State v. Low
| Citation | 192 P.3d 867,2008 UT 58 |
| Decision Date | 22 August 2008 |
| Docket Number | No. 20050807.,20050807. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Erik Kurtis LOW, Defendant and Appellant. |
| Court | Supreme Court of Utah |
Mark L. Shurtleff, Att'y Gen., Christopher D. Ballard, Asst. Att'y Gen., Salt Lake City, for plaintiff.
Elizabeth Hunt, Salt Lake City, for defendant.
On Certification from the Utah Court of Appeals
¶1 Erik Kurtis Low was charged with the murder of Michael Hirschey and ultimately convicted of manslaughter by a jury. Low argues on appeal that the district court erred by instructing the jury on extreme emotional distress manslaughter and imperfect self-defense manslaughter over his objection. We hold that the jury was properly instructed as to imperfect self-defense manslaughter, but we find merit in Low's argument with respect to the inclusion of the instruction for extreme emotional distress manslaughter. We accordingly reverse Low's manslaughter conviction and remand for further proceedings consistent with this opinion.
¶2 Low met Hirschey, Kevin McCall, and Darick Touchette at a bar in Park City, Utah, on May 7, 2003. The group later went to Hirschey's apartment and began ingesting cocaine. As Low was preparing his portion of the cocaine for smoking, Hirschey objected to Low's choice to smoke, rather than snort. Touchette then knocked the cocaine out of Low's hand and ground it into the carpet. While Low was on the ground looking for the cocaine, Touchette and Hirschey ridiculed him and called him a "loser."
¶3 Later that night, Hirschey showed the others his gun collection, which included a .357 magnum handgun. During the course of the evening, Low was the continued recipient of more teasing, manhandling, and threats. While Low was urinating, Hirschey grabbed him by the neck from behind, hit him on the back of the head, and told him that if he ratted on Hirschey or his friends, Hirschey would "waste him." Later, Hirschey, who had been a successful competitive wrestler, flipped Low onto the floor and wrestled with him on the ground, causing Low's neck to become sore. McCall and Hirschey then pushed Low's legs up over his shoulders while stepping on his groin in an apparent attempt to "alleviate" the neck pain. Following this incident, Low went to the back of the apartment for approximately twenty minutes, then returned to the living room and passed out on the floor. While Low was passed out, Hirschey poured five large tumblers of water on him, picked him up and slammed him into a chair, and tried to force him to drink a large bottle of hot water. When Low got up to walk to the back of the apartment, Hirschey followed him and gave him a "wedgie" by grabbing the back of Low's underwear and lifting it up with both hands.
¶4 Ten or fifteen seconds after Low and Hirschey left the living room, McCall heard someone say "Oh" and then heard a pop. Low then walked back into the living room. McCall could see Hirschey's feet sticking out into the hallway and asked Low what happened, to which Low responded, "He is dead." McCall got out his cell phone to call 911, but Low took McCall's hand and pushed the cell phone back into his pocket. Low then asked McCall for his car keys, which McCall dropped on the floor before running outside. Once outside the apartment, McCall hid under a car and called 911.
¶5 When police officers arrived at the apartment complex, Officer Ron King parked his cruiser facing a football field adjacent to the apartment complex because dispatch had reported that a person was seen walking toward the field. Officer King's headlights were shining toward a group of three trees next to a fence dividing the apartment complex from the football field. At that point, Low emerged and approached Officer King. Officer King ordered Low to stop, at which point Low said, "I'm the one you're looking for" and "I have something for you." Officer King asked what the "something" was, and Low responded that it was a ".357 mag." Officer King searched Low and found a .357 magnum handgun tucked in the front of Low's waistband.
¶6 Officer King handcuffed Low and turned on his pocket recorder. Low asked Officer King to read him his rights. Officer King responded by stating, "When I start asking you questions, at the proper time, I'll read you your rights, okay?" After Officer King placed Low in the back seat of the police cruiser, he and Low engaged in conversation during which Low made some potentially incriminating statements.
¶7 Officer King subsequently transported Low to the police station. While left handcuffed and alone in an interview room with a closed circuit television, Low took a .357 magnum bullet out of his pocket and kicked it under the table. While Low was being booked into jail, he asked an officer, "What do you get for killing somebody?" When the officer responded that he did not understand the question, Low repeated, "How long do you stay in jail for killing somebody?" Later, when another inmate asked Low what he was in jail for, Low said that he killed someone.
¶8 The State charged Low with murder, theft, and carrying a concealed dangerous weapon without a valid permit. At trial, Low admitted that he shot Hirschey but claimed that he acted in self-defense. Low testified that when he left the living room, Hirschey grabbed him and threw him into a spare bedroom. When Low tried to get up, he saw Hirschey in the doorway with a gun pointed at him. Low tried to run past Hirschey, but Hirschey pushed him back into the room. Low then struggled with Hirschey in an attempt to gain control of the gun. At one point, the gun was pointed at Low's head and Hirschey was attempting to pull the trigger, but Low blocked the hammer to keep the gun from firing. Low ultimately got control of the gun and backed up. Hirschey took a step back and then charged Low. Low screamed "Don't!" and shot Hirschey twice in rapid succession.
¶9 During trial, the district court dismissed the theft claim based on the court's determination that the State had failed to produce evidence to support the charge. Additionally, the court denied the State's motion to instruct the jury on manslaughter. The jury found Low guilty of carrying a concealed weapon but was unable to reach a verdict on the murder charge. The court sentenced Low to one year in jail for the weapons charge, ordered a mistrial on the murder charge, and set a date for a new trial on the murder charge.
¶10 At the second trial, the State again asked for a manslaughter instruction. Over Low's objection, the district court granted the State's request and included instructions on both extreme emotional distress manslaughter and imperfect self-defense manslaughter. The jury found Low not guilty of first degree murder but convicted him of manslaughter. Low was sentenced to one to fifteen years in prison for manslaughter, with a one-year enhancement for illegal use of a handgun in committing a felony.
¶11 Following sentencing, Low filed a timely notice of appeal with the court of appeals. The court of appeals subsequently certified the case for transfer to this court pursuant to rule 43 of the Utah Rules of Appellate Procedure. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b) (2008).
¶12 Low presents several assignments of error. Specifically, he argues that (1) the district court improperly included jury instructions for extreme emotional distress manslaughter and imperfect self-defense manslaughter over his objection, (2) the district court included an erroneous flight instruction, (3) the district court improperly admitted his custodial statements, and (4) the district court improperly admitted his testimony from the first trial. Additionally, Low argues that if we reverse his conviction, his constitutional right to be free from double jeopardy bars the State from retrying him.
¶13 Low's first assignment of error is that the district court improperly instructed the jury on extreme emotional distress manslaughter and imperfect self-defense manslaughter. Because extreme emotional distress manslaughter and imperfect self-defense manslaughter are both affirmative defenses under Utah law, Low argues that the choice of whether to assert them belongs to the defendant. Low contends that the district court committed reversible error by including the manslaughter instructions over his objection. We conclude that the district court did not err by including the imperfect self-defense instruction, but we agree with Low that the court did err by including the extreme emotional distress manslaughter instruction. We accordingly reverse Low's manslaughter conviction and remand for further proceedings consistent with this opinion.
¶14 During Low's first trial, the State asked for an imperfect self-defense manslaughter instruction. The district court noted that Low had "done nothing to advance ... imperfect self-defense as an affirmative defense" and, accordingly, that such an instruction was "potentially a substantial violation of [Low's] constitutional right to prepare and present a defense." The court therefore denied the State's motion to include the imperfect self-defense manslaughter instruction.2
¶15 At Low's second trial, the State again asked that the jury be instructed on manslaughter. Specifically, the State asked for both an extreme emotional distress manslaughter instruction and an imperfect self-defense manslaughter instruction. Low objected to the imperfect self-defense manslaughter instruction, arguing that the jury would confuse it with his claim of perfect self-defense and that there was no evidence to show that his actions were legally unjustifiable. Low also objected to the extreme emotional distress manslaughter instruction, arguing...
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