Wednesday, October 24, 2012

Woman grazed by stray bullet confronted gunman

Her credibility attacked by veteran lawyer

Waco – As Nickoll Henry struggled to slam the door of Apartment 81 at the Lakeside Villas Apartments, the accused gunman on trial for his life fought to clear a jammed gun.

“His eyes bugged, mine bugged, and I slammed the door,” she testified before a jury in the capital murder trial of Ricky Cummings. If convicted, Mr. Cummings will face either death by lethal injection or life in the penitentiary without the possibility of parole.

The mother of two prevailed, closing and locking her door before he could fire again.

“I thought he was going to come in and kill me and my kids,” she told lead prosecutor Michael Jarrett.

That's when two wounded men who had been shot while sitting smoking marijuana in a car outside ran bleeding through her door to hide in her bathroom.

The door had bounced back open, and as she moved to close and lock it, she came face to face with Ricky Cummings as he struggled to chamber a round in the .40 caliber Ruger semiautomatic handgun.

Asked to hold the end of a tape measure to show how far apart they were, veteran defense attorney Russ Hunt, Sr., backed up until she estimated he was at the same length that separated she and Mr. Cummings at about 11:20 p.m. on the night of March 28, 2011.

“Let the record show I am standing 10 feet from the witness,” said Mr. Hunt.

A legal brouhaha erupted when Mr. Hunt continued his cross examination of Ms. Henry

“Isn't it true that you've told people it wasn't Ricky, that it was his brother Tyreece?” he asked. She denied that.

Then Mr. Hunt turned to Ms. Henry's mental difficulties and her criminal history. She testified that she and her two children suffer from post traumatic stress disorder following the attack, but her troubles are deeper than that.
She is court-ordered to treatment at Mental Health Mental Retardation for PTSD, paranoid schizophrenia, and psychotic personality disorder, according to records.

“Did you leave out borderline personality disorder?” Mr. Hunt asked.

As he questioned her about hearing voices and seeing things, the prosecutor, Michael Jarrett leapt to his feet, objecting to the line of questioning as irrelevant.

He told Judge Ralph Strother that as a member of the College of Defense Counselors of the State Bar, if he had wanted to enter such a controversial area of examination, “he should have requested a hearing outside the presence of the jury.”

“This is outside the scope of admissible evidence,” he argued, citing Rule 609 of the Rules of Criminal Evidence.

In a series of two late afternoon hearings outside the presence of the jurors, she testified that she got in trouble in the mid-90's for stealing a credit card and using it without permission, then complicated her situation with a charge of aggravated assault.

In a series of violations involving one offense for using marijuana and two for using both marijuana and cocaine, she said, her probation was revoked.

The arrangement was made as a result of a plea bargain in which she received a misdemeanor conviction instead of a felony in return for her plea of guilty.

Judge Strother brought the jury back, ruling that the “the prejudicial effect outweighs the probative value,” and ordering the counselor to exclude the testimony about the nature of the probation violation.

Said Mr. Jarrett, “Every time the Court has given them an inch, they tried to take five feet.” The judge cited a number of previous appeals holding the inadmissibility of such testimony.

When the jurors were brought back for the second time, he limited his inquiry to the probation violation, but not its circumstances.

“I knew it was a hole in the living room wall,” Ms. Henry said. She said her offense and the violation of her probation occurred three weeks after the day after the shooting, when she found three spent rounds in her doorway, a 7.62 x 39mm round, a .40 caliber, and a 9 mm, as well as a live 9 mm round.

The next morning, she said, she moved out.

In earlier testimony, a crime scene technician told jurors how 19 dowel pins inserted into the body of the Mercury Marquis in which the two victims died, and two others were maimed by pistol and rifle fire showed through and through damage.

A spent 7.62 or .308 caliber cartridge from an assault rifle found in the car's interior bore mute testimony to the pattern of the attack.

The pattern of bullets indicated that the attackers sprayed the car with fire from the left front, then, when the rear window was shattered and gone, turned and walked back, targeting Keenan Huber with two shots to his upper torso and one to his upper neck for a coup de grace. AK-47 clone assault rifles that use the Russian-produced "Toomla" brand ammunition eject spent cartridge cases to the right and in a slightly forward arc.

Prosecutors believe the motive for the attack involved Mr. Huber's possible involvement with the shooting death of Emuel Bowers, III, nearly a year previously in April of 2010.

A young woman who requested her name not be used by media testified how she saw three men, one dressed in a red top, another in black, and a third in a white hoodie or t-shirt run past her grandmother's door on Spring Street, then turned into a breezeway that leads to where the shooting took place.

“As soon as I turned the lock in the door, I heard the shots,” she said.  

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