Robinson further testified that the car in question was Marion King's car. The following day Cummings told Robinson that, if the police asked him, he should say that they were together the previous evening at his cousin's house.

The police recovered an unloaded Glock pistol from the apartment of Cummings' girlfriend which had Cummings' fingerprints on it. The girlfriend denied any knowledge of the gun. The bullet that struck the child was consistent with having been fired from a Glock pistol but the state's expert was unable *947 to say if it was fired from the pistol with Cummings' fingerprints.

Police arrested four suspects (Andre Fisher, Derrick Cummings, Marion King, and Kevin Dixon) and charged them with second-degree murder and shooting or throwing deadly missiles. King gave a sworn statement as part of a negotiated plea to second-degree murder. King said that he drove Cummings, Fisher, and Dixon to the scene but that he did not carry his gun and did not participate in the shooting. The Duval County grand jury indicted Cummings, Fisher, and Dixon for premeditated first-degree murder.

Shortly before trial was to begin, the public defender representing Dixon informed the court that ballistics tests established that three shell casings found at the scene had been fired from King's gun, proving that King had lied about his gun not being used in the shooting. The State filed a nolle prosequi as to the charge against Dixon because King's testimony was the only evidence placing Dixon at the scene.

Cummings and Fisher were tried during the same proceeding but before separate juries. The State did not present King's testimony at the trial. Cummings was convicted of first-degree premeditated murder and the jury recommended the death penalty by a vote of ten to two.[2] The judge followed the jury's recommendation and imposed the death penalty. The judge found three aggravating circumstances: Cummings knowingly created a great risk of death to many persons; the murder was committed while Cummings was engaged in a burglary; and the homicide was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). § 921.141(5)(b), (c), (d), (i), Fla. Stat. (1995). The judge found no mitigating circumstances.

Cummings presents eleven claims in this appeal: (1) it was error not to dismiss the indictment because of perjured grand jury testimony; (2) it was error to refuse to excuse the jury foreman for cause; (3) it was error to admit Cummings' profane response to being told a child was killed in the shooting; (4) it was error not to allow testimony that Cummings knew Johnson carried a gun; (5) it was error to find as an aggravator that Cummings knowingly created a great risk of death to many persons; (6) it was error to find the CCP aggravator; (7) the death penalty is disproportionate here; (8) it was error to admit victim impact evidence without limitation and without an instruction that it is not to be used as an aggravator; (9) it was an abuse of discretion not to give credibility to nonstatutory mitigation; (10) it was error to find as an aggravator that the felony was committed during a burglary; and (11) it was error not to grant a judgment of acquittal.

We find no merit to Cummings' first argument, that it was error not to dismiss the indictment because of "perjured" grand jury testimony. Cummings argues that the detective appearing before the grand jury testified about a statement made by Marion King, who was discredited at trial because he was not believable, and that this testimony resulted in Cummings' indictment. King had told Detective Dale Gilbreath that as the car containing him, Cummings, and the others approached the house where they thought Johnson was, Cummings saw a figure in the carport and said, "There he is." The State argues that there was no question as to King's credibility when the evidence was presented; any concerns arose afterward, at trial. The State possessed other evidence from which Cummings' indictment could have resulted. Additionally, Detective Gilbreath testified that he presented other information to the grand jury which was supported by other sources, including evidence of the fight between Johnson and Cummings' uncle, evidence that Cummings admitted being present but accused another as the shooter, evidence that Cummings had an Uzi shortly before the murder, and the forensic evidence.

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715 So. 2d 944, 1998 WL 303862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-state-fla-1998.