Man serving 50 years for assault contests conviction, sentence

Seth Summers, who is serving a 50-year sentence for his role in a 2011 assault that left the 4-foot-tall victim blind in one eye, is contesting his conviction and sentence.

A jury in 2012 convicted Summers of first-degree assault and armed criminal action in connection with the Aug. 28, 2011, shooting of Joshua Abernathie. Judge William Syler gave Summers consecutive 25-year sentences on each charge.

Summers was charged as an accomplice to Jimmy Ray Bell, who was convicted of identical charges and received an identical sentence.

Summers took Bell and Abernathie to Neelys Landing, where Summers grabbed Abernathie's arm and crotch and Maced him just before Bell shot him above his left eye with Summers' .22-caliber rifle, according to testimony presented during the trial.

Nearly a year ago, Summers filed a motion claiming he received ineffective counsel and seeking to have his conviction and sentence vacated, set aside or corrected.

A case review on that motion is set for Monday before Circuit Judge Michael Gardner, who inherited Syler's docket after Syler retired Dec. 31.

It was not clear how Syler's retirement might affect the motion. Online court records show he presided over an evidentiary hearing in the case Dec. 9.

Public defender Karl Hinkebein, who is representing Summers on the motion, declined to comment on the case Thursday.

Although Syler is no longer circuit judge, he serves as a senior judge, a part-time position that allows him to hear cases anywhere in the state.

Also unclear was any motive in the assault on Abernathie, which Cape Girardeau County assistant prosecuting attorney Jack Koester called "a horrible and senseless act of violence" during the August 2012 trial.

In an amended motion filed June 16 in Cape Girardeau County Circuit Court, Hinkebein contends Summers received ineffective counsel during the trial, alleging:

• A defense lawyer failed to ensure jurors were given instructions that would have allowed them to convict Summers of the lesser charge of second-degree assault;
• Another defense lawyer repeatedly referred to Abernathie -- who testified he is 4 feet tall -- as "the midget," an offensive term that could have tainted the jury's opinion of Summers;
• Defense lawyers failed to call witnesses or use cellphone and cell-tower records to clarify the times, locations and contexts of several text messages prosecutors used to incriminate Summers; and
• Defense lawyers failed to mention one of the reasons a gun, plastic drop cloth, duct tape, bleach and other evidence taken from Summers' car should have been suppressed.

In the amended motion, Hinkebein suggests prosecutors took out of context some text messages that were sent long before the shooting and referred to unrelated events.

"Among the texts identified as important by the State included one that read, 'Keep feeding him beer. We need to do this soon,'" which Bell testified was sent more than a week before the shooting and referred to a man who had been drinking with Bell and Summers and with whom they planned to have a sexual encounter, Hinkebein wrote in the amended motion.

Had Summers' trial lawyers called them to the stand, that man and another witness could have given testimony that would have helped support the timing and context Bell and Summers provided in their testimonies, potentially changing the outcome of the case, Hinkebein wrote.

Summers appealed his conviction in September 2012, contending the trial court erred by denying his motion to suppress physical evidence taken from his car after the shooting; denying his motion for a directed verdict; and prohibiting him from cross-examining Abernathie about whether he believed the shooting was accidental.

On Dec. 31, 2013, Missouri's Eastern District Court of Appeals rejected those claims and upheld the conviction.

A month later, Summers filed the motion in Cape Girardeau County Circuit Court to vacate, set aside or correct his conviction and sentence.

epriddy@semissourian.com

388-3642

Pertinent address:

Neely's Landing, Cape Girardeau County, MO