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Montgomery v. State

Supreme Court of Mississippi

September 13, 2018


          DATE OF JUDGMENT: 12/19/2016








         ¶1. On August 6, 2013, Adrian Montgomery and Terome O'Neal were drinking beer and liquor and smoking marijuana in a park. An eyewitness saw O'Neal knock Montgomery's joint to the ground. This prompted Montgomery to angrily attack O'Neal. Paramedics found O'Neal on the ground unconscious. He died days later in the hospital of multiple blunt-force trauma. Montgomery was indicted for deliberate-design murder but convicted on the lesser-included crime of depraved-heart murder.

         ¶2. Montgomery's first trial resulted in a mistrial. The judge granted a mistrial when the State learned—after the jury had been empaneled—that the medical examiner who had conducted O'Neal's autopsy had a sudden family emergency, rendering him unavailable. Montgomery argues his second trial placed him in double jeopardy because there had been no manifest necessity for the mistrial. We disagree. The cause of O'Neal's death was the main contested issue. Thus, the medical examiner was a key witness whose unavailability was unanticipated by the State. And due to the unknown and open-ended nature of the emergency, a continuance did not appear to be a reasonable option. So there was manifest necessity to declare a mistrial.

         ¶3. Montgomery alternatively argues for the first time on appeal that one of the depraved- heart-murder instructions was fatally defective because it omitted the phrase "without authority of law." But other instructions made clear that to find Montgomery guilty of murdering O'Neal, the killing could not be "justifiable" self-defense or an "excusable" accident. Thus, when read as a whole, the depraved-heart-murder instructions were clear that the killing had to be unlawful. ¶4. We affirm Montgomery's second-degree-murder conviction and sentence.

         Background Facts and Procedural History

         I. Mistrial

         ¶5. Montgomery's first murder trial began on Monday, October 3, 2016. Pretrial motions and jury selection took up the entire first day.

         ¶6. One issue that emerged in pretrial motions was the importance of expert testimony concerning O'Neal's cause and manner of death. The State had filed a motion in limine to exclude Montgomery's expert pathologist, Dr. Stephen Hayne. The exclusion was sought because Dr. Hayne had been designated too late and planned to offer a legal opinion outside his area of expertise. Montgomery's counsel disagreed. She countered that, because "the State has their expert, Dr. J. Brent Davis, testifying as to the cause of death," Montgomery had the right to present his own expert, Dr. Hayne. She insisted "the jury is entitled to hear his opinion as well as the State's pathologist's opinion and decide between the two which one they believe" concerning O'Neal's cause of death. Instead of addressing the issue before trial, the court reserved his ruling on whether Dr. Hayne would be permitted to testify.

         ¶7. Following pretrial motions, the jury was selected and sworn. The jury then was sent home for the day.

         ¶8. The next day, as soon as trial began, the State alerted the court it had "an issue with the medical examiner," Dr. Davis. The State had just learned a few minutes earlier, through an assistant with the State Medical Examiner's Office, that Dr. Davis's father-in-law had been placed in hospice care the evening before. So Dr. Davis could not attend court to testify that day. Because the jury had already been empaneled, the State requested a mistrial or a continuance.

         ¶9. The court asked, if it were it to grant a continuance, would Dr. Davis be available to testify the next day. The prosecutor was unsure. The only thing she had been told was that Dr. Davis was with his father-in-law. And it was uncertain how much longer his father-in-law would live. The prosecutor then requested a brief recess to try to gain more information about Dr. Davis's situation.

         ¶10. The court ordered a recess so the prosecutor could try to locate Dr. Davis and determine if he would be available to testify in a day or two. But the State was unable to contact him or determine his whereabouts. After the recess, the prosecutor informed the judge that the assistant she had spoken with had been unable to contact Dr. Davis or any of the other doctors in the Medical Examiner's Office. While the judge and the prosecutor speculated Davis was probably somewhere in the Jackson metro area, the assistant was unsure where Dr. Davis was or when he would return. All she knew was that he had a family emergency.

         ¶11. With a continuance seeming an unlikely option, Montgomery's counsel lodged an objection to the State's alternative request for a mistrial. Citing double jeopardy, she asked the judge to dismiss the charge against Montgomery. The State pointed out the incident leading to Dr. Davis's unavailability was unforseen and that Dr. Davis was a material witness. Agreeing with the State, the trial court granted a mistrial "due to the fact that the witness is obviously not available."

         ¶12. Trial was reset for November 7. During the pretrial motions, Montgomery once again moved to dismiss, claiming his double-jeopardy protection would be violated by a second trial. Montgomery argued there had been no manifest necessity to declare a mistrial the month before. Instead, his counsel likened the situation to that in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), in which the government simply failed to secure a material witness before trial started.[1]

         ¶13. The State disagreed. It maintained there had been manifest necessity based on Dr. Davis's sudden family emergency and the fact he was a necessary witness for the State. Further, Dr. Davis was the only forensic pathologist to sign O'Neal's autopsy report, so an alternate medical examiner could not testify about the cause of death.

         ¶14. The court denied Montgomery's second motion to dismiss. The court reiterated that it had granted a mistrial based on Dr. Davis's family emergency. And if the mistrial had not been granted, the jury would have had to wait days without trial testimony. And this waiting game "would have been inappropriate."

         II. Second Trial

         ¶15. The State's first witness at the second trial was Charles Brownlow. Brownlow had been with Montgomery, O'Neal, and several other men on July 6, 2013. The group had been drinking beer and liquor and smoking marijuana under a big oak tree in Pointdexter Park near downtown Jackson. According to Brownlow, Montgomery was smoking weed and became angry when O'Neal knocked the drugs out of Montgomery's hand. The two got into a fight. As Brownlow put it, "there was a few words said, and then all I heard was like a hit, and then the next thing the old man . . . was on the floor." Brownlow guessed Montgomery had hit O'Neal. Because the tree obscured his view, Brownlow did not actually see the blow, but he did see the end result—O'Neal lying on the ground unconscious with blood flowing from his mouth. While everyone else in the group scattered, Brownlow stayed with O'Neal until paramedics arrived.

         ¶16. O'Neal was taken to the University of Mississippi Medical Center. He died three days later, after his family removed him from life support. O'Neal's mother, Catherine O'Neal Moore, testified about learning her son was in the hospital and having to remove him from life support. And the police detective and the crime-scene investigator testified about the criminal investigation resulting in Montgomery's murder indictment.[2]

         ¶17. Dr. Davis then testified. Dr. Davis performed the autopsy on O'Neal's body. He found multiple injuries, "predominantly [to] the face and head, including bruising on the face." There were tears in the scalp, skull fractures, bruises on the brain, and bleeding in the brain. Dr. Davis determined the cause of death was "multiple blunt-force trauma" and the manner of death homicide. While O'Neal had significant natural diseases, blunt-force trauma, and not disease, caused his death. On cross-examination, Dr. Davis rejected that the trauma could have been caused by falling on a tree root. In his expert opinion, O'Neal's death was not the result of an accidental fall.

         ¶18. The sole defense witness was Dr. Hayne, who was admitted as an expert forensic pathologist over the State's objection. According to Dr. Hayne, O'Neal's medical records revealed he had a disease that weakened his face and skull bones. Also, the toxicology report showed O'Neal had been impaired when he was injured. He testified O'Neal's injury to his face could have been caused by falling and striking a tree root. In his expert opinion, the cause of death was "cranial facial trauma and fractures and injuries to the brain." He believed these injuries were caused by either a "simply injury from a fall or a combination of three blows to the face with a fall."

         ¶19. At the close of trial, the State requested an instruction on the lesser-included offense of depraved-heart murder. And the defense sought a heat-of-passion-manslaughter instruction. Given the option of deliberate-design murder, depraved-heart murder, heat-of-passion manslaughter, or not guilty, the jury found Montgomery guilty of depraved-heart murder. See Miss. Code Ann. § 97-3-19(1)(b) (Supp. 2017). He was sentenced to twenty-five years' imprisonment, with five years suspended, five years' probation, and twenty years to serve. See Miss. Code Ann. § 97-3-21(2) (Rev. 2014).

         III. Appeal

         ¶20. Montgomery appeals his conviction. Represented by new counsel on appeal, he asserts three errors:

(1) The second trial violated his right against double jeopardy.
(2) The depraved-heart murder instruction omitted an essential element.
(3) The lack of a complete trial record violates his statutory right to an appeal and is a denial of due process.


         I. Double Jeopardy

         ¶21. Montgomery first argues his second trial violated the constitutional protection against double jeopardy, because there had been no manifest necessity to declare a mistrial in his first trial.

         A. Manifest-Necessity Requirement

         ¶22. Among its protections, the Fifth Amendment of the United States Constitution prohibits the State from putting a defendant in jeopardy twice for the same offense. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978) (citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). The Mississippi Constitution also provides that "[n]o person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution." Miss. Const. art. 3, § 22. But the federal constitutional right is broader, attaching "[e]ven if the first trial is not completed[.]" Washington, 434 U.S. at 503-04. In Jones, this Court recognized that the Fifth Amendment protection against "double jeopardy attaches in any criminal proceeding [in Mississippi] at the moment the trial jury is selected and sworn to try the case." Jones v. State, 398 So.2d 1312, 1314 (Miss. 1981).

         ¶23. However, discharging the jury before trial is complete does not always lead to a double-jeopardy bar. "Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, [a criminal defendant's] valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Washington, 434 U.S. at 505. "Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor . . . must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant" if he is to avoid the double-jeopardy bar. Id.

         ¶24. As this Court has framed it, "no retrial for the same offense will be permitted in any criminal case in which the first trial, following the swearing and impaneling of the jury, was aborted prior to conclusion, unless exceptional circumstances existed in the first case, and there was a manifest necessity for the trial judge to declare a mistrial." Jones, 398 So.2d at 1314. At Montgomery's first trial, the jury had been selected, sworn, and empaneled. So jeopardy had attached. This meant that Montgomery could not be retried unless there was a manifest necessity to declare a mistrial.

         ¶25. The amount of discretion a trial court has to find manifest necessity turns on the reason for mistrial. For example, a trial court's decision that a juror is biased or a jury is hopelessly deadlocked is entitled to "broad deference." United States v. Fisher, 624 F.3d 713, 718 (5th Cir. 2010) (citing Washington, 434 U.S. at 513-14). But a mistrial based on "the unavailability of critical prosecution evidence" must survive the "strictest scrutiny." Id. (quoting Washington, 434 U.S. at 508). Here, the trial court declared a mistrial based on the unavailability of a key State witness, so the strictest scrutiny applies.[3]

         B. Trial Court's Reason for Mistrial

         ¶26. From the outset, we pause to address Justice King's dissenting view that the trial court based its decision to declare a mistrial, not on Dr. Davis's unavailability, but rather simply because testimony had not begun and Montgomery could not show prejudice.

         ¶27. In Jones, this Court expressed that the "prudent procedure for any trial court before declaring a mistrial would be to state into the record the reasons for declaring a mistrial." Jones, 398 So.2d at 1318-19. Here, the trial judge followed our advice, clearly stating for the record at the time mistrial was granted: "The court wants this matter to proceed but, however, due to the fact that the witness is obviously not available, the court will declare a mistrial."[4] (Emphasis added.) So contrary to the dissent's view, it was the State's showing its key witness was unavailable, and not Montgomery's inability to show prejudice, that drove the trial court's decision.

         ¶28. While, at this juncture, the trial judge did not explicitly state there was "manifest necessity" to declare a mistrial, he was not required to do so. Washington, 434 U.S. at 516-17. Nor was he required to "expressly state that he considered alternatives and found none to be superior." United States v. Bauman, 887 F.2d 546, 550 n.8 (5th Cir. 1989) (citing Washington, 434 U.S. at 501). So, a month later, when the trial judge further explained how he had considered but rejected there being a reasonable alternative to mistrial and why he had found there was manifest necessity to declare a mistrial, the judge was not "cleaning up" a deficiency in his earlier ruling. Nor was he changing his reasoning. The record shows that both motions to dismiss were denied for the exact same reason—a mistrial was manifestly necessary based on Dr. Davis's sudden unavailability.

         ¶29. "It is in [the trial judge's] sound discretion to determine the necessity of declaring a mistrial, and upon any appeal his reasons as stated for the record will be accorded the greatest weight and respect by an appellate court." Id. at 1319. The trial judge determined a mistrial was manifestly necessary due to Dr. Davis's absence. Instead of disregarding and wholly dismissing the trial judge's reason as the dissent does, we accord this reason the great weight and respect that the law ...

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