State v. Cummings

400 S.W.3d 495, 2013 WL 2109962, 2013 Mo. App. LEXIS 594
CourtMissouri Court of Appeals
DecidedMay 16, 2013
DocketNo. SD 32055
StatusPublished
Cited by9 cases

This text of 400 S.W.3d 495 (State v. Cummings) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cummings, 400 S.W.3d 495, 2013 WL 2109962, 2013 Mo. App. LEXIS 594 (Mo. Ct. App. 2013).

Opinion

WILLIAM W. FRANCIS, JR., J.

Robert Cummings (“Cummings”) appeals the trial court’s judgment convicting him of the class A felony of first degree assault (Count I), in violation of section 565.050;1 the unclassified felony of armed criminal action (Count II), in violation of section 571.015; the class B felony of first degree assault (Count III), in violation of section 565.050; and the unclassified felony of armed criminal action (Count IV), in violation of section 571.015. Finding no merit to Cummings’ claims, we affirm the judgment and sentence of the trial court.

Facts and Procedural Background

Cummings does not contest the sufficiency of the evidence to support his convictions. Accordingly, we set forth only those facts necessary to address Cummings’ points. In doing so, we view the evidence in the light most favorable to the [498]*498jury’s verdict. See State v. Newberry, 157 S.W.3d 387, 390 (Mo.App. S.D.2005).

The evidence at trial showed that on the evening of March 15, 2005, Cummings was in a Springfield strip club and bar called Kristy’s Cabaret (the “club”). Kristina Kelley (“Kelley”) was general manager of the club and was training a new waitress, Pamela Capps (“Capps”), as it was Capps’ first evening on the job.2 Capps testified she remembered serving the “shooter” one beer. She described him as “quiet” and he seemed to be “irritated” by her when she would ask if he needed another beer. Per the law, the club had to stop serving alcohol at 1:30 a.m. Last call was announced a few minutes prior to that time, and the waitresses began collecting unfinished drinks from the customers.

Capps tried to collect Cummings’ beer but he refused and told her “not to touch his ‘F-ing’ beer.” Capps told Kelley, and Kelley indicated she would take care of the problem. After Capps left, Kelley saw Cummings go to the restroom. Kelley approached the table while Cummings was gone, told his companion she had to take the drink, removed the glass, and took it behind the bar where she emptied it.

When Cummings returned to his table and found his beer gone, he approached the bar and wanted to buy another beer. When Kelley explained the law prevented her from serving alcohol after 1:30 a.m. and refused to serve him, Cummings threatened to call “Liquor Control and the DEA” to get Kelley in trouble for refusing to serve him.

A customer who was standing nearby, Christopher Allen Brown (“Brown”),3 first tried to defuse the situation. Brown and Aaron Linder (“Linder”) had been at the club all evening and had eight to ten beers while sitting at the bar. Brown denied being intoxicated and testified he had a clear recollection of the events that night. When Cummings continued his tirade, Brown reached into his pocket and pulled out some change. Brown handed the money to Cummings and told him to “call somebody that give[s] a damn.” Cummings reached into his pocket, pulled out a small caliber handgun, and fired three shots at Brown hitting him in the abdomen and the hand. Kelley and Capps crawled underneath the bar sink and Kelley grabbed a phone and called 911. As Cummings walked out of the bar, Jimmy Van-zandt (“Vanzandt”) said “Hey,” while pointing his finger at Cummings and Cummings then shot Vanzandt through the finger, into his chest, with one shot.

Brown underwent surgery which revealed an injury to his colon that necessitated the removal of part of the small intestine. The bullets were left in the abdomen as they had penetrated the muscles and tissues of the back so they were “statistically ... best left in place[,]” but could be removed later if they caused problems. Vanzandt was shot in the chest and also wounded in the left' index finger. Vanzandt was fortunate the bullets did not penetrate his rib cage and enter into his chest where they could have hit any number of major organs or blood vessels.

Police recovered four .22-caliber “short” shell casings from the club. The club had a digital video recorder which recorded the shootings inside the club.

[499]*499On March 16, 2005, Detective Brian Crum (“Detective Crum”), a task force officer with the Bureau of Alcohol, Tobacco, and Firearms, was assigned to the follow-up investigation. Cummings had already been identified as a potential suspect from the initial investigation. As a part of his follow-up investigation, Crum obtained a photograph (State’s Exhibit 39A), which he believed depicted Cummings. Detective Crum showed the photograph to Kelley who identified the person depicted in the photograph as the shooter. Detective Crum used Kelley’s identification to obtain a warrant and Cummings was then arrested on the evening of March 16, 2005.

After Cummings was arrested, Detective Crum obtained the Cummings’ booking photo to use for photographic lineups. Capps, Vanzandt and Linder all identified Cummings from a photo lineup that contained Cummings’ booking photo. Also, Kelley, Capps, Vanzandt and Linder all made an in-court identification of Cummings.

Cummings was charged by amended information as a persistent offender with the class A felony of assault in the first degree (Count I), in violation of section 565.050, for attempting to kill or cause serious physical injury to Brown; the class B felony of assault in the first degree (Count III), in violation of section 565.060, for attempting to kill or cause serious physical injury to Vanzandt; and two counts of the unclassified felony of armed criminal action (Counts II and IV), in violation of section 571.015.

A jury trial was held on March 5, 2012.4 The first witness to testify for the State was Kelley, the manager of the club, who was tending bar when the shootings oe-curred. Kelley described the shooter as “[a]n older gentleman, wearing glasses and a ball cap[,]” he had a “medium beard[,]” and walked with a limp.

Kelley testified the club had a video surveillance system. The videotape was admitted in evidence and played for the jury. Kelley identified from the video the various persons involved in the shooting, including the man who did the shooting.

Kelley testified that several days after the shootings, Detective Crum showed her a photograph and asked if she recognized the person depicted in the photo. The photograph was admitted into evidence over Cummings’ objection. Kelley testified without objection that the person in the photo was the man who committed the shootings. The photograph was displayed to the jury without objection. Kelley also testified she identified the shooter from a second array of photographs Detective Crum showed her. Kelley then identified for the jury that the person who did the shooting was sitting at the defense table in khaki pants and eyeglasses.

Capps, called as a witness by the State, testified she saw Brown get shot and heard five or six more shots while she was under the bar. She described the shooter, at the time of the shooting, as being “scruffy-looking and kind of blondish ... gray.” Capps testified she remembered talking to the police after the shooting. She also recalled speaking to Detective Crum a couple of months after the shooting and picking Cummings out of a photo lineup. Capps also identified Cummings in the courtroom as the shooter.

Brown testified he was unable to speak to the police after the shooting because he [500]

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Cite This Page — Counsel Stack

Bluebook (online)
400 S.W.3d 495, 2013 WL 2109962, 2013 Mo. App. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cummings-moctapp-2013.