Adrian Montgomery v. State of Mississippi, 253 So. 3d 305

On July 6, 2013 Adrian Montgomery and others were drinking and smoking in a park; a fight occurred and Terome O’Neal sustained blunt‑force head injuries and died days later. Montgomery was indicted for deliberate‑design murder and later convicted of depraved‑heart (second‑degree) murder.
The first trial began October 3, 2016; jury was empaneled and sworn. On Day 2 the State learned its pathologist, Dr. J. Brent Davis, was unavailable due to a sudden family hospice situation.
The State requested a continuance or mistrial; after a recess during which it could not contact Dr. Davis the trial court declared a mistrial over defense objection. Montgomery moved to dismiss on double‑jeopardy grounds; the motion was denied and a second trial was set.
At the second trial both pathologists testified: Dr. Davis (State) concluded cause of death was multiple blunt‑force trauma/homicide; Dr. Hayne (defense) testified the injuries could have resulted from a fall and preexisting disease. The jury convicted Montgomery of depraved‑heart murder and sentenced him to 25 years (20 to serve).
On appeal Montgomery argued (1) the retrial violated double jeopardy because there was no manifest necessity for the mistrial; (2) the depraved‑heart instruction omitted the statutory phrase "without authority of law" and was therefore deficient; and (3) the unrecorded bench‑conferences deprived him of a complete record. The Mississippi Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retrial after a mistrial violated double jeopardy	Montgomery: no manifest necessity for mistrial; State knew or could have secured witness; mistrial was unjustified => retrial barred	State: Dr. Davis’s unavailability was sudden and unforeseeable; he was a key witness; continuance was speculative/unreasonable => mistrial manifestly necessary	Affirmed: mistrial was justified under the circumstances (unexpected, material witness; continuance not a reasonable alternative)
Whether depraved‑heart instruction was fatally defective for omitting "without authority of law"	Montgomery: omission removed an essential element; jury could convict for a lawful killing	State: other instructions (self‑defense and accident/excusable homicide) made clear killing had to be unlawful when read together	Affirmed: instructions read as a whole fairly announced the law; no plain error
Whether lack of recorded bench conferences denied right to appeal or due process	Montgomery: unrecorded bench conferences impede review and violated statutory/due process rights	State: defense counsel agreed bench conferences be off‑the‑record; claim not preserved for appeal	Affirmed: issue not preserved; objection absent, claim better suited for postconviction if alleging ineffective assistance

Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (setting manifest‑necessity standard for mistrials and retrial after jury discharged)
Downum v. United States, 372 U.S. 734 (U.S. 1963) (distinguishing cases where prosecutor knowingly proceeded without a key witness)
Jones v. State, 398 So. 2d 1312 (Miss. 1981) (jeopardy attaches when jury is empaneled and court should state reasons when declaring mistrial)
United States v. Fisher, 624 F.3d 713 (5th Cir. 2010) (discussing level of deference and ‘‘strictest scrutiny’’ when mistrial is based on unavailability of prosecution evidence)
United States ex rel. Gibson v. Ziegele, 479 F.2d 773 (3d Cir. 1973) (upholding mistrial where key witness unexpectedly became unavailable)
Harrell v. State, 134 So. 3d 266 (Miss. 2014) (failure to instruct jury on every element is reversible error; but related precedent discusses reading instructions as a whole)