State v. Marquina, 101520 UTSC, 20180994

Docket Nº20180994
Opinion JudgePetersen Justice.
Party NameThe State of Utah, Respondent, v. Raymond Jesus Marquina, Petitioner.
AttorneySarah J. Carlquist, Salt Lake City, for petitioner Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Salt Lake City, for respondent
Judge PanelJustice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.
Case DateOctober 15, 2020
CourtSupreme Court of Utah

2020 UT 66

The State of Utah, Respondent,

v.

Raymond Jesus Marquina, Petitioner.

No. 20180994

Supreme Court of Utah

October 15, 2020

Heard February 12, 2020

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake The Honorable Katie Bernards-Goodman No. 141914264

Sarah J. Carlquist, Salt Lake City, for petitioner

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Salt Lake City, for respondent

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

OPINION

Petersen Justice.

INTRODUCTION

¶1 Raymond Jesus Marquina was convicted of aggravated robbery after he shot a man five times during an attempted robbery. Marquina appealed his conviction, arguing that he was denied his right to a jury trial because at least one juror reportedly slept during the proceedings.[1] Because he had not raised this concern in the trial court, the court of appeals analyzed it under the doctrines of plain error and ineffective assistance of counsel. It concluded that the trial court did not plainly err when it did not identify which jurors may have nodded off, question them to ensure they were still qualified to deliberate, and replace them if necessary. State v. Marquina, 2018 UT App 219, ¶ 50, 437 P.3d 628. And it held that defense counsel was not ineffective for not asking the trial court to take these steps. Id.

¶2 Marquina petitioned for certiorari, which we granted. We affirm.

BACKGROUND2

¶3 A man named Michael Flores received notice that he was going to be evicted from his Magna apartment, so he decided to rob the victim in this case because he had heard that "[he] carried a lot of loose cash." Flores enlisted the help of Leann Velazquez, Ricardo Smith, and Marquina.3 The group left Magna in the late afternoon or early evening and drove to West Valley.[4] After a series of internet searches the group was able to locate the victim's house.

¶4 Once there, Flores and Marquina got out "to run down to [the] house and rob [the victim]." But as the duo neared the home, Flores "got nervous" and Marquina approached the home alone.

¶5 The victim and his wife had been at the symphony that night, returning home around 10:30 p.m. Shortly after entering the house, they heard a knock at the door, a ring of the doorbell, and more knocking. The victim went to the front door and opened it, finding a person wearing a blue and white streaked bandana5 and a hat covering his head so that only his eyeballs were visible. The person said something that the victim did not understand and immediately began firing a pistol. In all, Marquina shot the victim five times in the face and neck.

¶6 Hearing the shots, the victim's wife ran to the top of the stairs, which looked down on the front door. From her vantage point she saw an arm with "a dark-colored covering" on it, holding a pistol in a gloved hand. She witnessed "three of the shots go off."

¶7 Marquina and Flores then ran to the circulating vehicle and jumped in the backseat. The group headed back to Magna.

¶8 A neighbor heard the shots and looked out of his window. He "saw two [people] run away." He described both runners as wearing black hoodies.

¶9 Another neighbor ran after the shooter. But she found "nobody in sight." She walked back to the victim's house and happened to kick a black ski mask in the driveway. Law enforcement collected the ski mask and sent it to the crime lab for DNA testing. DNA found on the ski mask was a match for Flores.

¶10 About a month after the incident, two law enforcement officers questioned Flores and Velazquez at the Adult Probation and Parole office. Initially, Flores and Velazquez were reluctant to provide information. But they eventually implicated Smith and Marquina, who were arrested the next day.

¶11 Marquina was charged with aggravated robbery with a group enhancement. He pleaded not guilty and a three-day jury trial was set.

¶12 On the second day of trial, during defense counsel's cross-examination of one of the law enforcement officers, defense counsel paused his questioning to ask the court for a sidebar. The State then informed the court, "I'm sorry to interrupt it, but one of the jurors is nodding off. I was thinking maybe we could either stretch or recess or something?" Defense counsel and the court both concurred and a recess was taken.

¶13 The State raised the issue of a drowsy juror again on the third and final day of trial. The court had finished reading the jury instructions and recessed the trial for lunch. Upon returning from the lunch break, the court said to counsel, "talking about the alternate [juror], which is generally according to the rule the last person, unless both of you want to agree to somebody else."

¶14 The State responded, I think it's a bit of a problem, your Honor, that we do have someone who has been sleeping through part or-not all but part of the testimony, especially considering that we are now going to have probably rather lengthy closing arguments . . . so I think it is probably safer to use the alternate as an actual . . . juror and use [the sleepy juror] as an alternate. I think, from what I have noticed, from what the State has noticed, he has been dozing off here now, but there have been moments when he has been seemingly out.

¶15 The court responded, "[n]o. 6, the first lady that I have noticed."6

¶16 Defense counsel then stated, "I actually have not noticed any of the jurors sleeping. I haven't really been focusing on them." Perhaps suggesting that the juror could have been listening despite shuttered eyes, defense counsel described a federal judge who is often mistaken for being asleep but rather is "just resting his eyes" and "not only has he been listening but he has been processing everything in a very high way." Counsel finished, "I didn't notice anybody in particular sleeping, but I have to say that I wasn't focused on each and all of the jurors during the testimony. I was often looking at witnesses or evidence."

¶17 The court declined to substitute the alternate juror for the sleepy juror, stating, "[w]ell, then, we will leave it as the final person."

¶18 Attempting again to address the issue, the State offered, Okay. And . . . if you need to, your Honor, if you feel it is appropriate, I guess you can ask them afterwards, did everybody feel like they have listened to everything and heard everything and [are] capable of judging it, and . . . if anybody says, no, I was asleep for three hours, then we can address it.

¶19 The court seemed to dismiss the suggestion, stating, "I think everyone tried to stay awake." But the court added, "[y]ou may change your mind after closing. If you do, let me know. We will be looking at them this time."7

¶20 Neither party mentioned juror inattentiveness after closing arguments. The jury convicted Marquina of aggravated robbery with a group enhancement. He appealed.

¶21 In the court of appeals, Marquina argued that his Sixth Amendment right to trial by an impartial jury was violated based on the State's report that a juror slept during his trial. State v. Marquina, 2018 UT App 219, ¶ 17, 437 P.3d 628. Since this issue was not preserved, the court of appeals reviewed it under the plain error and ineffective assistance of counsel doctrines. Id. It rejected the claim and affirmed Marquina's conviction. Id. ¶ 50.

¶22 We granted certiorari on the following questions: (1) "Whether the Court of Appeals erred in concluding [Marquina] had failed to demonstrate that the [trial] court plainly erred in declining to inquire into the attentiveness of a juror"; and (2) "Whether the Court of Appeals erred in concluding [Marquina] had failed to demonstrate his trial counsel provided ineffective assistance in responding to observations that a juror may have been sleeping."

¶23 We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶24 "On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law." State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.

ANALYSIS

¶25 Marquina argues that the court of appeals erred in affirming his conviction. He asserts that he was denied his Sixth Amendment right to a jury trial because at least one juror may have slept during his trial. He asks that we reverse the court of appeals' decision to the contrary and remand for a new trial.

¶26 Because Marquina did not raise this issue at trial, the court of appeals analyzed whether (1) the trial court plainly erred in its handling of the State's reports of a sleeping juror, and (2) defense counsel was ineffective for not requesting that the sleeping juror be identified, questioned, and replaced. State v. Marquina, 2018 UT App 219, ¶¶ 26-39, 437 P.3d 628. We first review the court of appeals' determination that Marquina did not establish plain error. Then we turn to the court of appeals' determination that Marquina's counsel was not ineffective.

I. PLAIN ERROR

¶27 Marquina contends that the trial court plainly erred when, after receiving two reliable reports of at least one sleeping juror, it did not identify and voir dire8 the juror to determine if the juror had missed portions of the trial. He asserts that the court of appeals erred in concluding otherwise.

¶28 We must first address the State's argument that we should not review this claim for plain error, because any error was invited by Marquina. "[A]n error is invited when counsel encourages the trial court to make an erroneous ruling." State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. This typically occurs when "the context reveals that counsel independently made a clear...

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