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State v. Megard3/23/2004
Submitted on Briefs: January 21, 2004
1. Kelly Dee Megard appeals from the order entered by the Nineteenth Judicial District Court, Lincoln County, which revoked his suspended sentences. We affirm.
2. The issue is whether the District Court violated Megard's due process rights by admitting telephonic testimony at a hearing on a petition to revoke his suspended sentences.
BACKGROUND
3. Megard was incarcerated on three separate felony convictions and sentences, two for driving under the influence of alcohol (DUI) and one for carrying a concealed weapon. Each sentence contained a suspended sentence with numerous conditions. The conditions included, in pertinent part, requirements that Megard (1) refrain from violating state or federal laws; (2) undergo a chemical dependency evaluation and comply with the evaluator's recommendations, if his probation officer so required; (3) refrain from the use or possession of any intoxicants or drugs, except legal nonprescription drugs or those prescribed by a physician; and (4) submit to random chemical tests of blood, breath, hair or urine, upon his probation officer's request. The suspended portions of the DUI sentences also required Megard to pay fines, fees and surcharges. Megard completed the unsuspended portions of his sentences and began serving his suspended sentences in January of 2003.
4. On March 8, 2003, Lincoln County Sheriff's Deputy Terry L. Watson responded to a report of a disturbance and took Megard into custody. The State of Montana subsequently petitioned to revoke all three suspended sentences, attaching an affidavit of Megard's probation officer in support. The petitions alleged Megard possessed beer and vodka, had a blood alcohol content of .069, assaulted another inmate at the Lincoln County Detention Center (LCDC), refused to provide a urine sample requested by his probation officer, failed to attend chemical dependency counseling as required by his probation officer, and failed to pay fines, fees and surcharges.
5. Megard responded by admitting he violated the condition prohibiting use and possession of intoxicants and waiving his right to a hearing on that violation. He denied the rest of the alleged violations. The State later amended its petitions to include allegations that Megard violated both the prohibition against violating federal and state laws and the prohibition against possessing unauthorized intoxicants or drugs by consuming methamphetamine.
6. On April 10, 2003, the District Court scheduled an evidentiary hearing for April 30. On April 15, the State moved to reschedule the evidentiary hearing based on the prosecutor's unavailability, and advised the court that defense counsel objected to continuing the hearing to a date later than April 30 due to Megard's incarceration. The District Court rescheduled the hearing for April 24, 2003, to accommodate both counsels' needs.
7. Three days before the hearing, the State moved the District Court to allow telephonic testimony from Watson and LCDC Officer Roy Allen Rowberry because both were attending courses at the Montana Law Enforcement Academy and were not available to appear in person. Megard objected, relying on Rule 611(e), M.R.Evid., and Bonamarte v. Bonamarte (1994), 263 Mont. 170, 866 P.2d 1132. The District Court granted the State's motion, reasoning that Rule 611(e), M.R.Evid., and Bonamarte were inapplicable and that Megard's fundamental rights would be adequately protected.
8. At the beginning of the evidentiary hearing, Megard admitted he possessed and consumed methamphetamine, thus admitting the two additional violations set forth in the amended petitions. The State
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