State v. Macgregor

Decision Date15 October 2013
Docket NumberNo. DA 11–0498.,DA 11–0498.
PartiesSTATE of Montana, Plaintiff and Appellee, v. Jeremy Steven MacGREGOR, Defendant and Appellant.
CourtMontana Supreme Court


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.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[372 Mont. 145]¶ 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.


¶ 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?


¶ 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 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.

[372 Mont. 146]¶ 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 nonviolence. The District Court admitted this prior assault to rebut MacGregor's claim of nonviolent 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.


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


¶ 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 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.1991) ( 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. 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, 201 P.3d 791 (emphasis added) (quoting State v. Fuhrmann, 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 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...

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