NO. 88-101
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID LARRY PEASE ,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable John Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David Larry Pease, pro se, Deer Lodge, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert F.W. Smith, Asst. Atty. General, Helena
John W. Robinson, County Attorney, Hamilton, Montana
Submitted on Briefs: June 16, 1988
Decided: July 19, 1988
Filed: O M 1 9 1988
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
David Larry Pease appeals from the amended judgment of
the District Court, Fourth Judicial District, Ravalli County,
revoking his suspended sentence from a jury conviction on six
counts of sexual intercourse without consent. We affirm the
District Court's decision.
The appellant, David Pease, presents the following
issues:
1. Was the District Court's decision to place defendant
on probation while he also posted a bail bond contrary to S
46-20-204 (4), MCA?
2. Did the District Court err in finding the defendant
guilty of violating the terms and conditions of the suspended
sentence if the defendant signed the probation conditions
under duress?
3. Was the ex parte conference between the probation
officer and the District Court judge a violation of due
process?
4. Was the defendant unlawfully detained if he was
told, while he was a patient in the hospital, that when ready
to leave the hospital he would be under arrest?
5. Was the denial of access to certain evidence a
violation of due process?
6. Did the District Court err in denying defendant the
opportunity to present a subpoenaed witness?
7. & 8. Did the defendant violate the conditions of his
probation if the victim made the initial contacts and if the
defendant was acting under duress and necessity?
9. Did the District Court deny bail by reason of
excessive bail?
10. Did the District Court err by sentencing defendant
before review of his appeal on the excessive bail claim?
11. Did the District Court abuse its discretion by
ordering defendant to complete the sex offender program at
Montana State Prison?
David Larry Pease was charged in Ravalli County on June
12, 1985 with six counts of sexual intercourse without
consent. A jury convicted Pease on all six counts. He was
sentenced to 15 years imprisonment with all but six months
suspended. The suspended sentence was conditional "that
defendant not have any contact with the victim of the offense
or her family." Pease appealed and the Montana Supreme Court.
affirmed the conviction. State v. Pease (Mont. 1987), 740
P.2d 659, 44 St.Rep. 1203.
On September 15, 1987, defendant was admitted to St.
Patrick's Hospital in Missoula. On that day, his probation
officer visited him and told him that when he was ready to
leave the hospital, he would be under arrest for violating
the conditions of his parole. Defendant Pease was arrested
September 18, 1987 and appeared before a Justice of the Peace
in Ravalli County later that day, where bail was set at
$100,000.
On September 22, 1987, the Ravalli County Attorney filed
a petition for revocation of the suspended sentence stating
that Pease had violated the conditions of his parole by
having numerous contacts, in person and by phone, with the
victim from June 22, 1987 until September 12, 1987. The
District Court found that Pease had violated the terms and
conditions of his parole and revoked the suspended sentence.
His 15 year sentence to the Montana State Prison was
reinstated December 2, 1987 in the District Court's amended
judgment which also ordered Pease to complete the sexual
offender program at the prison.
Defendant Pease filed two notices of appeal; one on
October 14, 1987 appealing on the issue of excessive bail and
a second on November 17, 1987 from the final order revoking
the suspended sentence.
Before addressing the issues presented, we must rule on
the State's motion to strike the defendant's first, second,
ninth and tenth issues. The State bases the motion on 5
46-20-104, MCA, contending that the defendant must confine
his appeal to errors in the judgment affecting substantial
rights. The State also contends that issues 1, 2, 9 & 10
concern Pease's prior appeals before this Court. We agree
that issues 1 & 2 are not within the issues on appeal as
presented in Pease's notices of appeal dated October 14, 1987
and November 17, 1987. Issue 2 was reviewable only on
Pease's first appeal. However, with regard to issue 1,
whether the District Court erred requiring a bail bond while
Pease was on probation, we find that § 46-20-204(4), MCA, as
relied upon by the defendant does not apply in this case.
This section provides for a stay of execution and relief
pending appeal of an original conviction. Pease has already
been convicted and sentenced. The applicable section now is
46-23-1012 which provides procedures for arrest when
violations of probation are alleged. A person who has
violated probation is made subject to provisions regarding
release on bail. Section 46-23-1012 (3), MCA. This issue,
and issue 2, will not be considered further.
Issues 9 & 10, concerning excessive bail and whether the
District Court erred by sentencing Pease before review of his
appeal on the excessive bail claim, were settled by this
court's order on November 17, 1987 in Pease v. Printz, Cause
No. 87-417. In that order, this Court found that the
district judge properly considered the factors set forth in
ss 46-9-301 (I), ( 2 ) , & (5) in setting bail and affirmed the
decision setting bail at $100,000. Pease's motion to
reconsider the order was denied on November 24, 1987. The
District Court subsequently entered its amended judgment
reinstating Pease's 15 year sentence on December 2, 1987.
Thus, the District Court did not sentence Pease before review
of his appeal on the excessive bail claim. Issues 9 and 10
will not be discussed further.
Issue 3 - Ex parte Conference
Pease contends that he was denied due process when his
probation officer conversed by telephone with the District
Judge on September 15, 1987, just prior to his September 18
arrest. Consequently, Pease argues that our decision in
State v. Redding (1984), 208 Mont. 24, 675 P.2d 974 demands
reversal of the revocation. We disagree.
In Redding, we held the defendant had been denied due
process when the sentencing judge conferred with the
presentence investigation officer behind closed doors with no
opportunity for argument, rebuttal or explanation. However,
Redding is distinguishable from the instant case. Here, the
District Judge conferred with Pease's probation officer after
Pease had already been convicted and sentenced. Then, prior
to revoking the suspended sentence and reinstating the 15
year imprisonment sentence on December 2, 1987, Pease was
given the opportunity for argument, rebuttal and explanation
in two separate proceedings. We conclude, Pease was not
denied due process of law, and the rule of State v. Redding,
supra, does not apply.
Issue 4 - Defendant's detention in St. Patrick's
Hospital.
When Pease was admitted to St. Patrick's Hospital on
September 15, 1987, he was informed that he would be taken
into custody upon his release. Pease contends that as of that
day, he was not free to leave the hospital, was in custody
and would remain so from then on, and that the hospital staff
were instructed to contact the Missoula County Sheriff ' s
office should Pease attempt to leave. Pease was actually
arrested September 18, 1987. That day he appeared before a
Justice of the Peace in Ravalli County where bail was set at
$100,000. Pease alleges that he was unlawfully detained and
in custody with an unreasonable delay before his hearing on
September 18, 1987.
This contention is contrary to the probation officer's
testimony and to Pease's own admission. During Pease ' s
questioning of the probation officer, while appearing pro se,
Pease said " ... on the 18th [of September] I was
arrested . . ." Because Pease had already been convicted and
was on probation, any presumption of innocence was gone.
On September 14, 1987, the day before Pease was told he
would be arrested, he admitted to his probation officer that
he had seen and spoken with the victim on several occasions.
Because Pease had admitted to violating his probation there
was clearly probable cause to detain him. Pease was not
taken into custody until September 18, 1987, and a hearing
was held the same day. Pease was not unlawfully detained at
St. Patrick's Hospital.
Issue 5 - Denial of access to certain evidence.
Issue 6 - Disallowance of presenting a witness.
Pease had made cassette recordings of telephone
conversations between himself and the victim. While being
held in Ravalli County jail, the tapes were taken away from
him by the jailer. Pease wanted to use the tapes to show
distress and suicidal tendencies of the victim and himself in
developing his defense of "duress" and "necessity." A
witness to the taking of the tapes had been subpoenaed but
was not allowed to testify.
The testimony of the witness would have been irrelevant
to the issue of revoking the suspended sentence. Both the
testimony and the tapes would provide no more than cumulative
evidence. Furthermore such evidence and testimony is not
within the issues on appeal as they have very little, if
anything, to do with the parole violation or the revocation
of the suspended sentence.
The trial court has discretion to determine
admissibility of evidence and such "action will not be
reviewed except where its discretionary power has been
manifestly abused." State v. Short (Mont. 1985), 702 P.2d
979, 983, 42 St.Rep. 1026, 1031 citing State v. Breitenstein
(1979), 180 Mont. 503, 509, 591 P.2d 233, 236.
We find no abuse of discretion by the trial court. The
tapes and testimony concerning the tapes were properly
denied.
Issues 7 and 8 - Violation of probation.
a) Initial contacts by the victim.
Pease claims that because the victim made contact with
him rather than vice versa, he did not violate his probation.
Consequently, since the State did not prove Pease willfully
violated his probation conditions, he argues his suspended
sentence should not be revoked. We do not agree.
The probation agreement made no reference to "willful
contact," instead it stated: "You will have - contact with
no
the victim of this offense or her family." (Emphasis added.)
Pease has misconstrued the agreement. "NO contact" means
just that, whether or not Pease was the initiator. The
District Court made no error in finding that Pease's contacts
with the victim violated his probation.
b) Duress and necessity defense.
Pease presented testimony from several witnesses that
showed both he and the victim were emotionally distraught and
were compelled to see each other. To justify his actions
because of these claimed emotional conditions cannot be
tolerated. Duress and necessity are not, per se, included as
defenses in the Montana Code. Compulsion, however, is an
acceptable defense. Section 45-2-212, MCA. See also, State
v. Owens (1979), 182 Mont. 338, 347, 597 P.2d 72, 77. The
circumstances of this case do not satisfy the requirements
for a compulsion defense. Whether Pease or the victim acted
under duress or necessity is a question of fact adequately
resolved by the District Judge. There was no error by the
District Court in its finding that his claimed duress and
necessity were not a defense.
Issue 11 - Order to complete sex offender program.
Pease asserts that the District Court abused its
discretion by ordering him to complete the sex offender
program at Montana State Prison in the face of expert
testimony indicating that Pease was not likely to benefit
from the program. Conditions of a sentence are within the
discretion of the trial judge. It is well established in
this state that the trier of fact has discretion to give
whatever weight it sees fit to the testimony of any expert.
See, Biegalke v. Biegalke (1977), 172 Mont. 311, 317, 564
P.2d 987, 990. The sentencing judge, not the expert witness,
makes the decision as to what conditions will be placed upon
a convicted defendant. Section 46-18-201, MCA, states:
... (1)(b) ... The sentencing judge may impose
on the defendant any reasonable restrictions or
conditions ... (1) (el commit the defendant to a
correctional institution . .. (1) (f) impose any
combination of subsections (1)(b) through (1) (el .
(Emphasis added.)
Requiring Pease to complete the sex offender program is not
an abuse of discretion nor is it unreasonable.
The judgment of the District Court is affirmed.
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