State v. Montgomery

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JAMES THURMOND MONTGOMERY, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/30/10 PHILIP G. URRY,CLERK 1 CA-CR 09-0487 BY: JT DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-148722-001 DT The Honorable Shellie Smith, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix James Thurmond Montgomery Appellant Safford B A R K E R, Judge ¶1 James Thurmond Montgomery appeals from his conviction and sentence for one count of attempted sexual conduct with a minor over the age of fifteen. Montgomery was sentenced on June 17, 2009, and timely filed a notice of appeal. Montgomery s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after searching the entire record on appeal, he finds no arguable ground for reversal. We granted Montgomery leave to file a supplemental brief in propria persona on or before March 22, 2010, and he did so. ¶2 of We have jurisdiction pursuant to Article 6, Section 9, the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001). reversible error. We are required to search the record for Finding no such error, we affirm. Facts and Procedural Background 1 ¶3 In August 2008, Victim, a minor who was fifteen or older, was visiting Montgomery, her father, at an apartment. Montgomery and Victim began drinking gin and orange juice and snorting cocaine. While intoxicated, Montgomery told Victim the 1 We view the facts in the light most favorable to sustaining the court s judgment and resolve all inferences against Montgomery. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998); State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995). 2 biblical story of Lot and his two daughters. Montgomery explained to Victim that Lot s daughters gave Lot wine to get him intoxicated. Once intoxicated, the daughters had sex with Lot to get pregnant. Montgomery told Victim it was okay for fathers and daughters to have sex in those days and that God approves of this type of relationship. Victim told Montgomery that was gross and unthinkable in today s society. ¶4 At midnight, Victim went to sleep on the couch in basketball shorts, a wearing underwear. tank top, and a bra. Victim was not When Victim awoke about six hours later, her basketball shorts were at her ankles, her legs were spread, and Montgomery was naked and hovering over her. were on the couch, and his penis was Montgomery s knees near Victim s Victim and Montgomery were alone in the apartment. vagina. Victim asked Montgomery what he was doing and told him to get away from her. Montgomery clothes slowly on. moved Victim away pulled from her Victim shorts on and and then went put his to the bathroom. ¶5 Victim then heard other people, including E.W., enter the apartment. When Victim left the bathroom, she was angry and yelled: [W]hat are you thinking? you trying to do this to me? I m your daughter. You tried to rape me. Why are Victim also threw a pitcher at Montgomery and threatened him with a knife. Victim then left the apartment. 3 After hearing Victim and Montgomery argue, E.W. left the apartment and found Victim at a bus stop. ¶6 Victim then called the police. Pursuant Montgomery conduct was with violence a to A.R.S. charged minor offense. §§ one with over After 13-1001, count the age rejecting of the Montgomery s case proceeded to trial. -1405, of and -3601, attempted sexual fifteen, State s a domestic plea offers, Montgomery was present and represented at all critical stages of the trial. ¶7 During the trial, the State presented testimony by Victim, E.W., the owner of the apartment, a forensic nurse, and two police officers. E.W. testified she observed Victim and Montgomery arguing because Victim accused Montgomery of trying to have sex with her. The owner of the apartment testified that when he returned to the apartment with E.W., he heard Montgomery and Victim during his fighting. interview The with police case Montgomery, agent testified Montgomery that admitted to pulling down Victim s shorts and almost having sex with her while she slept on the couch. The State played a recording of this interview to the jury. The forensic nurse who treated Victim testified that she found no forensic findings that a sexual assault occurred. ¶8 The defense presented no witnesses. At the conclusion of the trial, the eight-member jury convicted Montgomery of one count of attempted sexual conduct with a minor over the age of fifteen and found the count was a 4 domestic violence offense. The trial court sentenced Montgomery to 17 years imprisonment and credited Montgomery with 318 days of incarceration Montgomery to credit. submit to The DNA trial testing court and also register as ordered a sex offender. Disposition 1. Disclosures to the Jury ¶9 In his supplemental brief, Montgomery argues he was prejudiced because the trial court violated various canons and rules of the Arizona Rules of Judicial Conduct, the Arizona Rules of Criminal Procedure, and the Arizona Rules of Evidence by (1) disclosing inflammatory information about the alleged crime during voir dire, (2) by subsequently altering the grand jury indictment engaging in an to The information to to argumentative earshot of the jury. ¶10 conform trial the this exchange disclosure, with and Montgomery (3) by within We disagree. court jury and did did not not disclose alter the inflammatory indictment. During the first day of voir dire, the trial court stated: In this case the State has alleged that James Montgomery on or about the 3rd day of August, in the year 2008, intentionally or knowingly attempted to engage in sexual intercourse or oral sexual contact with [Victim], who was a minor 15 years of age or over, and Defendant was her parent. Mr. Montgomery has denied these allegations and has pled not guilty to the charges. 5 ¶11 This statement conforms to the wording of the grand jury indictment Montgomery is and the confusing with the indictment. complaint the notice filed of in supervening this case. indictment The notice of supervening indictment is the document that gave Montgomery notice that the grand jury indicted him for attempted sexual conduct with a minor. The indictment, which is a separate document, identifies attempted sexual conduct with a minor as the charge and, in the text, uses the exact language the trial court used during voir dire to specify the elements of attempted sexual conduct with a minor. Thus, the trial court properly informed the prospective jurors of the allegations against Montgomery indictment and the complaint. as stated in the Consequently, the trial court made no subsequent alteration of the grand jury indictment when it read the indictment to the jury prior to opening statements. ¶12 trial On the second day of voir dire, Montgomery and the court had a discussion regarding the alleged improper disclosure. However, this exchange took place outside of the presence the of jury. There is no indicating the jury heard the exchange. evidence in the record GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990) ( An appellate court s review is limited to the record before the trial court. ) Accordingly, there is no fundamental error. 6 2. Composition of the Jury ¶13 The trial court should strike prospective jurors for cause when they demonstrate serious misgivings about the ability to be fair and impartial. State v. Rodriguez, 131 Ariz. 400, 402, 641 P.2d 888, 890 (App. 1981). During voir dire, Juror 22, who ultimately sat on the jury, indicated that he could not sit through the case because of the nature of the allegations. Defense counsel and Juror 22 then had the following exchange: [JUROR 22]: It s repulsive to me I think. I think the thought of the act is the main concern for me. [DEFENSE COUNSEL]: There are a lot of repulsive criminal acts out there, whether they are sex crimes or whether murder or whether there are any number of other crimes. But it is the nature of this crime, the alleged crime, which has not been proven, is it such that you would be uncomfortable sitting as an impartial juror because you could in fact not be impartial? [JUROR 22]: I would feel uncomfortable, yes. ¶14 Defense counsel subsequently made a motion to strike Juror 22 for cause. The trial court decided to bring 22 back. The next day of voir dire, defense counsel passed the panel, including answer Juror means 22, that for he cause. would be Read literally, uncomfortable Juror sitting impartial juror because [he] could not be impartial. 22 s as an However, given the context, the trial court likely interpreted it to mean 7 Juror 22 only would be uncomfortable because at no point did Juror 22 indicate that he could not be fair and impartial. This interpretation is confirmed by the private exchange between the court and the attorneys when discussing the motion to strike Juror 22. The trial court denied the motion to strike after the State s counsel indicated being uncomfortable is not the same as being unable to judge. Because the trial court was able to observe Juror 22 s demeanor and judge his credibility, we find no error in the trial court s decision not to strike Juror 22 for cause. 766 State v. Smith, 182 Ariz. 113, 115, 893 P.2d 764, (App. 1995) (holding that when a prospective juror s statements are amenable to different interpretations the trial judge [is] better able to determine the juror s true meaning from her delivery ); see also State v. Glassel, 211 Ariz. 33, 48, ¶ 50, 116 P.3d 1193, 1208 (2005) (finding [t]rial judges are permitted to determine a potential juror s credibility ). Accordingly, we find no fundamental error in the court s refusal to strike Juror 22 for cause. 3. Voluntariness Hearing ¶15 At trial, the State presented properly admissible evidence that was sufficient to support the jury s finding of guilt. Although voluntariness Montgomery of no hearing Montgomery s neither was held statements requested a 8 to to determine the voluntariness case the agent, hearing nor objected to the evidence at trial. There was no evidence or claim at trial that Montgomery s statements were involuntary, and the trial court had no obligation to sua sponte raise the issue. State v. Alvarado, 121 Ariz. 485, 487, 591 P.2d 973, 975 (1979). any In addition, the jury was instructed to not consider statements made by the defendant to a law enforcement officer, unless you determine beyond a reasonable doubt that the defendant separate made the statements voluntariness voluntarily. hearing was required. Accordingly, See Peats, 106 Ariz. 254, 257, 475 P.2d 238, 241 (1970). 9 State no v. ¶16 We reviewed the remainder of the record and found no meritorious grounds for reversal of Montgomery s conviction or for modification of the sentence imposed. See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, counsel s obligations in this appeal have ended subject to the following. than inform Montgomery of the Counsel need do no more status of the appeal and Montgomery s future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Montgomery has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.