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In re Croft

Supreme Court of Mississippi

May 16, 2019

MONTRELL CROFT a/k/a MONTREL LASHUN CROFT a/k/a G-MONEY a/k/a MONTRELL LASHAUN CROFT a/k/a MONTRELL L. CROFT
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 09/07/2017

          LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON, JR. JUDGE

          TRIAL COURT ATTORNEYS KASSIE ANN COLEMAN LISA J. HOWELL STEPHEN PAUL WILSON THOMAS GOODWIN BITTICK

          ATTORNEY FOR APPELLANT OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AIKENS

          ATTORNEY FOR APPELLEE OFFICE OF THE ATTORNEY GENERAL BY: JOE HEMLEBEN

          BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

          RANDOLPH, CHIEF JUSTICE

         ¶1. Montrell Croft, a/k/a "G-Money," was convicted of "participating in or conducting or conspiring" in illegal gang activity, possession of a firearm by a felon, and attempted murder in Lauderdale County Circuit Court following a jury trial. Croft now appeals. The Court finds that an instruction permitting a jury in a criminal case to find an element of a crime by a preponderance of the evidence constitutes plain error. Accordingly, we reverse and remand for a new trial on whether Croft "participat[ed] in or conduct[ed] or conspir[ed]" in criminal gang activity beyond a reasonable doubt. Croft's felon-in-possession and attempted-murder convictions and sentences are affirmed.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On September 23, 2015, Marcus Hall, a/k/a "Handy Dandy," was approached by a group of men including Croft, who witnesses testified was a ranking member of the "Rolling 60s Crips" gang. Croft told Hall, "you know you're fixing to die tonight; right?" Hall replied that he did not have a problem with the men. Another group including Kenzavion Woodard ("Kenza") approached Hall from a different direction. Kenza screamed Hall's name, then Croft shot Hall. Hall fell in a ditch as men in the groups continued to shoot at him. After firing multiple shots, the groups fled.

         ¶3. Hall received wounds to the abdomen and each thigh. A treating physician testified that any of the three wounds could have been fatal. Anthony Ball, a gang investigator with the Meridian Police Department, visited Hall in the hospital. Hall told Ball that "G-Money" was one of the shooters. Ball knew "G-Money" to be Croft. After Hall was released from the hospital, Ball had Hall look at group photos from the Rolling 60s Crips' Facebook page. Hall identified Croft as "G-Money" and identified three other assailants from the photos.

         ¶4. A grand jury returned a multicount, multidefendant indictment charging Croft and others with crimes related to the shooting of Hall. Count I charged Croft, Jimmy Marquez Johnson ("Johnson"), Emmitt Jordan, Ernest Scott, and Kenza with participating in, conducting, or conspiring in illegal gang activity under Mississippi Code Sections 97-1-1 and 97-44-19 (Rev. 2014). Count II charged Croft with possession of a firearm by a convicted felon under Mississippi Code Section 97-37-5 (Rev. 2014). Count III charged Croft, Kenza, and Johnson with attempted murder under Mississippi Code Sections 97-1-7 and 97-3-19 (Rev. 2014).

         ¶5. Croft pleaded not guilty. His trial was set to proceed with Kenza and Johnson as codefendants. Croft petitioned for appointment of counsel, which was granted. Croft then filed a pro se motion for release on bond. Croft's court-appointed attorney, Marcus Evans, then filed a motion for discovery. Croft's trial was reset three times over the course of months for various reasons, including substitution of counsel after Croft sought Evans's dismissal. Croft's second court-appointed attorney, Stephen Wilson, filed a motion to set bail. The trial court denied the motion because Croft was already on bond for a drug-trafficking charge in Alabama.

         ¶6. Croft subsequently filed a demand for speedy trial. Croft then filed his responses to discovery along with a notice of alibi defense.[1] Croft's trial was reset after the withdrawal of cocounsel for Croft's codefendants, Kenza and Johnson. Croft filed a motion to dismiss the indictment for violation of his right to a speedy trial and, alternatively, a motion to sever his trial from those of his codefendants. The trial court denied Croft's motion to dismiss but severed Croft's trial.

         ¶7. The day before trial, Kenza accepted a plea deal and agreed to testify. Croft objected to Kenza's testifying, claiming unfair surprise. The trial court permitted Croft and the State to meet with Kenza and to obtain his statement prior to his testifying. After Croft obtained Kenza's statement, Croft claimed he needed to alter his trial strategy and call Ernest Scott and Emmitt Jordan, who previously had been disclosed as witnesses for Croft. Both witnesses were present in the courtroom awaiting Croft's trial. The trial court granted Croft's request to issue subpoenas for both but declined to grant a continuance. Croft failed to have either witness served with a subpoena, and he did not call Scott and Jordan or his alleged alibi witness.

         ¶8. The State offered four witnesses: the victim, Hall; Ball, an investigator from the Meridian Police Department; Kenza, one of Hall's assailants; and the emergency room physician who treated Hall. Hall testified to the facts discussed above, and he also provided an in-court identification of Croft.

         ¶9. Ball questioned about his investigation. Ball had been employed in law enforcement for twenty-two years and was assigned to the Meridian Police Department's Gang Unit. In addition to his on-the-job training and experience, he testified that he had specialized training in gang-related cases from the Mississippi Association of Gang Investigators ("MAGI"). Ball testified that he attends a MAGI conference each year to obtain recertification as a gang investigator. He testified that he knew Croft and provided an in-court identification of him.

         ¶10. Ball testified that the victim, Hall, was a "hang-around" with the Black Disciple gang, meaning he was friends with Black Disciples but was not an actual member. When the State questioned Ball about whether the Black Disciples and the Rolling 60s Crips were rivals, he testified that "[t]hey're not friends. They are rivals. They been-I don't quite understand what they beefing about all the time, but they just always into it." The State then questioned Ball about his personal knowledge of whether Croft was affiliated with any particular gang. Ball testified that he had known Croft for six or seven years and that it was common for him to keep up with who was associated with what gang. Ball stated, "I have talked to Montrell Croft on several occasions, and he is firm-believe me, he will tell you he's a 60 Crip."

         ¶11. The State asked Ball his opinion on what had prompted the shooting. The following colloquy took place:

Q: Based on your information of knowing that the victim, Marcus Hall, regularly associated with people that were [Black Disciple] and knowing that Montrell Croft was a [Rolling 60s Crip]; what, if anything, did you determine about this case and what prompted it?
. . . .
[Ball]: It can be a guess or a theory that they was into it with the [Black Disciples] and they thought Marcus was one and saw him and shot him.
. . . .
[Croft's attorney]: Your Honor, at this juncture, then I'd also impose an objection to the extent that this may enter into expert testimony and that he was not disclosed as an expert in discovery.
BY THE COURT: That again is overruled. He's not tendered as an expert. He's tendered as somebody that's been involved in the gang investigations in this community since 2013. You may proceed.
Q. Investigator Ball, based on your determination that this case was gang-related; what, if any, charges did you file against Montrell Croft?
A. Under the Street Gang Act, the attempted murder.
. . . .
Q. And based on your investigation, everybody that you talked to and all the investigation that you did, did you believe that it was motivated as a result of this gang rivalry?
A. Yes, ma'am.

         ¶12. Kenza was called to testify on the second day of trial. Kenza's testimony was consistent with Hall's testimony about what occurred before and during the shooting. Kenza testified that the shooting began after he, Croft, and others observed Hall wearing orange, a color associated with the "Hoover Crips" gang. Kenza testified that they believed Hall was trying to sneak up on them because the Hoover Crips and the Rolling 60s Crips were "beefing" with each other. Kenza later testified that he had also tried to shoot Hall because Hall was a Black Disciple but that his gun would not fire. Kenza testified that he tried to shoot Hall because he wanted to "try to get some stripes off [of Hall]," which would have entitled him to a higher ranking in his gang.

         ¶13. Following the doctor's testimony, the State rested. Croft moved for a directed verdict and judgment as a matter of law on Counts I and III. The trial court denied Croft's motion.

         ¶14. A total of twenty-one jury instructions were given. The trial court gave the following jury instruction detailing the elements of the crime of participating in or conducting criminal gang activity:

The Court instructs the Jury that the Defendant has been charged with Participating in or Conducting Criminal Street Gang Activity in Count I. If you find from the evidence in this case beyond a reasonable doubt that:
1) On or about September 23, 2015, in Lauderdale County, Mississippi;
2) The defendant, MONTRELL LASHUN CROFT, AKA "G-MONEY," individually or while aiding and abetting and/or acting in concert with another,
3) did willfully, unlawfully, feloniously, and intentionally conspire, direct, participate, conduct, further, or assist in the commission of illegal gang activity by purposely and/or knowingly attempting to murder Marcus Devon Hall, with a firearm, by shooting him
then it is your sworn duty to find said Defendant, MONTRELL LASHUN CROFT, AKA "G-MONEY," guilty of Participating in or Conducting Criminal Street Gang Activity in Count I.
Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall find said Defendant not guilty of Participating in or Conducting Criminal Street Gang Activity in Count I.

         ¶15. To define "gang," the State offered the following jury instruction, which tracks the language of Mississippi Code Section 97-44-3(a) (Rev. 2014):

The Court instructs the Jury that for the purpose of this trial "Streetgang" or "gang" or "organized gang" or "criminal streetgang" means any combination, confederation, alliance, network, conspiracy, understanding, or other similar conjoining, in law or in fact, of three (3) of more persons with an established hierarchy that, through its membership or through the agency of any member, engages in felonious criminal activity.
It shall not be necessary for the State to show that a particular conspiracy, combination or conjoining of persons possesses, acknowledges or is known by any common name, insignia, flag, means of recognition, secret signal or code, creed, belief, structure, leadership or command structure, method of operation or criminal enterprise, concentration or specialty, membership, age or other qualifications, initiation rites, geographical or territorial situs or boundary or location, or other unifying mark, manner, protocol or method of expressing or indicating membership when the conspiracy's existence, in law or in fact, can be demonstrated by a preponderance of the competent evidence. However, any evidence reasonably tending to show or demonstrate, in law or in fact, the existence of or membership in any conspiracy, confederation or other association described herein, or probative of the existence of or membership in any such association, shall be admissible in any action or proceeding brought under the Criminal Street Gang Act of Mississippi.

(Emphasis added.) The trial court granted this instruction without objection from Croft's trial attorney.

         ¶16. The jury found Croft guilty on all counts. After a sentencing hearing, the trial court sentenced Croft to twenty years in the custody of the Mississippi Department of Corrections ("MDOC"), with ten years suspended and five years of post-release supervision on Count I, ten years in the custody of MDOC on Count II, and thirty years in the custody of MDOC, with ten years suspended and five years of post-release supervision on Count III. The trial judge ...


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