Neelys Landing shooting defendants back in court this week

The two men charged in a 2011 shooting that cost a Cape Girardeau man the use of his left eye are both expected to be back in a courtroom this week -- one to face a judge, the other a jury.

Judge William Syler is set to sentence Jimmy Ray Bell at 2 p.m. today, a month after a Cape Girardeau County jury convicted him of first-degree assault and armed criminal action. Prosecutors say Bell, 29, of Cape Girardeau, was the trigger man in the shooting of Joshua Abernathie during the early morning hours of Aug. 28 following a night of heavy drinking.

Syler on Wednesday will also preside over the two-day trial of Seth Summers, the second defendant who is charged as an accomplice in the shooting of Abernathie. Summers also faces first-degree assault and armed criminal action charges.

Cape Girardeau County assistant prosecutor Jack Koester is handling both cases. Koester said Friday that he was not certain what the state's recommendation will be in the Bell sentencing, but he added that the punishment ranges from 10 to 30 years in prison. He noted the assault charges for Bell and Summers fall under Missouri's dangerous-felony statutes, meaning guilty verdicts translate into serving 85 percent of the sentences. Armed criminal action carries a minimum three-year prison sentence with no upper limit, Koester said.

Koester convinced a Cape Girardeau County jury last month that Bell was the man who shot Abernathie in the face in a "senseless act of violence." Bell, Abernathie and Summers had been drinking and drove into rural parts of Cape Girardeau the night of the shooting. Between 2 and 3 a.m., the men stopped near Neely's Landing, where they got out of the vehicle and continued to drink.

Abernathie testified at trial that Summers grabbed him from behind and said, "We're doing this!" then sprayed him in the face with mace or bug spray. Abernathie saw a "flash," heard a "pow" and felt something strike him in the head, he said. Abernathie fled until Summers and Bell left, then found a farmhouse, where he pounded on the door and screamed until the homeowner answered the door and called 911.

Bell's defense attorney, Chris Davis, argued that the shooting was an accident and it was a case of "just three drunk boys with a .22 out in the woods in the middle of the night." Davis did not return a phone call Friday seeking comment.

Koester said in court that it was not an accident, a suggestion that is refuted by the fact that Bell continued to fire as Abernathie fled into the woods. Koester said that a plot to kill was preconceived and described the incident as a hunt with the "only accident" being Abernathie's escape.

Koester last week would not comment on Summers' trial. But Summers' defense attorney would.

Cape Girardeau lawyer Al Lowes said that -- unlike Bell -- Summers will take the stand and testify that he did not know that Bell was going to pull the gun or shoot Abernathie. Lowes said that Summers has no criminal record.

Character witnesses will be called to paint a picture of Summers as being "meek, mild mannered and nonviolent," Lowes said.

Said Lowes: "We're going to make the jury think awful long to consider if there's even a sliver of suspicion against my client. I hope they acquit the boy. I'm firmly convinced he didn't do this."

Lowes said that the jury should also seriously consider Abernathie's criminal history. Abernathie is currently serving a three-year sentence for stealing a cement truck after pleading guilty to tampering with a motor vehicle in May. In 2010, Abernathie pleaded guilty to second-degree burglary. Abernathie served 120 days of "shock incarceration" in the Department of Corrections and was sentenced to probation for a second-degree assault charge in Iron County.

"This little fella was a piece of work," Lowes said. "Meanwhile, my guy's as clean as a hound's tooth."

Abernathie is roughly 4 1/2 feet tall.

Lowes will also attempt to explain away some of Summers' behavior following the shooting. Testimony will suggest that Abernathie had taken bath salts the night of the shooting, which was why Summers sprayed Abernathie in the face -- out of fear, Lowes said. Summers admitted to his father that he had "done wrong," Lowes said, because his father is a Baptist minister. Summers could have been referring to the fact he was drinking alcohol or because he is gay, Lowes said, both of which are frowned upon by that particular faith. It was also testified to at Bell's trial that he and Summers were involved in a homosexual relationship at the time of the shooting.

Lowes, as Davis did in the Bell trial, also expects to try to raise doubt about the way the case was handled by police. Investigators decided immediately the shooting was not an accident, Lowes said. Abernathie was never questioned about any drug use or how much alcohol he had ingested that night, Lowes said.

"They never even considered it," Lowes said.

smoyers@semissourian.com

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