Montgomery v. State


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Docket Number: 2003-KA-01130-SCT
Linked Case(s): 2003-KA-01130-SCT

Supreme Court: Opinion Link
Opinion Date: 11-18-2004
Opinion Author: Randolph, J.
Holding: Affirmed

Additional Case Information: Topic: Embezzlement - Exculpatory documentary evidence - Character instruction - Discovery violation - Amendment of indictment - Defective indictment - Section 99-19-17 - Larceny - Exculpatory information
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ.
Non Participating Judge(s): Diaz and Graves, JJ.
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 05-23-2003
Appealed from: Lee County Circuit Court
Judge: Thomas J. Gardner
Disposition: Appellant was convicted of embezzlement and sentenced to ten years with five suspended and five to serve with post-release supervision.
District Attorney: John Richard Young
Case Number: CR02-258

  Party Name: Attorney Name:  
Appellant: Patsy Montgomery




VICTOR ISRAEL FLEITAS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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Topic: Embezzlement - Exculpatory documentary evidence - Character instruction - Discovery violation - Amendment of indictment - Defective indictment - Section 99-19-17 - Larceny - Exculpatory information

Summary of the Facts: Patsy Montgomery was convicted of embezzlement. She was sentenced to ten years with five years suspended, five to serve with five years’ post-release supervision. She appeals.

Summary of Opinion Analysis: Issue 1: Exculpatory documentary evidence Montgomery argues she was entitled to discover deposit records for all bank accounts owned or controlled by Sam G. Patterson from September 23-25, 1998; legible bank statements; and billing files from September 1998 through August 2001. In determining whether the prosecution has suppressed evidence favorable to an accused, the defendant must prove that the State possessed evidence favorable to the defendant (including impeachment evidence); that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; that the prosecution suppressed the favorable evidence; and that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. Not only does Montgomery fail to show that the evidence was favorable or that the State even possessed the same, there is no proof in the record as to whether the evidence allegedly suppressed was favorable or unfavorable. In addition, there is no evidence that a subpoena was requested, issued, or returned. Thus, the judge did not abuse his discretion in refusing to allow Montgomery to discover potentially exculpatory documentary evidence. Issue 2: Character instruction Montgomery argues that the court erred in refusing to grant an instruction on character. Instructions on general reputation or character of the accused are said to be both argumentative and a comment upon the weight of the testimony. The instruction at issue would have been an improper comment upon the weight of the testimony. Issue 3: Discovery violation Montgomery argues that the court erred in refusing to allow a defense witness to testify. The only things provided to the State were the witness’s name, address and telephone number. Montgomery chose not to provide anything else to the State and thus violated the discovery process by not disclosing what the witness would testify about at trial. Therefore, the judge did not abuse his discretion. Issue 4: Amendment of indictment The indictment charging Montgomery alleged that she embezzled property “owned by Sam Patterson d/b/a Patterson Engineering and Development.” The court granted the State’s ore tenus motion to amend the indictment to name Patterson Engineering & Development, Inc. as the owner of the embezzled property, and Montgomery argues this was error. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made. The amendment in question was not material to the merits of the case, and Montgomery was not prejudiced. Issue 5: Defective indictment Montgomery argues that the court erred in denying her motion to dismiss the indictment based on the failure of the indictment to charge a felony offense. Montgomery relies on the sentencing statute of section 99-19-17 as a basis for the alleged error. However, the substantive embezzlement statute, section 97-23-19, states that the elements of the crime of felony embezzlement was $100 or more. Each of the 13 incidents of embezzlement involved more than $250. The two statutes are clear and distinct, and section 99-19-17 is inapplicable in this situation. Issue 6: Larceny Montgomery argues that she should have been convicted of larceny instead of embezzlement. Montgomery was in charge of running the day-to-day operations at the company. Not only was she the office manager, record keeper and receptionist, she was entrusted to write checks on behalf of the company, make deposits, and reconcile the bank statements. This is a classic case of embezzlement. Issue 7: Exculpatory information Montgomery argues that evidence regarding the bank’s payment to the putative victim would have been exculpatory. However, this evidence would have instead been incriminating by showing that the bank recognized the fact that Montgomery had committed a wrong and the bank did not catch it.


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