State v. Low

1 As per our practice, Judge Lubeck is listed as the
district court judge because he signed the final order in this
case. We note, however, that Judge Lubeck did not preside over
the trial that we are reviewing.
2008 UT 58
AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20050807
Plaintiff and Appellee,
v.
F I L E D
Erik Kurtis Low,
Defendant and Appellant. August 22, 2008
---
Third District, Silver Summit
The Honorable Bruce C. Lubeck1
No. 031500082
Attorneys: Mark L. Shurtleff, Att’y Gen., Christopher D.
Ballard, Asst. Att’y Gen., Salt Lake City, for
plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
---
On Certification from the Utah Court of Appeals
PARRISH, Justice:
¶1 Erik Kurtis Low was charged with the murder of Michael
Hirschey and ultimately convicted of manslaughter by a jury. Low
argues on appeal that the district court erred by instructing the
jury on extreme emotional distress manslaughter and imperfect
self-defense manslaughter over his objection. We hold that the
jury was properly instructed as to imperfect self-defense
manslaughter, but we find merit in Low’s argument with respect to
the inclusion of the instruction for extreme emotional distress
manslaughter. We accordingly reverse Low’s manslaughter
conviction and remand for further proceedings consistent with
this opinion.

No. 20050807 2
FACTUAL BACKGROUND
¶2 Low met Hirschey, Kevin McCall, and Darick Touchette at
a bar in Park City, Utah, on May 7, 2003. The group later went
to Hirschey’s apartment and began ingesting cocaine. As Low was
preparing his portion of the cocaine for smoking, Hirschey
objected to Low’s choice to smoke, rather than snort. Touchette
then knocked the cocaine out of Low’s hand and ground it into the
carpet. While Low was on the ground looking for the cocaine,
Touchette and Hirschey ridiculed him and called him a “loser.”
¶3 Later that night, Hirschey showed the others his gun
collection, which included a .357 magnum handgun. During the
course of the evening, Low was the continued recipient of more
teasing, manhandling, and threats. While Low was urinating,
Hirschey grabbed him by the neck from behind, hit him on the back
of the head, and told him that if he ratted on Hirschey or his
friends, Hirschey would “waste him.” Later, Hirschey, who had
been a successful competitive wrestler, flipped Low onto the
floor and wrestled with him on the ground, causing Low’s neck to
become sore. McCall and Hirschey then pushed Low’s legs up over
his shoulders while stepping on his groin in an apparent attempt
to “alleviate” the neck pain. Following this incident, Low went
to the back of the apartment for approximately twenty minutes,
then returned to the living room and passed out on the floor.
While Low was passed out, Hirschey poured five large tumblers of
water on him, picked him up and slammed him into a chair, and
tried to force him to drink a large bottle of hot water. When
Low got up to walk to the back of the apartment, Hirschey
followed him and gave him a “wedgie” by grabbing the back of
Low’s underwear and lifting it up with both hands.
¶4 Ten or fifteen seconds after Low and Hirschey left the
living room, McCall heard someone say “Oh” and then heard a pop.
Low then walked back into the living room. McCall could see
Hirschey’s feet sticking out into the hallway and asked Low what
happened, to which Low responded, “He is dead.” McCall got out
his cell phone to call 911, but Low took McCall’s hand and pushed
the cell phone back into his pocket. Low then asked McCall for
his car keys, which McCall dropped on the floor before running
outside. Once outside the apartment, McCall hid under a car and
called 911.
¶5 When police officers arrived at the apartment complex,
Officer Ron King parked his cruiser facing a football field
adjacent to the apartment complex because dispatch had reported
that a person was seen walking toward the field. Officer King’s
headlights were shining toward a group of three trees next to a

3 No. 20050807
fence dividing the apartment complex from the football field. At
that point, Low emerged and approached Officer King. Officer
King ordered Low to stop, at which point Low said, “I’m the one
you’re looking for” and “I have something for you.” Officer King
asked what the “something” was, and Low responded that it was a
“.357 mag.” Officer King searched Low and found a .357 magnum
handgun tucked in the front of Low’s waistband.
¶6 Officer King handcuffed Low and turned on his pocket
recorder. Low asked Officer King to read him his rights.
Officer King responded by stating, “When I start asking you
questions, at the proper time, I’ll read you your rights, okay?”
After Officer King placed Low in the back seat of the police
cruiser, he and Low engaged in conversation during which Low made
some potentially incriminating statements.
¶7 Officer King subsequently transported Low to the police
station. While left handcuffed and alone in an interview room
with a closed circuit television, Low took a .357 magnum bullet
out of his pocket and kicked it under the table. While Low was
being booked into jail, he asked an officer, “What do you get for
killing somebody?” When the officer responded that he did not
understand the question, Low repeated, “How long do you stay in
jail for killing somebody?” Later, when another inmate asked Low
what he was in jail for, Low said that he killed someone.
PROCEDURAL BACKGROUND
¶8 The State charged Low with murder, theft, and carrying
a concealed dangerous weapon without a valid permit. At trial,
Low admitted that he shot Hirschey but claimed that he acted in
self-defense. Low testified that when he left the living room,
Hirschey grabbed him and threw him into a spare bedroom. When
Low tried to get up, he saw Hirschey in the doorway with a gun
pointed at him. Low tried to run past Hirschey, but Hirschey
pushed him back into the room. Low then struggled with Hirschey
in an attempt to gain control of the gun. At one point, the gun
was pointed at Low’s head and Hirschey was attempting to pull the
trigger, but Low blocked the hammer to keep the gun from firing.
Low ultimately got control of the gun and backed up. Hirschey
took a step back and then charged Low. Low screamed “Don’t!” and
shot Hirschey twice in rapid succession.
¶9 During trial, the district court dismissed the theft
claim based on the court’s determination that the State had
failed to produce evidence to support the charge. Additionally,
the court denied the State’s motion to instruct the jury on
manslaughter. The jury found Low guilty of carrying a concealed
weapon but was unable to reach a verdict on the murder charge.

No. 20050807 4
The court sentenced Low to one year in jail for the weapons
charge, ordered a mistrial on the murder charge, and set a date
for a new trial on the murder charge.
¶10 At the second trial, the State again asked for a
manslaughter instruction. Over Low’s objection, the district
court granted the State’s request and included instructions on
both extreme emotional distress manslaughter and imperfect self-
defense manslaughter. The jury found Low not guilty of first
degree murder but convicted him of manslaughter. Low was
sentenced to one to fifteen years in prison for manslaughter,
with a one-year enhancement for illegal use of a handgun in
committing a felony.
¶11 Following sentencing, Low filed a timely notice of
appeal with the court of appeals. The court of appeals
subsequently certified the case for transfer to this court
pursuant to rule 43 of the Utah Rules of Appellate Procedure. We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b)
(2008).
ANALYSIS
¶12 Low presents several assignments of error.
Specifically, he argues that (1) the district court improperly
included jury instructions for extreme emotional distress
manslaughter and imperfect self-defense manslaughter over his
objection, (2) the district court included an erroneous flight
instruction, (3) the district court improperly admitted his
custodial statements, and (4) the district court improperly
admitted his testimony from the first trial. Additionally, Low
argues that if we reverse his conviction, his constitutional
right to be free from double jeopardy bars the State from
retrying him.
I. IMPERFECT SELF-DEFENSE AND EXTREME EMOTIONAL
DISTRESS MANSLAUGHTER
¶13 Low’s first assignment of error is that the district
court improperly instructed the jury on extreme emotional
distress manslaughter and imperfect self-defense manslaughter.
Because extreme emotional distress manslaughter and imperfect
self-defense manslaughter are both affirmative defenses under
Utah law, Low argues that the choice of whether to assert them
belongs to the defendant. Low contends that the district court
committed reversible error by including the manslaughter
instructions over his objection. We conclude that the district
court did not err by including the imperfect self-defense
instruction, but we agree with Low that the court did err by

2 In the first trial, the State also asked for a reckless
manslaughter instruction. After noting that Low had admitted to
intentionally killing Hirschey, the district court held that
there was no evidence of recklessness and accordingly refused to
give the reckless manslaughter instruction.
5 No. 20050807
including the extreme emotional distress manslaughter
instruction. We accordingly reverse Low’s manslaughter
conviction and remand for further proceedings consistent with
this opinion.
A. Procedural History
¶14 During Low’s first trial, the State asked for an
imperfect self-defense manslaughter instruction. The district
court noted that Low had “done nothing to advance . . . imperfect
self-defense as an affirmative defense” and, accordingly, that
such an instruction was “potentially a substantial violation of
[Low’s] constitutional right to prepare and present a defense.”
The court therefore denied the State’s motion to include the
imperfect self-defense manslaughter instruction.2
¶15 At Low’s second trial, the State again asked that the
jury be instructed on manslaughter. Specifically, the State
asked for both an extreme emotional distress manslaughter
instruction and an imperfect self-defense manslaughter
instruction. Low objected to the imperfect self-defense
manslaughter instruction, arguing that the jury would confuse it
with his claim of perfect self-defense and that there was no
evidence to show that his actions were legally unjustifiable.
Low also objected to the extreme emotional distress manslaughter
instruction, arguing that there was no factual basis for it. The
district court overruled Low’s objections and included both
instructions.
B. Preservation
¶16 The State argues that Low failed to preserve the claim
he urges on appeal with respect to the inclusion of the
manslaughter instructions. Low argues on appeal that the
manslaughter instructions were erroneously given because extreme
emotional distress and imperfect self-defense are affirmative
defenses to--and not lesser included offenses of--murder. The
State contends that this objection is different from the
objections he raised in the district court. We agree.
¶17 “‘Generally speaking, a timely and specific objection
must be made [at trial] in order to preserve an issue for

No. 20050807 6
appeal.’” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171
(quoting State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551)
(emphasis added) (alteration in original). “Utah courts require
specific objections in order to bring all claimed errors to the
trial court’s attention to give the court an opportunity to
correct the errors if appropriate.” State v. Brown, 856 P.2d
358, 361 (Utah Ct. App. 1993) (internal quotation marks omitted).
“Where there is no clear or specific objection and the specific
ground for objection is not clear from the context[,] the theory
cannot be raised on appeal.” State v. Johnson, 2006 UT App 3,
¶ 13, 129 P.3d 282 (internal quotation marks omitted). Thus, if
a party makes an objection at trial based on one ground, this
objection does not preserve for appeal any alternative grounds
for objection. See, e.g., State v. Schreuder, 726 P.2d 1215,
1222 (Utah 1986); State v. Smedley, 2003 UT App 79, ¶¶ 9-13, 67
P.3d 1005.
¶18 In this case, Low objected to the imperfect self-
defense manslaughter instruction in the district court, claiming
that the jury would confuse it with his claim of perfect self-
defense and that there was no evidence to show that his actions
were legally unjustifiable. Low objected to the extreme
emotional distress manslaughter instruction on the ground that
there was no factual basis for it. However, Low never objected
to the manslaughter instructions for the reason that he now urges
as grounds for reversal: that these two forms of manslaughter
are affirmative defenses and that “[c]ourts have no authority to
force affirmative defenses upon criminal defendants.” Because
Low did not raise this specific objection before the district
court, he failed to preserve it for appeal.
C. Standard of Review
¶19 When a party fails to preserve an issue for appeal, we
will address the issue only if (1) the appellant establishes that
the district court committed “plain error,” (2) “exceptional
circumstances” exist, or (3) in some situations, if the appellant
raises a claim of ineffective assistance of counsel in failing to
preserve the issue. State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d
566; State v. Hansen, 2002 UT 114, ¶ 21 n.2, 61 P.3d 1062.
Because Low failed to preserve his claim regarding the
manslaughter instructions in the district court, we can review it
only for plain error, exceptional circumstances, or ineffective
assistance.
¶20 As discussed below, we hold that it was plain error for
the district court to instruct the jury on extreme emotional
distress manslaughter. “To prevail under plain error review, a
defendant must demonstrate that ‘[1] an error exists; [2] the

3 The pre-1999 manslaughter statute provided in part:
(1) Criminal homicide constitutes
manslaughter if the actor:
(a) recklessly causes the death of
another; or
(b) causes the death of another under
the influence of extreme emotional
disturbance for which there is a
reasonable explanation or excuse; or
(c) causes the death of another under
circumstances where the actor reasonably
believes the circumstances provide a
legal justification or excuse for his
conduct although the conduct is not
legally justifiable or excusable under
the existing circumstances.
Utah Code Ann. § 76-5-205(1) (1995).
7 No. 20050807
error should have been obvious to the trial court; and [3] the
error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome.’” State v. Ross, 2007 UT
89, ¶ 17, 174 P.3d 628 (quoting State v. Lee, 2006 UT 5, ¶ 26,
128 P.3d 1179). We discuss each of these elements in turn.
D. Error
¶21 We begin our plain error analysis by considering
whether the district court erred when it instructed the jury on
extreme emotional distress manslaughter and imperfect self-
defense manslaughter. To make this determination, we look to the
Utah Criminal Code and conclude that extreme emotional distress
and imperfect self-defense are affirmative defenses to murder,
rather than lesser included offenses of murder. We then consider
whether a court may instruct the jury regarding an affirmative
defense over the objection of a criminal defendant. We then
apply these rules to Low’s case and determine that although the
district court properly instructed the jury on imperfect self-
defense manslaughter, it improperly instructed the jury on
extreme emotional distress manslaughter.
1. Statutory Structure of Imperfect Self-Defense Manslaughter
and Extreme Emotional Distress Manslaughter
¶22 Prior to 1999, extreme emotional distress manslaughter
and imperfect self-defense manslaughter were listed in Utah’s
manslaughter statute as types of manslaughter. Utah Code Ann.
§ 76-5-205(1) (1995).3 In 1999, extreme emotional distress and
imperfect self-defense were removed from the manslaughter statute

No. 20050807 8
and inserted into the murder statute as affirmative defenses to
murder. Id. § 76-5-203(3) (1999). The current version of the
murder statute provides in part:
It is an affirmative defense to a charge of
murder or attempted murder that the defendant
caused the death of another or attempted to
cause the death of another:
(i) under the influence of extreme
emotional distress for which there is a
reasonable explanation or excuse; or
(ii) under a reasonable belief that the
circumstances provided a legal
justification or excuse for his conduct
although the conduct was not legally
justifiable or excusable under the
existing circumstances.
Id. § 76-5-203(4)(a) (Supp. 2007) (emphasis added). Under the
statute, the assertion of a successful affirmative defense of
either extreme emotional distress or imperfect self-defense
reduces murder to manslaughter or attempted murder to attempted
manslaughter. Id. § 76-5-203(4)(d). The manslaughter statute
now reads: “Criminal homicide constitutes manslaughter if the
actor . . . commits a homicide which would be murder, but the
offense is reduced pursuant to Subsection 76-5-203(4).” Id.
§ 76-5-205(1)(b) (2003).
¶23 “Under our rules of statutory construction, we look
first to the statute’s plain language to determine its meaning.”
State v. Gallegos, 2007 UT 81, ¶ 12, 171 P.3d 426 (internal
quotation marks omitted). “We presume that the legislature used
each word advisedly and give effect to each term according to its
ordinary and accepted meaning.” State v. Holm, 2006 UT 31, ¶ 16,
137 P.3d 726.
¶24 Under the plain language of Utah’s murder and
manslaughter statutes, extreme emotional distress manslaughter
and imperfect self-defense manslaughter are affirmative defenses
to murder. They are no longer lesser included offenses of
murder. For this reason, we do not discuss whether the State was
entitled to jury instructions for extreme emotional distress
manslaughter and imperfect self-defense manslaughter based upon
our prior case law regarding lesser included offenses. Rather,
we are bound by the legislature’s decision to categorize extreme
emotional distress manslaughter and imperfect self-defense
manslaughter as affirmative defenses to murder. We now address
when a court may properly instruct the jury regarding such
affirmative defenses.

9 No. 20050807
2. Jury Instructions Regarding Affirmative Defenses
¶25 When a criminal defendant requests a jury instruction
regarding a particular affirmative defense, the court is
obligated to give the instruction if evidence has been
presented--either by the prosecution or by the defendant--that
provides any reasonable basis upon which a jury could conclude
that the affirmative defense applies to the defendant. See State
v. Knoll, 712 P.2d 211, 214 (Utah 1985) (“[W]hen there is a basis
in the evidence, whether the evidence is produced by the
prosecution or by the defendant, which would provide some
reasonable basis for the jury to conclude that a killing was done
to protect the defendant from an imminent threat of death by
another, an instruction on self-defense should be given the
jury.”); State v. Torres, 619 P.2d 694, 695 (Utah 1980) (stating
that a party is “entitled to have the jury instructed on the law
applicable to its theory of the case if there is any reasonable
basis in the evidence to justify it”).
¶26 We have applied this rule with respect to the
affirmative defenses of imperfect self-defense manslaughter and
extreme emotional distress manslaughter. See State v. Spillers,
2007 UT 13, ¶¶ 16, 23, 152 P.3d 315; State v. Shumway, 2002 UT
124, ¶¶ 13, 14, 63 P.3d 94. For example, in Spillers, we held
that a criminal defendant was entitled to a jury instruction on
imperfect self-defense manslaughter because the evidence
presented by the defendant could have been interpreted by the
jury to establish imperfect self-defense. 2007 UT 13, ¶ 23. We
also held that the defendant was entitled to a jury instruction
on extreme emotional distress manslaughter because “a rational
jury could, adopting Defendant’s version of events, find that he
was experiencing extreme emotional distress for which there was a
reasonable explanation or excuse when he shot [the victim].” Id.
¶ 16. This rule does not apply in this case, however, because
Low, unlike the defendants in Spillers and Shumway, did not
request that the jury be instructed on extreme emotional distress
manslaughter and imperfect self-defense manslaughter. In fact,
Low strongly opposed the manslaughter instructions. We must,
therefore, determine when a court may include jury instructions
regarding affirmative defenses over a defendant’s objection.
¶27 A court may properly instruct the jury as to an
affirmative defense, even if the defendant objects to the
instruction, if the defendant has presented evidence supporting
the affirmative defense at trial. The court has a duty to
instruct the jury on the relevant law, and the court may, even
over the defendant’s objection, “give any instruction that is in
proper form, states the law correctly, and does not prejudice the

No. 20050807 10
defendant.” State v. Hansen, 734 P.2d 421, 428 (Utah 1986). If
a defendant presents evidence of an affirmative defense, the
defendant is not prejudiced when the jury is instructed regarding
that defense. Thus, the court may give the affirmative defense
instruction as long as it is in proper form and correctly states
the law.
¶28 But when a defendant presents no evidence relating to
an affirmative defense, a court may not instruct the jury on that
affirmative defense. Indeed, when a criminal defendant expresses
his intent to not assert an affirmative defense, the prosecution
should not be allowed to present evidence of that defense and
subsequently request a jury instruction regarding the defense.
See Utah Code Ann. § 76-1-504 (2003) (“Evidence of an affirmative
defense . . . shall be presented by the defendant.”). To allow
the prosecution to do so would effectively foist an affirmative
defense upon the defendant. This would be improper because, as a
general rule, a defendant cannot be forced to assert an
affirmative defense. See State v. Arguelles, 2003 UT 1, ¶ 84, 63
P.3d 731 (holding that a pro se defendant could not be forced to
present mitigating evidence because “the court has no means to
compel a defendant to put on an affirmative defense” (internal
quotation marks omitted)); see also Tremblay v. Overholser, 199
F. Supp. 569, 570 (D.D.C. 1961) (stating the court’s opinion that
“it is a deprivation of a constitutional right to force any
defense on a defendant in a criminal case or to compel any
defendant in a criminal case to present a particular defense
which he does not desire to advance”); State v. Jones, 664 P.2d
1216, 1220 (Wash. 1983) (stating that courts do not impose
affirmative defenses, such as a valid alibi or legitimate self-
defense, on an unwilling defendant).
¶29 In summary, a defendant is entitled to a jury
instruction regarding an affirmative defense whenever there is
evidence providing a factual basis for the defense. The
prosecution is entitled to a jury instruction regarding an
affirmative defense if the defendant has presented evidence
supporting that defense. But the prosecution is not entitled to
an affirmative defense instruction if the defendant has proffered
no evidence in support of that affirmative defense.
3. The Manslaughter Jury Instructions in Low’s Case
¶30 Having laid out the standards for when a court may
properly instruct a jury regarding an affirmative defense over a
defendant’s objection, we now apply the standards to the facts of
Low’s case.
a. Imperfect Self-Defense Manslaughter Instruction

11 No. 20050807
¶31 We first consider whether the district court properly
included the imperfect self-defense jury instruction over Low’s
objection. We conclude that the imperfect self-defense jury
instruction was proper.
¶32 As previously noted, the prosecution is entitled to a
jury instruction regarding an affirmative defense if the
defendant has presented evidence supporting that defense. And
when a defendant presents evidence of perfect self-defense, he
necessarily presents evidence of imperfect self-defense because
“for both perfect and imperfect self-defense, ‘the same basic
facts [are] at issue.’” Spillers, 2007 UT 13, ¶ 23 (quoting
State v. Howell, 649 P.2d 91, 95 (Utah 1982)) (alteration in
original). Indeed, perfect self-defense and imperfect self-
defense require the defendant to present the same evidence: that
the defendant had a reasonable belief that force was necessary to
defend himself. See Utah Code Ann. § 76-2-402(1) (2003)
(providing that perfect self-defense requires the defendant to
show that he “reasonably believe[d] that force [was] necessary to
defend himself . . . against such other’s imminent use of
unlawful force” (emphasis added)); id. § 76-5-203(4)(a)(ii)
(Supp. 2007) (providing that imperfect self-defense requires the
defendant to show that he acted “under a reasonable belief that
the circumstances provided a legal justification or excuse for
his conduct” (emphasis added)). The difference between perfect
self-defense and imperfect self-defense is the determination of
whether the defendant’s conduct was, in fact, “legally
justifiable or excusable under the existing circumstances.” Id.
§ 76-5-203(4)(a)(ii) (Supp. 2007).
¶33 Thus, when a defendant presents evidence of perfect
self-defense, he necessarily presents evidence of imperfect self-
defense, and the prosecution is entitled to a jury instruction on
imperfect self-defense, even over the defendant’s objection.
Were it otherwise, a defendant could tactically raise the issue
of self-defense so that a jury could not find beyond a reasonable
doubt that he had committed murder, but could then prevent that
same jury from convicting him of imperfect self-defense
manslaughter simply by objecting to an imperfect self-defense
instruction. We are unwilling to interpret the Utah Criminal
Code in a manner that would give defendants such an unfair
tactical advantage.
¶34 In this case, the district court properly instructed
the jury on imperfect self-defense manslaughter because Low
introduced evidence, including his own testimony, that he shot
Hirschey in self-defense. Low testified that he fired the gun
only after Hirschey charged him and that he was in fear for his
life when he fired the gun. Because Low presented evidence of

No. 20050807 12
self-defense, we find that there was a reasonable basis for the
district court to instruct the jury regarding imperfect self-
defense.
b. Extreme Emotional Distress Manslaughter Instruction
¶35 We next consider whether the district court properly
included the extreme emotional distress manslaughter instruction
over Low’s objection. We conclude that it was error for the
court to include the instruction.
¶36 The State argues that the jury instruction was proper
because “there was evidence that defendant may have killed
Hirschey while suffering extreme emotional distress.” The State
points to testimony from Low, McCall, and Touchette that Hirschey
had teased, manhandled, and assaulted Low. This evidence, the
State argues, raises the question of whether Low was suffering
from extreme emotional distress when he shot Hirschey. We
disagree.
¶37 Although there was evidence presented by both the
prosecution and by Low that Hirschey had mistreated Low
throughout the evening of the shooting, there was no evidence
that Low was experiencing extreme emotional distress as a result
of the mistreatment. Low never testified that he was angered or
upset by the mistreatment. And the other witnesses testified
that Hirschey’s mistreatment did not cause Low to become angry or
emotionally distressed. Touchette testified that Low took the
mistreatment “in stride” and was not angry. McCall testified
that Low “just kind of shrugged it off” and that, mere seconds
before the shooting happened, Low did not appear mad at Hirschey.
¶38 By including the instruction over Low’s objection, the
district court foisted upon Low the affirmative defense of
extreme emotional distress, which Low did not wish to assert.
Because Low did not introduce any evidence of extreme emotional
distress, it was error for the district court to include a jury
instruction for extreme emotional distress manslaughter.
¶39 We find support for our decision in the case of People
v. Bradley, 669 N.E.2d 815 (N.Y. 1996). In Bradley, a defendant
charged with second degree murder asserted the affirmative
defense of “not responsible by reason of a mental disease or
defect.” Id. at 816. The State asked the trial court to provide
a first degree manslaughter instruction based on extreme
emotional disturbance, and the court included the instruction
over the defendant’s objection. Id. The jury found the
defendant guilty of manslaughter. Id. The Court of Appeals of
New York held that it was error for the trial court to include

13 No. 20050807
the manslaughter instruction because the defendant’s position at
trial was that he suffered from a progressive mental illness that
“prevented him from appreciating the moral and legal import of
his actions,” not that he suffered a “temporary loss of control.”
Id. The appellate court concluded that the defendant’s right to
chart his own defense had been infringed when the trial court
instructed the jury regarding the affirmative defense of extreme
emotional disturbance over the defendant’s objection and reversed
the conviction. Id.
¶40 In this case, Low’s consistent position at trial was
that he acted out of self-defense. Low did not present any
evidence that his actions were due to a temporary loss of control
caused by extreme emotional distress. It was therefore error for
the district court to submit a jury instruction regarding extreme
emotional distress, an affirmative defense that Low did not
raise. This error satisfies the first prong of the plain error
standard.
E. Obviousness
¶41 The second element a defendant must establish to
prevail under plain error review is that “‘the error should have
been obvious to the trial court.’” Ross, 2007 UT 89, ¶ 17
(quoting Lee, 2006 UT 5, ¶ 26). An error is obvious when “the
law governing the error was clear at the time the alleged error
was made.” State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276. An
error may be obvious if a review of the plain language of the
relevant statute reveals the error. See State v. Portillo, 914
P.2d 724, 726 (Utah Ct. App. 1996).
¶42 Under the plain language of Utah Code section 76-5-
203(4)(a), extreme emotional distress manslaughter and imperfect
self-defense manslaughter are affirmative defenses to murder.
Because extreme emotional distress is clearly listed as an
affirmative defense to murder, it was obvious error for the
district court to force the affirmative defense on Low by
including the extreme emotional distress manslaughter instruction
over Low’s objection. This satisfies the second prong of the
plain error standard.
F. Harmfulness
¶43 The final element a defendant must demonstrate to
establish plain error is that the error was harmful. Dean, 2004
UT 63, ¶ 22. An error is harmful if it is “of such a magnitude
that there is a reasonable likelihood of a more favorable outcome
for the defendant.” Id. (internal quotation marks omitted).
“This harmfulness test is equivalent to the prejudice test

No. 20050807 14
applied in assessing claims of ineffective assistance of
counsel.” Id.
¶44 The State argues that even if the manslaughter jury
instructions were improper, there was no harm because the jury
necessarily found Low guilty of murder and then reduced the
murder charge to manslaughter based on the affirmative defenses.
The State therefore argues that Low would necessarily have been
convicted of murder had the jury not been instructed on
manslaughter. We disagree.
¶45 A necessary element of a murder conviction is the
absence of affirmative defenses. “It is fundamental that the
State carries the burden of proving beyond a reasonable doubt
each element of an offense, including the absence of an
affirmative defense once the defense is put into issue.” State
v. Hill, 727 P.2d 221, 222 (Utah 1986); see also Utah Code Ann.
§ 76-1-502 (2003) (requiring the prosecution to negate an
affirmative defense by proof if the defendant has presented
evidence of the defense). The murder instruction in this case
was erroneous because it lacked the necessary element that the
State show the absence of the affirmative defenses of extreme
emotional distress and imperfect self-defense. Because the
absence of affirmative defenses is an element of murder, we are
unpersuaded by the State’s argument.
¶46 Moreover, even if the murder instruction had not been
erroneous, the plain language of the jury instructions did not
require the jury to find all the elements of murder before it
could consider whether to reduce the murder conviction to
manslaughter, as the State contends. Rather, there was a jury
instruction listing the elements of first degree murder and a
separate jury instruction stating that the jury “may also
consider whether the defendant has committed the offense of
Manslaughter.” Because the jury was not instructed to first find
all of the elements of murder beyond a reasonable doubt and
then--and only then--determine whether to reduce the murder
conviction to a manslaughter conviction, the State’s harmlessness
argument fails.
¶47 The district court’s error was harmful because we do
not know whether the jury convicted Low for manslaughter based on
the extreme emotional distress instruction or on the imperfect
self-defense instruction. If the jury convicted Low of imperfect
self-defense manslaughter, there would be no harm in light of our
holding that the district court properly instructed the jury on
imperfect self-defense. If, however, the jury convicted Low of
extreme emotional distress manslaughter, Low’s conviction is
based upon an erroneous instruction, and the giving of that

15 No. 20050807
instruction was obviously harmful. The difficulty is that the
verdict form in this case contains insufficient information for
us to determine whether the jury convicted Low of imperfect self-
defense manslaughter or extreme emotional distress manslaughter.
¶48 The verdict form instructed the jury to determine
whether Low was (1) guilty of first degree murder, (2) guilty of
manslaughter, or (3) not guilty. In the event that the jury
found Low guilty of manslaughter, the verdict form did not
require the jury to specify whether it was convicting Low for
imperfect self-defense manslaughter or extreme emotional distress
manslaughter. There is a reasonable possibility that the jury
convicted Low of extreme emotional distress manslaughter. Had
the district court not erroneously instructed the jury on this
form of manslaughter, there is a reasonable likelihood that Low
may not have been convicted at all. It is this “reasonable
likelihood of a more favorable outcome” that makes the error
harmful, Dean, 2004 UT 63, ¶ 22, and satisfies the third prong of
the plain error standard.
¶49 In summary, we conclude that the district court erred
by including an extreme emotional distress manslaughter
instruction over Low’s objection, that the error was obvious
based on the plain language of the Utah Criminal Code, and that
the error was harmful. Because the district court committed
plain error, we reverse Low’s conviction.
II. DOUBLE JEOPARDY
¶50 Having determined that the district court’s error
requires reversal, we must now determine whether a retrial would
subject Low to double jeopardy. Low argues that double jeopardy
prevents the State from retrying him for murder or for
manslaughter. We hold that double jeopardy bars the State from
retrying Low for murder and that the statutory scheme bars the
State from retrying Low for extreme emotional distress
manslaughter or imperfect self-defense manslaughter. The State
may, however, amend its information and retry Low for other forms
of manslaughter or lesser offenses.
A. Retrial for Murder
¶51 The United States Constitution, the Utah Constitution,
and the Utah Code all provide citizens with protection from
double jeopardy. U.S. Const. amend. V; Utah Const. art I, § 12;
Utah Code Ann. § 77-1-6(2)(a) (2003). “[T]he double jeopardy
guarantee contained in these provisions protects a defendant from
(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction,

No. 20050807 16
and (3) multiple punishments for the same offense.” State v.
Rudolph, 970 P.2d 1221, 1230 (Utah 1998).
¶52 The double jeopardy guarantee does not protect a
defendant from a retrial for an offense when his conviction for
that same offense has been reversed on appeal as a result of
trial error. Burks v. United States, 437 U.S. 1, 15 (1978);
Green v. United States, 355 U.S. 184, 189 (1957); see also
Rudolph, 970 P.2d at 1230-31 (“[D]ouble jeopardy does not
generally bar a second trial when a conviction was successfully
vacated on appeal.”). A caveat to this general rule is that when
the conviction of a lesser offense implies an acquittal of a
greater offense, double jeopardy bars retrial of the greater
offense if the conviction for the lesser offense is reversed on
appeal. Price v. Georgia, 398 U.S. 323, 329 (1970); Green, 355
U.S. at 190-91.
¶53 For example, the criminal defendant in Price was
charged with murder and convicted of manslaughter, but
successfully obtained a reversal of the manslaughter conviction
on appeal. 398 U.S. at 324. The United States Supreme Court
held that the Double Jeopardy Clause barred retrial for murder
because the defendant’s conviction on the manslaughter charge
implicitly acquitted him of the murder charge. Id. at 329; see
also Green, 355 U.S. at 190-91 (holding that the Double Jeopardy
Clause barred retrial on first degree murder when the defendant
was charged with first degree murder, was convicted of second
degree murder, and was successful in obtaining a reversal of the
second degree murder conviction on appeal).
¶54 The underlying rationale for the caveat is that
(1) because a conviction on a lesser offense necessarily implies
an acquittal of the greater offense and (2) because double
jeopardy bars a second prosecution for the same offense after an
acquittal, a defendant who is convicted of the lesser offense
cannot be retried for the greater offense, even if the conviction
for the lesser offense is reversed on appeal. See Utah Code Ann.
§ 76-1-403(2) (“A finding of guilty of a lesser included offense
is an acquittal of the greater offense even though the conviction
for the lesser included offense is subsequently reversed, set
aside, or vacated.”); Rudolph, 970 P.2d at 1230 (“[T]he double
jeopardy guarantee . . . protects a defendant from . . . a second
prosecution for the same offense after acquittal . . . .”).
¶55 In this case, Low was charged with first degree murder,
but was convicted of manslaughter by a jury. The conviction of
the lesser offense of manslaughter constitutes an implied

4 As we previously have noted in this opinion, the jury
instruction regarding first degree murder was erroneous because
it lacked the requirement that the State prove the absence of the
affirmative defenses raised by Low. The omission of this element
arguably made it easier for the jury to convict Low of first
degree murder. And even with the omission, the jury still
rejected first degree murder in favor of manslaughter. Because
the State was unable to convince the jury to convict Low of
murder, the jury’s conviction of manslaughter constituted an
implicit acquittal of the murder charge.
5 As previously noted, because the jury verdict form did not
require that the jury identify the affirmative defense on which
it relied to convict Low of manslaughter, we are unable to
determine whether the jury relied on extreme emotional distress
or imperfect self-defense.
17 No. 20050807
acquittal of the greater offense of murder.4 Because Low was
acquitted of murder, double jeopardy prevents the State from
retrying Low for that offense.
B. Retrial for Extreme Emotional Distress Manslaughter and
Imperfect Self-Defense Manslaughter
¶56 As previously noted, “double jeopardy does not
generally bar a second trial when a conviction [is] successfully
vacated on appeal.” Rudolph, 970 P.2d at 1230-31. Thus, when a
criminal defendant is charged with murder but convicted of
manslaughter, and the manslaughter conviction is reversed on
appeal, double jeopardy does not bar retrial for manslaughter.
See Price, 398 U.S. at 329 (holding that the Double Jeopardy
Clause barred retrial for murder, but not for manslaughter);
United States v. Larkin, 605 F.2d 1360, 1368 (5th Cir. 1979)
(“[I]t is . . . well settled that a defendant may be retried on a
lesser offense, of which he was convicted at an initial trial,
after that conviction was reversed on appeal . . . .”). Because
Low was convicted of manslaughter, double jeopardy would
ordinarily not bar retrial for manslaughter.
¶57 While double jeopardy protections do not prevent the
State from retrying Low for manslaughter, the statutory framework
prevents the State from retrying him for extreme emotional
distress manslaughter or imperfect self-defense manslaughter.
Low was convicted of manslaughter based upon either extreme
emotional distress or imperfect self-defense.5 But under the
plain language of the Utah Criminal Code, extreme emotional
distress and imperfect self-defense exist only as affirmative
defenses to murder. Utah Code Ann. § 76-5-203(4)(a) (Supp.

6 The strange result in this case highlights an apparent
practical problem with the legislature’s decision to remove
extreme emotional distress and imperfect self-defense from the
manslaughter statute, where they were chargeable offenses, and
redefine them only as affirmative defenses to murder. Despite
the strange result, we are bound by legislative enactments and
therefore must apply the law as written. See Wagner v. Utah
Dep’t of Human Servs., 2005 UT 54, ¶ 63, 122 P.3d 599 (“[I]t is
not our role as a judiciary to override the legislature . . .
[but] only to interpret and apply the law as it is.”); Fay v.
Indus. Comm’n, 114 P.2d 508, 516 (Utah 1941) (“It is our function
to apply the law as written by the legislature, barring
constitutional questions, and not to legislate because we think
the law should be otherwise.”).
No. 20050807 18
2007). As such, extreme emotional distress manslaughter and
imperfect self-defense manslaughter are no longer chargeable
offenses. It would be improper to allow the State to retry Low
for offenses with which he could not have been originally
charged. We therefore conclude that the State cannot retry Low
for extreme emotional distress manslaughter or imperfect self-
defense manslaughter.6
C. Retrial for Manslaughter and Lesser Offenses
¶58 Although double jeopardy bars the State from retrying
Low for murder and the Utah Criminal Code bars the State from
charging Low with extreme emotional distress manslaughter and
imperfect self-defense manslaughter, nothing prohibits the State
from filing an amended information containing charges for other
forms of manslaughter or other lesser offenses that the State
believes are supported by the facts of the case. “[C]ourts have
held that the Double Jeopardy Clause does not bar retrial of
defendants on new indictments after their original convictions
were reversed on appeal.” United States v. Newman, 6 F.3d 623,
627 (9th Cir. 1993); see also United States v. Poll, 538 F.2d
845, 847 (9th Cir. 1976) (“[W]hen the first conviction has been
reversed and the matter remanded, the slate has been wiped clean
and the Government is free to prosecute the defendant on a
different statutory violation regardless if it is considered the
same or a separate offense.”); Thomas v. State, 473 So. 2d 627,
629 (Ala. Crim. App. 1985) (finding no double jeopardy violation
when the defendant was indicted and convicted of intentional
murder and robbery, the conviction was reversed on appeal because
of an erroneous jury instruction, and the defendant was
reindicted for felony murder and reckless murder).

19 No. 20050807
¶59 To allow Low to escape trial for offenses that may be
supported by the facts because of our reversal of his
manslaughter conviction would provide him with an unjustified
windfall. Jones v. Thomas, 491 U.S. 376, 387 (1989) (“[N]either
the Double Jeopardy Clause nor any other constitutional provision
exists to provide unjustified windfalls.”). The Supreme Court
has noted that
[c]orresponding to the right of an accused to
be given a fair trial is the societal
interest in punishing one whose guilt is
clear after he has obtained such a trial. It
would be a high price indeed for society to
pay were every accused granted immunity from
punishment because of any defect sufficient
to constitute reversible error in the
proceedings leading to conviction. . . .
[T]he practice of retrial serves defendants’
rights as well as society’s interest.
United States v. Tateo, 377 U.S. 463, 466 (1964). Permitting the
State to retry Low for manslaughter and/or lesser offenses that
the State believes are supported by the facts correctly balances
Low’s right to be free from double jeopardy with the State’s
interest in punishing those who have committed crimes against
society.
¶60 We therefore conclude that although the State cannot
retry Low for murder, extreme emotional distress manslaughter, or
imperfect self-defense manslaughter, the State may file an
amended information and retry Low for other forms of manslaughter
or lesser offenses.
III. ISSUES FOR RETRIAL
¶61 Although we reverse Low’s conviction and remand the
case for retrial based on the district court’s erroneous
inclusion of the extreme emotional distress manslaughter
instruction, there are other issues presented on appeal that will
likely arise during retrial. We therefore exercise our
discretion to address those issues for purposes of providing
guidance on remand. See State v. James, 819 P.2d 781, 795 (Utah
1991) (“Issues that are fully briefed on appeal and are likely to
be presented on remand should be addressed by this court.”).
Much of the briefing on these issues related to preservation and
prejudice. Those matters do not concern us because our
discussion of these issues is in the context of providing
guidance for retrial, rather than in determining whether the

No. 20050807 20
district court erred in the previous trial. We therefore decline
to address the State’s preservation and prejudice arguments.
¶62 The issues we examine are (1) whether the flight
instruction was complete, (2) whether Low’s custodial statements
were properly admitted, and (3) whether Low’s testimony from the
first trial was properly admitted in the second trial.
A. Flight Instruction
¶63 Low argues that the jury instruction regarding flight,
which was given in his second trial, was incomplete. The flight
instruction provided:
The flight or attempted flight after a
killing of another is not sufficient in
itself to establish a person’s guilt, but is
a fact which, if proved, may be considered by
you in the light of all other proved facts in
deciding whether a defendant is guilty or not
guilty. The weight to which this
circumstance is entitled is a matter for you
to decide.
¶64 This flight instruction is similar to the flight
instruction at issue in State v. Bales, 675 P.2d 573, 574 (Utah
1983). In that case, we held that the flight instruction was not
“completely free from criticism” because it did not “advise[] the
jury that there may be reasons for flight fully consistent with
innocence and that even if consciousness of guilt is inferred
from flight it does not necessarily reflect actual guilt of the
crime charged.” Id. at 575; see also State v. Franklin, 735 P.2d
34, 39 (Utah 1987).
¶65 The flight instruction in this case is incomplete for
the same reasons. Indeed, the State acknowledges the
instruction’s incompleteness. We do not express any opinion on
whether the incomplete flight instruction would have warranted
reversal in this case. Rather, if the district court provides a
flight instruction on retrial, we advise the court to ensure that
the instruction is complete.
B. Custodial Statements
¶66 Low argues that his custodial statements recorded by
the arresting officer should have been suppressed. We agree and
advise the district court to suppress those statements on
retrial.

21 No. 20050807
¶67 Prior to the first trial, Low filed a motion to
suppress his custodial statements recorded by Officer King,
arguing that they had been obtained in violation of Low’s Miranda
rights. The district court concluded that Low’s statements were
admissible, with the exception of a few inaudible comments. At
trial, a transcript of the dialogue between Low and Officer King
was read to the jury by Officer King. Additionally, some of
Low’s statements were used against him in cross-examination. In
the second trial, Low did not ask the district court to revisit
the issue of admissibility of the custodial statements, and a
transcript of the dialogue was again read to the jury by Officer
King. In addition, Low’s testimony from the first trial was read
to the jury. Thus, the jury heard the custodial statements
through the live testimony of Officer King and in the reading of
the State’s cross-examination of Low from the first trial.
¶68 The Fifth Amendment guarantees that “[n]o person . . .
shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. To protect this right, the
Supreme Court held in Miranda v. Arizona that “the prosecution
may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination.” 384 U.S. 436, 444
(1966).
¶69 “[C]ustodial interrogation occurs where there is
(1) custody or other significant deprivation of a suspect’s
freedom and (2) interrogation.” State v. Levin, 2006 UT 50,
¶ 34, 144 P.3d 1096. In this case, the State concedes that Low
was in custody when Officer King activated his tape recorder. We
therefore focus on the question of whether Low was interrogated.
¶70 “Interrogation is ‘either express questioning or its
functional equivalent’ and it incorporates any ‘words or actions
on the part of police officers that they should have known were
reasonably likely to elicit an incriminating response.’” Levin,
2006 UT 50, ¶ 37 (emphasis removed) (quoting Rhode Island v.
Innis, 446 U.S. 291, 300-02 (1980)). While statements arising
from interrogation are governed by the Fifth Amendment,
“[v]olunteered statements of any kind are not barred by the Fifth
Amendment and their admissibility is not affected by [the Miranda
decision].” Miranda, 384 U.S. at 478. “The law of this state
also recognizes that words or actions normally attendant to
arrest and custody do not constitute interrogation.” State v.
Dutchie, 969 P.2d 422, 426 (Utah 1998).
¶71 In this case, Officer King did not initiate direct
questioning of Low. Thus, the question before us is whether

No. 20050807 22
Officer King’s statements and conduct were the “functional
equivalent” of express questioning. See State v. Yoder, 935 P.2d
534, 545 (Utah Ct. App. 1997). We must determine whether Officer
King’s words and actions were “words or actions [Officer King]
should have known were reasonably likely to elicit an
incriminating response from [Low].” Id.
¶72 The facts of this case present a very close question.
We agree with the State that many of Low’s statements were
voluntary statements that do not fall under the scope of Miranda.
See 384 U.S. at 478. We also agree with the State that many of
Officer King’s statements were questions normally attendant to
arrest and custody, see Dutchie, 969 P.2d at 426, or agreements
with Low’s unsolicited and voluntary statements, see Yoder, 935
P.2d at 546, that do not constitute interrogation or its
functional equivalent.
¶73 But some of Officer King’s statements were reasonably
likely to elicit an incriminating response. For example, at one
point during the conversation, Officer King told Low, “Sometimes
you just need to talk to somebody, huh?” Shortly thereafter, Low
stated, “I don’t want to talk too much,” to which Officer King
responded, “That’s up to you.”
¶74 In addition to the statements themselves, we find
significant Officer King’s refusal to read Low his rights.
Immediately upon being arrested, Low specifically asked Officer
King, “Will you read me my rights, please.” Officer King
responded, “When I start asking you questions, at the proper
time, I’ll read you your rights, okay?” To a person untrained in
the law, an officer’s refusal to read him his rights may suggest
that anything he says before being read his rights will not be
used against him. Officer King’s refusal to read Low his rights
may have given Low a false sense of security in making statements
to Officer King that, unknown to Low, were being recorded. This
false sense of security arising from Officer King’s refusal to
read Low his rights taints the conversation that followed and
increases our concern regarding Officer King’s statements that
Low “just need[ed] to talk to somebody” and that Low’s decision
to talk was “up to [him].” We accordingly hold that Officer
King’s refusal to read Low his rights, coupled with Officer
King’s statements during the conversation, qualify as words or
actions that Officer King should have known would elicit
incriminating statements from Low. Officer King’s words and
actions were, therefore, the functional equivalent of express
questioning, and Low’s statements must be suppressed.
¶75 We pause to clarify that our holding in this case does
not suggest the existence of a constitutional violation in every

23 No. 20050807
case where a defendant asks to be read his rights, the officer
declines to do so, and the defendant then makes unsolicited,
voluntary statements. Nor do we opine on whether a
constitutional violation would have occurred in this case absent
Low’s request to be read his rights and Officer King’s refusal.
Rather, we limit our determination to the specific facts
presented herein and advise the district court that Low’s
custodial statements should be suppressed at retrial, if Low so
requests.
C. Testimony from the First Trial
¶76 Low did not testify in the second trial, but the
district court permitted the State, over Low’s objection, to read
to the jury his testimony from the first trial. Low argues that
the district court erred by permitting the State to present his
testimony from the first trial over his objection.
¶77 Generally, “a defendant’s testimony at a former trial
is admissible in evidence against him in later proceedings.”
Harrison v. United States, 392 U.S. 219, 222 (1968). However,
when a defendant is compelled to testify as a result of evidence
that is illegally obtained and improperly admitted, the
defendant’s testimony is inadmissible in a later trial. Id. at
222-24. Accordingly, if a defendant chooses not to testify at
retrial and the prosecution seeks to admit the defendant’s
testimony from the first trial, the court must determine why the
defendant testified in the first trial. See id. at 223 (“The
question is not whether the [defendant] made a knowing decision
to testify, but why.”). The burden is on the prosecution to
“show that [the government’s] illegal action did not induce [the
defendant’s] testimony.” Id. at 225; see also United States v.
Pelullo, 105 F.3d 117, 125 (3d Cir. 1997) (“The burden of proving
that the defendant would have testified had the government not
committed the violation lies with the government.”).
¶78 In this case, the district court in the second trial
acted under the assumption that Low’s custodial statements had
been legally obtained and properly admitted in the first trial.
As a result, when deciding whether to allow the State to
introduce Low’s testimony from the first trial, the court took no
evidence and made no findings regarding whether Low had been
compelled to testify in the first trial as a result of the
improper admission of his custodial statements. Our holding that
Low’s custodial statements were illegally obtained and improperly
admitted may require the district court to make these
determinations on remand. If Low chooses not to testify at
retrial and the State asks for the admission of Low’s testimony
from the first trial, the district court will need to determine

No. 20050807 24
whether the erroneous admission of Low’s custodial statements
compelled him to testify in the first trial. If the State
carries its burden in showing that Low was not compelled to
testify due to the admission of the custodial statements, the
court may admit Low’s prior testimony. If, however, the State
does not carry its burden, Low’s prior testimony must be
excluded.
CONCLUSION
¶79 We reverse Low’s manslaughter conviction and remand for
further proceedings consistent with this opinion.
---
¶80 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.