Preview:

IN THE COURT OF APPEALS 3/25/97 OF THE STATE OF MISSISSIPPI
NO. 94-KP-00078 COA

WILLIE EARL MONTGOMERY APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. DURWOOD GRAY EVANS COURT FROM WHICH APPEALED: CIRCUIT COURT OF LEFLORE COUNTY ATTORNEY FOR APPELLANT: WILLIE EARL MONTGOMERY, PRO SE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. DISTRICT ATTORNEY: FRANK CARLTON NATURE OF THE CASE: BREAKING AND ENTERING TRIAL COURT DISPOSITION: GUILTY ON TWO COUNTS OF BURGLARY, ONE COUNT OF ATTEMPTED BURGLARY, AND ONE COUNT OF PETIT LARCENY AND SENTENCED TO A TERM OF 30 YEARS AND 6 MONTHS IN THE MDOC

CERTIORARI FILED: 6/26/97 MANDATE ISSUED: 9/5/97 BEFORE THOMAS, P.J., PAYNE AND SOUTHWICK, JJ. THOMAS, P.J., FOR THE COURT:

Willie Earl Montgomery was indicted on seven separate counts of burglary of a dwelling, and brought to trial on all seven counts. At the close of the State's case-in-chief, the court dismissed Counts III and VII, allowed Count II to be amended to a charge of petit larceny, allowed Count V to be amended to a charge of attempted burglary, and allowed the remaining three counts to go the jury under the original indictment. The jury returned a verdict against Willie Montgomery and he was convicted of two counts of burglary, one count of attempted burglary, and one count of petit larceny. A mistrial was declared on Count VI of burglary of a dwelling because the jury was unable to unanimously agree on a verdict. Willie Montgomery was sentenced to serve a ten year term on each count of burglary, a ten year term on the count of attempted burglary, and serve a six month term on the count of petit larceny. All sentences are to run consecutively in the custody of the Mississippi Department of Corrections for a total sentence of thirty years and six months. This case was tried by appointed counsel, but the brief and appeal are prosecuted pro se. Willie Montgomery appeals assigning ten issues as error; we affirm all issues but with curative instructions to the trial court on the six month count of petit larceny, which will be addressed herein. FACTS Willie Earl Montgomery and Robert Ivory were indicted on July 26, 1993, on seven counts of breaking and entering with the intent to steal. Ivory plead guilty to Count I of the indictment in return for dismissal of the other charges and as agreement to testify for the State against Willie Montgomery. Count I of the indictment charged Willie Montgomery and Ivory with breaking and entering the dwelling of Hattie Silas with the intent to steal items contained in the house. The evidence showed that a window had been broken in her home, and that a compact disc player had been stolen. Levoria Montgomery, the defendant's juvenile brother, and Robert Ivory testified on behalf of the State. Ivory and Levoria Montgomery testified they actually broke into Silas' home and took the compact disc player, leaving Willie Montgomery to stand "watch" to ensure that Ivory and Levoria did not get caught. Deputy Everett Overstreet testified that he observed Willie Montgomery in the vicinity of the home at the time of the crime. Count II of the indictment charged Willie Montgomery and Ivory with breaking and entering the dwelling of Fannie Summerville with the intent to steal. Count II was later amended to a charge of petit larceny. Summerville testified that Willie Montgomery admitted to her that he had taken the ring while he was in Summerville's home with her daughter. When Willie Montgomery testified for himself, he admitted stealing the ring from the home and later pawning the ring.

Count IV of the indictment charged Willie Montgomery and Ivory with breaking and entering the home of Rosie Coleman with the intent to steal. The evidence showed Coleman had a television, VCR, answering machine, cable box, telephone, food and some change stolen from her home. Ivory testified for the State that Willie Montgomery broke a window at Coleman's residence, and then Ivory and Willie Montgomery proceeded to take the items from her home. The television was later sold to Johnny Gilmore by Ivory. Willie Montgomery and Ivory put the television in Gilmore's car. Count V of the indictment charged Willie Montgomery and Ivory with breaking and entering the home of Alice Roberson with the intent to steal. The indictment was later amended to a charge of attempted burglary. The testimony at trial showed that a window in Roberson's home had been broken by either Willie Montgomery or Ivory. Levoria Montgomery testified for the State that he was standing "watch" and heard the window break, and then saw Willie Montgomery and Ivory pull off the screen to the window attempting to enter the home. The group was scared off by a neighbor. The trial judge granted a directed verdict for Willie Montgomery on Counts III and VII. A mistrial was granted on Count VI of the indictment because the jury was unable to agree unanimously on a verdict as to this charge. Levoria Montgomery, Willie Montgomery's juvenile brother, who also testified for the State, was put on probation before the start of this trial by the Youth Court for his involvement in these incidents. ANALYSIS I. WAS MONTGOMERY DENIED DUE PROCESS OF LAW BY BEING CHARGED AND HAVING HIS CASE TRIED ON THE MULTI-COUNT INDICTMENT?

Montgomery asserts that he was denied due process of law in that he was charged by a multi-count indictment with the commission of seven unrelated burglaries. Montgomery argues that each burglary was a separate act, and therefore, each act should be tried separately. However, Montgomery's counsel failed to object to the multi-count indictment at trial, and a hearing was not held on the matter. Montgomery now argues the indictment constituted plain error, and that no objection was necessary because his fundamental rights were affected. The State contends Montgomery was required to object at trial, and his failure to do so precludes him from raising this issue on appeal. Montgomery's trial counsel failed to object to the multi-count indictment at trial, and therefore, he is procedurally barred from arguing this matter on appeal. Moawad v. State, 531 So. 2d 632, 634 (Miss. 1988). Montgomery also failed to assign this error as a ground for a new trial in the lower court. "A trial judge cannot be put in error on a matter which was not presented to him for decision." Ponder v. State, 335 So. 2d 885, 886 (Miss. 1976). Without waiving the procedural bar, we find this assignment does not warrant reversal. Upon the enactment of

Download Willie Earl Montgomery v. State of Mississippi.pdf

Mississippi Law