State v. Cummings

• Decision Date: 20 May 2004
• Docket Number: No. 25624.,25624.
• Citation: 134 S.W.3d 94
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Terressa L. CUMMINGS, Defendant-Appellant.
• Court: Missouri Court of Appeals

134 S.W.3d 94

STATE of Missouri, Plaintiff-Respondent, v. Terressa L. CUMMINGS, Defendant-Appellant.

No. 25624.

Missouri Court of Appeals, Southern District, Division Two.

May 20, 2004.

Craig Johnston, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. MacKelprang, Asst. Atty. Gen., Jefferson City, for respondent.

JEFFREY W. BATES, Judge.

Terressa L. Cummings ("Defendant") was charged by amended information with committing the class A felony of murder in the first degree, in violation of § 565.020, by asphyxiating Melissa Rose Saggert Boviall ("Victim").¹ A jury found Defendant guilty of this offense. Because the State had waived the death penalty and Defendant was a prior offender, the trial court determined punishment and sentenced Defendant to imprisonment for life without eligibility for probation or parole. See § 558.016; § 557.036.2(2); § 565.020.2. Defendant appeals, presenting five points for our determination. These points involve the sufficiency of the evidence to support Defendant's conviction, as well as asserted trial errors that occurred during voir dire, the admission of evidence and closing argument. We affirm.

Statement of Facts

Victim resided in Joplin with her husband, Dick Boviall ("Boviall"). Although Victim lived with Boviall, she was an alcoholic and was frequently absent from home for days at a time. During the summer of 1999, Victim met Ronnie Johnson ("Johnson"), and the two became friends. Johnson visited Victim's home, and she sometimes stayed with Johnson in his apartment.

Defendant moved from Illinois to Joplin, Missouri, on April 15, 2000. When she arrived, her only possessions were her clothing and an automobile. She initially stayed at the home of her ex-husband, Otis Cummings ("Cummings"), for several weeks. While staying there, Defendant first met Johnson when he stopped by Cummings's home and assisted Defendant in loading some appliances into a vehicle.

On June 20, 2000, Defendant and Johnson met a second time at a Joplin bar. Johnson was there with a former girlfriend and Victim. After meeting this second time, Defendant and Johnson became romantically involved and started living together. At that time, however, Defendant and Johnson were living a hand-to-mouth existence because they were both unemployed and homeless. Victim was taking care of a vacant house located at 102 McCoy Street in Joplin ("the McCoy house") while the owner was in prison. She offered to let Defendant and Johnson live there so they would have a place to stay. They moved into the McCoy house around the first week of July. In mid-July, Defendant and Johnson got engaged, and Johnson gave Defendant an engagement ring. At approximately this same point in time, Victim also began staying with Defendant and Johnson in the McCoy house.

After Victim began living in the McCoy house with Defendant, considerable animosity developed between the two women. During the two weeks preceding Victim's murder, this animosity manifested itself constantly. Defendant and Victim argued about how to divide money they had stolen from an intoxicated patron at a club. Victim accused Defendant of trying to take over Victim's place in her own household because Defendant sometimes did laundry, dishes and other household chores for Boviall in order to earn extra money. Victim also accused Defendant of having an affair with Boviall. Defendant, in turn, believed Victim and Johnson were having an affair. Victim flirted with Johnson and was "handsy" around him, despite the fact that Defendant and Johnson were engaged. Victim twice asked Johnson to have sex with her.

On one occasion, Defendant returned home in the early morning hours after she and Johnson had argued. While Defendant was standing outside the house, she heard Victim and Johnson having sex in the bedroom. Defendant immediately went to get Victim's husband, Boviall, even though it was 2:30 or 3:00 o'clock in the morning. Defendant was "very angry" when she arrived at Boviall's house. She told Boviall that Victim was having an affair with Johnson, and he'd better get Victim out of there. When Defendant and Boviall returned to the McCoy house, the front door was locked. Defendant began kicking the door and yelling at Johnson and Victim. Once inside, Boviall got Victim and took her back to her own house.

On another occasion, Defendant came to Boviall's house after performing some community service. Johnson and Victim were both there, and each appeared to have just taken a shower. Defendant suspected that they had been having sex before she arrived. Defendant and Johnson had numerous conversations about Victim coming between them, and she repeatedly accused Johnson of having an affair with Victim.

On the Saturday evening prior to the murder (7/29/00), Defendant, Johnson and Victim were at a club in Joplin. Victim was touching Johnson and flirting with him. Johnson felt that Victim was "coming on" to him. While she was dancing with Johnson, Defendant came up, pulled Victim away, and took her place. Victim's words and actions made Defendant jealous. Victim had too much to drink and was sent to the McCoy house by taxi about 12:30 a.m.

Defendant and Johnson arrived home on Sunday morning (7/30/00) at 2:30 a.m. Victim was lying on the couch listening to music. A few minutes after Defendant and Johnson went to bed, Victim starting talking to herself and made the statement that if it wasn't for Defendant, Victim and Johnson would be together. Defendant immediately got out of bed, went into the living room and began arguing and fighting with Victim. When Johnson came into the room a few minutes later, Defendant again accused him of having an affair with Victim. Defendant slapped Victim's face at least twice, causing her to have two black eyes and a cut lip. Victim threatened to call the police, but Johnson talked her out of it and got both women to calm down. The three of them stayed up the remainder of the night.

About 8:00 a.m. that Sunday morning, Johnson suggested the three of them go hunting for arrowheads since Johnson and Victim were both Native Americans and had an interest in Indian artifacts. Johnson wanted to go to a farm in Dade County where he had hunted for arrowheads many times, but Defendant's car did not have sufficient gas to make the trip. Johnson was able to borrow some money from a friend named Russ Waldo. Waldo accompanied them to the gas station so he could pay for the purchase. Defendant drove, and Waldo rode in the front passenger seat of Defendant's car. Victim, who was in the back seat of Defendant's car with Johnson, flirted with Waldo while the car was stopped at the gas station. Victim rubbed his shoulder and said, "You're a big ol' boy." Defendant slapped Victim and told her to keep her hands off Waldo because he was married.

Once the group arrived in Dade County, Defendant gave Victim a pair of Defendant's high-top tennis shoes to wear because Victim had no shoes. The group began searching for artifacts. Victim picked a flower and gave it to Johnson. Defendant took it from him and threw it away. Johnson left the women and began searching for artifacts by himself.

After a couple of hours, Johnson heard an angry argument occurring. When he returned to where the women were, he heard Defendant telling Victim that she couldn't be satisfied with other people's happiness and was trying to ruin things. Defendant was holding a fist-sized rock in her hand. The left side of Victim's face was very swollen, and Defendant told Johnson that she thought Victim's jaw was broken. Victim threatened to call the police and send Defendant to prison where she would not be able to see her children anymore.² Defendant told Johnson that she was not going back to jail. She instructed him to get something to tie Victim up.

Johnson was not able to find any restraints, so he returned. Defendant was standing beside Victim, who was naked. Defendant again told Johnson to go find something to restrain Victim. When Johnson returned the second time, Victim was dressed (minus her panties and bra), and her nose was bleeding. Defendant removed the shoelaces from Victim's tennis shoes and tied her wrists with the shoestring. Defendant then wrapped the wire around Victim's wrists to bind them. Defendant used a small stick to gag Victim with her panties and wrapped Victim's bra around her head to hold the gag in place. Victim was walked into the woods, where her ankles were tied together with the other shoestring and also secured with wire. Victim was left lying on the ground with her arms tied to a tree branch above her head and large branches piled around her. Defendant told Johnson she was going to leave Victim and make her sit and think about it for a while.

As Defendant and Johnson were leaving, Victim was somehow able to loosen or remove her gag and began screaming for help. Defendant and Johnson had only walked about 30-35 yards from where Victim was lying. When Defendant heard Victim yelling, she smiled at Johnson and told him she'd be right back. Johnson remained where he was while Defendant went back to where Victim was lying to reapply the gag. It only took Defendant about one minute to walk back to where Victim was lying. Johnson heard no more noises from Victim.

The testimony from the State's pathologist, Dr. Doug Anderson, established that Victim died from asphyxiation. The panties used as a gag had been pushed so far into Victim's mouth that she was not able to breathe through either her nose or mouth. Victim's bra had been placed underneath her tongue and tied tightly around her head to hold her tongue back. This method of gagging Victim caused her to become unconscious and die of asphyxiation in less than six minutes.

Defendant did not return to where Johnson was standing until 15 minutes had elapsed. When she returned, she was carrying all of Victim's jewelry (20-25 bracelets, some rings, two necklaces and a watch) as well as the...