Montgomery v. State

• Decision Date: 18 November 2004
• Docket Number: No. 2003-KA-01130-SCT.,2003-KA-01130-SCT.
• Parties: Patsy MONTGOMERY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

891 So.2d 179

Patsy MONTGOMERY v. STATE of Mississippi.

No. 2003-KA-01130-SCT.

Supreme Court of Mississippi.

November 18, 2004.

Rehearing Denied January 20, 2005.

Victor Israel Fleitas, Tupelo, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before COBB, P.J., DICKINSON and RANDOLPH, JJ.

RANDOLPH, Justice, for the Court.

¶ 1. Patsy Montgomery was indicted, tried, and convicted of embezzlement. She was sentenced to ten years in the custody of the Mississippi Department of Corrections with five years suspended, five to serve with five years' post-release supervision and was assessed court costs of $423.50, a fine of $1,000 and ordered to pay $15,000 in restitution.

¶ 2. After denial of her post-trial motions, Montgomery appeals and raises the following issues:

I. Whether the trial court committed reversible error in refusing to allow Mrs. Montgomery to discover relevant and potentially exculpatory documentary evidence.

A. Whether the trial court committed reversible error in refusing to order the production of relevant documentary evidence within the control of the State after a specific request in writing by Mrs. Montgomery.

B. Whether the trial court committed reversible error in refusing to order the production of potentially exculpatory documentary evidence within the control of the State after a specific request in writing by Mrs. Montgomery.

II. Whether the trial court committed reversible error in refusing Mrs. Montgomery's proposed Jury Instruction D-6 presenting her good character and theory of the case to the jury.

III. Whether the trial court committed reversible error in refusing to allow defense witness Larry Montgomery to testify.

IV. Whether the trial court committed reversible error in allowing the State to amend the indictment to change the ownership of the alleged embezzled property after it had rested.

V. Whether the trial court committed reversible error in denying Mrs. Montgomery's motion to dismiss the indictment based on the failure of the indictment to charge a felony offense.

VI. Whether the trial court committed reversible error in denying Mrs. Montgomery's motion for directed verdict and motion for a new trial on the ground that the offense she allegedly committed constituted larceny and not embezzlement.

VII. Whether the State failed to disclose exculpatory information regarding BancorpSouth Bank's payment to the putative victim.

FACTS

¶ 3. On or about April 1995, Sam G. Patterson (owner of Patterson Engineering & Development, Inc. ["PE"]), hired Montgomery to work for PE. Her duties included managing the office, keeping the books and serving as the receptionist.

¶ 4. During the course of this employment, Montgomery appeared to be a dedicated and trustworthy employee. Therefore, Patterson entrusted her with authority to sign checks on behalf of the business when it became necessary, make deposits and reconcile the monthly bank statements.

¶ 5. On or about August 2001, Patterson became puzzled over a prolonged cash flow problem and decided to investigate. During this investigation, he found duplicate checks written to Montgomery over the course of approximately 3 years during this employment (1998 until 2001). He further noticed that PE's bank statements were not being reconciled monthly; therefore, he asked his accountant, Mr. Beachum, to audit his books. Beachum informed Patterson that Montgomery was embezzling money from PE. Montgomery wrote duplicate payroll checks to herself, often in the same amount; she further issued a duplicate bonus check to herself; and deposited checks received by PE for work performed into her personal account. Throughout a 3 year period, Montgomery embezzled money on 13 different incidents, totaling approximately $15,000.

DISCUSSION

I. Exculpatory documentary evidence.

¶ 6. In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion. Conley v. State, 790 So.2d 773, 782 (¶ 20) (Miss.2001).

¶ 7. Montgomery relies on the discovery provision of the Uniform Rules of Circuit and County Court, which provides in pertinent part:

A. [T]he prosecution must disclose to each defendant or defendant's attorney, and permit the defendant or defendant's attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by exercise of due diligence may become known to the prosecution:

* * *

5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and 6. Any exculpatory material concerning the defendant.

URCCC 9.04(A)(5), (6). We have stated:

¶ 11. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme Court established the principle that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In determining whether a Brady violation has occurred, and thus a new trial is mandated, this Court applies the four-part Brady test adopted in King v. State, 656 So.2d 1168, 1174 (Miss.1995), under which the defendant must prove:

a. that the State possessed evidence favorable to the defendant (including impeachment evidence);

b. that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence;

c. that the prosecution suppressed the favorable evidence; and

d. that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Id. at 1174.

Carr. v. State, 873 So.2d 991, 999 (Miss.2004) (emphasis added).

¶ 8. This Court has held that "not all failures to disclose exculpatory evidence constitute reversible error." Id. at 999-1000. "Rather, the question is whether there is a `reasonable probability' that the verdict would have been different but for governmental evidentiary suppression which `undermines confidence in the outcome of the trial.'" Todd v. State, 806 So.2d 1086, 1091 (Miss.2001) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)) (some citations omitted). In Todd, this Court held that, "[i]n any case, Brady requires a `reasonable probability' of a different outcome, not a mere possibility." Id. at 1092 (emphasis added); see King v. State, 798 So.2d 1258, 1263 (Miss.2001). In addition, no Brady violation exists where the evidence in question would not raise a reasonable doubt about guilt under the circumstances. United States v. Agurs, 427 U.S. 97, 112, 114, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The State has no duty "`to search out and discover all possible exculpatory evidence.'" Randle v. State, 827 So.2d 705, 712 (Miss.2002) (quoting Campbell v. State, 437 So.2d 3, 5 (Miss.1983)).

¶ 9. Montgomery claims she was entitled to discover three different items: (1) deposit records for all bank accounts owned or controlled by Sam G. Patterson from September 23-25, 1998; (2) legible bank statements; and (3) billing files from September 1998 through August 2001. The trial judge did not order the State to produce all these items, but instead stated that "by not requiring [the State] to produce, the State would also be precluded from using anything that's requested in its case in chief, and nothing I (the trial judge) say will preclude you, Mr. Fleitas [Montgomery's attorney], from obtaining these reports by subpoena. Now, if you're unable to obtain them by subpoena, I at least would entertain a subsequent motion to require them to be produced if they are available to the State or to the putative victim in this case."¹ A hearing was held later on Montgomery's motion to compel, and the trial court denied all aspects of Montgomery's motion.² The trial judge invited Montgomery to subpoena the documents; however, we find that the record is devoid of proof that Montgomery attempted to subpoena the documents.

¶ 10. In the case sub judice, regarding the exculpatory evidence, we find that Montgomery fails to satisfy the first and third prongs of the four-prong Brady test. Montgomery alleges and argues that the State suppressed favorable evidence; however, Montgomery fails to show that the evidence was favorable or that the State even possessed the same. Furthermore, there is no proof in the record that would allow this Court to decide whether the evidence allegedly suppressed was favorable or unfavorable.

¶ 11. Even if Montgomery were to satisfy the first and third prongs, she fails to satisfy the second prong under the Brady test. Under that prong, it is required of Montgomery to prove "that [she] does not possess the evidence nor could [she] obtain it [herself] with any reasonable diligence." Carr, 873 So.2d at 999 (emphasis added). We have reviewed the record, and there is no evidence that a subpoena was requested, issued, or returned.

¶ 12. In viewing the exhibits provided by the State, there are an abundance of bank statements and deposits covering the exact time period Montgomery claims she wanted. Some of the bank statements produced, according to Montgomery, were illegible; however, the State turned over all that the putative victim had regarding same. The billing files are not relevant to the charge.

¶ 13. Moreover, there is no evidence of suppression by the State. Consequently, this Court finds that the trial judge did not abuse his discretion in refusing to allow Montgomery to discover potentially exculpatory documentary evidence, as alleged by Montgomery.

II. Jury Instruction D-6.

¶ 14. Montgomery argues that the trial court erred in refusing to grant the following instruction, D-6:

The Court instructs the jury that Patsy

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