State v. Deprey

2024 UT App 190
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LUCAS M ARC DEPREY ,
Appellant.
Opinion
No. 20200253-CA
Filed December 27, 2024
Third District Court, West Jordan Department
The Honorable Dianna Gibson
No. 171404154
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES R YAN M. HARRIS and JOHN D. LUTHY concurred.
ORME, Judge:
¶1 	Lucas Marc Deprey appeals his convictions for murder and
obstruction of justice, arguing he was entitled to a mistrial after a
detective (Detective) testified that, during interrogation, Deprey
admitted he was a felon who could not own a gun. Deprey also
argues that statements made during that interrogation should
have been suppressed because Detective discouraged him from
obtaining counsel. Relatedly, he argues his defense counsel
(Counsel) was constitutionally ineffective for failing to argue an
additional 	ground 	for 	suppression: 	Detective’s 	inadequate
warning about Deprey’s right to remain silent. Deprey further
argues the trial court committed plain error in submitting a
flawed instruction to the jury and Counsel provided ineffective

State v. Deprey
20200253-CA 	2 	2024 UT App 190
assistance in not objecting to it. We disagree on all fronts and
affirm Deprey’s convictions.
BACKGROUND1
¶2 	Deprey was waiting in a parking lot for his mother to pick
him up when he saw a car drive in. Deprey was “[s]cared”
because he recognized the driver (Driver) as a rumored cartel
member Deprey knew had sold drugs to his friend (Friend).
Deprey claimed at trial that he had heard Driver threaten to kill
Friend because Friend had not paid Driver for drugs. He asserted
that he had not heard from Friend for “a couple days” by the time
he saw Driver in the parking lot. Deprey also claimed he had
heard a rumor that Driver said Deprey “was next” because he had
been present when Driver threatened Friend. But security footage
of the parking lot showed Deprey approach the passenger side of
Driver’s car. According to Deprey, Driver told him, “Stop asking
about [Friend] or I’ll kill you too.” Deprey said he then saw Driver
reach 	across 	his 	body. 	The 	security 	footage 	showed 	the
driver-side window of the car shatter as Deprey “pulled out [his]
gun, fired one shot and just ran.”
¶3 	Driver’s car then lurched forward, exiting the parking lot
and crossing lanes of traffic before hitting several cars that were
stopped at an intersection. Driver, who was found unconscious
inside his car with a gunshot wound to the head, was declared
dead at the hospital. Officers found drugs as well as two folding
knives inside Driver’s car—one knife in the driver-door pocket
and the other on the floorboard near the pedals. A 9-millimeter
shell casing and bullet were later found in the parking lot.
1. “We review the record facts in a light most favorable to the
jury’s verdict and recite the facts accordingly, and we present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Fraughton, 2024 UT App 118, n.1, 556 P.3d 118
(quotation simplified).

State v. Deprey
20200253-CA 	3 	2024 UT App 190
¶4 	Meanwhile, Deprey fled the scene, discarding his jacket
and hat in a nearby dumpster before getting on a light rail train.
He briefly visited another friend’s motel room before meeting up
with his mother, who dropped him off at a truck stop from which
Deprey then hitchhiked to Oregon. Once there, he reached out to
a counselor at a Utah youth treatment center he had previously
stayed at, asking the counselor to send him money. Deprey asked
the counselor whether he had seen news of the shooting and told
the counselor he had shot Driver. Deprey said Driver had robbed
Friend, so he “splattered his brains.” He said, “Worst part is the
dude was cartel.” He also admitted, “I was trying to prove
myself,” and he mentioned that the interaction “was supposed to
be a lick”—which the counselor testified meant a robbery—but
Deprey shot Driver instead.
¶5 	Oregon police eventually located and arrested Deprey.
Utah officers, including Detective, then traveled to Oregon to
interview him. At the beginning of the interrogation, Detective
informed Deprey that he was a person of interest in the case and
said, “I just want to advise you of your rights just so you’re aware
of them.” Deprey muttered something about having heard the
warnings “a million times.” Detective then said that he had to “go
over” Deprey’s rights as a “technicality” so that Deprey would
“know [he did not] have to talk to” Detective that day. Detective
told Deprey,
[T]his is voluntary. Anything you say is going to be
used in my investigation and that investigation will
be used against you in court. You have a right to talk
to an attorney and have one present with you while
we question you. If you can’t afford an attorney the
courts will provide one for you. If you decide to talk
to me today, you can stop at any time and request
an attorney at the same time.
Deprey indicated that he understood these rights. Detective then
asked, “Okay having that in mind, do you wish to talk to me

State v. Deprey
20200253-CA 	4 	2024 UT App 190
today?” Deprey said, “Yeah I’ll hear what you have to say and I’ll
answer what I feel comfortable answering.”
¶6 	Deprey initially denied being involved in the shooting,
saying he had been in the area and had merely heard a gunshot.
He claimed that after his mother picked him up, he realized he
had not checked in with his probation officer, so to avoid the
consequences and to get a “change of scenery,” he fled to Oregon.
¶7 	At one point during the interrogation, Deprey said, “If I
put a pause on this to wait for my attorney, how long would that
take?” Detective answered, “I have no idea. I have no idea like I
said that’s a right of yours.” Deprey said, “I know it’s a right of
mine.” Detective then went on to explain that he was not “out here
to judge anybody” and that “the District Attorney in Salt Lake”
would understand Deprey’s circumstances. He told Deprey that
admitting what had happened would make a “huge difference”
with a judge and jury. He also told Deprey he was “more than
welcome to get a lawyer” but that the lawyer would “definitely”
tell the police to “pound sand”—preventing Deprey from telling
his side of the story. Deprey observed, “I also see you highly
encouraging me not to have a lawyer,” to which Detective
responded, “No, no I just want you to understand.”
¶8 	Deprey eventually asked, unprompted, “And what about
the weapon?” After Detective tried to get Deprey to discuss the
gun he used to shoot Driver, Deprey said, “How am I supposed
to get a hold of a gun if I’m a felon?” After Detective confronted
Deprey 	with 	other 	evidence—including 	surveillance 	footage
showing the path he took after the shooting and the jacket and hat
he had discarded in the dumpster, which had been retrieved by
the police—Deprey admitted to “talking” with Driver about
Friend. Detective observed “tears welling up in” Deprey’s eyes.
And Deprey finally said, “I’m guessing you guys have the
admission of guilt paper to sign?” On a witness statement form,
Deprey wrote,

State v. Deprey
20200253-CA 	5 	2024 UT App 190
I was in Check City waiting for my mom to give me
a haircut when I saw a red car pull up and I
recognized a dealer that I had heard had a GL[2] on
my friend’s head. I went to talk to him and ask what
that was about and he said “Mind your business
unless you want to get killed too.” So I shot him too.
There, are you happy now? Give me my time or
death sentence. I’m ready to do my time. Bring it.
I’m ready to do my time. I’m tired of looking over
my shoulder.
Deprey 	went 	on 	to 	tell 	Detective 	that 	Driver 	had 	been
“threatening to kill” Deprey so Deprey wanted to “get [Driver]
first.” He stated he did not see Driver pull out a gun.
¶9 	Deprey was charged with murder, possession of a firearm
by a restricted person, and obstruction of justice. Before trial,
based on the stipulation of the parties, the trial court agreed to
bifurcate the charges so that the murder and obstructing justice
charges were tried to the jury and the gun possession charge was
tried to the bench. Deprey also filed a motion “to suppress
statements made by [him] after his assertion of his right to
counsel.” He acknowledged he had initially waived his Miranda
rights and that his later mentions of a lawyer were ambiguous,
but he argued he was nonetheless entitled to suppression because
Detective “actively dissuaded” him from seeking counsel. The
court denied the motion to suppress, concluding that Deprey had
waived his Miranda rights at the beginning of the interrogation
when 	he 	agreed 	to 	speak 	to 	Detective 	and 	that 	his 	later
“admittedly 	ambiguous 	references 	to 	counsel” 	were 	not 	“a
subsequent clear invocation of” that right.
2. During the interrogation, Deprey clarified that “GL” meant
“green light,” which Detective later explained at trial “means that
somebody has given the go [a]head to kill somebody or commit
any kind of harm on them.”

State v. Deprey
20200253-CA 	6 	2024 UT App 190
¶10 	At 	the 	ensuing 	four-day 	trial, 	the 	State 	presented
numerous 	witnesses, 	including 	Detective. 	While 	questioning
Detective about his interrogation of Deprey, the prosecutor asked,
“What did [Deprey] initially tell you about whether he would be
carrying a weapon?” Detective answered,
Initially told me that, you know, he doesn’t have a
gun, because, again, he asked me, “Where is the
gun?” 	He 	also 	made 	a 	comment 	later 	in 	the
interview that he’s a felon and isn’t allowed to carry
a gun, so he wouldn’t have one.
Counsel did not object to this statement. On cross-examination,
Detective also admitted that in reading Deprey his Miranda rights,
he had not used the “exact words” from Miranda v. Arizona, 384
U.S. 436 (1966), regarding Deprey’s right to remain silent.
¶11 	After Detective’s testimony, Counsel moved for a mistrial
based on Detective’s reference to Deprey’s status as a felon who
could not own a gun. Counsel pointed out that the trial had been
bifurcated so that the issue of whether Deprey could legally
possess a gun would not be before the jury. Counsel conceded that
the prosecutor had not elicited this testimony on purpose, but he
contended that “the entire courtroom atmosphere changed” after
Detective’s statement and that it was not made in passing. And,
noting the jury had asked the court a question about Deprey’s
ability to legally own a firearm during a previous witness’s
testimony, 	Counsel 	argued 	Detective’s 	improper 	statement
would have caught the jury’s attention. Counsel argued that “the
only solution” was a mistrial.
¶12 	The court denied Deprey’s motion, finding the “statement
was not elicited by the prosecution intentionally. It was made in
passing. 	It 	was isolated. 	There 	was no 	objection 	when 	the
statement was made. No sidebar was requested. No further
questions were asked.” But the court did find that the statement
was “not vague.” And while the court noted that “there certainly
was acknowledgment amongst the lawyers and the judge” of the

State v. Deprey
20200253-CA 	7 	2024 UT App 190
statement, the court “did not notice that that statement had any
more impact on the jury than any other evidence that [had] been
presented thus far in the case.” Instead of granting the mistrial,
the court offered to give a curative instruction and later directed
the jury not to consider Detective’s statement “for any purpose.”
¶13 	Deprey then took the stand. He testified that he was
“[s]cared” to see Driver because of the supposed “green light” on
Friend and Driver’s alleged threats against Deprey. Counsel
asked Deprey, “Prior to walking up to the car and such, were you
having emotional distress from what you’d heard about [Friend]
and the threats that you heard about against you?” Deprey
testified he “was anxious” and had “cool[ed] off a little bit,”
although seeing Driver “heightened [his] anxiety.” He testified
that he saw Driver reaching across his body and immediately shot
him.
¶14 	At the close of trial, a jury instruction titled “Special
Mitigation—Manslaughter” stated that the murder charge could
be reduced to manslaughter if the jury found
beyond a reasonable doubt, based on the evidence,
each and every one of the following elements:
1. 	the 	defendant, 	Lucas 	Marc 	Deprey, 	is
GUILTY of Murder,
and
2. 	the defendant proved by a preponderance of
the evidence that he was under extreme
emotional 	distress 	and 	there 	was 	a
reasonable explanation for the distress.
The first sentence of the next instruction also addressed extreme
emotional distress, stating, “The burden lies with the defendant
to prove ‘extreme emotional distress’ by a preponderance of the
evidence.” So instructed, the jury found Deprey guilty of murder

State v. Deprey
20200253-CA 	8 	2024 UT App 190
and obstruction of justice. The trial court subsequently found him
guilty of the gun possession charge.
¶15 	Deprey appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 	On appeal, Deprey argues the trial court erred when it
denied his motion for a mistrial—“a decision we review for abuse
of discretion.” State v. Whytock, 2020 UT App 107, ¶ 14, 469 P.3d
1150, cert. denied, 481 P.3d 1043 (Utah 2021).
¶17 	Next, Deprey makes two arguments regarding his motion
to suppress. First, he argues that because Detective actively
discouraged him from seeking counsel, the court erred in denying
his motion. “We review a district court’s ruling on a motion to
suppress for correctness, and we review its factual findings in
support of its ruling for clear error.” State v. Garcia-Flores, 2021 UT
App 97, ¶ 10, 497 P.3d 847 (quotation simplified), cert. denied, 502
P.3d 	271 	(Utah 	2021). 	Second, 	Deprey 	argues 	Counsel 	was
ineffective in failing to raise an additional ground for suppression
based on Detective’s purportedly flawed Miranda instructions
regarding his right to remain silent. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” State v. Perkins, 2024 UT App 101, ¶ 11, 554 P.3d
363 (quotation simplified).
¶18 	Deprey also faults both the trial court and Counsel for an
erroneous jury instruction regarding the burden of proof on his
extreme emotional distress defense. He argues the court plainly
erred in so instructing the jury and that Counsel was ineffective
in failing to object to the instruction. “Plain error is a question of
law reviewed for correctness.” State v. Popp, 2019 UT App 173,
¶ 19, 453 P.3d 657 (quotation simplified), cert. denied, 485 P.3d 943
(Utah 2021). And we evaluate ineffective assistance claims as a
matter of law. Perkins, 2024 UT App 101, ¶ 11.

State v. Deprey
20200253-CA 	9 	2024 UT App 190
ANALYSIS
I. Motion for Mistrial
¶19 	In questioning Detective about his interrogation of Deprey,
the prosecutor asked, “What did [Deprey] initially tell you about
whether he would be carrying a weapon?” As previously noted,
Detective answered,
Initially told me that, you know, he doesn’t have a
gun, because, again, he asked me, “Where is the
gun?” 	He 	also 	made 	a 	comment 	later 	in 	the
interview that he’s a felon and isn’t allowed to carry
a gun, so he wouldn’t have one.
Counsel made no objection, instead waiting until after Detective’s
testimony to move for a mistrial. In doing so, Counsel pointed out
that the trial court had already bifurcated the possession charge
to keep this information from the jury, and he asserted that as
soon as Detective made this statement, “the entire courtroom
atmosphere changed.” Counsel argued “the only solution” was a
mistrial. The trial court denied the motion, offering a curative
instruction instead. Deprey argues this was an abuse of discretion.
We disagree.
¶20 	“A mistrial is strong medicine,” and “we afford a high level
of deference to a trial court’s decision because trial courts are in
an advantaged position to determine the impact of courtroom
events on the total proceedings.” State v. Kufrin, 2024 UT App 86,
¶ 37, 551 P.3d 416 (quotation simplified). “In view of the practical
necessity of avoiding mistrials and getting litigation finished, a
trial 	court 	should 	not 	grant 	a 	mistrial 	except 	where 	the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary to avoid injustice.”
State v. Whytock, 2020 UT App 107, ¶ 16, 469 P.3d 1150 (quotation
simplified), cert. denied, 481 P.3d 1043 (Utah 2021). “Accordingly,
we will not reverse the court’s decision unless it is plainly wrong
in that the incident so likely influenced the jury that the defendant

State v. Deprey
20200253-CA 	10 	2024 UT App 190
cannot be said to have had a fair trial.” Kufrin, 2024 UT App 86,
¶ 37 (quotation simplified).
¶21 	“A mistrial is not required where an improper statement is
not intentionally elicited, is made in passing, and is relatively
innocuous in light of all the testimony presented.” Id. ¶ 38
(quotation simplified). For instance, in Whytock, a pretrial order
excluded evidence of the defendant’s criminal history, but a
witness later testified that the defendant had gotten “out of jail on
ankle monitor.” 2020 UT App 107, ¶ 15 (quotation simplified). We
concluded the trial court’s denial of a mistrial was not an abuse of
discretion because the improper statement “was not voluntarily
elicited” and was an “isolated, off-hand remark” that the State did
not 	mention 	again 	during 	trial, 	and 	“the 	trial 	proceedings
continued thereafter without interruption.” Id. ¶ 21. Further, the
court offered a curative instruction. Id. Similarly, in Kufrin, the
trial court denied a mistrial motion after a detective mentioned
the defendant’s “previous cellmates.” 2024 UT App 86, ¶ 29
(quotation simplified). While agreeing that the statement was
“unfortunate,” we affirmed, concluding the remark was “made in
passing,” was “not intentionally elicited by the State,” and was an
“ambiguous . . . two-word allusion” that the State made “no
further mention of.” Id. ¶¶ 36, 42.
¶22 	Here, the trial court found that Detective’s “statement was
not elicited by the prosecution intentionally,” in part because
Counsel conceded as much. The statement was also made in
passing and, as the court found, was isolated, as the prosecutor
immediately 	pivoted 	by 	asking 	an 	unrelated 	question 	after
Detective’s improper response. Counsel also chose not to object to
that response when it happened, opting instead to later move for
a mistrial. This allowed the trial to continue without interruption,
avoiding any undue emphasis on the statement. The issue did not
come up again during trial. And while the trial court found that
the statement was “not vague,” and that “the lawyers and the
judge” had “certainly noted” it, the court “did not notice that that
statement had any more impact on the jury than other evidence
that [had] been presented” in the case up to that point.

State v. Deprey
20200253-CA 	11 	2024 UT App 190
¶23 	Nonetheless, Deprey argues Detective’s statement was not
innocuous 	because 	it 	harmed 	his 	self-defense 	and 	extreme
emotional distress arguments. Deprey points to State v. Craft, 2017
UT App 87, 397 P.3d 889, where in determining whether Craft’s
counsel was ineffective for failing to argue for a mistrial, we
concluded that a detective’s testimony that Craft’s codefendants
had placed him at the scene of the crime was not innocuous
because his “entire defense was based on his assertion that he was
not present at the scene of the crime.” Id. ¶¶ 25–26. There, the
detective’s statement “did not involve a peripheral issue,” it
“pertained to the heart of the central factual issue the jury was
tasked with resolving—whether Craft was the man the witness
saw in his house on the night of the crime.” Id. ¶ 26. This is not the
case here. As Deprey himself points out in his opening brief, “the
reasonableness of . . . using the gun was the central issue before
the jury”—not whether he could legally possess the gun. And, as
we discuss below, Deprey did not even argue extreme emotional
distress to the jury. See infra ¶ 32. Thus, Detective’s statement did
not interfere with Deprey’s defenses.
¶24 	Unfortunate though Detective’s statement was, we cannot
say that it so influenced the jury that it prevented Deprey from
receiving a fair trial. Given the high level of deference owed, it
was not an abuse of the trial court’s discretion to avoid the strong
medicine of a mistrial and to instead deal with the problem by
means of a curative instruction.
II. Motion to Suppress
¶25 	Deprey argues incriminating statements he made during
his interrogation by Detective should have been suppressed
because his Miranda rights were violated. He argues the trial court
erred in denying his motion to suppress because Detective
“discouraged him from getting an attorney.” And he argues
Counsel provided ineffective assistance by failing to raise an
additional ground for suppression based on what he views as
Detective’s flawed articulation of Deprey’s right to remain silent.
Neither argument is availing.

State v. Deprey
20200253-CA 	12 	2024 UT App 190
A. 	Right to Counsel
¶26 	First, Deprey argues the trial court should have granted his
motion to suppress because Detective “actively dissuade[d]” and
“discouraged him from getting an attorney.” We disagree. If a
“suspect effectively waives his right to counsel after receiving the
Miranda warnings, law enforcement officers are free to question
him.” Davis v. United States, 512 U.S. 452, 458 (1994). “But if a
suspect requests counsel at any time during the interview, he is
not subject to further questioning until a lawyer has been made
available or the suspect himself reinitiates conversation.” Id. This
request must be unambiguous. See id. at 459. And “if a suspect
makes a reference to an attorney that is ambiguous or equivocal
in that a reasonable officer in light of the circumstances would
have understood only that the suspect might be invoking the right
to counsel,” the questioning may continue. Id. (emphasis in
original). Thus, “after a knowing and voluntary waiver of the
Miranda 	rights, 	law 	enforcement 	officers 	may 	continue
questioning until and unless the suspect clearly requests an
attorney.” Id. at 461.
¶27 	It is undisputed that Deprey initially waived his right to
counsel. He later asked Detective, “If I put a pause on this to wait
for my attorney, how long would that take?” This was not a clear
request for counsel. See State v. Garcia-Flores, 2021 UT App 97,
¶ 23, 497 P.3d 847 (holding that a defendant asking, “Is it, uh,
possible to have a lawyer?” was an ambiguous request for
counsel) (quotation simplified), cert. denied, 502 P.3d 271 (Utah
2021). Nor did Detective dissuade or discourage Deprey from
invoking that right. After Deprey asked how long it would take to
wait for an attorney, Detective said, “I have no idea. I have no idea
like I said that’s a right of yours.”3 He later told Deprey he was
3. In Davis v. United States, 512 U.S. 452 (1994), the United States
Supreme Court recognized that, “[o]f course, when a suspect
makes an ambiguous or equivocal statement it will often be good
police practice for the interviewing officers to clarify whether or
(continued…)

State v. Deprey
20200253-CA 	13 	2024 UT App 190
“more than welcome to get a lawyer,” although he indicated the
lawyer would likely prevent Deprey from being able to continue
telling his story. Despite this comment, Detective did not actively
dissuade or discourage Deprey from seeking counsel; indeed,
Detective maintained throughout the interview that Deprey had
the right to an attorney, indicating he “want[ed Deprey] to
understand” that Deprey had this right. Thus, Deprey’s right to
counsel was not violated and the trial court did not err in denying
his motion to suppress on this basis.
B. 	Right to Remain Silent
¶28 	Second, Deprey argues Counsel was ineffective in failing
to 	argue 	for 	suppression 	based 	on 	Detective’s 	purportedly
inadequate articulation of Deprey’s right to remain silent. To
prove ineffective assistance, Deprey “must demonstrate both that
Counsel’s performance was deficient and that Counsel’s deficient
performance was prejudicial.” State v. Cook, 2017 UT App 8, ¶ 11,
391 P.3d 391 (quotation simplified). “Failing to file a futile motion
does 	not 	constitute 	ineffective 	assistance 	of 	counsel.” 	Id.
(quotation simplified). In this case, Counsel was not ineffective
because a motion to suppress based on Detective’s articulation of
Deprey’s right to remain silent would have been futile.
¶29 	“While Miranda is recognized as obligating police to follow
certain procedures in their dealings with an accused, the decision
did not prescribe that law enforcement officers adhere to a
verbatim recitation of the words of the opinion.” State v. Werner,
2003 UT App 268, ¶ 7, 76 P.3d 204 (quotation simplified). See also
State v. Smith, 2019 UT App 141, ¶ 23, 449 P.3d 971 (“Miranda
warnings need not be repeated word for word.”), cert. denied, 456
P.3d 390 (Utah 2019). “In reviewing the adequacy of Miranda
warnings, our inquiry is simply whether the warnings reasonably
convey to a suspect his rights as required by Miranda.” Smith, 2019
not he actually wants an attorney.” Id. at 461. But the Court
“decline[d] to adopt a rule requiring officers to ask clarifying
questions” in such situations. Id.

State v. Deprey
20200253-CA 	14 	2024 UT App 190
UT App 141, ¶ 23 (quotation simplified). Detective informed
Deprey that although it was a technicality, they needed to “go
over” Deprey’s rights so that Deprey would “know [he did not]
have to talk to [Detective]” that day. Detective then told Deprey,
“[T]his is voluntary. . . . If you decide to talk to me today, you can
stop at any time and request an attorney at the same time.” He
then asked Deprey whether he wanted to speak with him.
Together, 	these 	statements 	clearly 	informed 	Deprey—who
apparently indicated he had heard these warnings “a million
times”—that he did not have to speak to Detective; in other
words, that he could remain silent. Thus, Detective adequately
apprised Deprey of this right. Because urging otherwise would
have been futile, Counsel did not perform deficiently in failing to
argue 	this 	ground 	in 	support 	of 	the 	motion 	to 	suppress.
Accordingly, Deprey’s ineffective assistance claim fails.
III. Jury Instruction
¶30 	Finally, Deprey takes issue with the jury instruction that,
with our emphasis, read:
You cannot convict the defendant of this offense
unless you find beyond a reasonable doubt, based on
the evidence, each and every one of the following
elements:
1. 	the 	defendant, 	Lucas 	Marc 	Deprey, 	is
GUILTY of Murder,
and
2. 	the defendant proved by a preponderance of the
evidence that he was under extreme emotional
distress 	and 	there 	was 	a 	reasonable
explanation for the distress.
Deprey argues the instruction improperly stated his burden of
proof, stacking the “beyond a reasonable doubt” standard atop

State v. Deprey
20200253-CA 	15 	2024 UT App 190
his 	burden 	to 	prove 	extreme 	emotional 	distress 	“by 	a
preponderance of the evidence.” He argues the trial court plainly
erred 	in 	submitting 	this 	flawed 	instruction 	to 	the 	jury.
Alternatively, he argues Counsel provided ineffective assistance
in failing to object to it.
¶31 	The 	jury 	instruction 	is 	indeed 	problematic 	given 	the
conflicting 	statements 	regarding 	the 	burdens 	of 	proof. 	But
because both ineffective assistance of counsel and plain error
require Deprey to show that he was prejudiced by the jury
instruction—i.e., that “absent the error, there is a reasonable
likelihood of a more favorable outcome.” State v. Popp, 2019 UT
App 173, ¶ 36, 453 P.3d 657 (quotation simplified), cert. denied, 485
P.3d 943 (Utah 2021). See id. ¶ 40 (stating that “the prejudice test
is the same whether under the claim of ineffective assistance or
plain error” and that “failure to meet the plain error requirement
of prejudice means that the defendant likewise fails to meet the
required 	showing 	under 	the 	infective 	assistance 	of 	counsel
standard”) 	(quotation 	simplified). 	While 	we 	agree 	that 	the
instruction nonsensically stacked burdens of proof for extreme
emotional distress, Deprey cannot show that he was prejudiced
thereby.
¶32 	Deprey 	relied 	on 	self-defense 	arguments 	throughout
trial—not extreme emotional distress. And he presented scant
evidence to support such an argument. Counsel did ask Deprey,
“Prior to walking up to the car and such, were you having
emotional distress from what you’d heard about [Friend] and the
threats that you heard about against you?” Deprey answered that
he “was anxious” and had “cool[ed] off a little bit,” although
seeing Driver “heightened [his] anxiety.” But Counsel did not
develop this further and did not argue extreme emotional distress
to the jury in opening statements or closing arguments. Even if he
had, the instruction immediately following the one at issue here
correctly informed the jury, with our emphasis, that “[t]he burden
lies with the defendant to prove ‘extreme emotional distress’ by a
preponderance of the evidence.”

State v. Deprey
20200253-CA 	16 	2024 UT App 190
¶33 	Simply stated, this case was not about extreme emotional
distress. Even had the jury instruction been correct, we see no
likelihood of a different outcome for Deprey. Thus, Deprey cannot
show he was prejudiced in this regard, and his claims of plain
error and ineffective assistance fail.4
CONCLUSION
¶34 	Although 	Detective’s 	statement 	about 	Deprey’s 	legal
inability to own a gun was unfortunate, the trial court did not
abuse its discretion in denying Deprey’s motion for a mistrial.
Neither of Deprey’s arguments regarding suppression of his
statements made during his interrogation are availing. And
flawed as the challenged jury instruction regarding extreme
emotional distress was, Deprey cannot show he was prejudiced
by it.
¶35 	Affirmed.
4. Deprey also argues all these alleged errors cumulate to warrant
reversal. 	But 	because 	we 	conclude 	that 	none 	of 	his claims
constitute error, there is nothing to cumulate, and his cumulative
error claim likewise fails. See State v. Kufrin, 2024 UT App 86, ¶ 64
n.5, 551 P.3d 416.