State v. Cummings, Nos. WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSPINDEN
Citation838 S.W.2d 4
PartiesSTATE of Missouri, Respondent, v. Rederick CUMMINGS, Appellant, and Rederick CUMMINGS, Appellant, v. STATE of Missouri, Respondent. 42794, 44919.
Decision Date30 June 1992
Docket NumberNos. WD

Page 4

838 S.W.2d 4
STATE of Missouri, Respondent,
v.
Rederick CUMMINGS, Appellant,
and
Rederick CUMMINGS, Appellant,
v.
STATE of Missouri, Respondent.
Nos. WD 42794, 44919.
Missouri Court of Appeals,
Western District.
June 30, 1992.
Motion for Rehearing and/or Transfer to
Supreme Court Denied
Sept. 1, 1992.
Application to Transfer Denied Oct. 27, 1992.

Page 5

Robert L. Fleming, Columbia, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

Before SPINDEN, P.J., and TURNAGE and BRECKENRIDGE, JJ.

SPINDEN, Judge.

Rederick Cummings appeals his convictions for offering violence to a corrections officer, § 217.185 RSMo 1986, and attempted rape, § 564.011, RSMo 1986. Cummings claims that the trial court erred in overruling his objection to the state's peremptory challenge to a venireperson and in denying his Rule 29.15 motion. We affirm.

Viewing the evidence in the light most favorable to the verdict, the evidence established that on March 24, 1989, at approximately 9:00 A.M., Cummings, an inmate at the penitentiary, entered the office of the prison counselor and asked for some deposit slips. He left after she gave them to him, but he returned to tell her that he had lost something.

As the counselor rose from her chair and turned around, Cummings grabbed her shoulders. The counselor pleaded with him to let her go. She tried to reach for the phone, but Cummings threw her against a desk. As she was getting up, Cummings grabbed her from behind and reached up her sweater. The counselor screamed for help, but Cummings grabbed her by the throat. After she screamed three times, Cummings loosened his grip and said he would let her go if she promised not to tell anyone about the incident. The counselor promised, and Cummings left. The counselor reported Cummings' actions to Lt. Michael Plemmons.

Plemmons summoned Cummings to the captain's office and advised him that the counselor had reported the attack. Plemmons ordered Cummings to submit to a strip search, and Cummings hit Plemmons with his fist and knocked him to the ground. Cummings also tried to hit Captain Blank but missed.

The jury found Cummings guilty of attempted rape and offering violence to a correctional officer. The court sentenced him to 15 years and five years respectively, with the sentences to run concurrently.

Cummings argues that the trial court erred in overruling his motion to quash the jury panel. Cummings contends that the state exercised one of its peremptory strikes in a racially-discriminatory manner.

After conducting voir dire, the court went off the record and the attorneys made their strikes. Back on the record, the court administered an oath to the jurors and seated them. The state made its opening statement and presented its first witness. The prosecutor then, without the court's prompting, announced:

Your honor, the State struck Venireman No. 9, Mr. Elmer Galbreath, who I believe appeared to counsel to be and I believe appeared to the Court, as well, to be an individual who is black, the same race as the defendant appears to be. Your Honor, my information is that Mr. Galbreath is related to a former prison guard.... My understanding is, sir, that he is either the cousin or the brother of; that's what I was informed by persons who purported to know, those being guards at the penitentiary; that the brother or cousin of the venireman, Mr. Galbreath, was fired from the employ of

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the Missouri State Penitentiary as he was believed to be carrying contrabands in and refused to be searched at one time while he was employed, the last day he was employed, by the way. On that basis, the State chose to strike him, and not on any basis related to race.

Cummings objected:

Your Honor, we would like to object in that that individual was never asked the question during voir dire and, therefore, there is no indication in the court record that he had any prejudice or bias or in any way could not be impartial in this case. ... [W]e would request that the...

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5 practice notes
  • State v. Wilson, No. 12634
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 10, 1993
    ...and, in those jurisdictions where an additional venire is not readily available, the delay can be substantial." State v. Cummings, 838 S.W.2d 4, 6 (Mo.Ct.App.1992) (quoting State v. Smith, 791 S.W.2d 744, 747 (Mo.Ct.App.1990)). Accordingly, the objection should be made before the jury ......
  • People v. Knight, Docket No. 124996
    • United States
    • Supreme Court of Michigan
    • July 21, 2005
    ...violation after the venire is dismissed, then there must be a new jury-selection process and a new venire called. State v. Cummings, 838 S.W.2d 4, 6 (Mo. App., 1992). If a Batson challenge is made before the venire is discharged, however, the trial court can immediately correct the error an......
  • State v. Ford, No. 00-337.
    • United States
    • Montana United States State Supreme Court of Montana
    • November 20, 2001
    ...(5th Cir.1996), 78 F.3d 161, 167; United States v. Rodriguez (11th Cir.1990), 917 F.2d 1286, 1288; State v. Cummings (Mo.Ct.App.1992), 838 S.W.2d 4, 6; Sorensen v. State, 2000 Wyo. LEXIS 143, 6 P.3d 657, 662; State v. Harris (1988), 157 Ariz. 35, 36, 754 P.2d 1139, ¶ 25 There are several re......
  • Ferguson v. State Of Mo., No. WD 71264.
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2010
    ...that “the state knowingly used perjured testimony which is cognizable in a post-conviction action.” 325 S.W.3d 407 State v. Cummings, 838 S.W.2d 4, 7 (Mo.App. W.D.1992); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App. E.D.1979) (“Allegations claiming the conviction is based upon perj......
  • Request a trial to view additional results
5 cases
  • State v. Wilson, No. 12634
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 10, 1993
    ...and, in those jurisdictions where an additional venire is not readily available, the delay can be substantial." State v. Cummings, 838 S.W.2d 4, 6 (Mo.Ct.App.1992) (quoting State v. Smith, 791 S.W.2d 744, 747 (Mo.Ct.App.1990)). Accordingly, the objection should be made before the jury ......
  • People v. Knight, Docket No. 124996
    • United States
    • Supreme Court of Michigan
    • July 21, 2005
    ...violation after the venire is dismissed, then there must be a new jury-selection process and a new venire called. State v. Cummings, 838 S.W.2d 4, 6 (Mo. App., 1992). If a Batson challenge is made before the venire is discharged, however, the trial court can immediately correct the error an......
  • State v. Ford, No. 00-337.
    • United States
    • Montana United States State Supreme Court of Montana
    • November 20, 2001
    ...(5th Cir.1996), 78 F.3d 161, 167; United States v. Rodriguez (11th Cir.1990), 917 F.2d 1286, 1288; State v. Cummings (Mo.Ct.App.1992), 838 S.W.2d 4, 6; Sorensen v. State, 2000 Wyo. LEXIS 143, 6 P.3d 657, 662; State v. Harris (1988), 157 Ariz. 35, 36, 754 P.2d 1139, ¶ 25 There are several re......
  • Ferguson v. State Of Mo., No. WD 71264.
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2010
    ...that “the state knowingly used perjured testimony which is cognizable in a post-conviction action.” 325 S.W.3d 407 State v. Cummings, 838 S.W.2d 4, 7 (Mo.App. W.D.1992); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App. E.D.1979) (“Allegations claiming the conviction is based upon perj......
  • Request a trial to view additional results

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