Vincent Edward Montgomery v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-01033-COA
VINCENT EDWARD MONTGOMERY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
08/25/1999
HON. JERRY O. TERRY, SR.
HARRISON COUNTY CIRCUIT COURT
ROBERT H. KOON
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:
CONO A. CARANNA, II
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
TRANSFER OF COCAINE, A SCHEDULE II
CONTROLLED SUBSTANCE, SENTENCED TO 30
YEARS WITHOUT THE HOPE OF PAROLE OR
PROBATION, TO RUN CONSECUTIVELY WITH THE
SENTENCE IN CAUSE NUMBER B24029700457.
DISPOSITION:
AFFIRMED - 9/24/2002
MOTION FOR REHEARING FILED: 10/9/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
KING, P.J., FOR THE COURT:
¶1. Vincent Edward Montgomery was found guilty in the Circuit Court of Harrison County, Mississippi,
First Judicial District of the transfer of cocaine. He was sentenced to serve a term of thirty years in the
custody of the Mississippi Department of Corrections as an habitual offender, with this sentence to run
consecutively to a previously imposed sentence. Aggrieved by his conviction, Montgomery has appealed
and raised the following issues which we quote verbatim:
I. The court erred in denying Defendant Instruction D-3.
II. The evidence was against the overwhelming weight of the credible evidence and the
Court erred in failing to grant defendant's motion for a new trial.
FACTS
¶2. On September 11, 1998, agents of the narcotics task force in Harrison County worked with Ronald
Sterling, a confidential informant, in a controlled buy of cocaine from Vincent "Beau" Montgomery. Sterling
met with Mark Hoskins of the Harrison County Sheriff's Department at approximately 3:30 p.m., at which
time he called Montgomery to set up the buy. Sterling was told to meet Montgomery at Montgomery's
mother's house in Saucier to make the purchase.
¶3. Prior to the buy, Sterling met with Officers Benz, Troy Peterson, and Mark Hoskins at the Saucier
Volunteer Fire Department. These officers searched Sterling and his vehicle. Sterling was fitted with a body
transmitter, and given a one hundred dollar bill to purchase the crack cocaine. Officers Peterson and
Hoskins listened to the transmission of the transaction from their vehicle parked nearby. Montgomery was
on the porch of the house with "a bunch of crack in a big Ziploc bag." Sterling purchased one hundred
dollars' worth of crack, returned to the Saucier Volunteer Fire Department and met with the task force
officers. The officers had followed him from the location of the buy back to the fire station. There Sterling
and his vehicle were again searched. The transmitter and the purchase were recovered by the officers.
¶4. The officers subsequently obtained a warrant to search the house where the transaction took place.
Upon searching the house, the officers found some money and two packages of what appeared to be
marijuana. The marked money used for the purchase was not found, nor was any cocaine found.
¶5. In December 1998, Montgomery was indicted for the transfer of a controlled substance as an habitual
offender, the possession of a controlled substance, and the unlawful possession of a firearm or weapon by a
convicted felon.
¶6. At trial on August 24, 1999, the court directed a verdict for Montgomery on the charge of possession
of a controlled substance. Montgomery was found guilty of transfer of a schedule II controlled substance,
and sentenced to thirty years in the custody of the Mississippi Department of Corrections under the
provisions of Mississippi Code Annotated Section 99-19-81 (Rev. 2000). Thereafter, the charge of
possession of a firearm by a convicted felon was passed to the inactive files.
¶7. On August 31, 1999, defense counsel moved for a judgment notwithstanding the verdict or,
alternatively, a new trial. That motion was denied.
ISSUES AND ANALYSIS
I.
Whether the trial court erred in denying defendant's instruction D-3.
¶8. Montgomery contends that the trial court erred in denying instruction D-3,(1) a cautionary instruction
regarding the testimony of Sterling. Montgomery asserts that this cautionary instruction should have been
given because "the testimony of Sterling amounted to that of an accomplice."
¶9. Where the State's evidence rests solely upon the testimony of an accomplice witness, this Court has said
that the trial court errs in failing to give a cautionary instruction. Hall v. State, 785 So. 2d 302 (¶13) (Miss.
Ct. App. 2001). In order to have availed himself of the cautionary instruction, Montgomery was required to
establish that Sterling was in fact an accomplice and that his testimony was without corroboration. Id.
¶10. An accomplice for these purposes is a person who is implicated in the commission of the crime. Burke
v. State, 576 So. 2d 1239, 1242 (Miss. 1991). In this instance, there has been no evidence which
establishes that Sterling was a co-conspirator or an accomplice.
¶11. In support of his contention that a cautionary instruction should have been given, Montgomery
maintains that the testimony concerning the pay arrangement with Sterling was not fully disclosed to the jury.
However, a review of Sterling's testimony reveals that he did disclose the amount he was paid as an
informant.
¶12. Montgomery claims that "the State's case was based solely upon the testimony of the confidential
informant who went in alone to make the buy, i.e., also assuming the role of an accomplice." A review of the
record indicates testimony other than Sterling's to support this conviction. Officer Peterson testified as
follows:
Mr. Sterling was then heard on the wire talking to a female and then talked to Mr. Montgomery. He
then purchased a hundred dollars of crack cocaine from Mr. Montgomery. . . .When we got back to
the meeting location, Mr. Sterling was in his truck. We pulled up beside him. Mr. Sterling had the
crack cocaine beside him in the seat, and said, there it is, there's the crack cocaine.
¶13. Officer Hoskins, another surveillance officer who retrieved the substance from Sterling after the buy,
indicated that the officers "were adequately able to monitor the purchase" from the vehicle. The substance
retrieved was later determined to be crack cocaine.
¶14. In refusing instruction D-3, the trial judge stated:
THE COURT: Well, I certainly think that the court instructions, that the jury is to weigh the testimony
of each witness who testifies and to determine the weight and the credibility to be assigned to that
testimony, that instruction is sufficient as far as this confidential informant is concerned.
You on the other hand can certainly argue it to the jury, his credibility, raising the issues of him doing it
for pay.
But for the court to instruct them, I don't think that's proper on a witness such as this. I'm going to
refuse D-3.
¶15. Under these circumstances, this Court does not believe that the trial court abused its discretion in
denying this instruction.
II.
Whether the evidence was against the overwhelming weight of the credible evidence and the
trial court erred in failing to grant defendant's motion for a new trial.
¶16. Montgomery contends that the verdict was against the overwhelming weight of the evidence and that
the trial court erred in failing to grant his motion for a new trial. Montgomery asserts that "he did not sell
cocaine to Sterling."
On a question of overwhelming weight of the evidence, this Court must accept as true the evidence
which supports the verdict and will reverse only when convinced that the circuit court has abused its
discretion in failing to grant a new trial. Only when the verdict of the jury is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable
injustice will we disturb that verdict on appeal.
Sturdivant v. State, 745 So. 2d 240 (¶11) (Miss. 1999) (citations omitted).
¶17. Sterling testified that Montgomery sold him crack cocaine and that it was Montgomery's voice on the
tape recording. Officers Peterson and Hoskins testified that they conducted surveillance by listening and
recording the transaction from the transmitter.
¶18. The officers testified that prior to the buy Sterling was searched and did not have any contraband on
his person. Upon completion of the buy, Sterling was followed by the officers back to the designated
meeting place where approximately five rocks (later determined to be crack cocaine) were retrieved.
¶19. Generally, it is the function of the jury to pass upon the weight and worth of the evidence and to
determine the credibility and veracity of the witnesses. Pate v. State, 419 So. 2d 1324, 1326 (Miss.
1982). Indeed, the jury is under no duty to believe the defendant's denial where there is ample
contradictory evidence. Id. In this case the jury found the State's case credible.
¶20. There has been no evidence put forth to show that the verdict was against the overwhelming weight of
the evidence nor has there been evidence presented to show that the trial court abused its discretion in
denying Montgomery's motion for a new trial.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST
JUDICIAL DISTRICT, OF CONVICTION OF TRANSFER OF COCAINE AND SENTENCE
OF THIRTY YEARS WITHOUT HOPE OF PAROLE OR PROBATION TO RUN
CONSECUTIVELY WITH THE SENTENCE IN CAUSE NUMBER B24029700457 IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE TAXED TO HARRISON COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
1. Instruction D-3: The testimony of one who provides evidence against a defendant as an informer
for pay, must always be examined and weighed by the jury with greater care and caution than the
testimony of ordinary witnesses. You, the jury, must decide whether the witness's testimony has been
affected by any of those circumstances, or by the witness's interest in the outcome of the case, or by
prejudice against the defendant, or by the benefits that the witness has received financially. You should
keep in mind that such testimony is always to be received with caution and weighed with great care.
You should never convict any defendant upon the unsupported testimony of such a witness unless you
believe that testimony beyond a reasonable doubt.
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