Jona Ann Montgomery v The State Of Oklahoma

F-2007-1133

Filed: Feb. 10, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Jona Ann Montgomery appealed her conviction for Second Degree Murder and Leaving the Scene of a Fatality Accident. Conviction and sentence reversed for Count 1 (Second Degree Murder) and affirmed for Count 2 (Leaving the Scene of a Fatality Accident). Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the District Court on Count 1 is REVERSED and REMANDED for a new trial. The Judgment and Sentence of the District Court on Count 2 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there an error in the trial court's refusal to submit an instruction on Misdemeanor Manslaughter?
• Did the admission of irrelevant and prejudicial evidence deny Montgomery a fair trial?
• Was the trial court's decision to admit certain photographs and videotape an abuse of discretion?

Findings

• the court erred in refusing to submit a misdemeanor manslaughter instruction
• the trial court abused its discretion in admitting evidence of other crimes and drug paraphernalia
• the trial court abused its discretion in admitting gruesome photographs and videotape of the victim
• the Judgment and Sentence of the District Court on Count 1 is REVERSED and REMANDED for a new trial
• the Judgment and Sentence of the District Court on Count 2 is AFFIRMED

F-2007-1133

Feb. 10, 2010

Jona Ann Montgomery

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Jona Ann Montgomery was tried by jury in the District Court of Pittsburg County, Case No. CF-2006-372, and found guilty of Second Degree Murder, in violation of 21 O.S.2001, § 701.8 (Count 1), and Leaving the Scene of a Fatality Accident, in violation of 47 O.S.2001, § 10-102.1 (Count 2). The jury fixed punishment at life imprisonment with the possibility of parole on Count 1 and ten years imprisonment on Count 2. The Honorable Thomas M. Bartheld, who presided at trial, sentenced Montgomery accordingly and ordered her sentences to be served concurrently. From this judgment and sentence, Montgomery appeals. We find instructional error requires reversal of Count 1 and Count 2 is affirmed. We address Montgomery’s claim requiring relief and two others to prevent error on retrial.

Facts

On Friday night, September 1, 2006, twenty-one-year-old Montgomery sped down a residential street adjacent to the McAlester High School football stadium as the football game was ending. The area was congested with parked cars and pedestrians leaving the game. Montgomery struck several cars before hitting two children standing next to their parked car. Ten-year-old Kristin Collins died from massive blunt trauma, but her older brother somehow survived. Montgomery fled the scene, leaving her car with her purse and driver’s license behind. Both the State’s and defense’s experts agreed that the cause of the collision was excessive speed.

1. Misdemeanor Manslaughter instruction

Montgomery asks for a new trial based on the trial court’s refusal to submit an instruction on Misdemeanor Manslaughter. The State requested a lesser included offense instruction on first-degree misdemeanor manslaughter with the underlying misdemeanor being either driving while impaired or driving under the influence. Montgomery objected to a misdemeanor manslaughter instruction and cited the trial court this Court’s decision in Breger v. State, 1987 OK CR 98, 737 P.2d 1219, 1220, holding that a homicide occurring during the commission of the misdemeanor driving while impaired was negligent homicide and driving while impaired could not serve as the predicate misdemeanor for a charge of misdemeanor manslaughter. The trial court denied the State’s request for a misdemeanor manslaughter instruction with the underlying misdemeanor driving while impaired based on Breger. Six weeks after Montgomery’s trial, this Court overruled Breger because the conclusion in Breger was not supported by the language of the misdemeanor manslaughter statute. Bell v. State, 2007 OK CR 43, IT 5, 172 P.3d 622, 624. We held that driving while impaired could serve as the predicate crime for misdemeanor manslaughter and affirmed Bell’s conviction for misdemeanor manslaughter with the predicate crime of driving while impaired. Id. Montgomery asks this Court to give her the benefit of the ruling in Bell and remand her case for a new trial with appropriate instructions.

The State argues that any error in the trial court’s failure to give a misdemeanor manslaughter instruction was invited by Montgomery when she objected to the State’s request for the instruction. In the alternative, the State argues that the instruction was not warranted by the evidence and that no rational jury could have acquitted Montgomery of second-degree murder and found her guilty of only misdemeanor manslaughter. We disagree and find neither of these arguments persuasive. Montgomery cannot be faulted for providing the trial court with the law contained in Breger that governed her case at the time of trial. To find that Montgomery invited the error because her attorney provided the trial court with the applicable law would discourage candor with the trial court and lead to justice not being served. Nor can the State convincingly maintain that a misdemeanor manslaughter instruction was not warranted when the prosecution requested it below.

The elements of misdemeanor manslaughter with the predicate crime of driving while impaired are: 1) the death of a human; 2) occurring as a direct result of an act or event which happened in the commission of a misdemeanor; 3) caused by the defendant while in the commission of a misdemeanor; and 4) the elements of misdemeanor driving while impaired alleged to have been committed by the defendant are: i) driving; ii) a motor vehicle; iii) on a highway; iv) with impaired ability; v) due to alcohol. See OUJI-CR2d 4-94 and 6-23. The evidence showed that Montgomery drove her car at excessive speed down a public roadway after consuming alcohol as confirmed by Montgomery’s blood alcohol test. Montgomery’s jury was given instructions on second-degree murder and misdemeanor negligent homicide. A rational jury, however, could have found Montgomery guilty of felony misdemeanor manslaughter for her driving that resulted in the victim’s death under the facts presented at trial. This Court’s decision in Bell, overruling Breger, is controlling. The trial court’s refusal to submit misdemeanor manslaughter instructions based on Breger was wrong. This case is reversed and remanded for a new trial.

2. Other Crimes Evidence

Montgomery argues that she was denied a fair trial by the admission of irrelevant and prejudicial evidence, namely a make-up bag containing a spoon, syringes, a piece of cotton, and a bottle of water (State’s Exhibit 11) and Michelle McGowan’s testimony that Montgomery expressed no remorse. Montgomery objected to the admission of State’s Exhibit 11; she did not object to McGowan’s statement that she did not appear remorseful. Officer Dayton testified, over objection, that he found a make-up bag (State’s Exhibit 11) in the center console of Montgomery’s car and identified its contents. Dayton testified that he associated such items with intravenous drug use and labeled the items as drug paraphernalia. On redirect, he described how these items were used to inject drugs.

The district court rejected Montgomery’s argument that the items in State’s Exhibit 11 were irrelevant, unnecessary to the State’s burden of proof, and were more prejudicial than probative and admitted State’s Exhibit 11 under the res gestae exception. We review a trial court’s decision to admit evidence for an abuse of discretion. Evidence of bad acts or other crimes may be admissible under the res gestae exception where they form a part of the entire transaction or where there is a logical connection with the offenses charged. The State charged Montgomery with unlawful possession of drug paraphernalia in the same Information charging her with second-degree murder and leaving the scene of a fatality accident. Montgomery moved to sever the charge of unlawful possession of drug paraphernalia from the other charges, but the trial court denied her motion because the charges stemmed from the same transaction.

The State’s theory was that the collision was caused by a combination of Montgomery’s impairment due to alcohol consumption and anger from fighting with her boyfriend that led to her speeding to find him. It was not the State’s theory that Montgomery was intoxicated from the use of drugs because the toxicology screen performed on Montgomery’s blood sample was negative for eight different groups of drugs. The trial court understood the potential for prejudice stemming from the admission of evidence of drug use in this case because it granted Montgomery’s motion in limine to exclude statements she made to the jailhouse informant about using drugs prior to the collision. The relevance of the drug paraphernalia evidence, especially after the drug paraphernalia charge was dropped before trial, was minimal and the evidence was not so inextricably intertwined with the charged offenses based on the State’s theory that its omission would have left unanswered questions or the facts incomplete. Given its minimal relevance, evidence that Montgomery possessed drug paraphernalia for drug use was far more prejudicial than probative of an issue in the case.

Under these circumstances, we find that the trial court abused its discretion in admitting State’s Exhibit 11. We also find that evidence concerning Montgomery’s lack of remorse should have been excluded. Michelle McGowan, the jailhouse informant, testified, without objection, that Montgomery expressed no remorse when she talked about the collision in jail. Montgomery had filed a motion to exclude testimony about any lack of remorse. The trial court held that it would allow McGowan to testify about what she observed with respect to remorse. The prosecutor raised the issue of Montgomery’s lack of remorse during closing argument and asked the jury to consider it. Whether or not Montgomery was remorseful in jail after the incident was not relevant to any issue in the case. Lack of remorse in a non-capital case like this shows only that the defendant is a bad person who does not take personal responsibility for, and is not sorry for, his or her actions. These errors should be avoided on retrial.

3. Photographs and Videotape

Montgomery challenges the trial court’s decision to admit three morgue photographs of the victim (State’s Exhibits 34-46) and a videotape of the crime scene (State’s Exhibits 27). Montgomery objected to the admission of these exhibits, preserving the issue for review. We review the trial court’s decision to admit the photographs and videotape for an abuse of discretion. State’s Exhibits 34-36 were admitted during the testimony of the medical examiner. These exhibits are enlarged color photographs of the victim’s injuries taken at autopsy. State’s Exhibit 34 is a photograph of the victim’s face, showing multiple abrasions on her forehead and left side of her face. State’s Exhibits 35 and 36 are photographs of the victim’s body front and back; both these photographs show exposed layers of muscle and fractured bone and the substantial tearing away of the flesh on the victim’s legs.

The pictures in State’s Exhibits 35 and 36 provoke an immediate visceral reaction and are profoundly disturbing. They show the massive damage done to a human body in a vehicle collision with a pedestrian. State’s Exhibit 27 is a videotape made by a high school teacher who was filming the football game when the collision occurred. The teacher heard the crash and took his camera to the crime scene and videotaped the area. The videotape depicts the street and vehicles after the collision along with close-up/zoomed-in views of body tissue and blood on a vehicle and the street pavement.

Photographs of a corpse may be admissible, among other reasons, to show the nature, extent and location of wounds, to show the crime scene, or to corroborate the medical examiner’s testimony. Otherwise relevant photographs should not be admitted if the danger of prejudice substantially outweighs their probative value. While it is true that gruesome crimes make gruesome photographs, the question is whether the photographs are so unnecessarily hideous as to produce an unfair impact on a jury. Some images are so hideous and repulsive that they provoke an immediate, prejudicially emotional response that can prevent a jury from rationally considering the evidence in the case. The trial court admitted the morgue photographs because they corroborated the medical examiner’s testimony and would presumably aid the trier of fact.

While the images depicted in the photographs corroborated the medical examiner’s testimony about the extent and location of the victim’s wounds and cause of death, they were not necessary to the State’s case because the same information was contained in the medical examiner’s diagram and the cause of death was not an issue. This is one of those few cases where the probative value of photographs of the victim in State’s Exhibits 35 and 36 was substantially outweighed by the danger of unfair prejudice given that the victim was a young child and her tragic death was caused by an unintentional car collision rather than some intentional act of the killer. The probative value of the morgue photographs was minimal and the danger of prejudice high. The videotape of the scene was relevant, but the close-up views of flesh were not. The trial court abused its discretion in admitting State’s Exhibits 35 and 36 and the portions of the videotape depicting the close-up views of the victim’s body tissue. This error should be avoided on retrial.

DECISION

The Judgment and Sentence of the District Court on Count 1 is REVERSED and REMANDED for a new trial. The Judgment and Sentence of the District Court on Count 2 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 701.8
2. Okla. Stat. tit. 47 § 10-102.1
3. Breger v. State, 1987 OK CR 98, 737 P.2d 1219, 1220
4. Bell v. State, 2007 OK CR 43, IT 5, 172 P.3d 622, 624
5. Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987)
6. Carter v. State, 2006 OK CR 42, I 4, 147 P.3d 243, 244
7. 12 O.S.Supp.2003, § 2403
8. 12 O.S.2001, § 2401
9. Eizember v. State, 2007 OK CR 29, T 99, 164 P.3d 208, 234
10. Livingston v. State, 1995 OK CR 68, I 20, 907 P.2d 1088, 1094
11. McElmurry v. State, 2002 OK CR 40, II 63, 60 P.3d 4, 20-21
12. Rea v. State, 2001 OK CR 28, II 5, 34 P.3d 148, 149

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2001) - Second Degree Murder
• Okla. Stat. tit. 47 § 10-102.1 (2001) - Leaving the Scene of a Fatality Accident
• Okla. Stat. tit. 12 § 2403 - Exclusion of Relevant Evidence
• Okla. Stat. tit. 12 § 2401 - Definition of Relevant Evidence
• Okla. Stat. tit. 20 § 3001.1 - Reversal for Instructional Error

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 47 U.S.C. § 230 - Protection for private blocking and screening of offensive material
• 12 O.S.Supp.2003, § 2403 - Exclusion of relevant evidence on grounds of prejudice
• 12 O.S.2001, § 2401 - General admissibility of evidence
• 20 O.S. 2001, § 3001.1 - New rule procedures for criminal trials
• 47 U.S.C. § 314 - Authority to prescribe regulations

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Breger v. State, 1987 OK CR 98, 737 P.2d 1219, 1220
• Bell v. State, 2007 OK CR 43, IT 5, 172 P.3d 622, 624
• Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987)
• Carter v. State, 2006 OK CR 42, I 4, 147 P.3d 243, 244
• Eizember v. State, 2007 OK CR 29, T 99, 164 P.3d 208, 234
• Livingston v. State, 1995 OK CR 68, I 20, 907 P.2d 1088, 1094
• Bowman v. State, 1990 OK CR 19, IT 3, 789 P.2d 631, 631
• Sharp v. State, 3 Okl.Cr. 24, 104 P. 71 (1909)
• McElmurry v. State, 2002 OK CR 40, II 63, 60 P.3d 4, 20-21
• Rea v. State, 2001 OK CR 28, II 5, 34 P.3d 148, 149
• Gilson v. State, 2000 OK CR 14, I 113, 8 P.2d 883, 917
• Hill v. State, 1998 OK CR 251, IT 11, 764 P.2d 210, 213