State v. Johnson

ROTH, Judge

(concurring):

130 The lead opinion concludes that we may review an error in a jury instruction that was unpreserved below and unargued on appeal based on the supreme court's opinion in State v. Robison, 2006 UT 65, 147 P.3d 448. In that case, the court explained that where an appellate court notices an "astonishingly erroneous but undetected ruling" that would "subject the losing party ... to great and manifest injustice," the court may address the issue, but only if it invites supplemental briefing from the parties Id. (citation and internal quotation marks omitted). Because the jury instruction is clearly defective and the issue "is at the heart of Johnson's primary argument on appeal," the lead opinion concludes that "exceptional cireumstances permit our review of the jury instruction issue here." See supra 118. In dissent, Judge Bench argues that Johnson's counsel invited any error, and in a footnote he questions the applicability of the "extraordinary cireumstances" exception in this context, noting that Robison did not discuss it. See infro 148 n. 2.

131 Our court has determined that "the plain error and exceptional cireumstances exceptions are sufficiently broad to encompass any situation requiring Utah's appellate courts to consider a constitutional issue for the first time on appeal in the interest of justice." State v. Archambeau, 820 P.2d 920, 926 (Utah Ct.App.1991) (internal quotation marks omitted); see State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994) (adopting Archam-beaw's statement about plain error and exceptional cireumstances). Thus, it seems that whatever preservation exception Robi-son recognized, it should fit into one of these two exceptions. The Robison court noted that the plain error exception did not apply, see 2006 UT 65, ¶ 15, 147 P.3d 448, and the case it cited for the proposition that an appellate court can invite supplemental briefing on an unpreserved issue has been recognized as an exceptional cireumstances case, see id. 1 24 (citing State v. Breckenridge, 688 P.2d 440, 441-43 (Utah 1983)); Archambeau, 820 P.2d at 924 (noting that Breckenridge is an exceptional cireumstances case). So it appears that the Robison exception to the preservation requirement must be at least a kind of exceptional cireumstance.

32 The exceptional cireumstances exception is "ill-defined," however. State v. Holgate, 2000 UT 74, ¶ 12, 10 P.3d 346. And it may be that courts have avoided placing clear limits on that exception because it is meant to be a rarely used safety valve, permitting review of errors so serious that ignoring them would not only be manifestly unjust to a particular defendant, but would also undermine the public's confidence in the integrity and efficacy of our system of justice. For example, the Utah Supreme Court has recognized that exceptions to the preservation rule reflect the need to " 'balance ... procedural regularity with the demands of fairness," noting that "'[alt bottom, the plain error rule's purpose is to permit us to avoid injustice."' Id. 113 (quoting, respectively, State v. Verde, 770 P.2d 116, 122 n. 12 (Utah 1989), and State v. Eldredge, 773 P.2d 29, 35 n. 8 (Utah 1989)).

133 As a consequence, while I concur in Judge Davis's opinion, I write separately to articulate further why I believe reaching the merits is appropriate despite any invited error and even though the facts here are different in some aspects from recent cases that *755have applied the exceptional cireumstances exception.

TI 34 The supreme court has stated that the exceptional cireumstances exception to the preservation rule "applies primarily to rare procedural anomalies," id. 112 (citation and internal quotation marks omitted), and the court has cautioned that the exception is "applied ... sparingly," being reserved for "the most unusual cireumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice," State v. Nelson-Waggoner, 2004 UT 29, ¶ 23, 94 P.3d 186. The most prominent cases where Utah courts have found exceptional cireumstances and reviewed unpreserved issues are "where a change in law or the settled interpretation of law color{s] the failure to have raised an issue at trial." See Provo City v. Ivie, 2008 UT App 287, ¶ 6, 191 P.3d 841 (citation and internal quotation marks omitted); see also State v. Lopez, 873 P.2d 1127, 1134 n. 2 (Utah 1994); State v. Haston, 846 P.2d 1276 (Utah 1993) (per curiam). For example, in Haston, the supreme court reached an unpreserved issue to reverse a defendant's conviction because while his appeal was pending, the court issued a decision abolishing the offense for which he was convicted. 846 P.2d at 1277. It noted that failing "to consider [the] defendant's assigned error merely because he was tardy or inartful in raising the issue previously strikes us as manifestly unjust." Id.

€35 Admittedly, there is no intervening change in law here that would have affected Johnson's decision to object to an error in the jury instructions like there was in Ho-ston. But allowing Johnson's conviction to stand despite a fatally flawed jury instruction that misstated a material element of a plausible lesser included offense with significantly reduced consequences (zero to five years for homicide by assault versus five years to life for murder) seems to me to be manifestly unjust for reasons already articulated in the lead opinion. And those reasons include troubling cireumstances that I believe qualify this case as a "rare procedural anomally]." See Holgate, 2000 UT 74, ¶ 12, 10 P.3d 346.

For example, the verdict form the trial court claims to have provided to the jury is absent from the official record, and it is missing from the files retained by the State, Johnson's trial attorneys, and the trial court. A central dispute in the parties' initial briefing was whether the trial court had actually given the jury the verdiet form for the lesser included offense. As the lead opinion notes, the undetected error is therefore virtually inseparable from the underlying merits of the issues preserved below and argued on appeal: Does it really matter if the jury received the form if the jury instruction that provided the option of conviction on a lesser offense was itself fatally flawed? And this seems to me to be the basis for taking this issue up, though unpreserved and unargued; if the unpreserved issue bore no relation to the missing verdict form or other arguments Johnson addressed in his initial briefing, I believe we would not be faced with the type of "rare procedural anomaly" that would justify a departure from well-established preservation requirements.

137 The dissent argues that defense counsel invited any error12because after obtaining for his client the considerable benefits of a lesser-included-offense instruction, he appears to have provided one that in effect mirrored the elements of the greater crime, thereby precluding relief on the basis of plain error. And it is generally true that "[blased on the invited error doctrine, ... 'if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction, we will not review the instruction under the manifest injustice exception.'" State v. Halls, 2006 UT App 142, ¶ 13 n. 1, 134 P.3d 1160 (quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111). But the kind of error that warrants Robison's "astonishingly erroneous" description is very likely to involve plain error, *756invited error, and almost inevitably, ineffee-tive assistance of counsel. Such errors are unlikely to occur at trial-and then be overlooked on appeal-without counsel involvement, and the more astonishing the error, the more likely it is to have involved some serious misstep by counsel. So, in such circumstances, invited error should not pose another barrier to review but rather should be acknowledged as an integral aspect of the flawed process that makes the error so astonishing to begin with.

€ 38 The dissent also argues that any error is best left to a postconviction proceeding, a position that has some appeal. For example, while in the face of the error in the jury instruction itself, I could not have joined the dissent's proposed resolution of the original issue by simply affirming the trial court's decision on remand that the jury had indeed received a verdiet form for the lesser included offense, the severity of the instruction error itself suggests another path to affir-mance-we might conclude that the error in the homicide-by-assault jury instruction is egregious enough to render any failure to provide the jury with the corresponding verdict form essentially harmless and then simply affirm on Johnson's failure to have addressed that overarching problem. And the lead opinion sufficiently articulates the error in the jury instruction and its likely significance to the outcome of the case to provide Johnson with a fairly weighty attachment to a potential petition for postconviction relief having obvious substance. The lead opinion, however, has convinced me that the significance of both the substantive error and the rare anomaly that brought it before us unnoticed and unremarked by either Johnson's trial and appellate counsel or by the trial court13clears the bar of Robison's standard-an "astonishingly erroneous but undetected ruling" that would "subject the losing party ... to a great and manifest injustice," 2006 UT 65, ¶ 23, 147 P.3d 448 (internal quotation marks omitted)-in the context of an appeal where the undetected error rendered the issue actually presented to us not simply "harmless," but entirely superfluous. And the ultimate result seems sufficiently foreseeable that to require the defendant to now go through the exercise of clearing the hurdle of unpreserved and invited error by showing ineffective assistance of both trial and appellate counsel in a postconviction proceeding-in which he has no statutory or constitutional right to be represented by counsel at all-in my view, would simply compound a series of serious and inexplicable missteps while doing little to reinforce the integrity of our preservation rules.

139 Finally, I disagree with the dissent's suggestion that the flawed instruction was harmless error because it "may have increased the likelihood of a complete acquittal by overstating the mens rea required for conviction of the lesser offense." See infra 150. Our supreme court has noted that defendants are entitled to lesser-included-offense instructions to "afford[them] the full benefit of the reasonable doubt standard." State v. Baker, 671 P.2d 152, 156 (Utah 1983). Accordingly, the failure to provide such an instruction where it is warranted implicates a defendant's constitutional rights. State v. Oldroyd, 685 P.2d 551, 555 (Utah 1984) (stating that where "the evidence offered in the case would permit a jury to find a defendant guilty of the lesser offense and not guilty of the greater, due process requires that a lesser included offense instruetion must be given"). The interests at issue here are therefore simply too important to leave their protection to the off chance that the jury could have selected a less severe punishment from two instructions that described essentially the same criminal conduct.

40 For these reasons, I concur in Judge Davis's decision.

. - It is not entirely clear to me that trial counsel ended up being the source of the jury instruction. As the lead opinion points out, the court invited Johnson's trial counsel to provide the lesser included offense jury instruction after stating that counsel's proposed instruction "quotes the statute[ ] itself." See supra 114 n. 6. The final instruction, of course, misquotes the statute in a way that deprives Johnson of the benefits of obtaining the instruction in the first place. And the draft instructions Johnson's counsel submitted to the court are not in the record.

. - It is to the State's credit that it pointed out in a footnote in its initial brief that the fury instruction did not correspond to the statute's definition of the offense of homicide by assault. But the State did not explore in depth the details of that divergence or its significance, nor was it required to do so; and we did not come to appreciate the problem until well after oral argument.