State v. Norquay, DA 10–0016.

Citation2011 MT 34,248 P.3d 817,359 Mont. 257
Decision Date01 March 2011
Docket NumberNo. DA 10–0016.,DA 10–0016.
PartiesSTATE of Montana, Plaintiff and Appellee,v.Kim A. NORQUAY, Jr., Defendant and Appellant.
CourtUnited States State Supreme Court of Montana


For Appellant: Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana, Gina Dahl, Hill County Attorney, Havre, Montana, Daniel Guzynski, Special Deputy County Attorney, Helena, Montana.Justice BRIAN MORRIS delivered the Opinion of the Court.

[359 Mont. 258] ¶ 1 A Montana jury found Kim A. Norquay, Jr. (Norquay) guilty of deliberate homicide, § 45–5–102(1)(b), MCA, and tampering with physical evidence, § 45–7–207(1)(a), MCA. Norquay appeals.

¶ 2 We review the following issues on appeal:

¶ 3 1. Whether the District Court's admission of the State's expert DNA witness through a videotaped deposition violated Norquay's right to confront the witness.

¶ 4 2. Whether the District Court's Allen-instruction given to a deadlocked jury constituted an improperly coercive instruction.

¶ 5 3. Whether the prosecutor's comments at trial constituted prosecutorial misconduct.


¶ 6 Nathan Oats (Oats) and Georgetta Oats (Georgetta) found Lloyd Kvelstad (Kvelstad) unconscious and severely beaten at about 1:30 a.m. on November 25, 2006. Oats testified that he found Kvelstad lying on a couch with his pants down around his legs at Melissa Snow's (Snow) house. Kvelstad's face was beaten beyond recognition and he had a black string around his neck. Oats told Georgetta to call 911.

¶ 7 Kvelstad, Norquay, James Main Jr. (Main), Billy the Boy (Billy), Jason Skidmore (Skidmore), Joseph Red Elk (Red Elk), and Thomas Anderson (Anderson) had gathered at Snow's house to drink alcohol earlier that night. Norquay, Main, Snow, and Billy were still at the house when Oats arrived and found Kvelstad. Georgetta announced that the police were coming and Main attempted to leave. Oats restrained Main and held him until the police arrived. Norquay fled out a side door. Paramedics determined that Kvelstad was dead.

¶ 8 The State charged Norquay with deliberate homicide on the theory that Norquay had participated in the commission of an aggravated assault of Kvelstad. The State also charged Norquay with tampering with physical evidence based upon a witness's statement that Norquay had wiped blood off his shoe. Norquay had an eight-day jury trial.

¶ 9 Red Elk testified to the events leading up to Kvelstad's death. Red Elk testified that several of the men had verbally and physically assaulted Kvelstad. Red Elk watched Main and Skidmore put Kvelstad into several choke holds that caused Kvelstad to lose consciousness. Skidmore pulled up Kvelstad's underwear until they ripped off. Red Elk testified that Norquay slapped Kvelstad's face and would not allow Kvelstad to sit down. He also testified that Norquay took his belt off, unbuttoned, and unzipped his pants, attempted to pull down Kvelstad's pants, and announced that he was going to “fuck” Kvelstad. Another of the revelers forced Norquay to stop. Red Elk also testified that he had heard Norquay talking with Main about whether the two of them should kill Kvelstad.

¶ 10 Kvelstad eventually passed out from intoxication. Red Elk watched Snow and Skidmore put Kvelstad in a bed. Red Elk left Snow's house with Skidmore shortly thereafter. Red Elk testified that Kvelstad was still breathing and was not bloody when he last saw him. Snow testified to a similar version of the night's events. She also testified that she saw Norquay remove the string from his sweatshirt. Another witness testified that Norquay told her that he had strangled Kvelstad using a string from his sweatshirt.

¶ 11 Several other witnesses testified that Norquay had made incriminating statements after Kvelstad's death. One witness testified that she overheard Norquay brag to someone on the phone, “Did you hear I'm a murderer?” Norquay voluntarily met with police. Norquay denied kicking, beating, or strangling Kvelstad. Norquay claimed that Kvelstad had passed out from drinking too much. The Deputy State Medical Examiner testified that Kvelstad had likely died as a result of blunt force trauma to the head and probable ligature strangulation.

¶ 12 One of the State's experts testified that the tread on Norquay's shoes corresponded with a bloody shoe impression left on Kvelstad's sweatshirt. Norquay's expert refuted this testimony. The State also provided testimony from a DNA expert with the Montana Crime Lab through a videotaped deposition. Norquay originally requested the DNA evidence from the State Crime Lab. The DNA expert provided both potentially exculpatory and potentially inculpatory testimony. Both parties relied on portions of the DNA expert's testimony to their advantage. The jury convicted Norquay on all counts. Norquay appeals.


¶ 13 This Court reviews a district court's evidentiary rulings for abuse of discretion. In re T.J.B., 2010 MT 116, ¶ 14, 356 Mont. 342, 233 P.3d 341. Norquay argues that the Court's decision to allow the State's videotaped deposition violated his constitutional right to confront witnesses against him. A district court has no discretion in the correct interpretation of the Constitution. State v. Parker, 2006 MT 258, ¶ 11, 334 Mont. 129, 144 P.3d 831. This Court reviews de novo a court's interpretation of the Sixth Amendment. In re T.J.B., ¶ 14.

¶ 14 We review jury instructions to determine whether, as a whole, they fully and fairly provide instruction on the applicable law. Id. at ¶ 16. A district court's discretion in formulating instructions is reversible only if the instructions prejudicially affect the defendant's substantial rights. Id. The Court conducts plenary review of discretionary rulings when the court bases the discretionary ruling upon an interpretation of the Constitution. Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 26, 351 Mont. 464, 215 P.3d 649.


¶ 15 1. Whether the District Court's admission of the State's expert DNA witness through a videotaped deposition violated Norquay's right to confront the witness.

¶ 16 Officers arrested Norquay in July 2007 and the court originally scheduled Norquay's trial for May 2008. The court granted several continuances to accommodate witness availability and attempted to set the trial date for January 5, 2009, more than two years after Kvelstad's death. The parties agreed to reschedule again to accommodate the DNA expert, Megan Ashton (Ashton), who was expecting a baby in mid–December 2008 and would be on maternity leave in January 2009. The court moved up the trial date to November 12, 2008.

¶ 17 Ashton informed defense counsel in October 2008, that her doctor had prohibited her from traveling from her home in Missoula to Havre for the November trial. Norquay filed another motion to continue the trial until January 2009. The State unsuccessfully attempted to replace Ashton with another DNA expert. The State opposed the motion to continue. The State moved instead for an order to use a videotaped deposition of Ashton at trial in place of her live testimony. Norquay opposed the videotaped deposition. The court granted the State's motion to depose Ashton and denied Norquay's motion to continue the trial.

¶ 18 The court provided several reasons for its decision to allow the videotaped deposition. The court recognized the difficulty in trying to accommodate the schedule of approximately 50 other witnesses. The court cited the fact that two years had elapsed since the victim's death and the effect that this delay could have on witnesses' memories. The court further reasoned that Ashton was not a witness with personal knowledge of the facts giving rise to the events. Finally, the court discussed its need to accommodate schedules for the two judicial districts over which it presided. The court concluded that another continuance likely would postpone the trial significantly. The videotaped deposition took place six days before trial. Counsel for both parties were present. Norquay cross-examined Ashton.

¶ 19 Norquay argues that the court's admission of Ashton's videotaped testimony violated his Sixth Amendment right to confront witnesses against him. He contends that the State failed to establish that Ashton was unavailable because the State had not made a good faith effort to present the witness at trial. The court deemed Ashton unavailable and concluded that Norquay's confrontation rights could be protected adequately through a videotaped deposition with all parties present.

¶ 20 Both the federal and Montana constitutions provide defendants with the right to confront witnesses against them. U.S. Const. amend. VI; Mont. Const. art. II, § 24. The ability to cross-examine a witness represents the cornerstone of a defendant's right to confront the witnesses against him. In re T.J.B., ¶ 18. The Confrontation Clause also normally requires that a witness testify in court. State v. Hart, 2009 MT 268, ¶ 23, 352 Mont. 92, 214 P.3d 1273. The court may allow recorded witness testimony at trial under limited circumstances. The court first must deem the witness unavailable for trial. Hart, ¶ 23 (citing Crawford v. Wash., 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004)); §§ 46–15–201, –204, MCA; M.R. Evid. 804. The court also must determine that the defendant has had an opportunity to cross-examine the witness in some forum. Hart, ¶ 23.

¶ 21 The State satisfied the second element here. Norquay cross-examined Ashton at her deposition. Norquay challenges only the court's determination that Ashton was unavailable for trial. A court may deem a witness unavailable if a physical illness renders the witness unable to testify. M.R. Evid. 804(a)(4). The proponent of the testimony of an unavailable witness in a...

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