OF JUDGMENT: 12/19/2016
COUNTY CIRCUIT COURT HON. WINSTON L. KIDD TRIAL JUDGE
COURT ATTORNEYS: ALICE THERESA STAMPS KIMALON S. CAMPBELL
GRETA D. MACK HARRIS ADOFO MINKA SHAUNTE' DENISE
ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: ROBERT SHULER SMITH
WALLER, C.J., MAXWELL AND ISHEE, JJ.
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.
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.
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
Facts and Procedural History
Montgomery's first murder trial began on Monday, October
3, 2016. Pretrial motions and jury selection took up the
entire first day.
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
Following pretrial motions, the jury was selected and sworn.
The jury then was sent home for the day.
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
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.
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.
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."
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.
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.
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
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
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.
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.
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."
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).
Montgomery appeals his conviction. Represented by new counsel
on appeal, he asserts three errors:
(1) The second trial violated his right against double
(2) The depraved-heart murder instruction omitted an
(3) The lack of a complete trial record violates his
statutory right to an appeal and is a denial of due process.
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.
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).
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
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.
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
Trial Court's Reason for Mistrial
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.
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." (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.
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.
"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 ...