NO. 88-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID 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: OM 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 Sherif f ' 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 - no contact with 

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. 

ustices I 

\ 

- +4. SLdq 1 Justice r