State v. McNeil, 2016 UT 3 (Jan. 6, 2016)

The petitioner was convicted of assault based on testimony about phone records admitted at trial through the declaration of a dead detective. He appealed the conviction on the grounds of plain error and ineffective assistance of counsel, because his counsel initially objected that the testimony about the records was hearsay, but withdrew the objection when the judge told him it was not. The Utah Supreme Court held that defense counsel’s withdrawal of the objection and acquiescence with the trial court’s statement that the testimony was not hearsay was not invited error. Instead, it was merely a failure to preserve the objection, and remained subject to plain error review. Nonetheless, the court found that the defendant was not prejudiced by the error and affirmed the conviction because it concluded that the phone records would have been admitted at trial by other means if the hearsay objection had been sustained.