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
OF JUDGMENT: 09/07/2017
LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON,
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
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. Croft's felon-in-possession
and attempted-murder convictions and sentences are affirmed.
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 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.
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. 2014).
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.
Croft subsequently filed a demand for speedy trial. Croft
then filed his responses to discovery along with a notice of
alibi defense. 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.
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.
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
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.
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."
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.
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.
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
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 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.
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