The Utah Court of Appeals will be taking another look at the case of Michael Waddell Johnson, who was convicted in 2010 of first-degree felony murder in the death of his former common-law wife.
In July 2014, the Court of Appeals issued a 2-1 decision overturning Johnson’s conviction based on a misstatement in a jury instruction and sent the case back to 3rd District Court for a new trial.
But the state appealed and on Tuesday, the Utah Supreme Court reversed the decision in a 5-0 opinion. The opinion said the Court of Appeals was precluded from reviewing the jury instruction because that issue had not been raised at trial or argued on appeal.
However, the Court of Appeals can consider other arguments raised in the appeal that it did not resolve in its 2014 decision, the Supreme Court said. The Court of Appeals did not address additional arguments after reaching the decision on the jury instruction that overturned the conviction.
Johnson’s ex, 40-year-old Cathy Cobb, is believed to have died Jan. 10, 1998, in her Salt Lake City apartment, Her body was found two days later by her son.
Police said the death was suspicious and interviewed Johnson at the time but he was not considered a suspect, according to court documents.
The matter was closed six months later but reopened in 2005 during a review of old cases, which led to Johnson being charged with murder. Prosecutors charged him with alternate counts, one based on a theory of intentional murder and the other based on a theory of depraved indifference murder, both first-degree felonies.
Experts who testified at trial had split opinions on the most likely cause of death, with a Utah state medical examiner saying he believed it was strangulation and a Michigan medical examiner saying it likely was drug and alcohol intoxication.
Third District Judge Judith Atherton granted a defense request to allow the jury to also consider the lesser charge of homicide by assault. Johnson was convicted of the more-serious charge of intentional murder and sentenced to five years to life in prison.
Johnson’s appeal said the verdict form returned by the jury did not list the homicide by assault option — a charge that carries a term of up to five years — and a separate verdict form for the lesser offense was missing from the trial records.
The Court of Appeals majority opinion said the jury instruction on homicide by assault misstated the state of mind required for a defendant to be found guilty of the crime, making the question of whether the jury ever got the verdict form irrelevant.
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