Trial starts in lawsuit on fatal Arkansas police shooting; gun fired by accident, attorneys for ex-officer say

In a split second on the afternoon of Sept. 8, 2012, as an uneventful shift began winding down, a rookie Alexander police officer's effort to handcuff a 30-year-old man turned deadly.

One second, Carleton Wallace was bent over the hood of a black Dodge Durango patrol vehicle as officer Nancy Cummings stood behind him, preparing to handcuff him. The next, he had broken free, she had stepped back, and her .40-caliber service weapon had discharged, striking him in the back.

Wallace staggered and fell to the side of the road, where a liter and a half of blood quickly filled his chest cavity and he died. The state Crime Laboratory would later determine, on the basis the 2 inches of stippling surrounding the wound in the middle of his back, that he had been shot from 5 to 6 inches away.

This week, a federal jury will be asked to decide whether Cummings intentionally used excessive force, violating Wallace's constitutional rights, and if so, whether she must pay compensatory or punitive damages to his mother, Jacquelyn Wallace, who filed a wrongful-death suit in 2014. Attorneys for the former officer say the shooting was an accident and she shouldn't be held liable.

The city of Alexander and its former police chief, Horace Walters, were dropped as defendants on Oct. 5, 2015, after U.S. District Judge Billy Roy Wilson threw out claims of inadequate training against them, saying Wallace hadn't shown that they were deliberately indifferent to the rights of citizens. But Wilson refused to drop Cummings from the suit, saying a jury must decide the factual dispute of whether the shooting was intentional or accidental.

The case was delayed while Cummings appealed the ruling to the 8th U.S. Circuit Court of Appeals in St. Louis, which a year ago affirmed it. Before the lawsuit was filed, a Saline County jury acquitted Cummings of manslaughter, after deliberating for more than seven hours.

Attorneys John Wilkerson and Keith Wren have argued that a toxicology report from the Crime Lab showing that Wallace had methamphetamine, benzodiazepines and cannabinoids in his system at the time of his death supports Cummings' belief that he was "under the influence" when she drove up behind him as he walked down the middle of Brookwood Road, and, seeing a gun tucked into the back of his pants, began questioning him.

But Wilson said Monday in a hearing outside the presence of jurors that the mention of amphetamines could prejudice the jury against Carleton Wallace, so the report won't be admitted. He said he will allow Cummings, however, to testify that she later saw a toxicology report that supported her belief.

In the hearing outside jurors' presence, associate medical examiner Dr. Frank Peretti, who performed Wallace's autopsy, said the 6-foot-3-inch, 170-pound man had such a high level of methamphetamines in his system that, had he not suffered a gunshot wound or other obvious injury, Peretti would have assumed that he had died of methamphetamine intoxication. Peretti also testified that methamphetamine makes some people belligerent and combative, while it makes others focused, and that its effect on a person's functionality depends on the level of tolerance the person had built up to the drug.

Attorneys for Jacquelyn Wallace -- Jimmy Morris and Reggie Koch, both of Little Rock -- indicated that Carleton Wallace had a high level of tolerance for methamphetamines.

Both sides agree that after Cummings drove up -- with her daughter, Angel Johnson, in the passenger seat on an approved ride-along -- Carleton Wallace responded to Cummings' demands to get his hands out of his pockets and drop his weapon by throwing the gun into some woods.

Wilkerson told jurors that as Wallace removed the loaded gun from the back of his pants, it was briefly aimed at Cummings, prompting her to draw her gun.

He said Wallace refused the officer's command to get on the ground, so she ordered him to put his hands on the hood of the Durango, which he did.

Wilkerson said Cummings then tucked her gun in close to her body, planning to holster it while she handcuffed him, but as she tried to grab him from behind with her free hand, he suddenly spun toward her, knocking her off balance.

Wilkerson speculated that an "involuntary muscle contraction" caused the gun to discharge. He disputed the plaintiff's contention that Wallace was trying to run away when he was intentionally shot in the back.

The plaintiff's attorneys read into the record the previous sworn testimony of two boys, who were ages 8 and 10 at the time of the shooting but who couldn't be found to testify in this week's trial.

Both described Cummings firing the gun directly at Wallace after he jerked away from her, but Wilkerson said the boys were 155 feet away at the time and couldn't have seen all they claimed to see. He also pointed out discrepancies in various statements they gave to different investigators.

Cummings' daughter testified that the gun was fired in the split second that she happened to look down at her cellphone, which had just dinged.

Before she glanced down, Johnson testified, Wallace was facing her, and her mother was behind him. Johnson said she couldn't see her mother's gun, but the woman appeared to have Wallace by the arm. When she looked up, they were in different positions and the gun had fired, but "they were still connected."

"My mom looked confused," she recalled. "She looked like a ghost, and told me to call 911."

While the plaintiff contends that the women did nothing to try to save Wallace's life, Peretti testified that "with an injury like this, he would have to be brought to a Level One trauma center" to survive and had only minutes to live at best.

The trial resumes at 9 a.m. today in Wilson's Little Rock courtroom.

Metro on 12/06/2017

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