No. 86-529 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID L. PEASE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David L. Pease, pro se, Hamilton, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly Kradolfer, Asst. Atty. General, Helena 

John Robinson, County Attorney, Hamilton, Montana 

Margaret Tonon, Deputy County Atty., Hamilton 

Submitted on Briefs: May 14, 1987 

Decided: July 21, 1987 

Filed: &( 9, 

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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 protection, 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 1982 through 

1984. In early 1985, 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 sentence, 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 associations with persons under the age of 18, obtain steady employment 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 determine 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 defendant was prejudiced. All four of these factors must be 

considered. 

The length of the delay in this case raises the presumption that the delay was prejudicial and triggers our consideration 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 approximately 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 supervisory 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 representing 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 performance 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 consulted 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 necessary, 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 conditions 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 confinement 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 reversal 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 selectively 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 arguments regarding the victim's conduct and jury nullification. 

Section 45-5-501 (2) (c), MCA, provides that a victim is incapable 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 appended 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 reasonable 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 reasonable 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 prejudicial 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 testimony 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 interest 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 knowledge 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 regarding 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. 

,' 

We Concur: ,/ 

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Chief Justice