MEMORANDUM OPINION DENYING DEFENDANT'S RULE 33
MOTION FOR NEW TRIAL FOR TAINTED JURY
M. DAVIS, JUDGE
Vernon Montgomery moves (the "Motion") for a new
trial asserting that his Fifth, Sixth and Fourteenth
Amendment rights to a fair trial were prejudiced by a
juror's purported "improper remarks and improper
statements/jokes." The Court finds that, despite the
claims in the Motion, the jury was not tainted and Mr.
Montgomery was not prejudiced by any purported jury
misconduct. Therefore, the Motion is DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
State charged Mr. Montgomery with: (i) Robbery First Degree;
(ii) Possession of a Firearm during the Commission of a
Felony; (iii) Wearing a Disguise; (iv) Possession of a
Firearm by a Person Prohibited; and (v) Possession of
Ammunition by a Person Prohibited. Mr. Montgomery is acting
as his own attorney. Mr. Montgomery did not deny that he
committed the offenses. Instead, Mr. Montgomery relied upon
the affirmative defense of duress.
selecting the jury, Alternate Juror #2 delivered a note to
the bailiff. The note provided that one of the jurors, Juror
#5, made a statement during the break that "[Mr.
Montgomery] is letting all the men go because he is
guilty." The Court read the note in open court and
discussed it with the State's attorney and Mr.
Court then conducted an individual voir dire with
each juror, beginning with Alternate Juror #2. Alternate
Juror #2 relayed her information. Juror #5 indicated that he
did not hear anyone make a statement regarding Mr.
Montgomery's guilt. Juror #3 provided that someone may
have something about guilt but was not sure who said it or in
what context. Juror #12 believed someone may have said
something about guilt in a joking fashion and said that it
was hoped that the trial would not last six weeks. Jurors #1,
#2, #4, #6, #7, #8, #9, #10, #11 and Alternate Juror #1 said
they did not hear anyone mention anything about Mr.
Montgomery's guilt or innocence. The Court did replace
Juror #4 with Alternate Juror #1 as Juror #4 was suffering
from an affliction that caused her to fall asleep during the
Court questioned each juror as to whether they had formed a
conclusion as to the guilt or innocence of Mr. Montgomery.
All indicated that they had not. In addition, the Court asked
each juror if they would keep an open mind until the
conclusion of the presentation of evidence, argument and
final instructions. All the jurors indicated that they would.
The Court then discussed the matter with Mr. Montgomery and
the State's attorney. After this discussion, the Court,
exercising its discretion, determined not to release any of
the remaining jurors.
jury returned a verdict, finding Mr. Montgomery guilty on all
charges. Mr. Montgomery thereafter filed the Motion. The
State filed its State's Response to Defendant's
Motion for New Trial Pursuant to Rule 33 (the
"Response") on May 3, 2019. The Court has
determined that no hearing is necessary after reviewing the
Motion and the Response.
STANDARD OF REVIEW
Court Criminal Rule 33 provides that "[t]he court on
motion of a defendant may grant a new trial to that defendant
if required in the interest of
justice...." The Court has discretion to grant a new
trial but new trial grounds must have been asserted during
the preceding trial. Without demonstrated prejudice, a new
trial is not warranted. But where a defendant is substantially
prejudiced such that the right to a fair trial is violated
under the Sixth Amendment, a new trial is
warranted. The right to a fair trial is "a
fundamental liberty secured by the Fourteenth
Amendment." "One accused of a crime is entitled
to have his guilt or innocence determined solely on the basis
of the evidence introduced at trial, and not on grounds of
official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at
investigating whether a courtroom circumstance has prejudiced
a jury, "the question must be not whether jurors
actually articulated a consciousness of some prejudicial
effect, but rather whether an unacceptable risk is presented
of impermissible factors coming into
Mr. Montgomery's Contentions
Montgomery contends that his Fifth, Sixth and Fourteenth
Amendment rights to a fair trial were prejudiced by the
purported statements of Juror #5 and others about Mr.
Montgomery's guilt prior to hearing the evidence at
trial. Mr. Montgomery claims the conduct is egregious ...