This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 46

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

DENNIS WAYNE LAMBDIN,

Petitioner.

No. 20150752

Filed August 11, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Vernice S. Trease

No. 091906736

Attorneys:

Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,

Salt Lake City, for respondent

McCaye Christianson, Alexandra S. McCallum, Salt Lake City,

for petitioner

JUSTICE DURHAM authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE LEE and JUDGE CONNORS joined.

CHIEF JUSTICE DURRANT authored a dissenting opinion in which

JUSTICE HIMONAS joined.

Having recused himself, JUSTICE PEARCE does not participate herein;

DISTRICT COURT JUDGE DAVID CONNORS sat.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Dennis Lambdin was married for approximately nine years 

before brutally killing his wife. While he admitted to the killing, he 

sought to reduce the conviction from murder to manslaughter by 

establishing special mitigation through extreme emotional distress. At 

trial the jury convicted him of murder, rejecting his arguments for 
STATE v. LAMBDIN

Opinion of the Court

2

special mitigation. Mr. Lambdin appealed his conviction of murder to 

the court of appeals, arguing that the district court’s jury instructions 

concerning extreme emotional distress were in error. The court of 

appeals affirmed the conviction. We granted certiorari to review the 

court of appeals’ decision, and affirm. 

BACKGROUND

¶2 Mr. Lambdin married the victim in 2000. Throughout the 

marriage, the victim had a drinking and gambling problem, which 

caused distress to Mr. Lambdin. In June 2009, she asked Mr. Lambdin 

for a divorce. Later, Mr. Lambdin found romantic messages on the 

victim’s cell phone from another man, and around the same time, the 

victim informed Mr. Lambdin that she was pregnant with another 

man’s child. Mr. Lambdin told a co-worker of his wife’s infidelity and 

his distress, and the co-worker requested that the police conduct a 

welfare check at Mr. Lambdin’s home because she was concerned for 

his safety. The police visited Mr. Lambdin and found that he had a 

very calm demeanor despite having just discussed the pregnancy with 

the victim. He told police that the affair “doesn’t really matter. It’s 

over. I’m past it now. It is time to move on.” 

¶3 The couple continued to discuss divorce off and on for roughly 

two months, with Mr. Lambdin trying to convince the victim to stay in 

the marriage. On the evening of August 16, 2009, Mr. Lambdin and the 

victim again argued over whether they should divorce. After the 

argument, Mr. Lambdin made the victim coffee, and she then left their 

home to work a night shift at her job. 

¶4 Mr. Lambdin stayed up most of the night. Around midnight, 

Mr. Lambdin wrote two letters. The first letter, written in the past 

tense, explained that he had killed the victim and committed suicide. 

This letter also gave explanations for why he planned to do it, 

including the statement that, “she deserves what she got and I won’t be 

around to suffer anymore.” The second letter, apparently written to a 

neighbor, said “I couldn’t take this shit any longer. I had to do this and 

I’m glad I did. It serves her right for all she has done to me.” 

¶5 Mr. Lambdin printed a copy of these two letters and left them 

on his computer desk. About seven hours after the letters were written, 

the victim came home from work. Mr. Lambdin met her in the kitchen 

and began discussing divorce again. He said, “do we really have to go 

through all of this stuff” and “lose everything that we got.” The victim 

responded by telling him “you’re crazy,” and that he needed to move 
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Opinion of the Court

3

out. At this point, Mr. Lambdin told police that he “just lost it.”1 He 

explained to the police that, “[a]ll I wanted was some resolve with her, 

to get back what I’ve given her for the last 91⁄2 years. The love and the 

affection. And she just talked to me like I was a stranger. A piece of 

shit. Insults me.” 

¶6 Mr. Lambdin punched the victim “about four or five times,” 

and then threw her to the floor. Then he grabbed the biggest kitchen 

knife he could find and began stabbing her. After he stabbed her the 

first time, the victim screamed, “okay!” But Mr. Lambdin responded 

“it’s too late,” and you “get what you deserve.” He continued to stab 

the victim at least fifteen times in the back and neck while she was 

screaming. After repeatedly stabbing the victim, he noticed that she 

was still moving. Mr. Lambdin told police that he “didn’t want to stab 

her anymore” and that he “didn’t want her to suffer.” So, Mr. Lambdin 

grabbed a “big decorated ball” and “smashed her in the back of the 

head with it three times,” until she stopped moving. The victim died in 

the attack. 

¶7 According to Mr. Lambdin’s statement to the police, he went 

out onto his deck and smoked a cigarette after killing the victim. He 

then went to Home Depot to buy some rope with which to hang 

himself. He came home and tied the rope to an attic beam and began 

drinking heavily “to get the balls to” commit suicide. While drinking, 

he messaged a friend telling her what he had done. The friend called 

the police, who arrived at the scene shortly thereafter. 

¶8 During the attack, Mr. Lambdin had cut his hand on the 

kitchen knife, and EMTs transported him to a hospital for treatment. 

On the way to the hospital, Mr. Lambdin informed the EMTs that “he 

had stabbed his wife” and “that when she continued to move he 

grabbed a glass globe and bashed her head.” He told the EMTs 

multiple times that “the bitch got what she deserved.” Mr. Lambdin 

continued to make similar comments to hospital staff. He made the 

comment that “he couldn’t take it anymore,” and that he had killed his 

wife. When asked how he had cut his hand, he “just laughed about it 

and said, ‘I killed that woman. I stabbed her. She got what she 

deserved.’”

¶9 The police officer who responded to the incident testified that, 

immediately after he arrived on the scene, during the ambulance ride, 

and at the hospital, Mr. Lambdin displayed a wide spectrum of 

1 Mr. Lambdin’s statements are taken from a police interview

conducted shortly after he killed the victim.
STATE v. LAMBDIN

Opinion of the Court

4

emotions, from laughing about the attack and seeming very excited to 

becoming very angry. The officer testified that Mr. Lambdin seemed to 

have an, “oh, my gosh . . . what did I just do,” attitude, but that he did 

not cry. 

¶10 The State charged Mr. Lambdin with murder. Mr. Lambdin 

sought to reduce the level of his offense to manslaughter by proving 

special mitigation by extreme emotional distress. The district court 

proposed its own jury instructions; Mr. Lambdin objected to the 

instructions concerning special mitigation, but the court overruled his 

objections. The jury convicted Mr. Lambdin of murder, unanimously 

finding that he had failed to establish special mitigation by extreme 

emotional distress. Mr. Lambdin appealed, and the court of appeals 

affirmed the district court’s jury instructions. We granted certiorari to 

review the court of appeals.

STANDARD OF REVIEW

¶11 “On certiorari, we review the decision of the court of appeals 

for correctness, without deference to its conclusions of law.” State v. 

Smith, 2014 UT 33, ¶ 9, 344 P.3d 573 (citation omitted). Also, “we 

review a court’s ruling on a proposed jury instruction for correctness.” 

State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892.

ANALYSIS

¶12 Utah Code section 76-5-205.5 governs special mitigation in 

criminal homicide cases. Special mitigation allows a defendant charged 

with criminal homicide to reduce the level of the offense. UTAH CODE

§ 76-5-205.5(5). Extreme emotional distress is one category of special 

mitigation. Id. § 76-5-205.5(1)(b). If a jury “finds the elements [of 

murder] are proven beyond a reasonable doubt” by the State, and the 

jury unanimously finds the elements of extreme emotional distress are 

“established by a preponderance of the evidence” by the defendant, the 

jury must reduce the verdict from murder to manslaughter. Id. § 76-5-

205.5(5)(a). 

¶13 Extreme emotional distress is established by proving 1) the 

defendant “cause[d] the death of another,” 2) “under the influence of 

extreme emotional distress,” 3) “for which there is a reasonable 

explanation or excuse.” Id. § 76-5-205.5(1). The statute provides further 

guidance on the second and third elements. Under the second element, 

extreme emotional distress does not include “a condition resulting 

from mental illness as defined in Section 76-2-305” or “distress that is 

substantially caused by the defendant’s own conduct.” Id. § 76-5-

205.5(3). Under the third element, the “reasonableness of an

explanation or excuse” for the extreme emotional distress “shall be 

determined from the viewpoint of a reasonable person under the then 
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Opinion of the Court

5

existing circumstances.” Id. § 76-5-205.5(4). There is no further statutory 

definition or explanation of the term “extreme emotional distress.”

¶14 Mr. Lambdin argues that our definition of extreme emotional 

distress in State v. Bishop, 753 P.2d 439 (Utah 1988), overruled on other 

grounds by State v. Menzies, 889 P.2d 393 (Utah 1994), is dicta and that “it 

was error to turn that dictum into affirmative statements of the law” 

that were used to provide the language for the jury instructions in this 

case. He next argues that this court’s precedent, and the court of 

appeals in this case, was incorrect in holding that special mitigation by 

extreme emotional distress requires a jury to look at “the 

reasonableness of the [defendant’s] loss of [self-]control.” State v. 

Lambdin, 2015 UT App 176, ¶ 12, 356 P.3d 165. Finally, he argues that 

the jury instructions in this case were incorrect and prejudiced his 

verdict. We address each of these arguments.

I. BISHOP’S DEFINITION OF EXTREME

EMOTIONAL DISTRESS IS ACCURATE

¶15 In State v. Bishop, this court defined “extreme emotional 

disturbance” in connection with the statutory defense to the crime of 

murder.2 753 P.2d 439, 467–72 (Utah 1988), overruled on other grounds by 

State v. Menzies, 889 P.2d 393 (Utah 1994). In that case, we stated that a 

person suffers from extreme emotional distress:

(1) when he has no mental illness as defined in section 

76–2–305 (insanity or diminished capacity); and 

(2) when he is exposed to extremely unusual and 

overwhelming stress; and

2 Bishop analyzed an older version of the criminal code. Under that 

version, extreme emotional disturbance was a defense that 

downgraded murder to manslaughter. See UTAH CODE § 76-5-205(1) 

(1985) (“Criminal homicide constitutes manslaughter if the actor . . . 

[c]auses the death of another under the influence of extreme emotional 

disturbance for which there is a reasonable explanation or excuse.”). 

Over the years, the legislature has made various changes to the law, 

but the core provisions have remained substantially the same. Infra 

¶ 28 n.4. Mr. Lambdin does not argue that the change in language from 

“disturbance” to “distress” should alter Bishop’s definition, and we see 

no reason why it should. Thus, we use extreme emotional disturbance 

and extreme emotional distress interchangeably. See State v. Shumway, 

2002 UT 124, ¶¶ 8–13, 63 P.3d 94 (using “disturbance” and “distress” 

interchangeably).
STATE v. LAMBDIN

Opinion of the Court

6

(3) when the average reasonable person under that stress 

would have an extreme emotional reaction to it, as a 

result of which he would experience a loss of self-control 

and that person’s reason would be overborne by intense 

feelings, such as passion, anger, distress, grief, excessive 

agitation, or other similar emotions. 

Id. at 471.

¶16 Mr. Lambdin argues that Utah Code section 76-5-205.5 “sets 

forth all the elements jurors need to know to understand and apply the 

law,” and therefore “there is no need for a court to define [extreme 

emotional distress] beyond” what is listed in the statute. He argues that 

we should abandon our definition of extreme emotional distress 

because the term has an ordinary, non-technical meaning accessible to 

jurors, and because our definition of that term in Bishop is “pure dicta.” 

¶17 Mr. Lambdin cites State v. Couch for the proposition that “[i]t is 

normally unnecessary and undesirable for a trial judge to volunteer 

definitions of terms of common usage for the jury.” 635 P.2d 89, 94 

(Utah 1981). Mr. Lambdin argues that extreme emotional distress has 

an ordinary, dictionary meaning, and therefore we should not have 

defined it in Bishop because our definition could be used at some future 

point by a district court in its jury instructions. This proposition is 

completely at odds with our implied constitutional authority to 

interpret the law in order to address the merits of cases before us. See 

UTAH CONST. art. VIII, § 1 (“The judicial power of the state shall be 

vested in a Supreme Court . . . .”); id. art. VIII, § 3 (“The Supreme Court 

shall have . . . power to issue all . . . orders necessary for . . . the 

complete determination of any cause.”); State v. Walker, 2011 UT 53, 

¶ 31, 267 P.3d 210 (Lee, J., concurring) (“[T]he role of modern judges is 

to interpret the law . . . and then to apply it to the facts of the cases that 

come before them. The process of interpretation, moreover, involves 

. . . a determination of what the law is as handed down by the 

legislature . . . .” (footnote omitted)). 

¶18 When this court applies a statute to a given case, it is often 

necessary to interpret the statute to determine the proper outcome. See 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is 

emphatically the province and duty of the judicial department to say 

what the law is. Those who apply the rule to particular cases, must of 

necessity expound and interpret that rule.”). When interpreting a 

statute in order to apply it to the facts of a case, our primary goal is to 

determine the intent of the legislature. See Walker, 2011 UT 53, ¶ 31 

(Lee, J. concurring) (“The judge . . . is not a primary lawgiver but 

instead an agent for the legislature . . . .”); Monarrez v. Utah Dep’t of 

Transp., 2016 UT 10, ¶ 11, 368 P.3d 846 (“When interpreting a statute, it 
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Opinion of the Court

7

is axiomatic that this court’s primary goal ‘is to give effect to the 

legislature’s intent in light of the purpose that the statute was meant to 

achieve.’” (citations omitted)). 

¶19 Because we are merely determining the legislature’s intent 

when we interpret a statute, our interpretation does not create new 

law, it says what the law is. Additionally, jury instructions are intended 

to inform jurors of the applicable law. State v. Powell, 2007 UT 9, ¶ 11, 

154 P.3d 788 (“[J]ury instructions are statements of the law . . . .”

(citation omitted)). Thus, there is no error when a district court 

includes our interpretation of a statutory term in instructions for the 

jury, because that interpretation is simply a statement of the law. UTAH 

R. CRIM. P. 19(a) (“[T]he court may instruct the jury concerning . . . the 

definition of terms.”). 

¶20 In Bishop, this court was called upon to define extreme 

emotional disturbance. The fact that there may be an ordinary meaning 

of extreme emotional disturbance does not affect this court’s authority 

to determine if the ordinary meaning is the meaning that the legislature 

intended. We therefore reject Mr. Lambdin’s argument that it is 

improper for this court to adopt any definition of extreme emotional 

distress.

¶21 We likewise reject Mr. Lambdin’s request to abandon Bishop’s

definition of extreme emotional distress as “pure dicta.” Whether or 

not it was dicta in Bishop,3 the definition has been used many times by 

this court since Bishop was issued. See, e.g., State v. White, 2011 UT 21, 

¶¶ 26–27, 251 P.3d 820; State v. Spillers, 2007 UT 13, ¶ 14, 152 P.3d 315,

abrogated on other grounds by State v. Reece, 2015 UT 45, 349 P.3d 712; 

State v. Shumway, 2002 UT 124, ¶ 9, 63 P.3d 94; State v. Standiford, 769 

P.2d 254, 259–60 (Utah 1988). Mr. Lambdin does not argue that we 

should overrule any of this precedent, which has clearly established the 

Bishop interpretation as controlling.

3 The reference to “dicta” in Bishop comes from a concurring 

opinion. 753 P.2d at 491 (Durham, J., concurring). The reference was 

not directed at the interpretation of extreme emotional disturbance. 

Rather the concurrence argued that the court should not have reached 

the problem of such an interpretation at all because the jury had found 

all of the elements of the greater offense in that case, rendering the 

lesser included (manslaughter) offense analysis moot. Neither the lead 

opinion nor either of the other two concurring opinions agreed with 

this argument.
STATE v. LAMBDIN

Opinion of the Court

8

¶22 Furthermore, the Bishop definition closely tracks the plain 

meaning of extreme emotional distress. When interpreting statutes, we 

look to the ordinary meaning of the words, using the dictionary as our 

starting point. State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517. After 

determining our starting point, we then must look to the “context of 

the language in question.” Olsen v. Eagle Mountain City, 2011 UT 10, 

¶ 9, 248 P.3d 465. 

¶23 Here, “extreme” is defined as “very serious or severe.” 

MERRIAM-WEBSTER ONLINE, http://www.merriam-webster.com (last 

visited Aug. 7, 2017). “Emotion” is defined as “a conscious mental 

reaction (such as anger or fear) subjectively experienced as strong 

feeling usually directed toward a specific object and typically 

accompanied by . . . behavioral changes.” Id. “Distress” is defined as 

“pain or suffering.” Id. Thus, the dictionary meaning of extreme 

emotional distress is a reaction in which the subject experiences very 

severe pain or suffering accompanied by strong feelings, such as anger, 

that is usually directed toward a specific person and typically 

accompanied by behavioral changes, such as a loss of self-control. This 

closely tracks our definition in Bishop. Additionally, the broad language 

in the ordinary meaning must be put into the context of the special 

mitigation statute that allows a criminal defendant to be convicted of 

the lesser crime of manslaughter. Given this context, the Bishop

definition is the best formulation of what constitutes extreme 

emotional distress when one person kills another. 

¶24 We hold that Mr. Lambdin has failed to meet his burden of 

overruling the definition of extreme emotional distress in Bishop. We 

now determine whether that definition requires the defendant to show 

that his loss of self-control was reasonable.

II. EXTREME EMOTIONAL DISTRESS REQUIRES A SHOWING

THAT A REASONABLE PERSON WOULD LOSE SELF-CONTROL

¶25 Mr. Lambdin argues that even if we maintain Bishop’s 

definition of extreme emotional distress, our opinion in White 

impermissibly extended Bishop’s definition by requiring defendants to 

prove that their loss of self-control was reasonable. In White, we stated 

that “a person acts under the influence of extreme emotional distress 

when ‘he is exposed to extremely unusual and overwhelming stress’

that would cause the average reasonable person under the same 

circumstances to ‘experience a loss of self-control.’” State v. White, 2011 UT 

21, ¶ 26, 251 P.3d 820 (emphasis added) (quoting State v. Bishop, 753 

P.2d 439, 471 (Utah 1988), overruled on other grounds by State v. Menzies, 

889 P.2d 393 (Utah 1994)). Mr. Lambdin argues that this framing of 

Bishop’s definition “omits the critical step of an extreme reaction, ‘as a 

result of which he would experience a loss of self-control.’” 
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¶26 White’s formulation is not an extension of Bishop at all. It 

merely restates what was already required under Bishop. Bishop

requires defendants to prove that they were “exposed to extremely 

unusual and overwhelming stress,” and that “the average reasonable 

person under that stress would have an extreme emotional reaction to 

it, as a result of which he would experience a loss of self-control and 

that person’s reason would be overborne by intense feelings.” Bishop, 753 

P.2d at 471 (all but first emphasis added). When we say, “he,” and, 

“that person[],” we are discussing the average reasonable person 

referred to earlier. Thus, under Bishop, the defendant must prove that

the average reasonable person “would experience a loss of selfcontrol,” because the average reasonable person’s “reason would be 

overborne by intense feelings.”

¶27 Additionally, while we appreciate Mr. Lambdin’s detailed 

argument, we cannot see a difference between establishing that a 

reasonable person would have an extreme emotional reaction to stress 

that causes a loss of self-control, and establishing that the same 

reasonable person would lose self-control due to the overwhelming 

stress and the extreme emotional reaction. If a reasonable person 

would lose self-control because of the then-existing circumstances, it 

necessarily follows that the defendant’s loss of self-control must be 

reasonable. 

¶28 This is confirmed by the purpose behind special mitigation by 

extreme emotional distress. Since Utah’s special mitigation by extreme 

emotional distress statute “was modeled after section 210.3 of the 

Model Penal Code, the American Law Institute’s Commentaries . . . 

provide insight into the meaning of section 76–5–205 in 1973.”4 Bishop, 

4 In 1985, the legislature added that “emotional disturbance does not 

include a condition resulting from mental illness,” and that “[t]he 

reasonableness of an explanation or excuse . . . shall be determined 

from the viewpoint of a reasonable person under the then existing 

circumstances.” 1985 Utah Laws 436. In 1999, the legislature changed 

“disturbance” to “distress,” moved the defense to another section of 

the code, made extreme emotional distress an affirmative defense 

rather than a defense to criminal homicide, and added the requirement 

that the distress not be “substantially caused by the defendant’s own 

conduct.” 1999 Utah Laws 318–19. In 2009, the legislature classified 

extreme emotional distress as special mitigation rather than an 

affirmative defense. 2009 Utah Laws 1030-32.

Even though the legislature moved extreme emotional distress 

around the criminal code, changed it from a defense to an affirmative 

(Continued. . .)
STATE v. LAMBDIN

Opinion of the Court

10

753 P.2d at 469. The comments provide that, “[i]n the end, the question 

[of extreme emotional distress] is whether the actor’s loss of selfcontrol can be understood in terms that arouse sympathy in the 

ordinary citizen.” MODEL PENAL CODE § 210.3 cmt. (5)(a) at 63 (AM.

LAW INST., Official Draft and Revised Comments 1980). This implies 

that reasonable jurors could picture themselves, or the hypothetical 

reasonable person, losing self-control under the then-existing 

circumstances and doing something they wouldn’t normally do when 

they are thinking and acting rationally. 

¶29 Even defense counsel at trial acknowledged this purpose. 

During closing arguments, she stated, 

when people are highly emotional or agitated they can 

lose control and they can do things that they normally 

wouldn’t do, things that they wouldn’t do when they are 

in full possession of themselves. And, really, that’s what 

this case is about, isn’t it, . . . things can happen when 

people are overwhelmed by emotion or agitation.

Defense counsel essentially argues that, under the then-existing 

circumstances, the average reasonable person’s self-control would be 

overcome by feelings such as anger, distress, or excessive agitation and 

 

(Continued. . .)

defense and then changed it again to special mitigation and narrowed 

its scope, none of these changes have so altered extreme emotional 

distress that the MPC comments are no longer informative about the 

original purpose in adopting extreme emotional distress. If anything, 

the legislature has made it more difficult to prove extreme emotional 

distress, but has left the core provisions largely intact. Compare UTAH 

CODE § 76-5-205(1) (1973) (“Criminal homicide constitutes 

manslaughter if the actor . . . [c]auses the death of another under the 

influence of extreme mental or emotional disturbance for which there 

is a reasonable explanation or excuse.”), with id. § 76-5-205.5(1) (2016) 

(“Special mitigation exists when the actor causes the death of another 

. . . under the influence of extreme emotional distress for which there is 

a reasonable explanation or excuse.”). Mr. Lambdin argues that the 

legislature intended to “substantially enlarge[] the class of cases” 

available in extreme emotional distress from the more narrow common 

law heat of passion defense—a fact that we have acknowledged. White,

2011 UT 21, ¶ 29 (alteration in original) (citation omitted). However, he 

has not provided any reason as to why these changes should alter our 

consideration of the MPC comments in determining the legislative 

intent behind the core provisions.
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Opinion of the Court

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that once the reasonable person loses self-control, they could do 

something they wouldn’t normally do— like kill their spouse.

¶30 Additionally, as defense counsel’s argument shows, the 

extreme emotional reaction and the loss of self-control are so 

intertwined that it is nearly impossible to separate the two. While we

have held that the external triggering event and the extreme emotional 

reaction do not need to be contemporaneous, White, 2011 UT 21, ¶ 32,

the extreme emotional reaction and the loss of self-control must be 

contemporaneous. Indeed, if the loss of self-control does not occur 

while the defendant is experiencing the extreme emotional reaction, 

then the loss of self-control is not caused by the extreme emotional 

reaction and special mitigation is not appropriate. Requiring a lay jury 

to untangle this will only lead to confusion.

¶31 Mr. Lambdin also argues that requiring a defendant to prove 

his loss of self-control was reasonable impermissibly adds another 

element to extreme emotional distress. He argues that courts are “not 

to infer substantive terms into the text” of a statute, Berrett v. Purser & 

Edwards, 876 P.2d 367, 370 (Utah 1994), and that “courts may not 

denounce and punish as crimes acts and omissions not made 

punishable by statute, for it is a legislative power to declare acts as 

crimes,” State v. Gallion, 572 P.2d 683, 688 (Utah 1977). However, as 

discussed above, this court has the authority to interpret the law and to 

determine what the legislature meant when it used specific terms. 

Supra ¶¶ 17–19. There is a difference between interpreting a statute and 

adding terms to a statute. When we interpret a statute, we seek to 

determine the legislature’s intent in using the words that it chose to 

use. State v. Walker, 2011 UT 53, ¶ 31, 267 P.3d 210 (Lee, J., concurring)

(“The process of interpretation . . . involves . . . a determination of what 

the law is as handed down by the legislature . . . .”); State v. Rasabout, 

2015 UT 72, ¶ 10, 356 P.3d 1258 (“[W]hen construing a statute, we seek 

to give effect to the intent of the Legislature.”). Thus, we are not adding 

terms to the statute; we are merely interpreting what the legislature 

intended, and saying what the law as enacted by the legislature is. The 

plain meaning of extreme emotional distress leads us to conclude that 

the legislature intended the defendant to establish a reasonable 

explanation or excuse for the loss of self-control. 

¶32 Requiring a reasonable explanation or excuse for the extreme 

emotional distress creates an objective inquiry, rather than a subjective 

one.5 See UTAH CODE § 76-5-205.5(4) (“The reasonableness of an 

5 The Model Penal Code’s extreme emotional distress defense 

replaced our common law heat of passion defense in 1973. In 1975, the 

(Continued. . .)
STATE v. LAMBDIN

Opinion of the Court

12

explanation or excuse . . . shall be determined from the viewpoint of a 

reasonable person under the then existing circumstances.”). The 

defendant must have a reasonable explanation or excuse for the 

extreme emotional distress, and the loss of self-control is included in 

the definition of extreme emotional distress. Thus, the loss of selfcontrol must be measured from an objective, reasonable-person 

standard. Supra ¶ 15. We have not added any substantive terms to the 

statute; we have merely interpreted the statute according to its plain 

meaning in the context and purpose of the statute. 

¶33 We hold that the defendant must establish, by a 

preponderance of the evidence, that his loss of self-control was

reasonable and that the average person’s reason would have been

overcome by extremely unusual and overwhelming stress and extreme 

emotions. 

¶34 The State asks us to go one step further and hold that the 

killing itself must be reasonable. We decline the State’s invitation. 

While the State raises significant policy considerations, such an 

interpretation does not comport with the plain language of the statute. 

The statute requires a reasonable explanation or excuse only for the 

extreme emotional distress, not for any subsequent action taken by the 

defendant. See UTAH CODE § 76-5-205.5. While a loss of self-control is 

included in the definition of extreme emotional distress, it is too much 

of a stretch to include “killing” in that definition. 

¶35 Additionally, it is hard to imagine that the average reasonable 

person would ever kill someone, except in limited circumstances such 

as self-defense or war. Indeed, once the average reasonable person in 

the then-existing circumstances loses self-control, the person no longer 

acts reasonably. The reasonable person becomes the unreasonable or 

irrational person because “that person’s reason [is] overborne by 

intense feelings, such as passion, anger, distress, grief, excessive 

agitation, or other similar emotions.” Bishop, 753 P.2d at 471. Once the 

 

(Continued. . .)

legislature removed the requirement that the “reasonableness of [the] 

explanation or excuse” must be “determined from the viewpoint of a 

person in the actor’s situation under the circumstances as he believes 

them to be,” removing any subjective standard. Compare 1973 Utah 

Laws 608, with 1975 Utah Laws 148; see also Bishop, 753 P.2d at 470–71 

(“[T]he legislature intended in 1975 to do away with the subjective 

aspect of [extreme emotional distress]. . . . [The] defendant’s subjective 

mental state should be irrelevant in determining whether the 

explanation or excuse for the disturbance is reasonable.”).
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Opinion of the Court

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average reasonable person loses self-control, there could be a wide 

range of actions that the now unreasonable person might take, but the 

fact finder is not directed by the statute to evaluate the reasonableness 

of the action ultimately taken. 

¶36 That being said, there is no binary, on-off switch for selfcontrol. In general, a person does not have complete self-control until 

he reaches a certain level of stress and emotion, and then loses it 

entirely. Rather, the average person’s ability to exercise self-control is 

measured along a scale. “The phrase ‘loss of self-control’ . . . . is 

misleading,” because extreme emotional distress “interferes with, but 

does not completely destroy, an actor’s capacity to control conduct.” 

Mitchell N. Berman & Ian P. Farrell, Provocation Manslaughter As Partial 

Justification and Partial Excuse, 52 WM. & MARY L. REV. 1027, 1048 (2011). 

Extreme emotions make us “less able to respond in a legally and 

morally appropriate fashion.” Joshua Dressler, Rethinking Heat of 

Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY

421, 464 (1982). For instance, the average reasonable person’s selfcontrol may be impaired to the point where he might be expected to 

scream an obscenity at another driver during rush hour, but the 

average reasonable person’s self-control in that situation would not be 

so degraded as to cause him to assault or kill the other driver absent 

some “extremely unusual and overwhelming stress,” that is not 

typically found in rush hour traffic. Bishop, 753 P.2d at 471.

¶37 The amount of self-control a person exercises is tied to a 

variety of factors,6 but the legislature has allowed fact finders to 

6 Recent research into self-control indicates that

an individual’s self-control is a finite resource that can be 

used up by other cognitive demands and, furthermore, 

that an individual can get better at self-control over time. 

This work has compared the seeming paradox of selfcontrol to a muscle--that is, self-control grows weaker 

with use in the short term but stronger with use in the 

long term.

Rebecca Hollander-Blumoff, Crime, Punishment, and the Psychology of 

Self-Control, 61 EMORY L.J. 501, 504 (2012). Additionally, “research has 

suggested that it is not only self-control tasks, per se, that deplete selfregulatory strength. Engaging in conscious choices, engaging in selfcontrol over one’s emotional responses, undergoing stressful 

experiences, and being reminded of one’s mortality produced similar 

diminution in research subjects’ performance at other self-control 

(Continued. . .)
STATE v. LAMBDIN

Opinion of the Court

14

consider only the amount and type of stress the defendant was faced 

with and the “building emotional reaction” that the average reasonable 

person would experience in light of that stress. White, 2011 UT 21, ¶ 32. 

Thus, fact finders must determine at what point the average reasonable 

person’s self-control and ability to think rationally would be so 

overwhelmed by stress and emotions that special mitigation by 

extreme emotional distress is established.

¶38 The reasonableness of the explanation or excuse for the 

defendant’s loss of self-control must be read in the context of the 

statute, Rasabout, 2015 UT 72, ¶ 10, which reduces the convicted offense 

from aggravated murder to murder, or murder to manslaughter,7

UTAH CODE § 76-5-205.5(5)(b). The statute does not mitigate assault or 

any other criminal activity. Additionally, the statute requires the 

defendant to establish that a reasonable person would suffer from 

extreme emotional distress. The fact that the defendant must establish 

extreme emotional distress in the context of murder indicates a 

legislative intent that it must be shown that the average reasonable 

person would experience an overwhelming and substantial loss of selfcontrol. 

¶39 The purpose behind special mitigation by extreme emotional 

distress confirms this holding. As we stated in White, most “intentional 

homicides . . . [are] the result of strong emotions and stresses. 

Consequently, a distinction must be drawn so that this defense will 

only be applicable to those homicides which appropriately qualify 

under the underlying purpose of this mitigating defense.” 2011 UT 21, 

¶ 22 (citation omitted). Special mitigation by extreme emotional 

distress is an “‘indulgence of the frailty of human nature,’ recognizing 

that the [stress and emotions] in some cases may be so great as to 

warrant a penalty less than that prescribed for murder.” State v. Ross, 

501 P.2d 632, 635 (Utah 1972) (citations omitted). But this legislative 

indulgence goes only so far. It has not been extended to reduce murder 

to manslaughter simply because the average reasonable person might 

experience stress and anger in the circumstances, and consequently a 

heightened impairment to his decision making process and self-control. 

Rather, a reasonable person’s self-control and ability to make a rational 

choice must be overwhelmingly and substantially undermined. 

 

(Continued. . .)

tasks.” Id. at 539–540. In particular, “emotional distress is itself often a 

drain” on a person’s self-control. Id. at 540 (citation omitted).

7 The statute also allows for mitigation of attempted aggravated 

murder or attempted murder.
Cite as: 2017 UT 46

Opinion of the Court

15

Berman, supra ¶ 36, at 1048 (Extreme emotional distress “is a partial 

excuse because the actor’s choice-making capacities are so substantially 

undermined that it would be unfair to treat the actor as fully 

blameworthy . . . .”).

¶40 The defendant must prove that the type and amount of stress 

would cause the average reasonable person’s rationality to be 

overwhelmingly and substantially “overborne by intense feelings, such 

as passion, anger, distress, grief, excessive agitation, or other similar 

emotions.” Bishop, 753 P.2d at 471. While the average reasonable 

person may experience anger or other emotions in the face of large 

amounts of stress, the stress and emotion must be extreme, indicating 

that the connected impaired reasoning and loss of self-control must be 

overwhelming and substantial.

III. THE JURY INSTRUCTIONS WERE LEGALLY SUFFICIENT

¶41 When reviewing jury instructions, “we look at the jury 

instructions ‘in their entirety and will affirm when the instructions 

taken as a whole fairly instruct the jury on the law applicable to the 

case.’” State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (citation 

omitted). “Thus, a trial court does not err by refusing a proposed 

instruction ‘if the point is properly covered in other instructions.’” Id. 

(citation omitted).

¶42 Seven instructions relating to extreme emotional distress were 

presented to the jury in this case. Mr. Lambdin challenges only three of 

them: jury instructions 19, 20, and 21. Jury instruction 20 states,

Although a building emotional reaction to a series of 

events may contribute to extreme emotional distress, an 

external triggering event is also required. However, the 

triggering event need not be contemporaneous with the 

Defendant’s loss of self-control.

(Emphasis added).

¶43 Mr. Lambdin argues that this instruction implies that the 

defendant’s loss of self-control must be reasonable by conflating the 

extreme emotional reaction and the loss of self-control. As the 

defendant must establish that the loss of self-control was reasonable, 

there is no deficiency with this instruction. 

¶44 Jury instruction 19 states, 

Criminal homicide constitutes manslaughter if the 

defendant commits murder, but Special Mitigation is 

established. Special Mitigation generally involves a factor 

or set of factors that make a person less blameworthy for 

a criminal act. Special Mitigation exist[s] when a person 
STATE v. LAMBDIN

Opinion of the Court

16

causes the death of another under the influence of 

extreme emotional distress for which there was a 

reasonable explanation or excuse. In this case, the 

defendant asserts that Special Mitigation exists because 

he caused the death of another under the influence of 

extreme emotional distress for which there was a 

reasonable explanation or excuse.

A person acts under the influence of extreme 

emotional distress when he is exposed to extremely 

unusual and overwhelming stress that would cause the 

average reasonable person in similar circumstances to 

experience a loss of self-control and be overborne by 

intense feelings such as passion, anger, distress, grief, 

excessive agitation, or other like emotions. The standard is 

not whether the defendant subjectively thought his reaction was 

reasonable. Rather, it is an objective standard, determined from 

the viewpoint of a reasonable person faced with the thenexisting circumstances. 

(Emphasis added). Mr. Lambdin concedes that the first half of jury 

instruction 19 is an accurate depiction of the law. He argues that the 

emphasized portion of this instruction could confuse a jury into 

thinking that the reaction that must be reasonable is the act of killing 

itself, rather than the emotional reaction or the loss of self-control. 

While the instruction does not explicitly state that the reaction referred 

to is the emotional reaction and loss of self-control, only emotional 

reactions and loss of self-control are referenced in the entire paragraph 

in question. The dissent attempts to read not merely this instruction, 

but rather one sentence of this instruction in isolation. The sentence 

referencing the defendant’s “reaction” is clearly tied to the preceding 

sentence, which discusses the defendant’s loss of self-control in the face 

of “unusual and overwhelming stress.” Thus, the meaning of 

“reaction” in the penultimate sentence seems quite clear.

¶45 Additionally, the “reaction” meant by instruction 19 was 

clarified by instruction 21, which provides, 

In examining the reasonableness of the explanation or 

excuse offered by the defendant you should consider all 

the then-existing circumstances. “Then-existing 

circumstances” include more than just the triggering 

event. The phrase refers to the broader context of past 

experiences and emotions that give meaning to the 

defendant’s reaction, that is to say, to the defendant’s loss of 

self control.”
Cite as: 2017 UT 46

Opinion of the Court

17

(Emphasis added). As the emphasized portion of this instruction 

clarifies, the reaction that the jury must conclude was reasonable, given 

the then-existing circumstances, is the loss of self-control, not the 

killing.

¶46 The dissent does not agree that instruction 21 clarifies the 

reaction referenced in instruction 19. They reason that instruction 19 is 

ambiguous as to what “reaction” it is referencing, saying that “it is 

certainly possible, and perhaps even likely, that a juror would 

understand reaction to mean not the loss of self-control, but the killing 

itself.” Infra ¶ 59. While instruction 19 does not specifically mention 

that the reaction is the loss of self-control, it also does not specifically 

state that the reaction is the killing. Even if the dissent is correct and 

instruction 19 is ambiguous, something more than a possibility that a 

jury could be confused by an instruction is required to grant a new 

trial. State v. Brooks, 638 P.2d 537, 542 (Utah 1981) (“[T]he fact that one 

or more of the instructions, standing alone, are not as full or accurate as 

they might have been is not reversible error.”).8 

¶47 An in depth reading of almost any set of jury instructions in a 

complex case is likely to turn up some ambiguity in an individual 

instruction. If pointing to an ambiguity in an individual instruction 

8 To be granted a new trial, other courts require more than just a 

showing that an instruction is ambiguous and that it could have 

possibly confused the jurors. See, e.g., Boyde v. California, 494 U.S. 370, 

380 (1990) (holding that an “ambiguous” jury instruction is insufficient 

only if “there is a reasonable likelihood that the jury has applied the 

challenged instruction” incorrectly); State v. Sivo, 925 A.2d 901, 913 (R.I. 

2007) (“[A]n erroneous charge warrants reversal only if it can be shown 

that the jury ‘could have been misled’ to the resultant prejudice of the 

complaining party.” (citations omitted)); State v. Mann, 394 P.3d 79, 83 

(Idaho 2017) (“Reversible error occurs if an instruction misleads the 

jury or prejudices a party.” (citation omitted)); State v. Daniel W. E., 142 

A.3d 265, 275 (Conn. 2016) (stating that “we examine the [trial] court’s 

entire charge to determine whether it is reasonably [probable] that the 

jury could have been misled” (alterations in original) (citation 

omitted)); State v. Lackman, 395 P.3d 477, 480 (Mont. 2017) 

(“[R]eversible error occurs only if the instructions prejudicially affect a 

defendant’s substantial rights.”); People v. Tyler, 47 N.Y.S.3d 187, 189

(N.Y. App. Div. 2017) (“Reversal is appropriate . . . when the charge, 

‘read . . . as a whole . . .’ likely confused the jury regarding the correct 

rules to be applied in arriving at a decision.” (second alteration in 

original) (citation omitted)).
STATE v. LAMBDIN

Opinion of the Court

18

were enough, almost no set of instructions would survive. Individual 

instructions must be viewed along a spectrum. When an instruction 

completely misstates a legal standard, there is little chance that other 

instructions, read as a whole, will remedy the juror confusion that is 

likely to ensue. That did not happen here. Instruction 19 simply left out 

a specific reference to the “reaction” it was referencing. When an 

instruction is simply ambiguous, other instructions may have a greater 

impact on the jury’s understanding. Instruction 21 more than 

adequately addresses any juror confusion that could have arisen under 

instruction 19.9 Unless the instructions, read as a whole, create a 

reasonable likelihood that the jurors were misled or confused as to the 

correct legal standard, a new trial is not appropriate.10 Nothing in 

instruction 19, when read in conjunction with instruction 21, creates 

such a reasonable likelihood. 

¶48 Additionally, defense counsel’s closing argument clarified this 

for the jury. Defense counsel stated that,

[The instructions are] instructing you [the jury] to look 

toward the meaning and the reasons for the defendant’s 

loss of self-control, and to assess the reasonableness of 

that, the loss of self-control, and not the killing. [The 

9 The dissent argues that “there is nothing in either instruction that 

would alert the jury that the reaction referred to in instruction 21 was 

the same reaction referred to in instruction 19,” and therefore the 

“jurors were left on their own to connect the reaction in instruction 21 

with the reaction in instruction 19.” Infra ¶ 62. But instruction 19 

discusses how a reasonable person would lose self-control under 

similar, stressful circumstances. It then goes on to mention the 

“reaction,” clearly referencing the loss of self-control in the face of the

overwhelming stress. Instruction 21 discusses the “reaction,” meaning 

“the defendant’s loss of self control.” It is difficult to see how a 

reasonable juror would not make this connection, given that there is 

only one “reaction” discussed in this portion of the jury instructions, 

and both are surrounded by discussions of the loss of self-control.

10 The dissent argues that requiring a defendant to show a 

reasonable likelihood that the jury was misled or confused “sets a 

dangerously high standard.” Infra ¶ 65. On the contrary, our standard 

appears to comport with those applied in other jurisdictions. See supra 

¶ 46 n.8.
Cite as: 2017 UT 46

Opinion of the Court

19

instructions are] not asking you to find that a reasonable 

person would absolutely have committed this killing, but 

that a reasonable person would have experienced a loss 

of self-control. And some people would do different 

things when they lose self-control . . . . So what you are 

looking to is the defendant’s loss of self-control and the 

explanation for that and the reasonableness of that, and 

not trying to get to the point of saying, oh, yes, a killing is 

reasonable, because, of course, a killing is never 

reasonable. 

The language of the instruction and of defense counsel’s arguments 

make it abundantly clear that the loss of self-control is what must be 

reasonable, not the murder. 

¶49 We note that the distinction between a reasonable loss of selfcontrol and a reasonable murder is not easily made. In this case, the 

district court rejected defendant’s proposed jury instruction that made 

it clear that the killing need not be reasonable. While the jury 

instructions adopted by the district court here were legally sufficient, 

we note that defendant’s proposed instruction was also proper and the 

best practice would be to provide explicit instructions to juries to 

inform them of this nuanced distinction. We provide the following 

language as an example:

The defendant needs to prove only that an average 

reasonable person would have an extreme emotional 

reaction to the stress and that the same average 

reasonable person would experience an overwhelming 

and substantial loss of self-control in light of the stress 

and the emotional reaction. The defendant does not need 

to prove that the killing was reasonable because once a 

reasonable person has lost self-control, he is no longer 

acting reasonably. 

¶50 While we provide this language as an example, we note that 

jury instructions cannot be viewed in isolation. Rather, they must be 

read together as a whole to determine if the jury has been adequately 

instructed on special mitigation by extreme emotional distress. See 

Maestas, 2012 UT 46, ¶ 148.

¶51 This instruction alone does not guarantee that the jury 

instructions, taken as a whole, are accurate. It is provided only to assist 

trial courts with crafting or adopting an instruction that adequately 

informs the jury that the defendant must prove he has a reasonable 

explanation or excuse for the emotional reaction and loss of selfcontrol, but not for the subsequent killing. 
STATE v. LAMBDIN

Opinion of the Court

20

¶52 Jury instructions explaining the “reasonable explanation or 

excuse” requirement should avoid ambiguity as to what the reasonable 

explanation is addressing. If one instruction strongly implies the killing 

must be reasonable, this additional jury instruction may not be 

sufficient to remedy the misstatement. State v. Campos, 2013 UT App 

213, ¶ 64, 309 P.3d 1160 (“[W]here instructions are in irreconcilable 

conflict, or so conflicting as to confuse or mislead the jury, the rule 

requiring instructions to be read together [as a whole] has no 

application.” (citation omitted)).

¶53 Finally, because the jury instructions in this case are legally 

sufficient and accurately describe the law, we do not address 

Mr. Lambdin’s arguments for prejudice.

CONCLUSION

¶54 We hold that a criminal defendant who seeks to establish 

special mitigation by extreme emotional distress must prove that his 

loss of self-control is reasonable. Based on this, we hold that the jury 

instructions in this case were an adequate depiction of the law. We 

affirm the court of appeals.
Cite as: 2017 UT 46

CHIEF JUSTICE DURRANT, dissenting

21

CHIEF JUSTICE DURRANT, dissenting:

¶55 I respectfully dissent from the majority’s conclusion that the 

jury instructions in this case were legally sufficient. Even when 

examined “in their entirety,” they failed to accurately “instruct the jury 

on the law applicable to the case.”1 Specifically, jury instruction 19 

introduced an ambiguity that was not remedied by later instructions or 

by closing arguments.

¶56 A criminal defendant “is entitled to have the jury instructed 

fully and clearly on the law” that supports his theory of the case.2 And 

while we have held that a misleading or erroneous jury instruction is 

harmless if “we are not convinced that without this instruction the jury 

would have reached a different result,”3 that is not the case here. The 

ambiguity in jury instruction 19 “create[d] a reasonable likelihood that 

the jurors were misled or confused as to the correct legal standard,”4

even when the jury instructions are read as a whole. The defendant 

confessed to killing the victim. The only issue for the jury to decide was 

whether special mitigation applied. Jury instruction 19, explaining the 

special mitigation of extreme emotional distress, went to the very heart 

of the defendant’s theory of the case. Without a full and clear statement 

of the law of special mitigation by extreme emotional distress, there is 

an obvious risk that the jury reached its verdict based on a 

misunderstanding of the law.

¶57 Jury instruction 19 stated as follows:

Criminal homicide constitutes manslaughter if the 

defendant commits murder, but Special Mitigation is 

established. Special Mitigation generally involves a 

factor or set of factors that make a person less 

blameworthy for a criminal act. Special Mitigation 

exist[s] when a person causes the death of another under 

the influence of extreme emotional distress for which 

there was a reasonable explanation or excuse. In this 

case, the defendant asserts that Special Mitigation exists 

1 State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (citation omitted).

2 State v. Castillo, 457 P.2d 618, 620 (Utah 1969) (emphasis added); see 

also State v. Harding, 635 P.2d 33, 34 (Utah 1981) (extending Castillo’s 

analysis of jury instructions on the theory of self-defense to other 

defense theories).

3 Green v. Louder, 2001 UT 62, ¶ 17, 29 P.3d 638.

4 Supra ¶ 47.
STATE v. LAMBDIN

CHIEF JUSTICE DURRANT, dissenting

22

because he caused the death of another under the 

influence of extreme emotional distress for which there 

was a reasonable explanation or excuse.

A person acts under the influence of extreme 

emotional distress when he is exposed to extremely 

unusual and overwhelming stress that would cause the 

average reasonable person in similar circumstances to 

experience a loss of self-control and be overborne by

intense feelings such as passion, anger, distress, grief, 

excessive agitation, or other like emotions. The standard 

is not whether the defendant subjectively thought his 

reaction was reasonable. Rather, it is an objective 

standard, determined from the viewpoint of a reasonable 

person faced with the then-existing circumstances.

(Emphasis added.) The first paragraph of instruction 19 accurately 

depicts the law. It tracks the special mitigation statute, which provides 

that in order for special mitigation to apply, the actor must “cause[] the 

death of another . . . under the influence of extreme emotional distress 

for which there is a reasonable explanation or excuse.”5

¶58 The second paragraph also begins with an accurate statement 

of the law, employing the definition of extreme emotion distress this 

court adopted in State v. Bishop.6 But the final two sentences introduce a 

significant ambiguity. After setting forth our Bishop definition (“[a]

person acts under the influence of extreme emotional distress when he 

is exposed to extremely unusual and overwhelming stress that would 

cause the average reasonable person in similar circumstances to 

experience a loss of self-control and be overborne by intense feelings”),

the instruction goes on to state that “[t]he standard is not whether the 

defendant subjectively thought his reaction was reasonable. Rather, it is an 

objective standard, determined from the viewpoint of a reasonable 

5 UTAH CODE § 76-5-205.5(1).

6 753 P.2d 439 (Utah 1988), overruled on other grounds by State v. 

Menzies, 889 P.2d 393 (Utah 1994). “In Bishop, . . . [w]e stated that a 

person acts under the influence of extreme emotional distress when ‘he 

is exposed to extremely unusual and overwhelming stress’ that would 

cause the average reasonable person under the same circumstances to 

‘experience a loss of self-control,’ and ‘be overborne by intense feelings, 

such as passion, anger, distress, grief, excessive agitation, or other 

similar emotions.’” State v. White, 2011 UT 21, ¶ 26, 251 P.3d 820 

(quoting Bishop, 753 P.2d at 471 ).
Cite as: 2017 UT 46

CHIEF JUSTICE DURRANT, dissenting

23

person faced with the then-existing circumstances.” (Emphasis added).

The jury is left to answer the question of what the relevant reaction 

was. Because this instruction did not fully and clearly define what is 

meant by reaction, the jury could conclude that the reaction was not the 

loss of self-control, but the act of killing.

¶59 The majority reasons that although “the instruction does not 

explicitly state that the reaction referred to is the emotional reaction 

and loss of self-control,” the meaning of reaction “seems quite clear” 

because “only emotional reactions and loss of self-control are 

referenced in the entire paragraph in question.”7 But the meaning of 

reaction is anything but clear. In fact, the “usual and ordinary 

meanings” of reaction—which the jury was instructed to employ8—

include “a response to some treatment, situation, or stimulus” and a 

“bodily response to or activity aroused by stimulus.”9 So it is certainly 

possible, and perhaps even likely, that a juror would understand 

reaction to mean not the loss of self-control, but the killing itself. 

¶60 This ambiguity is accentuated by its placement relative to the 

definition of extreme emotional distress. The majority states that “[t]he 

sentence referencing the defendant’s ‘reaction’ is clearly tied to the 

preceding sentence,”10 but there is no transition or other language that 

clearly ties these sentences together. There is no reference in either 

sentence that would indicate that reaction is the defendant’s loss of selfcontrol. The reference to his reaction follows the definition of extreme 

emotional distress. The progression of the events listed in the 

paragraph—from extreme emotional distress to the loss of self-control 

to the reaction—suggests that the reaction referred to is the culmination 

of that sequence of events, which was the murder. So a juror could 

easily interpret his reaction to refer to the defendant’s reaction to the 

extreme emotional distress—specifically, the act of killing his wife.

¶61 The majority argues that instruction 19 is not ambiguous, but it 

still attempts to shore up the meaning of reaction by pointing to another 

7 Supra ¶ 44.

8 Jury instruction 14 stated, “Unless these instructions give a 

definition, you should give all words their usual and ordinary 

meanings.” Jury instructions 29 and 30 defined terms relevant to the 

case, but did not define reaction. 

9 Reaction, MERRIAM-WEBSTER ONLINE, https://www.merriamwebster.com/dictionary/reaction (last visited July 20, 2017).

10 Supra ¶ 44.
STATE v. LAMBDIN

CHIEF JUSTICE DURRANT, dissenting

24

jury instruction, instruction 21, and to defense counsel’s closing 

argument. Neither instruction 21 nor the closing arguments was 

sufficient to cure instruction 19’s ambiguity.

¶62 Jury instruction 21 explained, “In examining the 

reasonableness of the explanation or excuse offered by the defendant 

you should consider all the then-existing circumstances. ‘Then-existing 

circumstances’ include more than just the triggering event. The phrase 

refers to the broader context of past experiences and emotions that give 

meaning to the defendant’s reaction, that is to say, to the defendant’s 

loss of self-control.” The majority concludes that “this instruction 

clarifies” that “the reaction that the jury must conclude was reasonable . 

. . is the loss of self-control, not the killing.”11 But instruction 21 is 

explicitly addressed to “the reasonableness of the explanation or excuse,” 

not the reasonableness of the reaction. (Emphasis added). So the jurors 

were left on their own to connect the reaction in instruction 21 with the 

reaction in instruction 19. Moreover, there is nothing in either 

instruction that would alert the jury that the reaction referred to in 

instruction 21 was the same reaction referred to in instruction 19. As the 

majority states, “[j]ury instructions explaining the ‘reasonable 

explanation or excuse’ requirement should avoid ambiguity as to what 

the reasonable explanation is addressing. If one instruction strongly 

implies the killing must be reasonable, this additional jury instruction 

may not be sufficient to remedy the misstatement.”12 Instruction 21 falls 

well short of clarifying the ambiguity in instruction 19.

¶63 Finally, the majority reasons that defense counsel’s closing 

argument was sufficient to clarify instruction 19. It is true that defense 

counsel correctly stated the law, but she did so without using the 

ambiguous term reaction. And I find it troubling to conclude that 

defense counsel’s closing argument could cure an ambiguous 

instruction where jurors were specifically instructed to rely on the jury 

instructions and not the closing arguments for statements of law.13

11 Supra ¶ 45.

12 Supra ¶ 52.

13 Instruction 3 read, “When the lawyers give their closing 

arguments, keep in mind that they are advocating their views of the 

case. What they say during their closing arguments is not evidence. If 

the lawyers say anything about the evidence that conflicts with what 

you remember, you are to rely on your memory of the evidence. If they 

say anything about the law that conflicts with these instructions, you 

are to rely on these instructions.”
Cite as: 2017 UT 46

CHIEF JUSTICE DURRANT, dissenting

25

¶64 Moreover, even accepting the proposition that closing 

arguments could clarify an ambiguous jury instruction as a general 

matter, they did not do so in this case. Here, while the jury did hear a 

correct description of the law by defense counsel, it also heard an 

incorrect description by the prosecutor in his rebuttal. There, the 

prosecutor conflated the loss of control with the killing. He first 

referenced “a complete loss of control that results in stabbing [one’s] 

spouse and beating them.” He then defined the loss of control in this 

case as “the stabbing and the beating.” So the last statement of the law 

the jury heard before it deliberated was a conflation of the loss of selfcontrol and the killing, which emphasized the ambiguous use of his 

reaction in instruction 19. The majority provides no explanation for why 

the jury would have relied upon defense counsel’s closing argument, 

while disregarding the prosecutor’s rebuttal.

¶65 The majority states that “[e]ven if . . . instruction 19 is 

ambiguous, something more than a possibility that a jury could be 

confused by an instruction is required to grant a new trial.”14 The 

majority sets a dangerously high standard. While it is true that “almost 

any set of jury instructions” will contain some ambiguity, an 

ambiguous jury instruction that significantly distorts a legal standard is 

on par with a jury instruction that “completely misstates a legal 

standard.”15 And that is what we have here. Instruction 19 did not 

“simply [leave] out a specific reference to the ‘reaction’ it was 

referencing,” as the majority states.16 It all but invited an incorrect 

application of the law by the jury—that it must find the killing itself 

reasonable and not simply the loss of self-control.

¶66 The majority correctly observes that “the distinction between a 

reasonable loss of self-control and a reasonable murder is not easily 

made.”17 While this distinction is not easily made, it must be clearly

made because for a defendant to prove that a murder was reasonable is 

an altogether different task than proving that a loss of control was 

reasonable. The majority agrees with this, highlighting the important 

difference between the loss of self-control and murder. After rejecting 

the State’s argument that the killing itself must be reasonable, the 

majority concludes that “it is hard to imagine that the average 

reasonable person would ever kill someone . . . . Indeed, once the 

14 Supra ¶ 46.

15 Supra ¶ 47.

16 Supra ¶ 47.

17 Supra ¶ 49.
STATE v. LAMBDIN

CHIEF JUSTICE DURRANT, dissenting

26

average reasonable person in the then existing circumstances loses selfcontrol, the person no longer acts reasonably.”18 To require proof that a 

murder was reasonable would effectively eliminate the defense of 

special mitigation by extreme emotional distress. Indeed, it seems 

highly unlikely that any jury would ever conclude that a murder was 

reasonable.

¶67 Yet, instruction 19’s ambiguous reference to his reaction created 

a very real possibility that the jury believed its charge was to determine 

whether the murder was reasonable. The defendant was entitled to a 

clear instruction on special mitigation by extreme emotional distress—

in fact, he proposed one that was rejected by the court. This instruction 

went to the heart of his theory of the case. Even though he committed a 

horrific act, he is nevertheless entitled to a fair trial, which includes a 

clear instruction on this key element of his defense. Because a clear 

instruction was lacking here, I would reverse.

18 Supra ¶ 35.