                                                                                           November 26 2013


                                           DA 11-0498

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 297A



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JEREMY STEVEN MacGREGOR,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2010-142
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate
                        Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General; Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy
                        County Attorney; Helena, Montana

                                                     Submitted on Briefs: September 18, 2013
                                                                Decided: October 15, 2013
                                                               Amended: November 26, 2013

Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Judge Jeffrey M. Sherlock (Judge Sherlock) of the First Judicial District Court, Lewis

and Clark County, presided over the trial of Jeremy MacGregor (MacGregor) for two counts

of attempted deliberate homicide. The jury returned a verdict of guilty on both counts.

Judge Sherlock denied MacGregor’s motions to dismiss for lack of speedy trial and for juror

misconduct. MacGregor appeals from these dismissals as well as from numerous alleged

errors at trial. We affirm.

                               STATEMENT OF ISSUES

¶2    Issue One: Did the District Court correctly deny MacGregor’s motion for a new trial
based on juror misconduct?

¶3     Issue Two: Did the District Court err by failing to inquire into MacGregor’s
ineffective assistance of counsel claim and the voluntariness of his decision to represent
himself?

¶4     Issue Three: Did the District Court correctly deny MacGregor’s speedy trial claim?

¶5     Issue Four: Did the District Court err by admitting evidence of MacGregor’s prior
assault of his wife?

¶6     Issue Five: Should we exercise plain error review of MacGregor’s claim that the
District Court gave an erroneous instruction on mitigated deliberate homicide?

¶7     Issue Six: Did the District Court improperly impose parole conditions?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶8     On April 15, 2010, MacGregor shot and nearly killed his unarmed wife, Jennifer

MacGregor (Jennifer) and their live-in nanny, Betsy Mart (Betsy). He was arrested and

charged with two counts of attempted deliberate homicide. After brief representation by a


                                             2
public defender, MacGregor demanded that he represent himself pro se and the court allowed

him to do so with standby counsel.

¶9     Before trial, MacGregor filed numerous motions with the court, including a motion to

dismiss for lack of speedy trial. The District Court denied the motion to dismiss for lack of

speedy trial. Trial commenced on February 22, 2011.

¶10    At trial, MacGregor made vague claims about his general non-violent nature and

argued that he had not been in a fight for a number of years. The State introduced evidence

that MacGregor had assaulted Jennifer in the past, seeking to rebut his statements of non-

violence. The District Court admitted this prior assault to rebut MacGregor’s claim of non-

violent character and his statement that he had not been in fights for many years.

¶11    The court submitted instructions to the jury for attempted deliberate homicide and

attempted mitigated deliberate homicide. MacGregor failed to object to the instructions.

The jury found MacGregor guilty of both counts of attempted deliberate homicide.

¶12    MacGregor’s standby counsel filed a motion for new trial based on juror misconduct.

The District Court conducted a hearing concerning juror Justin Wearley’s (Wearley)

communication with his family about the trial, his reading of a newspaper during trial, and

his failure to reveal at voir dire that he had been a victim of domestic violence. The District

Court heard testimony from Wearley, his wife, and their two children, and denied the motion

upon a finding that MacGregor could not show prejudice.

                               STANDARDS OF REVIEW

¶13    Appropriate standards of review will be discussed as they arise in this opinion.
                                              3
                                      DISCUSSION

¶14 Did the District Court correctly deny MacGregor’s motion for a new trial based on
juror misconduct?

¶15    This Court reviews motions for new trial based on juror misconduct for abuse of

discretion, and a district court will not be overturned unless a defendant demonstrates he was

deprived of a fair and impartial trial. State v. Rennaker, 2007 MT 10, ¶ 29, 335 Mont. 274,

150 P.3d 960.

       I.     Failure to Disclose at voir dire.

¶16    Section 46-16-115, MCA, lists a number of appropriate challenges for cause in

evaluating prospective jurors. Unless a juror falls within one of those statutory categories,

the juror will not be removed for cause without a showing of partiality. State v. Hendricks,

171 Mont. 7, 11, 555 P.2d 743, 746 (1976). In Rennaker, we reviewed a misconduct claim

in a trial for sexual assault wherein two jurors failed to disclose their prior experience of

sexual abuse. Rennaker, ¶ 35. We held that the nondisclosure of their experiences only

constituted misconduct if it amounted to intentional concealment, or other further evidence

of bias was proven. Rennaker, ¶ 35.

¶17    The District Court properly concluded that Juror Wearley’s failure to disclose was not

intentional and no other evidence of bias was presented. Although the defense inquired

during voir dire about experiences with domestic violence, a juror could have believed that

the defense was inquiring about whether those experiences “would influence how you judge

this case . . . .” Indeed, that was the very question asked of another juror, who was not


                                              4
challenged for cause or bias. We further note that past experiences with a similar crime are

not listed as legitimate challenges for cause in § 46-16-115, MCA. The defense, therefore,

can only show misconduct by proving some evidence of bias. Section 46-16-115(2)(j),

MCA; State v. Dunfee, 2005 MT 147, ¶ 16, 327 Mont. 335, 114 P.3d 217.

¶18    MacGregor urges that we recognize Wearley’s implied bias based on the similarities

between his experiences and the facts of the case, relying on Gonzales v. Thomas, 99 F.3d

978, 987 (10th Cir. 1996). But our holding in Rennaker requires more than similarities

between the juror’s experiences and the crime alleged. MacGregor can point to no evidence

of bias other than the fact that Wearley had been a victim of domestic violence. In fact,

testimony of Wearley’s family revealed that he sympathized with MacGregor. Therefore,

the District Court did not abuse its discretion in determining that Wearley was an impartial

juror who unintentionally concealed his experience with domestic violence.

       II.    The Newspaper.

¶19    MacGregor argues that Wearley was exposed to prejudicial extraneous information

when he had his family read a newspaper article about the trial to him. Juror misconduct

based on extraneous communications must be reviewed on a case-by-case basis, and in the

context of the entire record. United States v. Maree, 934 F.2d 196, 202 (9th Cir. 1996)

(rev’d in part on other grounds, United States v. Adams, 432 F.3d 1092, 1095 (9th Cir.

2006). The trial court is uniquely qualified to appraise whether extraneous information

resulted in prejudice, and we accord substantial weight to that determination. Stebner v.



                                             5
Associated Materials, Inc., 2010 MT 138, ¶ 23, 356 Mont. 520, 234 P.3d 94; Maree, 934

F.2d at 202.

¶20    Where a juror is exposed to extraneous information, a rebuttable presumption of

prejudice exists. Stebner, ¶ 17. This presumption is not absolute, and arises only when the

information shows a natural tendency to prejudice. Allers v. Riley, 273 Mont. 1, 8, 901 P.2d

600, 605 (1995). In cases concerning prejudice from pretrial newspaper publicity, we held

that a “juror’s knowledge of the case and publicity, without more, is insufficient to warrant a

change of venue since it cannot be equated with prejudice.” State v. Devlin, 2009 MT 18,

¶ 32, 349 Mont. 67, 210 P.3d 791 (emphasis added) (quoting State v. Fuhrman, 278 Mont.

396, 409, 925 P.2d 1162, 1170 (1996)). Juror misconduct and the resulting prejudice may be

evaluated by considering juror testimony and affidavits concerning the misconduct. Stebner,

¶¶ 17, 22; Harry v. Elderkin, 196 Mont. 1, 7-8, 637 P.2d 809, 813 (1981).

¶21    Here, the District Court did not abuse its discretion when it determined that Wearley’s

communications with his family did not have a tendency to prejudice. The fact that Wearley

was exposed to publicity alone does not constitute a showing of prejudice. The District

Court considered testimony from Wearley and his family indicating that he sympathized with

MacGregor and did not feel that the article influenced his view of the trial. The court

concluded that the headline “Shooter Blames Demonic Forces,” presented no new

information that had not been divulged in MacGregor’s trial because his opening argument

stated that “demonic forces somehow got these things to happen where apparently I have

done these horrible, horrible things to my family.” MacGregor points to no falsehood or bias
                                              6
produced by the article and has not shown any facts demonstrating that the article has a

natural tendency to prejudice. The District Court did not abuse its discretion in determining

that the information did not prejudice the outcome of the trial.

       III.   Wife’s Comments.

¶22    MacGregor also argues that Wearley was exposed to prejudicial extraneous

information when his wife said that MacGregor was “making excuses” for his conduct. We

have held that a district court is within its discretion to deny a retrial when an assertion of

prejudice has no grounds in the record. State v. White, 2008 MT 129, ¶ 13, 343 Mont. 66,

184 P.3d 1008 (“Although White asserts that Lindbergh’s impermissible comment

prejudiced the jury . . . his claim of prejudice fades when the record is considered.”).

Testimony at the District Court’s inquiry indicated that Wearley’s statements occurred in the

midst of a civics lesson with his children about the trial, and Wearley himself did not express

his opinion or seek the opinion of his wife. No evidence was presented that Wearley was

persuaded or influenced by his wife’s opinion of the trial. The District Court properly

concluded that Wearley was not exposed to any statement that would prejudice his view of

MacGregor’s position at trial.

¶23 Did the District Court err by failing to inquire into MacGregor’s ineffective
assistance of counsel claim and the voluntariness of his decision to represent himself?
       I.     Ineffective Assistance of Counsel Inquiry.

¶24    MacGregor complains that his attorney failed to form a strategy or contact him while

he was at the Montana State Hospital. At the time the trial court ordered the competency

evaluation, MacGregor already had requested to represent himself. The court deferred
                                              7
decision on MacGregor’s request until the evaluation was completed. MacGregor later

complained that “representation was forced upon him during the state’s mental evaluation,”

while simultaneously criticizing Scott for failing to contact MacGregor while he was

hospitalized. Given the District Court’s familiarity with MacGregor’s requests and its

decision to postpone ruling on MacGregor’s motion to represent himself, it did not err in

failing to conduct additional inquiry into his complaint.

¶25    MacGregor also alleged before and during trial that his attorneys had colluded with

the prosecution to his detriment. The record is unclear whether he was referring to conduct

occurring before or after his appointed counsel was designated as standby counsel. When a

defendant alleges ineffective assistance of counsel during trial, we review whether the

district court made an inquiry into those complaints to determine whether they are

substantial. State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371; State v.

Hammer, 2013 MT 203, ¶ 14, 371 Mont. 121, 305 P.3d 843. In reviewing a district court’s

inquiry, we do not examine whether counsel was ineffective, but instead, whether the district

court’s inquiry into the claim was adequate. Hammer, ¶ 14; State v. Dethman, 2010 MT 268,

¶ 16, 358 Mont. 384, 245 P.3d 30; State v. Weaver, 276 Mont. 505, 511, 917 P.2d 437, 441

(1996).

¶26    A district court’s inquiry is adequate when it considers the defendant’s factual

complaints together with counsel’s explanations addressing the complaints. Gallagher, ¶ 15;

Dethman, ¶ 16. If the district court’s adequate inquiry finds that the defendant’s complaints

are insubstantial, it is not required to hold a hearing on the issue. Hammer, ¶ 14. A
                                             8
complaint is substantial when it makes some showing of fact indicating that counsel’s

performance was deficient, and that the deficient performance prejudiced the defendant.

Bomar v. State, 2012 MT 163, ¶ 7, 365 Mont. 474, 285 P.3d 396; State v. Miner, 2012 MT

20, ¶ 11, 364 Mont. 1, 271 P.3d 56. Those facts must make a showing of deficiency to

overcome the presumption that a defendant was provided with effective assistance of

counsel. State v. Morsette, 2013 MT 270, ¶¶ 19-21, 372 Mont. 38, ___P.3d___.

¶27    Here, MacGregor’s primary claim was that his counsel colluded with the prosecution

by sharing details about the defense and otherwise talking with each other. The District

Court noted that the defense discusses details of the case with prosecutors “in every single

criminal case, and there is nothing shown that would create a breach of confidentiality.” The

court held that discussions between the defense and prosecutors were not sufficient to

overcome the presumption that counsel was effective, and did not reveal any indication of

prejudice towards the case. MacGregor points to no other facts indicating that his lawyer’s

conduct was unprofessional or incorrect. Accordingly, the District Court made an adequate

inquiry to establish that MacGregor’s claims had no merit.

       II.    Voluntariness of Waiver.

¶28    This Court has recognized the Sixth Amendment right to self-representation, but we

are also mindful of the disadvantages confronting pro se parties. Halley, ¶ 20. A District

Court may only allow a defendant to waive the right to counsel when the record establishes

that the defendant is fully aware of the dangers and disadvantages of self-representation, and

made the waiver knowingly with “eyes wide open.” State v. Colt, 255 Mont. 399, 406, 843
                                              9
P.2d 747, 751 (1992); Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975).

So long as substantial credible evidence exists to support the district court’s decision that the

defendant made a voluntary, knowing and intelligent waiver, it will not be disturbed on

appeal. State v. Plouffe, 198 Mont. 379, 385, 646 P.2d 533, 536 (1982).

¶29    The District Court here ensured that MacGregor knew the disadvantages of self-

representation, warning him that it could decrease the effectiveness of representation and that

he would need to follow court deadlines. The District Court also ordered a competency

evaluation and refused to allow MacGregor to proceed pro se until the evaluation was

completed.    After evaluators at the Montana State Hospital (MSH) determined that

MacGregor was competent to stand trial, the court again explained the dangers of self-

representation. MacGregor still insisted on waiving counsel. The record clearly reflects that

the District Court took adequate precautions to ensure that MacGregor waived counsel

voluntarily and knowingly.

¶30    Did the District Court correctly deny MacGregor’s speedy trial claim?

¶31    We apply two standards when reviewing a district court’s ruling on a speedy trial

motion. First, we review factual findings to determine whether those findings are clearly

erroneous. State v. Couture, 2010 MT 201, ¶ 47, 357 Mont. 398, 240 P.3d 987. Second, we

examine de novo whether the district court correctly interpreted and applied constitutional

law to the facts at issue. Couture, ¶ 47.

¶32    This Court evaluates speedy trial claims by considering the relevant facts in four key

areas, and then assessing whether those facts demonstrate a denial of the right to speedy trial.
                                              10
Morsette, ¶ 12 (citing State v. Ariegwe, 2007 MT 204, ¶ 34, 338 Mont. 442, 167 P.3d 815).

The relevant factors include the length of delay, the reasons for delay, the accused’s

responses to the delay, and prejudice to the accused. Ariegwe, ¶¶ 106-11. No single factor

in this balancing test is indispensable or dispositive, and we recognize that district courts

must engage in a difficult, sensitive, often subjective balancing process. State v. Johnson,

2000 MT 180, ¶ 14, 300 Mont. 367, 4 P.3d 654; State v. Highpine, 2000 MT 368, ¶ 14, 303

Mont. 422, 15 P.3d 938.

       I.     Length and Responsibility for Delay.

¶33    A trial delay of longer than 200 days triggers the four factor balancing test in Ariegwe.

Ariegwe, ¶ 62. However, the length of delay alone does not amount to a speedy trial

violation. We must also consider the reasons for the delay and attribute portions of the delay

to certain parties. Ariegwe, ¶ 64. Delay requested by a particular party may be attributable

to the other party. State v. Diaz, 2006 MT 303, ¶¶ 32-33, 334 Mont. 479, 148 P.3d 628;

Ariegwe, ¶ 66. When the State causes a delay in the trial, we must evaluate whether a valid

reason justified the delay. Ariegwe, ¶ 67 (quoting Barker v. Wingo, 407 U.S. 514, 531, 92 S.

Ct. 2182, 2192 (1972)). Those delays resulting from the State’s lack of diligence are

weighed significantly against the State. Couture, ¶ 72. “Institutional delays” that are

inherent in the criminal justice system are valid reasons for delay and we do not weigh those

delays heavily against the State. Morsette, ¶ 13. Delay may be attributed to the defendant

when the defendant attempts to change counsel, request a continuance, or request mental

health evaluations. Morsette, ¶ 14.
                                              11
¶34    MacGregor was arrested on April 15, 2010. On July 27, 2010, MacGregor gave

notice of his defense of mental incapacitation and not having a particular state of mind. That

notice referenced § 45-2-203, MCA, providing that intoxication is not a defense to mental

state unless the defendant did not knowingly consume an intoxicating substance. MacGregor

filed a motion requesting evaluation of his mental state on July 30, and the State moved for

the same evaluation at the Montana State Hospital. MacGregor withdrew his motion for

evaluation on August 3, and then again filed the motion for psychological evaluation on

August 6, noting “I understand this motion may delay trial.” MacGregor returned from

evaluation at MSH on November 3, 2010, and on November 15, 2010, a status hearing set a

trial date for February 7, 2011.

¶35    The District Court calculated that 314 days had passed between arrest and trial. Of

those days, the court found that MacGregor was responsible for a seven-day continuance and

the 90-day mental health evaluation at MSH. MacGregor now disputes the assignment of

responsibility for the mental health evaluation, as it was requested by the State. We agree

with the District Court’s conclusion that the request was a direct response to MacGregor’s

intoxication defense and his request for private evaluation. The court also held that the

rescheduling of trial dates resulting from the mental health evaluation could also be

attributed to MacGregor, amounting to 175 days. This was not in error, as the State had been

prepared for trial on the original date and the court was forced to reschedule only as a result

of MacGregor’s actions. Finally, the court correctly attributed 131 days to the State as



                                              12
institutional delay resulting from continuances and preparation for trial, as no evidence

demonstrated a lack of diligence on the State’s behalf.

       II.    Assertion of the Right.

¶36    When a defendant raises a speedy trial issue, we must evaluate whether the defendant

truly wants a speedy trial, or whether he is attempting to have his case dismissed on speedy

trial grounds. State v. Steigelman, 2013 MT 153, ¶ 15, 370 Mont. 352, 302 P.3d 396; State v.

Billman, 2008 MT 326, ¶ 31, 346 Mont. 118, 194 P.3d 58. MacGregor was arrested on April

15, 2010, and at a hearing on November 15, 2010, the trial was scheduled for February 7,

2011. MacGregor was incarcerated for 214 days, at which time he was told that he would be

incarcerated for 84 more days before trial would begin. MacGregor then filed a motion on

November 22, 2010, indicating that he wanted a speedy trial, but that the court should not do

any speedy trial balancing yet. MacGregor then filed a motion on January 11, 2011,

requesting that the court perform the speedy trial balancing test and dismiss his case.

¶37    The District Court concluded that MacGregor asserted his right to speedy trial only to

avoid trial. MacGregor could have easily brought the motion to dismiss when he first

complained of the delay on July 15, or at the rescheduling hearing at November 15, or even

in his motion filed on November 22. Instead, the timing of MacGregor’s motion comes just

before his trial, but long after the rescheduling hearing or his first complaint of delay. We

agree with the District Court’s conclusion that this tactic was disingenuous, and that

MacGregor likely did not raise it earlier because he wanted to give more weight to his

motion to dismiss.
                                             13
       III.   Prejudice to the Defendant.

¶38    As a final matter, we must consider prejudice to the accused resulting from the delay

of trial. The impairment of the accused’s defense from a speedy trial violation constitutes

the most important factor in our prejudice analysis. Steigelman, ¶ 29; City of Billings v.

Bruce, 1998 MT 186, ¶ 19, 290 Mont. 148, 965 P.2d 866. We must also consider a

defendant’s interest in minimizing impairment of liberty and shortening the disruption of

daily life. Ariegwe, ¶ 87; United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502

(1982). In Morsette, we considered a defendant who was housed in solitary confinement

during a 662-day trial delay, but no evidence showed any impairment to the defendant’s

case. Morsette, ¶ 13. We upheld the District Court’s finding that the State had overcome the

presumption of prejudice to the defendant because his defense had not been impaired.

Morsette, ¶ 15.    The conditions of incarceration are also relevant in assessing the

oppressiveness and prejudice to the defendant. Ariegwe, ¶ 97.

¶39    Here, MacGregor points to no evidence that the delay of trial impaired his defense.

At the speedy trial hearing, MacGregor alleged that video surveillance of the bowling alley

had been unattainable due to the delay, and that some witnesses lacked memory of the events

at the bowling alley. But MacGregor made no showing that the loss of evidence prejudiced

his case. Namely, he never demonstrated that the video evidence ever existed, that the video

evidence could ever have been obtained, that the video was destroyed as a result of the delay,

or that the video would have helped his case at trial. The same problems exist with his

friends’ recollections of the bowling alley events. MacGregor never alleged that his friends
                                             14
remembered incorrectly or that a clearer memory would have benefitted his case. Like the

court in Morsette, the District Court considered all of MacGregor’s allegations of prejudice

and found no evidence that his defense had been impaired. Since impairment of the defense

is the most important factor in determining prejudice from delay, we see no reason to disturb

the court’s finding that MacGregor did not suffer prejudice.

¶40     As a final matter, MacGregor contends that he was subjected to oppressive conditions

while he was incarcerated, including prison overcrowding and malfunctioning of the heat

system. We do not condone the conditions that MacGregor endured during his incarceration.

Those conditions alone, however, do not warrant a finding of oppressive pretrial

incarceration sufficient to establish the prejudice factor of speedy trial analysis. Morsette,

¶ 16.



        IV.   Balancing.

¶41     In Ariegwe, trial was delayed for more than 400 days and nearly all of the delay was

attributable to the government, but we found that no speedy trial violation existed when

considered in the context of other circumstances. Ariegwe, ¶ 134. In Morsette, we affirmed

a District Court’s finding that there was no substantial prejudice to the defendant, even

though a 321-day delay was attributable to the State. Morsette, ¶¶ 15-16; See also,

Steigelman, ¶ 14 (426-day delay not violation of speedy trial on balance). Federal courts

have also declined to dismiss on speedy trial grounds when violations extended far beyond

200 days because other factors controlled. Barker, 407 U.S. at 534, 92 S. Ct. at 2192 (delay
                                             15
of four years did not trigger speedy trial dismissal when defendant was free on bond for that

time); United States v. King, 483 F.3d 969, 976 (9th Cir. 2007) (two-year delay “not

excessive”).

¶42    In considering the totality of the circumstances, we find that the District Court

properly determined that all four factors weighed against MacGregor’s speedy trial claim.

The majority of the delay in trial was attributable to MacGregor’s trial tactics, and he failed

to vigorously and genuinely assert his right to speedy trial. Only 131 days were attributable

to the State, and all of that delay was for valid institutional purposes. MacGregor cannot

show prejudice to his position at trial resulting from the delay. The District Court correctly

employed the balancing test to conclude that MacGregor was not deprived of his right to

speedy trial.

¶43 Did the District Court err by admitting evidence of MacGregor’s prior assault of his
wife?

¶44    This Court reviews evidentiary rulings for abuse of discretion. State v. McOmber,

2007 MT 340, ¶ 10, 340 Mont. 262, 173 P.3d 690. The State sought to use evidence of

MacGregor’s assault on his wife, Jennifer, occurring two years prior to this incident. The

District Court ruled that such evidence could only be used to rebut character evidence

presented by MacGregor, pursuant to M. R. Evid. 404(a)(1). MacGregor contends that he

never made any statements about nonviolence towards his wife, so the State improperly

introduced the assault.




                                              16
¶45    A defendant puts his character at issue when making unnecessary or self-serving

statements about his character which he knows to be untrue. State v. Gowan, 2000 MT 277,

¶ 24, 302 Mont. 127, 13 P.3d 376. The State may rebut character evidence by cross-

examining the defendant’s character or by calling witnesses of its own. Gowan, ¶ 23. In

State v. Clark, 209 Mont. 473, 492-93, 682 P.2d 1339, 1349-50 (1984) a defendant charged

with sexual intercourse without consent stated that he was generally a nonviolent and truthful

person. We held that this opened the door to rebuttal evidence concerning the defendant’s

violent and untruthful past. Clark, 209 Mont. at 489, 682 P.2d at 1348.

¶46    During MacGregor’s trial, he argued that he was unusually violent on the night in

question. He noted that he picked fights with friends on that night even though he was “not a

violent man” and had not been in a fight in many years. MacGregor blamed his sudden

outburst of violence on the combination of stress, a “spiritual assault,” and his intense

intoxication. MacGregor hoped to persuade the jury that this amounted to “extreme mental

or emotional stress for which there is reasonable explanation or excuse” and justified a

verdict for attempted mitigated deliberate homicide. Section 45-5-103(1), MCA. The

general theme of MacGregor’s argument was, “I wasn’t acting like myself.”

¶47    The prosecution cross-examined MacGregor to show that he regularly became

belligerent when intoxicated. MacGregor denied becoming violent when intoxicated, other

than the night in question; “I don’t recall any other incidents.” In response to this, the State

asked whether MacGregor had drunkenly assaulted his wife two years earlier. This evidence

directly rebuts MacGregor’s assertion that he was not himself, not violent, and not aware that
                                              17
he was especially belligerent when intoxicated. MacGregor plainly opened the door to

character evidence when he made general claims about his nonviolent nature and his unusual

behavior when intoxicated that night. The District Court properly admitted the prior

conviction to rebut MacGregor’s character evidence.

¶48 Should we exercise plain error review of MacGregor’s claim that the District Court
gave an erroneous instruction on mitigated deliberate homicide?

¶49    MacGregor argues that the District Court gave an incorrect instruction on attempted

mitigated deliberate homicide. That instruction correctly stated that mitigated deliberate

homicide contained the elements of deliberate homicide, and that mitigation should be found

if “the Defendant was acting under the influence of extreme mental or emotional stress for

which there is reasonable explanation or excuse.” Section 45-5-103(1), MCA. The

instruction also stated that “you should first consider the verdict on the greater offense of

attempted deliberate homicide. If you find the Defendant guilty of attempted deliberate

homicide, you need go no further as you will have reached a verdict in this case.” Both

parties admit that this part of the instruction was incorrect as a matter of law, because

mitigated deliberate homicide requires a preliminary finding of deliberate homicide.

Demontiney v. Mont. Twelfth Judicial Dist. Crt., 2002 MT 161, ¶ 16, 310 Mont. 406, 51 P.3d

476; State v. Scarborough, 2000 MT 301, ¶¶ 48-50, 302 Mont. 350, 14 P.3d 1202.

MacGregor, who drafted and submitted this instruction to the court, did not object to it. We

generally do not review jury instructions unless they are specifically objected to at trial.

State v. Earl, 2003 MT 158, ¶ 23, 316 Mont. 263, 71 P.3d 1201. We may exercise plain


                                             18
error review if the claimed error implicates a defendant’s fundamental constitutional rights

and results in a manifest miscarriage of justice. Earl, ¶ 25.

¶50    MacGregor contends that the incorrect instruction prevented the jury from considering

mitigated deliberate homicide as a charge, and this constitutes a miscarriage of justice.

MacGregor alleges mitigation because he was intoxicated on marijuana and alcohol; he was

upset about an incident where his dog knocked over his child; his child had been diagnosed

with a minor ailment; he had fired someone recently; he had quit cigarettes, marijuana, and

alcohol (although not that day); he had worked 60-hour work weeks; he had cut his hand;

and his wife forgot their anniversary. But mitigating factors arise from some sort of direct

provocation, not simply the buildup of stress and anger. Hans v. State, 283 Mont. 379, 399,

942 P.2d 674, 686 (1997). We have previously ruled that extreme intoxication does not

constitute a mitigating factor, nor do the stresses that accompany living in hard times. State

v. Goulet, 283 Mont. 38, 42, 938 P.2d 1330, 1333 (1997) (showing of intoxication or anger

insufficient to support mitigation); State v. Martin, 2001 MT 83, ¶¶ 33-34, 305 Mont. 123,

23 P.3d 216 (unemployment, homelessness, pregnant girlfriend do not support mitigation).

MacGregor presented no evidence demonstrating provocation of his anger other than the

challenges that naturally accompany sobriety, fatherhood, and marriage. Nor did any of

MacGregor’s witnesses corroborate his involuntary intoxication defense.

¶51    MacGregor claims that he only fired shots when his wife threatened to leave him, and

that this constitutes a mitigating factor. Testimony at trial revealed that Jennifer refused to

live with MacGregor without their live-in nanny, saying that if Betsy were fired, “I can’t live
                                              19
like this” and “[i]f she goes, I go.” MacGregor then began to threaten Jennifer by putting the

gun to her forehead and under her chin. When Jennifer pushed him away and began to run

out the door, MacGregor shouted “[w]ait baby, please don’t do this.” When Jennifer stopped

and turned to face MacGregor, he shot her in the chest, and went on to shoot Betsy.

¶52    Jennifer’s insistence on a live-in nanny is distinguishable from the passions and

jealousies ignited when a romantic partner ends a relationship. See State v. Gratzer, 209

Mont. 308, 682 P.2d 141 (1984); State v. Azure, 2002 MT 22, 308 Mont. 201, 41 P.3d 899.

The fact that one’s spouse wants a nanny is not a reasonable excuse for extreme mental or

emotional distress that results in deadly violence. Because MacGregor did not prove any

mitigating factors as a matter of law, the instruction did not rise to a level of plain error.

¶53    Did the District Court improperly impose parole conditions?

¶54    Finally, we review sentences for legality to determine whether they are within

statutory parameters. State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, 133 P.3d 206. At

sentencing, the District Court imposed a period of incarceration, restitution to Betsy and

Jennifer, and prohibited MacGregor from seeing Betsy or Jennifer. While the parole board

has sole authority to impose conditions of release upon parole, the original judgment may

impose conditions for the entirety of an individual’s sentence, even when they are later

paroled. State v. Burch, 2008 MT 118, ¶¶ 22-29, 342 Mont. 499, 183 P.3d 66; § 46-23-216,

MCA, (“The period served on parole must be considered service of the term of imprisonment

. . . .”). Where a district court lacks statutory authority to impose a sentence, its conditions

may be considered recommendations to the parole board if parole is granted. State v.
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Heafner, 2010 MT 87, ¶ 6, 356 Mont. 128, 231 P.3d 1087 (“[T]he District Court did not

have the power to impose conditions upon a future parole that might be granted to Heafner.

If Heafner is paroled then the Board of Pardons and Parole may impose conditions of parole

and may consider those listed by the District Court as recommendations.”); State v. Holt,

2011 MT 42, ¶ 18, 359 Mont. 308, 249 P.3d 470.

¶55    MacGregor contends that the District Court unlawfully imposed conditions upon

parole by stating that his sentence conditions would apply even if released on parole.

MacGregor points to no specific condition, but only contests that the conditions of his

sentence should not apply to him if he is later paroled. While the District Court may not

impose conditions of parole, it is statutorily authorized to impose some of the conditions in

the order, such as the requirement that he pay restitution to his victims. Section 46-18-

201(5), MCA. It would be illogical for the District Court to require MacGregor to pay

restitution only when he was incarcerated and not when paroled, and the court properly

exercised its authority in imposing that condition. To the extent the conditions imposed

govern his behavior on parole, the conditions may be viewed as the District Court’s

recommendations to the parole board. Only the parole board, however, may impose

conditions on MacGregor for the purposes of parole. The District Court properly exercised

its authority in adopting the PSR’s recommended conditions.

                                     CONCLUSION

¶56    For the reasons stated above, the MacGregor’s convictions and sentence are affirmed.



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                        /S/ MICHAEL E WHEAT



We Concur:

/S/ MIKE MCGRATH
/S/ JIM RICE
/S/ BETH BAKER
/S/ BRIAN MORRIS




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