Extreme Emotional Distress is NOT an Affirmative Defense. It is Special Mitigation

State of Utah v. White, 2011 UT 21 (Utah Supreme Court, April 19, 2011).

White charged with attempted murder, moved for a jury instruction regarding Extreme Emotional Distress.  The trial court denied the motion.  White Appealed.  The Court of Appeals affirmed.  The Supreme Court found that the Court of Appeals used the incorrect standard when deciding if the instruction should be given; requiring a highly provocative triggering event. 

The Supreme Court found the Court of Appeals erred because instructions as to affirmative defenses require only a reasonable basis for the instruction.  The reasonable basis must be based on whether a jury could conclude Defendant was exposed to extremely unusual and overwhelming stress from a reasonable person’s viewpoint.  Remanded to trial court to evaluate Defendant’s evidence of a reasonable basis for the instruction.

IMPORTANT NOTE: Extreme Emotional Distress is no longer an Affirmative Defense, but is special mitigation.  See State v. Drej, 2010 UT 35 ¶19 and U.C.A. § 76-5-205.5(1)(b).

Full Decision available at http://www.utcourts.gov/opinions/supopin/White2041911.pdf

Affirmative Defenses Must be Disproved Beyond a Reasonable Doubt

State v. Sellers 2011 UT App 38 (Utah Court of Appeals, February 3, 2011).

Sellers was convicted of aggravated sexual assault of a child.  Sellers claimed that his voluntary intoxication inhibited his complete ability to form the necessary intent to commit the crime.  The voluntary intoxication instruction that was given to the jury failed to instruct the jury that the State had burden of disproving the affirmative defense.

The Court of Appeals found that Sellers’s attorney’s failure to object and failure to propose a proper instruction was ineffective assistance of counsel, because there was no strategic reason for omitting the burden of proof.  Because the deficient performance, and the deficiency of the instruction the Court of Appeals Reversed the conviction and Remanded the case for a new trial. 

Note—The Court also commented on a two lines of questioning put forth by the State: 1) Questions to a detective on the case regarding the drunkenness of Defendant. The Court of Appeals stated that because the detective’s testimony was not based on personal observation of the drunkenness, his testimony was inappropriate lay testimony.  2) Questions to the same detective as to the truthfulness of the testimony of the child victim.  The Court of Appeals found this testimony to improperly bolster the testimony and that both lines of questioning should be avoided in the new trial.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/sellers020311.pdf

Special Mitigation is Not an Affirmative Defense

Utah v. Eryk Drej 2010 UT 35, (Utah Supreme Court, May 14, 2010).

Special Mitigation is an additional method of mitigating criminal culpability based on a defendant’s mental illness.  Special mitigation allows a reduction of criminal liability by one degree if the defendant can show the factors of special mitigation.  Drej took an interlocutory appeal to challenge the constitutionality of the trial court’s finding that the statute places the burden of proving special mitigation on the defendant.  Further, Drej alleges that the passing of the statute violated the separation of powers doctrine.

The Supreme Court affirmed the trial court and found that special mitigation is not an affirmative defense because special mitigation does not negate an element of the crime.  Thus, the prosecution is not required to disprove it.  Further, the statute does not violate separation of powers doctrine because special mitigation is a substantive right, not an adjustment to procedural rules.  The Court finally finds that the statute does not violate equal protection because the classification created is narrow and that there is a distinction between special mitigation and imperfect self-defense defendants, so that the respective defendants are not similarly situated.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Drej051410.pdf