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IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 11-0498

_________________

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JEREMY STEVEN MACGREGOR,

 Defendant and Appellant.

O R D E R

_________________

On October 15, 2013, we issued an Opinion in the above-entitled action affirming 

the decision of the First Judicial District Court.

Appellant Jeremy Steven MacGregor (MacGregor) filed a Petition for Rehearing 

with this Court on November 8, 2013. While we denied the Petition for Rehearing, we 

determined to make minor changes to this Court’s Opinion. The changes to the Opinion 

set forth below are reflected in the attached Amended Opinion. Accordingly, 

IT IS ORDERED that paragraphs 24 and 50 of the Opinion in this matter are

AMENDED as follows. Strikeouts are deleted and underlined language is added:

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

contact him while he was at the Montana State Hospital. But these 

complaints concerned his attorney’s activity after he had been designated 

“standby counsel.” Standby counsel does not constitute counsel for Sixth 

Amendment purposes. Halley v. State, 2008 MT 193, ¶ 22, 344 Mont. 37, 

186 P.3d 859 (quoting United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 

1991). Because standby counsel does not fulfill the Sixth Amendment right 

to effective counsel, MacGregor cannot claim that standby counsel’s action 

or inaction violated his right to effective assistance. At the time the trial 

court ordered the competency evaluation, MacGregor already had requested 

to represent himself. The court deferred 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 

November 26 2013
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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.

¶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.

IT IS FURTHER ORDERED that this Court’s October 15, 2013 Opinion in this 

matter is amended as set forth above. An Amended Opinion is issued herewith.

The Clerk is directed to provide copies of this Order to all counsel of record.

DATED this _____ day of November, 2013.

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Chief Justice