State v. Marquina

This opinion is subject to revision before final
publication in the Pacific Reporter

2020 UT 66

IN THE

SUPREME COURT OF THE STATE OF UTAH

THE STATE OF UTAH,
Respondent,
v.
RAYMOND JESUS MARQUINA,
Petitioner.

No. 20180994
Heard February 12, 2020
Filed October 15, 2020

On Certiorari to the Utah Court of Appeals

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

Attorneys:
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.

JUSTICE PETERSEN, opinion of the Court:

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
 STATE v. MARQUINA
Opinion of the Court

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

__________________________________________________________
1 Marquina also argued on appeal that there was insufficient
evidence to support his conviction. State v. Marquina, 2018 UT
App 219, ¶ 18, 437 P.3d 628. As Marquina failed to object to the
sufficiency of the evidence at trial, the court of appeals reviewed
the claim for plain error. Id. ¶¶ 42–43. The court of appeals
determined, “the evidence here is ‘not so lacking and
insubstantial that a reasonable person could not have determined’
that Marquina committed the crime.” Id. ¶ 48 (citation omitted).
As Marquina did not petition for certiorari on this issue, we do
not address it.
2 On appeal, we view “the facts in the record in the light most
favorable to the verdict.” State v. Layman, 1999 UT 79, ¶ 3, 985 P.2d
911.
3 Part of Marquina’s strategy at trial was to highlight the
inconsistencies between the testimonies of Flores, Velazquez, and
Smith. Although we do not describe the discrepancies in depth,
we note there were differences between the participants’
descriptions of the events on the night of the shooting. But, as we
mentioned, we view the facts in the light most favorable to the
verdict. See supra n.2.

2
 Cite as: 2020 UT 66
Opinion of the Court

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

__________________________________________________________
4Trial testimony was inconsistent as to whether Marquina
drove his own vehicle or rode with the rest of the group from
Magna to West Valley.
5While the victim described the bandana as being blue and
white, he acknowledged being red-green color vision deficient.

3
 STATE v. MARQUINA
Opinion of the Court

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
__________________________________________________________
6 A portion of the court’s statement was inaudible.

4
 Cite as: 2020 UT 66
Opinion of the Court

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
__________________________________________________________
7 The record is unclear as to the identity and number of alleged
sleepy jurors. The State seemed to refer to one juror who is male
(“he has been dozing off”). But the court referenced a seemingly
different juror who is female (“[n]o. 6, the first lady that I have
noticed.”). See supra ¶¶ 12–13.

5
 STATE v. MARQUINA
Opinion of the Court

[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
__________________________________________________________
8 Voir dire is the process by which a judge may examine a juror
“to decide whether the prospect is qualified and suitable to serve
on a jury.” Voir Dire, BLACK’S LAW DICTIONARY (11th ed. 2019).
Although this usually occurs during the jury selection process, it
may also describe examinations of jurors after the jury has been
impaneled. State v. Marquina, 2018 UT App 219, ¶ 19 n.7, 437 P.3d
628.

6
 Cite as: 2020 UT 66
Opinion of the Court

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
affirmative representation of the erroneous principle.” Id. ¶ 18.
Affirmative acquiescence is insufficient to invite the error. Id. ¶ 21.
¶29 We agree with the court of appeals that defense counsel’s
responses to the State’s reports of a sleeping juror do not rise to
the level of invited error. State v. Marquina, 2018 UT App 219, ¶ 25,
437 P.3d 628. Defense counsel did not affirmatively argue that the
court should not identify and voir dire the sleeping juror. Nor did
he disagree with the State’s suggestion that the alternate replace
the sleeping juror. Rather, he stated that he had not seen any
jurors sleeping, and he posited that a person with closed eyes
could still be paying attention. He qualified his answer by
acknowledging that he had not been watching the jurors closely.
While counsel did not actively support the State’s proposal to seat
the alternate or join in the State’s concern that a juror may have
been sleeping, counsel did not disagree with the State or
affirmatively argue that the sleepy juror should not be replaced.
Accordingly, we conclude that while Marquina’s argument is
unpreserved, he did not invite the error that he now alleges.
¶30 We now address plain error. To establish plain error,
Marquina must show that “(i) an error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error [was]
harmful.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) abrogated
on other grounds by State v. Silva, 2019 UT 36, ¶ 20, 456 P.3d 718. An
error is obvious if “from a review of the record, the appellate
court is led to the conclusion that given the circumstances, the
trial court should have been aware that an error was being
committed at the time.” State v. Verde, 770 P.2d 116, 122 n.11 (Utah
1989). The prejudice analysis is the same for claims of plain error
and ineffective assistance of counsel. McNeil, 2016 UT 3, ¶ 29. An
error is prejudicial or harmful if the defendant shows “there is a
reasonable probability that, but for [the] error[], the result of the
proceeding would have been different.” Id. ¶ 27 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). “If any one of

7
 STATE v. MARQUINA
Opinion of the Court

these requirements is not met, plain error is not established.”
Dunn, 850 P.2d at 1209.
¶31 Marquina argues that because the trial court received
reliable reports of a sleeping juror, it was required to (1) identify
the sleeping juror and (2) voir dire the juror to discover what
portions of the trial the juror may have missed. He asserts that
this requirement is obvious under Utah law. To show prejudice,
he compiles the trial evidence that the juror might have missed—
based on the timing of the State’s reports that a juror was
sleeping—to argue that there was a reasonable likelihood of a
different verdict had the trial court replaced the juror with the
alternate who had presumably heard the evidence.
¶32 We have misgivings about the trial court’s handling of
the State’s concerns here. The State twice made reliable reports
that a juror was sleeping. On the second day of trial, the State
apprised the court that it had seen a juror “nodding off.” The
court did not inquire further into what the State had observed,
although it agreed to the State’s request to take a break. On the
third day, the State informed the court that the juror was again
“dozing off,” and sometimes “seemingly out.” The State raised
the issue at a time when the court had the ability to resolve it by
substituting the presumptive alternate juror for the drowsy juror.
Before declining to do this, the trial court did not gather
additional information about what the prosecutor had seen or
question the juror to determine if the juror had actually been
asleep and had missed portions of the trial. While we maintain
that the trial court is in the best position “to gauge the degree, if
any, of the juror’s incapacity to serve in the trial,” State v. Lesley,
672 P.2d 79, 82 (Utah 1983), here the trial court seemed dismissive
of the State’s concerns and did not make any further inquiries into
what the State had observed.
¶33 Even so, we agree with the court of appeals that
Marquina has not shown plain error because the error was not
obvious. Marquina, 2018 UT App 219, ¶ 34. In Utah, there is no
“settled appellate law,” id. ¶ 28 (citation omitted), establishing a
mandatory protocol when a trial court receives a report of a
sleeping juror. Rather, we have observed that deciding how to
respond to a sleeping juror is “so peculiarly within the
observation, province, and discretion of the trial court that we
should not interfere with the ruling, except upon a clear abuse of
discretion.” State v. Mellor, 272 P. 635, 639 (Utah 1928) (finding no
abuse of discretion where the trial court did not grant a new trial

8
 Cite as: 2020 UT 66
Opinion of the Court

after a juror “had several times dozed off at short or brief
intervals” but affirmed that he was “not unconscious” and “heard
and understood all that transpired in the courtroom during the
trial” (internal quotation marks omitted)). While established
precedent may not be required for a party to invoke plain error,
absence of such precedent is material to the question of whether
the error would be obvious to the trial court. See State v. Ross, 2007
UT 89, ¶ 41, 174 P.3d 628, abrogated on other grounds by State v.
Hummel, 2017 UT 19, ¶ 111, 393 P.3d 314.
¶34 In State v. Anderson, 251 P. 362 (Utah 1926), we deferred to
the trial court’s factual findings in affirming the court’s denial of a
motion for new trial. Id. at 364. In that case, the defendant claimed
that one juror had slept at various times throughout the
proceedings. Id. The trial court considered supporting affidavits
from people who were present during the trial, which were filed
with the motion. Id. It also received an affidavit from the juror in
question. Id. The trial court found “that the juror had not slept
during the taking of testimony.” Id. And we refused to “disturb
that finding.” Id.
¶35 While the court in Anderson reviewed affidavits in order
to determine whether a juror had been sleeping, we have also
upheld trial court decisions based on the court’s own
observations. For example, in State v. Pace, 527 P.2d 658 (Utah
1974), the trial court denied a motion for mistrial based on the
reports of “two onlookers” that “two of the jurors consciously
went to sleep.” Id. at 659. The court stated that it “had observed
the whole jury; that one had not gone to sleep, and the other did
‘doze for a second, twice’ but had aroused before [the court] ‘had
a chance to call it to [the juror’s], attention.’” Id. We affirmed,
deferring to the “sound discretion of the trial judge.” Id.; See also
State v. Granados, 2019 UT App 158, ¶ 40, 451 P.3d 289 (affirming
the trial court’s sua sponte dismissal of a juror without first
questioning the juror, based on the court’s own observation of the
juror repeatedly sleeping).9

__________________________________________________________
9 After oral argument in this case, Marquina submitted the
court of appeals’ State v. Granados opinion as supplemental
authority under rule 24(j) of the Utah Rules of Appellate
Procedure. 2019 UT App 158, 451 P.3d 289. Marquina argues that
Granados shows that “an error related to a sleeping juror is
obvious.” We first note that the Granados opinion was published
(Continued . . .)
9
 STATE v. MARQUINA
Opinion of the Court

¶36 In State v. Lesley, the defendant moved for a mistrial
because of a drowsy juror after the trial had ended, although he
had not brought the issue to the court’s attention during the
proceedings. 672 P.2d at 82. The only relevant record evidence
was that the trial court had “expressed concern to a juror who had
been up during the night before the trial about his ability to stay
awake.” Id. We noted there was nothing in the record to infer that
the juror had actually slept. Id. And we concluded that the trial
court had not abused its discretion, noting, “[t]he trial judge was
in a position to gauge the degree, if any, of the juror’s incapacity
to serve in the trial.” Id.
¶37 The court of appeals accurately observed that deference
to the trial court’s exercise of discretion is a thread running
through our case law in this area. Marquina, 2018 UT App 219,
¶ 29. As discussed, we have affirmed a range of trial court
responses to observations of drowsy jurors. In light of this, we
cannot say that it should have been obvious to the trial court that
a particular course of action was mandatory. Accordingly,
because any error in the court’s response here was not obvious,
we affirm the court of appeals’ determination that Marquina has
not shown that the trial court plainly erred.
¶38 However, while we conclude that the trial court did not
plainly err, this does not mean we find its response to be
satisfactory. When a trial court receives a reliable report of a
sleeping or otherwise inattentive juror, the court should proceed
in a manner that is proportional to the report. The court has
flexibility, of course, in determining what response would be
proportional under the circumstances. But at a minimum, it is
important for the court to glean any facts relevant to determining
whether a juror has missed a portion of the trial, and to make an
informed decision about whether the juror remains qualified to
decide the case.

after the trial in this matter, so the trial court would not have had
the benefit of the opinion during Marquina’s trial. But even if it
had, Granados would not change our plain error analysis. There is
no question that a trial court can and should address an instance
of a sleeping juror. But as the court of appeals recognized in
Granados, “There is no hard-and-fast rule governing how a district
court must deal with sleeping jurors.” Id. ¶ 39.

10
 Cite as: 2020 UT 66
Opinion of the Court

¶39 We also highlight that an instance of a sleeping or
inattentive juror inherently evades documentation in the record.
While the record reflects what was spoken at trial, it does not
reflect what participants saw at trial unless they describe it on the
record. When a trial court encounters an issue related to an
inattentive juror, appellate courts can defer to the trial court’s
chosen course of action only to the extent that there is a clear
record of what occurred and the court states its reasoning on the
record. See Northgate Vill. Dev. LC v. City of Orem, 2019 UT 59, ¶ 35,
450 P.3d 1117 (“We give deference to [trial] courts on evidentiary
rulings, but we can only defer to what is provided.”).
¶40 We have now clarified that when a trial court receives a
reliable report of a sleeping or inattentive juror, the court should
respond in proportion to the report. Here, the trial court did not
investigate and was dismissive of the State’s reports. Going
forward, a response that is not commensurate with the
seriousness of the information before the court would constitute
plain error.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶41 Marquina next argues that defense counsel’s response to
the State’s reports of a sleeping juror fell below an objective
standard of reasonableness. Marquina asserts that his counsel
performed deficiently when he did not argue that the trial court
should (1) identify the sleepy juror, (2) voir dire the juror to
ascertain what portions, if any, of the trial the juror missed, and
(3) replace the juror with the alternate.
¶42 In order to establish ineffective assistance, Marquina
must show that (i) counsel’s performance was deficient and
(ii) the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687 (1984). “The proper measure of
attorney performance remains simply reasonableness under
prevailing professional norms.” Id. at 688.
¶43 In order to establish deficient performance, Marquina
must rebut the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at
689. This presumption is especially apt in the jury selection
context. As the court of appeals correctly noted in its analysis of
Marquina’s claim,
There are a multitude of inherently subjective factors
typically constituting the sum and substance of an
attorney’s judgments about . . . jurors. A . . . juror’s

11
 STATE v. MARQUINA
Opinion of the Court

demeanor, interaction with others in the courtroom,
and personality in general may all play an important
role in providing clues as to that juror’s likely
predilections toward the case at hand.
State v. Marquina, 2018 UT App 219, ¶ 37, 437 P.3d 628 (alterations
in original) (quoting State v. Litherland, 2000 UT 76, ¶ 21, 12 P.3d
92).
¶44 In the context of jury selection, “counsel’s lack of
objection to, or failure to remove, a particular juror is presumed to
be the product of a conscious choice or preference.” Litherland,
2000 UT 76, ¶ 20. Further, “because the process of jury selection is
a highly subjective, judgmental, and intuitive process, trial
counsel’s presumably conscious and strategic choice to refrain
from removing a particular juror is further presumed to constitute
effective representation.” Id. We agree with the court of appeals
that these presumptions apply equally in the juror retention
context.
¶45 We conclude that Marquina has not rebutted the
presumption of effective representation. He argues that his
counsel could not have been acting reasonably because he did not
know who the sleeping juror was or how much of the trial the
juror might have missed. As an initial observation, we are not
certain the record supports this conclusion. Marquina presumes
there was no communication between the State and defense
counsel about the sleeping juror. But we note that it was defense
counsel who paused his cross-examination to request the sidebar
during which the State first raised the issue. We can only
speculate as to how counsel knew the State wanted a sidebar and
how much of an explanation the State had given him. And the
“defendant bears the burden of assuring the record is adequate.”
Id. ¶ 16.
¶46 But even assuming defense counsel did not know the
identity of the sleepy juror, we agree with the court of appeals
that counsel may have simply disfavored the alternate juror. See
Marquina, 2018 UT App 219, ¶ 39 (“[D]efense counsel may have
preferred any of the actual jurors over the alternate juror.”). As the
court of appeals observed, “Marquina’s counsel was able to
observe the jurors, including the alternate, over the course of three
days. Everything from the jurors’ demeanors to their reactions to
testimony may have played a role in counsel’s decision not to
insist on replacing the sleepy juror.” Id.

12
 Cite as: 2020 UT 66
Opinion of the Court

¶47 Ultimately, we agree with the court of appeals that
Marquina has not shown his counsel’s actions were deficient. And
therefore, his claim for ineffective assistance of counsel fails.
CONCLUSION
¶48 We conclude that the trial court did not plainly err in its
handling of the State’s reports of a sleeping juror. However, we
clarify that in such circumstances, a trial court should respond to a
report of an inattentive or drowsy juror in a manner that is
proportional to the report before it. We also conclude that defense
counsel did not provide ineffective assistance. We affirm.

13