LUFKIN, TX (KTRE) - By Holley Nees - email
LUFKIN, TX (KTRE) – A woman took the stand Wednesday and claimed she overheard two witnesses discussing their testimony in a New Waverly man's murder trial.
Witnesses are instructed not to discuss court testimony pertaining to the case on trial.
Timothy Malone, 34, pleaded not guilty to killing Terry William Adams, 47, of Hudson, and shooting Joel Thomas Gresham Jr., 41, of Hudson in the leg at a May 2010 graduation party gone wrong.
Malone is being tried for one count of murder and one count of aggravated assault with a deadly weapon.
In a past bond reduction hearing, Malone admitted to firing the shots that killed Adams and injured Gresham, but said it was in self-defense. The defense maintains that story saying Malone felt threatened at the May gathering.
This case is the first murder case for Hudson Police, since the force was created about 10 years ago.
Testimony continued Wednesday morning with Defense Attorney Bryan Cantrell calling his paralegal, Shannon Casey, to the stand to testify about a conversation she claims she overheard between Gresham and his live-in girlfriend Crystal Rita Tuesday afternoon.
Casey testified she heard the two murder trial witnesses discussing their testimony regarding a MySpace issue.
Casey said she was in the car, getting ready to leave the Angelina County Courthouse when she saw the couple.
"As I went to shut my car door, I noticed they were talking," she said.
Casey said she knew, as witnesses in the trial, they were not supposed to be talking. Casey said she heard them saying something about a MySpace thing might come up.
The paralegal said Rita noticed her.
Angelina County First Assistant District Attorney Art Bauereiss questioned her about how she was parked in front of the courthouse.
"They were at the backdoor of the minivan," Casey testified.
Bauereiss questioned her about what specifically she overheard. "Something was going to show in MySpace," she responded.
The prosecution asked Casey if she was the same lady that took video of potential jurors during jury selection. Casey clarified she was taking pictures.
Cantrell clarified the jury selection incident had nothing to do with what she was testifying to have overheard.
Cantrell told Angelina County District Judge Paul White he was "deeply concerned" regarding the two witnesses' alleged actions because it violates the court's order. Cantrell said they didn't know the extent that Gresham and Rita violated the order, but he knows that they had done so.
"She's obviously sharing her testimony with another witness," said Cantrell.
The defense suggested the witnesses' actions were contempt for both parties.
Malone's attorney said they were attempting to match one another's testimony and the jury should be instructed that the witnesses had violated the rule.
"I think that both witnesses or at least one should be sequestered for the remainder of this trial," said Cantrell.
Cantrell went on to request the Judge to strike the testimony of both witnesses.
Gresham was then called to the stand to explain his alleged actions. Gresham said he was comforting Rita in the parking lot and denied having any conversation with his long-time girlfriend about MySpace.
"I went out there to get her water and talk to her about how she was doing," Gresham testified.
White asked Gresham if he and his girlfriend had talked about anything regarding the trial since they live together. Gresham said they had not.
Rita was called to the stand after Gresham and both attorneys questioned her about her conduct outside the courtroom.
"Did you have a conversation with Mr. Gresham at the minivan yesterday," Cantrell asked.
Rita denied talking with Gresham about the trial.
"Yes I saw her [Casey] sitting in her vehicle," she said.
Rita said she noticed Casey's window was down and she was texting.
"I'm a little curious why Ms. Casey didn't hasten back in here and inform you and me immediately," White said.
White denied Cantrell's request for instruction to the jury and to strike the testimony, but said he would impose some sequestration guidelines.
Casey clarified she was on the other line with courts in other counties to take care of some of Cantrell's business and that's why she didn't come in and inform the court, but she did send a text message to Cantrell and his law partner. Cantrell said he and his law partner didn't see the text from Casey until later because their phones were on silent during the trial. He said by the time they received the message, White had left the bench.
White said he would try to arrange for Rita and Gresham to live apart for the remainder of the trial and they will be in separate rooms when they are at the courthouse. He ordered the two to have no communication unless there was an emergency regarding their children.
White also denied the defense's request for a mistrial.
Once the jury returned to the courtroom Wednesday morning, Gresham testified he was shot in the leg and taken the hospital that May 2010 night.
"Like someone took an aluminum baseball bat and hit me as hard as they could," Gresham said of the pain he felt when Malone allegedly fired a round into his leg.
Gresham walked the jury through a layout of his house describing the location where he was shot. He denied ever using force against the defendant, but said he did approach Malone when he saw he had a gun.
Gresham denied ever trying to steal Malone's gun and said he never saw Adams trying to get the defendant's gun.
"That's where he was laying and trying to gasp for air," Gresham remembered of Adams that night.
Gresham was able to identify pictures of the house the night of the party.
"I was buzzed," Gresham said. He said he was trying to keep everybody under control.
When Malone's attorney questioned Gresham, he said he didn't know of any altercation between Adams and Malone.
"I couldn't see what was wrong, all I know is something loud happened," Gresham testified. "No he [Adams] was not being aggressive, he was asking him to put the gun away."
Cantrell asked Gresham about a KTRE interview he did with Reporter Holley Nees back in May. Cantrell asked him if he recalled telling KTRE, "He [Adams] was up in his face trying to get the gun away from him."
"He [Malone] was pointing a gun at people," Gresham said.
When asked if Malone was threatening him, Gresham responded, "No, he was trying to find out who was messing with his motorcycle."
Cantrell pointed out in a police statement Gresham stated he was yelling at Rita to get up.
"Did you talk to [Rita] about her testimony," Cantrell asked. Gresham answered, "No."
Cantrell said two days after the incident you talked to a KTRE reporter and said, "that your best friend was in this guys face."
Gresham said, "Yes trying to get the gun."
Gresham testified nobody punched Malone in the eye or pushed him out of the doorway when he was trying to get his motorcycle keys.
The defense pointed out Gresham told his friends they needed to quit picking on Malone about taking his bike.
Cantrell then had Gresham walk the jury through his exact location in the house when he said Malone fired the rounds.
"Both times he ran with the police there, I don't know why," Gresham remembered.
The witness said he never touched Malone other than to shake his hand when he arrived at the party and he touched his arm trying to guide him to the bedroom to rest later in the night.
"The kidding was so bad, you made those guys knock it off," said Cantrell.
Gresham clarified Malone was taking the joking seriously, but the guys were kidding with him.
"My best friend, he was up in his face trying to get the gun away from him," Cantrell said reading a quote Gresham gave to KTRE in an on-camera interview.
Gresham said he did make that statement.
"He [Adams] was trying to calm him down, trying to find out if the gun was loaded," Gresham clarified.
The witness said Adams was peaceful. Cantrell asked Gresham if Adams used profanity. He said he never heard Adams curse at Malone.
"If he was using that kind of language, aggressive language, that's not peaceful," admitted Gresham.
A Department of Public Safety Crime Lab Forensic Scientist took the stand Wednesday morning to discuss bullets he inspected from the crime scene.
"State's exhibit five and four…were each fired from state's exhibit 48," John Bene testified.
Bene was questioned at length about bullets recovered at the crime scene He testified he was not asked in this case to make a measurement from the gun muzzle to the point of impact.
Kenneth Alsbrooks testified he attended the May graduation party. The Polk County man said he had a loud truck
The four-year Army veteran said he talked to Adams because Adams had served in the Navy.
Alsbrooks identified Malone and said he was at the party.
"[Malone] had a drink in his hand and he was talking to everybody else," Alsbrooks said.
The witness said Malone had walked behind the house and then returned asking for Benadryl.
He said he did not see anyone touch Malone's motorcycle that night.
Alsbrooks said Malone had asked for a ride to his house in New Waverly.
"I said yeah, I'll give you a ride back over there if you put the motorcycle in the back of my truck," he said he was joking about Malone handing over his bike title because the drive back to New Waverly was a really long drive.
Alsbrooks said he's never had a motorcycle nor did he ever want one.
He said Malone started saying he didn't trust him, but he said he thought they had pretty much "squashed that little incident." Alsbrooks said later they all took shots of liquor.
"I know I had quite a few beers," he said. Alsbrooks said he had planned to sleep in his truck or on the ground if he passed out, he said he wasn't going to go anywhere.
The defense claimed earlier in the trial Alsbrook and another man revved their trucks, making Malone believe they were stealing his bike.
Alsbrooks said he and his friend Jordan just revved their trucks to "compare and contrast."
He said he was not at all trying to mess with Malone. He said at the time he was not thinking about the motorcycle anymore. The witness said they revved their pipes for about 30 seconds and said it didn't sound at all like a motorcycle.
"From there that's when I started hearing people hollering, hey Terry has been shot and stuff," he recalled.