State v Johnson

The State sought review of the Utah Court of Appeals decision to reach an issue sua sponte and reverse Johnson’s murder conviction. The Court, with Justice Lee concurring in judgment, reversed. The majority reviewed the history of appellate review and Utah’s approach to preservation of issues by rising them before the trial court and waiver of issues by failure to argue it in the briefing, held that while precedent has evolved over time, and explained failure to preserve can be overcome through the plain error exception which requires a showing that the error was obvious under existing law and a different outcome was likely, the ineffective assistance of counsel exception which only applies in criminal cases and requires prejudice meaning a likely different outcome or the “exceptional circumstances” exception which only applies only when a rare procedural anomaly like failure to move for withdrawal of guilty plea when a statute allows such a  motion at any time, the repeal of the criminal statute involved during appeal or making a state constitutional argument on appeal when no need arose at trial and this exception is not a free floating invitation to reach unpreserved error. It held that it is appropriate in some circumstances for either the Court or the Court of Appeals to sua sponte raise issues which either when an issue is preserved or none of the three exceptions applies, the issue is waived through failure to brief it, the error is astonishingly erroneous but undetected, the losing party will not be subject to great and manifest injustice (which is almost always limited to criminal defendants losing personal freedoms) and neither party would be unfairly prejudiced such as requiring presentation of new evidence or proof the proceedings below would have been different and may also sua sponte reach issues which are unpreserved and which were waived when the issue involves subject matter jurisdiction or joinder of a necessary party or when the issue is purely legal, is almost certain to rise in other cases and analysis will assist in the analysis of those future cases, deciding the issue is necessary to correctly determine a preserve, properly presented issue and no unfair prejudice will result. The majority held that the Court of Appeals erred in reaching the issue of whether a jury instruction misstated a mens rea element because any error was invited, the issue is unlikely to arise again, the issue does not involve subject matter jurisdiction nor is there a statute which authorized review, ineffective assignee was never raised and there are no rare procedural anomalies as mere attorney oversight does not qualify. The case was remanded to consider Johnson’s other arguments. Justice Lee concurred in judgment arguing that parties not the appellate courts identify the issues to be decided and would abolish any authority for the Court or Court of Appeals to sua sponte identify new claims of error.