State v. MacGregor ( 2013 )


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  •                                                                                            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.
    20
    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.
    21
    /S/ MICHAEL E WHEAT
    We Concur:
    /S/ MIKE MCGRATH
    /S/ JIM RICE
    /S/ BETH BAKER
    /S/ BRIAN MORRIS
    22