2015 UT App 176

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

DENNIS WAYNE LAMBDIN,

Defendant and Appellant.

Opinion

No. 20130521-CA

Filed July 16, 2015

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 091906736

Joanna E. Landau and McCaye Christianson, 

Attorneys for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and JOHN A. PEARCE concurred.

ROTH, Judge:

¶1 Dennis Wayne Lambdin appeals his conviction for 

murder. Lambdin contends that the trial court erroneously 

instructed the jury on the elements of special mitigation by

extreme emotional distress. Lambdin also argues that the State 

misstated the law when it described extreme emotional distress

to the jury. Finally, Lambdin asserts that he was prejudiced by 

the cumulative effect of those errors. We affirm.
State v. Lambdin

20130521-CA 2 2015 UT App 176

BACKGROUND

¶2 In August 2009, Lambdin killed his wife in their kitchen. 

Lambdin never denied that he killed her. Instead, he asserted

that his actions were the result of extreme emotional distress 

brought on by years of marital strife, his wife’s heavy drinking, 

her affair and resulting pregnancy, and her expressed intention

to divorce him. 

¶3 At Lambdin’s request, the trial court agreed to instruct the 

jury on the elements of special mitigation by extreme emotional 

distress. If Lambdin could prove extreme emotional distress by a 

preponderance of the evidence, the jury would be required to 

return a verdict of manslaughter instead of murder. See Utah 

Code Ann. § 76-5-205.5(5)(b)(iii) (LexisNexis 2012).1 Both 

Lambdin and the State proposed instructions on extreme 

emotional distress, but the court prepared and gave its own 

instructions to the jury.2In his closing statement, the prosecutor 

described extreme emotional distress consistent with the 

pertinent jury instructions. The jury convicted Lambdin of 

murder, unanimously finding by special verdict that Lambdin 

had not proven special mitigation by a preponderance of the 

evidence. Lambdin appeals. 

ISSUES AND STANDARDS OF REVIEW

¶4 Lambdin first argues that three of the trial court’s jury 

instructions contained ‚erroneous statements of Utah law on 

 

1. The relevant statutory provisions have not been amended 

since the time that Lambdin committed the crime. We therefore 

cite the current version of the Utah Code.

2. A previously assigned judge prepared the instructions given 

at trial.
State v. Lambdin

20130521-CA 3 2015 UT App 176

special mitigation by EED.‛ ‚*W+hether a jury instruction 

correctly states the law presents a question of law which we 

review for correctness.‛ State v. Weaver, 2005 UT 49, ¶ 6, 122 P.3d 

566 (citation and internal quotation marks omitted); see also State 

v. Stringham, 2001 UT App 13, ¶ 17, 17 P.3d 1153 (‚Failure to give 

requested jury instructions constitutes reversible error only if 

their omission tends to mislead the jury to the prejudice of the 

complaining party or insufficiently or erroneously advises the 

jury on the law.‛ (citation and internal quotation marks 

omitted)).

¶5 Second, Lambdin asserts that the prosecutor committed 

misconduct when he ‚mis-informed [the jury] on the law of 

special mitigation by EED‛ during closing argument. See State v. 

Akok, 2015 UT App 89, ¶ 11, 348 P.3d 377 (stating that a 

prosecutor may not ‚call to the attention of the jury a matter it 

would not be justified in considering in determining its verdict‛ 

(citation and internal quotation marks omitted)). We consider 

whether the prosecutor’s remarks departed from applicable law 

as a question of law.

3

 

3. As part of its argument on appeal, the State contends that 

Lambdin invited any error in the instructions and the 

prosecutor’s closing statement because Lambdin proposed a jury 

instruction that contained the same language as the given 

instructions. Lambdin, however, objected to the trial court’s 

instructions on the same grounds he asserts on appeal, and the 

trial court resolved Lambdin’s objections on the merits. See State 

v. Relyea, 2012 UT App 55, ¶ 23, 288 P.3d 278 (explaining that an 

issue is preserved for appeal if the issue was ‚presented to the 

trial court in such a way that the trial court ha[d] an opportunity 

to rule on that issue‛ (alteration in original) (citation and internal 

quotation marks omitted)). We likewise address Lambdin’s 

claims on the merits.
State v. Lambdin

20130521-CA 4 2015 UT App 176

ANALYSIS

I. Jury Instructions

¶6 Lambdin first contends that the trial court failed to 

correctly instruct the jury on the elements of special mitigation 

by extreme emotional distress. We conclude that the court’s 

instructions accurately described Utah law.

A. Special Mitigation by Extreme Emotional Distress

¶7 The Utah Legislature has determined that ‚*s+pecial 

mitigation exists‛ to reduce certain murder charges ‚when the 

actor causes the death of another . . . under the influence of 

extreme emotional distress for which there is a reasonable 

explanation or excuse.‛ Utah Code Ann. § 76-5-205.5(1)(b), (5)

(LexisNexis 2012). The burden lies with the defendant to 

establish the requisite extreme emotional distress by a 

preponderance of the evidence. State v. Drej, 2010 UT 35, ¶ 21, 

233 P.3d 476.

¶8 The special mitigation statute does not define extreme 

emotional distress. In the absence of an express statutory 

definition, the Utah Supreme Court has defined extreme 

emotional distress as ‚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 (emphasis added) (citation 

and internal quotation marks omitted); accord State v. Spillers, 

2007 UT 13, ¶ 14, 152 P.3d 315 (‚A person suffers extreme 

emotional distress when exposed to extremely unusual and 

overwhelming stress such that the average reasonable person 

would react by experiencing a loss of self-control.‛ (citation and 
State v. Lambdin

20130521-CA 5 2015 UT App 176

internal quotation marks omitted)),

4 abrogated on other grounds by 

State v. Reece, 2015 UT 45, 349 P.3d 712. Certain stressors, 

however, such as those created by the defendant’s own conduct 

or those ‚resulting from mental illness as defined in *Utah Code+ 

Section 76-2-305,‛ cannot mitigate a defendant’s actions that 

cause death. Utah Code Ann. § 76-5-205.5(3). ‚Thus, ‘an external 

triggering event is also required.’‛ State v. Campos, 2013 UT App 

213, ¶ 30, 309 P.3d 1160 (quoting White, 2011 UT 21, ¶ 32). 

¶9 Whether external stressors are sufficient to cause a person 

to lose self-control must be viewed in the ‚broader context,‛ 

taking into account any external ‚mental trauma *that+ has 

affected a defendant’s mind for a substantial period of time.‛ 

White, 2011 UT 21, ¶¶ 30–31. Although the statute requires 

consideration of ‚the circumstances surrounding a defendant’s 

extreme emotional distress, those circumstances must be viewed 

from the viewpoint of a reasonable person.‛ Id. ¶ 36 (citation and 

internal quotation marks omitted); see also Utah Code Ann. § 76-

5-205.5(4) (‚The reasonableness of an explanation or excuse . . . 

shall be determined from the viewpoint of a reasonable person 

under the then existing circumstances.‛). Thus, when a 

defendant asserts extreme emotional distress, the factfinder may 

 

4. These two cases applied an earlier version of the statute. That 

version made extreme emotional distress an affirmative defense 

to murder that, once properly raised, the State was required to 

disprove beyond a reasonable doubt. Utah Code Ann. § 76-5-

203(4)(a) (LexisNexis 2008). Although extreme emotional distress 

is now a special mitigating circumstance that the defendant 

bears the burden of proving, id. § 76-5-205.5(5)(a) (LexisNexis 

2012), the definition of extreme emotional distress has not 

changed. Compare id., with id. § 76-5-203(4)(a) (LexisNexis 

2008). Thus, ‚nothing in the language of the *amended special 

mitigation] statute . . . suggest[s] a departure from [the] 

precedent defining extreme emotional distress.‛ State v. Campos, 

2013 UT App 213, ¶ 30 n.6, 309 P.3d 1160.
State v. Lambdin

20130521-CA 6 2015 UT App 176

examine the circumstances—both historical and 

contemporaneous to the murder—to determine whether 

‚objectively, a reasonable person would have experienced an 

extreme emotional reaction and loss of self-control under the 

circumstances.‛ Ross v. State, 2012 UT 93, ¶ 28, 293 P.3d 345; 

accord White, 2011 UT 21, ¶ 36. 

¶10 We now examine the instructions given by the trial court 

in light of the applicable law.

B. The Jury Instructions

¶11 Although the trial court gave the jury seven instructions 

relating to extreme emotional distress, this appeal implicates

only three of them—Jury Instructions 19, 20, and 21. Jury 

Instruction 19 reads,

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 

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 selfcontrol and be overborne by intense feelings such 
State v. Lambdin

20130521-CA 7 2015 UT App 176

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. 

Jury Instruction 20 provides, 

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.

Finally, Jury Instruction 21 states, 

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.

¶12 Jury Instructions 19, 20, and 21 correctly informed the 

jurors of the factors that they should take into account in 

considering whether Lambdin met the requirements of extreme 

emotional distress. Instruction 19 informs the jury that it could 

find that Lambdin was acting under extreme emotional distress 

if he were ‚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 
State v. Lambdin

20130521-CA 8 2015 UT App 176

overborne by intense feelings such as passion, anger, distress, 

grief, excessive agitation, or other like emotions.‛ This language 

is almost verbatim the definition of extreme emotional distress 

set out in our precedent. See, e.g., State v. White, 2011 UT 21, ¶ 26, 

251 P.3d 820. In addition, Instruction 19 informs the jury that the 

loss of self-control resulting from the extreme emotional distress 

must be viewed from a reasonable person’s point of view. See 

Utah Code Ann. § 76-5-205.5(4) (LexisNexis 2012) (‚The 

reasonableness of an explanation or excuse . . . shall be 

determined from the viewpoint of a reasonable person under the 

then existing circumstances.‛). Finally, Instructions 20 and 21 

properly instruct the jury to consider the reasonableness of the 

loss of control not only in the context of any triggering event but 

under all ‚then-existing circumstances,‛ which include ‚past 

experiences and emotions that give meaning to *Lambdin’s+ 

reaction.‛ These instructions are consistent with both the 

statutory language establishing special mitigation and the case 

law interpreting that statute. See id. § 76-5-205.5; Ross, 2012 UT 

93, ¶ 28; White, 2011 UT 21, ¶ 36.

C. Lambdin’s Arguments

¶13 Lambdin nevertheless contends that these instructions 

contain two errors. First, he contends that the second paragraph 

of Instruction 19 ‚wrongly told jurors Mr. Lambdin’s loss of selfcontrol had to be reasonable for the defense to apply.‛ 

Instruction 19 instructs the jury 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 in similar circumstances to 

experience a loss of self-control.‛ It then informs the jury to 

consider whether the ‚reaction was reasonable‛ using an 

‚objective standard, determined from the viewpoint of a 

reasonable person faced with the then existing circumstances.‛

Lambdin argues that the jury instead should have been told that 

it ‚needed to find *only+ that the circumstances provided a 

reasonable explanation or excuse for the emotional reaction‛ that 
State v. Lambdin

20130521-CA 9 2015 UT App 176

ultimately led to a loss of self-control. In other words, Lambdin 

asserts that extreme emotional distress requires only a 

reasonable emotional reaction; it does not require the resulting 

loss of self-control or murder to be reasonable. Interpreting 

extreme emotional distress to require a reasonable loss of selfcontrol, Lambdin contends, would obviate extreme emotional 

distress as a mitigating circumstance because it is ‚inherently 

unreasonable to lose self-control and kill someone.‛ 

¶14 Lambdin relies on the statutory language providing that a 

murder is mitigated if it is committed ‚under the influence of 

extreme emotional distress for which there is a reasonable 

explanation or excuse.‛ Utah Code Ann. § 76-5-205.5(1)(b). 

Nothing in the statutory language, he contends, requires a

reasonable loss of self-control. Lambdin asserts that our 

precedent can be fairly read to support his interpretation of the 

statute. For example, he argues that the following language from 

State v. Shumway, 2002 UT 124, 63 P.3d 94, shows that the law 

requires only the extreme emotional distress, not the loss of selfcontrol and resulting murder, to be reasonable: ‚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.‛ Id. ¶ 9 (citation and internal quotation 

marks omitted). This language, Lambdin asserts, demonstrates 

that the loss of self-control and killing are merely by-products of 

the extreme emotional distress and thus cannot be within the 

scope of what the legislature intended to require ‚a reasonable 

explanation or excuse.‛ See Utah Code Ann. § 76-5-205.5(1)(b).

¶15 The State counters that although the statute explicitly 

requires only the extreme emotional distress to be reasonable, 

the statute does not define what the term extreme emotional 

distress entails. Instead, that term has been judicially defined in 

the process of interpreting and applying the statute. And as 

discussed above, our appellate courts have defined extreme 

emotional distress itself to include a loss of self-control, i.e., 

‚extremely unusual and overwhelming stress that would cause 
State v. Lambdin

20130521-CA 10 2015 UT App 176

the average reasonable person under the same circumstances to 

experience a loss of self-control.‛ White, 2011 UT 21, ¶ 26 (emphasis 

added) (citation and internal quotation marks omitted); see also

Ross v. State, 2012 UT 93, ¶ 28, 293 P.3d 345 (stating that to 

mitigate murder, the factfinder must determine that ‚objectively, 

a reasonable person would have experienced an extreme emotional 

reaction and loss of self-control under the circumstances‛ (emphasis 

added)). Thus, the State argues that in determining whether 

there is a reasonable explanation or excuse for the extreme 

emotional distress, the jury must necessarily assess the 

reasonableness of the loss of control.

¶16 We agree with the State that the pertinent case law does 

not support Lambdin’s interpretation of the statute’s 

reasonableness requirement. Indeed, there appears to be good 

reason for requiring a defendant to demonstrate that a 

reasonable person would experience both extreme emotional 

distress and a loss of self-control under the circumstances. 

Extreme emotional distress ‚substantially enlarge[s] the class of 

*murder+ cases that might be reduced to manslaughter.‛ White, 

2011 UT 21, ¶ 25 (citation and internal quotation marks omitted). 

Therefore, it should apply only in cases where there is a 

compelling reason for reducing the consequences for what 

would otherwise be murder. 

‚As with most cases where this defense may be

properly asserted, the issue presented is a very 

close one since all intentional homicides, with the 

exception of those by cold-blooded killers or in the 

course of a felony, are abnormal acts for the 

perpetrators and 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 and not en masse to all acts constituting 

murder . . . .‛
State v. Lambdin

20130521-CA 11 2015 UT App 176

Id. ¶ 22 (quoting People v. Shelton, 385 N.Y.S.2d 708, 710 (Sup. Ct. 

1976)). Requiring the loss of self-control to be reasonable furthers 

this purpose. Lambdin contends that special mitigation should 

apply whenever a reasonable person experiences extreme 

emotional distress, whether or not ‚the average reasonable 

person under the same circumstances [would] experience a loss 

of self-control and be overborne by intense feelings‛ that 

resulted in that person causing (or attempting to cause) the 

death of another, see id. ¶ 26 (citation and internal quotation 

marks omitted). Were this the case, however, extreme emotional 

distress could mitigate any homicide resulting from ‚strong 

emotions and stresses,‛ arguably omitting only those involving 

cold-blooded calculation. See id. ¶ 22 (citation and internal 

quotation marks omitted). Such an interpretation is inconsistent 

with the statute’s purpose of mitigating murder only for ‚those 

homicides which appropriately qualify‛ and ‚not en masse to all 

acts constituting murder.‛

5

Id. (citation and internal quotation 

marks omitted).

 

5. Indeed, one scholar has argued that extreme emotional 

distress ought to mitigate guilt only when the defendant has 

committed a murder under circumstances where the loss of selfcontrol is rationally proportional to the provocation. Victoria 

Nourse, Passion’s Progress: Modern Law Reform and the Provocation 

Defense, 106 Yale L.J. 1331, 1337–38 (1997). For example, though 

neither is ultimately justified, a defendant killing his wife’s 

rapist is arguably more understandable than a defendant killing 

his wife for simply leaving him for another, though both may 

engender strong emotions. Id. In the former example, the 

defendant’s ‚emotional judgments are inspired by a belief in a 

‘wrong’ that is no different than the law’s own: Ex ante, there is 

no doubt that the rape is wrong for the defendant and the victim 

and the defendant’s ‘outrage’ is ‘understandable’ from this 

perspective.‛ Id. (footnote omitted). In the latter, however, 

(continued...)
State v. Lambdin

20130521-CA 12 2015 UT App 176

¶17 Furthermore, we are not persuaded by Lambdin’s concern 

that requiring the loss of self-control to be reasonable would 

essentially eliminate extreme emotional distress as a mitigating 

circumstance because such a reasonableness requirement would 

place the jurors ‚in the untenable position of having to find a 

killing or other criminal act ‘reasonable.’‛ Requiring that 

external emotional stressors trigger a loss of self-control that is 

reasonable does not also mandate that the jury find the criminal 

act that follows is reasonable. Rather, the loss of self-control is 

separate and distinct from the ensuing killing. And all three 

instructions implicated in this appeal clearly maintain that 

distinction. Instruction 19 told the jury that it must find special 

mitigation if Lambdin ‚caused the death of another‛ as a result 

of ‚extreme emotional distress for which there was a reasonable 

explanation or excuse.‛ The reasonableness requirement in 

Instruction 19 is not tied in any way to the resulting death. And 

Instructions 20 and 21 inform the jury how it should evaluate the 

reasonableness of Lambdin’s ‚loss of self control‛ without any 

mention of the death resulting from that loss of control. Indeed, 

Lambdin’s trial counsel recognized this distinction and 

emphasized it to the jury when making Lambdin’s case for 

extreme emotional distress in her closing statement. Counsel 

informed the jury that ‚another key thing‛ about the instructions 

is that they are ‚instructing you 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, not the killing.‛ 

(Emphasis added.) In other words, counsel explained, the jury 

need not ‚find that a reasonable person would absolutely have 

committed this killing, but that a reasonable person would have 

experienced a loss of self control.‛

 

(...continued)

leaving a spouse is not a ‚‘wrong’‛ that the law punishes. Id. at 

1338. ‚To embrace the defendant’s emotional judgments in these 

latter circumstances not only allows the defendant to serve as 

judge and executioner, but also as legislator.‛ Id.
State v. Lambdin

20130521-CA 13 2015 UT App 176

¶18 Accordingly, we conclude that there was no error in 

Instruction 19’s requirement that the stress ‚cause the average 

reasonable person in similar circumstances to experience a loss 

of self-control.‛ 

¶19 Lambdin’s second contention is that Instruction 20 failed 

to explain to the jury that it could consider the events leading up 

to the extreme emotional distress and instead ‚conflated special 

mitigation by EED with a heat of passion defense,‛ which 

requires an immediate provocation. He argues that the jury 

therefore did not understand that it could consider the ‚decade 

of marital difficulties and strife‛ between Lambdin and his wife 

to determine whether he had a reasonable explanation or excuse 

for his extreme emotional distress. He further contends that 

Instruction 21 did not adequately clarify Instruction 20 because 

Instruction 21 instructed the jury to consider a ‚broader context 

of past experiences‛ in assessing whether Lambdin’s loss of selfcontrol, not his extreme emotional distress, was reasonable. 

¶20 The State responds that Instructions 20 and 21 adequately 

convey to the jury that it could consider more than just the 

events surrounding Lambdin’s wife’s death. The State points 

specifically to the language in Instruction 20 that a ‚building 

emotional reaction to a series of events may contribute to 

extreme emotional distress‛ and the explanation in Instruction 

21 that the circumstances the jury should consider in assessing 

the reasonableness of the extreme emotional distress include 

‚the broader context of past experiences and emotions that give 

meaning to *Lambdin’s+ reaction, that is to say, to *Lambdin’s+ 

loss of self control.‛ 

¶21 We agree with the State. When read together Instructions 

20 and 21 adequately convey to the jury that it should consider 

both the circumstances at the time of the murder and Lambdin’s 

past experiences with his wife when assessing whether he was 

exposed to extremely unusual and overwhelming stress. See 

State v. Lee, 2014 UT App 4, ¶ 23, 318 P.3d 1164 (explaining that 
State v. Lambdin

20130521-CA 14 2015 UT App 176

on appeal, ‚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‛ (citation and internal 

quotation marks omitted)). Furthermore, during closing 

statement, Lambdin’s counsel cited these instructions and 

focused specifically on the language in Instruction 21 by urging 

the jury to consider Lambdin’s ‚whole life with *his wife+, . . . the 

ten years of their marriage‛ and to use ‚that context of past 

experiences and emotions [to] give meaning to his reaction, 

which is his loss of self control.‛ 

¶22 We therefore conclude that there were no errors in the 

jury instructions because Instructions 19, 20, and 21 described 

special mitigation by extreme emotional distress consistent with 

Utah law. Because there was no error, we do not reach 

Lambdin’s prejudice arguments. 

II. Prosecutor’s Closing Statement

¶23 Lambdin’s next contention is that the prosecutor 

committed prosecutorial misconduct in describing extreme 

emotional distress during his closing statement.6 The prosecutor 

reiterated the crux of the jury instructions:

I want to talk about a couple things with regards to 

[I]nstruction 21, then existing circumstances. This 

is the idea that the person’s emotional response is 

not in a vacuum, but, rather, the circumstances that 

the person was living in at the time. Then existing 

 

6. The State contends that there is a distinction between 

prosecutorial misconduct and prosecutorial error and that 

Lambdin’s complaint about the prosecutor’s conduct amounted, 

at most, to prosecutorial error. Because we conclude that the 

prosecutor did not misstate the law, we do not believe the 

distinction asserted by the State is significant here.
State v. Lambdin

20130521-CA 15 2015 UT App 176

circumstances give meaning to the defendant’s 

reaction. That is, given these circumstances he was 

living in would a reasonable person act similarly? 

Said another way, would a reasonable person in his 

circumstances experience a complete loss of self control?

Now, . . . it’s not a matter of whether the 

State or even you believe that he experienced a loss 

of control and that he snapped. That’s not the 

point. The question is whether a reasonable person in 

those circumstances would have experienced this 

complete loss of control. And the simple answer to 

this question [of] whether a reasonable person in 

those circumstances would have experienced a 

complete loss of control is of course not.

(Emphasis added.) 

¶24 According to Lambdin, this statement ‚mis-informed [the 

jury+ on the law of special mitigation.‛ Lambdin’s contention is 

grounded in the same reasoning as his erroneous-juryinstruction claim. Because we have determined that the 

instructions did not misstate the law on special mitigation by 

extreme emotional distress, we also conclude that the prosecutor 

did not engage in misconduct when he used the same standard 

to discuss it in closing. See State v. Akok, 2015 UT App 89, ¶ 11, 

348 P.3d 377 (explaining that to commit prosecutorial 

misconduct, the prosecutor must ‚call to the attention of the jury 

a matter it would not be justified in considering in determining 

its verdict‛ (citation and internal quotation marks omitted)).

III. Cumulative Error

¶25 Finally, Lambdin asserts that ‚the cumulative effect of the 

multiple errors undermines confidence in the fairness of 

*Lambdin’s+ trial.‛ See State v. Dunn, 850 P.2d 1201, 1229 (Utah 

1993). ‚If the claims are found on appeal to not constitute error,‛ 
State v. Lambdin

20130521-CA 16 2015 UT App 176

however, ‚the doctrine *of cumulative error+ will not be 

applied.‛ State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878. We 

have concluded that there were no errors in either the jury 

instructions or the prosecutor’s closing statement. Thus, the 

cumulative error doctrine does not apply.

CONCLUSION

¶26 We conclude that neither the court nor the prosecutor 

erred because both the jury instructions and the prosecutor’s 

closing statement, which tracked those instructions, correctly 

stated the law for proving special mitigation by extreme 

emotional distress. We therefore affirm Lambdin’s conviction for 

murder.