commentary by Patrick H. Moore

Traci Cunningham, of Aurora, Colo. has been formally charged with murder in the death of her adoptive mother, Penelope Cunningham, in an Eagle County shooting. There is little doubt that Traci pulled the trigger. However, in an odd twist, Traci remembers little about the shooting except that she stumbled upon a gun (the victim’s) while searching for beef jerky after a nasty spat she has with her mother while the two woman were on a photo-and-hiking excursion on Gypsum Creek Road near the town of Gypsum in rural Eagle County. Thus, her “beef jerky defense”, should it somehow carry the day, could enter the annals as a novel way to fight a murder rap based on a complete lack of intent, or mens rea.

Mens rea, at least in theory, is the cornerstone element required for a first-degree murder conviction.

Randy Wyrick of the Vail Daily does a nice job of setting the stage in his post dated Dec 10, 2013:

traci4An Aurora woman faces murder charges after she allegedly drove her adoptive mother to a remote part of Eagle County and shot her to death.

Traci Cunningham, 28, sat quietly and still in court Tuesday as the charges were read by District Court Judge Russell Granger— two first-degree murder charges, tampering with evidence and two counts of crimes of violence.

“Do you understand what those charges are?” Granger asked.

“I understand,” she answered quietly, shifting in her chair.

If convicted, Traci faces a minimum mandatory life sentence without the possibility of parole. The District Attorney, Bruce Brown, has not ruled out the possibility of seeking the death penalty.

traci3The victim, Penelope Cunningham, was 60 at the time of her death.  She is a former nun and was an elementary school social studies teacher. Penelope adopted Traci when she was 14. At Traci’s first court appearance, D.A. Brown informed Judge Granger that the evidence showed that Traci had driven her mother to a remote area and shot her in the back. According to Brown, Traci then proceeded to hide the firearm and ammunition. Not only that, when she was arrested, she possessed several of her mother’s credit cards.

Traci Cunningham is stuck in the Eagle County jail on $1 million bond.

So no one can deny that 28-year-old Traci Cunningham is in very serious trouble.

*     *     *     *     *

Based on what is being reported, it appears that Traci has presented her side of the story with at least a modicum of skill or creativity which has arguably left the door open for a modified ‘beef jerky” defense. Here is what Tracy told the authorities, according to the police affidavit:

Traci and her adoptive mother were on their way to Grand Junction to hike and take photographs.

traci5On Nov. 28, while driving up Gypsum Creek Road, they started arguing. The argument became heated and 15.2 miles up the road, Traci Cunningham allegedly stopped the car. In response, Penelope Cunningham got out of the car and started walking up the road.

According to the affidavit, Traci Cunningham told police she got out of the car and went into the back of it to look for beef jerky. Instead of the chewy treat, however, she “encountered” a Springfield XDM 9-millimeter handgun that she said belonged to her adoptive mother. Traci then picked up the handgun, walked up the road and then “everything went black.”

When she regained awareness, she saw her mother on the ground with the gun in her (Traci’s) left hand. When she rolled her mother over and checked for a pulse on her neck, there was nothing. According to the affidavit, there was no cell phone service either.

Traci then ran back to the car and drove home (to Aurora), “pretending it was a bad dream.”

traci9The shooting occurred sometime after 3:30 p.m. on Nov. 28 — five bullets to various parts of Penelope Cunningham’s body.

The body was discovered in the road the following morning at about 8:00 when a local man drove his truck up Gypsum Creek Road to help recover his mother’s stranded Saab, which had broken down the previous afternoon.

The following day, when police searched the Aurora home Traci and Penelope Cunningham shared, they found rounds of 9-millimeter ammunition and an empty pistol case.

Traci was located when Vail Communications “pinged” her cell phone at five-minute intervals, beginning at noon Nov. 30. It took three hours, but they found her at a Lakewood bagel shop, where she was picked up and taken into custody.

*     *     *     *     *

First, the obvious:

traci10A clear-cut case of death by firearm simply because (as so often seems to be the case) an unnecessary gun was handy, just waiting to go off. It’s like the famous Chekhov short story — if the gun is on the mantle piece, you can be certain that it will discharge before the story is over. Had the gun not been there, Penelope Cunningham would almost certainly still be alive.




Then, the not so obvious:

What about Traci Cunningham’s story? The “beef jerky” element may not be convincing (it may be more of a catchy handle than anything else), but in the hands of a good defense attorney, the defendant’s report of blacking out raises all sorts of interesting questions, and with skillful presentation, could muddy the waters sufficiently to negate the possibility of a first-degree-murder conviction.

For example:

Why did you bring the gun with you after you left the car?

“I wanted to give it to my mother.”

What do you remember just before you blacked out?

“I wanted to make up with my mother. I love her and I was upset that we were fighting.”

traci2The defense must raise serious doubt as to whether Traci had any intention (mens rea) of shooting her mother before she blacked out. With a first-degree-murder conviction off the table, the state must prove “malice aforethought” as a condition immediately before Traci pulled the trigger in order to prove second-degree-murder. Traci must have experienced a moment of pure malevolence in which she decided to carry out the foul deed.

If Traci was in “balcked-out”, however, when she pulled the trigger, it is unlikely that could have experienced malice aforethought, that moment of pure blind rage, at the same time.

If the state can’t prove second degree murder, it must resort to the great and confusing manslaughter family which, of course, could still bring a lengthy sentence, should a conviction be obtained.

This is an interesting case and if I were Traci Cunningham’s lawyer, I would consider the above approach. Traci Cunningham is in deep kaka, but there may be some chance of whittling down her sentence if a jury can be convinced that she lacked the intent necessary for a first-degree-murder conviction.




8 Responses to Adopted Colorado Woman Shoots Mother in Blackout: Expected to Invoke Novel ‘Beef Jerky’ Defense

  1. Rick says:

    Patrick – I don’t share your enthusiasm for Traci Cunningham’s chances of escaping a murder conviction; in my opinion, she will be convicted of either first or second degree murder. The prosecution is required to prove that the defendant acted with premeditation in order to secure a first-degree murder conviction, whereas second degree murder is: (1) an intentional killing that is not premeditated or planned, nor committed in a reasonable “heat of passion,” or (2) a killing caused by dangerous conduct and the offender’s obvious lack of concern for human life (i.e., a murder reflecting a “malignant heart”). While a conviction for first-degree murder will almost always require “malice aforethought” only one type of second degree murder requires that mental state. I’ve attached a couple of Findlaw articles that discuss the elements of first and second degree murder.

    • PatrickHMoore says:

      THX, Rick. I know her odds are slim but I don’t see how than can prove “a malignant heart” if Traci was in a black-out state.

      And I was being somewhat tongue-in-cheek just for the heck of it. In truth, I think poor Traci is damned near as doomed as her mother was.

  2. Susan Stec says:

    Traci admitting the argument in such odd detail has me thinking she is either a very clever, very ignorant, or well coached. But it does dish out a bit of reasonable doubt.

    • PatrickHMoore says:

      Nicely stated, Susan. I’m glad to see someone agrees that she just could have a defense here. In any event, it’s a rather novel defense.

  3. Lynn says:

    I know her. It was 1st degree beyond a shadow of a doubt in my mind. I called investigators the day after I found out. They have never responded.

  4. MaK says:

    I knew Penny and her daughter, Traci, and they loved each other very much. I know Traci had some mental health problems and some problems with pain management previously. Please do not judge this case without the facts.

  5. Pat says:

    I also know Traci as she was my foster daughter from age 6 to age 14. I also called and expressed my opinion but have never been contacted. This is a very smart young lady who has a history that is probably the worst I have ever had in my home. Although a lot of improvements were made, there were still many issues when Penny adopted her. In the aftermath, which I still find unbelievable,I believe quite possibly this is a child that should have never been placed for adoption. Unless you are familiar with RAD and sever mental illesses resulting from trauma, you are not prepared to evaluate this case. As recent as the summer prior to this horrific act, we had her watch our animals while on vacation. A situation arose in where she became upset with me as we were missing some of my kids stuff and I brought it to Penny’s attention. At that point, I knew a lot of the stuff I had seen over the years I had Traci, were not done. Neither was the denial or the anger. We felt very lucky that we were not victimized, especially my older children in the home. I am not judge or jury but I feel it would be a mistake to ever underestimate her actions and to never release her into public again. Since her time in jail, I thought it the Christian thing to do to offer support which she rejected and then recanted. Once again showing me instability. She also had told me she was a cult member, which explained some of the things found in the home.

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