In Self Defense Podcast 112: The Dean Cummings Case Pt. 1

Shawn Vincent, Don West and Steve Moses have a conversation about the Dean Cummings case and explore how the defender’s mental health issues can affect the legal defense and important considerations for armed defenders who choose long guns for home defense.

 

Transcript:

What’s happening, everybody? This is Shawn Vincent. Thanks for joining the podcast today. I’ll be joined by Don West. He’s National Trial Counsel for CCW Safe and a veteran criminal defense attorney. We’ll also be joined by Steve Moses. He’s a CCW Safe contributor and a well-respected firearms instructor. We’re going to be talking about a really unusual case, the case of Dean Cummings, who shot and killed Guillermo Arriola in New Mexico on February 29th, 2020. It’s a crazy case. We’re going to jump right into all the details. It’s going to cover a lot of topics.

This is a two-parter. In this part, we’re going to talk about how mental health can affect a criminal defense in a self-defense case. We’re going to talk to Steve Moses about considerations for using a rifle in self-defense — that was the weapon used in this — and then we’re going to talk about the dynamics of an armed defender confronting somebody who’s attacking them with pepper spray. Here’s my conversation with Don West and Steve Moses about the Dean Cummings case.

So Steve, we’ve got the case of Dean Cummings, who shot and killed Guillermo Arriola on February 29th in 2022. He’s been to trial, he’s been acquitted — spoiler alert. It’s a fascinating case. When I showed you the research on this case, Steve, you had a comment that I thought was accurate. Do you remember what you said about it?

Steve Moses:

Yes, I do. Shawn, go ahead and say it.

Shawn Vincent:

It sounds like a Cohen Brothers film.

Steve Moses:

Yes, very much so.

Shawn Vincent:

It’s this weird… crazy characters involved in it, outrageous circumstances, and the more we get into it, it gets crazier and crazier. And Don, I’m sure you remember, was it Paul Harvey? “The rest of the story”?

Don West:

Of course. That’s “the rest of the story.”

Shawn Vincent:

That’s the rest of the story. So I wanted to explain this case and there’ll be a couple-

Don West:

Shawn, before we get too deep in it, I may have misheard you but I thought you said the event occurred on February 29th, 2022.

Shawn Vincent:

Yeah.

Don West:

If you did, it would be better… It was 2020, wasn’t it? Because it was maybe even 2019 because the trial was just this last fall.

Shawn Vincent:

We just had it last fall, yeah.

Don West:

And it was over two years old.

Shawn Vincent:

It sure was. My notes were wrong. I wrote it down and I just can’t… We just turned to 2023 so I can’t keep track of years now, Don.

Don West:

Do you want me to look it up?

Shawn Vincent:

They’re flying by. No, I’ll have the date and I’ll correct it in the podcast, but thank you for that clarification because yeah, it’s one of those cases where he spent two years in jail. He didn’t get bonded in this case and he had some mental health issues that put into question whether he’d be even competent to stand trial. This speaks to, Steve, your Cohen Brothers craziness that goes on here. So as I described this case for our listeners, I’m going to use the Paul Harvey, “And now, here’s the rest of the story,” a couple of times. Because let’s just start out with the facts. We’ve got Dean Cummings. He’s at the time 54 years old. Anyone who’s into extreme skiing would recognize the name. He was, in his prime, one of the most noted extreme snow skiers in the world. He had won championships. He had run a successful, for a while, extreme ski helicopter tour business in Alaska. We also know that that business failed. He had some questions about how that happened. We’ll get to that in a minute.

Anyway, he’s decided he’s going to start a new chapter in his life. He’s in New Mexico. He’s looking for a property out in the desert that he’d like to buy. There’s this guy named Guillermo Arriola. He’s 47 years old. He lives in this manufactured home trailer type set up on this piece of dirt in the middle of the desert, far away from everything. When Dean approaches him to buy it, they strike up a little bit of a friendship. He invites him for $300 a month to park his fifth wheel on the property. That way, he can explore it. He can get a sense of if he really likes it and he wants to buy it.

Dean decides that he does, and then there comes this day at the end of February when he was going to do some hunting later, and he had a… They kept describing it at trial as an AR-15-style rifle. It’s a 566 Sig Saur rifle. He was scoping it, putting the scope on so he could shoot sheep, barbary sheep on the property. He’d left it in Guillermo’s trailer, went back to his fifth wheel for a while. Didn’t expect that Guillermo Arriola was going to come home. He did. He had groceries. We know that this real estate transaction, now that there was a contract in play, was starting to get a little bit contentious. Dean goes over, approaches him about it. There’s this conversation. At some point, Dean claims he accused Arriola of being a scammer. “What are you trying to pull?” And then he says Arriola attacks him.

He’s throwing punches with his right hand. He has what he calls a canister in his hand, something that’s like a OC spray, pepper spray. He calls it a neurological agent. He claims that he was sprayed with this, and then there’s this melee that ensues with Dean Cummings being knocked to the ground. He scoots his back. He happens to have his rifle leaning against the wall because he was just working on the scope earlier. He grabs it with his right hand. He says he’s fending off blows from this guy with his left hand. He, all in all, says he got knocked down, got back up and then knocked down again three times during this confrontation. He scooched down the hallway as he describes Arriola attacking him, ends up in this little bedroom at the end of the hallway. That’s when finally, Arriola gets his hands on the rifle.

A couple of shots are fired. Dean Cummings says those first shots were fired because Guillermo Arriola was pulling on the gun so it pulled against his trigger finger, the rounds went off, and then Dean says he decided, “If this guy gets my gun, this is all over.” He’s able to stand up enough to where he gets control of the rifle. He fires nine more rounds. Arriola is struck in the chest, he’s struck in the head. He falls flat. He ends up bleeding out. So that’s this shooting that erupted when Cummings says that he was attacked by his host essentially on this property that he wanted to buy after a verbal altercation turned violent discussing this property transaction.

Now, they’re in the middle of nowhere in the desert. There’s no cell service there. Dean Cummings says he’s just been sprayed with this agent that he doesn’t quite describe very well, but his eyes are stinging, his skin is stinging. He washes, he changes his clothes, he rinses off. He has trouble breathing. He gets to the point where he can regain his breathing. That takes about 45 minutes. Then he says he clears the rifle. He knew that police were going to be coming eventually, he knew that this was a self-defense case so he puts his rifle in a place where it’s safe, against the stairs leading into his trailer. And then he sees someone drive by in a motorcycle and he’s like, “That guy could help me. He could be a witness.”

He tries to wave him down. He doesn’t see him so he gets in his truck, drives out to this scenic outlook at this peak not far away, talks to this guy named McCullouch, David McCullouch, eventually about being a witness for him. He says, “I’ve shot someone. I can’t call 9-1-1. I need you to call if you have bars.” He does. Then eventually, Dean Cummings gets some reception. He can call. They go back to the trailer. Dean Cummings shows him what’s happened. McCullouch, probably wisely, said, “I’m getting out of here.” So he witnessed it, he saw it. Cummings, it was really important to him to point out that he had that canister, that Arriola had that canister in his hand. He leaves.

He waits, he describes it as a couple of hours, Cummings does, for police to actually arrive, and when he thinks they’re not going to come or he’s concerned that it’s been so long, he wants to call back but he can’t from the property, he begins to leave. He gets about a quarter mile down the way. He sees the police are staged out there trying to decide how to approach the property. He cooperates well with the police. He’s apprehended. He makes it very clear it was self-defense. He points out some evidence. Don, we talk about that a lot, about how you don’t want to say too much but you want to give the police enough to understand that you have a self-defense claim. Show them where the main things are, that the gun’s safe. He cooperates really well. Ultimately, he’s arrested. He goes to a grand jury. They charge him with second-degree murder … is what they wanted to try him for?

Don West:

Second-degree murder is what he was indicted for plus a couple of counts of tampering with evidence, which was an interesting twist and I think caused the whole prosecution to be questioned somewhat. It was the idea that he washed off the spray or that he took his clothes off, somehow was tampering with evidence, even though as you pointed out, he was trying to be helpful to the police by showing the canister that he claimed was used in the fight as well as wanting them to have his clothing, he offered them. And I think at some point, spoiler alert, the judge ultimately dismissed those two charges. So the jury knew about them early on but then they never addressed those in their verdict because the judge appropriately saw there was really nothing to that and got rid of it, and that may have in fact tainted the whole proceedings in some way.

Shawn Vincent:

So we mentioned that there’s going to be a couple, “and then here’s the rest of the story.” Here’s where I want to get into this fact that never really showed up in trial but is part of the public awareness of this case, is that Dean Cummings struggles with mental health issues and when his extreme ski helicopter business failed, there’s apparently 20 hours of YouTube videos out there where he’s describing this vast conspiracy where some mysterious syndicate has conspired to put him out of business and maybe had something to do with a death of another extreme skier. And he talks about neurobots, some agent that’s in silica dust that can infect your brain, so it’s a deep paranoid delusion — without being a psychiatrist who can diagnose those things. He’s got a lot going on here. He’s a little unstable. People who know him know that he suffers from some of these issues. He makes a crazy jailhouse phone call which is, I assume from a lawyer’s perspective, Don, always unsuggested to make random phone calls to reporters from the jailhouse about your case.

Don West:

Yeah, I don’t know how that happens. We hope that it never does when you’re representing somebody, but in this case, he had access to the phone, and somehow, I’m going to assume that he must have called the reporter. I don’t see how under any situation …

Shawn Vincent:

Yeah, he called the reporter.

Don West:

… the reporter could have called him and gotten through. So he was proactive, he wanted to tell his story to the reporter.

Shawn Vincent:

And the transcript that I saw in the report about that, there’s a lot of these conspiracy theories drawn into it. He claims that during the night, he smelled propane and garlic and confronted Arriola, not just about being a scammer but also “are you in on this conspiracy?” “Are there nanobots or neurobots in your dust here?” So some crazy stuff, if true, and framed that way, he becomes an unreliable narrator, an unreliable witness for his own self-defense case. Then plus you have the things that you talked about where the police and the prosecutor are trying to frame the fact that he washed himself, he washed the clothes, he moved the rifle, that he’s murdered Arriola and then staged it to look like self-defense, to the point where they think he even put the canister of OC spray or whatever it was in his hand to make it look like he had planted that he was attacked and then went out of his way to tell every police officer witness, “Oh, look, do you see the canister in his hand?”

So putting that in perspective, you start to think, wow, this is not a great case for the defender here. This might be tough. But then we get to the point where now, there’s the rest of the story. And so we know that Dean Cummings had testified that he had had a conversation drinking whiskey with this guy one night, and Arriola started saying that he’s got problems with some of his neighbors. He indicates that he might be a little bit of a confrontational kind of guy. He describes an incident where he attacked somebody’s car with a hammer, and Dean Cummings says, “All right. Well that’s weird but I want to buy this guy’s property so I’m going to let it slide.”

And we find out at trial on the last day that Arriola has a history of pepper spraying people. They got several of people who had had interactions with him who had actually been sprayed by him come testify. Someone said, “Yeah, he even pepper-sprayed my dog.” And then they find the guy who was attacked by the hammer who showed up and said, “Yeah, this really happened. He’s explosive.” They also found another witness that said, “Guillermo Arriola is not a violent guy unless he’s intoxicated. The problem is he’s always intoxicated.”

Don West:

I love that.

Shawn Vincent:

Yeah. So if you really want to bring this all together, the toxicology report on Arriola shows that he had marijuana in his blood, he had alcohol in his blood, and he had cocaine in his blood, and more than that, the alcohol and the cocaine had combined to create this thing called cocaethylene in your liver that is known to make people aggressive and unreasonable. And so now, this other bit of evidence is crazier even than Dean Cummings is crazy and turns the whole tide back to we think this guy might be actually telling the truth. And then I want to throw one more thing on top of this to make …

Don West:

Don’t tell me there’s more.

Shawn Vincent:

There’s more to the story. The responding police officer said that Dean Cummings showed no remorse and that he refused to even identify himself. Well, Dean Cummings identified himself, gave his phone number and his birthdate and his full name to the 9-1-1 operator when he made that call. He claims the officer never asked him to identify himself so he never said his name. When challenged, the defense attorney invited that responding officer to go back and listen to his belt tape, the audio recording of the interaction, and he had to come back and admit that, “Okay, I never asked him for his name.” And you can hear very plainly Dean Cummings saying immediately, “Oh, I’m so devastated. I’m devastated that this happened.”

So she impeached this law enforcement officer on his testimony that made it look like Dean Cummings was guilty, that made it look like he was tampering with evidence, that made it look like that he had no remorse for what he’d done. And then he’d find out that other law enforcement officers who should have been recording either weren’t or that footage is somehow strangely lost, and now we can’t really believe anything any of the law enforcement officers say.

And let me throw one more thing on this and then we’ll start talking about the details of the case. He claimed that Arriola grabbed the barrel of the rifle. Well, they test it and there’s no DNA evidence on the rifle, but then we find out that they didn’t actually test the barrel. They tested other parts of it where Dean said he didn’t touch it. And, oh gosh, this other whole … they didn’t ever do any analysis of the Mace canister. They didn’t even call the manufacturer to ask them questions about how it worked. They never tested it for Dean Cummings’s prints. They had a completely shoddy police investigation, and meanwhile, this guy’s been in jail for two years and now we go to trial in November of 2022. Did I leave anything out, Don, that you thought was relevant for our audience today?

Don West:

Well, I don’t know if you mentioned it, but if so, it bears mentioning again, they didn’t test the clothing either. The clothing that he took off and piled up and pointed out, this is clothing he was wearing.

Shawn Vincent:

And asked them specifically to test, right? “Please test this.”

Don West:

Yes.

Shawn Vincent:

And oh, it didn’t smell like it had mace on it but they never tested it, but they test other things.

Don West:

Probably somewhere between three hours later is when law enforcement was milling around the place doing their investigation and didn’t smell anything, so that was the end of that, I guess.

Shawn Vincent:

So they dismissed him completely from the beginning, set this up as a staged murder, even though he claims self-defense the moment he encountered law enforcement. And so we already did a spoiler alert, he’s acquitted of these charges in a wackadoodle trial, and I say wackadoodle because I think… Well, first of all, you have a guy who gave a jailhouse interview that revealed his mental illness and he was one of the coolest customers I’ve ever seen on the witness stand testifying on his own behalf in a self-defense case. Would you agree with that, Don? This guy held it together amazingly.

Don West:

Yeah, if you don’t have any other context and you’re just watching him testify and you don’t hear a couple of words that you might connect with something else that’s floating around in the case, he seems well prepared, together, completely composed. He follows the rules of being a good witness. He doesn’t mock the prosecutor when anybody else would, given the attitude and the manner in which he was being questioned. He acts sincere. He is as responsive I think as he can possibly be in those questions. He did nothing that I could see that would alienate the jury.

To some degree, I thought Kyle Rittenhouse had set the gold standard for how to effectively testify when you’re being cross-examined by an aggressive prosecutor, and Dean Cummings was a very close second in that regard. So as you look just at his direct examination, which was effective and smooth and prepared, as it should be, and persuasive, as it should be, he then also has to survive cross-examination, which is likely to be contentious, argumentative, trying to catch him in a trap or misstatement, trying to drive a wedge through a crack and open the door, and he didn’t let any of that happen. I agree with you, Shawn. I thought he did a terrific job maintaining his composure and being appropriate in his demeanor in court.

Shawn Vincent:

And so you mentioned in his testimony a couple little words or references that would have stood out if you were aware of his history with mental illness and some of these conspiracy theories that he touted. We don’t know what the jury knew. They were probably vetted very well on the publicity for this and I’ll guess — we’ll give them the benefit of the doubt — the jury didn’t know about the mental illness issues when they were sat to hear this case. Let’s pretend that’s true. There’s very little evidence of his mental state that got into trial, and we don’t know, but I can only guess that the defense lawyer did an amazing job in her motion … her pretrial motion work to make sure that stuff was excluded. What are your thoughts on that?

Don West:

I think that’s the most likely way that happened, but I don’t think we can exclude the possibility that the prosecutor simply wasn’t very good at getting it admitted or wasn’t very good at raising the issue sufficiently to be allowed to explore it in cross-examination. They had the recorded call you talked about with the journalist and they had that available. I couldn’t tell from watching that part of the testimony whether parts of it had been redacted or the connection wasn’t clear but I did hear some things in the limited part of the recording that was played that made me think that there was more room to explore that.

And I remember the article, Shawn, that you referenced written by the reporter that he interviewed with and the reporter suggested in the article that Mr. Cummings had told him he thought Arriola may have been on a plot, not just the overall conspiracy, but in a plot to assassinate him, that this was in a sense a hit and that obviously, if that dynamic were introduced by the prosecutor, that might change the jury’s entire view of what Dean Cummings was thinking at the time this thing started. What kind of threat was real and what was imagined in the context of this conspiracy stuff? And I couldn’t find anything in the media. I couldn’t find any clearer indication in the public record that would help me understand that, and I wish I did. It’s a fascinating aspect of the case.

I say that it’s possible some of the evidence that would have been admissible didn’t come in because I saw some attempts by the prosecutor to head that direction that I don’t think were forestalled necessarily by the defense or the judge but I think the prosecutor just wasn’t effective at laying essentially the foundation through precise, clear questioning to be able to explore that. He would touch on a few things and then get frustrated and then move on, and I think, so part of that consequence could simply be that the prosecutor that was cross-examining him either wasn’t as prepared or didn’t anticipate that, or simply may not have had the skills to navigate the courtroom, the minefield of the courtroom.

Shawn Vincent:

Interesting. And I wanted to address that now because I think for the rest of the conversation, we’re going to talk about it the way the jury saw it and that didn’t include any real solid evidence that Dean Cummings suffered from mental illness or had these weird paranoid delusions and thought he was being assassinated. Because they didn’t hear that, and so now can … We’re always looking for lessons for concealed carriers and armed defenders here. We’re going to take Dean at his word with the testimony he gave at trial and look at the case from that perspective. Is that fair?

Don West:

Shawn, yes, it is, and I think that’s a good way to look at it. But I would like to offer a couple of additional comments.

Shawn Vincent:

Yeah, please.

Don West:

Because of mental health defenses, there are mental health defenses of course available. The defense that most people would’ve known of is the insanity defense, that under certain circumstances, you can avoid criminal liability because of your mental state at the time of the event, that if you were so impaired by mental disease or defect that you didn’t understand the difference of right and wrong, for example, that might be the foundation for an insanity plea. And if the jury agreed that you were insane at the time of the event, you wouldn’t be convicted. You may spend the rest of your life in a facility, an insane asylum so to speak, but you wouldn’t be criminally convicted.

Now, that aspect of mental illness and courtroom procedure is distinct and separate from competence or competency. Competency relates to the moment in time that’s at issue and whether or not the accused has a sufficient understanding and appreciation of the court process to be able to know what he or she is charged with, to be able to understand the roles of the participants in the adversary proceeding, to know who the prosecutor is and what he or she does, to know who his defense lawyer is, to know the role that the judge plays, to be capable enough to assist counsel in preparing the defense.

And frankly, in a case that I had where my client was ultimately found incompetent, he had a pretty good understanding of all of that stuff except that he couldn’t help me defend him. This was a self-defense case. He couldn’t help me defend him because his mental illness prevented him from being able to take the stand and testify. He just couldn’t do it. He had this panic that he refused, and as a result, he couldn’t help me present his case. So all of that stuff wrapped into the case that I had. He ultimately was found not competent and the case was delayed for some time.

Now, in the case we’re talking about with Mr. Cummings, I don’t ever hear, I didn’t hear anything that there may have been a claim that he was legally insane at the time of this incident. I never heard that rumored or discussed or mentioned even in any of the media. The issue that he seemed to face as a result of his mental illness was that of competency. Competence to stand trial. And often, a criminal defendant who’s incompetent can be restored to competency by being committed to a mental health facility, being properly medicated, in some ways, even being educated as to what’s important to know and to understand.

So the sense of Dean Cummings’ mental illness as it directly related to his case was that there was a period of time when he wasn’t considered competent to stand trial. The trial was delayed for him, apparently to be restored to competence, which he was, which is why he was able to go forward, and that may have included all sorts of things but most likely some treatment and a proper medication regimen. Circling back though, to the beginning of all of this, you can be pretty mentally ill, you can have obvious signs of mental illness, you can have a diagnosis of mental illness, but unless that mental illness is so significant or severe as to render you insane, meaning you can’t tell the difference between right or wrong at the time of the incident, there would not be an insanity defense that could be claimed.

So as this interplayed, the idea of being competent to stand trial is pretty evident at the point in time that the person’s restored. That doesn’t mean that he didn’t have a pretty significant mental illness on board at the time of the event. And the questions you have, the questions I have are: “Why didn’t some of that come into play?” If it wasn’t sufficient to be insane, so be it, but it may very well have impacted his thinking and may have in some ways directed or guided his conduct. And while had they explored that, it may not have defeated his self-defense claim, I don’t know why it wouldn’t have been a proper consideration, at least some aspects of it a proper consideration. But I’m not sure the prosecutor had it all that well thought out or had it all well together. It certainly didn’t appear that there was a planned, prepared path to get there in the case.

Shawn Vincent:

And after the verdict, asked about the mental health issues, Cummings’s lawyer, Nicole Moss, told the press that you can have a mental illness and still be attacked and still have to defend yourself, and that that could be and should be, often, a completely different consideration than the justification for the self-defense.

Don West:

Absolutely.

Shawn Vincent:

Steve, I want to turn to you now because one of the things that initially caught my attention about this case is that it involved the use of a rifle. And right off the bat, it was clear that there was a struggle over the rifle, and I immediately thought that we’ve looked at two other high-profile self-defense cases where a rifle was involved and that the defender ended up in a struggle for the rifle. I’m thinking about Kyle Rittenhouse very famously. He’s in this crowd, has a rifle, and it surprised me then, it surprised me still now that people seem so emboldened to try to take that rifle away from him. You’d think that someone would be frightened of somebody carrying a long gun, but they were somehow compelled to approach him and put their hands on it.

And then we have the case of Gerald Strebendt, “The Finishing Machine,” who used a rifle to confront an angry motorist after a collision late at night. And when he was holding that rifle out, the motorist seemed emboldened and went to him and put his hands on the rifle. There was actual DNA touch evidence that the guy put his hands on the rifle before he fired. And there’s a rifle in this case. It wasn’t necessarily his self-defense weapon choice because he had been working with that rifle to go hunting, but it’s the weapon that he had and it had the same result. I’d love to get your insight into that.

Steve Moses:

I think a lot of it stems from poor gun handling and perhaps the demeanor of the person that is the recipient of the attacker’s wrath. In many instances, they don’t hold those firearms, those long guns like they know how to use them. In many instances, they don’t want to shoot the other person and I think that becomes fairly obvious. And the third thing is if you’re allowed to approach someone and get within, say, two arm’s length, it is much easier to gain control of a long gun than it would be for a handgun, which you can compress up to your body and control it. So I think all three of those factors probably played in here.

I suspect, especially in the manner in which Cummings was describing his position, I think he stated that he was crab walking two separate times, which simply means he had his feet and the palms of his hands on the floor and he was facing towards the ceiling and he was just backing up. He probably looked fairly vulnerable and when he grabbed that rifle, if indeed Guillermo was attacking him as he said with the Mace, I think Guillermo was probably quite convinced that he could take care of this situation.

Shawn Vincent:

From a broad perspective, since we had this conversation about the challenges of using a rifle in self-defense, is a rifle a good home defense choice for a lot of people?

Steve Moses:

I’m going to have to say it depends. A rifle is not a bad choice for home defense, same is true for a shotgun, for a person that can stay in an ensconced position. I’ll probably beat this to death — that if someone has broken into your house, the best place for you, more than likely, will be in a room in what we refer to as the “hard corner.” That’s a corner that’s on the same side of the wall that the door is. For the simple reason is you have some distance, you’re communicating to that person that’s outside of the room that you are armed and you will shoot them, and when they come around, you have enough distance to accomplish that.

That can also be done by people that have been trained to do what people might refer to as close-quarters combat. There are a couple of methods called short stocking or buttstock rollover in which the defender can suck that rifle in over his shoulder, and remove the location of the muzzle so it’s closer to and more difficult to grasp and use it effectively. That’s not a widely known technique. And last but not least, if you have to go through the house in order to get to another room in which there’s someone there that you need to protect, you pretty much have to have both hands on that rifle to use it effectively, and in many instances, that means you’ve got to open doors or go around corners where the rifle is especially, or shotgun for that matter, is susceptible to being grasped.

Shawn Vincent:

What I’m picking up there is that every armed defender should have extensive training in the handling of their firearm. If your firearm happens to be a rifle, there’s more training, there’s other considerations to take into account.

Steve Moses:

That is absolutely correct, and I think one of the bonuses of that is that competent gun handling and confidence and what appears to be competence on the person that is the defender in many instances, that can dissuade people from going ahead and continuing forth with a violent assault.

Shawn Vincent:

Yeah, I want to talk a little bit more about that because I feel like in the Rittenhouse case, he’s this doughy-faced teenager who looked a little slight, and I think the people who saw him with the rifle, who decided they wanted to attack him and take the rifle away from him didn’t take him seriously. It didn’t look like he meant business with a rifle. It didn’t necessarily look like he knew how to use it effectively. Perhaps it emboldened them. So I think what I hear you saying is that if you don’t know how to look like you mean business and you can’t carry that rifle in a way that it’s clear that you’re ready to use it if you need to, you have this effect of emboldening the attacker to come get it.

Steve Moses:

Yes, and not only that. The more competent you are, the more confident that you are that maybe you can wait a little bit later in terms of having to defend yourself, that you do know that, “Hey, I’ve got the skills to deal with this.” And once that person crosses that line, whatever that line is for you and under those circumstances, that you know can defend yourself with that long gun. It puts the defender in a better state of mind in terms of not only dealing with that other person … but I’m saying this over and over, I think it lessens the chances that the attacker is saying, “Oh, I could take that person.”

Shawn Vincent:

I want to ask you about… Oh, go ahead, Don, if you had a comment.

Don West:

I was wondering, Steve, as well, if you have the kind of training that you’re talking about and comfort level with a firearm like that, not only perhaps you can wait a little longer before you fire it but could it also become a less-than-lethal weapon as a blunt instrument? Could there be a situation where someone’s getting close to you and you could use it to strike them, to push them back, or to incapacitate them without having to use it just as a firearm?

Steve Moses:

The answer is kind of a qualified yes. Most of us that have done any training with defensive rifles were familiar with a technique called “muzzle thumping,” which you use the end of the muzzle itself to drive into the other person’s sternum, upper torso — in order to drive them back. The answer is yeah, if I’ve got the ability to where I can muzzle thump that person with it because I don’t think I have to shoot them right this moment, and I know that even if he does grab it, I have a means of protecting myself, retaining that weapon — perhaps less lethal, perhaps entirely lethal, I believe so. I believe so, and it’s not uncommon for especially people in the military that are doing house-to-house close-quarters combat or room clearing to have to muzzle thump people that are in their way or that are resisting. That’s very common and it’s something that is used probably not very frequently but something that can be used from both a law enforcement perspective anytime you’re doing forced entries. Same thing is actually true, then, for a homeowner.

Don West:

I thought that was an interesting part of the facts of this Dean Cummings case, the way he described the interaction with Guillermo at close point and then at a further distance, and how the pepper spray, the canister, he described that it was being used. I don’t remember anything in the testimony that he described Mr. Arriola as spraying him, as specifically spraying him with the Mace. Now, he clearly must have gotten some on him, but he certainly didn’t take a direct hit to the face, and one wonders if maybe he got sprayed some accidentally, meaning that he described Arriola as using it in his hand. He kept describing him trying to hit him with the canister and he was blocking the shot, almost as if the canister of Mace was the blunt object that he was trying to hit him with and that the discharge of the spray was incidental to that.

And he described how he’d had got hold of the gun and was pulling it toward him. As Shawn mentioned, that’s how the first couple of shots apparently were fired, so I’m trying to sort all of that out as I listen to you and wonder, could there have been a plausible argument by the prosecutor that he could, even if he were appropriately armed with the AR given those circumstances, could he have done something else to neutralize the threat? Could he have used it as a blunt instrument? Could he have done anything less essentially than shoot him in the head? Because that would play into their argument that the force was disproportional. Even if you accept that he, meaning Cummings, was attacked, was the use of the AR clearly proper lethal defensive force? Now, that sounds a little convoluted, and how do you sort all of that out in three or four seconds when this stuff was really happening? But I noticed in the prosecutor’s argument at the end tried to suggest that Cummings was unreasonable because he was using an AR against just a can of pepper spray.

Steve Moses:

Well, the thing is that if someone is indeed successful in spraying you in the face, especially in the eyes, you become fairly combat ineffective. It doesn’t mean you cannot continue to fight. As a matter of fact, you can even force yourself to open your eyes for a few seconds at a time before they just involuntarily close, but if someone sprays me in the face with OC and then goes for my gun, I would very much be in fear for my life. It’s one thing just to be sprayed and then you’re able to break contact, get away. It’s another thing to be sprayed at a time when you had a gun in your hand.

The other thing is I’m not so sure that Guillermo was trying to strike him. I find it kind of odd that apparently, Mr. Cummings did not have any marks or bruises on his hands or forearms. That’s what was testified to, even though he said he was trying to defend himself from strikes. I suspect that that little can of OC is relatively small. Its use as a blunt instrument, it’s going to be pretty much insignificant. I think the chances are probably pretty good what he was trying to do was spray Cummings directly in the face and Cummings had his hand up there trying to fend it off, and I suspect that Guillermo was trying to get around that hand. He was closing on him and I believe that’s more than likely what took place.

Don West:

That makes a lot more sense to me now that you’ve explained it, frankly, than even Cummings testimony did. Yeah, I see that now. Arriola was positioning himself to get a direct shot, and Cummings was deflecting that, and as a result, he didn’t get a direct shot so he got some over-spray or under-spray or whatever. He just didn’t get a direct spray. I got it. Thank you. That’s really interesting.

Steve Moses:

Okay, you’re welcome. And also, I doubt very seriously, that was the type of OC canister, I believe it was a Mace brand that emits an aerosol like spray starch or something like that. More than likely, most of those small OC canisters like that, they use a stream which is a lot more like a water pistol, and it’s fairly targeted. That’s one of the things when we teach OC. I remember of course the podcast we have with Chuck Haggard who’s just the master of the use of OC, but it’s actually you have to be somewhat accurate, almost like you’re shooting them with a water gun. And so I think very much so that basically, he just did not get a good hit on Cummings in the face because I think Cummings would’ve very much brought that to our attention.

It seemed like after he actually fired the shot that caused Guillermo to cease his aggressive actions, he was fairly able to go ahead and get around there, make some choices, set the gun down, unload the gun, and then actually left the property to go and try to make a 9-1-1 call when you saw Mr. McCullouch.

Don West:

Yeah. And then of course we learned later in the trial that in fact, Guillermo Arriola has a history of using pepper spray or Mace against people, and I took all of that testimony to mean spraying them or spraying at them. Yeah.

Steve Moses:

Yes, yes, yes. And that’s one of the things that I think falls within the use of force. At least in Texas, I’m sure this is true for other states, is that knowledge that you have about the person that is aggressing upon you at this time, that you know they have special skills or propensity to do certain violent actions can basically have an impact on whether or not you make a decision that this person poses a lethal threat or they do not.

Shawn Vincent:

That’s funny in this case because I don’t think there’s any evidence that Cummings knew of his history of the Mace, but he did clearly from the beginning say that he was sprayed with a chemical agent and the police questioned him on that, whether that was true. But then when you find out that unbeknownst to him, this guy, in fact, does have a history of Macing people, that added a whole lot of credibility, Don, to his testimony, didn’t it?

Don West:

Well, the prosecutor tried every which way to make Cummings look like he was lying or unreasonable. They questioned his sincerity about certain things. They questioned his behavior when he spent this amount of time doing this and delayed this amount of time doing that, challenged him on whether he even said I was devastated or even what his name is, some of the stuff we’ve talked about. And yet, when that kind of evidence comes out, that goes directly to who is likely to have been the initial aggressor? What is the history, and as Steve said, the propensity of Arriola to use Mace in that kind of situation? You combine that with the alcohol and the cocaine and you exactly have what any lawyer would script to support your client’s testimony, don’t you? It doesn’t get any better than that.

Shawn Vincent:

Yeah, it’s a slam dunk. It’s too absurd to even write as fiction, wouldn’t it? To set that up. Steve …

Don West:

No one would believe it. That’s the problem.

Shawn Vincent:

That’s the problem. Yeah.

Don West:

No one would.

Shawn Vincent:

Since we recorded our conversation about this for the podcast, I had a chance to exchange emails with Dean Cummings’ lawyer, Nicole Moss, and she was good enough to answer a couple of the questions that Don and I had about her work to keep the mental illness issue excluded from trial. Here’s a conversation Don and I had once we had that new information.

We didn’t know but we suspected that the defense attorney, Nicole Moss, who did a great job in this case, had fought pretty hard to keep some of that stuff out. The motions in limine, pre-trial motion work to convince the court that the stuff would be more… The standard is what? It’d be more prejudicial than probative. A lot of that stuff wasn’t relevant to his state of mind that night.

Don West:

Yeah, I think that’s fair enough. The competency process can be initiated by defense counsel. It could be initiated by the court or theoretically even the state if they have genuine concerns that the defendant in the criminal trial is not sufficiently competent to stand trial, and as we touched upon, that’s distinct and separate from the mental state of insanity at the time of the event itself. So whatever happened that raised Dean Cummings’ competency to the court was eventually resolved, most likely through a brief commitment to a facility and then medical attention, typically a medication regimen of some sort that stabilizes the person and makes it evident that they are clear thinking enough to be able to understand the proceedings, and therefore, once you’re competent, the trial can proceed.

On the mental health issues, of course, we learned that while he was in jail dealing with pretrial issues and perhaps the competency itself, he initiated and participated in a recorded phone call with a reporter, a reporter who prepared a fairly lengthy article about Dean Cummings and the case and preserved a tape recording of that conversation. So that’s how we went into the trial, I think, on the mental health stuff.

Shawn Vincent:

Right. And so I sent her an email and she was good enough to respond to us after we recorded our initial podcast, and so I wanted to add this section to that podcast to clarify some things that we learned. And basically, I told her that we suspected that she had done some work to exclude a lot of the mention of his mental health, and she said that we are correct, that any mention of Mr. Cummings’ mental health was excluded from the trial, and she says this: Interestingly, the state, the prosecutor sought exclusion of his mental health stuff as well, which might be kind of a surprise. Her speculation is that the prosecutor didn’t want Cummings to be found not guilty by reason of insanity.

So she, as her defense attorney, wanted it out because she didn’t feel it was relevant necessarily to what his state of mind was the night of the shooting because his statements were from later on after he had been in jail for a couple of months. The state wanted it out for a completely different reason, and then she even mentions that there are parts of that interview that were admissible because it didn’t speak to the mental illness stuff, but she says the state didn’t use the admissible portions in their case in chief or in their cross exam and that’s a mystery to her why they didn’t do that. It’s kind of fascinating.

Don West:

It is. It’s multi-layered and there’s both the analysis of the mental health issues themselves, but then the strategy involved in knowing the issues that would be presented to a jury, knowing what the burdens of proof are in that regard, and then weighing the impact of this evidence for either side. And what I agree with you about is, and how interesting it is, that for their own reasons, both sides of this adversarial case wanted certain evidence excluded, and yet for very different reasons no doubt. I think that some of the mental health-driven stuff the defense would want out if it went to evidence that, if viewed by a jury, may comment on the reasonableness of Dean Cummings” actions, meaning his thinking, and whether or not in fact there was in the person of Guillermo Arriola a credible imminent threat of great bodily harm or death, a standard whereby you have to meet if you’re going to use lethal force in self-defense.

Of course, if Dean Cummings was suffering from some delusions, some paranoia, and believed something that wasn’t correct, that would give the state a handhold I think to argue that overall, even though he had mental illness, it didn’t rise to the level of insanity and therefore, his conduct was patently unreasonable as a result, then it’s not a defense to his criminal act of homicide and therefore, he should have been found guilty. That’s somewhat convoluted but that’s a direction or a path I think the state could have tried to go. Maybe reading into what Ms. Moss said, maybe the state got a little scared of that or intimidated by it or just didn’t want to go there at all for fear that, in fact, the evidence may be so compelling on the issue of mental illness that the jury might acquit Dean Cummings, recognizing that he really was suffering from that kind of mental disease or defect at the time.

Of course, we know that’s set up against the evidence that was generated or derived or investigated of Guillermo Arriola himself. He was a pretty unsavory guy by the time the defense finished with him in terms of his reputation, his prior bad acts, all of which turned out to be consistent with what Dean Cummings thought this guy was all about, especially when he got angry and especially when he combined that with some alcohol and some drugs.

One thing I don’t know from Ms. Moss’ email, and I’d like to know because maybe the pleadings would be available at some point, is whether there was an actual motion in limine filed, a request of the court to limit certain evidence and then a hearing to address those issues and then a decision by the judge, or whether it was maybe informal, that we agree that we won’t introduce this stuff, the state will be allowed to go this far if they want, and it wasn’t a particularly aggressive adversarial proceeding, which isn’t uncommon. Lots of high-profile cases start off with lengthy litigation on motions in limine to limit or exclude certain kinds of evidence that one side or the other thinks will be unfairly prejudicial.

Shawn Vincent:

That conversation’s interesting for folks who maybe not have had an experience with the criminal justice system before though, because the sum set of facts that are in evidence or allowed to be presented to the jury, that gets decided to a large degree before you pick the jury, or maybe you pick the jury and then you argue some final motions in limine before you do opening arguments sometimes. Sometimes, these are really important facts for you that you might not know until sometimes moments before opening arguments or sometimes a day before you go to trial about whether you’re going to be able to argue that in front of the jury, and that could have a huge impact on your case.

And we know that a little piece of evidence here changes the whole picture, or if you remove a piece of evidence, that can change the whole picture. And the jury, the judge and the adversarial sides decide what’s available for the two sides to argue, and some things are off limits. And sometimes, something that you fought to get out but it’s in, inexplicably, the other side doesn’t go for it. You and I have been in cases before where we have something we’re actually terrified about and we’re waiting for it, and then inexplicably, the prosecution never exploits that weakness that we spent probably nights awake and weeks worrying about and mitigating.

Don West:

Hand ringing, agonizing, what do you do? I can think of situations where I have been involved in litigation on a motion in limine and won, in the sense that we were allowed to offer this evidence, and then because of what was happening at the trial at the moment and the strategy, we made a decision not to offer it anyway. It might have taken 10 hours of pretrial litigation to get to that point. However, the state would be excluded from doing it. We could offer it if we chose and then we made a strategy decision along the way.

I might digress for a moment, just tell a fairly brief story about the significance of a motion in limine that I was involved with, and Mark O’Mara and I tried the George Zimmerman case that I thought is exactly illustrative of your point. And then as you don’t know until the last minute what’s going to happen, and then when the judge makes the decision, it can change the whole direction of a case. For those that were paying attention to the case against George Zimmerman in connection with the shooting of Trayvon Martin, it’s almost 10 years ago now.

Shawn Vincent:

10 years ago, June.

Don West:

There was a recording of someone screaming several times, “Help,” over and over that was captured in the background of some 911 calls that were placed by residents in the neighborhood where the shooting took place. So a critical issue was determining, was George Zimmerman attacking Trayvon Martin or was Trayvon Martin attacking George Zimmerman? And of the two, which was yelling for help? Because it was clear the person yelling for help was in great distress. It was clear they were in great fear of what was happening. They were scared, they were truly screaming for help. And of course, if the voice on that recording could be identified, it was very powerful evidence either way. For the state, if that was Trayvon Martin screaming for help and George Zimmerman shot him anyway, that’s very powerful. On the other hand, if it was George Zimmerman screaming, that certainly suggests that Trayvon Martin was the attacker.

Shawn Vincent:

So if it could have been a definitive determination, either way, that’s game, set, match for whichever way it fell really.

Don West:

I think so. I think George Zimmerman gets convicted if it turns out to be Trayvon Martin and I think that if it’s clearly George Zimmerman, then the case should be dropped. I think it was that powerful in the scheme of things. And we had hearings on that. We filed a motion in limine to address that. We had expert witnesses. We had an expert testify from Europe, from England. We had experts all over the country on both sides testify. We had several days of testimony. And in fact, this was so important and so extensive that while this litigation was ongoing, the judge wouldn’t wait any longer, even though the hearing wasn’t over, and began jury selection. So we’re in this crazy, crazy spot of these hearings being televised in front of potential jurors, and in fact, we had a juror that we talked to while this case was ongoing who said, “Yeah, I’ve been watching that on TV. I’m really anxious to find out how the judge rules,” and she’s sitting in the courtroom across from the judge.

Shawn Vincent:

And one of my favorite parts of that, Don, is that it’d been going on for a while. You had lots of experts who you’d worked with for a long time on this issue and you had more to go. We’re getting near the end of the day and she says, “Mr. West, let me interrupt you real quick. How much more of this do you have?” And you’re essentially, “Judge, how much more will it take? I’m going to keep doing this until you’re convinced.”

Don West:

That’s right.

Shawn Vincent:

It’s funny, this is the part of trial that you can’t really teach anyone. She gave a nonverbal indication that she had what she needed, and I felt pretty comfortable after that exchange, okay, she’s going to rule our way. She’d like to go home now, and she doesn’t need to hear anymore. And it turned out that that was true. You can’t know that for sure but there’s that little read right there, a little poker playing. You’re like, “Okay, I think we got it.”

Don West:

Yeah. So I think if I remember the timing of it, we we’re litigating this on the weekend before. The trial starts that Monday, opening statements are that Monday and this is Friday.

Shawn Vincent:

We’d already picked the jury.

Don West:

We still don’t have a ruling, and so we make our arguments, and then the judge ultimately grants the relief that we requested, I think, which basically is excluding the experts that the state wanted to offer to identify the voice as Trayvon Martin’s. Our experts, which were world-renowned, former NSA people and college professors, and forensic examiners from Europe, all agreed that was simply an insufficient and distorted sample to make any sort of confidence on that occasion.

Shawn Vincent:

No, it couldn’t be done.

Don West:

Yeah, it could not be done. So after all of that knock-down-drag-out stuff, the judge did the right thing and just said, “Look, it’s not subject to expert opinion so it’s a non-starter.” Now, all of that happened a day or two before opening statements, so depending on how the judge ruled, it was going to retool the whole case, whether those experts were going to testify or not. And I don’t know that this mental health stuff was anything like that experience, that it was a last-minute decision or whether it was known for some time, but it certainly I think could have been very powerful evidence if it had been developed fully, perhaps by either side.