State v. Johnson, 2017 UT 70

Background

Michael Johnson was tried and convicted of murder for strangling a woman; he requested and the trial court agreed to give a lesser‑included jury instruction for homicide by assault, using the instruction defense counsel submitted.
The jury convicted Johnson of murder; the signed record verdict form did not show a separate verdict for the lesser offense and the trial court later said it could not locate a homicide‑by‑assault verdict form but recalled sending the form with the jury.
On appeal Johnson argued the verdict form omitted the lesser offense option and that a causation instruction was erroneous; the Utah Court of Appeals sua sponte asked for supplemental briefing on whether the homicide‑by‑assault instruction itself was erroneous.
After supplemental briefing the court of appeals reversed Johnson based on an instructional error it concluded existed, even though Johnson had not preserved an objection and had submitted the instruction (invited error); the panel wrote separately and split on reasoning.
The Utah Supreme Court granted certiorari to decide whether the court of appeals properly invoked the "exceptional circumstances" preservation exception to address an unpreserved and unargued (and likely invited) instructional error.
The Supreme Court held the court of appeals erred: the exceptional circumstances exception did not apply, invited‑error and preservation principles bar review here, and the case was remanded for consideration of Johnson’s other preserved appellate claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of Appeals properly reviewed a jury instruction error that was not preserved at trial and not argued on appeal	The court of appeals may reach unpreserved issues under the exceptional circumstances exception and Robison	Johnson: error was invited (defense submitted the instruction) and not preserved; no exceptional circumstances; ineffective assistance not argued	The Court: court of appeals erred; exceptional circumstances do not apply; invited‑error and preservation prevent review; reverse and remand
Whether Robison expanded exceptional circumstances to allow sua sponte reversal on unpreserved, unargued issues	Robison supports appellate sua sponte review when injustice would result and supplemental briefing is sought	Johnson: Robison does not override preservation or invited error doctrines	The Court: Robison did not expand exceptional circumstances; clarify Robison governs sua sponte waiver issues but does not permit circumvention of preservation/invited‑error rules
Whether plain error, ineffective assistance, or exceptional circumstances excused preservation here	(as applied by COA) plain error/exceptional circumstances justified review	Johnson: invited error; no ineffective assistance was timely raised; no rare procedural anomaly	The Court: plain error and ineffective assistance exceptions inapplicable; no rare procedural anomaly -> exceptional circumstances fail
Whether appellate courts may raise waived/unpreserved issues sua sponte and when supplemental briefing is required	Court of Appeals: may, under narrow standards (Robison) and after requesting argument	Johnson: sua sponte reversal here prejudiced by preservation/invited‑error; supplemental briefing insufficient to cure	The Court: appellate courts have limited discretion to raise waived/unpreserved issues only in specified, narrow circumstances; supplemental briefing usually required, but not enough here

Key Cases Cited

State v. Robison, 147 P.3d 448 (Utah 2006) (addresses when appellate court may raise waived issues sua sponte and the need for party argument)
Patterson v. Patterson, 266 P.3d 828 (Utah 2011) (articulates preservation doctrine and that exceptions are prudential)
State v. Holgate, 10 P.3d 346 (Utah 2000) (plain‑error standard and preservation policy)
Adoption of K.A.S., 390 P.3d 278 (Utah 2016) (clarifies exceptional circumstances as tied to rare procedural anomalies)
State v. Lopez, 886 P.2d 1105 (Utah 1994) (limits exceptions allowing unpreserved constitutional claims)
State v. Gibbons, 740 P.2d 1309 (Utah 1987) (distinguishes plain error and exceptional circumstances and requires showing of procedural anomaly)
State v. Breckenridge, 688 P.2d 440 (Utah 1983) (historical discussion of palpable error and its later reinterpretation)
State v. McNeil, 365 P.3d 699 (Utah 2016) (standard of appellate review for preservation issues)