IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-KA-01130-SCT

PATSY MONTGOMERY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 5/23/2003

TRIAL JUDGE: HON. THOMAS J. GARDNER, III

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: VICTOR ISRAEL FLEITAS

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: JOHN RICHARD YOUNG

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 11/18/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.

RANDOLPH, JUSTICE, FOR THE COURT:

¶ 1. Patsy Montgomery was indicted, trie d, and convicted of embezzlement. She was

sentenc ed to ten years in the custody of the Mississippi Department of Corrections with five

years suspended, fiv

e to serve with five years’ post-release supervision and was assessed court

costs of $423.50, a fine of $1,000 and ordered to pay $15,000 in restitution.

¶ 2. After denial of her post-trial motions, Mo ntgomery appeals and raises the following

issues:2

I. Whether the trial court committed reversible error in refusing to allow Mrs.

Montgomery to discover relevant and potentially exculpatory doc umentary

evidence.

A. Whether the trial court committed reversible error in refusing to

order the production

of relevant documentary evidence within the control of the

State after a specific request in writing by Mrs. Montgomery.

B. Whether the trial court committed reversible error in refusing to

o rder the production of potentially exculpatory documentary evidence within the

control of the State after a specific request in writing by Mrs. Montgomery.

II. Whether the trial court committed reversible error in refusing Mrs.

Montgomery’s propose d Jury Instruction D-6 presenting her good character and

theory of the case to the jury.

III. Whether the trial court committed reversible error in refusing to allow

defense witness Larry Montgomery to testify.

IV. Whether the trial court committed reversible error in allowing the State to

amend the indictment to change the ownership of the alleged embezzled

property after it had rested.

V. Whether the trial court committed reversible error in denying Mrs.

Montgomery’s motion to dismiss the indi ctment based on the failure of the

indictment to charge a felony offense.

VI. Whether the trial court committed reversible error in denying Mrs.

Montgomery’s motion for directed ver dict and motion for a new trial on the

ground that the offense she allegedly committe d constituted larceny and not

embezzlement.

VII. Whether the State failed to disclose exculpatory information regarding

BancorpSouth Bank’s payment to the putative victim.

FACTS

¶ 3. On or about April 19 95, Sam G. Patterson (owner of Patterson Engineering &

Development, Inc. [“PE”]), hired Montgomery to work for PE . Her duties included managing

the office, keeping the books and serving as the receptionist.3

¶ 4. During the course of this employment, Montgomery a ppeared to be a dedicated and

trustworthy employee. Therefore, Patterson entrusted her with authority to sign checks on

behalf of the business w hen it became necessary, make deposits and reconcile the monthly

bank statements.

¶ 5. On or about August 2001, Patterson became puzzled over a prolong ed cash flow

problem and decided to investigate. During this investigation, he found duplicate checks

written to Montgomery o ver the course of approximately 3 years during this employment

(1998 until 2001). He further noticed that PE’s bank statements were not being reconciled

monthly; the refore, he asked his accountant, Mr. Beachum, to audit his books. Beachum

informed Patterson that Montgomery was embezzling money from PE. Montgomery wrote

duplicate payroll checks to herself, often in the same amount; she further issued a duplicate

bonus check to herself; and deposited c hecks received by PE for work performed into her

personal account. Throughout a 3 year period, Montgomery embezzled money on 13 different

incidents, totaling approximately $15,000.

DISCUSSION

I. Exculpatory documentary evidence.

¶ 6. In reviewing rulings of a tr ial court regarding matters of evidence, relevancy and

discovery violations, the standard of revi ew is abuse of discretion. C onley v. State

, 790 So.

2d 773, 782 (¶ 20) (Miss. 2001).

¶ 7. Montgomery

relies on the discovery provision of the Uniform Rules of Circuit and

County Court, which provides in pertinent part:

A. [T]he prosecution must dis close to each defendant or defendant’s attorney,

and permit the defendant or defend ant’s attorney to inspect, copy, test, and4

photograph upon written requ est and without the necessity of court order the

following which is in the possession, custody, or control of the State, the

e xistence of which is known or by exercise of due diligence may beco me known

to the prosecution:

* * *

5. Any physical evidence and photographs relevant to the case or which may be

offered in evidence; and

6. Any exculpatory material concerning the defendant.

URCCC 9.04(A)(5), (6). We have stated:

¶ 11. In Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L.

Ed. 2 d 215 (1963), the United States Supreme Court established the principle

that “suppression

by the prosecution of evidence favorable to an accused upon

request vi olates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” In

determining wheth

er a Brady violation has occurred, and thus a new trial is

mandat ed, this Court applies the four-part B rady test adopted in King v. State

, 656 So. 2d 1168, 1174 (Miss. 1995), under which the defendant must prove:

a. that the State possessed evidence fa vorable to the defendant (including

impeachment evidence);

b. th at the defendant does not possess the evidence nor could he obtain it

himself with any reasonable diligence;

c. that the prosecution suppressed the favorable evidence ; and

d. that had the evidence been disclosed to the defe nse, a reasonable

probability exists that the o u tcome of the proceedings would have been

different.

Id. at 1174.

Carr. v. State , 873 So. 2d 991, 999 (Miss. 2004) (emphasis added).

¶ 8. This Court ha s held that “not all failures to disclose exculpatory evidence constitute

reversible error.” I

d. at 999-1000. “Rather, the question is whether there is a ‘reasonable

probability’ that the verdict would have been different but for governmenta l evidentiary

suppr ession which ‘undermines confidence in the outcome of the trial.’” T odd v. State

, 806

So. 2d 1086, 1091 (Miss. 2001) (quoting Kyles v. Whitley

, 514 U.S. 419, 434, 115 S. Ct.1 Hearing held on November 25, 2002, before the Honorable Richard D. Bowen.

2 Hearing held on May 16, 2003, before the Honorable Thomas J. Gardner, III.

5 1555, 131 L. Ed. 2 d 490 (1995)) (some citations omitted). In T odd

, this Court held that, “[i]n

any case, B rady requires a ‘reasonable probability’ of a different outcome, no t a mere

possibility .” Id. at 1092 (emphasis added); see King v. State

, 798 So. 2d 1258, 1263 (Miss.

2001). In addition, no B rady violation exists where th e evidence in question would not raise

a re a sonable doubt about guilt under the circumstances. United States v. Agurs , 427 U.S. 97,

112, 114, 196 S. Ct. 2392, 49 L. Ed. 2d 34 2 (1976). The State has no duty “‘to search out and

discover all possible exculpatory evidence.’” R andle v. State

, 827 So. 2d 705, 712 (Miss.

2002) (quoting Campbell v. State , 437 So. 2d 3, 5 (Miss. 1983)).

¶ 9. Montgomery claims she was entitled to discover thr ee different items: (1) deposit

records for all bank accounts owned or controlled by Sam G. Patterson from September 23-25,

1998; (2) legible bank statements; and (3) billing files from September 1998 through August

2001. The trial judge did not order the State to produce all these items, but instead stated that

“by not requiring [the State] to prod uce, the State would also be precluded from using anything

that’s requested in its case in chief, and nothing I (the trial judge) say will preclude you, Mr.

Fleitas [Montgomery’s attorney], from obtaining these reports by subpoena. Now, if you’re

unable to obtain them by subpoena, I at least would entertain a subsequent motion to require

them to be produced if they are available to the State or to the putative victim in this case.” 1

A hearing wa s held later on Montgomery’s motion to compel, and the trial court denied all

aspects of Montgom

e ry’s motion. 2 The trial judge invited Montgomery to subpoena the6

documents; however, we find that the record is devoid of proof that Montgomery attempted

to subpoena the documents.

¶ 10. In the case sub judice, regarding the e xculpatory evidence, we find that Montgomery

fails to satisfy the first and third prongs of th e four-prong B rady test. Montgomery alleges

and argues that the State suppressed favorable evidence; however, Montgomery fails to show

that the evidence was favorable or that the State even possessed the same. Furthermore, there

is no proof in the record that would allow this Court to decide whether th e evidence allegedly

suppressed was favorable or unfavorable.

¶ 11. Even if

Montgomery were to satisfy the first and third prongs, she fails to satisfy the

second prong under the B rady test. Under that prong, it is required of Montgomery to prove

“ that [she ] does not possess the evidence nor could [she] obtain it [herself] with any

reasonable diligence .” C arr

, 873 So. 2d at

999 (emphasis added). We have reviewed the

record, and there is no evidence that a subpoena was requested, issued, or returned.

¶ 12. In viewing the exhibits provid ed by the State, there are an abundance of bank statements

and deposits covering the exact time period Mo ntgomery claims she wanted. Some of the bank

statements produced, according to Montgomery, were illegible; however, the Sta te turned over

all that the putative victim had regarding same. The billing files are not relevant to the charge.

¶ 13. Moreover, there is no evidence of suppression by the State. Consequently, this Court

finds that the trial judge did not abuse his discretion in refusing to all ow Montgomery to

discover potentially exculpatory documentary evidence, as alleged by Montgomery.

II. Jury Instruction D-6.7

¶ 14. Montgomery argues that the trial court erred in re fusing to grant the following

instruction, D-6:

T he Court instructs the jury that Patsy Montgomery has introduced wha t is

known as character evidence. That evidence is properly before the jury, not as

a reason to acquit Pa tsy Montgomery if you think she is guilty beyond a

reason able doubt but to be considered along with all the other evidence in the

case in determining whether you think she is guilty or not.

Goo d character is a positive, substantive fact and may of itself be sufficient to

generate in your minds reasonable doubt as to the guilt of the defendan t so as to

require an acqui t tal, although without it the other evidence would be convincing

of guilt.

¶ 15. The trial

judge may not sum up or comment on the testimony or charge the jury as to

the weight of the evidence. Miss. Code Ann. § 99-17-35 (Rev. 2000). “Instructions on general

reputation or character of the accused are said to be both argumentative and a comment upon

the weight of the t

estimony.” M

attox v. State

, 240 Miss. 544, 554, 128 So. 2d 368, 370

(1961)) (citations omitted).

¶ 16. A jury instruction that emphasizes any particular part of the testimony given at trial in

a manner as to amount to a comment on the weight of the evidence, is improper. M anuel v.

State , 667 So. 2d 590, 592 (Miss. 1995). We have stated:

“Evidence of the good character of the accused should go to the jury as any

other fact, and its influence in the determination of a case should be left to the

jury, without any intimation of the court of its value

. T he court should not tell

the ju ry that satisfactory evidence of the good character of the accused is or

is not sufficient to raise a reasonable doubt of his guilt . The jury is to have the

evidence as an aid to estimate the other evidence, and by the light of the whole

to reach a verdict.”8

Anderson v. State

, 97 Miss. 658, 53 So. 393, 393 (1910) (quoting Coleman v. State

, 59 Miss.

484 (1882)) (emphasis added); see also Lampkin v. State

, 214 Miss. 735 , 59 So. 2d 335, 337

(1952).

¶ 17. We f

ind that this instruction would have been an improper comment upon the weight

o f the testimony. Consequently, the trial court did not err when it refused instruction D-6.

III. Trial court’s refusal to allow defense witness Larry Montgomery to testify.

¶ 18. In Houston v. Sta te , 531 So. 2d 598, 611 (Miss. 1998), this Court discussed Uniform

Circuit and County Court Rule 4.06 (superseded in 1995 by URCCC 9.04) regarding discovery

violations and stated that, “[t]he Circuit Court has the authority, subject to constitutional

limitations, to fix discovery cutoff deadlines and enforce them through appropr i ate sanctions.”

Where a defendant violates a discove ry obligation, the circuit court may utilize a wide array

of sanctions, one of which may i nclude exclusion of the evidence. B roadhead v. Bonita

Lakes Mall, Ltd. Partnership , 702 So. 2d 92, 104 (Miss. 1997).

¶ 19. According to the record, the only things provided to the State were Montgomery’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 L arry Montgomery would

testify about at trial. Therefore, consistent with H ouston an

d Broadhead , we hold that the trial

judge did not abuse his discretion, and this argument is without merit.

¶ 20. Additionally, the State raised that no error was committed because what Montgomery

sought to offer was cumulative. Montgomery called three witnesses to testify regarding her

character for truthfulness. She then called her husband to testify as to the same. This would

have been cumulative of the other testimony. Montgomery proffered the excluded testimony,9

which would have been limited to her character and propensity for truthfulness. We have

stated:

¶ 41. Miss. R. Evid. 403 expressly allows a t r ial court to exclude evidence which

it finds to be cumulative. Knotts by Knotts v. Hassell

, 659 So. 2d 886, 891

(Miss. 1995); s ee also Clark v. City of Pascagoula

, 507 So. 2d 70, 76 (Mi ss.

1987) (holding that trial judge d id not abuse his discretion by excluding

cumulative evidence). “The touchstone of Rule 403 is whether or not the

evidence--of whatever type--is cumulat ive, and if evidence is in fact cumulative

it is within the discretion of the court to exclude said evidence.” K notts

, 659 So.

2d at 891.

Broadhead , 702 So. 2d at 103. See also Flanagin v. State , 473 So. 2d 482 (Miss. 1985).

¶ 21. Following the ruling in Bro adhead , we find that the trial judge did not abuse his

dis cretion in prohibiting the cumulative testimony of Larry Montgomery. Thus, this issue is

without merit.

IV. Amendment of Indictment.

¶ 22. “The question of wh ether an indictment is fatally defective is an issue of law and

deserves a relatively broad standard of rev iew by this Court.” N

guyen v. State

, 761 So. 2d 873,

874 (Miss. 2000) (citing Peterson v. State

, 671 So. 2d 647 (Miss. 1996)). “‘It is fundamental

that courts may amend ind ictments only to correct defects of form, however, defects of

substance m

ust be corrected by the grand jury.’” E vans v. State

, 813 So. 2d 724, 728 (Miss.

2002) (quot

ing Mitchell v. State , 739 So. 2d 402, 404 (Miss. Ct. App. 1999)); s ee URCCC

7.09. We have stated:

“It is well settled in this [S]tate [. . .] that a change in the indictment is

permissible if it

does not materially alter facts which are the essence of the

offense on

the face of the indictment as it originally stood or materially alter

a defense to the indictment as it originally stoo d so as to prejudice the

defendant's case.”10

Miller v. State

, 740 S o. 2d 858, 862 (Miss. 1999) (quoting G reenlee v. State

, 725 So. 2d 816,

821 (Miss. 1998)) (quotations omitted).

¶ 23. An indictment may only be amended at trial i f the amendment is not material to the

merits of the case and the defense will not b e prejudiced by such amendment. G riffin v. State

,

584 So. 2d 1 2 74, 1276 (Miss. 1991); see Mitchell

, 739 So. 2d at 404. The test for whether

an amendment to the indictment will prejudice the defense is whether t h e defense as it

originally stood would be equally available after the amendment is made. G riffin

, 584 So. 2d

at 1276. Furthermore, it is well settled that an indictment may be amended after the State has

rested. S ee Burt v. State

, 493 So. 2d 1325, 1328 (Miss. 1986). See generally Burks v. State

,

770 So. 2d 960, 962-63 (Miss. 2000).

¶ 24. Here, the indictment charging Montgom ery alleged that she embezzled property “owned

by Sam Patterson d/b/ a Patterson Engineering and Development.” At the close of the State’s

case-in-chief, Montgomery moved for a directed verdict because the indictment for a statutory

offense was fatally defective because it failed to identify or prove the identity of the person

or entity claiming ownersh ip of the embezzled property. The trial court denied the motion and

also granted the State’s ore tenus motion to amend the indictment to na me Patterson

Engineering & Development, Inc. as the owner of the embezzled property.

¶ 25. We hold that this amendment is but a mat ter of form and not of substance. The

amendment was not material to the meri ts of the case, and Montgomery was not prejudiced by

such amendment, i.e. , Montgomery’s defense remained the same.

V. Alleged failure to charge a felony offense.3 Miss. Code Ann. § 99-19-17.

11

¶ 26. Montgomery claims that the court erred in denying her moti on to dismiss the

indictment based on the failure of the indictment to charge a felony o ffense. Montgomery

relies on the sentencing statute of Miss. Code Ann. § 99-19-17 as a basis for the alleged error.

However, the substantive embezzlement statute, Miss. Code Ann. § 97-23-19, stated that the

elements of the crime of felony embezzlement was $100 or more. The two statutes seem,

although they are not, in conflict.

¶ 27. In Apprendi v. New Jersey

, 5 30 U. S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),

the Supreme Court stated that there is a clear distinction between the elements of a crime

which mu st be submitted to the jury and proved beyond a reasonable doubt and sentencing

factors, which are matters that affe ct the sentence imposed by the Court only and are not

elements of the offense. The statute 3 upon which Montgome ry relies is a separate sentencing

statute; and therefore, the $250 sentencing factor does not apply

. S ee Bi shop v. State , 755 So.

2d 1269, 1273 (Miss. Ct. App. 2000).

¶ 28. Each of the 13 incidents of embezzlement in the case sub judice involved more than

$250; furthermore, there is little d oubt that the jury could have found Montgomery guilty of

having embezzled less than $250.

¶ 29. Th

e two statutes are clear and distinct, and section 99-19-17 is inapplicable in this

situation. Therefore, Montgomery’s claim is without merit.

VI. Embezzlement v. Larceny.12

¶ 30. Embezzlement is the wrongful conversion of property lawfully possessed by the person

charged. M

edley v. State

, 600 So. 2d 957, 960 (Miss. 1992) (c iting S isk v. State

, 294 So. 2d

472, 474 (Miss. 1974)).

¶ 31. As previously mentioned, Montg omery was in charge of running the day-to-day

operat ions at PE. Not only was she the office manager, record keeper and receptionist, she

was entrusted to write checks on behalf of PE, mak e deposits for PE and reconcile the bank

s tatements. Montgomery, claiming that she should have been convicted of larceny instead of

embezzlement, states in her brief:

The acts of alleged

embezzlement in this prosecution involving additional

paychecks, bonus checks, and the deposit into Mrs. Montgome ry’s bank account,

were acts of larceny and not of embezzlement if the prosecution’s [sic] theory

of the case is to be believed. If Mrs. Montgomery was never authorized to write

those checks accor ding to the prosecution, and her taking of them was illegal ab

initio then she did not receive them lawfully and conv ert them to her own use,

but instead took the checks with felonious intent at the time of the taking.

¶ 32. This is a classic case of embezzlement, and we are not convinced by Montgomery’s

attempt to lead this Court off the beaten pa thway. Therefore, we find that the trial court did not

commit reversible error in denying Montgomery’s mo tion for directed verdict and motion for

a new trial on the ground that the offense she allegedly c ommitted constituted larceny and not

embezzlement. This allegation is entirely barren of any merit.

VII. Alleged failure to disclose exculpatory information regarding

BancorpSouth Bank’s payment to the putative victim.

¶ 33. We hold that th

is issue is procedurally barred. Montgomery raises this issue for the

first time on appeal. “[W] e cannot find that a trial judge committed reversible error on a matter13

not brought before him to consider.” J ackson v. State

, 856 So. 2d 412, 415 (Miss. Ct. App.

2003) (quoting Smith v. State , 724 So. 2d 280, 313 (Miss. 1998)).

¶ 34. Notwithstanding the procedural bar, this issue lacks merit in fact and in law.

Montgomery claims that this evidence 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 ban k did not catch it. In G ulley v. State

, 779 So.

2d 1 1 40, 1152 (Miss. Ct. App. 2001), Gulley’s employer made restitution to the victims for

embezzled money taken by Gulley. The Court of Appeals held that “[t]he return of the funds

[by the employer] does not negate Gully’s actions of illegally commin gling and converting the

funds for his own use. ” Id. The facts still remain that Montgomery embezzled the money and

was convicted of the same by a jury of her peers. We are unable to conclude how such

evidence would have been exculpatory. Consequently, this issue is both procedurally barred

and without merit.

CONCLUSION

¶ 35. Finding no merit in Montgomery’s assignments of error, we affirm the judgment of the

Lee County Circuit Court.

¶ 36. CONVICTION OF EMBEZZLEMENT AND SENTENCE OF TEN YEARS IN THE

CUSTODY

OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE

YEARS SUSPENDED, FIVE YEARS TO SERVE WITH FIVE YEAR S POST-RELEASE

SUPERVISION AND PAY MENT OF A FINE OF $1,000.00, COURT COST OF $423.50

AND RESTITUTION OF $15,000.00, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND

DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING

.