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State v. Sweet

Supreme Court of Montana

November 7, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
ROBERT ALLAN SWEET, Defendant and Appellant.

          Submitted on Briefs: October 10, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 16-0552 Honorable Rod Souza, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Robert S. Spoja, Deputy County Attorney, Billings, Montana

          OPINION

          JIM RICE

         ¶1 Robert Allan Sweet appeals his conviction of operating a noncommercial vehicle with an alcohol concentration of 0.08 or more, or "DUI per se," in violation of § 61-8-406(1)(a), MCA (2015), following a jury trial in the Thirteenth Judicial District Court, Yellowstone County. He challenges the District Court's giving of a jury instruction. We affirm and address the following issue:

         Did the District Court abuse its discretion by giving a "Norquay instruction" to the jury?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 Near midnight on May 28, 2016, Billings Police Officer Nathan Contreraz encountered a vehicle in a gravel area alongside Central Avenue in Billings with "somebody's arm sticking out the window." The apparent driver was passed out, the keys were in the ignition, and the vehicle was running. Contreraz turned off the vehicle and wakened the driver, Defendant Sweet, who exhibited characteristics of excessive alcohol consumption and registered a .250 blood-alcohol level during later testing at the detention center. Sweet was charged with DUI per se, plead not guilty, and the case proceeded to a jury trial.

         ¶3 During the first day, the trial proceeded through the parties' case presentations, including the testimony of witnesses. By that point, Sweet no longer contested that his alcohol concentration was above the legal limit or that he was in control of the vehicle; rather, his defense narrowed to whether the graveled area along Central Avenue where his vehicle was located was a "way[] of this state open to the public" under § 61-8-406(1)(a), MCA. On the morning of the second day of trial, closing arguments were made by counsel and the District Court gave 17 instructions to the jury, including those addressing the elements of the offense of DUI per se, the burden of proof, and a definition for "ways of the state open to the public." Sweet did not object to any of the 17 instructions given by the court. The jury began deliberations at about 10:00 a.m.

         ¶4 At 12:20 p.m., the District Court met with counsel and Sweet because the jury had submitted two questions. The first question concerned the elements of DUI per se and the burden of proof. The second question concerned the definition of ways of the state open to the public. After discussion among the court and parties, the District Court provided the following written response to the jury's questions, to which neither party objected: "The Court cannot provide additional instructions. You may rely only on Instructions 1 through 17 previously given." The jury then continued their deliberations at about 12:28 p.m.

         ¶5 At 1:02 p.m., the District Court again met with counsel and Sweet because the jury had submitted a note, stating: "We, the jury, cannot reach a unanimous decision as to a verdict." The court asked the parties whether Mont. Pattern Jury Instr. Crim. 1.121 (2009) should be offered, stating that such instructions have "been approved by the Montana Supreme Court in situations like this where a jury informs of a potential deadlock." The State argued the instruction should be given, with the caveat it should be modified as provided by this Court in State v. Norquay, 2011 MT 34, ¶ 43, 359 Mont. 257, 248 P.3d 817 (Norquay instruction). The defense objected, asking the jury be given more time because it had been deliberating for just two and a half hours and had previously asked questions about some of the instructions. The District Court determined to give the Norquay instruction, reasoning the jury had "affirmatively stated they cannot reach a decision," the Norquay instruction would advise the jury to "consider not only the Norquay instruction but consider all of the instructions again and asks them simply to resume deliberations," and, as such, the instruction would not be prejudicial.

         ¶6 The District Court gave the Norquay instruction to the jury.[1] The jury then resumed its deliberations, and deliberated for approximately an hour before returning a unanimous guilty verdict finding Sweet guilty of DUI per se. Sweet was ...


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