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
STATE of Mississippi
[Copyrighted Material Omitted]
LAUDERDALE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. LESTER F.
WILLIAMSON, JR., J.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY:
HUNTER N. AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY:
RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
RANDOLPH, CHIEF JUSTICE
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. Crofts felon-in-possession and
attempted-murder convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
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 youre 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
Halls 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.
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.
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.
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. Crofts court-appointed
attorney, Marcus Evans, then filed a motion for discovery.
Crofts trial was reset three times over the course of months
for various reasons, including substitution of counsel after
Croft sought Evanss dismissal. Crofts 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.
Croft subsequently filed a demand for speedy trial. Croft
then filed his responses to discovery along with a notice of
alibi defense. Crofts trial was reset after the
withdrawal of cocounsel for Crofts 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 Crofts motion to dismiss but severed
The day before trial, Kenza accepted a plea deal and agreed
to testify. Croft objected to Kenzas 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 Kenzas 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 Crofts trial. The trial court granted
Crofts 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.
The State offered four witnesses: the victim, Hall; Ball, an
investigator from the Meridian Police Department; Kenza, one
of Halls 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.
Ball questioned about his investigation. Ball had been
employed in law enforcement for twenty-two years and was
assigned to the Meridian Police Departments 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.
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]heyre not friends. They are rivals.
They been— I dont 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 hes a 60 Crip."
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.
[Crofts attorney]: Your Honor, at this juncture, then Id
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. Hes not tendered as
an expert. Hes tendered as somebody thats been involved in
the gang investigations in this community since 2013. You may
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, maam.
Kenza was called to testify on the second day of trial.
Kenzas testimony was consistent with Halls 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
Following the doctors 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 Crofts motion.
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,
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.
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
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 conspiracys 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 ...