Adrian Montgomery v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2017-KA-00221-SCT

ADRIAN MONTGOMERY a/k/a ADRIAN
DANIELLE MONTGOMERY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 12/19/2016
TRIAL JUDGE: HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS: ALICE THERESA STAMPS
KIMALON S. CAMPBELL
GRETA D. MACK HARRIS
ADOFO MINKA
SHAUNTE’ DENISE WASHINGTON
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
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
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶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

2
¶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.

3
¶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

4
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

1
Montgomery based this argument on the assertion that the State had failed to
subpoena Dr. Davis. But the record shows the State had subpoenaed Dr. Davis. So his
failure to appear was not due to the State’s lack of diligence but rather Dr. Davis’s sudden
family emergency.

5
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.

2
Specifically, now-Sergeant Obie Wells testified about his recorded interviews with
Brownlow and Montgomery, respectively. While the jury heard Montogmery’s recorded
confession, the CD audio recording was retained by the trial court and is not part of the
record on appeal.

6
¶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.

7
 Discussion

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

8
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.

9
(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

3
According to the Fifth Circuit, “strictest scrutiny” requires the trial court to conduct
“[a] painstaking examination of all relevant facts and circumstances,” which must
“encompass[] at least a careful consideration of any reasonable alternative to a mistrial.”
Fisher, 624 F.3d at 722.
4
As the dissent points out, the language in the ensuing order misstated the reason for
declaring mistrial. But it is obvious the court used a form order with boilerplate language.
And not even the dissent is arguing that the reason stated in the form order was the actual
reason a mistrial was granted.

10
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 requires, as we decide if the trial court’s declaring a mistrial based

on Dr. Davis’s unavailability survives strictest scrutiny.

C. Dr. Davis’s Unvailability

¶30. The United States Supreme Court has “refuse[d] to say that the absence of witnesses

‘can never justify discontinuance of a trial.’” Downum, 372 U.S. at 737 (quoting Wade v.

Hunter, 336 U.S. 684, 691, 69 S. Ct. 834, 838, 93 L. Ed. 974 (1949)). Instead, “[e]ach case

must turn on its facts.” Id. That said, when surveying cases across jurisdictions that have

found a prosecution witness’s unavailability created a manifest necessity to declare a mistrial,

11
a pattern does emerge. A manifest-necessity finding tends to be upheld when the witness’s

availability was sudden and unknown to the prosecution before trial began and jeopardy

attached, the witness was a key prosecution witness, and the trial court considered

alternatives to declaring a mistrial but none appeared adequate. See, e.g., United States ex

rel. Gibson v. Ziegele, 479 F.2d 773, 777 (3d Cir. 1973); Wilson v. Gusman, 2012 WL

893471, at **5-6 (E.D. La. March 15, 2012) (unreported); McCorkle v. State, 619 A.2d 186,

201 (Md. Ct. App. 1993).5

¶31. The facts here follow that pattern. First, Dr. Davis’s unavailability was sudden and

surprising to the State. This case is not like Downum, in which the prosecution simply “took

a chance” and “allowed the jury to be selected and sworn even though one of its key

5
In Ziegele, the Third Circuit held the trial court did not abuse its discretion in
declaring a mistrial over the defendant’s objection when it learned the key prosecution
witness—the officer who recorded the defendant’s confession—had suffered a “cardiac
insufficiency” and would not be able to testify for several weeks, making a continuance
infeasible. Ziegele, 479 F.2d at 777. In Wilson, the district court found there had been
manifest necessity for the trial court to declare a mistrial when the alleged rape victim,
“obviously an essential witness,” discovered her pregnancy was ectopic and required
emergency surgery and an uncertain period of recovery, making it unfair for the jury that had
been sworn “to have this case hanging over their heads for some indeterminate number of
days.” Wilson, 2012 WL 893471, at **5-6. And in McCorkle, the state appeals court held
that manifest necessity existed for the trial court to declare a mistrial based on a witness’s
sudden illness because “the witness who was absent was the key prosecution witness,” “the
key witness’s absence was not known to or reasonably expected by the State prior to
jeopardy attaching,” and the “trial judge considered alternatives to declaring mistrial, but . . .
none of these alternatives appeared efficacious.” McCorkle, 619 A.2d at 201.
By contrast, reviewing courts have found no manifest necessity to declare a mistrial
when: the prosecutor, prior to trial beginning, had reason to suspect that the witness may not
appear, e.g., Downum, 372 U.S. at 735-37, and United States v. Stevens, 177 F.3d 579 (6th
Cir. 1999); the unavailable witness’s testimony was not essential, e.g., Routh v. United
States, 482 A.2d 638 (D.C. Ct. App. 1984); or the trial court too hastily declared a mistrial
before considering alternatives, e.g., United States v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004).

12
witnesses was absent and had not been found.” Downum, 372 U.S. at 735-37. Here, Dr.

Davis had been prepared to testify when trial began. The record reflects the State had

subpoenaed Dr. Davis to appear for trial beginning that Monday. So when jury selection

started on Monday, October 3, the State had no reason to anticipate that its expert pathologist

would be unavailable to testify that week. And it was only the next morning that someone

in Dr. Davis’s office called to alert the prosecution that Dr. Davis had a family emergency

that would prevent him from coming to court.6 See Ziegele, 479 F.2d at 775 (holding that,

since the lead investigative officer “had been present on the first day of the trial, it is evident

that he would have been available as a witness if he had not become ill”).7

¶32. Second, Dr. Davis was a key witness. Just the day before Dr. Davis became

unavailable, during the pretrial motion to exclude Dr. Hayne, both sides teed up this case as

largely a battle of experts on O’Neal’s cause and manner of death. So when the trial judge

6
The dissent questions whether Dr. Davis had a true “emergency,” as defined by
Black’s Law Dictionary. Citing a completely irrelevant regulatory statute, the dissent
suggests Dr. Davis’s father-in-law’s situation was not urgent enough to render Dr. Davis
suddenly unavailable. This suggestion not only ignores the record—the State was told Dr.
Davis was “with his father in law” because “he doesn’t know how much longer he has to
live”—it also misses the point. The relevant inquiry is not whether being placed in
“hospice,” as that term is defined for licensing purposes, constitutes an emergency. Instead,
the real question is whether Dr. Davis’s absence was “known to or reasonably expected by
the State prior to jeopardy attaching.” McCorkle, 619 A.2d at 61 (emphasis added). Indeed,
in McCorkle, it appears there was no real “emergency” after all because the government’s
key witness had lied to the court about being sick to get out of testifying. But that did not
change the critical fact that the witness’s absence came as a surprise to the State. Given that
the State had subpoenaed Dr. Davis, the record supports that his absence was sudden and
certainly unanticipated by the State.
7
The only difference between Ziegele and this case is that, here, it was Dr. Davis’s
father-in-law, and not Dr. Davis himself, who became gravely ill. But the result is the same.
Dr. Davis’s unexpected family emergency rendered him unavailable to testify.

13
learned of Dr. Davis’s sudden unavailability the next day, the court was well aware that Dr.

Davis’s testimony about O’Neal’s cause of death was crucial to the State’s case. See Ziegele,

479 F.2d at 777 (finding the unavailable officer’s testimony about the defendant’s confession

was “the most important element in the prosecution’s case”); Wilson, 2012 WL 893471, at

*5 (noting the unavailable alleged rape victim was “obviously an essential witness”);

McCorkle, 619 A.2d at 201 (noting the missing witness was key, with “both parties ha[ving]

made extensive references to this witness’s expected testimony” during their opening

statements).

¶33. That leaves only the question of whether the trial court adequately considered the

alternatives to declaring a mistrial. See Fisher, 624 F.3d at 722 (defining “strictest scrutiny”

to include requiring the trial court to conduct “a careful consideration of any reasonable

alternative to a mistrial”). And here is where Montgomery focuses his no-manifest-necessity

argument on appeal. He asserts the trial judge declared a mistrial without enough

information. He points out that neither the prosecutor nor the judge spoke with Dr. Davis

directly, no one represented Dr. Davis himself was too incapacitated to testify, and it was not

known whether a one- or two-day continuance would have resolved the problem.

¶34. It was the very lack of said information, however, that led the trial court to believe its

only choice was to declare a mistrial. The trial judge in this case did the exact same thing

the judge in Ziegele did—he granted a recess to better ascertain the witness’s situation to

determine if a continuance was possible. Ziegele, 479 F.2d at 775. The judge directed the

State to call the Medical Examiner’s Office to find out if Dr. Davis was somewhere in the

14
area and whether he would be available in the next few days, making a continuance feasible.

Unfortunately, the State was unable to get any answers. The only thing Dr. Davis’s assistant

knew was that Dr. Davis was somewhere with his dying father-in-law.

¶35. Montgomery contends a day or two continuance could have resolved the problem.

But his argument is speculative. A day or two continuance could have resulted in the same

situation—Dr. Davis still unavailable to testify due to his family emergency.8 In the trial

court’s view, asking the jury to wait an unknown duration without trial testimony would have

been inappropriate. The trial court in McCorkle reached a similar conclusion when

considering a continuance until the State could secure the witness, who was suspected of

faking his illness. In the court’s view, there was “no reasonable likelihood the witness was

going to appear.” So “it would [have been] burdensome and unfair to the jurors to have this

matter linger and them not knowing when the day of trial would be.” McCorckle, 619 A.2d

at 191. See Wilson, 2012 WL 893471, at *2 (noting the trial court had rejected the

alternative of a continuance because it was “unfair to the jury that’s been sworn to have this

case hanging over their heads for some indeterminate number of days”).

8
The same is true for the dissent’s suggestion that waiting a few more hours might
have resulted in the State being able to contact Dr. Davis. The message Dr. Davis had
communicated to the State through his office was that he would be out of reach while his
father-in-law was dying—a situation that was unlikely to change in a few hours.

15
¶36. The trial judge considered the alternative to mistrial—a continuance.9 But given the

open-ended nature of Dr. Davis’s unavailability—being with a dying family member—the

trial court found a continuance was not an appropriate alternative. Therefore, under the

circumstances, which included Dr. Davis’s unexpected family emergency, the importance of

his testimony, and the uncertainty that a continuance would suffice—we hold manifest

necessity existed to declare a mistrial. So Montgomery’s “valued right to have the trial

concluded” by the first tribunal, in this case, was “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. And his second trial did not violate double jeopardy.

II. Jury Instructions

¶37. Alternatively, Montgomery argues he is entitled to a new trial because

Instruction 15—a jury instruction for the lesser-included charge he was convicted of—was

fatally defective. According to Montgomery, this instruction lacked the essential element

that the killing must be “without authority of law.”

¶38. Submitted as S-2A, Jury Instruction 15 instructed the jury:

If you believe from all the evidence, beyond a reasonable doubt, that:

(1) The defendant, Adrian Montgomery;

(2) did, on or about the 6th day of July, 2013, in the First Judicial District of
Hinds County, Mississippi;

9
As the Fifth Circuit has noted, “Manifest necessity does not mean absolute
necessity[.]” Fisher, 624 F.3d at 718 (emphasis added). So what it required is that the trial
court consider “reasonable alternatives.” Id. at 721. And the dissent’s proposed alternative
that the trial court could have tracked Dr. Davis down and sent an officer to forcibly remove
him from his father-in-law’s hospice bed does not strike this Court as reasonable.

16
 (3) kill Terome O’Neal, a human being, by beating the said Terome O’Neal
with his fist;

(4) while in the commission of an act eminently dangerous to others and
evincing a depraved heart, regardless of human life, although without any
premeditated design to effect the death of any particular individual;

(5) and not in necessary self-defense;

then and in that event, you must find the defendant, Adrian Montgomery,
guilty of Depraved Heart Murder.10

Montgomery zeroes in on the fact that this particular instruction did not contain the phrase

“without authority of law.” He insists this omission was prejudicial because his theories of

defense were self-defense and accident, both of which would have excused the killing.

Moreover, because both the deliberate-design-murder instruction and the heat-of-passion-

manslaughter instruction contained this phrase, he suggests the omission in Instruction 15

gave the jury the option to find him guilty of depraved-heart murder, even if his killing

O’Neal had been lawful.

¶39. Montgomery did not object to Jury Instruction 15 as given to the jury. While

Montgomery did object to the instruction’s original inclusion of the phrase “or blunt object,”

the trial judge agreed to remove this language. He then asked Montgomery’s counsel if she

had any further objections to Instruction 15, to which Montgomery’s counsel replied “no.”

On appeal, Montgomery “may not argue that an instruction was erroneous for a reason other

than the reason assigned on objection to the instruction at trial.” Irby v. State, 893 So. 2d

10
The instruction continued: “If the prosecution has failed to prove any one or more
of the above listed elements of Murder or Depraved Heart Murder beyond a reasonable
doubt, then you shall find the Defendant not guilty of Depraved Heart Murder.”

17
1042, 1047 (Miss. 2004). For this same reason, the objection Presiding Justice Kitchens

relies on certainly did not preserve Montgomery’s claim. That objection was to a different

instruction, Instruction 12, for a different reason.11

¶40. As we have held, “when a jury instruction is offered at trial, it is the duty of the

opposing party, in order to preserve the point for appeal, to state a contemporaneous

objection in specific terms.” Id. (citations omitted). Here, Montgomery did not specifically

object to Instruction 15 because it lacked the phrase “without authority of law.” Nor did he

raise any concern that the depraved-heart-murder instructions as a whole were missing this

essential element. So this issue is waived. And our review is limited to plain error.

Shinstock v. State, 220 So. 3d 967, 970 (Miss. 2017).

¶41. “Under the plain-error doctrine,” this Court “can recognize obvious error which was

not properly raised by the defendant and which affects a defendant’s ‘fundamental,

substantive right.’” Conners v. State, 92 So. 3d 676, 682 (Miss. 2012) (quoting Smith v.

11
Instruction 12, submitted as S-4, defined “acting with a depraved heart.” It
provided:

The Court instructs the Jury acting with a depraved heart is when a person acts
in a highly dangerous way which shows that the person does not care for the
safety of human life. Even if someone does not intend to kill any particular
person, he can still be guilty of murder if he acts with a depraved heart, [and]
a person is killed as a result.

Montgomery objected to Instruction 12 because this particular instruction, which dealt with
the depraved-heart element of second-degree murder, did not “not track the language of the
statute” and was not supported by the evidence. Montgomery does not reassert these claims
on appeal. And these objections cannot be conflated with the objection Montgomery raises
for the first time on appeal—that the instructions are fatally defective because they are
missing the “without authority of law” element.” Irby, 893 So. 2d at 1047.

18
State, 986 So. 2d 290, 294 (Miss. 2008)). The failure to submit to the jury the essential

elements of the crime is a “fundamental error.” Hunter v. State, 684 So. 2d 625, 636 (Miss.

1996) (citing Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 1038, 89 L. Ed. 1495

(1945)). However, when a jury instruction is challenged on appeal, this Court does not

review it in isolation. Rubenstein v. State, 941 So. 2d 735, 787 (Miss. 2006). Instead, this

Court reads the instructions “as a whole to determine if the jury was properly instructed.”

Id. (quoting Milano v. State, 790 So. 2d 179, 184 (Miss. 2001)). If the jury instructions,

read as a whole, fairly announce the law of the case and create no injustice, no reversible

error will be found. Harris v. State, 861 So. 2d 1003, 1014 (Miss. 2003).

¶42. When the deliberate-design-murder instructions are read as a whole, we discern no

obvious error. The essential elements of depraved-heart, or “second-degree,” murder are

“[t]he killing of a human being without the authority of law by any means or in any manner

. . . [w]hen done in the commission of an act eminently dangerous to others and evincing a

depraved heart, regardless of human life, although without any premeditated design to effect

the death of any particular individual[.]” Miss. Code Ann. § 97-3-19(1)(b).

¶43. But the three instructions immediately following Instruction 15 alleviate any concern

that the jury may have mistakenly believed it could find Montgomery guilty for lawfully

killing O’Neal. Instructions 16, 17, and 18 clearly instructed the jury on Montgomery’s two

defense theories. Specifically, the jury was instructed that O’Neal’s killing would be

“justified” if done in self-defense and “excusable” if the result of an accident.12 Stated

12
Instruction 16 informed the jury:

19
differently, the jury was instructed that, to find Montgomery guilty of depraved-heart murder,

it had to find that Montgomery not only killed O’Neal but also that Montgomery’s actions

were neither “justified” nor “excusable.” So, contrary to Montgomery’s suggestion, the jury

The Court instructs the jury that a person is under no duty to retreat and avoid
the necessity of using deadly force where otherwise a homicide is committed
in self defense.

If you find from the evidence that the killing of Terome O’Neal is justified
and that Adrian Montgomery acted in self-defense because he had reasonable
grounds to fear that he would suffer great personal injury and that there was
imminent danger of the injury occurring, then Adrian Montgomery would
have no duty to retreat, whether he could have done so with complete safety
or not.

Instruction 17 continued:

The Court instructs the jury that to make a killing justifiable on the grounds
of self-defense, the danger to Adrian Montgomery must be either actual,
present, and urgent, or Adrian Montgomery must have reasonable grounds to
apprehend a design on the part of the victim to kill him or to do him some
great bodily harm, and in addition to this he must have reasonable grounds to
apprehend that there is imminent danger of such design being accomplished.
It is for the jury to determine the reasonableness of the ground upon which the
defendant acts.

If you the jury find that Adrian Montgomery acted in self-defense, then you
must find the defendant not guilty.

And Instruction 18 read:

The Court instructs the jury that the killing of a human being is excusable
homicide if you find from the evidence, if any, that Adrian Montgomery’s act
which caused the death of Terome O’Neal was the result of an accident and
misfortune, in the heat of passion, upon sudden and sufficient provocation,
and if you further find that Terome O’Neal’s death was caused by an accident
resulting from Adrian Montgomery hitting Terome O’Neal and Terome
O’Neal’s head hitting a tree.

20
was not erroneously instructed it could find Montgomery guilty of murder for lawfully killing

O’Neal.

¶44. Instead, this case is akin to Harris v. State. There, the defendant similarly claimed

the giving of a depraved-heart-murder instruction that omitted the phrase “without authority

of law” was error. Harris, 861 So. 2d at 1013. But this Court summarily rejected that

argument, holding synonymous “unlawful” language in a different part of the instruction was

an “acceptable substitute” for the missing phrase. Id. The same was true in Ramsey v.

State, 959 So. 2d 15, 22 (Miss. Ct. App. 2006). Though the capital-murder instruction did

not include the “relevant language ‘without authority of law’”—or even the synonym

“unlawful”— the Court of Appeals found no error based “upon reading the instruction in its

entirety and considering the language of the instruction as a whole.” Id.

¶45. Because the depraved-heart-murder instructions, when read as a whole, “fairly

announce the law of the case and create no injustice,” no plain error occurred. Harris, 861

So. 2d at 1014.

III. Trial Record

¶46. Finally, Montgomery claims his right to appeal has been impeded because none of the

bench conferences were recorded by the court reporter. But in Keller v. State, a death-

penalty case, we held a similar claim had “not been properly preserved for appeal due to the

absence of a contemporaneous objection by the defendant at trial to failure on the part of the

court reporter to record all of the proceedings.” Keller v. State, 138 So. 3d 817, 836 (Miss.

2014). Here, instead of an objection, Montgomery’s counsel agreed that the bench

21
conferences would be off-the-record. Thus, this issue was not properly preserved for

appeal.13

Conclusion

¶47. Because there was manifest necessity for a mistrial of Montgomery’s first trial, and

because the depraved-heart-murder instructions, when read as a whole, fairly announced the

law, we find no error. We affirm Montgomery’s second-degree-murder conviction and

sentence.

¶48. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., BEAM, CHAMBERLIN AND ISHEE, JJ.,
CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KING AND COLEMAN, JJ. KING, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS, P.J., AND COLEMAN, J.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶49. I wholeheartedly join the thorough and well-written dissent of my learned colleague

Justice King. I write separately because, even in the absence of the double jeopardy problem,

the majority erroneously excuses another fatal defect in the jury instructions.

¶50. The majority incorrectly applies the plain error standard and finds that “Montgomery

did not object at trial to [the depraved-heart murder instruction] as given to the jury.” Maj.

Op. ¶ 39. Defense counsel did object to the instruction defining “acting with a depraved

13
Montgomery’s appellate counsel suggests the agreement to allow all bench
conferences to be off-the-record constituted constitutionally ineffective assistance of trial
counsel. But she concedes the record is not sufficiently developed to address ineffective
assistance on direct appeal. We agree an ineffective-assistance claim would be better suited
for a petition for postconviction relief. So to the extent Montgomery has brought such a
claim, we dismiss it without prejudice. See Archer v. State, 986 So. 2d 951, 956-57 (Miss.
2008).

22
heart,” Instruction S-4, arguing that it “does not track the language of the statute . . . .”

Defense counsel’s recitation of Mississippi Code Section 97-3-19(1)(b) included the “without

the authority of law” language. Defense counsel then, a second time, stated that the jury

instruction “doesn’t track the language of the statute.”

¶51. Instruction S-4, to which defense counsel objected, stated the following:

The Court instructs the Jury acting with a depraved heart is when a person acts
in a highly dangerous way which shows that the person does not care for the
safety of human life. Even if someone does not intend to kill any particular
person, he can still be guilty of murder if he acts with a depraved heart, a
person is killed a result.

At the outset, “the above instruction is an abstract instruction on the law and should not be

given.” Wall v. State, 379 So. 2d 529, 532 (Miss. 1980) (citations omitted) (holding that an

instruction which explained to the jury that “‘proof of motive is not essential to a conviction

for felonious homicide’” was defective because it “was prejudicial to the appellant and well

could have confused the jury into returning a guilty verdict after having been told by the

court that motive was not required to be shown”).

¶52. Despite Wall’s having made no objection to the infirm instruction, the Court reversed

and remanded the case sua sponte: “[I]n extreme cases, this Court may raise an objection to

a jury instruction in order to prevent manifest injustice.” Id.

¶53. Instruction S-4, standing alone and in the absence of a specific objection, warrants

reversal. Counsel’s objections to Instruction S-4, the instruction defining “acting with a

depraved heart,” sufficiently preserved Montgomery’s claim on appeal that the depraved

heart murder instruction, Instruction S-2A, was fatally defective for failure to fully to instruct

23
the jury on the elements of the depraved heart murder. And even if that objection was

insufficient to preserve Montgomery’s claim on appeal, such an extreme omission warrants

intervention by this Court “in order to prevent manifest injustice.” Id.

¶54. Mississippi Code Section 97-3-19(1)(b) (Rev. 2014) states that “[t]he killing of a

human being without the authority of law by any means or in any manner” shall be second-

degree murder “[w]hen done in the commission of an act eminently dangerous to others and

evincing a depraved heart, regardless of human life, although without any premeditated

design to effect the death of any particular individual . . . .” Miss. Code Ann. § 97-3-19(1)(b)

(Rev. 2014) (emphasis added).

¶55. Instruction S-2A informed the jury that:

[I]f you believe from all the evidence, beyond a reasonable doubt, that:

(1) The defendant, Adrian Montgomery;

(2) [D]id, on or about the 6th day of July, 2013, in the First Judicial District
of Hinds County, Mississippi;

(3) [K]ill Terome O’Neal, a human being by beating the said Terome
O’Neal with his fists . . .

(4) While in the commission of an act eminently dangerous to others and
evincing a depraved heart, regardless of human life, although without
any premeditated design to effect the death of any particular individual;

(5) And not in necessary self-defense;

[T]hen and in that event, you must find defendant, Adrian Montgomery, guilty
of Depraved Heart Murder.

Notably absent from the depraved-heart jury instruction was the statutory language “without

the authority of law.” The phrase “without the authority of law” had been included in the jury

24
instruction on first-degree, deliberate-design murder, which the jury rejected; and

Montgomery’s indictment for first-degree, deliberate-design murder had alleged that

Montgomery’s killing of Terome O’Neal had been “without authority of law.”

¶56. This Court has held that “it is always and in every case reversible error for the courts

of Mississippi to deny an accused the right to have a jury decide guilt as to each and every

element.” Harrell v. State, 134 So. 3d 266, 275 (Miss. 2014). The majority excuses the

failure to instruct the jury that it had to find that Montgomery’s actions had been “without

the authority of law” on the basis of harmless error. It equates the jury’s rejection of

Montgomery’s defense theories on self defense and accident, which had been presented to

the jury in the form of separate instructions, with a finding, beyond a reasonable doubt, that

Montgomery’s actions had been “without the authority of law.” But this Court recently held

that harmless error analysis never can be applied to cases in which “the trial court fails to

instruct a jury as to elements of a charged crime.” Harrell, 134 So. 3d at 275, overruling

Kolberg v. State, 829 So. 2d 29 (Miss. 2002).

¶57. Merely because the jury rejected Montgomery’s defense theories does not mean that

it found, beyond a reasonable doubt, that Montgomery had killed O’Neal “without the

authority of law.” Accordingly, I respectfully dissent.

KING AND COLEMAN, JJ., JOIN THIS OPINION.

KING, JUSTICE, DISSENTING:

¶58. The majority relies on a misconstruction of the record to conclude that manifest

necessity for a mistrial existed. Because manifest necessity for a mistrial was not shown,

25
because the trial court inappropriately flipped the burden of proof regarding the

appropriateness of a mistrial to the defendant, and because the prohibition against double

jeopardy barred the defendant’s retrial, I respectfully dissent.

¶59. The majority relies heavily on the trial court’s “finding” that “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’” to find that manifest necessity existed to grant a

mistrial. Maj. ¶ 14. Yet, the trial court found no such thing in granting the mistrial, and

nothing in the record indicates that the jury would have had to wait days without trial

testimony. Moreover, when deciding whether to grant a mistrial, the trial court did not place

the burden on the State to prove manifest necessity; rather, he inappropriately placed the

burden on the defendant to prove prejudice.

¶60. When the trial court asked counsel if they were ready for opening statements, the State

replied that the medical examiner’s “father-in-law is in hospice - - was put in hospice late

yesterday afternoon. We just found out about it really a couple of minutes ago.” The State

explained that it had spoken with the doctor’s assistant, who said that he was with his father-

in-law and did not know how much longer he had to live. The trial court queried how soon

the doctor could get to court, and the State did not know. The State did represent that the

doctor was in the Jackson metro area, as the case was being tried in Jackson. The trial court

then granted a fifteen minute recess to allow the State to find out more information regarding

the absence, and to determine how soon Dr. Davis could arrive at court. The State was

unable to contact Dr. Davis directly and was unable to glean much more information than it

26
had at the outset of the day, just about twenty minutes before. The State, based on this scant

information gleaned over a time period of only approximately twenty minutes, moved for a

mistrial, stating in full: “Your Honor, based upon my understanding of what the law is, I’m

going to have to - - since the jury has already been empaneled and sworn, I’m going to have

to ask the court to declare a mistrial.” The defense objected and moved for dismissal based

on double jeopardy. The following exchange then occurred:

THE COURT: Okay. He’ll be facing double jeopardy?
MS. STAMPS: Yes, Your Honor.
THE COURT: How so?
MS. STAMPS: Because we already have a jury that has been empanelled
[sic], sworn in, Your Honor.
THE COURT: Okay.
MS. HARRIS: There has been no testimony offered at this point, Your
Honor. This incident was unforeseeable. It was
unforeseen. It wasn’t something that was created by
man. Life happened to this doctor who is a material
witness in this matter.
THE COURT: Okay. Well, I’m interested in the double jeopardy
because we have mistrials all the time and the law allows
people to be retried. And this one has not gone that far.
We’ve even had jurors to deliverate and not be able to
return a verdict and the court declares mistrials, and
those matters are tried all the time and that’s not double
jeopardy. So what would make this double jeopardy?
MS. STAMPS: Your Honor, our position is that double jeopardy attaches
at the point that the jury has been sworn in and
empanelled [sic] and we would ask that the case be
dismissed.
THE COURT: All right. And the motion to dismiss will be denied.
What is the prejudice to your client given that he’s out
on bond? If he were in jail then there would be some
other issues that we would need to deal with. And I do
understand he wants his day in court, but what would be
the prejudice to your client at this point?
MS. STAMPS: Just prejudice of having this hanging over his head, Your
Honor. This is a three year old case.

27
 THE COURT: Well, usually, that’s something the court mentions all the
time and no one seems to be interested in that. So now
it’s a three year old case that the court has been
desperately trying to get to trial. And the defendant is
out on bond. There is no prejudice to this defendant.
The state is entitled to have all of their witnesses here.
The court would do the same for the defendant if a
witness was not available.
The court will deny the motion to dismiss. This is
not a situation where the defendant is being subjected to
double jeopardy. The matter will be reset for trial. 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.

(Emphases added.)

¶61. The trial court then issued a written order declaring a mistrial that incorrectly stated

that the “[j]ury retired to consider their Verdict, being in charge of Sworn officers of the

Court, and presently, returned into open Court and stated that they are unable to agree upon

a Verdict in said Cause. It is thereupon ordered by the Court that a MISTRIAL enter in said

Cause.” It is abundantly clear that the trial court found that a mistrial was appropriate

because it was early in the proceeding and the defendant failed to demonstrate prejudice.

¶62. One month later, the defendant filed a motion to dismiss based on double jeopardy.

It was only at the hearing on that motion that the trial court suddenly decided to clean up its

earlier “findings” regarding the mistrial. It stated that

The Court granted mistrial, due to that emergency, in that if a mistrial had not
been granted, the jury would have had to be here a number of days without
trial testimony, and the Court found that that would have been inappropriate.
The Court found that the mistrial was granted because of the family emergency
of the witness of the State.

28
Consequently, the trial court found manifest necessity for the mistrial. Of course, these new

“findings” were not actually what the trial court found in declaring the mistrial, nor does the

record support these new “findings.” The Court should disregard these later, unfounded

“findings,” and rely on the trial court’s findings at the time of granting the mistrial.

¶63. A high degree of necessity must be found before a mistrial is appropriate. Arizona

v. Washington, 434 U.S. 497, 506, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). An appellate

court applies “the strictest scrutiny” in reviewing the grant of a mistrial “when the basis for

the mistrial is the unavailability of critical prosecution evidence.” Id. at 508. This Court has

emphasized that it would be

a prudent procedure for any trial court before declaring a mistrial would be to
state into the record the reasons for declaring a mistrial. It is in his 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 of
weight and respect be an appellate court.

Jones v. State, 398 So. 2d 1312, 1318-19 (Miss. 1981) (emphasis added). It is clear that

before declaring the mistrial, the trial court stated that the reason for granting the mistrial was

that the defendant had not proven prejudice. This was inappropriate, as the burden is on the

State to justify the mistrial.14 “[T]he prosecutor must shoulder the burden of justifying the

14
The majority attempts to obfuscate the fact that the trial court never required the
State to meet its burden by claiming that the trial court found manifest necessity. Yet, the
majority does not explain why the trial court did not require any showing of manifest
necessity by the State, and did require a showing of unfair prejudice by the defendant. The
majority does not credibly explain why the trial court did not consider multiple alternatives,
except to say it is unknown if any of the alternatives would solve the issue; yet, the unknown
and lack of findings regarding alternatives should tilt against the State, not the defendant.
Lack of knowledge does not equal manifest necessity. In any event, to “prove” this point,
the majority disregards the whole of the record and relies on one line spoken by the trial
court that was stated after a lengthy discussion about how the trial court believed the

29
mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one.” Washington,

434 U.S. at 505. The prosecutor in this case did not shoulder that heavy burden, nor did the

court require it of the prosecutor. Furthermore, a trial judge must, in determining whether

to grant a mistrial, give “careful consideration to [the defendant’s] interest in having the trial

concluded in a single proceeding.” Washington, 434 U.S. at 514-16. The trial court gave

no such consideration, and emphasized the court’s opinion that a mistrial at such an early

stage in the proceedings was fairly inconsequential.15

¶64. Nor did the trial court consider other alternatives. The trial court granted only a

twenty minute recess to attempt to locate Dr. Davis. It could have granted a recess of a few

hours to allow the State to speak to Dr. Davis himself. Furthermore, the State claimed that

defendant must, and did not, prove prejudice. The majority claims that this dissent
“disregard[s]” and “wholly dismiss[es]” the trial court’s reasons. It appears that the majority
disregards and wholly dismisses all of the hearing record save one phrase, as well as the
caselaw that requires a showing and finding of manifest necessity.
15
The prohibition against double jeopardy is a “valued right” worthy of constitutional
protection, because a second prosecution may be grossly unfair, even when the first trial is
not completed. Washington, 434 U.S. at 503.

It increases the financial and emotional burden on the accused, prolongs the
period in which he is stigmatized by an unresolved accusation of wrongdoing,
and may even enhance the risk that an innocent defendant may be convicted.
The danger of such unfairness to the defendant exists whenever a trial is
aborted before it is completed. Consequently, as a general rule, the prosecutor
is entitled to one, and only one, opportunity to require an accused to stand
trial.

Id. at 503-05.

30
Dr. Davis had been properly subpoenaed.16 If so, and if he was in the area as claimed, the

State could have sent an officer to attempt to enforce the subpoena. These alternatives were

not even considered, demonstrating a lack of “manifest necessity” for the mistrial.

¶65. Moreover, even if this Court gives credence to the trial court’s later “findings”

attempting to clean up the original “findings,” the record offers no support for those findings.

The State did not produce evidence to show that Dr. Davis had an “emergency” as they

claim. Indeed, while I acknowledge that this time must have been difficult for Dr. Davis and

his family, hospice is, by its very definition, not an emergency. An “emergency” is defined

as “[a] sudden and serious event or an unforeseen change in circumstances that calls for

immediate action to avert, control, or remedy harm” or “[a]n urgent need for relief or help.”

Emergency, Black’s Law Dictionary (10th ed. 2014). “Hospice” is defined as care for

“terminally ill patients.” Miss. Code Ann. § 41-85-3(d) (Rev. 2013). “Terminally ill” is

defined as

a medical prognosis of limited expected survival, of six (6) months or less at
the time of referral to a hospice, of an individual who is experiencing an illness
for which therapeutic strategies directed toward cure and control of the disease
alone outside the context of symptom control are no longer appropriate.

Miss. Code Ann. § 41-85-3(k) (Rev. 2013). Someone being placed in hospice care, by its

very definition, would not be “sudden,” “unforeseen,” or “urgent.” Sad, yes, but not

emergent. The State failed to prove otherwise and that this was even an “emergency.”

16
The State produced a subpoena of Dr. Davis, but no return as executed is in the
record and the subpeona is not on the docket. The State’s other subpoenas are on the docket.
It is unclear from the record whether the State even served Dr. Davis with the subpoena and
thus validly summoned him to court for the trial, despite the majority’s misleading assertion
that Dr. Davis was subpoenaed.

31
Further, absolutely no evidence was adduced about when Dr. Davis could get to court. The

trial court, in its later “findings,” stated that “the jury would have had to be here a number

of days without trial testimony.” Yet, Dr. Davis may have been available that very afternoon,

or the next day. The State produced no evidence that he would not be available for several

days, only that he was not currently at court and that they had not been able to speak with him

directly. The ambiguity in the timing of his return must be held against the State for not

meeting their heavy burden, not the defendant.

¶66. When we apply the strictest of scrutiny to review of this case, it is clear that the State

failed to demonstrate manifest necessity for the mistrial. The double jeopardy bar prohibited

Montgomery’s second trial. I would reverse and render his conviction, and consequently

dissent.

KITCHENS, P.J., AND COLEMAN, J., JOIN THIS OPINION.

32