Cherry found guilty of nine felonies

Justin Cherry

Co-defendants still await trials

A jury took three hours Monday afternoon to find an Indianapolis man guilty of nine felonies in a 2017 home invasion in Madison Township.

Justin Cherry, 29, was the first of four co-defendants to face a jury trial for the April 2, 2017 robbery of the home of Terry and Pat McCarter.

Following a four-day trial that stretched over parts of two weeks, the final chapter of the trial was brief by comparison.

After three hours of jury deliberation, the court moved quickly Monday afternoon. Judge Matt Headley called court back into order about 2:45 p.m. and the proceedings were over before 3 p.m.

In the meantime, the jury foreman announced that Cherry had been found guilty of burglary with serious bodily injury, burglary, conspiracy to commit burglary, two counts of armed robbery, conspiracy to commit armed robbery, criminal confinement, theft and auto theft.

Before the deliberation, though, the jury spent the morning observing as the defense made its case, followed by final arguments from each side. This after 2-1/2 days last week that included jury selection, opening arguments and the prosecution’s case.

During the incident, four masked men held the McCarters at gunpoint for close to an hour while they ransacked their home. The men made off with prescriptions, checks, jewelry, a rifle, a handgun, a purse, wallet and cash and even the McCarters’ Buick Rendezvous.

Additionally, one of the men struck Terry McCarter in the temple area with the butt of either a rifle or shotgun.

Many of the stolen goods, including the vehicle, were later recovered in Indianapolis, both at the Spann Avenue home where Cherry, among others, is said to have resided, as well as a nearby storage unit.

Prosecutor Tim Bookwalter spent his closing statement arguing for a preponderance of evidence and finally asking the jury to “use your common sense” in looking at the factors pointing toward Cherry.

Public defender Sidney Tongret, on the other hand, looked to build a reasonable doubt, saying no DNA evidence or fingerprints were gathered in the case and that the evidence against his client was circumstantial.

“You will not find any credible evidence that ties Mr. Cherry to the burglary in Putnam County,” Tongret said.

Bookwalter was obviously out to prove otherwise, building a case that Cherry was at the scene based on cell phone evidence that he was in the area the night of robbery, the fact that Terry McCarter heard one of the robbers refer to another as either “Dustin” or “Justin” and a footprint at the scene that matched boots Cherry was wearing when he was arrested on Spann Avenue in Indianapolis.

“You heard that those boots were taken off of his feet at the house,” Bookwalter said.

Tongret countered this with questions about the lack of DNA evidence.

“I’m sure all of you noticed how many times I raised the issue of DNA evidence in this case,” Tongret said. “DNA evidence is important. I’m not at all surprised that the prosecutor downplayed the importance of DNA evidence because he doesn’t have any,” he continued. “If he did, it would be the greatest thing since internet dating.”

Tongret painted a picture of a sloppily-handled crime scene on the morning of April 2.

“They just went tromping through there looking at everything,” Tongret said. “It seems ridiculous, doesn’t it? But it doesn’t seem ridiculous when you realize they had no intention of recovering any DNA evidence or fingerprint evidence.”

Bookwalter instead suggested that “good, old-fashioned shoe leather solved this case.” He pointed out that Putnam County Sheriff’s Department Det. Capt. Pat McFadden went to Indianapolis on the day of the first bust in Indianapolis and drove down an alley behind the scene.

“What does he see when he drives down the alley?” Bookwalter asked. “He sees Justin Cherry.”

Bookwalter further pointed out the six departments — PCSD, Indianapolis Metropolitan Police Department, Shelby County Sheriff’s Department, Owen County Sheriff’s Department, Indiana State Police and FBI — and nine search warrants in the case that he credited with solving a case in which the crime scene was mobile.

“The crime scene, as it turned out, was not in Putnam County,” Bookwalter said. “The crime scene moved.”

One of the places to which it moved was 3835 Spann Ave., where Cherry is said to have been one of the residents, a claim the defense disputed.

However, Bookwalter pointed to pieces of mail in his name delivered to the address, the fact that the mother of his children said she dropped the kids off at the house and the presence of his children’s pictures in a bedroom.

In that same bedroom were a safe and jewelry from the McCarter home as well as, hidden in a floor vent, a handgun that had been taken from the McCarters’ nightstand.

Bookwalter had a suggestion as to why it was in the floor vent.

“It might be something you’d do when the police are standing outside,” the prosecutor said.

“There’s no evidence Justin Cherry knew any of that was stolen,” Tongret countered in his argument.

Finally, Tongret spent much of his defense attempting to discredit one of the state’s witnesses, Michael Hostetter.

Under questioning from Bookwalter, Hostetter, who was among those detained the day of the raid on Spann Avenue, said that Cherry told him that day that he had taken a gun from the McCarters’ nightstand.

At issue for Tongret was that Hostetter had taken a plea agreement in a Parke County case that was not disclosed as a benefit he received in exchange for his testimony.

“Michael Hostetter conveniently supplied the only piece of evidence that puts Justin Cherry in that house on that morning,” Tongret said. “Conveniently.

“I don’t know if you could tell,” Tongret said to the jury, “but I was kind of hot after his testimony. And I had to do some digging to figure out how he came to testify that day.”

That digging was how Tongret had come to call Parke County Deputy Prosecutor Kevin Stalker to the stand Monday morning, as well as Det. McFadden and IMPD Investigator Matt McFadden.

At issue with the investigators was that Hostetter had not mentioned anything about his conversation with Cherry on the day he was questioned by Pat McFadden and Matt McFadden.

However, he later recalled Cherry mentioning both the pistol and co-defendant Charles Maybaum, aka “Drake.”

Through Tongret’s arguments, Bookwalter maintained that the witness had not been coached.

“If I’m going to be coached and come up with a lie, I’m going to say Charles Maybaum. I’m not going to say Drake,” Bookwalter said.

The prosecutor also appealed to the emotions of the 12 jurors, showing them photos of the McCarters’ wrecked home after the robbery.

“Can you imagine what the McCarters went through?” Bookwalter said. “You’re in bed on a Sunday morning. You think a tree fell on the house it was so loud. And then four masked men take you hostage. It’d be hard to go back to the house.”

Tongret asked them to set aside emotion.

“One of the things you have to do is put aside emotions and look at things rationally,” Tongret asked. “There’s no question that what happened to the McCarters was horrible. But the fact that it was horrible doesn’t make the defendant guilty. Proof beyond a reasonable doubt makes the defendant guilty.”

The prosecution believed it had such proof.

“We believe the evidence is overwhelming,” Bookwalter concluded. “DNA is the boogeyman in this case to try and come up with a reason for you not to convict. We ask for a conviction.”

Next comes an Aug. 2 sentencing hearing that carries the possibility of a heavy penalty for Cherry, including one Level 1 felony (20-40 year sentence), a Level 2 felony (10-30 years), five Level 3 felonies (3-16 years each) and two Level 6 felonies (6-30 months each).

On the low end, that should mean at least a 20-year commitment for Cherry, if minimum sentences are imposed and they are served concurrently.

On the other hand, maximum sentences served consecutively could mean 155 years.

Three other men are awaiting jury trials in the same incident. Paul Reese Jr., 29, Indianapolis, will go to trial on July 16, followed by Charles Maybaum, 32, Indianapolis, on Aug. 6 and Daltyn Randolph on Aug. 20.

All three are facing even more charges than Cherry, with each facing additional counts of Level 5 felony burglary, Level 5 felony conspiracy to commit burglary, Level 6 felony theft and Level 6 felony conspiracy to commit theft.

Those charges make for an additional 17 possible years to their sentences if convicted.

Reese and Maybaum, along with two women, are also charged in a similar case in Owen County that happened about one month after the Madison Township case.