PRATHER, JUSTICE, FOR THE COURT:
The sufficiency of circumstantial evidence is in issue on this appeal from the Circuit Court of Pontotoc County, wherein William Montgomery was found guilty of the murder of Richard Ball. Montgomery, a recidivist, was sentenced to life imprisonment without benefit of probation or parole. On appeal Montgomery challenges the sufficiency of the circumstantial evidence upon which the jury based their verdict. After a thorough review of the evidence, this Court affirms the guilty verdict and life sentence.
The appellant assigns as error the failure of the trial judge to change venue from Pontotoc County because of pretrial publicity, the introduction of physical evidence obtained in an improper search of the defendant's home, and the introduction of prejudicial photographs. The Court has examined this record carefully and finds no merit to these assignments. The additional assignment challenging the sufficiency of the circumstantial evidence to support the verdict of guilt warrants discussion.
The victim, Richard Ball, was executive director of the Pontotoc Housing Authority. His office was located at the housing project 100-150 yards from the apartment of William Montgomery, a caretaker and maintenance man employed by the Authority. Montgomery was an ex-marine with knowledge and skill of firearms and munitions.
The State carefully developed the proof to establish motive. Several witnesses testified that although they had never heard cross words between Montgomery and Ball, several people were aware of ongoing animosity between the two over a wage dispute for Ball's failure to pay minimum wages. Herbert Todd, a resident of the project testified that Montgomery had stated that Ball and the Housing Authority owed him $17,000 and that after he filed a complaint to the Housing Authority, he would soon own the facility. According to Todd, Montgomery stated he had "no use" for Ball and "hated his guts" . After Montgomery received a settlement in response to his claim, Ball, who adjusted the tenants' rent based on income, increased Montgomery's rent from $85.00 to $276.00 per month. Also, subsequent to the filing of the complaint by Montgomery, Ball required Montgomery to start signing in and out of the office on a time sheet.
The State, supported only by circumstantial evidence, presented the following evidentiary factors tracing the weapon's purchase and the defendant's whereabouts on the date of and immediately preceding the murder.
Robert Montgomery, the defendant's eighteen year old son, testified that at 5:00 p.m. on Friday, April 6, 1984 William Montgomery sent him to the Wal-Mart to buy a .22 caliber gun. Robert was under age, but Charles Walls, a friend of Robert's, offered to use his fake identification to purchase the gun and shells with a $100 bill given to Robert by the defendant. Robert testified that he gave the gun to his father and never saw the gun again.
Ball's daily procedure was to go to the office after buying a newspaper, to drink a cup of coffee while reading the newspaper and then go get the mail.
On April 10th, Ball left his home for work at approximately 7:20 a.m. in his truck. His checkbook and newspaper were found on his desk.
After 6.00 p. m. on that date Mrs. Paulette Ball became worried when her husband did not come home. She went to Montgomery's house to ask Montgomery if he had seen Mr. Ball, Montgomery was there and said "No" . About 8.00 p. m. Paulette Ball obtained an extra key to the office from Mrs. Poe, the secretary, and went with Billy Joe Sewell, a member of the board of directors for the Housing Project, to check the HUD office. Upon entering, Mrs. Ball and Sewell noticed Mr. Ball's paper and checkbook on the desk, as well as three Camel cigarette butts in the commode. Mr. Ball allowed no
smoking in the HUD office. As they entered the hall leading to the shop area, Mrs. Ball saw a wheelbarrow and the contorted figure of her husband within. The police were called, and Mrs. Ball told the police that she suspected Mr. Montgomery because of the difficulties between her husband and Montgomery.
During police investigation of the office, one spent shell cartridge from a .22 gauge gun was found in the front office and a fragment of Mr. Ball's scalp was located on the hall floor. The police took Mr. Montgomery into custody for questioning while other officers went to Montgomery's residence. Officer Larry Poole and assistants were invited into the Montgomery apartment by Mrs. Montgomery and Poole asked Mrs. Montgomery if they could "look around" . Mrs. Montgomery escorted the officers back to William Montgomery's room where they located a .22 bullet in a drawer along with a diary which contained a time schedule of Richard Ball's normal morning procedure. Also listed in the diary was an entry of the serial number of the .22 caliber Ruger rifle purchased by Montgomery's son the previous Friday. At trial Montgomery testified that the live cartridge was found by him while cleaning an apartment and he had used a pin to punch the holes in the nose of the cartridge.
Upon his arrest Montgomery stated that he had never owned a gun, had never purchased a gun and was only considering the purchase of the Ruger .22 caliber listed in his diary. However, the manager of the store reported that no serial numbers are ever listed on advertising circulars indicating that Montgomery must have obtained the serial number of the gun from the gun itself.
However, on the stand at trial, Montgomery admitted that he had purchased the gun and had given his son the money to buy it since he knew his criminal record would prohibit him from buying a weapon. The murder weapon used to kill Ball was never found.
Montgomery testified that the gun was purchased so that his son could go hunting but his son never saw the gun after purchasing it on April 6th. Montgomery stated that the gun had been stolen from his home on Sunday, April 8th when his family had traveled to Oxford for the day. But he never reported the theft to his family or the police.
Montgomery testified that on the day of the murder he did not go to the office but that he had assisted one resident in hanging a picture, that he policed the HUD area, gathered garbage, and came back home. Montgomery stated that
he did not commit the murder, that he did not know the party responsible for Ball's death, and that the last time he saw Richard Ball was about 5:00 p. m. on the day before the murder. One witness for the defendant, Mrs. Myrtle Griffin, testified that she saw the victim on the street about 1:00 o'clock on the day of the murder.
Witnesses traced Montgomery's whereabouts on the day of the murder. Ball's truck was found on a path in the woods about 200 yards from Ball's home. The truck was seen at this location at approximately 10.20 a. m. by Mr. Earl Huey. Two employees at Comfort Care testified they saw Montgomery walking back from this area toward the HUD housing facility about 1:00 p. m. Montgomery had worked on Ball's land and was familiar with the path area on Ball's property. Mr. Todd, another neighbor, testified that he saw Montgomery walking to and from the shed on Gilliam's property about mid-morning on the day of the murder. This shed area became significant when Mr. Gilliam, Montgomery's neighbor, testified that he found three boxes of .22 caliber gauge ammunition and a clip containing eight bullets thrown by the shed beneath some vines. No fingerprints were found on the ammunition boxes or metal clip found by Mr. Gillian's shed, but they contained a Wal-Mart sticker, and were located some thirty-nine paces from Montgomery's apartment. These items were not located until June 1st following the murder on April 10th. Two boxes of bullets were completely filled and the third box was missing fifteen rounds. Eight .22 caliber cartridges were found in the Ruger clip. The State contends that the remaining seven bullets consisted of five bullets removed from Ball's body, one was extracted from the veneer of the door of the maintenance shop, and one bullet was found in Montgomery's top drawer. Montgomery admitted he knew that a hollowed point would fragment on impact, and fragments removed from Ball's body were in a fragmented state. Montgomery's freshly laundered coveralls were seen hanging out to dry in his back yard that morning by Mr. Todd. However, microanalysis tests on Montgomery's coveralls revealed no blood, hair, or fiber of Richard Ball. Additionally, no glass particles from the window were located on Montgomery's boots.
The State contends that Montgomery went to the Housing Authority office early that morning and had broken in by shattering the back window and forcing the window open. According to Billy Joe Sewell, Montgomery did not have a key to the facility since Richard Ball had ordered that the locks be changed. Mrs. Poe, the HUD secretary, testified that the door to the maintenance room locked when it closed and could not be opened from the maintenance room side without a key. A machete was used to force open the door from the shop area
into the front office. Paint chips found on the machete were found to be of the same quality as those in the door area and according to the Mississippi Crime Lab expert, the machete could have come into contact with the door. Montgomery's fingerprint was found on the facing of the door leading from the shop area into the office area. Other fingerprints belonging to Montgomery were located on a tool tray inside the maintenance room, and on a metal can containing insecticide in that same area. The defense pointed out with much emphasis that only 5 of 32 fingerprints lifted from the scene of the crime were positively identified as those of William Montgomery, and that, as an employee, his prints would normally be found in the shop area.
The State theorized that Montgomery was the murderer and that as Montgomery waited for Ball in the bathroom, he smoked three Camel cigarettes, his customary brand, and dropped them into the commode. As Richard Ball entered the building, he went into his office, and then into the hall area towards the shop. At this point, the State contends Montgomery came out of the restroom and shot Richard Ball several times in the upper arm area and at least twice in the head. One bullet missed and lodged in the door. A projectile removed from Ball's body was determined to be a .22 caliber bullet. Ball's feet were tied and he was dragged down the hall, where his body was placed in a wheelbarrow. Mr. Ball bled profusely, so the murderer tried to clean up ...