State v. Smith

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                           Appellee,
                               v.
                     STEVEN TIMOTHY SMITH,
                           Appellant.

                            Opinion
                       No. 20220299-CA
                       Filed May 31, 2024

           Fifth District Court, St. George Department
                 The Honorable Jeffrey C. Wilcox
                           No. 211501082

           Nicolas D. Turner and K. Andrew Fitzgerald,
                     Attorneys for Appellant
              Sean D. Reyes and Karen A. Klucznik,
                     Attorneys for Appellee

     JUDGE AMY J. OLIVER authored this Opinion, in which
 JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1     After coming home from work, Shawntell Smith
(Shawntell) gathered her family as she had planned and calmly
told her husband of nearly thirty years, Steven Timothy Smith
(Smith), that she was leaving him and taking their kids with her.
Over the next twenty-five minutes, Smith left the house, drove to
the bank and withdrew $15,000, returned home and put the cash
in a drawer, got his gun from the closet and loaded the magazine,
and asked his two sons if they agreed with the plan to move out.
He then fatally shot Shawntell seven times in the back as she stood
in the kitchen. At trial, Smith confessed on the stand, and a jury
convicted him of first-degree murder. Smith challenges his
conviction on the grounds that the trial court erred in denying his
                           State v. Smith


request for a jury instruction on the defense of extreme emotional
distress and in denying his last-minute motion for a continuance
to hire an expert witness. We reject both of Smith’s arguments and
affirm his conviction.


                         BACKGROUND 1

¶2     Shawntell and Smith were married and had four children,
three of whom were adults in May 2021. The two youngest sons,
a fourteen-year-old (Teen Son) and a twenty-year-old (Adult Son),
lived at home. Smith “was quick to anger or snap at the kids,”
threatening them with a belt, cussing at them frequently, and
sometimes throwing things at them. Smith also directed his
temper, which he believes “every male has,” at his wife,
Shawntell. As Adult Son testified, Smith once got so angry when
Adult Son wanted Shawntell’s—not Smith’s—help with
homework that Shawntell said she would call the police if Smith
did not calm down. Smith then “got into her face” and said, “I’m
going to put a bullet in your head.” Shawntell rarely stood up for
herself, was often sleep-deprived from working two jobs—
including a graveyard shift—to pay the bills, and had stopped
inviting her friends into her house.

¶3     Shawntell eventually decided to leave Smith. For months,
she quietly put a plan into action: she confided in her close friends
and neighbors, asking for their help storing some of her things;
she slowly began packing up boxes; and she found a townhouse
and arranged for Adult Son to sign the lease on it. Shawntell
decided she would hold a family meeting on May 21, 2021, to tell
Smith she was leaving him that same day; she arranged for a
couple of friends and neighbors to come help her move after the

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Samples, 

, 

 (cleaned up), cert.
denied, 

 (Utah 2023).


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                          State v. Smith


meeting. One neighbor (Neighbor) was worried about
Shawntell’s safety if she left the same day she told Smith and
suggested, instead, giving Smith “time to process” the news
before moving out. But, Shawntell insisted on sticking with her
plan out of fear Smith would “retaliat[e]” if she stayed. Neighbor
remained “concerned enough” for Shawntell’s safety that he “put
a gun in [his] truck.”

¶4     On May 21, just after 5:00 p.m., Shawntell and three of the
kids—Adult Son, a twenty-five-year-old daughter (Daughter),
and Teen Son—went into the home office where Smith was on his
computer. Shawntell calmly told Smith she was leaving that day
and that Adult Son and Teen Son were leaving with her. Smith
simply said, “Okay,” and asked where they were going, along
with who would pay rent on the family house. Shawntell replied
that rent “would be his responsibility.” Smith calmly turned off
his computer, walked to the master bedroom, and looked in the
closet for his keys despite always keeping them on the dresser.
Shawntell followed him and asked if she could help him find
anything. Smith asked if Teen Son had known of her plan to leave,
and Shawntell replied that only the older children had known
beforehand.

¶5     Despite being “distraught” at the news his wife was
leaving and he “was the last one to know,” Smith did not reach
for any of the guns he kept in a chest on one of the bedroom
dressers. Instead, he got his car keys and walked out of the
bedroom, leaving the house at about 5:30 p.m. in a “calm” mood.
Smith decided to take Shawntell’s car rather than the Suburban
that was packed up, inferring she was taking the Suburban. He
drove down the street to the bank and asked for a specific
employee to help him withdraw $15,000 in cash. Smith opted to
wait for that employee, who was busy with another customer. The
employee suggested that a cashier’s check would be safer than
carrying around so much cash. Smith refused and told the




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                           State v. Smith


employee he was not concerned about safety because he was a
retired police officer.

¶6      Smith drove home, arriving at approximately 5:45 p.m. A
box truck that Adult Son had brought to help move was taking up
most of the driveway, so Smith changed his mind about parking
there, reversed the car, and found another parking spot. Neighbor
observed Smith driving “at kind of a high rate of speed that just
led [him] to believe that [Smith] was agitated.” Neighbor tried “to
defuse the situation in some manner” by saying hello. Smith
replied, “Get the fuck off my property” and Adult Son, who
overheard Smith, said to Neighbor, “My dad’s true colors shining
through.”

¶7      Smith walked into the house and went straight to the
master bedroom, where he put the cash in a dresser drawer. Smith
then saw a friend of Shawntell’s packing up her things from the
closet and “forcefully” told her to leave. According to Smith, he
“wanted to shoot” himself at that point, so he took out a .45 caliber
pistol from the gun chest on his dresser and ammunition from the
closet, and he went to the bathroom and sat on the toilet to load
the gun. Smith claimed he felt “foggy” and “extremely out of it,”
so when he tried to load the magazine, he did it the wrong way.
He realized his mistake and then properly filled the magazine
with seven bullets.

¶8     Deciding to kill himself in the backyard, Smith first went
to find his sons, intending to ask them “if they wanted [him]
around.” What he ended up asking, though, was whether they
were okay with Shawntell’s plan to leave and take them. When
they said they were, Smith said it felt like a slap in the face.

¶9     At approximately 5:52 p.m., Smith walked down the
hallway to the back door and saw Shawntell with her back to him,
her attention focused on doing something in a kitchen drawer.
Smith thought to himself, “Okay. It’s her fault.” Lifting his gun,
Smith aimed it at Shawntell and pulled the trigger seven times,


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                           State v. Smith


hitting her each time. According to the medical examiner, the
bullets penetrated Shawntell’s lungs, heart, kidney, bowel, and
wrist. Smith watched Shawntell fall, face down, on the kitchen
floor. He then went and sat on the couch, placing the gun on the
nearby hutch.

¶10 Hearing gunshots from the driveway, Adult Son cried out
and ran into the house, where he and Daughter found their
mother lying on her stomach. Neither of them saw Smith near
their mother, but Adult Son noticed Smith going into the master
bedroom and followed, physically attacking him and asking,
“Why? Why would you do this?” Smith responded, “I have
nothing left.” Meanwhile, Daughter called 911 and attempted
CPR.

¶11 When the police arrived, Teen Son ran out of the house,
and the officers directed him to stay near them as another officer
(Officer) “took a tactical position in front of the house.” The other
two children came out, looking “frantic.” Adult Son exclaimed, “I
beat the fuck out of my dad. He shot her. The gun is empty. And
he’s sitting on the couch.” Officer ordered Smith to exit the house
with his hands up. Smith calmly complied and was arrested. The
police asked where the gun was, and Smith told them it was
inside. Upon entering the house, the officers found Shawntell’s
dead body surrounded by blood and seven .45 mm shell casings.
After searching for “a long time,” the officers found the gun Smith
used in the master closet, under a bloody American flag and
“tucked” by the wall.

¶12 Smith was taken to the police station, where he received
medical treatment for injuries caused by Adult Son. At the
beginning of his first police interview, Smith was “pretty calm”
but had “periods where he would become emotional.” Smith
claimed to have memory gaps in the events leading up to the
murder, so the police interviewed him a second time to ascertain
whether he “recalled or was able to recall anything.” During the



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                           State v. Smith


second interview, Smith claimed he did not remember shooting
Shawntell, but he also “never denied that he shot her” and made
statements such as, “I don’t deny that I’m not innocent” and, “I
probably shot my wife.”

¶13 A few days later, the State charged Smith with murder. He
pleaded not guilty. Out of an abundance of caution, Smith’s
appointed counsel (Trial Counsel) requested a competency
evaluation. The court granted the request, and Smith was later
found competent to proceed. In mid-October, the parties agreed
they would be ready for trial if it were set for the following month.
On October 29, the State moved to preclude a jury instruction on
an extreme emotional distress (EED) defense, contending the
evidence would not support the defense under the new governing
statute, which requires (among other things) evidence that the
defendant had an “overwhelming reaction of anger, shock, or
grief” to a “highly provoking act” by the victim, which reaction
both (a) “cause[d] the defendant to be incapable of reflection and
restraint” and (b) “would cause an objectively reasonable person
to be incapable of reflection and restraint.” Utah Code § 76-5-
205.5(1)(a)(i). 2 The court heard argument and deferred ruling until
trial.

¶14 Two business days before trial, Smith filed a “two-page
motion” requesting the appointment of an expert witness for an
EED defense, a continuance, and funding for the expert. At oral
argument on the motion, Trial Counsel argued an expert was
needed to help the jury “recognize shock, anger, or grief, and how
those things could be manifest.” Regarding the lateness of the
filing, Trial Counsel argued that a continuance was “a reasonable


2. In 2019, the legislature overhauled Utah Code section 76-5-
205.5, which governs how a defendant may seek mitigation of a
criminal homicide offense for “mental illness or provocation,”
including “extreme emotional distress.” Compare Utah Code § 76-
5-205.5 (2018), with id. (2019).


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                            State v. Smith


accommodation” for “a complex issue” and “[t]here are other
cases that are set to go if this one has to be continued.” In response,
the State asserted “the statute is written in such a way that it
doesn’t require expert testimony.” The trial court agreed and
denied the motion, concluding that although expert testimony
may explain the subjective part of the statute that looks to whether
a defendant is “incapable of reflection and restraint,” see Utah
Code § 76-5-205.5(1)(a)(i)(A) (2019), an expert is unnecessary to
explain how an “objectively reasonable person” would react to a
common occurrence like divorce, see id. § 76-5-205.5(1)(a)(i)(B).
The trial court reasoned, “People get divorced all the time. And it
is very rare that when someone is told, nothing more, ‘I’m leaving
you,’ that that becomes so shocking and overwhelming[] that the
person . . . leaving gets killed.”

¶15 At the three-day trial, two adult children, neighbors,
friends, officers, and the medical examiner testified as recounted
above. Smith testified in his defense, confessing on the stand that
as he walked to the backyard, “I saw Shawntell right there. And
that’s when I shot her.” At the close of evidence, the trial court
heard argument outside the presence of the jury on the State’s
motion to exclude the EED jury instruction. The court, finding that
Shawntell did not engage in any type of highly provoking act
before Smith killed her, ruled that the instruction would not be
allowed because the evidence did not meet “the statutory
requirement of a highly provocative act of the victim.” In closing,
Trial Counsel argued, “[Smith] did not mean to shoot his wife.
That was not his intent.” In response, the State pointed out there
was plenty of evidence to support Smith’s intent to shoot and kill
Shawntell, including his own statement that he shot her, the fact
he never claimed it was a mistake, and the way he pulled the
trigger seven times and did not miss a single time, all indicating
Smith “clearly intended to kill her.”

¶16 The jury convicted Smith of murder, and the trial court
sentenced Smith to fifteen years to life in prison. The court gave



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                           State v. Smith


Smith credit for time served but then “recommend[ed] to the
Board of Pardons [and Parole] that [Smith] remain in jail for the
rest of [his] natural life.”


            ISSUES AND STANDARDS OF REVIEW

¶17 Smith argues the trial court erred in granting the State’s
motion to exclude the EED jury instruction. The parties cite
differing standards of review for this issue. The State asserts that
we should review the decision to give a jury instruction for abuse
of discretion, see State v. Karren, 

, 

, while Smith states that we should review the decision for
correctness, see State v. Kruger, 

, 

. 3


3. This dispute may stem from a shift our supreme court made in
Miller v. Utah Department of Transportation, 

, 

. There, the court held that “the refusal to give a jury
instruction is reviewed for abuse of discretion, although in some
circumstances that discretion will be narrowly constrained.” Id.
¶ 13. The court went on to clarify that “in certain circumstances a
district court’s discretion will be constrained such that a party is
legally entitled to have a particular instruction given to the jury.
In those circumstances, refusal constitutes an error of law, and an
error of law always constitutes an abuse of discretion.” Id. ¶ 13
n.1. The court concluded by holding that “[t]o the extent earlier
cases conflict with this opinion in their enunciation of the
standard of review for refusal to give a jury instruction, this
opinion controls.” Id.
        But despite this clarification, there remains confusion as to
when the trial court’s “discretion will be narrowly constrained”
such that the refusal to give a jury instruction “constitutes an error
of law,” Id. ¶ 13 & n.1. See, e.g., State v. Rivera, 

, 

 (reviewing “a trial court’s refusal to give a
requested jury instruction for correctness” with no mention of the
                                                        (continued…)


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                           State v. Smith


Ultimately, however, we need not resolve the question of which
standard applies because, even under the more stringent
correctness standard, we affirm the trial court’s decision denying
Smith a jury instruction on EED.

¶18 Smith also argues the trial court erred by denying his
motion seeking a continuance to obtain an expert witness on an
EED defense. “We will not reverse the trial court’s decision to
grant or deny a continuance absent a clear abuse of discretion.”
State v. Alonzo Peraza, 

, 

 (cleaned up).


                            ANALYSIS

                      I. EED Jury Instruction

¶19 Smith asserts the trial court erred when it declined to give
an EED jury instruction that could have reduced his murder
charge to manslaughter. See Utah Code § 76-5-205.5(2)(a)–(b), (5)
(2019). Specifically, Smith claims the court “substituted itself as
the trier of fact” when it failed to consider Smith’s “background
or experience” and concluded that no special mitigation existed
because Shawntell committed no “highly provoking act,” id. § 76-
5-205.5(2)(b).




abuse of discretion standard set forth in Miller (cleaned up)); State
v. Dozah, 

, 

 (same); State v. Karren,

, 

 (identifying the standard
of review for refusal to give a jury instruction as abuse of
discretion, but concluding that “the district court did not err” in
denying to give the requested jury instruction). Thus, “we flag the
issue for consideration in a future case, noting the apparent lack
of clarity in Utah law as to the appropriate standard of review”
for the refusal to give a requested jury instruction. Amundsen v.
University of Utah, 

, ¶ 19 n.5, 

.


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                           State v. Smith


¶20 “When requested by a criminal defendant, a trial court
must give an instruction regarding a particular affirmative
defense if evidence has been presented . . . that provides any
reasonable basis upon which a jury could conclude that the
affirmative defense applies to the defendant.” State v. Rivera, 

, 

 (cleaned up). However, “a court
need not instruct the jury on the requested affirmative defense
where the evidence is so slight as to be incapable of raising a
reasonable doubt in the jury’s mind as to whether the defendant”
killed the victim while under the influence of EED. State v. Burke,

, 

 (cleaned up).

¶21 Under Utah law, EED is defined as “an overwhelming
reaction of anger, shock, or grief that . . . causes the defendant to
be incapable of reflection and restraint” and “would cause an
objectively reasonable person to be incapable of reflection and
restraint.” Utah Code § 76-5-205.5(1)(a)(i). As relevant here, the
defense applies only when the defendant acted “under the
influence of extreme emotional distress that is predominantly
caused by the victim’s highly provoking act immediately
preceding the defendant’s actions.” Id. § 76-5-205.5(2)(b).

¶22 Here, the trial court correctly declined to give a jury
instruction on the EED defense because the facts do not constitute
a “highly provoking act.” As the trial court noted, “People get
divorced all the time. And it is very rare that when someone is
told, nothing more, ‘I’m leaving you,’ that that becomes so
shocking and overwhelming[] that the person . . . leaving gets
killed.” Shawntell’s announcement was a common one—
relationships routinely end and people move out—and she made
her announcement in a composed and rational way that she had
thoughtfully planned out, calmly telling Smith she was leaving
during a family meeting in his home office. Under these
circumstances, the trial court correctly concluded that Shawntell’s
actions were not “highly provoking.”




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                         State v. Smith


¶23 But even if we were to somehow construe Shawntell’s
civilized, calm disclosure to Smith that she was leaving as a
“highly provoking act,” it would still not satisfy the statute
because it did not occur “immediately preceding” her murder.
Approximately twenty-five minutes elapsed between the time
Shawntell told Smith she was leaving and when he fatally shot
her in the back seven times. Smith argues that the highly
provoking act was more like a compilation of acts that was
“ongoing from the time Shawntell informed him, and through her
efforts to immediately remove everything from the home utilizing
the aid of many friends and neighbors.” According to the relevant
language of the statute, however, a defendant’s EED must be
“predominantly caused by the victim’s highly provoking act
immediately preceding the defendant’s actions.” 

 (emphasis
added). Smith didn’t shoot Shawntell immediately after she told
him she was leaving. He shot her twenty-five minutes later when
she was in the kitchen doing something in a drawer with her back
turned. Shawntell standing in her kitchen facing away from Smith
was the antithesis of “highly provoking.”

¶24 Thus, the evidence at trial was “incapable of raising a
reasonable doubt in the jury’s mind as to whether [the] defendant
killed the victim while under the influence of” EED. State v.
Piansiaksone, 

 (Utah 1998) (cleaned up). We
therefore conclude the trial court correctly declined to give the
jury instruction on the EED defense.

          II. Continuance to Obtain an Expert Witness

¶25 Smith also contends that the trial court should have
granted his motion for a continuance to obtain an expert witness
because the shock or grief required by the EED statute “may
require expert explanation to the jury about the various ways in
which such emotions or psychological issues can manifest
themselves.” The State, however, contends the trial court did not




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                           State v. Smith


abuse its discretion because Smith failed to meet his burden for
such a motion to be granted.

¶26 Because Smith moved “for a continuance to procure the
testimony of an absent witness,” he must show (1) “that the
testimony sought is material and admissible”; (2) “that the
witness could actually be produced”; (3) “that the witness could
be produced within a reasonable time”; and (4) “that due
diligence has been exercised before the request for a continuance.”
Mackin v. State, 

, 

 (cleaned up). “A
failure to establish even one aspect of the above test defeats [a
defendant’s] claim.” 

 Here, Smith falls well short of establishing
the required elements.

¶27 First, Smith must show that an expert witness was material
to his defense, which required him to “demonstrate with a
reasonable probability that the nonadmitted evidence would
affect the outcome of the criminal proceeding.” Id. ¶ 34 (cleaned
up). But because Smith was not entitled to the EED jury
instruction, see supra Part I, any testimony from an expert witness
on the elements of the EED defense would have been irrelevant. 4
Thus, any such expert testimony was not material and Smith
cannot demonstrate that there is “a reasonable likelihood of a
more favorable result” at trial had the motion been granted. Id.
¶ 37 (cleaned up).

¶28 Next, the cursory motion was lacking any of the required
specifics. It failed to identify any expert by name, the substance of


4. Additionally, testimony about whether Smith was “incapable
of reflection and restraint,” see Utah Code § 76-5-205.5(1)(a)(i)(A),
may have been inadmissible under rule 704(b) of the Utah Rules
of Evidence, which prohibits an expert witness in a criminal case
from giving “an opinion about whether the defendant did or did
not have a mental state or condition that constitutes an element of
the crime charged or of a defense.”


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                           State v. Smith


the expert’s testimony, how quickly the expert could be retained
and prepared to testify, and that the unnamed expert would
actually be able to appear at trial. Id. ¶ 33.

¶29 Finally, Smith failed to demonstrate that he acted with due
diligence. He filed his expert witness motion requesting the
continuance on the eve of trial, after the State had raised the issue
the previous month in its motion to exclude the EED jury
instruction.

¶30 In the face of such deficiencies in Smith’s expert witness
motion, the trial court acted well within its discretion in denying
the motion. Id. (“A failure to establish even one aspect of the above
test defeats [the defendant’s] claim.”).


                          CONCLUSION

¶31 Shawntell’s calm announcement to Smith that she was
leaving and taking the kids with her did not constitute the “highly
provoking act” required for an EED defense and, in any event, it
did not occur “immediately preceding” Smith’s fatal shooting of
her. Therefore, the trial court did not err when it declined to
instruct the jury on the EED defense. The court likewise did not
abuse its discretion when it denied Smith’s last-minute motion for
an expert witness to assist in presenting that defense.
Accordingly, we affirm Smith’s conviction.




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