News From Terre Haute, Indiana

Local & Bistate

October 25, 2013

Mallory guilty on six counts

Jury returns verdict of murder, 2 counts attempted murder

TERRE HAUTE — A Vigo County jury has found 22-year-old William Mallory guilty of murder in the shooting death Dustin Kelly.

Mallory was also found guilty of attempted murder in the shootings of two other men outside the Ballyhoo Tavern at Ninth and Chestnut Streets in Terre Haute in the early morning hours of Aug. 24, 2012.

The four-day trial for Mallory in Vigo Superior Court 6 wrapped up Thursday morning with closing arguments, followed by about three hours of jury deliberation that resulted in conviction on six criminal charges.

Mallory was convicted of felony murder, two class-A felony counts of attempted murder, two class-A felony counts of aggravated battery and a misdemeanor charge of possession of a handgun without a permit.

Judge Michael Lewis set a Nov. 22 sentencing date in the case. Mallory faces a maximum of about 165 years in prison.

Heavy security protected jurors, witnesses and the public during the trial. An additional metal detection unit was installed at the public entrance to the courtroom, and several uniformed sheriff’s deputies were stationed throughout the courthouse during the trial.

The extra precautions were the result of a violent melee that occurred in open court on the day last year when Mallory was arraigned in the shooting. Members of Mallory’s family and the families of the victims tussled in the courtroom after comments were exchanged, and additional altercations with police occurred outside the courthouse, resulting in arrests.

Chief Deputy Clark Cottom told the Tribune-Star that no incidents of intimidation or violence occurred in the courthouse or on the grounds, where public access to the facility and the Vigo County Jail were closely monitored.

“We will never know the benefit of these preventative measures, but we feel the added security was necessary and that it helped diffuse any potential problems,” Cottom said.

Judge Lewis warned the public gallery — prior to the jury’s re-entry to the courtroom for the reading of the verdict — that any outbursts would result in a 90-day jail sentence for contempt of court. About 20 uniformed and plain clothes police officers were inside the courtroom when the verdict was read.

Vigo County Prosecutor Terry Modesitt said there was concern that some people would try to instigate street justice.

“The incident in open court early on in this case caused everyone to be concerned,” Modesitt said. “I think the sheriff’s department and the other agencies involved did a good job with the added security.”

He said that during his years as prosecutor and deputy prosecutor, he does not recall having as much security for one case. The additional cost of the police manpower and the extra equipment will be absorbed by the agencies involved, as well as the county, he said.

A lot of preparation went into the prosecution of the case, Modesitt said, and he commended deputy prosecutor Chris Wrede with handling the presentation of the case.

“Some of the witnesses, we weren’t sure how cooperative they were going to be,” he said. “Sometimes young people think there should be a certain amount of street justice, and they are reluctant to cooperate with the police or prosecutors.”

There were no plea agreement negotiations with Mallory, Modesitt said.

“He had maintained all along that it was self-defense, and we had maintained that it was murder,” he said. “There’s just not that much to talk about when you are that far apart.”

The shootings occurred in an Indiana State University-owned parking lot outside the tavern as patrons were leaving the area.

Kelly, along with his cousin Donte Pettus and friend Terrance Trotter, were walking to their vehicles in the parking lot when they encountered Mallory and two other men.

Mallory told police that he felt threatened by Pettus and that he shot the three men in self-defense.

The jury heard testimony that Mallory was waiting for Pettus to approach because the two men had exchanged words concerning a prior girlfriend of Pettus whom Mallory had also dated. Witnesses stated that Mallory left the tavern prior to closing time and went to his parked car, where he retrieved a handgun and loaded it before sticking it in his pants pocket. Mallory then moved his car from one parking lot to another, allegedly to park near his cousin.

In his closing arguments, deputy prosecutor Wrede told the jury that Mallory had multiple occasions to leave the tavern if he felt threatened by Pettus, but instead, Mallory chose to wait in the parking lot with a loaded gun. Testimony from witnesses, including Pettus and Trotter, stated that Mallory gave no warning before he pulled out the gun and fired five times.

Wrede stated that Mallory shot Kelly, who fell to the ground, then turned the gun on Pettus and Trotter, who were trying to run away from the scene when they were shot. Mallory then turned and fired at Kelly again, “as he lay there dying,” Wrede said, shooting Kelly a second time in the chest.

“Dustin Kelly was lying on the ground dying when he was shot again,” Wrede said.

Defense attorney Vernon Lorenz told the jury that some of the witness statements contradicted the facts of the case, and that Mallory was defending himself when the shooting occurred.

Though Mallory was convicted on all six criminal counts, he will not be sentenced on the aggravated battery counts because they are lesser included charges of the attempted murder charge.

According to sentencing guidelines, because there are three victims in the case, the court could sentence Mallory to consecutive sentences for felony murder, which has a sentencing range of 45 to 65 years in prison, and the two counts of attempted murder, which have a sentencing range of 20 to 50 years in prison.

Judge Lewis ordered a pre-sentence investigation to be prepared prior to the Nov. 22 sentencing date.

Reporter Lisa Trigg can be reached at 812-231-4254 or Follow her on Twitter @TribStarLisa.

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