LUFKIN, TX (KTRE) - By Holley Nees - email
LUFKIN, TX (KTRE) – An Angelina County jury was unable to reach a verdict on a count of murder for a New Waverly man. They found him guilty of a separate count of aggravated assault of a Hudson man just after midnight Saturday.
Timothy Malone, 34, shot and killed Terry William Adams, 47, of Hudson and injured Joel Thomas Gresham, 41, of Hudson. Malone claimed shooting both in self-defense.
The jury deliberated 10-and-a-half hours on the verdict.
"There's no resolution to the murder charges yet but I'm very impressed with Angelina County and I'm very impressed with the court and the prosecution and the jury that's worked as hard as they had," said Malone's attorney Bryan Cantrell.
"It doesn't change anything," said Mary Adams, mother of Terry Adams. "Our son is still dead. Mr. Malone is able to visit his family. We have to go to the cemetery to visit our son," she said.
The same jury will come back to the Angelina County Courthouse on Monday to determine a punishment on the aggravated assault charge.
An Angelina County deputy reserve testified Friday that a New Waverly man said he did not remember hurting anyone the night he killed a Hudson man and shot another.
Ashley Denby told Angelina County District Judge Paul White she transported Timothy Malone, 34, from the Angelina County Jail to a Lufkin hospital for treatment.
Malone pleaded not guilty to killing Adams and shooting Gresham in the leg at a graduation party gone wrong.
Malone was being tried for one count of murder and one count of aggravated assault with a deadly weapon.
Earlier in the trial, 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.
In a hearing outside the presence of the jury, witnesses explained to White how they heard Malone state he didn't recall hurting anyone. White held the separate hearing to decide if the testimony would be admissible to jurors.
"I was asked to take him to the hospital because of him having diabetes," Denby recalled.
She said she sat with him at the hospital where he was "very blank, he didn't say anything at all whatsoever until he was marandarized."
She said about 30 minutes later, "He got upset and was crying, and he said he also didn't remember hurting anyone."
Denby testified Malone showed her a bracelet on his wrist that his little girl made for him and said if he was charged with these crimes, his little girl wouldn't have a daddy anymore.
When Malone's defense attorney, Bryan Cantrell, questioned her further about hearing the statement, Denby said, "I remember that word-for-word because it stuck with me."
She said she did not ask him any questions. Denby said Malone was sitting there and no one was making him talk.
The state called Kelly Russell, an Angelina County reserve, to the stand to discuss the night he responded to a call on Scoggins Lane in Hudson. He explained how Malone was placed in the car he was driving and he transported him to the jail.
"The gentleman stated several times to me, he asked what had happened and why he was in handcuffs," he remembered.
He said he told Malone he would have to speak with a Hudson Police officer.
Russell told Cantrell there was a recording of the incident, but the disc had been misplaced. The reserve officer clarified he does not speak to anyone in custody because it is not his function.
An Angelina County jailer, Jose Mantilla, recounted seeing Malone shortly after the incident.
"He [Malone] had stated he didn't remember anything that night," Mantilla said.
When Cantrell asked Mantilla why they were questioning Malone, Mantilla responded, "We didn't have to ask him the question, but we were just trying to figure out what was going on."
Cantrell asked him if he recorded what he says he heard or got a signed statement from Malone and Mantilla said he had not.
Jesus Guerrero, a staff sergeant with the Angelina County Jail, said he booked Malone in the jail the night of the incident.
"At one point during the book-in process he stated that he didn't remember anything that happened," said Guerrero.
Guerrero said he overheard Malone calling his mom and "stating that he was in jail."
Cantrell asked him if it was recorded and Guerrero said it should have been because there are recording devices in the booking area.
White denied a request to suppress Denby as a witness. The attorneys discussed the testimony from the witnesses with White.
"This is the defendant asking questions himself," said White.
Malone was back on the stand Friday morning testifying about his ride to the jail. Angelina County First Assistant District Attorney Art Bauereiss asked Malone if he talked to the officer transporting him to jail after he was taken into custody at the Hudson crime scene. Malone said he had asked what had happened.
The state asked Malone if he would agree that such a statement, "…indicates a lack of recollection about events that just occurred." Malone replied, "Yes."
Malone also admitted to making comments to Denby.
"I remember asking her if I had hurt somebody," he said.
Malone confirmed Denby's testimony that he had talked about a bracelet from his little girl at the hospital.
"Something to the effect that because I understand what the charge of murder is and what it carries, that my child is going to grow up without a father," he said.
Bauereiss showed Malone a photograph of himself and asked him if he knew where the image came from.
"I believe this is from the media," said Malone.
He testified there was a cut on his eyelid in the picture.
The state asked him how he feels about his motorcycle.
"Isn't 35 a little old to be sensitive about teasing?" asked Bauereiss. "Yes," responded Malone.
Malone claims he felt threatened the night of the incident and believed party guests were going to steal his bike. Witnesses for the prosecution testified they were joking.
Cantrell began questioning his client about how it made him feel to shoot someone.
"There's an extreme amount of responsibility," said Malone. "I wanted to believe it didn't have to happen."
Malone said he did everything in his power to extract it from his memory.
"I don't want to live with it for the rest of my life, but I'm going to," he said. The defendant said as much as he tries to forget the incident and act as if it didn't happen he can't because he sees it when he sleeps.
"It's a hard pill to swallow that I had to do that, I wish it didn't happen that way," he said. "I'm ashamed."
Bauereiss started questioning Malone about the night he had the gun in his hand.
"Can you see how Mr. Gresham would feel provoked?" asked Bauereiss. "It didn't have to happen, you realize that."
"Yes sir," said Malone.
Bauereiss pointed out Malone could've called 911 if he thought his bike was going to be stolen.
"So sir, it was not reasonable and this was not immediately necessary was it?" Bauereiss asked. Cantrell objected before his client could answer.
"You didn't reasonably believe you had to shoot anybody," the prosecution stated.
"I did have to shoot him," replied Malone.
Cantrell pointed out his client never intended to provoke anybody.
"All you wanted to do was make sure your motorcycle was safe," Cantrell said.
Hudson Police Lt. Jimmy Casper was recalled to testify about a blue-light test he conducted on Malone's clothes that picks up semen and blood on clothing.
Cantrell had Casper explain why in officer-involved shootings, officers normally have to wait three days before giving a statement.
"Taking a man's life has an effect on you forever," Cantrell said. Casper said for most people it does.
Bauereiss pointed out that if someone was working on their motorcycle, sweat from their hands could show up on the blue-light test if they wiped it on their clothing.
Around 10:20 a.m., the defense rested.
The state called Denby to the stand again, this time in the presence of the jury.
She told jurors she transported Malone to the hospital and stayed with him while he was waiting for medical treatment.
"I do not recall seeing any injuries whatsoever from that night," Denby recalled of seeing Malone. "If I saw something swelling on someone's face I'm sure I would remember."
Jose Mantilla took the stand again, this time in the presence of jurors.
"He had some scratches on both his arms, that is about it," said Mantilla. He said Malone had no markings that he could see on his face when he arrived at the jail. He said the jail makes a record of any injuries an inmate comes in the jail with.
Guerrero testified in front of jurors he booked Malone in the jail and did not see any injuries on the defendant.
Carol Curtis took the stand and said he was a friend of Adams for several years.
"He was always peaceful, happy," said Curtis.
Stephanie Getro's ex-husband, Christopher Scott Getro, testified he understood Adams was his ex-wife's new husband. He said he got along well with Adams.
At 10:41 a.m., both sides rested and closed.
White charged the jury around noon, reminding them Malone is charged with murder and aggravated assault.
The jury charge explains the use of deadly force is justified if a person believes the force is immediately necessary to protect himself, it is not justified from a verbal provocation alone.
In closing arguments, Bauereiss told jurors "…this case is about evidence."
The state then told jurors there is no dispute, "…that the defendant Timothy Malone, shot to death Terry Adams."
"The question is are you going to let him get up and walk out of the courtroom a free man because he said 'I'm defending myself,'" said Bauereiss.
The prosecution explained the defense wants the jury to believe the two victims tried to rob him of his gun.
Bauereiss said there is not credible evidence that Adams and Gresham tried to steal Malone's gun. He pointed out Malone provoked the trouble.
The state said the use of force and the use of deadly force was not necessary. Bauereiss went further saying jurors will reject this argument and find him guilty.
In his closing arguments, Cantrell referred back to Gresham's May on-camera interview with KTRE. He said a television camera shows up to Gresham's house where Gresham says Adams was in Malone's face.
"Ask yourself this, if he really was that calm all night, my client really was that calm…never raised his weapon, what changed?" asked Cantrell.
The defense told jurors they have, "Really weighing on you the future of another human being."
"There are a lot of lessons in life, there's no one that wants to live with the fact that they've taken a human being's life," said Cantrell. "Everything that wears on you when a bad thing happens…we don't want that as human beings, he didn't either."
He reminded jurors his client is not on trial for drinking or even carrying a weapon.
"You've got a weapon and a guy is trying to take it from you and the moment you feel it slipping out of your hands, what do you do, because you do not know what he will do," Cantrell said. "Why are you grabbing a man's pistol when he hadn't pointed it at you, he hadn't threatened you."
"You get to fighting over a gun, what happens? Somebody is going to get hurt, somebody is going to get killed," said Cantrell.
Cantrell painted a picture of Malone being scared to death the night of the incident.
"All those rounds happened in a matter of seconds, as fast as he could pull the trigger," said Cantrell. "I am not pretending at all to tell you guys that there wasn't a lot of stupid stuff going on that night."
He said he faults the state for not finding all of the bullets.
"I'm asking you to find my client not guilty on both counts," he said. "I hate that somebody died, I really do."
In his final arguments, the state pointed out months after the incident, Malone told his girlfriend during a jail visit, "I got arrested, I didn't remember anything, it's all coming back in little flashes."
Bauereiss encouraged jurors to "look at the physical evidence and ask yourself what's credible and what's not…There is no way that this is self-defense."
The prosecuting attorney said if he had gotten drunk and shot two people, killing one, "I'd try to make that a story too, I'd try to come up with something…but that was contrived and you know it."
Bauereiss showed jurors again the rounds recovered from the crime scene.
"Who brings that kind of ammunition to a party where people are having fun," he asked. "Somebody ready to kill that's who."
The state pointed out witnesses that testified to Adams' peaceful character.
"Joel and Terry weren't the trouble makers. [Malone] was," Bauereiss said. "They didn't bring the gun, he did."
Bauereiss concluded, telling jurors Malone is guilty as charged with murder and aggravated assault.
The jury began deliberating at 1:30 p.m.
If Malone is found guilty of either offense, a jury will decide his punishment.
Around 11:35 p.m. the jury was brought back in the courtroom after they requested to hear a portion of Malone's testimony where he claimed Adams and Gresham attacked him.
"He said I'll kill you," she read. "He was going to slap me, he was going to punch me, something…That's when Terry said you're dead and he came at me…I turned and I fired…He kept coming, so I fired again and then he dropped."
The jury retired to the jury room to continue deliberations.