Death row inmate Rickey Donnell Cummings is seeking a new trial and alleges his trio of attorneys did not afford him adequate counsel at his McLennan County trial in October 2012.
A 19th State District Court jury sentenced Cummings, now 25, to death for his role in the ambush-style shooting deaths of two men at the former Lakewood Villas Apartments in March 2011.
Retired State District Judge James Morgan, of Bosque County, is presiding over an application for writ of habeas corpus hearing filed on Cummings’ behalf by attorneys from the Office of Capital Writs, a state office that assists death row inmates with appeals.
The Texas Court of Criminal Appeals rejected Cummings’ direct appeal in December 2014, upholding his capital murder conviction and death sentence.
Cummings and Albert Leslie Love Jr., now 28, were sentenced to death for their roles in the shooting deaths of Tyus Sneed, 17, and Keenan Hubert, 20.
Hubert and Sneed suffered multiple gunshot wounds while sitting in a car at the East Waco apartment complex on Spring Street. Two other men who were in the car with them were wounded but managed to escape.
In testimony Monday at Cummings’ writ hearing, attorney Walter M. Reaves Jr., who defended Cummings with attorneys Russ Hunt and Michelle Tuegel, explained defense strategies under questioning from Cummings’ new attorney, Cathryn Crawford of the Office of Capital Writs.
Many of her questions centered around the defense attorneys’ decision to hire Michael O’Kelly, a defense expert who billed McLennan County $102,994 for his work but was never called as a witness at Cummings’ trial.
Reaves explained that he heard O’Kelly, who calls himself “Cell Tower Mike,” speak at a seminar and was impressed with his presentation. He said they spoke at the conference and Reaves, Hunt and Tuegel decided to hire him, hoping he could provide Cummings an alibi for the night of the murders by determining through cell tower triangulation that Cummings was not at the crime scene at the time of the murders.
O’Kelly was unable to do so, partly because they learned later that Cummings didn’t have his phone with him for much of that evening, Reaves said. Despite that, the attorneys learned that O’Kelly took it upon himself to assume a more active investigative role in the case that sent him beyond his level of expertise, Reaves said.
Hunt finally told him to stop after seeking several increases in what Judge Ralph Strother had agreed to pay for O’Kelly’s services.
Reaves said O’Kelly was interviewing witnesses and visited Cummings 14 times in jail.
“It became clear to us that he wasn’t following our direction, he was doing what he wanted to do and wasn’t going to have anything useful,” Reaves told Crawford.
After Strother reluctantly paid O’Kelly’s final bill, he told the Tribune-Herald that he felt like the “county has been shafted,” and ordered O’Kelly to produce his time logs to justify his lucrative payday.
Crawford also challenged the defense attorneys’ decision to hire a social scientist, who was prepared to testify about Cummings’ neighborhood and socioeconomic status when he grew up. However, she did not interview Cummings or any of his family members and was not allowed to testify after prosecutors challenged the relevance of her testimony.
“Did you consider hiring somebody who would incorporate the demographics aspect with information about the person whose life the jury was considering?” Crawford asked Reaves.
Reaves said he was surprised by Strother’s ruling to disallow her testimony.
Crawford also asked Reaves about his own billing in the capital murder case, that of investigator Ed McElyea and McElyea’s attempts to interview an important prosecution eyewitness.
The hearing is scheduled to last several days. At the conclusion, Morgan will make findings and forward them to the Texas Court of Criminal Appeals for its determination.