Adam Montgomery wants the testimony of his estranged wife excluded from jury deliberations in his trial on charges related to the killing of his 5-year-old daughter, Harmony, in December 2019.
Kayla Montgomery took the stand as the prosecution’s star witness for the better part of two days. The trial has lasted eight days so far.
The defense’s request came over the long weekend, with the court closed on Monday for Presidents Day.
While the defense says a mistrial would be appropriate if requested, that request is not being made at this time, the filing reads, “because such a remedy would only allow the State to benefit from its own misconduct.”
If the judge doesn’t exclude the testimony entirely, the defense wants to prevent the prosecution from arguing during closing there is no evidence to establish Kayla Montgomery was ever alone with Harmony.
The Attorney General’s Office was expected to file a response Monday, according to a spokesman.
Adam Montgomery, 34, is charged with second-degree murder in connection with Harmony’s death in December 2019.
Kayla Montgomery’s testimony is considered crucial to the prosecution’s case, because she is the only witness to her estranged husband’s alleged actions. She reached a plea agreement on two charges of perjury to testify truthfully at trial and is serving a year-and-a-half sentence in prison.
Public defenders Caroline Smith and James Brooks say Adam Montgomery’s constitutional rights were violated.
The state tried to influence Kayla Montgomery’s testimony by having her lawyer share information from the defense’s opening statement, which included the assertion that Kayla was the last person to see Harmony alive and to know how she died, according to the filing.
The trial came to a standstill on Monday, Feb. 12, when Kayla testified her lawyer, Paul Garrity, made her aware of the defense’s accusation.
Prosecutor Christopher Knowles informed Garrity this would be “an area of attack” for cross-examination, according to the defense’s filing.
Brooks and Smith said they were not informed “that the state had in fact warned Kayla” of the expected questioning. The defense says it has shown Kayla Montgomery was alone with Harmony at times. According to the filing, the state “deliberately withheld disclosing that information to the defense and court.”
Kayla Montgomery, however, testified that the family stayed together at all times while living in a Chrysler Sebring after they were evicted from their home at 77 Gilford St. the day before Thanksgiving 2019.
“It became clear that Kayla was reluctant to even admit that the family even separated when Adam was receiving his medication at the clinic or visiting a men’s restroom, or when the children were being cleaned up or when Kayla was taking Harmony to a restroom,” the filing reads.
Garrity told Judge Amy Messer that Knowles told him to apprise Kayla Montgomery of the accusation.
The filing references a trial ruling that all witnesses be sequestered and “uniform practice of New Hampshire courts to prohibit those individuals subject to a sequestration order from being present for opening statements even though opening statements are not technically evidence or ‘testimony,’” the filing reads.
Messer ruled Kayla being advised of the opening statement was not a violation of the sequestration.
The defense said providing the information showed that “her answers were part of a preplanned defense of herself rather than her honest reaction upon being first questioned by the defense.”
The defense says it has a reasonable basis to believe that Kayla Montgomery was alone with Harmony when she died.
Kayla Montgomery testified last week that she and Adam discovered Harmony had died after their car broke down at Webster and Elm streets. She said Adam repeatedly struck the girl after he smelled urine in the car.
Brooks and Smith say they have a reasonable basis to argue that Harmony died while Adam Montgomery was off doing other things to provide for the family.
Montgomery has not been in court since the first day of jury selection, waiving his right to appear at Hillsborough County Superior Court in Manchester for eight days in a row. Some members of the jury — 14 women and three men — have not seen Montgomery in person.
The defense also wants the jury to be made aware of the state’s “attempt to influence Kayla Montgomery’s trial testimony by having her defense attorney apprise her of the defense’s opening statement.”
A hearing likely will take place Tuesday on what will be the ninth day of trial.
