by Bill Knowles
TRINIDAD — A preliminary hearing in the Kenneth Norton double homicide case included a bond reduction request and a motion to dismiss second degree murder charges on the grounds of self defense.
The defense motions were made by the defendant’s attorney Matthew Ragland of the state public defenders office on behalf of his client.
Third Judicial District Judge Leslie Gerbracht heard two-and-a-half hours of testimony from several witnesses, including a district attorney’s investigator, Las Animas County Sheriff’s deputies and 911 dispatchers. Also testifying during the show cause hearing was the defendant’s wife, Nydia Norton.
The prosecution was led by Deputy State Attorney General Janet Drake representing the Third Judicial District Attorney’s Office in this case.
Following testimony where some detail about the shootings was released, Judge Gerbracht ruled Norton’s bond would be reduced from $100,000 to $75,000 cash or surety. She said an order concerning the defenses motion to dismiss the case would be ruled on next month.
Motion to dismiss
The defense’s argument for dismissal is based on CRS 18-1-704.5, which states in part, “any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person had made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.”
Testimony centered on Norton’s admission of use of deadly force to the 911 dispatcher, to district attorney’s office investigator, Larry Martinez, and to Sheriff’s Deputy Sgt. Matthew Moreno when they arrived at the scene. Sgt. Moreno testified Norton was calm and responsive to all of his orders.
Norton’s son Dave Norton, his girlfriend Destiny Levario, and her three children, a 10-year-old daughter from a previous relationship and a five-year-old and three-year-old from the current relationship were at Norton’s house on Dec. 8, 2017 for dinner.
Dave and Destiny, along with the three children, lived in a travel trailer on Kenneth Norton’s property near Weston.
According to testimony, during the evening the adults began drinking and shortly after dinner an argument began, according to Norton’s wife Nydia. She couldn’t recall what the argument was about but it escalated rapidly as their son Dave and Levario began insisting the property, meaning the 15 acres and the mobile home they were in, belonged to them.
Elements of the motion
By then Kenneth Norton, the actual owner of the property, told his son and Levario they would have to leave. Testimony indicated Dave and Destiny both went out to start their truck. According to the motion filed by the defense, when the younger couple reentered the mobile home, nothing had changed, “…there was no change that granted them an invitation, license, or privilege to enter the home. Their entry was therefore unlawful…”
When they returned the argument shifted to a bottle of vodka. Levario said she wanted to take the vodka home.
Nydia Norton took the bottle away from Levario who then allegedly hit her in the face several times and then assaulted her with a hand mirror. Dave allegedly began encouraging Levario to “just jump her,” meaning Levario should continue to assault his mother. By then Nydia was on the ground. According to Nydia, Dave was yelling at Levario to “finish her off.” Nydia was able to grab a small pair of scissors from the living room table, and cut Levario’s left leg with them, and was also bit her attacker.
According to the motion, “…David, in yelling at Destiny to continue the assault on Nydia, intended to promote the ongoing assault (and potential murder) of Nydia.” In his encouragement of Destiny to commit and continue the assault, he became criminally liable for the commission of the assault.
During the argument and fight the oldest girl took the two younger children to the bathroom and told them to stay while she returned to the living room in an effort to stop the fight.
Reasonable belief he and his wife were in imminent danger
The third element of C.R.S. 18-1-704.5 is met because Levario actually used physical force in her assault on Nydia Norton, according to the defense motion to dismiss. Norton was reasonable in his belief that Levario ‘might’ use any physical force against an occupant of the dwelling according to the motion. Because Dave was continuing to egg on Levario to beat up and kill Nydia, it was reasonable for Norton to believe that he might use any physical force against an occupant of the dwelling.
According to the motion, this gives Norton immunity from prosecution or civil liability arising from his use of force.
Nydia didn’t see the shooting; in court she mourned her son.
When officers arrived they found Ken Norton’s .38 caliber pistol on the table and a nine-millimeter handgun alleged to be Levario’s on the kitchen counter. Norton had given the nine-millimeter to his son David at an earlier date according the testimony given by Nydia.
During questioning at the scene, Norton stated he took the pistol from Levario. No weapons were found on or around the bodies of Dave and Destiny, according to police testimony.
The three children are currently out of state living with family.
Norton’s next appearance in court is scheduled for Feb. 26, where he will be arraigned.
