No. 86-529
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1987
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
DAVID L. PEASE,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f R a v a l l i ,
The Honorable John S. Henson, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
David L . P e a s e , p r o se, Hamilton, Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
Kimberly K r a d o l f e r , A s s t . A t t y . G e n e r a l , Helena
John Robinson, County A t t o r n e y , Hamilton, Montana
M a r g a r e t Tonon, Deputy County A t t y . , Hamilton
S u b m i t t e d on B r i e f s : May 1 4 , 1987
Decided: J u l y 2 1 , 1987
Filed: &( 9 , &g7
* J
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant David Pease was convicted of six counts of
sexual intercourse without consent by jury trial in the
District Court of the Fourth Judicial District, Ravalli
County. Defendant appealed. We affirm.
The defendant raises ten issues on appeal:
1. Was Mr. Pease denied equal protection of the laws by
way of selective prosecution?
2. Was Mr. Pease denied a speedy trial?
3. Was Mr. Pease denied effective assistance of counsel
by reason of conflict of interest?
4. Was Mr. Pease denied bail by reason of excessive
bail?
5. Was Mr. Pease denied constitutional and statutory
rights during his incarceration as a pre-trial detainee?
6. Was Mr. Pease denied a fair trial by not being
allowed to present his defenses of violation of equal protec-
tion, jury nullification, and victim conduct?
7. Was Mr. Pease denied his constitutional rights under
the 5th and 14th amendments to the Constitution of the United
States by being indicted by an information rather than by a
grand jury?
8. Was Mr. Pease denied a fair trial by being denied a
change of venue?
9. Was Mr. Pease denied his constitutional rights by
not being able to have new evidence presented on his motion
for a new trial?
10. Was Mr. Pease punished unconstitutionally when
sentenced to pay costs of his prosecution and jury costs?
David Pease was the principal and a teacher at the
Liberty Christian School in Ravalli County from 1 9 8 2 through
1984. In early 1 9 8 5 , one of the students at the school
informed her counselor that she and Mr. Pease had had sexual
intercourse on six different occasions during 1984. At the
time of the first five sexual encounters, the female student
was 13 years of age, and at the time of the last sexual
encounter she was 14 years of age.
The matter was reported to the Welfare Department and
the Ravalli County Sheriff's office. Mr. Pease was charged
by information on June 12, 1985, with six counts of sexual
intercourse without consent. Trial concluded on July 8,
1986, and the defendant was found guilty by the jury of all
six counts of sexual intercourse without consent. During the
trial, Mr. Pease admitted to having sexual relations with the
victim.
Mr. Pease was sentenced to 15 years at the Montana State
Prison on each of the six counts, to be served concurrently.
The District Court suspended all but six months of the sen-
tence, to be served in the county jail, in addition to the
pretrial incarceration which had already been served. The
court also directed the defendant to undergo sex offender
treatment, pay the costs of the mental health counseling
required by the victim and her family, restrict his associa-
tions with persons under the age of 18, obtain steady employ-
ment or do 40 hours of community service each month, and pay
costs of the jury trial and the costs of the prosecution.
Mr. Pease appealed pro se. He has been released pending
the appeal.
Before we begin addressing the issues, we must rule on a
motion made by the State to strike all extraneous materials
which Mr. Pease appendixed to his brief. Those materials,
which were not made part of the record below, include two
letters from the victim to Mr. Pease, a copy of a retainer
agreement, two newspaper articles, and billing statements
from Mr. Pease's original attorney. In accordance with
S 46-20-701, MCA, and State v. Dess (Mont. 1983), 674 P.2d
501, 502, 41 St.Rep. 31, 33, we grant the motion to strike.
We have not considered the material.
Was Mr. Pease denied equal protection of the laws by way
of selective prosecution?
Mr. Pease argues that the State knew of at least six men
who had had sexual relations with the victim, but that he was
selected out from the group for prosecution, thereby denying
him equal protection guarantees. In State v. Muldonado
(1978), 176 Mont. 322, 328-29, 578 P.2d 296, 300, this Court
cited the United States Supreme Court and pointed out that
some selectivity is not a constitutional violation absent a
showing that the selection was based on an unjustifiable
standard such as race, religion, sex, or other arbitrary
classification such as the exercise of the First Amendment
right to free speech.
Mr. Pease's selectivity argument fails for two reasons.
First, three of the other alleged offenders have been charged
and the decision to charge a fourth was still pending at the
time of Mr. Pease's trial. Therefore, Mr. Pease has not
shown he was selectively prosecuted. Second, Mr. Pease has
not shown that any unjustifiable standard was used to deter-
mine who would be prosecuted. Accordingly, we conclude Mr.
Pease was not denied equal protection of the laws.
I1
Was Mr. Pease denied a speedy trial?
Mr. Pease argues that the 398 days from the day of his
arrest on June 4, 1985, to the beginning of trial on July 7,
1986, denied him his right to a speedy trial. State v. Grant
(Mont. 1987), - P.2d -1 -, 44 St. Rep. 994, 996, set
out the four-factor test which this Court has applied in
determining speedy trial issues. Those factors are: (1) the
length of delay; (2) the reason for the delay; (3) whether
the defendant asserted the right; and (4) whether the defen-
dant was prejudiced. All four of these factors must be
considered.
The length of the delay in this case raises the presump-
tion that the delay was prejudicial and triggers our consid-
eration of the other factors. Fitzpatrick v. Crist (1974),
165 Mont. 382, 528 P.2d 1322. After careful review of the
record, we conclude that Mr. Pease is responsible for approx-
imately 310 days of the delay. During the course of this
case, Mr. Pease deluged the court with approximately 41
motions. Several different trial dates were set and then
vacated because of these various motions. A writ of supervi-
sory control was filed by Mr. Pease and approximately 5
continuances were granted by the court so Mr. Pease's motions
could be heard and ruled on before the trial started. While
it is perfectly acceptable to make numerous motions, it is a
simple fact that consideration of motions takes time and may
delay a trial.
Because 310 out of the 398 days are chargeable to the
defendant, we conclude that the State was diligent in it
efforts to bring the defendant to trial. The defendant did
assert his rights regarding the speedy trial issue, but
because his own conduct prevented the State from bringing him
to trial in a timely manner, he cannot now claim he was
prejudiced by the delay. We conclude Mr. Pease was not
denied a speedy trial.
I11
Was Mr. Pease denied effective assistance of counsel by
reason of conflict of interest?
Mr. Pease argues that his attorney was actually repre-
senting his father and thus a conflict of interest ensued.
In support of his argument, Mr. Pease points out that his
father hired and paid for his attorney. Mr. Pease further
asserts that the attorney did not make an effort to reduce
his bail, did not properly prepare for trial or question all
witnesses, did not consult with him as much as he should
have, and did not answer all his questions.
This Court has cited a two-pronged test previously
enunciated by the United States Supreme Court regarding
ineffective assistance of counsel:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as counsel guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. (Cite omitted. )
State v. Boyer (Mont. 1985), 695 P.2d 829, 831, 42 St.Rep.
247, 250.
Mr. Pease has failed to show that his attorney's perfor-
mance was deficient. Mr. Pease was represented by counsel
from June 8, 1985, until November 13, 1985, at which time he
dismissed his attorney. A review of the record indicates
that during that approximately five month period, Mr. Pease's
counsel did all that could reasonably be required of him.
Mr. Pease's attorney had conferences with the defendant, the
defendant's parents, the prosecutor, and numerous other
people connected with the case. Mr. Pease's attorney also
researched the law, made several motions regarding the case,
took witness statements, and made several appearances in
court on Mr. Pease's behalf. The fact that Mr. Pease's
father actually paid for the defendant's attorney and con-
sulted with the attorney does not establish a conflict of
interest and Mr. Pease has not established that a conflict of
interest existed in any way. We conclude Mr. Pease was not
denied effective assistance of counsel.
Was Mr. Pease denied bail by reason of excessive bail?
Mr. Pease contends that the $100,000 bail originally set
in his case effectively denied him bail. Bail was later set
at $40,000. After consideration, we conclude that Mr.
Pease's bail was not excessive and was in fact reasonable
after considering the 10 factors found in S 46-9-301, MCA.
Section 46-9-301, MCA, provides:
In all cases that bail is determined to be neces-
sary, bail must be reasonable in amount and the
amount shall be:
(1) sufficient to ensure the presence of the
defendant in a pending criminal proceeding;
(2) sufficient to assure compliance with the
conditions set forth in the bail;
(3) sufficient to protect any person from
bodily injury;
(4) not oppressive;
(5) commensurate with the nature of the
offense charged;
(6) considerate of the financial ability of
the accused;
(7) considerate of the defendant's prior
record;
(8) considerate of the length of time the
defendant has resided in the community and of his
ties to the community;
(9) considerate of the defendant's family
relationships and ties; and
(10) considerate of the defendant's employment
status.
Mr. Pease was charged with offenses which had a potential
sentence of 120 years in prison and $300,000 in fines. Mr.
Pease testified that he had previously considered leaving the
Hamilton area with the victim prior to his arrest. Mr.
Pease's bail was reasonable because it insured his presence
in future criminal proceedings. We conclude Mr. Pease's bail
was not excessive.
v
Was Mr. Pease denied constitutional and statutory rights
during his incarceration as a pre-trial detainee?
Mr. Pease asserts that the Ravalli County jail condi-
tions do not meet basic health and safety standards and thus
denied him his right to a clean and healthful environment and
inflicted cruel and unusual punishment upon him. We do not
pass judgment on these arguments.
If the defendant believes the conditions of his confine-
ment do not meet the required standards, he may file a civil
action. Therefore, we do not make a ruling on this issue
other than to conclude his argument does not justify a rever-
sal or dismissal of this case.
VI
Was Mr. Pease denied a fair trial by not being allowed
to present his defenses of violation of equal protection,
jury nullification, and victim conduct?
Mr. Pease argues that he was denied a fair trial because
he was not permitted to bring up three theories during his
trial and because his jury instructions on the three theories
were denied. Mr. Pease's first defense was the equal
protection/selective prosecution argument addressed in Issue
I. As stated in the discussion of Issue I, Mr. Pease has not
presented any evidence which would indicate he was selec-
tively prosecuted. In addition, Mr. Pease has not stated or
shown any unjustifiable standard under which he may have been
selectively prosecuted. We conclude the court properly
excluded any reference or jury instruction based on Mr.
Pease's equal protection argument.
Likewise, the court properly excluded Mr. Pease's argu-
ments regarding the victim's conduct and jury nullification.
Section 45-5-501 (2) (c), MCA, provides that a victim is inca-
pable of consent if she is less than 16 years old. The
victim's alleged consent or conduct is irrelevant to this
case because she was less than 16 years old and thus evidence
on that subject was properly excluded. The court was also
correct not to instruct the jury that it may ignore the law
and find the defendant not guilty even if he had violated the
statute in question. We conclude that Mr. Pease was not
denied a fair trial because he was unable to present the
equal protection, jury nullification, and victim conduct
arguments.
VII
Was Mr. Pease denied his constitutional rights under the
5th and 14th amendments to the Constitution of the United
States by being indicted by an information rather than by a
grand jury?
Mr. Pease argues that his indictment by information
rather than by a grand jury was unconstitutional. Mr.
Pease's argument is contrary to past holdings of this Court
as well as the United States Supreme Court. See State v.
Corliss (1967), 150 Mont. 40, 43-44, 430 P.2d 632, 634, and
Hurtado v. People of California (18841, 110 U.S. 516, 538, 4
S.Ct. 111, 122, 28 L.Ed.2d 232, 239. In addition,
5 46-11-101, MCA, provides that an indictment by information
is acceptable. We hold that Mr. Pease was properly charged
by information.
VIII
Was Mr. Pease denied a fair trial by being denied a
change of venue?
Mr. Pease contends that he was denied a fair trial
because the court denied his motion for a change of venue in
spite of the local publicity generated by his trial. Mr.
Pease relies partially on the news articles which were ap-
pended to his brief. Those articles were not part of the
record and will not be considered. However, we will consider
those articles which are a part of the record.
Mr. Pease filed an objection to his denial for a change
of venue after his trial had started and attached 19 articles
that had appeared in The Missoulian and The Ravalli Republic.
These articles ranged from the reporting of the initial
charging to the posting of bond to the filing of Mr. Pease's
various motions.
This Court, citing earlier Montana cases, has stated:
[Tlhe rule is that an accused is entitled to a
change of venue when it appears there are reason-
able grounds to believe that the prejudice alleged
actually exists and that by reason of the prejudice
there is a reasonable apprehension that the accused
cannot receive a fair and. impartial trial. (Cite
omitted. )
In State v. Paisley (Mont. 1983), 663 P.2d
322, 324, 40 St.Rep. 763, 765, we stated:
Absent abuse of discretion the District
Court's ruling on a motion for change of venue will
be affirmed.
When prejudicial pretrial publicity is alleged, the
publicity must be inflammatory and create a reason-
able apprehension that a fair trial is not possible
before the motion will be granted. (Cite omitted.)
State v. Holmes (Mont. 1983), 6?4 P.2d 1070, 1073, 40 St.Rep.
1973, 1976. The newspaper articles in question were not
editorials. They were news articles. Although the mere
reporting of the rape charges may possibly lead to prejudi-
cial pretrial publicity, we conclude that the publicity was
not inflammatory and did not create a reasonable apprehension
that a fair trial was not possible.
In addition, the District Court judge did all that he
could to guarantee a fair trial. He allowed extensive voir
dire of the jury, taking a full two days. He granted four of
the nine challenges Mr. Pease made for cause. And he excused
a juror for cause because of an attorney-client relationship
with the prosecutor. Mr. Pease has not shown an abuse of
discretion by the District Court, he has not shown that there
was a reasonable apprehension that he could not receive a
fair and impartial tria.1, and thus the court's ruling on the
motion for the change of venue is affirmed.
IX
Was Mr. Pease denied his constitutional rights by not
being able to have new evidence presented on his motion for a
new trial?
Mr. Pease argues that new evidence in the form of testi-
mony from the victim and testimony from the mother-in-law of
another man also charged with sexual intercourse without
consent with the victim should have been allowed for his
motion for a new trial. Section 46-16-702, MCA, provides
that a court may grant a new trial "if required in the inter-
est of justice." Applications for new trials based on new
evidence are not favored because the defendant has already
had ample opportunity to present his case. State v. Higley
(Mont. 1980), 621 P.2d 1043, 1055, 37 St.Rep. 1942, 1955.
In certain instances, however, new evidence may require
a new tria.1:
(1) ... the evidence must have come to the knowl-
edge of the applicant since the trial;
(2) that it was not through want of diligence that
it was not discovered earlier;
(3) that it is so material that it would probably
produce a different result upon another trial;
Higley, 621 P.2d at 1055, citing State v. Greeno (1959), 135
Mont. 580, 586, 342 P.2d 1052, 1055. After consideration of
the three-factor test, we conclude the court did not abuse
its discretion in denying the motion for a new trial. The
testimonial evidence could have been discovered with due
diligence. A simple interview with the two people would have
brought out their testimony. The victim's testimony regard-
ing her relationship with Mr. Pease was inadmissible in any
case.
X
Was Mr. Pease punished unconstitutionally when sentenced
to pay costs of his prosecution and jury costs?
Mr. Pease contends that 8s 46-18-232 and 233, MCA, are
unconstitutional because they leave to the discretion of the
judge whether to impose costs of prosecution, thus permitting
discrimination in violation of equal protection of the laws.
Section 46-18-232, MCA, provides in pertinent part:
A court may require a convicted defendant in a
felony or misdemeanor case to pay costs, as defined
in 25-10-201, plus costs of jury service as a part
of his sentence.
Section 46-18-233, MCA, allows costs to be assessed as a
condition on a suspended or deferred sentence.
Section 45-5-503, MCA, sets the maximum punishment for
felony sexual intercourse without consent at not more than 20
years in prison and a fine of not more than $50,000. The
costs imposed in this case are well within the $50,000 limit.
The decision to impose costs as part of a sentence rests with
the discretion of the trial court. Mr. Pease has not shown
anything unconstitutional or violative of equal protectior!
guarantees by allowing a judge the discretion to impose
prosecution, jury, or counseling costs. We affirm the
court's imposition of costs in this case.
The District Court is affirmed in full.
,
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We Concur: ,
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Chief Justice