State v. Johnson

• Decision Date: 03 July 2014
• Docket Number: No. 20100393–CA.,20100393–CA.
• Citation: 330 P.3d 743,764 Utah Adv. Rep. 18
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael Waddell JOHNSON, Defendant and Appellant.

330 P.3d 743

764 Utah Adv. Rep. 18

STATE of Utah, Plaintiff and Appellee,

v.Michael Waddell JOHNSON, Defendant and Appellant.

No. 20100393–CA.

Court of Appeals of Utah.

July 3, 2014.

Ronald Fujino, for Appellant.

Sean D. Reyes and Karen A. Klucznik, for Appellee.

Judge JAMES Z. DAVIS authored this Opinion, in which Judge STEPHEN L. ROTHconcurred, with opinion, and Senior Judge RUSSELL W. BENCH dissented, with opinion.¹

Opinion

DAVIS, Judge:

¶ 1Michael Waddell Johnson appeals from a conviction of murder, a first-degree felony, following a jury trial in March 2010.We reverse and remand.

BACKGROUND

¶ 2 The deceased (Decedent) in this case was discovered dead on the night of Monday, January 12, 1998, by her son.²She was found lying on her bed fully clothed and wearing shoes.The medical examiner who performed the autopsy explained that Decedent had high levels of alcohol and cocaine in her system.The medical examiner also found that she had sustained injuries to her face and mouth; two small, bloody puncture marks on her left clavicle; hemorrhaging in several muscles on the left side of her neck; and a fracture in the “cricoid” cartilage below her larynx.He characterized the injuries to the face and mouth as recent and indicative of “a blow or direct trauma to that area,” and attributed the hemorrhaging in the neck muscles, the cartilage fracture, and abrasions on Decedent's chin as most likely the result of strangulation.He ultimately assigned the cause of death as “asphyxia by strangulation” and marked the high levels of cocaine and alcohol detected in her blood stream as “significant” and “contributory to her death.”

¶ 3 Johnson was interviewed by authorities during the police investigation following Decedent's death.He told authorities that he and Decedent went to a party and used cocaine on the night of her death—Friday, January 9, 1998.He was not considered a suspect at that time, and the investigation was eventually closed in June 1998“as a suspicious death.”

¶ 4 Several years later, in 2005, the cold case was reopened and assigned to a new homicide detective (Detective).Detective began his investigation by submitting DNA samples from Decedent and Johnson for analysis.The analysis identified the presence of Johnson's DNA on fingernail clippings that were taken from Decedent during the initial investigation.Detective re-interviewed Johnson, at which time Johnson described having had an on-and-off romantic relationship with Decedent.He admitted to Detective that he sometimes “slapped [Decedent] around” when they were drinking but that they were in the process of patching things up and getting back together.Johnson also told Detective that he and Decedent had used cocaine at his daughter's house the night of Decedent's death before going to the party that he had told the police about during the initial investigation.He indicated that Decedent left the party before him, that he was later picked up from the party by two friends, and that he stayed at a friend's apartment for the rest of the weekend.Detective interviewed other individuals who recounted the circumstances surrounding Decedent's death in ways that conflicted with Johnson's account.One individual informed Detective that Johnson had admitted to him that he had strangled Decedent to death.

¶ 5 Johnson was ultimately charged with alternative counts of murder, one based on a theory of intentional murder and the other based on a theory of depraved indifference murder, both first-degree felonies.See generallyUtah Code Ann. § 76–5–203(2)(a), (2)(c), (3)(a)(LexisNexis 2012).At trial, the primary controversy was over causation—whether Decedent's physical injuries were caused by a fall, an altercation, or strangulation and whether she died primarily as a result of the mixture of alcohol and cocaine in her system or from strangulation.

¶ 6 The testimony of the medical examiner, called as a witness for the State, illustrates the complexity and closeness of the causation issue.He testified that it was possible that Decedent's injuries were caused by a fall, punch, kick, or other “blunt-force trauma,” including the injuries he ultimately attributed to strangulation.He noted that none of Decedent's injuries were, on their own, sufficient to cause death and that it is “possible that an individual could sustain [all of] those injuries and still survive.”He further testified that Decedent's blood alcohol level of 0.33 could potentially have caused her death “in and of itself,” that 0.33 is “slightly greater than four times the legal limit,” and that other physiological indicators suggested that Decedent was likely still absorbing alcohol, i.e., becoming more intoxicated, at the time of her death.Additionally, the medical examiner testified that cocaine, even in “small amount[s],” can be deadly and that Decedent had a “significant amount of cocaine” in her system.The medical examiner also noted that there were track marks on Decedent's body which “most likely” indicated that she had been an intravenous drug user.Furthermore, the medical examiner testified that the human body, in response to the combination of alcohol and cocaine in the system, produces a third substance, cocaethylene, that “is [thought] to be more toxic to the heart than the cocaine itself.”The medical examiner testified that the combination of intoxicants in a person's system during an altercation can also “[m]ake an individual more susceptible to the injuries sustained,” while the physiological response to being in an altercation can “increase the effects of the drugs and alcohol.”In other words, the medical examiner testified that Decedent could have died “just from the cocaine intoxication or just from the alcohol or a combination,” though he believed strangulation to be the most likely cause.

¶ 7 On redirect, however, he also testified that as “a scientist”he never “foreclose[s] possibilities totally” because “anything can happen.”He explained that his determination that something is “more likely or probable” means that “the odds are that this is the type of event that took place, as opposed to just some reaching type of hypothetical.”He also testified that there is no exact amount of a drug or alcohol that is necessarily deadly because individuals have varying tolerances to intoxicants and that where Decedent was apparently both an intravenous drug user and potentially an alcoholic, she presumably had a higher tolerance of those substances and their combined effects.In other words, the levels that may have been fatal to one person may not necessarily have been fatal to Decedent.³

¶ 8 Johnson's expert witness, a forensic pathologist and a chief medical examiner in Michigan, agreed with the medical examiner's analysis on many points—the general time of death estimate provided; that there was evidence of an altercation; that strangulation was a plausible consideration; and that the combined effects of alcohol, cocaine, and the physiological responses to an altercation could have contributed to Decedent's death.The primary difference between the two experts' analyses was which set of factors each believed more likely caused Decedent's death.Johnson's expert believed that “the primary cause associated with [Decedent's] death [was] the drug and alcohol intoxication.”He explained that though “there is evidence of an altercation,” it is “not sufficient evidence ... to outright call a strangulation cause of death,” particularly in light of the intoxication evidence.He stated that “[t]he toxicology testing demonstrates a very high level of alcohol and a combination of alcohol and cocaine intoxication” that is “not disputed and can't be disputed.”In light of that evidence, Johnson's expert believed that although strangulation could not be entirely excluded as a possible cause of death or contributing factor, he“would not necessarily associate the [injuries from the] altercation with a specific act of strangulation”; rather, he opined that some of the injuries Decedent sustained only “potentially could have been the result of neck injury associated with a strangulation.”Like the medical examiner, Johnson's expert could not be totally certain which was the cause of death, noting that “the evidence in this case does not allow distinct separation between three different [cause of death] possibilities” because each possibility was “reasonable ... based on the evidence.”⁴

¶ 9The trial court granted Johnson's request for a jury instruction on the lesser included offense of homicide by assault, and the court agreed to prepare the corresponding verdict form.The trial court read the instructions to the jury, including an instruction on the elements of homicide by assault, and later observed that it included the same elements instruction in the jury instruction packet.The jury ultimately found Johnson guilty of intentional murder.The verdict form returned by the jury, however, did not list the homicide by assault option, and a separate verdict form for the lesser included offense is missing from the trial record.Omitting the trial court's heading and captioning, the verdict form the jury received stated,

We, the Jurors empaneled in the above case, find the defendant, MICHAEL WADDELL JOHNSON,

______ Guilty of Criminal Homicide, Murder, intentionally and knowingly causing the death of [Decedent]

Or

______ Guilty of Criminal Homicide, Murder, acting under circumstances evidencing depraved indifference to human life

Or

______ Not guilty of Criminal Homicide, Murder.

DATED this—day of ______ 2010.

__________

FOREPERSON

¶ 10 Johnson appeals his conviction, arguing that the missing verdict form indicates that the trial court did not actually provide a verdict form for the lesser included offense of homicide by assault and that this omission is reversible error.Upon the filing of Johnson's appeal, this court granted the State's remand request to allow the...