State v. Norvell, 050719 MTSC, DA 17-0456

Docket Nº:DA 17-0456
Opinion Judge:Jim Rice, Justice
Party Name:STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN THOMAS NORVELL, Defendant and Appellant.
Attorney:For Appellant: Laura Reed, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana
Case Date:May 07, 2019
Court:Supreme Court of Montana
 
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2019 MT 105

STATE OF MONTANA, Plaintiff and Appellee,

v.

BRIAN THOMAS NORVELL, Defendant and Appellant.

No. DA 17-0456

Supreme Court of Montana

May 7, 2019

Submitted on Briefs: March 13, 2019.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 16-51 Honorable Matthew Cuffe, Presiding Judge.

For Appellant: Laura Reed, Attorney at Law, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

Jim Rice, Justice

¶l Brian Thomas Norvell (Norvell) appeals his conviction of aggravated assault, in violation of § 45-5-202, MCA, upon his no contest plea, in the Nineteenth Judicial District Court, Lincoln County. We reverse and remand for dismissal without prejudice.

¶2 We consider the following issue:

Did the District Court err by denying Norvell's motion to dismiss for unnecessary delay between his arrest and initial appearance?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 As alleged, on May 9, 2016, Norvell struck a cyclist with his car while driving on a highway near Libby, Montana. Norvell initially fled, but soon returned to the collision scene in a different car while law enforcement was investigating. Norvell approached United States Border Patrol Agent Luis Granado (Granado), who was the first law enforcement officer to arrive on the scene, said "I am the one that nailed him," and asked Granado to "give his best regards to the cyclist's family." Norvell handed Granado a wallet, which was later identified as the victim's. Granado observed that Norvell was "pretty worked up" and "breathing heavy." Norvell indicated he was going to leave the scene, so Granado had Norvell wait in a law enforcement vehicle until additional law enforcement arrived.

¶4 Montana Highway Patrol Trooper Anthony Jenson (Jenson) responded to the scene and took over the investigation. Jenson made contact with Norvell, who refused to answer questions. Jenson observed that Norvell's eyes were red, bloodshot, and watery. Because Norvell was detained in a law enforcement vehicle, Jenson advised Norvell of his Miranda rights. Jenson then continued investigating, including speaking to a witness and documenting the scene.

¶5 Jenson learned that Norvell was on probation for a prior felony offense in Idaho. Jenson contacted Norvell's probation officer, Darrell Vanderhoef (Vanderhoef), who advised Jenson that Norvell had violated his probation by operating a motor vehicle with a suspended license and fleeing the scene of a crash involving injury. Vanderhoef verbally authorized Jenson to arrest Norvell, so Jenson took Norvell into custody for violation of probation and transported him to the Lincoln County Detention Center (Detention Center).

¶6 The next day, May 10, Vanderhoef filed an authorization to pick up and hold Norvell with the Detention Center, and met with Norvell there. Norvell told Vanderhoef that he had driven his vehicle someplace into the woods between the crash scene and the Koocanusa Bridge. Law enforcement located Norvell's vehicle near that location several hours later, although the record does not establish whether this finding occurred as a result of Norvell's statement to Vanderhoef.

¶7 On May 12, 2016, Vanderhoef provided the Detention Center with an arrest warrant, which stated that Norvell should be held for an "Investigative hold: New felony charges to be filed in Lincoln County." The warrant erroneously stated that Norvell was on parole and that because he was an "interstate offender" he was not entitled to bond.

¶8 Jenson continued the collision investigation over approximately twelve more days, then submitted a report to the Lincoln County Attorney's Office. Jenson located the vehicle Norvell was driving; interviewed witnesses and the victim's family; retrieved four dollars in cash the victim was carrying in his wallet at the time he was struck; gathered physical evidence such as the bicycle and the victim's clothing; and interviewed the victim, who stated that Norvell drove up to him shortly before the collision and asked what time...

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