Deconstructing the Intrinsic Evidence Argument
The final argument in Montgomery appeal relates the admission of intrinsic evidence. In this case, “intrinsic evidence” refers to uncharged bad acts that are considered “inextricably intertwined” with the crimes he was charged with committing against Harmony. This is different from the Rule 404 prohibition on admitting “prior bad acts” except under very limited circumstances. It’s the rule that generally bars prosecutors from using evidence of a defendant’s past “crimes, wrongs, or other acts” solely to prove that they have a propensity for criminal behavior.
The intrinsic evidence admitted in the Montgomery trial focused on Adam’s abuse and violence toward Harmony, which prosecutors argued was an integral part of the crime itself and necessary for the jury to hear. This included testimony regarding his ongoing abuse of Harmony that came in through Kayla Montgomery’s testimony, detailing her husband’s abuse of Harmony in the weeks before her death. The intrinsic evince objected to by Montgomery also included the testimony of Harmony’s mother who had been cut off from contact.
The arguments in the briefs are directed toward the issue of whether the disputed evidence is considered intrinsic because it’s “inextricably intertwined” with the charged offense and necessary to complete the story of the crime, or whether it is merely prohibited evidence of bad character.
The Arguments
Defense:
The defense first argues that the trial court erred by admitting Kayla Montgomery’s testimony as “intrinsic evidence,” arguing that the acts of abuse she testified to were separate and distinct from the murder, not relevant to proving any element of the crime. They argue that the testimony is governed by Rule 404(b), prohibiting use of prior bad acts to prove character or propensity to commit a crime. Montgomery further argued that the evidence’s prejudicial effect outweighed any probative value and Kayla’s testimony, in particular, was unreliable and inflammatory and designed to evoke sympathy and anger rather than to provide the facts.
Montgomery argued extensively against admitting testimony of Kayla Montgomery, pointing out that she was an admitted and convicted perjurer. In brief Montgomery states, “to both the police and the grand jury, she said she understood that Montgomery took H.M. to live with Sorey around Thanksgiving 2019 while she was at work.” He further argues, “There was no evidence that any alleged abuse prior to December 7 contributed to H.M.’s death. Kayla’s testimony about the prior alleged abuse and neglect and Sorey’s testimony about lack of contact with H.M. was not essential to providing an intelligent and coherent description of what occurred on December 7.”
The arguments concerning Crystal Sorey, Harmony’s biological mother, center on whether her testimony, statements, and related evidence were admissible. They argued that Crystal’s testimony and references to her parental relationship were irrelevant and unduly prejudicial, essentially inviting sympathy for Crystal and Harmony that should not have been heard by the jury. Montgomery claims that the cut off in communication with Sorey was not part of the crime itself but a custody-related issue, separate distinct from the alleged acts of abuse and homicide. They claimed that the State’s reliance on Crystal’s efforts to contact Harmony was in violation of the “bad acts” rule.
Based on those arguments, Montgomery asks that his conviction be overturned.
State:
The State countered that the challenged evidence regarding Crystal Sorey being cut off was not “other bad acts” under Rule 404(b) but part of a continuous chain of events leading directly to Harmony’s murder. In brief, the State contends the judge got got it right stating, “The trial court correctly admitted evidence of the defendant’s neglect and abuse of H.M. and his ending contact between Crystal and H.M. as intrinsic to the second-degree murder charge.”
The abuse and neglect evidence, the State claimed, was probative of the defendant’s “indifference to the value of human life for murdering his five-year-old daughter.”
As to Crystal’s efforts to reach Harmony and Adam’s deliberate termination of contact, the State argues these acts were intrinsic to the crime, not collateral. The State argues that the decision to isolate Harmony from her mother showed intent, motive, and malice illustrating Adam’s pattern of control, concealment, and abuse leading up to the fatal acts. The evidence was intrinsic because it showed Crystal Sorey’s attempts to reach Harmony, and also helped the jury understand the timeline of Harmony’s disappearance and how Adam successfully kept others, including DCYF from discovering what had happened.
The evidence of abuse just prior to the murder was “part and parcel of the events that took place during the days leading up to [H.M.’s] death…”
Judge Amy Messer
The Lower Court’s decision:
The trial judge meticulously balanced the legitimate and competing interests of Montgomery and the State by denying the State’s request to admit evidence of abuse and neglect in the months leading up to Harmony’s murder, authorizing the admission of evidence of abuse only from two weeks leading up to, and including, November 29, 2019, and between November 29, 2019 and December 7, 2019 ruling it was “part and parcel of the events that took place during the days leading up to [H.M.’s]” death, was “related to the defendant’s claim that he had taken [H.M.] to her mother[,]”
The judge allowed limited references to Crystal’s contact with Harmony permitting testimony about the timeline of lost contact between mother and child, but not extensive emotional or hearsay content about Crystal’s search efforts or her feelings. The court viewed Adam’s decision to cut off contact as part of the “intrinsic evidence” that was in essence inextricably intertwined because, as the prosecution argued, it undermined Montgomery’s claim that he had returned Harmony to her mother on Thanksgiving.
Finally, the court gave limiting instructions reminding jurors not to use this evidence to judge Adam’s general character or parental fitness, but only for context and motive.
Likelihood of Success
In my view, given the trial court’s limited time frame of two weeks before the murder regarding abuse and neglect evidence, limitations on Sorey’s testimony, and limiting instructions to the jury, the Supreme Court may find no abuse of discretion and affirm the ruling. Cases in New Hampshire, have ruled that evidence is intrinsic if it is “inextricably intertwined with the charged offense” or necessary to provide context for the crime. The judge’s ruling below seems consistent with such rulings.
