Executed September 25, 2008 06:11 p.m. CDT by Lethal Injection in Oklahoma
24th murderer executed in U.S. in 2007
1123rd murderer executed in U.S. since 1976
2nd murderer executed in Oklahoma in 2008
88th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
|
Jesse James Cummings Jr. W / M / 35 - 52 |
Melissa Moody W / F / 11 |
with knife |
Citations:
Cummings v. State, 968 P.2d 821 (Okla.Crim. 1998) (Direct Appeal).
Cummings v. State, 970 P.2d 188 (Okla.Crim.App. 1998) (PCR).
Cummings v. Sirmons, 506 F.3d 1211 (10th Cir. 2007) (Habeas).
Final/Special Meal:
A bucket of KFC chicken, eight additional drumsticks and a chocolate milkshake.
Final Words:
"I love my family. I love my children. I love my gorgeous angel. The justice system let me down on this case. It turned a blind eye to the truth in this. You came here today to see an innocent man die. I forgive everybody involved in this.”
Internet Sources:
Oklahoma Department of Corrections
Inmate: JESSE J CUMMINGS JR
ODOC#: 244982
Birth Date: 11/19/1955
Race: White
Sex: Male
Height: 5 ft. 09 in.
Weight: 185 pounds
Hair: Brown
Eyes: Blue
County of Conviction: Coal
Case#: 94-32
Date of Conviction: 05/30/1996
Location: Oklahoma State Penitentiary, Mcalester
Reception Date: 06/03/1996
"Family's tyrant executed for killing niece," by Denver Nicks. (9/26/2008)
McALESTER — A bigamist and cruel patriarch, Jesse James Cummings led a life scarred by violence. It came to a peaceful end Thursday when he was executed by lethal injection for the 1991 murder of his 11-year-old niece Melissa Moody. His conviction in the murder of his half-sister Judy Moody Mayo, Melissa's mother, had been overturned on appeal.
Janell Jenkins, one of Cummings' ex-wives, said in a statement that Melissa "had her innocence, and then her life" taken from her 17 years ago. "Now, finally, after those 17 years there is justice being done, by the execution of Jesse James Cummings. "And also now no one, especially no female, will ever have to live in fear because of this horrible, horrible man."
But Cummings, 52, denied his guilt to the end, saying, "You came here to see an innocent man die," moments before he was injected with the drugs that rendered him unconscious and ultimately stopped his breathing and his heart. While strapped to a gurney in the execution chamber at the Oklahoma State Penitentiary, Cummings said: "I love my family. I love my children. The justice system let me down on this case. It turned a blind eye to truth in this." Before taking two heaving last breaths, he said, "I forgive everybody involved in this."
Although the courts upheld his conviction for his niece's murder throughout the appeals process, Cummings consistently claimed that he had been wrongly convicted. The Oklahoma Indigent Defense System, the Innocent in Prison Project International and others had joined in support of his petition for clemency, which was denied last month.
Oklahoma Attorney General Drew Edmondson said in a statement before the execution: "Cummings was properly convicted and sentenced to death for the murder of Melissa Moody. Appeals courts at every level have upheld this conviction and sentence. My thoughts are with the family and friends of Melissa and her mother, Judy."
At the time of the murders, Cummings lived in a Coal County household of overlapping sexual relationships. In the small town of Phillips, the polygamist lived with his ailing father; his wives, Sherry and Juanita Cummings; and one child of each woman. His half-sister and niece lived in nearby Tushka. His wives testified that Cummings lorded over their home, employing violence, rape and incest to control his family.
The gruesome murders went unsolved for three years until Juanita Cummings confessed in 1994 to murdering Moody Mayo. She testified that her husband had threatened to kill her son if she did not murder his sister. While Cummings was escorting his father to Oklahoma City for cancer treatment, she carried out his order. When Cummings returned, he and his wives disposed of the corpse. According to testimony, he then sexually assaulted his niece, murdered her and disposed of her body.
Juanita Cummings is serving a life sentence for second-degree murder. Sherry Cummings is serving a 35-year sentence on two counts of accessory to murder after the fact and one count of permitting a child to be abused.
Cummings' execution was witnessed by a female friend, Atoka County Sheriff Gary McCool, his defense attorney, two spiritual advisers, and five friends and relatives of the victims.
For his last meal, Cummings asked for a bucket of KFC chicken, eight additional drumsticks and a chocolate milkshake.
Oklahoma has executed 171 people since 1915. The state's death row now holds 77 inmates.
"Child killer executed; bigamist denies niece's murder," by Julie Bisbee. (Fri September 26, 2008)
McALESTER — Jessie James Cummings said he wasn't guilty, even as he lay strapped to a gurney awaiting the lethal drug combination that would render him unconscious, stop his breathing and then stop his heart. Cummings, 52, was put to death for the 1991 murder in Coal County of his 11-year-old niece Melissa Moody. He was pronounced dead at 6:11 p.m. Cummings is the second Oklahoma inmate put to death this year. Terry Lyn Short was executed in June for an Oklahoma County firebomb killing.
Prosecutors said Cummings convinced his two wives to kill his sister Judy Moody Mayo, who was the child's mother. Then, he molested the girl before killing her and dumping her body in a remote area of Choctaw County. Cummings was convicted of both murders in 1996, but the conviction for his sister's death was thrown out by the Oklahoma Court of Criminal Appeals in 1998 because only the testimony of accomplices linked him to the killing. Throughout his time in prison, Cummings claimed there was no evidence linking him to the killing. He claimed he was a victim of a plot between his two wives. Cummings was married to the women at the same time. The three lived together and shared children.
As he lay on the gurney, Cummings also proclaimed his love for his family. "I love my family. I love my children. I love my gorgeous angel,” Cummings said. "The justice system let me down on this case. It turned a blind eye to the truth in this. You came here today to see an innocent man die. I forgive everybody involved in this.”
A few minutes later, Cummings puffed out two heavy sighs and appeared to be unconscious. A female friend of Cummings quietly sobbed as color drained from his face.
Two spiritual advisers and Cummings' defense attorney, Chris Eulberg, also attended the execution. Corrections Department officials said five people attended the execution on behalf of the victim. Among them was Atoka County Sheriff Gary McCool, who investigated the case initially. None of the victim's family addressed the media after the execution. Cummings' first wife, Janell Jenkins, prepared a written statement, saying, "Now finally after 17 years, on this day, September 25, there is justice being done by the execution of Jessie James Cummings.”
Were women used to kill? At the time of the slaying, Cummings was married to Juanita and Sherry Cummings. Prosecutors said Cummings controlled the women and urged them to kill Mayo, 42. Jessie Cummings was in Oklahoma City with his father at the time of the murder. Mayo's body was found Sept. 9, 1991, near Atoka Lake. Melissa's body was found about a month later in Choctaw County.
Prosecutors said Cummings helped the women dump his sister's body. After molesting his niece, he took her to rural Choctaw County and stabbed her to death. Her skeletal remains were found Oct. 16, 1991, near a bridge over Clear Boggy River. It would take three years for investigators to solve the murders.
In 1994, Juanita Cummings went to police and told them about the murder plot. Melissa Moody's body was exhumed, and a medical anthropologist determined that she was stabbed to death, confirming statements from Cummings' wives.
Oklahoma Attorney General (Press Release)
News Release
06/27/2008
W.A. Drew Edmondson, Attorney General
Court Sets September Execution Date for Cummings
The Oklahoma Court of Criminal Appeals today set Sept. 25 as the execution date for Coal County death row inmate Jessie James Cummings, Attorney General Drew Edmondson said.
Cummings was convicted and sentenced to death in Coal County District Court for the September 1991 murders of his sister, Judy Ann Moody Mayo, 42, and Mayo’s daughter, Melissa Moody, 11. An appeals court later reversed Cummings’ conviction for Mayo’s murder.
Edmondson requested the execution date June 16 after the U.S. Supreme Court denied Cummings’ final appeal of his conviction for Moody’s murder.
Jesse James Cummings was convicted and sentenced to death in Coal County, Oklahoma District Court for the September 1991 murders of his sister, Judy Ann Moody Mayo, 42, and Mayo’s daughter, Melissa Moody, 11. An appeals court later reversed Cummings’ conviction for Mayo’s murder but his conviction for the murder of the child stands.
In September of 1991, Cummings lived in Phillips, Oklahoma, in a residence he shared with his first wife, Sherry Cummings, his second wife, Juanita Cummings, Cummings’s and Sherry’s daughter, Debra, Juanita’s son Robbie, and Cummings’s father, Jesse Samuel Cummings. Cummings had married Sherry in 1987, and, without divorcing her, had married Juanita in 1989. He, in effect, had two wives.
On September 8, 1991, Cummings went to the Atoka County Sheriff’s Office and reported his sister, Judy Ann Moody Mayo, and her daughter, Melissa Moody, as missing. Cummings told the clerk that friends had told him that his sister’s vehicle had been seen parked at Atoka Lake on Highway 43 and that it had broken down as its hood and doors were opened. Cummings reported what his sister and her daughter had been wearing at the time of their disappearance. He also said that someone had possibly picked them up. Cummings showed the clerk pictures of Judy and Melissa. The next day, on September 8, Judy’s body was found floating in a small pond adjacent to Atoka Lake. She had suffered gunshot wounds to her head and neck and her body was wrapped in a quilt and a mattress pad.
The following month, in October, the skeletal remains of Melissa were located by the side of a bridge over the Clear Boggy River in Choctaw County. Due to the skeletonization of the body, an exact cause of death could not be determined but evidence of sharp force injuries to several ribs was noted. The case remained unsolved for almost three years. During this time, Cummings and his two wives moved from Phillips, Oklahoma, to Lehigh, Oklahoma. In the summer of 1994, Juanita went to work for a minister named Edward Fields. Juanita told Fields that she had shot Judy and that Cummings had made her do it. She also stated that Cummings had wanted her to kill Melissa but she got sick and could not do it. She told Fields that after she killed Judy she went to work and when she got back Judy’s body was gone and so was Melissa.
Subsequently, Juanita was charged with First Degree Murder for the death of Judy, and Sherry was charged with First Degree Murder for the death of Melissa. First Degree Murder charges were dropped against Sherry when she entered a plea agreement with the State and pled guilty to two counts of Accessory After the Fact and one count of Permitting a Child to be Abused. First Degree Murder charges were also dropped against Juanita and she pleaded guilty to Second Degree Murder. Both Sherry and Juanita implicated Cummings in the commission of the crimes and testified against him at trial.
Sherry testified that on September 4, 1991, Cummings told her to take his sister, Judy, to look at houses and to shoot Judy from behind when they got to an empty house. The next morning, on September 5, Cummings left early to drive his father to the hospital in Oklahoma City. That morning, Sherry took Judy to look at houses. She did not shoot Judy while they were looking at houses. When they had finished looking at houses, Sherry and Judy returned to Cummings’s residence. Sherry, Judy, and Juanita watched TV in the house and the kids, Debra, Robbie and Melissa were outside. When Judy indicated she was ready to leave, Sherry went to the bathroom. While she was gone she heard five gunshots. When she returned to the living room she saw Judy sitting on the couch slumped over. Juanita had shot her. Sherry and Juanita brought all three kids into the house, covering their eyes when they passed through the living room, and they put them in a back room. They then pulled Judy through the house and outside into the cellar. They cleaned blood off the couch, the floor and the living room wall. After they had cleaned, Robbie and Debra went back outside and Juanita left to go to work at the Dairy Queen in Atoka. Melissa stayed locked in the back room. Juanita returned from work around 11:00 that night.
Cummings returned from Oklahoma City later that same night. When he got home Sherry and Juanita met him and Juanita told him that she had killed Judy. The three of them retrieved Judy’s body from the cellar and pulled her to her truck. Cummings went to the house and got something white that he wrapped around Judy. Cummings drove Judy’s truck and Sherry followed in the car. Juanita stayed at the house. Sherry followed Cummings toward Atoka Lake. She parked her car and waited while Cummings drove on further. When he came back Judy was no longer in the truck. Cummings parked Judy’s truck off the side of the road next to a bridge. He raised the hood and left the truck there. Cummings drove home in the car with Sherry.
Sherry testified that when they arrived back at the house, Cummings and Juanita went into the bedroom where Melissa was hand-cuffed to the bed. They were there from fifteen to twenty minutes. Juanita came out first and then Cummings followed. Cummings handed Juanita the keys to the hand-cuffs and told her to bring Melissa out of the room. Cummings then told Sherry and Melissa to go get in the car. Sherry testified that Melissa asked where they were going and Cummings said they were going to meet her momma. Sherry fell asleep while they drove and she woke up when the car stopped. Cummings got out of the car and told Melissa to get out. They walked behind the car and climbed over a railing. They were gone fifteen to twenty minutes and when he returned to the car, Cummings was alone.
Sherry stated that he had blood on his hands and the front of his coveralls. Cummings drove back to Atoka Lake and stopped on the opposite side of the lake from where he had taken Judy. He cleaned up, threw away his shoes and they drove back toward the house. On the way there Cummings threw his coveralls out the window. When they arrived back at the house, Cummings and Juanita took the couch and left. They were gone for about an hour before they returned. Sherry testified that when she was first questioned by authorities about Judy and Melissa’s disappearance she told them that they had left in a dark blue or black pickup that had come by the house. She claimed to have given this statement because Cummings told her to.
Juanita also testified against Cummings at trial. She testified that on the morning of September 5, 1991, Cummings told her that he wanted her to kill his sister, Judy, and he wanted her to use the .38 to do it. Cummings then left to take his father to Oklahoma City. Juanita testified that on the morning of September 5, she took Melissa to the welfare department with her. When they arrived back at the house, Juanita was there with Sherry, Judy and the kids. The kids were outside playing. Sherry went to the porch and called her to come out there. Sherry told her to do what she knew she needed to do and she brought Juanita the gun. Juanita went back into the house and shot Judy. Juanita and Sherry brought the kids into the house and told them to play in the bedroom. They then drug Judy’s body to the cellar. They cleaned the house and couch and then Juanita went to work at the Dairy Queen.
Juanita testified that she arrived back home at around 11:00. When she got home she went into the bedroom where Melissa was handcuffed and lying on the bed. She went back into the living room. Cummings came home a little after midnight. He asked her if it was done and she replied that it was. Then Sherry and Cummings left the house and with the car keys and the truck keys. Juanita was told to stay in the house. She testified that she did not help move Judy’s body but she never saw it again. When Cummings and Sherry came back, Cummings told Juanita and Sherry to go in the bedroom and unhandcuff and undress Melissa. He then made them stay in the room while he raped Melissa. Afterward, Cummings, Sherry and Melissa left the house. Only Cummings and Sherry returned. When he returned, Cummings was wearing only a pair of shorts. He had been dressed in coveralls when he left the house. He told Juanita to help him load the couch on the truck and they took it to a bridge near Centrahoma and threw it over the side of the bridge. When questioned by authorities Juanita told them that she had been sleeping in her room when she heard someone pull up to the house and Judy hollered that she and Melissa were leaving.
Canadian Coalition Against the Death Penalty
Jesse James Cummings
Death Row, Oklahoma #244982
H-SW-3-II
P.O. Box 97
Mcalester, Oklahoma 74502-0097 USA
Hello Friends:
My name is Jesse James Cummings #244982. I am currently in custody at the H-unit, Oklahoma State Penitentiary, P.O. Box 97, Mcalester, OK. 74502-0097
On September 5th, 1991, while I was over a hundred miles away in Oklahoma City with my Father who was dying of cancer, Jaunita Marie Lewis Cummings and Sherry Marie Mitchell Cummings, shot and killed Judy Ann Moody Mayo, my older sister and killed her 11 year old daughter Melissa Marie Moody.
At this time I was living with two women - Sherry and Jaunita Cummings who were both married to me. I married Sherry Marie Mitchell first on October 8, 1987 and then at Sherry's request I married Juanita Marie Lewis on June 14, 1989 without divorcing Sherry. We lived in the community of Phillips, Oklahoma. The household consisted of me, Sherry, Jaunita, mine and Sherry's daughter, Juanita's son and my Father Jesse Samuel Cummings.
Felony informations were filed on August 1, 1994 in Coal County District Court. Jaunita was charged with the first degree (malice) murder of Judy. Sherry was charged with the first degree (malice) murder of Melissa. I was charged with two counts of first degree (malice) murder for: The murder of Judy, acting in concert with Jaunita, and the murder of Melissa, acting in concert with Sherry.
It was testified to by the actual murderer, that Judy was murdered in my home. Judy's body was recovered on September 10, 1991 in Atoka County in a small pond next to Atoka Lake. Judy had been shot several times. There was no evidence - physical, trace and/or biological, to support that Judy was murdered in my home.
Melissa's skeletal remains were recovered on October 16, 1991 near a bridge spanning the clear boggy creek in Choctaw County. The medical examiner releasted Mellisa's body and she was buried on Nov. 22, 1991.
Initially the medical examiner was unable to determine a cause of death for Melissa. However, some three years later, her remains were exhumed for a second autopsy at which time evidence of sharp force trauma on several ribs were recovered.
The case remained opened and unsolved from September 1991, til July 1994, at which time Jaunita Cummings, one of my wives, turned herself into the Coal County Sheriff's Department and confessed to the murder of Judy.
In Jaunita's initial statement to Law Enforcement, she implicated both Sherry Cummings, my other wife and me in the murders but stated that she did not know who killed Melissa and that she did not know how Melissa had been killed.
In subsequent interviews by and in statements given to law enforcement, Jaunita's version of her initial statement greatly vary. Sherry's initial version of events differed from Jaunita's and changed in subsequent interviews by and statements given to law enforcement.
The women had admitted to killing Judy while I was out of town and falsely claimed they kept Melissa alive until my return many hours later. But the facts make it clear, however, that Jaunita and Sherry also killed Melissa and disposed of the bodies before I returned. There was no evidence connecting me to the Homicides, other then the self-serving testimony of Jaunita and Sherry Cummings and there was no evidence to corroborate the women's claims against me. The evidence at trial showed that I had no motive to want either Judy or Melissa dead, and that I was on good terms with them both.
Important evidence which would have impeached the women and their claims was not presented at trial. Moreover, Jurors were unaware that Sherry and Jaunita had incentives to frame me. Subsequently, both Jaunita and Sherry entered into plea agreements with the State in exchange for the testimony as State witnesses. In return for Jaunita's testimony, the prosecution agreed to drop the first degree muder charge against her and allow her to plead to second degree murder with a recommended sentence of life imprisonment. Jaunita's parole date is in March 2003. She is serving time in NewPort, Arkansas, about thirty miles from her family's home.
The State agreed to drop the first degree murder charge against Sherry in return for her testimony. Sherry was to be allowed to plead to two accounts of accesory after the fact and one count of permitting a child to be abused, with a sentence totaling 35 years imprisonment. Sherry's parole date is September 2000. She is serving time in Odessa, Texas.
Although the exact sequence of events on the afternoon of Sept. 5, 1991, is not easily discernable from Sherry and Jaunita's testimonys and the available evidence, three key points are clear from a thorough review of the known evidence.
FIRST: It is undisputed that I was with my Father, who was admitted to Presbyterian Hospital in Oklahoma City for cancer tests.
SECOND: It is clear from Jaunita's and Sherry's testimonys that it is impossible for both Jaunita and Sherry to have testified truthfully at my trial. Their respective inconsistent statements, both prior to trial and at the trial are diametrically opposed on key events.
THIRD: Jaunita's testimony is contrary to other known physical evidence. This evidence includes information contained in the medical examiners autopsy reports and the investigation by law enforcement agenciesin the month following the homicides.
Because of the inconsistent and conflicting versions of the women, it's unsure of what happened or where the murders happened. The only thing I know for sure is my sister and my niece are dead and I have been wrongfully convicted of their murders.
On August 4, 1998, the Oklahoma Criminal Court of Appeals reversed with the instruction to dismiss the murder conviction of my sister Judy, but let Melissa's murder conviction stand against me, saying: Sherry and Jaunita were accomplices on Judy's murder and could not corroborate each other. But as to Melissa's murder, Sherry could not corroborate Jaunita but Jaunita could corroborate Sherry because Jaunita was dropped as an accomplice and deemed a witness for purposes of corroboration, not because she had witnessed any offense being committed but solely for purposes of corroboration.
In Oklahoma, the law is such that if a witness can corroborate a single item of circumstantial evidence is corroborated and admissable. The prosecution knowingly used false, misleading and inaccurate evidence, testimony and created false impressions as to the evidence at my trial to get a cconviction.
Jaunita's and Sherry's fertile imaginations continued to supply the authorities with many tales of my alleged wrong-doing. I was convicted of two counts of murder in the first degree with a sentence of death imposed on each count. My sister's murder conviction was dismissed in appeal court.
I need help proving my innocence of my niece's murder. There are no other criminal matters pending in other courts against me, nor is there any sentence, capital or non-capital, to be served by me in any other jurisdiction.
The prosecution has nothing to fear or lose by convicting an innocent person. The prosecution has immunity against being prosecuted for wrongful convictions, and once a person is convicted, no one listens to them and it takes years of appeals to prove innocence, and that's only if your lucky and get some outside help. The court appointed lawyers are usually overloaded with cases and don't have neither the money or the time they need to investigate a case to get the evidence needed to prove innocence in your case.
There is a lot more to my case. If anyone is interested in helping me, I would be very grateful for any help, legal or investigator or other.
Innocent in Prison Project International
Case No: CF 94-32
Date of the Crime: September 5, 1991
Date of Conviction: May 9, 1996
Sentenced to death for two counts of first degree murder (victims: my sister and niece)
My sister's murder conviction against me was dismissed in appeal court.
The following text was written by Jessie Cummings.
Jessie, Sherry, Dad taken in October, 1991 On September 5th, 1991, while Jessie Cummings was over a hundred miles away in Oklahoma City, Oklahoma, with his father, who was receiving treatment for terminal cancer, Juanita and Sherry Cummings [Jessie Cummings' ex-wives] shot and killed Judy Ann Moody Mayo and killed Judy's 11 year old daughter Melissa Marie Moody [Jessie Cummings' sister and niece].
Judy Moody Mayo and Melissa Moody were last seen at 1:15 pm the afternoon of September 5th, 1991 at Vira Birthaleen Potter's home in Coalgate, Oklahoma. Both Judy and Melissa disappeared while Jessie Cummings was in Oklahoma City. This case was open and unsolved from September 1991 until July 1994.
On July 27th, 1994, the day before Jessie Cummings was arrested, Juanita Cummings confessed for the first time to Jessie Cummings that she had shot and killed Judy Moody Mayo and took Melissa Moody and did away with her in 1991. Sherry Cummings had helped move Judy's body.
Jessie Cummings tried to get both Juanita and Sherry Cummings to got with him to talk to the Sheriff about Juanita Cummings' confession. They refused. However, Juanita Cummings knew that Jessie Cummings planned to talk to the Sheriff. Juanita turned herself into the authorities. She admitted killing Judy Moody Mayo, but she claimed that Jessie Cummings had ordered her to do it. Juanita and Sherry Cummings admitted to killing Judy Moody Mayo while Jessie Cummings was in Oklahoma City. But falsely claimed they kept Melissa Moody alive until his return many hours later. However, the facts and a thorough investigation will make it clear that Juanita and Sherry Cummings also killed Melissa Moody and disposed of the bodies before Jessie Cummings returned from Oklahoma City, Oklahoma.
On July 28th, Juanita Cummings went to work and decided to talk to her employer Edward Fields and his wife Diane. Juanita told them that when she returned from work on September 6th, 1991, that Judy Moody Mayo's body was gone and so was Melissa Moody. Juanita Cummings was home long before Jessie Cummings returned from Oklahoma City in the early morning hours of September 6th, 1991.
On September 5th, 1991, Jerry Wayne Walker was at the Cummings' home around 5:00 pm for two to three hours. In an Oklahoma State Bureau of Investigation (OSBI) interview Jerry Walker reported that the only people he saw at the Cummings' home was Sherry Cummings and her daughter and Juanita's son, and that neither Judy Moody Mayo, nor Melissa Moody, or Judy's pickup was at the Cummings' home.
On September 5th, 1991 Ella Faye Potter in an (OSBI) interview reported that she came to the Cummings' home looking for Judy Moody Mayo about 8:00 pm on September 5th, 1991 and noone was home, nor was Judy's pickup at the Cummings' home. On September 5th, 1991 Loretta Lynn McCullar in an (OSBI) interview reported that she came to the Cummings' home about 10:00 pm on September 5th, 1991 adn noone was home, and Judy Moody Mayo's pickup was not at the Cummings' home. On September 5th, 1991 Patsy Cathey in an (OSBI) interview reported that Sherry Cummings and the two children came to the Dairy Queen Drive, in where Patsy Cathey and Juanita Cummings were working. Sherry ordered food and drink for her and the two children, after talking to Juanita. Sherry left and Judy nor Melissa were with Sherry Cummings. Sherry left around 8:00 or 8:30 pm.
In Juanita and Sherry Cummings' testimony, after Juanita shot and killed Judy Moody Mayo, they were supposed to have moved Judy's body to the cellar. Judy's pickup was supposed to have set at the Cummings' home until Jessie Cummings returned from Oklahoma City. Melissa Moody was supposed to be handcuffed to a bed in the Cummings' home until Jessie Cummings return. Sherry Cummings was supposed to have been home all afternoon and night guarging Melissa Moody.
The prosecution's theory of the case as presented through the state solicited testimony of Juanita and Sherry Cummings was that Jessie Cummings was responsible for both murders. There are many inconsistencies between the women's versions of events, and there is no evidence to corroborate their claims against Jessie Cummings.
Jessie Cummings was convicted based solely on the uncorroborated testimony of his two former wives - the actual killers - Juanita and Sherry Cummings, who had to satisfy the prosecution with their testimony and a conviction against Jessie Cummings before they could receive their plea bargains for lesser charges that originally included the threat of a death sentence for both women.
Jessie Cummings has consistently maintained his innocence of these offenses and asked for DNA testing and a thorough investigation of any and all evidence there might be in this case.
Jurors
I was not informed I could have any say in who sat on the jury.
Juror 1: Christy Michelle "C" B. She is good friend of Eugene Mayo, husband of "victim" Judy Moody Mayo. She walked to school with Ella Faye Potter's children. Melissa Moody "victim" also walked to school with Ella Faye's children in Tupelo, Oklahoma, and Melissa Moody was best friends with Ella Faye's daughter Linda. Judy Moody Mayo and Ella Faye Potter were best friends.
Juror 2: Lisa A. She works as a secretary and bookkeeper for RSVP at Coalgate, Oklahoma. Her husband was given four years in prison for unlawful delivery of marijuana and did eight months of his sentence.
Juror 3: David P. He works as a parts manager at Brecheens Equipment in Atoka, Oklahoma. He is friends with Atoka County under Sheriff Junior Head. "Junior Head was one of the case investigators." I do not get along with under Sheriff Junior Head. He tried to set me up for car theft in 1983, but lost in court, when it was proven that I was in the hospital at the time the car was stolen. I also got into a fight with Junior Head's brother, who dated my younger sister, Debbie.
Alternate Juror 1: Tonya P. Wife of Juror 3. She is the cook at the Atoka Truck Stop where law enforcement eat, have coffee, talk about cases, etc.
Juror 4: Nora H. She was the cook at the Atoka Truck Stop where law enforcement eat, have coffee, talk about cases, etc.
Juror 5: Sandra S. She graduated with a degree in criminal justice at East Central University. At time of jury trial she worked at K-marts in Ada, Oklahoma. In the past she worked for the probation and parole office in Ada, Oklahoma. On post-conviction investigation the lawyer found out that at the time of the trial Ms. S. lived in Ada, Oklahoma, "Pontotoc County" not "Coal County" as required by law to be on the Coal County jury. "She said she wanted to get back into law enforcement work after my trial was over."
Juror 6: Cynthia M. Ms M. had been widowed for eleven months at time of trial and did not work.
Juror 7: Carl S. retired. He said, he would pick the death penalty over all on first degree murder.
Juror 8: Pamila H. Her husband Mike and her father-in-law Marvin H. own the Lehigh Oklahoma Salvage Yard. They were good friends with local law enforcement that hung out at their salvage yard often. I have had disagreements with her husband and father-in-law several times in the past. Pamila H.'s son was arrested while I was in jail in Coal County. Her son had all charges dropped against him for narcotic possession with intent to distribute the drugs, even though her son had the drugs on him and it was his car, the two young men with him were charged. At my trial the judge asked Pamila H., if she was satisfied enough with the outcome of her son's case to sit on the jury.
Juror 9: Deloris C. registered nurse at the Coal County Health Department who regularly treated the Cummings family. Her middle son is the assistant city manager of the city of Coalgate, Oklahoma. Her oldest son is a police detective for the city of Ada, Oklahoma.
Juror 10: Larena D. The Coalgate court clerk Betty McCurry is her aunt. I had problems with Joseph D., because he came to my house and kicked my dog to death.
Juror 11: Garry T. works at the Ada Oklahoma post office. He said, he would automatically vote for the death penalty.
Juror 12: Paul H. He is the neighbor and good friend of Coal County Sheriff Bill Ward. His daughter works in the Coalgate D.H.S. office. He has another daughter who works at the Coalgate City Hall. He said, he had heard the case talked about a lot and did not think, he be a fair juror.
Documents
Verified Original Application for Post-Conviction Relief, Request for Evidentiary Hearing, and Request for Discovery
Procedural History of the Case (pdf)
Part A: I. Capital Offense Information
II. Non-Capital Offense Information
III. Case Information
and Part B: Grounds for Relief
Table of Contents
Appendix (Table of Contents)
Abbreviations and References to the Record
Part C: Facts (pdf)
Averment of Preliminary Facts in Support of Application
A. Introduction
B. Jessie Cummings is Factually Innocent of These Offenses
C. The Wives were not Battered Women and They did not Act Out of Duress
D. Information About the Victims, Judy Mayo & Melissa Moody, Needed to Understand the Testimony in this Case (pdf)
E. Background Information About Jessie Cummings which Assists in Understanding this Case (pdf)
F. Sherry Cummings: The Dominant Person in the Cummings Household (pdf)
G. Anita Cummings: The Person who Shot and Killed Judy (pdf)
H. Lahoma Yaws: The False Rape Allegation Invented to Help her Sister (pdf)
I. Knowledge About the Poor White Trash Sub-Culture Needed to Understand the Testimony in this Case (pdf)
K. The Offenses and Discovery of the Bodies in 1991 (pdf)
L. Subsequent Events Prior to the Arrest (pdf)
M. The July 1994 Arrest (pdf)
N. Relevant Procedural History of Case (pdf)
Factual Contentions in Support (pdf, 98 pages)
W.A. Drew Edmondson, Attorney General of Oklahoma (pdf, 3 pages) letter and memorandum (March 1, 2002) In response to Edmondson's statement, "While Mr. Cummmings claims innocence, you must keep in mind that he initially denied all knowledge of these crimes and only years later, admitted disposing of the body of his sister":
There is evidence showing that Mr. Cummings' July 30, 1994 confession to assisting in moving Judy's body was a false confession made due to inducements by a law enforcement officer. He recanted very soon. There now is evidence available to substantiate Mr. Cummings' reasons for falsely confessing in order to protect his children from living with child molesters. (See Averment of Facts, Parts M. The July 1994 Arrest (pdf, especially page 9 (66)) & F. Sherry Cummings: The Dominant Person in the Cummings Household (pdf))
How you can help
Jessie J. Cummings has stated for years: In my opinion, DNA testing should be done on any and all evidence there might be in this case.
I need to hire an investigator who will investigate the case thoroughly to find the evidence needed to prove my innocence and this false conviction. Witnesses who have not come forward so far, are asked to do that now before it is too late. Emails can be sent to helpjessie2003@yahoo.com.au and chris@eulberglaw.com
My attorney and myself need support from a healthy, dedicated and not overworked attorney. My attorney believes in my innocence. He does his best, although he is terribly overworked and has recently had some serious heart problems.
Any support is appreciated. If you want to donate to my defense, please write to me. See contact info above!
Cummings v. State, 968 P.2d 821 (Okla.Crim. 1998) (Direct Appeal).
Defendant was convicted in the District Court, Coal County, Doug Gabbard, II, J., of first-degree malice aforethought murder for murder of a mother and first-degree felony murder for murder of her daughter. Defendant appealed. The Court of Criminal Appeals, Strubhar, V.P.J., held that: (1) joinder of offense of malice aforethought murder, together with offenses of first-degree murder and child abuse, was proper; (2) joinder of offenses did not severely prejudice defendant's right to a fair trial; (3) defendant's two wives were accomplices in first-degree malice aforethought murder; (4) reversal of defendant's conviction for first-degree malice aforethought murder was required; (5) since testimony of defendant's nonaccomplice wife provided independent evidence corroborating accomplice wife's testimony, jury could infer that all of accomplice wife's testimony was truthful; (6) evidence sustained conviction for felony murder; (7) defendant's wife had authority to consent to a search of area in home where seized items were found; (8) trial court did not abuse its discretion in admitting photographs into evidence; (9) admission of twine friendship bracelets found on victim's skeletonized wrist in addition to picture which showed bracelets on victim's skeletonized wrist did not require reversal; (10) trial court properly refused to instruct jury on offense of accessory after fact; (11) none of prosecutor's comments allegedly ridiculing defendant, to which defendant failed to object, were plain error; (12) defendant was not deprived of effective assistance of counsel; (13) aggravating circumstance that defendant killed second victim to prevent lawful arrest or prosecution for two predicate crimes failed; (14) evidence used to support “continuing threat” aggravating circumstance was appropriate and did not render defendant's death sentence unconstitutional; (15) error in State's failure to provide pretrial notice of testimony that would be introduced in support of aggravating circumstance was harmless; (16) jury was accurately and adequately instructed regarding proper procedure for weighing aggravating circumstances against mitigating evidence; (17) jury was properly instructed on issue of mitigation; (18) sentence of death was factually substantiated and appropriate; and (19) death sentence was not imposed under passion, prejudice, or any other arbitrary factor. Reversed in part and affirmed in part. Lumpkin, J., filed an opinion concurring in results.
STRUBHAR, Vice Presiding Judge.
¶ 1 Appellant, Jessie James Cummings, was convicted of First Degree Malice Aforethought Murder (Count I) and First Degree Felony Murder (Count II), in the District Court of Coal County, Case No. CF-94-32, after a jury trial held before the Honorable Doug Gabbard, II.FN1 As to both of these counts, the State filed a Bill of Particulars alleging two aggravating circumstances: (1) that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution; FN2 and, (2) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.FN3 As to Count I, the jury found the existence of one aggravating circumstance, the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. As to Count II, the jury found the existence of both alleged aggravating circumstances. The jury assessed punishment at death on each count. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal.FN4
FN1. Appellant was also charged with Count III, Child Abuse. However, this count was dismissed at the end of the first stage of trial. FN2. 21 O.S.1991, § 701.12(5). FN3. 21 O.S.1991, § 701.12(7). FN4. Appellant's Petition-in-Error was filed in this Court on November 20, 1996. His Brief-in-Chief was filed on July 7, 1997, and the State's Response Brief was filed on November 4, 1997. The case was submitted to this Court on November 26, 1997, and oral argument was heard on March 10, 1998.
FACTS
¶ 2 In September of 1991, Appellant lived in Phillips, Oklahoma, in a residence he shared with his first wife, Sherry Cummings, his second wife, Juanita Cummings, Appellant's and Sherry's daughter, Debra, Juanita's son Robbie, and Appellant's father, Jesse Samuel Cummings. Appellant had married Sherry in 1987, and, without divorcing her, had married Juanita in 1989. He, in effect, had two wives.
¶ 3 On September 8, 1991, Appellant went to the Atoka County Sheriff's Office and reported his sister, Judy Ann Moody Mayo, and her daughter, Melissa Moody, as missing. Appellant told the clerk that friends had told him that his sister's vehicle had been seen parked at Atoka Lake on Highway 43 and that it had broken down as its hood and doors were opened. Appellant reported what his sister and her daughter had been wearing at the time of their disappearance. He also said that someone had possibly picked them up. Appellant showed the clerk pictures of Judy and Melissa.
¶ 4 The next day, on September 8, Judy's body was found floating in a small pond adjacent to Atoka Lake. She had suffered gunshot wounds to her head and neck and her body was wrapped in a quilt and a mattress pad. The following month, in October, the skeletal remains of Melissa were located by the side of a bridge over the Clear Boggy River in Choctaw County. Due to the skeletonization of the body, an exact cause of death could not be determined but evidence of sharp force injuries to several ribs was noted.
¶ 5 The case remained unsolved for almost three years. During this time, Appellant and his two wives moved from Phillips, Oklahoma, to Lehigh, Oklahoma. In the summer of 1994, Juanita went to work for a minister named Edward Fields. Juanita told Fields that she had shot Judy and that Appellant had made her do it. She also stated that Appellant had wanted her to kill Melissa but she got sick and could not do it. She told Fields that after she killed Judy she went to work and when she got back Judy's body was gone and so was Melissa.
¶ 6 Subsequently, Juanita was charged with First Degree Murder for the death of Judy, and Sherry was charged with First Degree Murder for the death of Melissa. First Degree Murder charges were dropped against Sherry when she entered a plea agreement with the State and pled guilty to two counts of Accessory After the Fact and one count of Permitting a Child to be Abused. First Degree Murder charges were also dropped against Juanita and she pleaded guilty to Second Degree Murder. Both Sherry and Juanita implicated Appellant in the commission of the crimes and testified against him at trial.
¶ 7 Sherry testified that on September 4, 1991, Appellant told her to take his sister, Judy, to look at houses and to shoot Judy from behind when they got to an empty house. The next morning, on September 5, Appellant left early to drive his father to the hospital in Oklahoma City. That morning, Sherry took Judy to look at houses. She did not shoot Judy while they were looking at houses. When they had finished looking at houses, Sherry and Judy returned to Appellant's residence. Sherry, Judy, and Juanita watched TV in the house and the kids, Debra, Robbie and Melissa were outside. When Judy indicated she was ready to leave, Sherry went to the bathroom. While she was gone she heard five gunshots. When she returned to the living room she saw Judy sitting on the couch slumped over. Juanita had shot her. Sherry and Juanita brought all three kids into the house, covering their eyes when they passed through the living room, and they put them in a back room. They then pulled Judy through the house and outside into the cellar. They cleaned blood off the couch, the floor and the living room wall. After they had cleaned, Robbie and Debra went back outside and Juanita left to go to work at the Dairy Queen in Atoka. Melissa stayed locked in the back room. Juanita returned from work around 11:00 that night.
¶ 8 Appellant returned from Oklahoma City later that same night. When he got home Sherry and Juanita met him and Juanita told him that she had killed Judy. The three of them retrieved Judy's body from the cellar and pulled her to her truck. Appellant went to the house and got something white that he wrapped around Judy. Appellant drove Judy's truck and Sherry followed in the car. Juanita stayed at the house. Sherry followed Appellant toward Atoka Lake. She parked her car and waited while Appellant drove on further. When he came back Judy was no longer in the truck. Appellant parked Judy's truck off the side of the road next to a bridge. He raised the hood and left the truck there. Appellant drove home in the car with Sherry.
¶ 9 Sherry testified that when they arrived back at the house, Appellant and Juanita went into the bedroom where Melissa was hand cuffed to the bed. They were there from fifteen to twenty minutes. Juanita came out first and then Appellant followed. Appellant handed Juanita the keys to the hand cuffs and told her to bring Melissa out of the room. Appellant then told Sherry and Melissa to go get in the car. Sherry testified that Melissa asked where they were going and Appellant said they were going to meet her momma. Sherry fell asleep while they drove and she woke up when the car stopped. Appellant got out of the car and told Melissa to get out. They walked behind the car and climbed over a railing. They were gone fifteen to twenty minutes and when he returned to the car, Appellant was alone. Sherry stated that he had blood on his hands and the front of his coveralls. Appellant drove back to Atoka Lake and stopped on the opposite side of the lake from where he had taken Judy. He cleaned up, threw away his shoes and they drove back toward the house. On the way there Appellant threw his coveralls out the window. When they arrived back at the house, Appellant and Juanita took the couch and left. They were gone for about an hour before they returned.
¶ 10 Sherry testified that when she was first questioned by authorities about Judy and Melissa's disappearance she told them that they had left in a dark blue or black pickup that had come by the house. She claimed to have given this statement because Appellant told her to.
¶ 11 Juanita also testified against Appellant at trial. She testified that on the morning of September 5, 1991, Appellant told her that he wanted her to kill his sister, Judy, and he wanted her to use the .38 to do it. Appellant then left to take his father to Oklahoma City. Juanita testified that on the morning of September 5, she took Melissa to the welfare department with her. When they arrived back at the house, Juanita was there with Sherry, Judy and the kids. The kids were outside playing. Sherry went to the porch and called her to come out there. Sherry told her to do what she knew she needed to do and she brought Juanita the gun. Juanita went back into the house and shot Judy. Juanita and Sherry brought the kids into the house and told them to play in the bedroom. They then drug Judy's body to the cellar. They cleaned the house and couch and then Juanita went to work at the Dairy Queen.
¶ 12 Juanita testified that she arrived back home at around 11:00. When she got home she went into the bedroom where Melissa was handcuffed and lying on the bed. She went back into the living room. Appellant came home a little after midnight. He asked her if it was done and she replied that it was. Then Sherry and Appellant left the house and with the car keys and the truck keys. Juanita was told to stay in the house. She testified that she did not help move Judy's body but she never saw it again.
¶ 13 When Appellant and Sherry came back, Appellant told Juanita and Sherry to go in the bedroom and unhandcuff and undress Melissa. He then made them stay in the room while he raped Melissa. Afterward, Appellant, Sherry and Melissa left the house. Only Appellant and Sherry returned. When he returned, Appellant was wearing only a pair of shorts. He had been dressed in coveralls when he left the house. He told Juanita to help him load the couch on the truck and they took it to a bridge near Centrahoma and threw it over the side of the bridge.
¶ 14 When questioned by authorities Juanita told them that she had been sleeping in her room when she heard someone pull up to the house and Judy hollered that she and Melissa were leaving.
PRETRIAL ISSUES
¶ 15 Appellant argues in his first proposition that the trial court erred in denying his motion to sever his trial for Count I, the murder of Judy Mayo, from Counts II and III, the murder and child abuse of Melissa Moody. This Court has held that “joinder of separately punishable offenses is permitted if the separate offenses arise out of one criminal act or transaction, or are part of a series of criminal acts or transactions.” Glass v. State, 1985 OK CR 65, 701 P.2d 765, 768. Further, with respect to a series of criminal acts or transactions, “joinder of offenses is proper where the counts so joined refer to the same type of offenses occurring over a relatively short period of time, in approximately the same location, and proof as to each transaction overlaps so as to evidence a common scheme or plan.” Id. See also Pack v. State, 1991 OK CR 109, 819 P.2d 280, 282.
¶ 16 In applying this law to the facts of the present case, we find that the murders of Judy Mayo and her daughter were part of a series of criminal acts which were related to one another. Although they were not killed by exactly the same means or at the exact same time, Judy and Melissa were murdered within twelve hours of each other. Further, although Judy and Melissa were not killed in the same location, the residence that Appellant shared with Juanita and Sherry was central to both murders. Judy was actually killed there and Melissa was held captive there until immediately before she was taken to the location where she was killed. Finally, we find that proof as to each transaction does overlap so as to indicate a common scheme or plan. The evidence suggests Appellant either initially intended to kill both Judy and Melissa or that he initially intended to kill only Judy but after Judy was killed it became necessary to also kill her daughter. There was a logical relationship between the offenses.
¶ 17 Appellant also contends that the joinder of offenses was in error because it severely prejudiced him. He argues that if Count I had been tried separately from Counts II and III, the jury would not have heard testimony that he raped and killed Melissa as this would have been inadmissible evidence of other crimes. We find that these two crimes were so closely related that evidence of one murder was admissible as part of the res gestae of the other. Accordingly, we cannot find that the joinder of offenses severely prejudiced Appellant's right to a fair trial. This proposition is without merit.
FIRST STAGE ISSUES
¶ 18 Appellant argues in his second proposition that Sherry and Juanita Cummings were each accomplices to the murders of both Judy and Melissa, and accordingly, their testimony regarding his involvement in the commission of these offenses required corroboration. He also contends that the testimony of Sherry and Juanita was not sufficiently corroborated to support his conviction for these murders.
¶ 19 This Court has held that, “[t]he test for determining whether a person is an accomplice is whether he or she could have been charged with the crime for which the accused is on trial.” Bannister v. State, 1996 OK CR 60, 930 P.2d 1176, 1179. The record reveals that Juanita Cummings was actually charged with First Degree Murder for the killing of Judy Mayo. FN5 Although Sherry Cummings was not charged with any crime in regard to Judy Mayo's homicide, the trial court ruled that she was an accomplice to this offense as a matter of law. This ruling was supported by testimony that Sherry was present in the house at the time that Juanita shot Judy and that Sherry gave Juanita the gun that was used to kill Judy. From this, we find that both Juanita and Sherry were accomplices to Count I.
FN5. Juanita Cummings subsequently entered a plea of guilty to the lesser crime of Second Degree Murder for the homicide of Judy Mayo.
¶ 20 Having found that Juanita and Sherry were correctly ruled as a matter of law to be accomplices to the murder of Judy Mayo, we turn next to the question of whether their testimony implicating Appellant was sufficiently corroborated at trial by independent evidence of Appellant's involvement in the commission of the offense. “[T]he general rule is that testimony of an accomplice must be corroborated with evidence, that standing alone, tends to link the defendant to the commission of the crime charged....” Sadler v. State, 1993 OK CR 2, 846 P.2d 377, 383. It is not necessary that an accomplice's testimony be corroborated in all material respects. Johns v. State, 1987 OK CR 178, 742 P.2d 1142, 1146. It is only required that there to be at least one material fact of independent evidence that tends to connect the defendant with the commission of the crime. Id. Further, circumstantial evidence can be adequate to corroborate the accomplice's testimony. Pierce v. State, 1982 OK CR 149, 651 P.2d 707, 709.
¶ 21 Appellant argues that aside from the testimony of Juanita and Sherry, there was no evidence presented at trial which can be found to independently connect him with the commission of Judy's murder. The trial record supports this assertion. Evidence was presented at trial that Appellant was in Oklahoma City with his father at the time that Juanita killed Judy. There was evidence that he reported his sister missing three days after she was killed. The prosecution also offered into evidence three small notebooks kept by Appellant in which he had written details of events which occurred after his sister's disappearance and during the investigation into her disappearance. Nowhere in these notebooks did Appellant write anything indicative of his involvement in Judy Mayo's murder. The trial record also reveals that Appellant had made a statement to the police in which he admitted to helping drag his sister's body to her pickup and to dumping her body into the lake. While this evidence clearly implicates Appellant as an accessory after the fact, it does not support a finding that he acted as a principal, either by aiding or abetting his sister's murder. As Appellant contends, outside of the testimony of Juanita and Sherry, the evidence only supports a finding that Appellant assisted his wives in lying to the police and in covering up the crime. It does not independently connect him to the actual commission of Judy Mayo's murder. Accordingly, Appellant's conviction for Count I must be reversed with instructions to dismiss.
¶ 22 We next address Appellant's conviction for Count II, the murder of his niece, Melissa Moody. Sherry Cummings was initially charged with First Degree Murder for the death of Melissa Moody.FN6 By her own testimony, Sherry helped hold the child captive and went with Appellant and Melissa in the car to the place where Melissa was taken and killed. Juanita was not charged in conjunction with Melissa's homicide. The trial court did not direct the jury to consider Juanita and Sherry accomplices as a matter of law regarding the murder of Melissa. However, as the evidence was sufficient to bind Sherry over on the charge of First Degree Murder for the death of Melissa, we find that it also supports a finding that Sherry was an accomplice to this crime as a matter of law.
FN6. Sherry Cummings subsequently entered a plea of guilty to two counts of Accessory After the Fact and one count of Permitting a Child to be Abused.
¶ 23 As to Juanita, Appellant asserts that she, too, was an accomplice. Under the evidence presented at trial, Juanita could not be indicted for Melissa's murder as there is no evidence that she intended to participate in the crime or aided or abetted its commission. Accordingly, we find that Juanita was not an accomplice to Melissa's murder and her testimony can be considered independent evidence connecting Appellant to the commission of this crime. See Bowie v. State, 1995 OK CR 4, 906 P.2d 759, 763-64. Because Juanita's testimony provided independent evidence corroborating Sherry's testimony as to at least one material fact which tended to connect Appellant with the commission of the crime, the jury could infer that all of Sherry's testimony was truthful. See Perry v. State, 1993 OK CR 5, 853 P.2d 198, 200. Appellant's assertion that his conviction on Count II was based entirely upon uncorroborated accomplice testimony is without merit.
¶ 24 In his third proposition Appellant complains that the trial court erred by refusing to instruct the jury that Sherry and Juanita were accomplices as a matter of law to Count II, the murder of Melissa Moody. As we have already determined that Juanita was not an accomplice as a matter of law to Count II, failure to instruct otherwise cannot be found to have been error. However, because the evidence was sufficient to support a First Degree Murder charge against Sherry for Melissa's murder, the trial court did err by failing to instruct the jury that Sherry was an accomplice to this crime as a matter of law. This Court has held that “where there is overwhelming evidence of guilt and the presence of sufficient corroborating testimony, the failure to so instruct is harmless.” Howell v. State, 1994 OK CR 62, 882 P.2d 1086, 1092, cert. denied, 514 U.S. 1113, 115 S.Ct. 1968, 131 L.Ed.2d 858 (1995). See also Bryson v. State, 1994 OK CR 32, 876 P.2d 240, 256, cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995). Because we find that there was overwhelming evidence of Appellant's guilt as to Count II and that Appellant's conviction on this count was supported by sufficient corroborating evidence, we find this error to have been harmless.
¶ 25 Appellant was originally charged with First Degree Malice Murder for the death of Melissa Moody. These charges were dismissed without prejudice by the magistrate upon a finding that Coal County lacked venue for that crime. FN7 The State lodged an appeal to this ruling pursuant to Rule 6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1995). In an Accelerated Docket Order handed down on January 23, 1996, this Court upheld the magistrate's decision dismissing the First Degree Malice Murder charge for lack of venue. Subsequently, the State amended the Information filed in Coal County to charge Appellant alternatively with First Degree Malice Murder and First Degree Felony Murder.FN8 After Preliminary Hearing held on April 6, 1996, Appellant was bound over on the charge as amended. Appellant argues in his fourth proposition that the State should not have been allowed to reinstate the dismissed charge by simply refiling it as an alternative count and bringing it before a magistrate at a second preliminary hearing. He further contends that the State lacked subject matter jurisdiction over the reinstated charge.
* * *
Appellant complains in his ninth proposition that numerous instances of prosecutorial misconduct deprived him of a fair trial and reliable sentencing proceeding. He first argues that the prosecutor argued facts not in evidence during both stages of trial in order to explain to the jury why Melissa's clothing was found at the same location as her mother's clothing. He also complains that the prosecutor improperly referred to evidence that Appellant had raped Melissa after the trial court had dismissed Count III, the rape charge, at the end of the first stage of trial. Finally, Appellant contends that the prosecution unnecessary ridiculed him. All but a couple of the comments complained of were not objected to at trial. Accordingly, as to these remarks, all but plain error has been waived. Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 287, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994).
¶ 44 Our review of the record reveals that of the many comments which were not met with timely objection, none can be deemed plain error. Also, of the few comments which were objected to, none were so egregious as to require reversal. “Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial.” Duckett v. State, 1995 OK CR 61, 919 P.2d 7, 19. Because we do not find that inappropriate comments deprived Appellant of a fair trial, affecting the jury's finding of guilt or assessment of the death penalty, we decline to grant relief on this proposition.
¶ 45 Appellant argues in his tenth proposition that trial counsel made several errors during both stages of trial which denied him effective assistance of counsel. To show ineffective assistance of counsel, a defendant must meet the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First he must show that defense counsel's performance was deficient. This requires a showing that counsel made errors so egregious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Second, he must show he was prejudiced by the deficient performance; that counsel's errors deprived him of a fair trial with a reliable outcome. Id. 466 U.S. at 687, 104 S.Ct. at 2064. “Any showing that the outcome would have been different is sufficient.” Duckett, 919 P.2d at 14.
¶ 46 It is first alleged that trial counsel was ineffective because he failed to investigate and use available evidence concerning Appellant's personality and character that was inconsistent with the State's theory of guilt and its justification for a death sentence. Appellant contends that the State's theory of the case was that he was a brutal, manipulative person who exercised such complete control over adult women that he could order them to commit and assist in murder and rape. He contends that defense counsel was ineffective for failing to put on character and psychological evidence which would have countered the prosecution's portrayal of his domineering personality and interpersonal skills. Appellant has filed an application for an evidentiary hearing regarding the issue of whether trial counsel was ineffective for failing to utilize this available evidence.
¶ 47 Appellant requests this evidentiary hearing based upon Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997). This rule allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to “utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial....” Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains “sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997).
¶ 48 Upon review of the application and supporting affidavits we find Appellant has shown this Court that trial counsel could well have utilized this information at trial and that it may have been prudent for him to do so. However, Appellant has not shown by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. Accordingly, we decline to grant Appellant's application for an evidentiary hearing.
¶ 49 Appellant also alleges that trial counsel was ineffective because he failed to object to the prosecution's improper argument and improper references to the alleged rape of Melissa Moody after the trial court had dismissed the child abuse/rape charges. We agree that defense counsel would have been well advised to object to the prosecutor's speculation about how Melissa's clothes came to be found in the lake with her mother's clothes. We also agree that defense counsel should have objected to the prosecutor's references to the alleged rape in first stage closing argument and during the second stage of trial. However, we do not find that these errors rendered counsel's performance deficient or that he was prejudiced by deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Accordingly, we decline to grant relief on this allegation of error.
SECOND STAGE ISSUES
¶ 50 Appellant argues in his eleventh proposition that the evidence was not sufficient to support the jury's finding that he killed Melissa Moody for the purpose of avoiding or preventing a lawful arrest or prosecution. The prosecution alleged two predicate crimes to this aggravating circumstance in the Bill of Particulars: that Appellant had killed Melissa to avoid prosecution for having raped her and to avoid prosecution for having killed her mother.FN11 Appellant contends that because the trial court dismissed the child abuse charge, Count III, at the end of the first stage of trial, the State could not rely upon the first stage evidence that Appellant had abused and raped Melissa in order to argue that he killed her to avoid arrest of prosecution for the rape. We find merit to Appellant's argument that evidence of the dismissed charge should not have been used to support this aggravating circumstance. The trial court found as a matter of law that Appellant was not guilty of the crime of child abuse as charged FN12 and accordingly, the alleged acts that the State relied upon to support this charge should not be used to support this aggravating circumstance. Similarly, because this Court found in Proposition II that the evidence was insufficient to support Appellant's conviction for killing Judy Mayo, it follows that the evidence must also be insufficient to support a finding that Appellant killed Melissa Moody to avoid arrest or prosecution for this crime. Under these circumstances, Appellant's contention that the evidence was insufficient to support the jury's finding that he killed Melissa Moody to prevent lawful arrest or prosecution has merit. Accordingly, this aggravating circumstance must fail.
FN11. Original Record, 316. FN12. Trial Transcript IV, 855-56; Original Record, 388.
¶ 51 Appellant first contends in his twelfth proposition that his death sentence should be vacated because the “continuing threat” aggravating circumstance, as interpreted and applied in this case, created the risk of arbitrary and capricious imposition of the death penalty. Appellant acknowledges that this Court has consistently upheld the constitutionality of the “continuing threat to society” aggravating circumstance. Duckett, 919 P.2d at 26; Knighton v. State, 1996 OK CR 2, 912 P.2d 878, 895, cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71 (1996); Richie v. State, 1995 OK CR 67, 908 P.2d 268, 278, cert. denied, 519 U.S. 837, 117 S.Ct. 111, 136 L.Ed.2d 64 (1996); Malone v. State, 1994 OK CR 43, 876 P.2d 707, 715-16. However, he urges us to reconsider this ruling. We find the law is settled and Appellant has failed to give this Court any compelling reason to revisit this issue now.
¶ 52 Next, Appellant challenges the State's use of evidence of unadjudicated crimes to support the “continuing threat” aggravating circumstance. Specifically, Appellant complains that this aggravating circumstance was supported only by the uncorroborated testimony of Lohoma Yaws, Sherry Cummings' sister, that Appellant had raped her when she was fourteen years old. This crime was not reported to the police as Ms. Yaws testified that Appellant threatened to kill her and her mother if they told what had happened. Appellant contends that it is offensive to due process and to the prohibition against cruel and unusual punishments that he was sentenced to death on the basis of such unreliable evidence. Again, Appellant acknowledges that this Court has long allowed the use of unadjudicated crimes to support the “continuing threat” aggravating circumstance. We have held that evidence relevant to the proof of this aggravating circumstance includes prior convictions, prior unadjudicated crimes and other acts which show a pattern of conduct that would indicate a propensity toward violence that likely would continue in the future. See Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 317-18; Charm v. State, 1996 OK CR 40, 924 P.2d 754, 762-63, cert. denied, 520 U.S. 1200, 117 S.Ct. 1560, 137 L.Ed.2d 707 (1997); Perry v. State, 1995 OK CR 20, 893 P.2d 521, 536; Malone, 876 P.2d at 717. Accordingly, we find that the evidence used to support the “continuing threat” aggravating circumstance in the present case was appropriate and does not render Appellant's death sentence unconstitutional.
¶ 53 In his thirteenth proposition, Appellant contends his death sentence should be vacated because the State failed to provide pretrial notice of the testimony of Lahoma Yaws that would be introduced in support of the “continuing threat” aggravating circumstance. Notice by the prosecution to the defense of the evidence to be introduced in support of the aggravating circumstances is required by statute. 21 O.S.1991, § 701.10(C); Walker v. State, 1994 OK CR 66, 887 P.2d 301, 316-17, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995).
¶ 54 In the present case, the State simply indicated in the Bill of Particulars that evidence of the rape of Lahoma Yaws would be offered to support the alleged aggravating circumstances. It informed that this testimony would be provided by Ms. Yaws, Sherry and Juanita Cummings. Generally, this would not be deemed sufficient notice to allow the defense to know what to expect. However, as the State points out, Sherry Cummings had already testified in the preliminary hearing about Appellant's rape of her sister, Ms. Yaws. Accordingly, it can be found that Appellant knew of the nature of Ms. Yaws expected testimony regarding the rape. He had ample information and time to present a defense or an explanation for the alleged conduct. This error is harmless.
¶ 55 Appellant requested the jury be instructed that the existence of a mitigating circumstance did not have to be proven beyond a reasonable doubt, but could be considered if there was any substantial evidence to support it.FN13 The trial court declined to give Appellant's requested instruction and Appellant asserts in his fourteenth proposition that this ruling resulted in reversible error.
FN13. Although this type of instruction is presently sanctioned by the Oklahoma Uniform Jury Instructions, OUJI-CR2d 4-78, it was not in effect at the time of Appellant's trial.
¶ 56 The record reflects that the jury was properly instructed that:
If you unanimously find that one or more of the aggravating circumstance or circumstance(s) existed beyond a reasonable doubt, unless you also unanimously find that the aggravating circumstance or circumstance(s) outweigh the finding of one or more mitigating circumstances, the Death Penalty shall not be imposed.FN14. Original Record, 466.
This Court has held repeatedly that this instruction accurately and adequately instructs the jury regarding the proper procedure for weighing aggravating circumstances against mitigating evidence. Romano v. State, 1995 OK CR 74, 909 P.2d 92, 124, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996); Neill v. State, 1994 OK CR 69, 896 P.2d 537, 557, cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996). We are not now persuaded that these instructions created doubt as to the sentencer's constitutional duty to consider the mitigating circumstances. This proposition is without merit.
¶ 57 In his fifteenth proposition Appellant sets forth two arguments previously rejected in order to preserve them for appellate review. He first argues that the jury instructions were in error in that they failed to inform the jury that its findings regarding mitigating circumstances did not have to be unanimous. This Court has repeatedly rejected this argument and we do so again. See Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 364, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997); Knighton, 912 P.2d at 896 (and cases cited therein).
¶ 58 Appellant also complains that the instructions given to the jury on the issue of mitigation permitted the jurors to ignore mitigating evidence altogether and seriously diminished the effect of the mitigating evidence presented in the case. This Court has often held that the permissive language in this instruction reflects the correct constitutional standard and avoids any infringement on the jury's duty to determine individual punishment. See Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 978, cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995); Pickens v. State, 1993 OK CR 15, 850 P.2d 328, 339, cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). We decline to reconsider our prior decisions on this issue.
¶ 59 In his final proposition, Appellant contends the accumulation of errors in this case so infected the trial and sentencing proceedings that he was denied due process of law and a reliable sentencing proceeding in violation of his rights under the Fourteenth and Eighth Amendments. This Court has held that where there is no error present, there can be no accumulation of error. Smith v. State, 1996 OK CR 50, 932 P.2d 521, 538. However, when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial. Bechtel v. State, 1987 OK CR 126, 738 P.2d 559, 561. Because the errors which occurred during the course of the present trial, even taken together, cannot be found to have been so great as to have denied Appellant a fair trial, relief is not warranted.
REWEIGHING OF MITIGATING AND AGGRAVATING EVIDENCE
¶ 60 In Proposition XI, this Court found that there was insufficient evidence to support the jury's finding that Appellant killed Melissa Moody for the purpose of avoiding or preventing a lawful arrest or prosecution. When this Court invalidates an aggravating circumstance, and at least one valid aggravator remains, the Court may reweigh the mitigating evidence against the valid aggravating circumstances to determine whether the weight of the improper aggravator is harmless, and the sentence of death still valid. Valdez v. State, 1995 OK CR 18, 900 P.2d 363, 384, cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995). This Court may “reweigh aggravating circumstances on appeal, and may find an improper aggravator to be harmless error if, looking at the record, the court finds that the elimination of an improper aggravator cannot affect the balance beyond a reasonable doubt.” McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1385-86, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995).
¶ 61 Having invalidated the aggravating circumstance that Appellant killed to avoid or prevent arrest or lawful prosecution, we now reweigh. The valid remaining aggravating circumstance is the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The mitigating evidence includes the fact Appellant has been an exemplary prisoner while incarcerated, he has a family that loves and cares for him, there are others more morally culpable for these crimes, there is residual doubt as to Appellant's guilt, the Appellant has performed acts of kindness to friends and family, and the Appellant had an impoverished and deprived background.
¶ 62 After careful, independent review and consideration of the evidence in support of the valid aggravating circumstance and the evidence in mitigation, this Court finds the sentence of death is factually substantiated and appropriate.
MANDATORY SENTENCE REVIEW
¶ 63 This Court is required to conduct a final analysis in all cases which impose the death penalty to determine (1) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2) whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance. See 21 O.S.1991, § 701.13(C).
¶ 64 In the course of deciding this appeal and affirming the death sentence, we have specifically determined the sentence was not imposed under passion, prejudice, or any other arbitrary factor. We have also determined the evidence supports one of the two aggravating circumstances found by the sentencing jury. We have reweighed this valid aggravator against the mitigating evidence and determined the sentence of death is both appropriate and factually substantiated. CHAPEL, P.J., LANE and JOHNSON, JJ., concur. LUMPKIN, J., concurs in results.
LUMPKIN, Judge, concurs in results.
¶ 1 I concur in the result reached in this opinion and much of the Court's analysis. However, I write to address two points.
¶ 2 First, as I have stated numerous times before, when addressing ineffective assistance of counsel, we should not focus on whether Appellant has shown “the outcome would have been different”. Rather, we must look at whether the verdict was reliable, i.e. “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369-370, 113 S.Ct. 838, 842-843, 122 L.Ed.2d 180 (1993). We should apply the Strickland test, as established by the United States Supreme Court, in accordance with that Court's further delineation of its applicability. In Lockhart v. Fretwell, the Court clearly stated a different outcome is not the legal criteria to use.
¶ 3 Secondly, I disagree with the notion that we cannot use Appellant's alleged rape of Melissa to support second stage aggravators. The rape should be treated in the same way we treat an unadjudicated offense. While I agree that the alleged rape, a crime of which Appellant was acquitted, could not be used as the predicate crime to support the aggravator of committing a murder for the purpose of avoiding or preventing a lawful arrest or prosecution, I believe the alleged rape could be used to support the continuing threat aggravator. A “verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. ” U.S. v. Watts, 519 U.S. 148, 117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997). Here, the testimony from Juanita that a rape occurred, which was somewhat supported by the testimony of Sherry, together with the other facts of the case, is sufficient to prove the rape was committed by a preponderance of the evidence. The fact that Juanita and Sherry were possible accomplices to the crime of rape is irrelevant in the second stage because 22 O.S.1991, § 742 does not require corroboration of second stage accomplice testimony.
Cummings v. State, 970 P.2d 188 (Okla.Crim.App. 1998) (PCR).
Defendant was convicted, in the District Court, Coal County, Doug Gabbard, II, J., of first-degree malice aforethought murder and first-degree felony murder as to separate victims. Defendant appealed. The Court of Criminal Appeals, Strubhar, V.P.J., 968 P.2d 821, affirmed in part but reversed the conviction for first-degree malice aforethought murder. Defendant filed an application for postconviction relief and a motion for discovery and an evidentiary hearing. The Court of Criminal Appeals, Strubhar, V.P.J., held that: (1) defendant waived, by failing to raise in direct appeal, claims regarding his intellectual limitations and psychological makeup, impeachment of witnesses' version of events, involuntary nature of defendant's confession, prosecutorial misconduct, and ineffective assistance of appellate counsel, and (2) evidentiary hearing was not warranted. Application for postconviction relief denied; motion for discovery and evidentiary hearing denied. Lumpkin, J., concurred in the result and filed an opinion. Lane, J., concurred in the result and filed an opinion.
Cummings v. Sirmons, 506 F.3d 1211 (10th Cir. 2007) (Habeas).
Background: Petitioner sought federal habeas corpus relief after his conviction for first-degree murder and death sentence were upheld on direct appeal, 968 P.2d 821, and he was denied state postconviction relief, 970 P.2d 188. The United States District Court for the Eastern District of Oklahoma, 2006 WL 2434462, Frank Howell Seay, Senior District Judge, denied petition. Petitioner appealed.
BRISCOE, Circuit Judge.
Petitioner Jesse James Cummings, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Factual background
The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Cummings' direct appeal:
In September of 1991, [Cummings] lived in Phillips, Oklahoma, in a residence he shared with his first wife, Sherry Cummings, his second wife, Juanita Cummings, [Cummings'] and Sherry's daughter, Debra, Juanita's son Robbie, and [Cummings'] father, Jesse Samuel Cummings. [Cummings] had married Sherry in 1987, and, without divorcing her, had married Juanita in 1989. He, in effect, had two wives.
On September 8, 1991, [Cummings] went to the Atoka County Sheriff's Office and reported his sister, Judy Ann Moody Mayo, and her daughter, Melissa Moody, as missing. [Cummings] told the clerk that friends had told him that his sister's vehicle had been seen parked at Atoka Lake on Highway 43 and that it had broken down as its hood and doors were opened. [Cummings] reported what his sister and her daughter had been wearing at the time of their disappearance. He also said that someone had possibly picked them up. [Cummings] showed the clerk pictures of Judy and Melissa.
The next day, on September 8, Judy's body was found floating in a small pond adjacent to Atoka Lake. She had suffered gunshot wounds to her head and neck and her body was wrapped in a quilt and a mattress pad. The following month, in October, the skeletal remains of Melissa were located by the side of a bridge over the Clear Boggy River in Choctaw County. Due to the skeletonization of the body, an exact cause of death could not be determined but evidence of sharp force injuries to several ribs was noted.
The case remained unsolved for almost three years. During this time, [Cummings] and his two wives moved from Phillips, Oklahoma, to Lehigh, Oklahoma. In the summer of 1994, Juanita went to work for a minister named Edward Fields. Juanita told Fields that she had shot Judy and that [Cummings] had made her do it. She also stated that [Cummings] had wanted her to kill Melissa but she got sick and could not do it. She told Fields that after she killed Judy she went to work and when she got back Judy's body was gone and so was Melissa.
Subsequently, Juanita was charged with First Degree Murder for the death of Judy, and Sherry was charged with First Degree Murder for the death of Melissa. First Degree Murder charges were dropped against Sherry when she entered a plea agreement with the State and pled guilty to two counts of Accessory After the Fact and one count of Permitting a Child to be Abused. First Degree Murder charges were also dropped against Juanita and she pleaded guilty to Second Degree Murder. Both Sherry and Juanita implicated [Cummings] in the commission of the crimes and testified against him at trial.
Sherry testified that on September 4, 1991, [Cummings] told her to take his sister, Judy, to look at houses and to shoot Judy from behind when they got to an empty house. The next morning, on September 5, [Cummings] left early to drive his father to the hospital in Oklahoma City. That morning, Sherry took Judy to look at houses. She did not shoot Judy while they were looking at houses. When they had finished looking at houses, Sherry and Judy returned to [Cummings'] residence. Sherry, Judy, and Juanita watched TV in the house and the kids, Debra, Robbie and Melissa were outside. When Judy indicated she was ready to leave, Sherry went to the bathroom. While she was gone she heard five gunshots. When she returned to the living room she saw Judy sitting on the couch slumped over. Juanita had shot her. Sherry and Juanita brought all three kids into the house, covering their eyes when they passed through the living room, and they put them in a back room. They then pulled Judy through the house and outside into the cellar. They cleaned blood off the couch, the floor and the living room wall. After they had cleaned, Robbie and Debra went back outside and Juanita left to go to work at the Dairy Queen in Atoka. Melissa stayed locked in the back room. Juanita returned from work around 11:00 that night.
[Cummings] returned from Oklahoma City later that same night. When he got home Sherry and Juanita met him and Juanita told him that she had killed Judy. The three of them retrieved Judy's body from the cellar and pulled her to her truck. [Cummings] went to the house and got something white that he wrapped around Judy. [Cummings] drove Judy's truck and Sherry followed in the car. Juanita stayed at the house. Sherry followed [Cummings] toward Atoka Lake. She parked her car and waited while [Cummings] drove on further. When he came back Judy was no longer in the truck. [Cummings] parked Judy's truck off the side of the road next to a bridge. He raised the hood and left the truck there. [Cummings] drove home in the car with Sherry.
Sherry testified that when they arrived back at the house, [Cummings] and Juanita went into the bedroom where Melissa was hand cuffed to the bed. They were there from fifteen to twenty minutes. Juanita came out first and then [Cummings] followed. [Cummings] handed Juanita the keys to the hand cuffs and told her to bring Melissa out of the room. [Cummings] then told Sherry and Melissa to go get in the car. Sherry testified that Melissa asked where they were going and [Cummings] said they were going to meet her momma. Sherry fell asleep while they drove and she woke up when the car stopped. [Cummings] got out of the car and told Melissa to get out. They walked behind the car and climbed over a railing. They were gone fifteen to twenty minutes and when he returned to the car, [Cummings] was alone. Sherry stated that he had blood on his hands and the front of his coveralls. [Cummings] drove back to Atoka Lake and stopped on the opposite side of the lake from where he had taken Judy. He cleaned up, threw away his shoes and they drove back toward the house. On the way there [Cummings] threw his coveralls out the window. When they arrived back at the house, [Cummings] and Juanita took the couch and left. They were gone for about an hour before they returned.
Sherry testified that when she was first questioned by authorities about Judy and Melissa's disappearance she told them that they had left in a dark blue or black pickup that had come by the house. She claimed to have given this statement because [Cummings] told her to.
Juanita also testified against [Cummings] at trial. She testified that on the morning of September 5, 1991, [Cummings] told her that he wanted her to kill his sister, Judy, and he wanted her to use the .38 to do it. [Cummings] then left to take his father to Oklahoma City. Juanita testified that on the morning of September 5, she took Melissa to the welfare department with her. When they arrived back at the house, Juanita was there with Sherry, Judy and the kids. The kids were outside playing. Sherry went to the porch and called her to come out there. Sherry told her to do what she knew she needed to do and she brought Juanita the gun. Juanita went back into the house and shot Judy. Juanita and Sherry brought the kids into the house and told them to play in the bedroom. They then drug Judy's body to the cellar. They cleaned the house and couch and then Juanita went to work at the Dairy Queen.
Juanita testified that she arrived back home at around 11:00. When she got home she went into the bedroom where Melissa was handcuffed and lying on the bed. She went back into the living room. [Cummings] came home a little after midnight. He asked her if it was done and she replied that it was. Then Sherry and [Cummings] left the house and with the car keys and the truck keys. Juanita was told to stay in the house. She testified that she did not help move Judy's body but she never saw it again.
When [Cummings] and Sherry came back, [Cummings] told Juanita and Sherry to go in the bedroom and unhandcuff and undress Melissa. He then made them stay in the room while he raped Melissa. Afterward, [Cummings], Sherry and Melissa left the house. Only [Cummings] and Sherry returned. When he returned, [Cummings] was wearing only a pair of shorts. He had been dressed in coveralls when he left the house. He told Juanita to help him load the couch on the truck and they took it to a bridge near Centrahoma and threw it over the side of the bridge.
When questioned by authorities Juanita told them that she had been sleeping in her room when she heard someone pull up to the house and Judy hollered that she and Melissa were leaving. Cummings v. State, 968 P.2d 821, 827-29 (Okla.Crim.App.1998) ( Cummings I ) (paragraph numbers omitted).
Procedural background
On August 1, 1994, Cummings was charged by information in the District Court of Coal County, Oklahoma, with two criminal counts: Count 1 charged Cummings with Murder in the First Degree for the death of Judy Mayo; Count 2 charged Cummings with Murder in the First Degree for the death of Melissa Moody. On February 9, 1995, an amended information was filed charging Cummings with three criminal counts: Counts 1 and 2 were the same as in the original information; Count 3 charged Cummings with child abuse of Melissa Moody.FN1 On February 14, 1995, the state filed a bill of particulars indicating that it intended to seek the death penalty against Cummings, and alleging the existence of two aggravating factors: (1) that the murder of Melissa Moody was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (2) the existence of a probability that Cummings would commit criminal acts of violence that would constitute a continuing threat to society.
FN1. Count 3 specifically charged Cummings with “feloniously sexually abus[ing]” Melissa Moody, “a minor child 11 years of age,” “while responsible for the welfare of said minor child,” in violation of Okla. Stat. tit. 21, § 843 (which has since been renumbered as Okla. Stat. tit. 10, § 7115). State Court Record, Vol. 1 at 68-69.
On February 9, 1996, the state filed a second amended information alleging alternative theories of first degree murder in connection with the death of Melissa Moody, i.e., the commission of the murder while engaged in the felony of kidnapping (i.e., felony murder), and premeditated murder.
The case proceeded to trial on May 6, 1996. At the conclusion of the first-stage evidence, the trial court dismissed the child abuse charge (Count 3) without objection from the state, and the jury found Cummings guilty of the two murder charges. During the second-stage proceedings, the state incorporated by reference all of the evidence presented during the first stage, and in addition presented evidence that, in April 1991, Cummings, with the assistance of Sherry and Juanita Cummings, raped Sherry's fourteen-year-old sister who had been babysitting his two children. At the conclusion of all the second-stage evidence, the jury found the existence of a probability that Cummings would commit criminal acts of violence that would constitute a continuing threat to society, and that the murder of Melissa Moody was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. In turn, the jury fixed Cummings' punishment at death for both counts of conviction. On May 30, 1996, Cummings was formally sentenced to death in accordance with the jury's verdict.
Cummings filed a direct appeal challenging his convictions and death sentences. On August 4, 1998, the OCCA affirmed Cummings' conviction and death sentence for the murder of Melissa Moody, but reversed Cummings' conviction and sentence for the murder of Judy Mayo. In reversing Cummings' conviction and sentence for the murder of Judy Mayo, the OCCA concluded that, as a matter of law, both Sherry and Juanita Cummings were accomplices in the murder, and that “there was no evidence presented at trial which c[ould] be found to independently connect [Cummings] with the commission of Judy's murder.” Cummings I, 968 P.2d at 830. Because Oklahoma law required, in cases involving accomplice testimony, “that there ... be at least one material fact of independent evidence that tend[ed] to connect the defendant with the commission of the crime,” id., the OCCA concluded that Cummings' “conviction for Count I” had to “be reversed with instructions to dismiss.” Id. The OCCA subsequently denied Cummings' request for rehearing. Cummings filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied by the Supreme Court on June 7, 1999. Cummings v. Oklahoma, 526 U.S. 1162, 119 S.Ct. 2054, 144 L.Ed.2d 220 (1999).
On April 28, 1998, while his direct appeal was still pending before the OCCA, Cummings, in accordance with Oklahoma procedural rules, filed an application for post-conviction relief with the OCCA asserting eleven propositions of error. The OCCA denied the application for post-conviction relief on November 10, 1998. Cummings v. State, 970 P.2d 188 (Okla.Crim.App.1998) ( Cummings II ).
On August 17, 1999, Cummings initiated this federal habeas action by filing a pro se application to proceed in forma pauperis and a motion for appointment of counsel. Cummings' motion for appointment of counsel was granted and, on February 29, 2000, Cummings filed his federal habeas petition asserting eleven grounds for relief. The magistrate judge assigned to the case conducted an evidentiary hearing on June 25, 2001. On February 21, 2003, Cummings filed a supplemental petition for writ of habeas corpus, asserting two additional grounds for relief. On August 11, 2006, the district court issued an opinion and order denying Cummings' petition. The district court granted Cummings a certificate of appealability (COA) with respect to three issues. We subsequently granted a COA with respect to one additional issue.
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Admission of uncorroborated testimony of accomplices
Cummings next contends that his rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated because “his conviction [for the murder of Melissa] was obtained upon the uncorroborated testimony of accomplices [Sherry and Juanita], in violation of a statutorily created right.” Aplt. Br. at ii. In support of this contention, Cummings points to Okla. Stat. tit. 22, § 742, which provides, in pertinent part, that “[a] conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense....”
Cummings first raised this issue on direct appeal in challenging both of his murder convictions. Although the OCCA agreed that Sherry and Juanita were accomplices with respect to the murder of Judy, it concluded otherwise with respect to the murder of Melissa:
[Cummings] argues in his second proposition that Sherry and Juanita Cummings were each accomplices to the murders of both Judy and Melissa, and accordingly, their testimony regarding his involvement in the commission of these offenses required corroboration. He also contends that the testimony of Sherry and Juanita was not sufficiently corroborated to support his conviction for these murders.
This Court has held that, “[t]he test for determining whether a person is an accomplice is whether he or she could have been charged with the crime for which the accused is on trial.” Bannister v. State, 1996 OK CR 60, 930 P.2d 1176, 1179. The record reveals that Juanita Cummings was actually charged with First Degree Murder for the killing of Judy Mayo. (footnote omitted). Although Sherry Cummings was not charged with any crime in regard to Judy Mayo's homicide, the trial court ruled that she was an accomplice to this offense as a matter of law. This ruling was supported by testimony that Sherry was present in the house at the time that Juanita shot Judy and that Sherry gave Juanita the gun that was used to kill Judy. From this, we find that both Juanita and Sherry were accomplices to Count I.
Having found that Juanita and Sherry were correctly ruled as a matter of law to be accomplices to the murder of Judy Mayo, we turn next to the question of whether their testimony implicating [Cummings] was sufficiently corroborated at trial by independent evidence of [Cummings'] involvement in the commission of the offense. “[T]he general rule is that testimony of an accomplice must be corroborated with evidence, that standing alone, tends to link the defendant to the commission of the crime charged....” Sadler v. State, 1993 OK CR 2, 846 P.2d 377, 383. It is not necessary that an accomplice's testimony be corroborated in all material respects. Johns v. State, 1987 OK CR 178, 742 P.2d 1142, 1146. It is only required that there to be at least one material fact of independent evidence that tends to connect the defendant with the commission of the crime. Id. Further, circumstantial evidence can be adequate to corroborate the accomplice's testimony. Pierce v. State, 1982 OK CR 149, 651 P.2d 707, 709.
[Cummings] argues that aside from the testimony of Juanita and Sherry, there was no evidence presented at trial which can be found to independently connect him with the commission of Judy's murder. The trial record supports this assertion. Evidence was presented at trial that [Cummings] was in Oklahoma City with his father at the time that Juanita killed Judy. There was evidence that he reported his sister missing three days after she was killed. The prosecution also offered into evidence three small notebooks kept by [Cummings] in which he had written details of events which occurred after his sister's disappearance and during the investigation into her disappearance. Nowhere in these notebooks did [Cummings] write anything indicative of his involvement in Judy Mayo's murder. The trial record also reveals that [Cummings] had made a statement to the police in which he admitted to helping drag his sister's body to her pickup and to dumping her body into the lake. While this evidence clearly implicates [Cummings] as an accessory after the fact, it does not support a finding that he acted as a principal, either by aiding or abetting his sister's murder. As [Cummings] contends, outside of the testimony of Juanita and Sherry, the evidence only supports a finding that [Cummings] assisted his wives in lying to the police and in covering up the crime. It does not independently connect him to the actual commission of Judy Mayo's murder. Accordingly, [Cummings'] conviction for Count I must be reversed with instructions to dismiss.
We next address [Cummings'] conviction for Count II, the murder of his niece, Melissa Moody. Sherry Cummings was initially charged with First Degree Murder for the death of Melissa Moody. (footnote omitted). By her own testimony, Sherry helped hold the child captive and went with [Cummings] and Melissa in the car to the place where Melissa was taken and killed. Juanita was not charged in conjunction with Melissa's homicide. The trial court did not direct the jury to consider Juanita and Sherry accomplices as a matter of law regarding the murder of Melissa. However, as the evidence was sufficient to bind Sherry over on the charge of First Degree Murder for the death of Melissa, we find that it also supports a finding that Sherry was an accomplice to this crime as a matter of law.
As to Juanita, [Cummings] asserts that she, too, was an accomplice. Under the evidence presented at trial, Juanita could not be indicted for Melissa's murder as there is no evidence that she intended to participate in the crime or aided or abetted its commission. Accordingly, we find that Juanita was not an accomplice to Melissa's murder and her testimony can be considered independent evidence connecting [Cummings] to the commission of this crime. See Bowie v. State, 1995 OK CR 4, 906 P.2d 759, 763-64. Because Juanita's testimony provided independent evidence corroborating Sherry's testimony as to at least one material fact which tended to connect [Cummings] with the commission of the crime, the jury could infer that all of Sherry's testimony was truthful. See Perry v. State, 1993 OK CR 5, 853 P.2d 198, 200. [Cummings'] assertion that his conviction on Count II was based entirely upon uncorroborated accomplice testimony is without merit. Cummings I, 968 P.2d 829-31 (internal paragraph numbers omitted).
We conclude there is no merit to Cummings' claim. As we noted in outlining the standard of review applicable to this appeal, if a claim was adjudicated on the merits in state court, federal habeas relief can be granted pursuant to § 2254 on that claim only if the state court decision “was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States ....” 28 U.S.C. § 2254(d)(1) (emphasis added). Cummings, however, has identified no Supreme Court decisions establishing a constitutional requirement that the testimony of an accomplice-witness be corroborated. Moreover, we and many of our sister circuits have specifically held that there is no such constitutional requirement. E.g., Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir.2000); Foster v. Ward, 182 F.3d 1177, 1193 (10th Cir.1999); Harrington v. Nix, 983 F.2d 872, 874 (8th Cir.1993); Brown v. Collins, 937 F.2d 175, 182 n. 12 (5th Cir.1991). Thus, Cummings is left with only his citations to Oklahoma law, which clearly cannot support his claim for federal habeas relief. 28 U.S.C. § 2254(d)(1); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”).
Cummings attempts, nevertheless, to convert the issue into one involving federal constitutional law by arguing that the OCCA's allegedly erroneous rejection of his argument on direct appeal resulted in (a) a violation of his equal protection rights because he was treated differently than other, similarly-situated Oklahoma criminal defendants, and (b) a violation of his due process right to a fair trial. We reject both arguments. To begin with, Cummings has cited to no United States Supreme Court decisions, and our own independent research has failed to produce any, holding that a state court's erroneous application of state criminal law can result in a violation of a criminal defendant's equal protection rights. Indeed, it would be surprising if such a rule existed, because it would essentially allow state criminal defendants to convert all state law issues raised on direct appeal into constitutional claims cognizable in federal habeas proceedings. In other words, it would require federal habeas courts to review the merits of all state law determinations that were resolved against a state criminal defendant on direct appeal. As for Cummings' due process argument, the United States Supreme Court has suggested that, in rare circumstances, a determination of state law can be “so arbitrary or capricious as to constitute an independent due process ... violation.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). We are not persuaded that any such violation occurred in this case, however, particularly in light of the fact that the United States Supreme Court has never recognized an independent constitutional requirement that the testimony of an accomplice-witness must be corroborated.
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It is well established that a criminal defendant has a due process right to a fair trial. E.g., Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Further, the Supreme Court has acknowledged that an instructional error can, under certain circumstances, result in a violation of a defendant's right to a fair trial. See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Importantly, however, the Court has stated that “[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson, 431 U.S. at 154, 97 S.Ct. 1730. “The question in such a collateral proceeding,” the Court has stated, “is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” and “not merely whether the instruction is undesirable, erroneous, or even universally condemned....” Id. (internal quotation marks and citations omitted).
Here, the absence of an instruction telling the jury that Sherry was an accomplice to the murder of Melissa and thus Oklahoma law required her testimony to be corroborated by other evidence clearly did not deprive Cummings of his due process right to a fair trial. To begin with, it is undisputed, as we have previously noted, that there is no constitutional requirement that the testimony of an accomplice be corroborated by independent evidence. Moreover, the OCCA concluded, and our review of the trial transcript readily confirms, that there was substantial evidence corroborating the testimony of Sherry, including the testimony of non-accomplice Juanita. Thus, we conclude that the OCCA's rejection of Cummings' claim of instructional error was not contrary to, or an unreasonable application of, the constitutional principles outlined by the Supreme Court in Henderson.
The judgment of the district court is AFFIRMED.