State v. Marquina

• Decision Date: 23 November 2018
• Docket Number: No. 20150854-CA,20150854-CA
• Citation: 437 P.3d 628
• Parties: STATE of Utah, Appellee, v. Raymond Jesus MARQUINA, Appellant.
• Court: Utah Court of Appeals

437 P.3d 628

STATE of Utah, Appellee,

v.Raymond Jesus MARQUINA, Appellant.

No. 20150854-CA

Court of Appeals of Utah.

Filed November 23, 2018

Teresa L. Welch, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

Opinion

Pohlman, Judge:

¶1 Appellant Raymond Jesus Marquina was convicted for aggravated robbery, a first degree felony, after he attempted to rob Victim and shot him five times. Marquina now appeals that conviction, contending that he is entitled to a new trial because at least one juror may have slept through a portion of his trial. Marquina also contends that his conviction should be vacated because there was insufficient evidence to place him at the scene of the crime. We affirm.

BACKGROUND¹

The Crime

¶2 A few minutes after returning home from an evening out, Victim and his wife (Wife) heard a ring of the doorbell and a knock on the door. Victim opened the door and saw a man on his porch with a blue and white-streaked mask covering his face.² The man was about 5'5? tall and of average build. He said something that Victim could not understand and then "immediately started pulling" the trigger of his gun. Victim was shot five times in the neck and face.

¶3 Wife, who was upstairs during the attack, heard three gun shots and rushed to the top of the stairs where she had a view of the front door. She saw "an arm with a dark-colored covering" and a gloved hand holding a gun. Still from her vantage point, Wife saw Victim fall to the floor and gurgle "lots of blood" as he tried to yell for her. Wife called the police and, after they arrived, Victim was taken to the hospital.

¶4 Neighbors also heard the gunshots. One neighbor looked through his window and saw two persons wearing black hoodies running away. Another neighbor ran out of her house in an attempt to see the shooter. She did not see anyone but, upon approaching Victim’s house, stumbled on a black mask in Victim’s driveway. Police later recovered the mask and sent it to the crime lab for DNA testing. That testing led the police to a local drug dealer (Dealer).

The Three Accomplices

¶5 Shortly before the shooting, Dealer decided to rob someone because he needed money to pay his rent. He had heard from several of his customers that Victim kept a lot of cash in his van and would be a good target. With help from his girlfriend (Girlfriend), Dealer made a plan to rob Victim.

¶6 Dealer then told his occasional chauffer (Driver) that he "had something [he] needed him to do." Driver was a drug addict who received free drugs from Dealer. He went along with Dealer and Girlfriend on the night of the robbery because Dealer, who "can’t see well at night," needed someone to drive.

¶7 After a police investigation, Dealer, Girlfriend, and Driver admitted their involvement in the aggravated robbery of Victim. And all three placed Marquina at the scene of the crime.

¶8 Marquina, who was a member of the same gang as Dealer, had joined Dealer and Girlfriend at Dealer’s apartment on the day of the robbery. While at the apartment, Dealer asked Marquina "if he wanted to go do some dirt with [him] real quick," and Marquina said he did.³

¶9 Dealer, Girlfriend, Driver, and Marquina then got into Dealer’s car.⁴ Dealer drove and placed a gun between the driver’s seat and the emergency brake. Because they did not know where Victim lived, Girlfriend tried searching the internet to find his address. Her search initially led them to the wrong neighborhood, but they eventually found Victim’s house with Victim’s van parked outside. They drove around the neighborhood "for what seemed like forever" until Girlfriend asked Dealer, "Are you going to do this or not?"

¶10 Dealer and Marquina eventually got out of the car, while Driver took the driver’s seat and circled the car around the block. Both Dealer and Marquina wore black hoodies, and Dealer brought two masks—one black and one blue with white streaks. Marquina put on the blue and white-streaked mask, but Dealer was unable to get his black mask on and threw it back toward his car. On the way to Victim’s front door, Dealer got nervous and sent Marquina to the door alone. Marquina rang the doorbell and knocked. When Victim answered, Marquina shot him.

¶11 Marquina and Dealer then ran up Victim’s street until they spotted Dealer’s car. They yelled for Driver to stop and got in the backseat. Driver then drove straight back to Dealer’s apartment. Once there, Marquina went his own way. Girlfriend phoned Marquina repeatedly that night to "see if he was okay," but Marquina never answered.⁵

¶12 A few weeks later, after the police had questioned Dealer, Girlfriend, and Driver, each of whom implicated Marquina in the shooting, Marquina was arrested. Marquina’s driver license listed him as 5'6? and 120 pounds. Shortly after Marquina’s arrest, the police conducted a photo array identification with Victim, who survived the shooting. Marquina’s photograph was in the array, but Victim identified someone else as the shooter.

The Trial

¶13 The State charged Marquina with one count of aggravated robbery, which included a group enhancement.⁶ Dealer, Girlfriend, and Driver each testified at Marquina’s trial. Dealer had pled guilty to the aggravated robbery and agreed to testify even though it was "going to make [his life in prison] worse." He did not expect to receive "any benefit whatsoever" for testifying. Girlfriend pled guilty to obstruction of justice, but in exchange for her testimony against Marquina, she was placed on probation in lieu of incarceration. Driver also struck a deal that, in exchange for his testimony, he would be placed on probation for robbery and would enter a rehabilitation program. Although all three of their accounts varied in some particulars, each witness placed Marquina at the scene of the crime. See supra ¶¶ 7–12.

¶14 The trial lasted three days. On the second and third days, the prosecutors mentioned a sleepy juror. The first time, defense counsel was in the middle of cross-examining one of the detectives on the case when one prosecutor noticed a juror "nodding off." The prosecutor asked for a break so the jurors could stretch, and the court agreed to take a fifteen-minute recess.

¶15 The second time, after reading the jury instructions, the court discussed with counsel its intention to make the last-selected juror the alternate unless the parties agreed on someone else. In response, a second prosecutor noted that "we do have someone who has been sleeping through part or—not all but part of the testimony" and reasoned that, because closing arguments were likely to be lengthy, it would "probably [be] safer to use the alternate ... as an actual juror." The prosecutor further explained that the juror "has been dozing off here now, but there have been moments when he has been seemingly out." Defense counsel stated he "ha[d] not noticed any of the jurors sleeping," but that he "ha[d not] really been focusing on them." Defense counsel went on to refer to a judge who "is often mistaken by many counsel to be sound asleep ... when the truth of the matter is he is just resting his eyes," and that counsel will realize that "not only has he been listening but he has been processing everything in a very high way." The court then observed that "everyone tried to stay awake" and, with no objection from counsel, left the jury as it was. The court also invited counsel to alert the court if they "change[d] [their] mind[s] after closing" and stated, "We will be looking at [the jury] this time."

¶16 Neither side raised further concerns after closing argument. The alternate juror was excused and the jury retired to deliberate. The jury unanimously found Marquina guilty of aggravated robbery, and Marquina appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Marquina raises two issues on appeal. First, he contends that his Sixth Amendment right to an impartial jury was violated because at least one juror reportedly slept during his trial. Normally, "[c]onstitutional issues are questions of law that we review for correctness," State v. Norcutt , 2006 UT App 269, ¶ 7, 139 P.3d 1066, but unpreserved constitutional issues, as Marquina concedes this is, are reviewed "under the ineffective assistance of counsel and plain error doctrines," see State v. Bond , 2015 UT 88, ¶ 14, 361 P.3d 104.

¶18 Second, Marquina contends that there was insufficient evidence to support his conviction for aggravated robbery. "When a defendant challenges a jury verdict for insufficiency of the evidence, we review the evidence and all inferences which may be reasonably drawn from it in the light most favorable to the verdict." State v. Noor , 2012 UT App 187, ¶ 4, 283 P.3d 543 (quotation simplified); see also State v. Ashcraft , 2015 UT 5, ¶ 18, 349 P.3d 664 ("On a sufficiency of the evidence claim we give substantial deference to the jury."). We will reverse a jury verdict only when "the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted." State v. Holgate , 2000 UT 74, ¶ 18, 10 P.3d 346 (quotation simplified).

ANALYSIS

I. Sixth Amendment Jury Right

¶19 The Sixth Amendment guarantees criminal defendants "the right to ... an impartial jury." U.S. Const. amend. VI. Marquina contends that he was denied this right when a juror reportedly fell asleep during the trial. In support, he argues that the trial court had a duty to conduct voir dire⁷ of the allegedly sleepy juror to ensure the juror had not missed important testimony. He also argues that his defense counsel was constitutionally ineffective when he failed to insist that the court conduct voir dire or, if necessary, replace the sleepy juror with the alternate juror.

¶20 As noted above, Marquina concedes that this constitutional issue has...