State v. Johnson

Decision Date03 October 2017
Docket NumberNo. 20140794,20140794
Citation2017 UT 70
PartiesSTATE OF UTAH, Appellee, v. MICHAEL WADDELL JOHNSON, Appellant.
CourtUtah Supreme Court

This opinion is subject to revision before final publication in the Pacific Reporter

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Judith S. H. Atherton

No. 071900184


Sean Reyes, Att'y Gen., Karen Klucznik, Asst. Solic. Gen., Salt Lake City, for appellee

Ronald Fujino, Salt Lake City for appellant

JUSTICE DURHAM authored the opinion of the Court in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE KELLY joined.

ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.

Having recused himself, JUSTICE PEARCE does not participate herein; DISTRICT COURT JUDGE KEITH KELLY sat.

JUSTICE DURHAM, opinion of the Court:


¶1 Michael Johnson was found guilty of murder for strangling a woman in her apartment. Mr. Johnson appealed his conviction. On appeal, the court of appeals identified an issue that was not argued by the parties and ordered supplemental briefing, ultimately reversing Mr. Johnson's conviction. We have granted certiorari review to answer a single question: whether the court of appeals correctly concluded that exceptional circumstances merit review of an issue not preserved in the trial court and not argued on appeal. We hold that the exceptional circumstances exception to the preservation rule does not apply here, and we reverse the court of appeals and remand this case so that it may consider the appellant's other unaddressed claims of error.


¶2 Michael Johnson was charged and tried for murder. At trial, Mr. Johnson requested an instruction for the lesser offense of homicide by assault. The trial court agreed and stated on the record that it would use the homicide by assault instruction submitted by Mr. Johnson.

¶3 The jury returned a guilty verdict on the murder charge, and Mr. Johnson appealed his conviction to the court of appeals. He argued that his conviction should be reversed because the verdict form returned by the jury did not include an option to find him guilty of the lesser offense of homicide by assault1 and that the jury instruction on causation was erroneous. State v. Johnson, 2014 UT App 161, ¶ 11 & n.5, 330 P.3d 743.

¶4 The court of appeals asked for supplemental briefing on an issue that Mr. Johnson had not raised on appeal: whether the homicide by assault jury instruction was erroneous. Id. ¶¶ 12-13. After supplemental briefing, the court of appeals reversed Mr. Johnson's conviction based upon its conclusion that the homicide by assault instruction was erroneous, id. ¶ 29, with each judge on the three-member panel writing separately. The court acknowledgedthat Mr. Johnson never preserved an objection to the instruction and that Mr. Johnson likely invited the error by submitting the instruction to the court. Id. ¶ 14. The court of appeals decided, however, that the exceptional circumstances exception to the preservation rule permitted the court to examine the unpreserved and likely invited error. Id. ¶¶ 14-19. A majority of the panel reached this conclusion by determining that our decision in State v. Robison, 2006 UT 65, 147 P.3d 448, expanded the doctrine of exceptional circumstances. Johnson, 2014 UT App 161, ¶¶ 16-19, 30-31.

¶5 This court granted a petition for certiorari review of the court of appeals' opinion. We agreed to answer "[w]hether the majority of the panel of the court of appeals erred in its application of the exceptional circumstances doctrine to a case in which it acknowledged the error may have been invited and in which Respondent did not argue ineffective assistance of counsel."


¶6 We review the court of appeals' application of the preservation rule for correctness. State v. McNeil, 2016 UT 3, ¶ 14, 365 P.3d 699. "This standard of review allows us to apply the [appellate] doctrines at issue here as if we were the first appellate court to consider them." Id.


¶7 The court of appeals erred when it determined that State v. Robison, 2006 UT 65, 147 P.3d 448, extended the application of the exceptional circumstances exception to preservation. Given the ambiguity in our precedent, we undertake clarification of when an appellate court may reach an issue that was not preserved in the trial court, and when it may reach an issue sua sponte that was waived by the parties on appeal. We first discuss the historical background against which our rules of preservation and waiver developed, and then we address preservation and waiver and their respective exceptions. Finally, we apply these standards to the case before us.

A. Writ of Error and Appeal in Equity

¶8 Our appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments. See Patterson v. Patterson, 2011 UT 68,¶ 16, 266 P.3d 828 ("Under our adversary system, the responsibility for detecting error is on the party asserting it, not on the court."); State v. Larrabee, 2013 UT 70, ¶ 15, 321 P.3d 1136. This system preserves judicial economy and fairness between the parties. Patterson, 2011 UT 68, ¶¶ 15-16.

¶9 Notwithstanding the dominance of this model, our system of appeals has roots in two separate and distinct methods of review available under the old English court system: the writ of error and the appeal in equity. The writ of error was used to review an order or judgment of an English court of law; an appeal in equity was used to review a ruling in a court of equity. Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L. REV. 1253, 1263 (2002). Writs of error were strictly limited to reviewing orders and judgments made by the court of law on issues raised in that court. Id. Conversely, "[a]ppellate courts in equity were free to consider any issue de novo" and "developed flexible procedures to address the needs of individual cases." Id.

¶10 While American courts have developed an appellate system with strict rules governing what issues an appellate court will address, thus more closely resembling the writ-of-error model, both the writ of error and the appeal in equity were consolidated into one set of appellate courts. See id. at 1264 (noting that the writ of error and appeal in equity were combined in U.S. appellate courts, with "[o]ne set of appellate courts administer[ing] both"); Goldberg v. Jay Timmons & Assocs., 896 P.2d 1241, 1242 (Utah Ct. App. 1995) ("Historically, parties could bring actions in a court of law or a court of equity. For procedural purposes, the distinction between law and equity has been abolished and only 'one form of action . . . known as civil action,' remains." (alteration in original) (citations omitted)); cf. Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 20, 194 P.3d 931 (establishing standard of review for cases in equity as opposed to cases at law). This has created a system that, at times, appears to contain inherent conflicts and has given rise to a certain tension, if not murkiness, regarding preservation, waiver, and when a court may raise an issue sua sponte.

¶11 Our court's history in this regard is not unique. Appellate judges across the country have wrestled with the correct balance between law and equity and the scope of review on appeal. See Miller, supra ¶ 9 at 1271 (noting that despite a party's duty to raise issues, appellate judges raise issues sua sponte because they "also see their role as doing justice in the tradition of equity"). For instance, in one case the late Justice Antonin Scalia wrote, "[t]he rule that pointsnot argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one." United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring). Yet elsewhere he stated that "the refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary." Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring).

¶12 Despite this historical tension between the two systems, and our general reliance on strict rules governing preservation and waiver, we have maintained that our waiver and preservation requirements are "self-imposed and [are] therefore [doctrines] of prudence rather than jurisdiction." Patterson, 2011 UT 68, ¶ 13. "Consequently, we exercise wide discretion when deciding whether to entertain or reject" issues that are unpreserved at trial or waived on appeal. Id.; see also Salt Lake City v. Carrera, 2015 UT 73, ¶ 17, 358 P.3d 1067 ("[W]e . . . retain discretion over whether to consider issues not raised by the parties."); Utah Dep't of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 8, 275 P.3d 208 (raising the validity of precedent sua sponte). We retain this discretion to "balance the need for procedural regularity with the demands of fairness." State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (citation omitted).

Regardless of whether the practice of appellate courts in raising issues sua sponte that have not been raised in the trial court is analyzed under the law versus equity model or the adversarial versus inquisitorial system model, there is widespread agreement that appellate courts have the authority to engage in this practice.

Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Connecticut, 84 A.3d 840, 859 (Conn. 2014).

¶13 In an effort to serve the policy considerations of judicial economy and fairness to the parties, to preserve the adversarial model, and to...

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  • State v. Rettig
    • United States
    • Utah Supreme Court
    • November 22, 2017
    ...on litigants to raise issues at the necessary time to avoid waiving them and to "preserve" those issues for review on appeal. State v. Johnson , 2017 UT 76, ¶¶ 14–15, 416 P.3d 443. The common law of preservation is self-imposed and is one of prudence that is intended to serve the interests ......
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    ...supreme court] ha[s] the authority to decide on whatever grounds we deem appropriate, regardless of preservation or presentation." State v. Johnson, 2017 UT 70, ¶ 43, ___ P.3d ___ (alterations in original) (citation omitted). Typically, however, appellate courts under these circumstances wo......

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