Timothy Marcus Mayberry v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 24 2020, 7:43 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Marcus Mayberry, November 24, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-158
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1810-MR-6
Pyle, Judge.
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Statement of the Case
[1] Timothy Marcus Mayberry (“Mayberry”) appeals, following a jury trial, his
conviction of murder1 and an enhancement for the use of a firearm in the
commission of a felony.2 Mayberry argues that the trial court abused its
discretion in admitting evidence. Concluding that the trial court did not abuse
its discretion, we affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion in admitting evidence.
Facts
[3] The facts most favorable to the verdict reveal that on September 20, 2018,
Avery Brown (“Brown”) and several friends were at the Bleachers Bar in
Mishawaka celebrating a birthday. Mayberry and a friend were also at the bar
socializing, eating, and playing pool.
[4] Shortly after midnight, Brown entered the men’s bathroom, which was a small
one-toilet, one-sink bathroom. Soon thereafter, Mayberry entered the
1
IND. CODE § 35-42-1-1.
2
I.C. § 35-50-2-11.
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bathroom. Brown and Mayberry had never met and had not interacted with
each other until this point. After several seconds, customers at the bar heard
three gunshots. The bathroom door opened, and Mayberry exited and moved
quickly towards the bar’s exit. Brown, who was crawling on the bathroom
floor, collapsed and said, “[h]e shot me. Help me. He shot me.” (Tr. Vol. 2 at
113). As Mayberry attempted to leave the bar, he was tackled by other bar
customers. However, Mayberry broke free and left the bar.
[5] Several customers rushed to assist Brown, including an off-duty paramedic who
observed three gunshot wounds. The off-duty paramedic also observed that
Brown had money “halfway out of his pocket.” (Tr. Vol. 2 at 145). Several of
those who assisted Brown later testified at trial that Brown did not have a
weapon of any kind and that no one had removed anything from the scene.
Brown later died from his gunshot wounds.
[6] The South Bend Police Department’s Crime Lab responded to the bar and
found several items of physical evidence, including Mayberry’s sandal, two
cartridge casings, and one bullet projectile. Law enforcement also observed
bullet damage on the tile on the bathroom floor. The firearm involved in the
shooting was never recovered.
[7] Forensic pathologist Dr. Darin Wolfe (“Dr. Wolfe”) performed Brown’s
autopsy on September 22, 2018. Dr. Wolfe found that Brown had been shot
three times. Specifically, one bullet entered the front of Brown’s chest,
perforated his right lung, and stopped before exiting his back. A second bullet
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entered the right side of Brown’s lower abdomen, passed through the small
intestine, and stopped in his pelvis. A third bullet entered Brown’s back,
penetrated his right lung, and exited the right side of his chest. Dr. Wolfe
concluded that the cause of Brown’s death was multiple gunshot wounds.
[8] On October 3, 2018, the State charged Mayberry with murder and an
enhancement for the use of a firearm in the commission of a felony. A warrant
was issued for Mayberry’s arrest, but he was not taken into custody until
January 2019, when he was arrested by U.S. Marshals in South Carolina.
[9] At Brown’s final pre-trial hearing in November 2019, his jury trial was
confirmed for December 9, 2019, and the parties were ordered to submit
proposed voir dire questions to the trial court one week before the trial date.
After reviewing Mayberry’s questions, the State believed that Mayberry was
going to pursue a claim of self-defense.
[10] Mayberry’s four-day jury trial began on December 9, 2019. The State presented
the evidence set forth above through the testimony of two Bleachers Bar
employees, nine of the bar’s customers, several law enforcement officers and
homicide investigators, Dr. Wolfe, and South Bend Police officer and firearm
and toolmark examiner Ray Wolfenbarger (“Officer Wolfenbarger”).
[11] On the second day of trial, the State filed a supplemental notice of discovery,
and the trial continued with testimony from Dr. Wolfe about his observations
of Brown’s wounds during the autopsy. Dr. Wolfe testified that he did not
observe any “soot or stippling” around any of Brown’s wounds. (Tr. Vol. 3 at
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79). He explained that this was significant because if there had been soot, then
that would mean that the gun was “quite close.” (Tr. Vol. 3 at 80). Dr. Wolfe
further explained that if there had been stippling, then that would mean that the
gun was “reasonably close.” (Tr. Vol. 3 at 80). Because “there [was] no soot
and there [was] no stippling,” he could not determine how far the bullets had
traveled. (Tr. Vol. 3 at 80). According to Dr. Wolfe, one explanation for the
lack of soot and stippling was because the bullets had passed through thick
clothing that had acted like a filter.
[12] Later that day, the State presented testimony from Officer Wolfenbarger, who
testified that he had examined the fired casings and bullets recovered from the
investigation and autopsy. Officer Wolfenbarger first explained that he believed
that the bullets had been fired from the same handgun and that the model used
was a semiautomatic Springfield XD .45 caliber handgun. The State then asked
Officer Wolfenbarger if he had examined the jacket that Brown had been
wearing when he was shot for gunshot residue, and Officer Wolfenbarger stated
that he had. Mayberry’s counsel objected and argued that there was a lack of
foundation. He further explained that he had just learned of Officer
Wolfenbarger’s testimony the previous night. The trial court agreed that the
State had failed to lay an adequate foundation and sustained the objection.
[13] The State then asked Officer Wolfenbarger about his gunshot residue and
proximity examination training and testing methods, which included one test
for the presence of nitrates and another for lead residue. Officer Wolfenbarger
stated that he had observed three holes in Brown’s jacket: an entrance puncture
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on the back; an entrance puncture near the lower right jacket pocket; and an
exit puncture on the right side above the pocket. Officer Wolfenbarger further
testified that the test results had revealed lead residue patterns but had not
revealed nitrates residue patterns. Officer Wolfenbarger explained that he had
then used a Springfield XD .45 handgun and ammunition consistent with the
evidence he had previously examined and had performed tests on cotton twill
by “placing the muzzle from contact all the way back to 36 to 38 inches to
determine the same pattern as what [was] on” Brown’s jacket. (Tr. Vol. 3 at
117).
[14] Before Officer Wolfenbarger could testify about the results of his residue and
proximity tests, Mayberry’s counsel objected and explained that the request for
testing had been submitted by the State on December 6, three days before the
start of trial. He further explained that the results had not been provided to him
until that morning, December 10. The trial court then asked defense counsel
how Officer Wolfenbarger’s testimony prejudiced his defense, which it
understood to be self-defense. Mayberry’s counsel explained that, given the
timing of when he had received the officer’s test results, he would not be able to
meaningfully cross-examine Officer Wolfenbarger. The trial court again asked
how the officer’s testimony prejudiced his defense and asked if he would like to
postpone cross-examination until the following day. Mayberry’s counsel
refused, arguing that “he should have [had] an opportunity to have this in
advance of trial, not be sprung on me in the middle of the trial in terms of
fairness.” (Tr. Vol. 3 at 119). The State interjected and stated that the testing
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had been performed in response to Mayberry’s voir dire questions that had
indicated that he was going to pursue a claim of self-defense. The State
explained that it had asked Officer Wolfenbarger to re-examine Brown’s jacket
in an effort to “see if it would help support, contradict any of that kind of
information with regard to the self-defense issue.” (Tr. Vol. 3 at 119).
Thereafter, the trial court again offered Mayberry’s counsel the opportunity to
prepare overnight and then cross-examine Officer Wolfenbarger the following
day. In the alternative, the trial court stated that if defense counsel did not want
to pursue that opportunity, then he could cross-examine the officer after the
State had finished its direct examination. Mayberry’s counsel chose the latter
option, and the trial court overruled his objection.
[15] Officer Wolfenbarger testified that although the cotton twill was not the same
fabric as Brown’s jacket, his test and the results were not affected. Officer
Wolfenbarger then testified that he had fired the Springfield handgun into the
cotton twill and examined the cloth for “vaporous lead and lead particulates.”
(Tr. Vol. 3 at 122). Officer Wolfenbarger then compared his results with
Brown’s jacket and found that the hole in the back of jacket had “very
minimal” lead or lead particulates. (Tr. Vol. 3 at 122). As a result, Officer
Wolfenbarger concluded that the bullet that had created the hole in the back of
Brown’s jacket had been fired by a gun from a distance “further than 36
inches.” (Tr. Vol. 3 at 123). Because the other two holes tested yielded
“vaporous lead and also particulates throughout[,]” Officer Wolfenbarger
concluded that the bullets had been fired by a gun from within twelve inches.
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(Tr. Vol. 3 at 123). On cross-examination, Officer Wolfenbarger testified that
his results were not inconsistent with a handgun being discharged in a small
space and that the results did not disclose who had discharged the gun.
[16] Following the State’s presentation of evidence, the defense presented testimony
from a Mishawaka police officer and Mayberry. Mayberry testified that after he
entered the bathroom, he had been verbally and physically accosted by Brown,
who was washing his hands. Mayberry stated that Brown had pulled a gun on
him, and to defend himself, he had begun to wrestle with Brown. Mayberry
explained that he had grabbed Brown’s wrists and had struggled to disarm
Brown. Mayberry then stated that during this struggle, the gun had discharged
and had struck Brown several times. On cross-examination, Mayberry
explained that he “didn’t possess [a gun] nor did [he] aim it.” (Tr. Vol. 4 at
130). He further explained that he did not pull the trigger and that the gun was
in Brown’s hand for all three shots.
[17] The jury convicted Mayberry of murder and the firearm enhancement.
Thereafter, the trial court sentenced Mayberry to sixty-five (65) years for
murder. The trial court then enhanced Mayberry’s sixty-five (65) year sentence
by ten (10) years for the firearm enhancement. Mayberry now appeals.
Decision
[18] Mayberry argues that the trial court abused its discretion when it admitted into
evidence testimony about test results which had been performed shortly before
trial. As a preliminary matter, Mayberry has waived appellate review of his
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argument because he makes no cogent argument and provides no caselaw to
support his argument regarding the admission of evidence. See State v.
Holtsclaw, 977 N.E.2d 348, 350 (Ind. 2012) (holding that the defendant had
waived his argument by failing to appropriately develop or support it); Smith v.
State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives
any issue raised on appeal where the party fails to develop a cogent argument or
provide adequate citation to authority and portions of the record.”), trans.
denied. See also Ind. Appellate Rule 46(A)(8)(a) (requiring appellate arguments
to be supported by cogent reasoning and citation to the authorities).
[19] Waiver notwithstanding, Mayberry has not met his burden of showing that the
trial court abused its discretion. “‘A trial court has broad discretion in ruling on
the admissibility of evidence and we will disturb the court’s rulings only where
the petitioner has shown an abuse of that discretion.’” Bowman v. State, 51
N.E.3d 1174, 1180 (Ind. 2016) (quoting Isom v. State, 31 N.E.3d 469, 482 (Ind.
2015)). An abuse of discretion occurs only “‘if a ruling is clearly against the
logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.’” Bowman, 51 N.E.3d at 1180 (quoting Carpenter v. State, 18
N.E.3d 998, 1001 (Ind. 2014)).
[20] Further, “[w]here the [S]tate seeks to introduce discoverable evidence at the
time that that evidence is revealed to the defendant, defendant may seek either a
continuance or exclusion of that evidence.” Cook v. State, 675 N.E.2d 687, 690
(Ind. 1996). A continuance is usually the appropriate remedy. Id. However,
the exclusion of evidence is proper where the State engaged in deliberate
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conduct or bad faith or where introduction of the evidence would result in
substantial prejudice to the defendant’s rights. Id.[21] Here, Mayberry has not established deliberate conduct or bad faith on the
State’s part. There is no evidence in the record, nor does Mayberry argue, that
the State deliberately or intentionally avoided telling Mayberry about Officer
Wolfenbarger or his testimony. Indeed, Officer Wolfenbarger was listed on the
State’s potential list of witnesses in October 2019 and again in December 2019.
Furthermore, at trial, the State explained that it had requested that Officer
Wolfenbarger perform the tests in response to Mayberry’s voir dire questions
that indicated that Mayberry was going to pursue a claim of self-defense. Upon
learning of the officer’s examination results, the State promptly provided the
results to defense counsel by telephone and then provided the copies of the
results the following morning. Under these circumstances, we conclude that
Mayberry has failed to provide evidence of deliberate conduct or bad faith on
the part of the State. See Cain v. State, 955 N.E.2d 714, 719 (Ind. 2011)
(explaining that there is no error if the prosecuting attorney provides the defense
with requested evidence as soon as the prosecuting attorney is in possession
thereof).
[22] Mayberry has also not shown substantial prejudice to his rights. Here,
Mayberry argues that the timing of receipt of the officer’s findings prevented
him from “provid[ing] any scientific basis to contradict the . . . information
regarding the distance of the gun in the middle of the trial.” (Mayberry’s Br.
13). Although Mayberry objected to Officer Wolfenbarger’s testimony, he did
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not request a continuance, which is the appropriate remedy in such a situation.
See Cook, 675 N.E.2d at 690; see also Warren v. State, 725 N.E.2d 828, 832 (Ind.
2000) (explaining that as a general proposition, the proper remedy for a
discovery violation is a continuance). In fact, the trial court effectively offered
Mayberry this relief by proposing to delay Officer Wolfenbarger’s cross-
examination until the following day. However, Mayberry’s counsel did not
take advantage of this opportunity and chose to proceed with cross-examination
following the State’s direct examination. Mayberry does not explain how his
refusal to delay Officer Wolfenbarger’s cross-examination resulted in prejudice
to his rights.
[23] Because Mayberry has not shown any deliberate conduct of bad faith by the
State or substantial prejudice to his rights, his argument fails. Accordingly, the
trial court was well within its discretion in allowing Officer Wolfenbarger’s
testimony.
[24] Affirmed.
Kirsch, J., and Tavitas, J., concur.
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