Dean Cummings: Consciousness of Innocence

Dean Cummings fatally shot Guillermo Arriola after a verbal confrontation turned violent. According to trial testimony, Cummings accused Arriola of being a “scammer” because a real estate transaction between the two men had become contentions. Arriola responded by attacking Cummings, knocking him to the ground, and trying to spray him with a can of Mace. Cummings managed to get his hands on his rifle, which he had been preparing for hunting, hoping the threat of deadly force would stop the attack. But Arroila persisted, and he grabbed for the defender’s rifle. Fearing his attacker would gain control of the weapon, Cummings fired 11 times, fatally striking Arriola with three rounds. Cummings was charged with second-degree murder.

The core legal justification for the use of deadly force is that a defender must face the imminent threat of great bodily injury or death at the hands of another. Don West, criminal defense attorney and National Trial Counsel for CCW Safe, says the primary consideration for the jury at Cummings’ murder trial was whether the defendant believed, at the moment he pulled the trigger, that Arriola posed an immediate threat of great bodily harm or death. It is difficult, however, for jurors to peer into the heart of a defender and determine his true motivations. Evidence of a defender’s actions before and after a shooting can give a jury some insight into the defender’s mindset – providing clues about what the shooter was thinking during the critical moment when they fired their weapon.

As a concealed carrier, legally, the only thing that truly matters in a self-defense claim is what you are thinking at the moment you pull the trigger, but from a practical standpoint, what you do and say in the seconds, minutes, hours, and even days before and after the critical life-or-death moment can have a huge impact on how others view your self-defense claim.

Dean Cummings acted strangely in the seconds, minutes, hours, and days before and after he shot Guillermo Arriola, and it significantly complicated his legal defense.  

As a younger man, Dean Cummings enjoyed fame as a champion extreme skier, and he once operated a helicopter ski tour business in Alaska. That business eventually failed, and Cummings, who has struggled with mental health issues, blamed the failure on a conspiracy that he described in 20 videos on a YouTube channel entitled “How a Criminal Syndicate Tried to Destroy A Man’s Company and Life.” According to the videos, as reported by Real Vail, the syndicate “uses nanobacteria made from pumice silica in people’s bloodstream as a magnetic means of tracking digital signatures.” During a rambling and ill-advised jailhouse call with the Real Vail reporter, Cummings claimed that on the day of the shooting, he accused Arriola of being part of the conspiracy, and he questioned whether there were “nano-pawns” on Arriola’s property.

For much of the time between the shooting and the trial, due to his mental health struggles, Cummings had been ruled “incompetent.” He wasn’t pleading insanity, but the court recognized Cummings’ mental illenss and found he was unable to participate meaningfully in his own defense. Presumably, Cummings received the treatment he needed because he ultimately stood trial and testified eloquently before the jury.

Cummings’ lawyer fought to keep discussion of her client’s mental illness out of court, arguing it wasn’t relevant to the case. The judge agreed and barred prosecutors from presenting evidence of the defendant’s mental illness to a jury, and significant portions of the jail call to the reporter were redacted. The prosecutor tried to introduce some of the call, including a vague reference to “nano,” but after making some critical errors during her cross-examination, the presentation fell flat and lacked the necessary context for the jury to truly question Cummings’ state of mind. Had jurors been allowed to hear all of the defender’s conspiracy theories and his jailhouse claim that Arriola was part of the plot against him, they very likely would have questioned the defendant’s motives for the shooting.

Prosecutors were allowed, however, to present evidence of Cummings’ strange behavior in the hours after the shooting. He didn’t call 9-1-1 right away. Instead, he washed parts of his body, changed out of the clothes he wore at the time of the shooting, and rinsed them with water. Then he traveled to a location four miles away and engaged in a casual conversation with a motorcyclist who had stopped at a scenic outlook. Eventually, Cummings revealed that he had been in a self-defense shooting and he asked the man to call the authorities. Then he asked the man to come to the property so he can serve as a witness. Prosecutors accused Cummings of destroying evidence by washing and rinsing his clothes, and they suggested the long delay between the shooting and his reporting the shooting to authorities demonstrated a lack of remorse. They even suggested that he staged the scene to look like self-defense and tried to find a witness to be part of the ruse. Cummings’ post-incident actions, as presented by the prosecutors, constituted “consciousness of guilt evidence” — a legal theory inferring that a defendant who acts guilty is guilty. 

We’ve seen consciousness of guilt evidence in other high-profile self-defense cases. Gyrell Lee shot an attacker who had just killed his cousin and who was turning the gun on him. On the surface, it seemed like a clear-cut case of self-defense, but Lee ran, hid his gun, and failed to report the shooting. It made him look guilty. When police picked him up the next day, they initially suspected him of the murder of his own cousin, in addition to the murder of the shooter. In another case, Michael Dunn shot Jordan Davis in a gas station parking lot after an argument over loud music. Dunn fled the scene, failed to report the shooting, and he drove to his home several hours away where homicide detectives finally caught up with him. Considering Dunn’s suspicious behavior after the shooting, detectives had a hard time believing his self-defense claims. Lee and Dunn were both convicted.

Cummings was not convicted, in part, because his testimony offered reasonable explanations for his apparently strange behavior in the hours after the shooting. Cummings didn’t have cell phone reception at Arriola’s remote desert property, and there was no landline. He’d had to leave the property to call 9-1-1, and the closest place to get a signal was at the scenic outlook about four miles away. Cummings also said Arriola sprayed him with a “chemical agent,” the Mace, and he testified that his eyes and skin were burning. He rinsed his clothes to get rid of the chemical, and he washed his arms and face to stop the chemical burning. He even claimed he had to use “high-altitude breathing exercises” that he learned during his extreme skiing days to gain control of his breath after inhaling the chemical spray. When the effects of the Mace abated after about 45 minutes, Cummings said he turned his attention to reporting the shooting.

Moreover, Cummings testified that he felt confident that Arriola died almost instantly. Don West, criminal defense attorney and National Trial Counsel for CCW Safe, says that if it was clear that the attacker was dead and couldn’t benefit from medical assistance, some of the urgency for Cummings to call 9-1-1 was removed. A defender will always want to report a shooting as soon as it is safe and practical to do so, but considering the remote location with no cellphone signal, and in light of Cummings testimony that he was recovering from a Mace attack, it’s likely that the delay didn’t seem all that unreasonable to the jury.

Cummings also testified that he took time to talk to the motorcyclist he encountered because he didn’t know if he was a local and perhaps a friend of Arriola’s. He needed to establish some trust before he confessed to a homicide and asked a complete stranger for help. Ultimately, Cummings was able to call authorities himself, but the motorcyclist had better reception and made the phone call first. Don West says it is often appropriate to ask another person to report a self-defense shooting on your behalf.  

In closing arguments, Cummings’ lawyer told jurors that all the things her client did after the shooting were the actions of an innocent man. Given the extraordinary circumstances of the shooting and the remote desert location, the lawyer argued that Cummings’ actions were reasonable. Call it “consciousness of innocence” evidence.  Since the prosecutors failed to present credible evidence to dispute the defendant’s testimony — thanks in part to an incomplete police investigation — the jury was obliged to agree.

Despite the defender’s very strange behavior before and after the shooting, a jury found Dean Cummings “not guilty” of murder. However, if Cummings had hired a less effective lawyer, or if the prosecutors had argued a better case, Cummings could have been convicted. Considering the bizarre circumstances, an acquittal was far from certain. As it stands, Cummings spent nearly two and a half years in custody for a homicide that was ultimately found to be justified. Had Cummings behaved differently before and after the shooting, it’s possible that authorities would have been more inclined to believe his self-defense claim, and it’s possible he might not have faced charges — saving himself the expensive high-stakes gamble of placing his fate in the hands of a jury.

The lesson for concealed carriers is that what you say and do before and after a shooting can have a huge impact on your self-defense claim. If your actions are reasonable and your statements are measured (and hopefully informed by the advice of an attorney), you could avoid charges altogether. Should you ultimately face a jury, your fate could rest on your attorney’s ability to convince a jury that your actions before and after the shooting were reasonable. As a concealed carrier, if you comport yourself responsibly, you might make your lawyer’s job much easier if you are ever charged in a self-defense shooting.