Utah Supreme Court hears arguments in Johnson v. State over flawed jury instruction, appellate counsel performance

At an oral argument before the Utah Supreme Court, justices considered whether an earlier Court of Appeals ruling finding an erroneous jury instruction in Johnson v. State should carry precedential weight and whether appellate counsel’s failure to press that instruction on appeal amounted to ineffective assistance.

The case matters because petitioner Vincent Johnson (identified in the record as the defendant) has been serving a murder sentence for nearly two decades and contends that a mistaken jury instruction on the lesser-included offense of homicide by assault deprived him of a realistic path to a lesser conviction. Defense counsel argued that the erroneous instruction made the lesser option functionally indistinguishable from the murder charge and that, had the jury been properly instructed, there is a reasonable probability at least one juror would have reached a lesser verdict.

Defense counsel (identified in the transcript only as "defense counsel") told the court that "my client, Mr. Johnson, has been incarcerated for almost 20 years now" and urged the justices to credit a Court of Appeals decision that previously found the instruction undermined confidence in the verdict. Counsel said the earlier appellate panel had reached the underlying merits after a full hearing and that the Supreme Court should treat that decision as carrying some horizontal precedential force, even though this court later reversed and remanded on procedural grounds.

Daniel Day, counsel for the state, responded that the post-conviction court properly rejected the ineffective-assistance claim because the record does not support a finding of prejudice. Day argued that once a jury convicts on the greater offense, many controlling Utah precedents treat an error in a lesser-included instruction as harmless and that appellate counsel was objectively reasonable in prioritizing other issues on appeal. "We presume that the jury follows instructions," Day said, arguing that Strickland-style speculation about what the jury might have done would be improper.

Both sides addressed whether the Supreme Court’s prior order reversing and remanding the earlier Court of Appeals decision left that decision with any precedential weight. Defense counsel argued there was at least some precedential effect because the Court of Appeals had considered the merits and its ruling was not later overturned on the merits; the state urged the court not to read such effect into a reversal for procedural reasons.

The parties also debated the factual record and whether it supports a plausible counterfactual in which a properly instructed jury would have convicted for homicide by assault rather than intentional murder. The transcript includes the state’s description of the medical-examiner testimony that the victim had hemorrhaging around neck muscles and a fracture of the cartilage that surrounds the trachea, testimony the examiner described as an uncommon injury requiring substantial force. The state also cited testimony from a jailhouse informant who said the defendant confessed, and the state emphasized that the medical and witness evidence made an intentional-murder verdict a reasonable outcome under the record.

Defense counsel countered that the same medical and toxicology evidence could plausibly be read in multiple ways, and pointed to defense experts and cross-examination of the state’s expert suggesting that no single injury or factor necessarily proved an intent to kill. Counsel also highlighted credibility issues with the cooperating witness (prior false statements and expected benefit for testifying). Citing the Utah cases the defense relies on, counsel asked the court to consider the theoretical factual scenarios a jury might have adopted and to conclude that at least one such scenario could have produced a lesser verdict.

Throughout argument the justices questioned both sides on two recurring points: (1) whether the presence in the statute of the phrase "under circumstances not amounting to" (as used in the homicide-by-assault instruction) should be treated as a substantive element that forecloses a prejudice finding when a jury convicts of the greater offense, and (2) whether a Supreme Court reversal that remanded on unrelated procedural grounds effectively nullifies the Court of Appeals’ merits analysis or leaves it with persuasive force.

Counsel for both sides drew the court’s attention to Utah authorities including State v. Grunewald, Norton, Daniels, Pearson, Gottschall, and Stanford as well as the federal Strickland standard for ineffective assistance and U.S. Supreme Court precedent on lesser-included-error doctrine such as Keeble and Becker. The parties differed about which authorities control and how they apply when the challenged instruction contains statutory language that tells jurors not to consider the lesser offense if they find the greater offense.

The court took the case under advisement after argument. The next matter on the calendar was introduced as Grama School District v. Labor Commission; the argument in Johnson v. State concluded when justices recessed to consider the issues.