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Michael Johnson, who is charged in the January 11,1998 murder of Cathy Cobb, listens to opening arguments in Judge Judith Atherton's courtroom in the Matheson Courthouse in Salt Lake City on Monday, March 8, 2010. Kristin Murphy, Deseret News pool
Utah Court of Appeals overturns Salt Lake City murder conviction
Ruling » Split decision sends Michael Waddell Johnson’s case back to trial court.
First Published Jul 07 2014 08:44 am • Last Updated Jul 07 2014 10:05 pm

The Utah Court of Appeals has reversed a 2010 murder conviction based on a misstatement in a jury instruction.

The 2-1 ruling came in the case of Michael Waddell Johnson, now 69, who was convicted in the beating and strangling of his former common-law wife, Cathy Cobb. The decision, handed down Thursday, sends the case back to 3rd District Court for a new trial.

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Cobb, 40, is believed to have died Jan. 10, 1998, in her Salt Lake City apartment. Her son, William Hall, found her body two days later. Johnson told police he last saw Cobb alive three days earlier when she left a party to get her hair styled.

Johnson was interviewed at the time by police, who labeled the death "suspicious," but was not considered a suspect, according to court documents. The case was closed six months later but reopened in 2005 as part of a review of old cases ordered by then-Mayor Rocky Anderson. The review led to Johnson being charged with alternate counts of murder, one based on a theory of intentional murder and the other based on a theory of depraved indifference murder, both first-degree felonies.

At his 2010 trial, a Utah state medical examiner testified that he believed strangulation to be the most likely cause of Cobb’s death, while a Michigan medical examiner who testified for the defense said she most likely died of drug and alcohol intoxication, court documents say.

Third District Judge Judith Atherton granted a defense request to allow the jury to consider the lesser charge of homicide by assault, as well as the felony murder charges. The jury convicted Johnson of the more-serious charge of intentional murder. He was sentenced to five years to life in prison.

Johnson then appealed his conviction because 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 is missing from the trial record, the appeals court ruling says. It says Atherton has said in a court entry that she could not find the lesser-included offense verdict form in the court records but recalls creating it and sending it along with the jury instructions when jurors’ deliberations began.

In the majority opinion, Court of Appeals Judge James Z. Davis focused on whether the jury instruction on homicide by assault misstated the state of mind required for a defendant to be found guilty of the crime. Davis ruled that it did, and said that error made the question of whether the jury ever got the verdict form irrelevant.

Judge Stephen Roth concurred with the opinion, while Senior Judge Russell Bench dissented.

Bench said the appeal should have been decided based on the original issue of the verdict form, rather than the jury instruction wording. Atherton’s recollection that the jury received the verdict form "defeats Johnson’s claim that he was prejudiced by the lack of that form in the court record," he wrote.


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Bench also said he is "not at all sure" the wording error hurt Johnson.

pmanson@sltrib.com

Twitter: @PamelaMansonSLC



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