Breaking Down the Joinder Argument
At the heart of Montgomery’s appeal is whether the judge should have held two separate trials, specifically, one for assaulting Harmony in July 2019 and another for killing her in December of that year, a concept known as severance. Montgomery’s lawyers say combining the cases was unfair because the jury might have used the earlier assault to assume he was guilty of murder, an unacceptable level of prejudice against the defendant.
The State argues that both crimes were appropriately tried together, a concept known as joinder, because the case involved the same child, the same conduct, and many of the same witnesses, so one trial made sense and saved time without compromising fairness.
The Brown Factors
A judge must decide whether the charges should be tried together or separately. In New Hampshire, that decision is guided by what’s known as the Brown factors described in the case State v. Brown, 159 N.H. 544 (2010), detailing five factor judges use to weigh fairness against efficiency.
Those factors are: “(1) the temporal and spatial relationship among the underlying charged acts; (2) the commonality of the victim(s) and/or participant(s) for the charged offenses; (3) the similarity in the defendant’s mode of operation; (4) the duplication of law regarding the crimes charged; and (5) the duplication of witnesses, testimony and other relevant evidence related to the offenses.” Brown, 159 N.H. at 551-52.
No single factor controls the outcome and judges examine each of them and then issues a decision. The goal is to avoid unnecessary, duplicate trials while still protecting the defendant’s sixth amendment right to a fair trial. In Montgomery’s case, the trial judge found that the factors supported trying the assault and murder charges together.
In her decision, the trial judge applied each of those factors, first finding a clear spatial and temporal relationship. In her findings the judge noted the alleged second-degree assault on Harmony occurred in Manchester, New Hampshire. The second-degree murder charge alleged in Harmony’s death and the subsequent handling of her remains also took place in and around Manchester. Because all the criminal events began in the same area, the offenses were considered geographically and factually connected. The judge also found that the alleged abuse and neglect in the weeks before December 7 had a “close spatial and temporal relationship with the charged offenses.”
Next the judge found “commonality” in the cases because the timeframes in both sets of charges were interconnected and arose from a common course of conduct.
The judge wrote: “The State argues, and the defendant does not appear to dispute, that there is commonality between the two charges because the two cases involve a common defendant and victim. … Here, the defendant is the common perpetrator and Harmony is the common victim in the second degree assault charge in the first case and the second degree murder charge in the second case. Additionally, Kayla Montgomery is a central witness in both cases. This commonality between the two cases supports the relatedness of the charges.”
The trial court judge also found that the “mode of operation” was sufficiently similar to support joinder. She concluded that, “The evidence demonstrates that the defendant’s alleged conduct in both cases involves a continuous course of events beginning with the assault and death of Harmony and continuing with the concealment and disposal of her body. This pattern reflects a consistent mode of operation by the defendant.”
This despite the fact that the defendant argued that the nature of force and number of blows differed.
As to “duplication and overlap of evidence,” the judge emphasized that the same witnesses and evidence would be presented in both trials. She noted that severance would lead to duplicative testimony and require witnesses like Kayla Montgomery particular, and investigators to testify twice about overlapping facts.
The court also considered whether the jury could distinguish between evidence for the assault versus the homicide counts and concluded that with carefully drafted jury instructions, (which did occur), the risk of confusion or undue accumulation of inference could be mitigated.
The judge also found that with respect to “best interests of justice / judicial economy” that joinder helps avoid duplication of evidence and reduces burden on witnesses. She found that joinder would also achieve “a variety of other economies in connection with prosecutorial and judicial resources.”
Finally, the judge found that “that joinder promotes judicial economy and provides the jury with the full context of the alleged conduct, while any risk of unfair prejudice can be mitigated by appropriate instructions. Accordingly, joinder is in the best interests of justice.”
“Ultimately, the judge agreed with the State and concluded that, “The charges in the two dockets are sufficiently related and comport with the best interests of justice. Accordingly, the defendant’s motion to sever is DENIED.”
That decision is now under review by the New Hampshire Supreme Court.
The Arguments
Defense:
Montgomery argues the judge got it wrong. In his brief, lawyers argue that the trial judge should have split the case in two; one trial for the July 2019 assault and another for the December 2019 murder. They say combining the charges created an unfair bias and risk, and that the judge’s attempt to mitigate the risk with limiting instructions to the jury would not eliminate the risk. In their view, the assault evidence (which came in from Kevin Montgomery and Kayla Montgomery) was so strong and emotionally charged that jurors would be tempted to see Montgomery as a violent person and assume he was guilty of murder simply because of his past conduct.
The defense also argues that the two incidents were separate in time and circumstance, not part of a single plan or pattern or continuous sequence, and that the trial court misapplied New Hampshire’s Brown factors by giving too much weight to overlapping witnesses and not enough to the risk of prejudice. Montgomery argues that combining the charges would cause the jury to convict on the homicide charge based on knowing he physically abused Harmony months earlier, even if the evidence of the homicide itself proved to be weak. The court acknowledged that risk but judged it manageable. The judge found that the evidence was not so” complex” that the jury would be unable to intelligently apply the law separately to each count.
Montgomery also claims that the alleged judicial economy associated with a single trial came at the expense of Montgomery’s sixth amendment constitutional right to a fair trial. The defense insists the risk of prejudice was too great and that justice required separate trials.
State:
The State takes the opposite view. On appeal, the State argues the judge got it right as she carefully and meticulously weighed the Brown factors, gave clear jury instructions, and acted well within her discretion.
Prosecutors argue that the charges were properly tried together because they were logically and factually connected, specifically, the same child, the same defendant, and the same pattern of violence. They point out that many of the same witnesses, including Kayla Montgomery and investigating officers would have been called twice if the trials were split, forcing Harmony’s story to be told again by the same witnesses. The State also notes that the trial judge gave clear jury instructions directing jurors to consider each charge separately, and that the law presumes jurors follow those instructions. The state argued the judge acted well within her discretion, balancing fairness and judicial economy exactly as the Brown decision requires and determining that joinder was in the best interest of justice.
“The charges in the two dockets are sufficiently related and comport with the best interests of justice.”
Judge Amy Messer
What’s at Stake?
The New Hampshire Supreme Court must now decide whether the judge’s choice to keep the cases together crossed the line from efficient to unfair. This appeal raises more than a procedural question; it tests the boundaries of fairness in emotionally charged cases involving child victims, like Harmony. When multiple charges are tried together, efficiency and prejudice are difficult to balance. The law expects judges to fairly balance those competing interests, but when the crimes involve the same child and such disturbing allegations of abuse, as seen here, that balance becomes more difficult. The court’s decision in Montgomery’s case could have far-reaching implications because it will signal how far New Hampshire’s judiciary is willing to go in allowing related but distinct charges to be joined.
Is Montgomery’s Argument Strong?
Given the record and the deference generally given to lower courts, the New Hampshire Supreme Court, in my view, is likely to find that he trial court applied the Brown factors appropriately and the trial cour’ts decision was not an unsustainable exercise of discretion as argued by Montgomery. Any risk of prejudice was sufficiently addressed through jury instructions. The judge’s detailed and legally supported decision makes a strong case for joinder.
Therefore, the judge’s denial of the motion to sever will probably be upheld.
